• Tag Archives Constitution
  • The Constitutional Reasons to Oppose Kavanaugh for the Supreme Court

    After two days of political theater, the Senate Judiciary Committee agreed to delay the vote to confirm Judge Brett Kavanaugh to the Supreme Court for a week. In that time, the FBI will conduct an investigation surrounding the allegations made against him by Christine Blasey Ford.

    By now, no one is a stranger to the claims of sexual assault that have been levied against Judge Kavanaugh. In fact, the entire country has been so wrapped up in this case, it is hard to determine what is fact and what is simply partisan politics rearing its ugly head. And between Cory Booker’s lengthy monologue that sounded more like a campaign stump speech than anything else and Lindsey Graham’s unexpected passionate rant, it is clear that both sides are putting way too much stake on the outcome of these hearings. And the real losers, unfortunately, are the American people, who are being diligently distracted from Kavanaugh’s actual policy record.

    To be sure, claims of sexual misconduct should certainly be brought to the public’s attention, especially when they involve a nominee for a position as powerful as a Supreme Court Justice. And in the #metoo era, failing to take these allegations seriously would be most unwise. But losing ourselves in this political circus and the subsequent media frenzy surrounding Kavanaugh’s sexual past glosses over another aspect of his professional career that should concern every single individual: his promotion of the national security state.

    The years of 2001-2003 were confusing for Americans as many tried to grapple with the fact that living in the greatest country on earth did not make us immune to large-scale terrorist attacks. These were also the years that Brett Kavanaugh served as associate White House Counsel for then-President George W. Bush.

    In the aftermath of 9/11, many people began to believe that the government not only had a right to take drastic security measures against its own people but that our livelihoods actually depended on it. This fear gave birth to the monstrous national security state we live in today, where without just cause, civilians began being treated like criminals in our own country.

    One of the most egregious acts perpetrated against the American people at this time was the PATRIOT Act. And one of its greatest supporters was Brett Kavanaugh.

    According to the Electronic Privacy Information Center (EPIC), which filed a Freedom of Information Act Request for Kavanaugh’s official government correspondence records from this era, the Supreme Court Justice nominee referred to the PATRIOT Act as a “measured, careful, responsible, and constitutional approach” in an email sent to a colleague. Anyone who knows anything about the PATRIOT Act knows that “constitutional” and “careful” are by no means accurate descriptions. The PATRIOT Act obliterated the Fourth and Fifth Amendment rights to privacy and due process by giving the federal government sweeping new powers to conduct surveillance on the American people.

    But his support of the legislation that signaled the downfall of American rule of law does not simply end with his favorable comments. Kavanaugh was also one of the individuals tasked with its drafting. He has been definitively credited with the line, “…the new law will update laws authorizing government surveillance.” And just this one line is rather problematic in itself. If he is the constitutionalist he has claimed to be on several occasions, then he would know that the Constitution already prohibits the government from broad, warrantless searches of this nature. This is not a protection that can simply be “updated.” And yet, his nonchalance over abolishing certain constitutional protections without a discussion of adopting an actual amendment is disconcerting.

    The public’s discovery of the “torture memos” was a dark time in modern American history. We had been riding our moral high horse during the early years of the War on Terror, pretending that America was the global beacon of moral and ethical treatment. But when the memos, which were originally composed while Kavanaugh served the Bush Administration, were released in 2004, the entire world caught a glimpse of just how ugly military interventions really were.

    The memos told a story of members of the Bush Administration attempting to broadly expand the legal definition of torture to justify such horrific acts as waterboarding and sleep deprivation as permissible. They also told of the administration’s quest to seek the authority to label anyone of their choosing an “enemy combatant,” thus, subjecting them to the possibility of indefinite detention in awful facilities like Guantanamo Bay. Their publication also added fuel to the already growing fire of animosity against George W. Bush who, at the time of the memo’s creation, was the employer of Judge Kavanaugh.

    In 2006, when Judge Kavanaugh was being questioned by the Senate Judiciary Committee as he waited to be confirmed to the Court of Appeals for the District of Columbia Circuit, he went on the record stating that he knew nothing of these memos before their public release. At several points during his hearing, he denied having anything to do with these memos specifically stating that he was “not involved” in any conversations regarding the rules governing the detention of combatants He also denied ever having seen the correspondence at all. He even told Senator Leahy:

    I think with respect to the legal justifications or the policies relating to the treatment of detainees, I was not aware of any issues on that or the legal memos that subsequently came out. This was not part of my docket, either in the counsel’s office or as staff secretary.

    The reason this has raised red flags for those already skeptical about Kavanaugh is that his position at the time dictated that memos and other written correspondence would have passed by his desk at some point before reaching their end recipient.

    Additionally, a year after the 2006 hearing, the Washington Post reported on a contentious meeting that had occurred in the White House in 2002. The conversation was centered on speculation as to whether or not the Supreme Court would accept the Bush Administration’s assertion that they could label an American citizen an “enemy combatant” at their discretion, allowing the person in question to be locked up for an indefinite amount of time.

    As per the Washington Post’s reporting, Judge Kavanaugh was not only present at this meeting but was specifically summoned to weigh in on the matter since he was himself a former clerk for swing vote judge, Justice Kennedy. At the meeting, he voiced his concerns that Justice Kennedy and other swing voters on the Supreme Court would never side with the administration’s controversial decision. This meeting was brought up again just a couple of weeks ago, addressing the concerns some Senators still have over Kavanaugh’s insistence that he had no role in such conversations when it appears that he did.

    As the New Yorker points out:

    First, attending this meeting or even just contributing a reading of Justice Kennedy’s likely view would seem to constitute taking part in a discussion on detention policies, and thus to contradict Kavanaugh’s sworn testimony.

    Senator Durbin, who sat on the Senate Judicial committee in 2006 sent Kavanaugh a letter in which he states, “it appears that you misled me,” but he never received a response, even after he followed up with Kavanaugh recently after he had received the Supreme Court nomination.

    The 2013 Edward Snowden leaks were arguably one of the most significant events to occur over the last decade. For those who thought the government wasn’t capable of this magnitude of corruption, the blindfold was removed and the government’s true intentions were revealed. For those already skeptical, the leaks had confirmed preexisting suspicions.

    In many ways, the Snowden situation drew a line in the political sand. Those who stood for freedom believed in the people’s inherent right to privacy and in upholding the Fourth and Fifth Amendments. But those who supported and sustained the government’s mass surveillance of its own people made their views on individual liberty very clear. And Judge Kavanaugh was not on the right side of history.

    At the heart of the Snowden situation was the question of whether or not metadata counted as government surveillance. The government, frantically scrambling to justify its actions, insisted that it was not actually data collection, since metadata did not technically provide any raw data. But metadata still gives very specific information about the type of data collected and therefore is still a violation of constitutional protections.

    However, in a ruling in the U.S. Court of Appeals for the D.C. Circuit, Kavanaugh ruled that “the Government’s metadata collection program is entirely consistent with the Fourth Amendment.” He also later stated that “that critical national security need outweighs the impact on privacy occasioned by this program.” Again, a rather odd conclusion for a staunch “constitutionalist” to support.

    Congressman Amash expressed his concerns with Kavanaugh’s ruling, tweeting:

    Future decisions on the constitutionality of government surveillance of Americans will be huge. We can’t afford a rubber stamp for the executive branch.

    This mass surveillance of the American people not only violated the specific statutes in the Fourth Amendment that specified how individuals could be searched by the state, but it also violated the right of due process— the same due process that Kavanaugh has asked be upheld while he undergoes the confirmation process.

    IDue process is a staple of our American legal system. And while the allegations made by victims of sexual assault should be listened to and investigated, there is more to due process than allowing Judge Kavanaugh to have his day in court. If the government would like to gain access to the private communications of American citizens, it must do so by going to a judge and obtaining a warrant. This warrant must specifically state what property is being searched and what is being searched for, as is specified by the Fourth Amendment.

    Requiring law enforcement to go through the proper channels to secure a warrant before violating the privacy of American citizens is part of due process. You cannot support “some” due process while blatantly abolishing certain safeguards that guarantee this right to Americans.

    To be sure, accusers of sexual assault deserve to be heard, but before we pass judgment, due process needs to occur. But due process is not meant for one class of people; it is meant for every American citizen whether they are nominated for the Supreme Court like Kavanaugh, or happen to have a radicalized parent like sixteen-year-old Abdulrahman al-Awlaki, who was targeted and killed by the U.S. Military without any semblance of due process.

    Currently, the entire country is obsessed with focusing on one very narrow aspect of Judge Kavanaugh’s life. True, if these claims turn out to be correct, there is a legitimate cause for alarm. But even if the allegations prove to be false, there are still serious concerns surrounding Kavanaugh’s confirmation on the Supreme Court that should not be ignored.

    Most of our lives are now digital, which makes our information extremely vulnerable to hackers both private and government-sanctioned. We cannot afford to put ourselves at risk by empowering judicial candidates who have a proven record of trampling on Fourth Amendment rights.

    Additionally, if there is ever a day when it is possible for Edward Snowden to return to the U.S. and receive a fair trial before the Supreme Court, it is hoped that our justices will be up to the task. And given Kavanaugh’s record of upholding the surveillance state in favor of national security, that future is highly unlikely.

    Source: The Constitutional Reasons to Oppose Kavanaugh for the Supreme Court – Foundation for Economic Education


  • Constitutional Ignorance Led to a Tyranny of the Majority

    Constitution Day—September 17—marks the anniversary of its 1787 signing. Students will be taught about it…but not because of its importance. It is now a mandatory topic for every educational institution receiving federal aid. However, what won’t be taught is the irony of that requirement, which originated from the man then-described as the Senate’s leading Constitutional scholar, while clearly conflicting with the Constitution.

    In 2004, Senator Robert Byrd (D.-WV) added this requirement to a pork-filled spending bill that was blatantly inconsistent with Americans’ general welfare. It also clearly overstepped the 10th Amendment’s restriction of the federal government to only its enumerated powers.

    His “solution” aside, Byrd was correct about Americans’ inadequate Constitutional knowledge. As one National Constitution Center poll concluded, only one in six of us claimed detailed knowledge of the Constitution—despite the fact that two-thirds said it was “absolutely essential” to have.

    Lack of Knowledge Is a Dangerous Thing

    In other words, Americans know too little about our Constitution to maintain the freedoms it was designed to protect. Instead, our ignorance leads us to sacrificing rights out of undue deference to majority rule.

    America’s Constitution did not endorse majority rule. Our founders did believe in voting to select who should be entrusted with the power of government, but the more important and prior question they addressed was: “What powers do the people delegate to the federal government to exercise on their behalf?” That is why so much of the Constitution, particularly the Bill of Rights, is devoted to what the government is not allowed to do, regardless of majority sentiment. As Jefferson said, our founders fought not for democracy, but for a government “tied down from mischief by the chains of the Constitution.”

    In fact, our founders had a great distrust of majority rule. Alexander Hamilton asserted that “Real liberty is not found in the extremes of democracy.” James Madison said “democracies…have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths.” Thomas Jefferson warned that “an elective despotism was not the government we fought for,” and that “The majority, oppressing an individual, is guilty of a crime, abuses its strength, and by acting on the law of the strongest breaks up the foundations of society.”

    That is why the Constitution contains multiple non-majority rules to protect Americans against federal abuses, such as presidential veto power and the super-majorities required to change the Constitution. Its defense is the rationale for the Supreme Court’s power to strike down unconstitutional laws, regardless of how many congressional votes they received.

    “Individual rights are not subject to a public vote.”

    Despite our founders’ antipathy toward pure majority rule, many today feel that our founders’ opposition to unlimited democracy can be squared with political determination of everything by adding the phrase, “also protecting the rights of the minority.” However, as Ayn Rand put it, “Individual rights are not subject to a public vote; a majority has no right to vote away the rights of a minority; the political function of rights is precisely to protect minorities from oppression by majorities (and the smallest minority on earth is the individual).” Consequently, our lack of Constitutional knowledge means that believing in protecting the rights of minorities does not actually protect them when they are outvoted.

    Since Americans don’t clearly understand their Constitutional rights against government abuse, the unwise habit of deference to political majorities results in those rights being steamrollered whenever more than 50% vote to do so. Examples are plentiful because—despite the Constitution’s imposition of strictly limited, enumerated federal powers—there is no area it does not now reach, if not dominate. And with our protections eroding, majority voting controls more and more of what our founders thought they had made off-limits to political determination.

    Sadly, as we can’t effectively defend what we are only vaguely aware of, American inattention to the highest law of the land puts our most essential rights and liberties at risk. We may think we have inalienable rights, as the Declaration of Independence asserts. But those rights are protected by the Constitution only if we know what they are and we remember that the federal government was not granted power to take them away based on any simple majority vote. Unless we once again take our rights as seriously as our founders and vigorously defend the Constitutional safeguards that maintain them—even against majority pressures—the system of self-government our founders left us will continue to erode. But when we don’t even recognize the irony of a federal mandate to promote understanding of the Constitution, especially when it is inconsistent with the Constitution, we are unprepared to do anything to effectively preserve its protections against government abuse.


    Gary M. Galles

    Gary M. Galles is a professor of economics at Pepperdine University. His recent books include Faulty Premises, Faulty Policies (2014) and Apostle of Peace (2013). He is a member of the FEE Faculty Network.

    This article was originally published on FEE.org. Read the original article.


  • Why the Founders Limited Executive Power

    Why the Founders Limited Executive Power

    Constitutionally limited government exists to protect the freedom of the citizens from the vicissitudes of democratic rule.

    Don’t worry, our country is strong enough to deal with what might be coming. Unfortunately, however, our Constitution has some holes in it, many of which were created by the last two administrations, that allow presidents to assert shockingly broad powers.

    We will gladly welcome back to the fold our left-wing friends who have spent eight years cheering for executive power. They resisted executive power during the Bush administration, and it should be like riding a bike. We hope we will be joined by principled people on the right who understand the need for constitutional limits. Maybe, in the process, we can create a new consensus around limiting executive power.

    Constitutionally limited government exists to protect the freedom of the citizens from the vicissitudes of democratic rule. The Framers of the Constitution knew that a person of George Washington’s caliber would not always be chosen president. They knew about demagoguery and populism. James Madison, in particular, was terrified of how voters in states could be swept up in waves of populist fury and, in the process, enact policies damaging to the long-term prosperity and freedom of the people.

    Unfortunately, after a century or more of erosion, our Constitution doesn’t limit our government the way it once did. In particular, the president is incredibly powerful, and able to make significant decisions without proper checks and balances. Democrats wanted this power when President Obama was in office, but the powers of the executive, especially after President Obama, are now truly concerning when held by someone as unpredictable as Donald J. Trump.

    Here’s a basic principle of good government: Don’t endorse a government power that you wouldn’t want wielded by your worst political enemy. Democrats will soon be learning that painful lesson.

    Obama’s Expanding Presidency

    Obama’s most concerning legacy was to use congressional inaction as a justification for sweeping executive orders. In the DACA and DAPA immigration cases, the president decided that, if Congress didn’t do something about immigration, then he would. This is a shocking argument for asserting unilateral power in a constitutional system that depends on checks and balances, and it should not matter whether you agree with the policy outcome. Nevertheless, Democrats, by and large, endorsed Obama’s action.

    The Congress hasn’t declared a war since World War II.

    Obama also used congressional inaction as a justification for claiming the power to decide whether the Senate was in session. After his nominees to the NLRB and CFPB were blocked by the Senate, President Obama used his recess appointment power—which gives the president the ability to appoint executive officers during Senate recesses—to push his nominees through. In so doing, he essentially declared that the Senate’s pro forma sessions, which were sham sessions first used by Harry Reid to block President George W. Bush’s nominees, were not “real” sessions of the Senate. It was a bold, reckless, unprecedented, and dangerous move that was struck down unanimously by the Supreme Court. On many types of executive overreaches, however, the Court will not be able to similarly intervene. If Obama had the temerity to push through those appointments, imagine how far Trump might go on other matters.

    The President and War

    Finally, the Congress hasn’t declared a war since World War II. Korea, Vietnam, First Iraq, Second Iraq, and Afghanistan were all fought without obtaining the constitutionally required declaration of war from Congress. We currently have the Authorization of the Use of Military Force, signed a week after the September 11th attacks and subsequently used by two presidents to fight “terrorists” wherever they wanted. President Trump will have that power too, which should concern anyone.

    Like nearly every president, President Obama defined a new baseline of executive power. Now that power will be handed over to Donald Trump, and left-wing groups like our friends at the Constitutional Accountability Center will probably be on our side when Cato inevitably files briefs opposing Trump’s forthcoming executive overreaches. I’ll try to restrain myself from saying, “I told you so.”

    Republished from The Cato Institute.

    Trevor Burrus


    Trevor Burrus

    Trevor Burrus is a research fellow at the Cato Institute’s Center for Constitutional Studies. His research interests include constitutional law, civil and criminal law, legal and political philosophy, and legal history. He is a member of the FEE Faculty Network.

    This article was originally published on FEE.org. Read the original article.