I don’t have a strong opinion either way about the potential bill, although I certainly don’t see how such a bill would cause any serious harm to our democratic process.  But I had not thought much more about it until I read a piece by James Taranto in the Wall Street Journal.  Here is the relevant bit:

[T]these days there is a good chance you will be asked for identification when you check into a hotel. You need ID to board an airplane or to drive a car. Recently we visited a doctor whose office is in a hospital. Just to enter the premises, we needed to present ID to a security guard.

If black people have trouble producing identification, how come nobody ever claims that these requirements are discriminatory?

Another important aspect of civil rights is equal employment opportunity. Under the 1986 immigration law, when you are hired for a job, you are required to provide your employer with documents proving both your identity and your citizenship or legal residency. How come nobody ever claims these requirements discriminate against blacks?

Isn’t that a fair question?  How come nobody ever claims ID verification is discriminatory in any other context?  But perhaps all this discussion about discrimination is really to miss the bigger point:  who out there honestly thinks Democrat politicians would be so engaged about this issue if everyone without a photo ID leaned Republican?  Right?

via The ‘Jim Crow’ Lie – WSJ.com.

Here are a few things the framers did not know about: World War II. DNA. Sexting. Airplanes. The atom. Television. Medicare. Collateralized debt obligations. The germ theory of disease. Miniskirts. The internal combustion engine. Computers. Antibiotics. Lady Gaga.

This, my friends, is what the opening of a hit piece on the Constitution looks like.  Rather than acknowledging the historic legacy we owe to our framers… a legacy bosting what are unarguably some of the most advancements in human history… Stengel openes his piece by essentially making fun of how ignorant the famers were of modernety generally.  The title of your piece … “One Document, Under Siege” makes so much more sense now, doesn’t it?   You are making it your business to discredit the framers as out-of-touch ignorant prudish backwoods hicks who’s lack of knowledge about lady gaga entirely disqualify all of their ideas from the realm of serious dialogue.

I’m afraid you are confusing the privilege of, well, living in the future, with the ability to judge the condition of humanity and proscribe social institutions most suited to such a society.  Thats kind of embarrassing if you ask me.

But, before I get ahead of myself, you continue:

People on the right and left constantly ask what the framers would say about some event that is happening today. What would the framers say about whether the drones over Libya constitute a violation of Article I, Section 8, which gives Congress the power to declare war? Well, since George Washington didn’t even dream that man could fly, much less use a global-positioning satellite to aim a missile, it’s hard to say what he would think…

What would the framers say about whether a tax on people who did not buy health insurance is an abuse of Congress’s authority under the commerce clause? Well, since James Madison did not know what health insurance was and doctors back then still used leeches, it’s difficult to know what he would say.

And what would Thomas Jefferson, a man who owned slaves and is believed to have fathered children with at least one of them, think about a half-white, half-black American President born in Hawaii (a state that did not exist)? Again, hard to say.

But what George Washington would have thought about any of this is, well, missing the point, isn’t it?  We don’t have to ask what he thought… we need to ask what powers the constitution expressly allows or prohibits.  In most cases, this is fairly clear; in cases where it is not, we have courts (and constitutional amendments) to work through the issues inherent with modernity.

David Azerrad over at National Review put it this way:

These principles [expressed in the Constitution], although first articulated centuries ago, are not tied to the material conditions of a bygone age. They rest on that most solid and enduring of all foundations: human nature. Madison’s rhetorical question in Federalist 51 rings true as ever: “But what is government itself, but the greatest of all reflections on human nature?” The miniskirt, sexting, and collateralized debt obligations haven’t put much of a dent on good ol’ human nature…

Times changes. Issues flare up and drop off the radar. Science continues to deliver wonders. The Constitution is meant to create a framework for a free people to confront the political questions of their times. The Constitution itself contains no policy prescriptions.[emphasis added] Its words and principles, anchored in the Declaration of Independence, categorically rule out certain laws — e.g., bills of attainder — and create a system of checks and balance between different levels of government. But within the confines of these restrictions and delineations, it leaves the people free to deliberate via their elected representatives on the questions and problems of the day.

In other words… your fascination with ‘what the founders thought’ really misses the point:  They thought that future generations should figure things out themselves in a political climate which would protect them from an oppression by an all-powerful state.  Your veiled criticisms about the framer’s lack of insight into some rather trivial ‘modern’ issues seems to blind you from the incredible nuance, foresight, and insight the framers had about the state of man and the inherent dangers political power can have if left unchecked… which is all the document was intended to address.

And if that were not bad enough, we hear you say this:

If the Constitution was intended to limit the federal government, it sure doesn’t say so.

Really Mr. Stengel!  Ever hear of the 9th and 10th amendments?  Did you miss every time the language insists that “Congress shall pass no law abridging…” [pick your favorite freedom]?  The Necessary and proper clause (which you argue is some sort of license to exercise any power congress wants to exercise) is limited to laws “necessary and proper for carrying into Execution the foregoing powers” — language you mention but don’t seem to understand the meaning of at all.

And if we were honest with ourselves… your piece really isn’t about the constitution at all… its about defending all of the Obama administration’s questionable policies while at the same time  getting your jabs in at the tea party for even questioning the validity of Obama’s spending, his wars, and his health care law (all of which you at least partially defend on constitutional grounds)

We see straight through you Mr. Stengel.  Straight through you.

via U.S. Constitution Under Siege over Libya, Taxes, Health Care — Printout — TIME.

Enough. It pains me that I – a Brit – have to lecture Americans – particularly those of you who would be President – on your own laws, but here’s the stark truth of the matter… You do not have a blanket right to freedom of speech: not in stores, not in bars, not in other people’s private homes and not – in almost all cases – on the Internet.

And you certainly don’t have that right enshrined in the 1st Amendment, which reads….

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Read that again. The clue is right there in the first word of the first amendment. CONGRESS shall make no law. Not TechCrunch shall make no law, or Rackspace shall make no law or talk radio shall make no law or I shall make no law or you shall make no law, but CONGRESS.

via TechCrunch Has Breached Your Right To Free Speech? Yeah, Shut Up.

Paul Campos, writing over at the “Lawyers Guns & Money” blog has a piece I highly recommend reviewing if you feel at all inclined. While he unearths little more about Kagan’s political beliefs than was revealed in the nomination hearings, he does begin to show us a picture of Kagan’s past that has not received the attention it probably should receive… but who in the mainstream media would we really expect to do this kind of research anyway?  I can’t think of anyone.  Whatever the piece’s weaknesses, I think anyone would agree with me that the piece is certainly compelling journalism.

I found two things particularly interesting about Kagan after reading the piece:  First, her ability to land not just good jobs… but great jobs… is really astonishing.  If you ever doubted the ability of connections to influence your career, you had best rid yourself of that notion immediately.  Second, it surprised me just how deeply Kagan is connected to Washington Elite… both because of her connections to the Clinton administration as well as those she gained as dean at harvard – a position she appeared to be quite unqualified for albeit groomed for it seems.

Campos concludes thusly:

Indeed, Obama’s nomination of Kagan suggests that, for all his talk of “change,” he is himself at heart a comfortable denizen of Establishment America – that place where people with the right sorts of resumes rotate profitably between Wall Street, Washington, and the Ivy League, while praising each other for having “good judgment,” and being “reasonable” and “non-partisan.”

The relative ease with which Elena Kagan is being confirmed to a lifetime appointment on the Supreme Court illustrates the extent to which Establishment America believes that a member of the club in good standing – someone who has gone to the right schools, and gotten the right kinds of jobs, and befriended the right sorts of people – can be counted on to do the right thing, even though her own legal and political views remain largely unknown. Naturally, from the establishment’s perspective, the right thing is to do nothing that might seriously disturb any of the social arrangements that continue to serve its interests so well. And in the end, Obama’s faith in Kagan is most likely based on a well-warranted belief that, as a Supreme Court justice, she will prove to be as acceptable to that establishment as Obama himself.

While this isn’t really that harsh of a critique… It certainly is not praise… and does not indicate to me Kagan will be much more than a dependable liberal vote on the court… which is exactly what Obama wants.

Elections have consequences people… you gotta remember that.

Well, as we heard today, she has a great American story.

And — but there is someone else here, as we just heard, who also has a great American story, and that is Frank Ricci, who is the fireman who sued because he took a promotional test, he and others, and was denied the promotion simply because of his race.

And that’s a case that came to the second circuit court, and Judge Sotomayor summarily dismissed it.

Now, that is important because it tells us a lot about her judicial philosophy. And the fact that, as we heard Judge Jose Contrera, on her court, also a Clinton appointee, was upset by her dismissal of this, and not even being willing to recognize the serious constitutional issues, that tells us that she really is a believer in the racial spoils system.

She is a person who said in a speech that she would hope that a wise Latina woman would come to better conclusions as a judge than a white male.

I mean, imagine if you heard someone say the reverse. He would be run out of town as a racist and a sexist.

And it reflects the president’s idea of empathy in the judicial choice, meaning a person who cares about the standing of a defendant or a plaintiff in a case, meaning if he is rich or poor, black or white, advantaged or not, which should not be something a judge takes into consideration.

via Krauthammer’s Take – NRO Staff – The Corner on National Review Online.

Being the good friend that I am, I thought some illumination was necessary. I proceeded to explain to her that:

What’s wrong with certain books being banned by library staff anyway? Surely even YOU would ban certain books if you were a librarian… for example, I doubt you would get a hustler subscription for your local library…

Librarians MAKE EDITORIAL SELECTIONS TO THEIR BOOK CATALOG ALL THE TIME. That’s why you have any given book in your library is BECAUSE of a conscious choice to PUT IT THERE.

This obviously was not convincing enough for her as she proceeded to say:

What the hell do you mean? Please tell me which power enumerated in the Constitution of the US or in Alaska’s laws give that idiot that right to ban books… I’d love to see Sarah Palin even begin to comprehend a casebook, lmao!!! She can’t handle children’s books in the local library, without getting offended. What a simple minded fool.

Banning books, wanting to teach a non science like creationism in schools, knowing nothing about how the constitution or goverment works, time and time again showing that she thinks she can be the arbiter of values for people who have the right to choose those things for themselves, I consider that i huge fuc**ng issue.

But I guess that’s why I’m a libertarian Joel, I believe in freedom, and people’s right to choose for themselves, and not have some half wit poorly educated blow hard tell me what I can or can’t do.

I’m sure you are getting the picture here; my logic didn’t make a dent. But, being the good friend I am, I concluded I just hadn’t explained it clearly enough:

libraries are not protected by the first amendment you IDOT. People are. Go ahead… explain to me how the constitution prohibits taxpayers from voicing their opinions about how their tax dollars are spent… LIBRARIES do not have first amendment rights!!!!!

Freedom of expression isn’t at issue here. Local communities can decide what they want in their library and what they DON’T want. Why is Palin unable to voice her opinion about what is in her community’s libraries??? Why should HER OPINION about this be stifled? You want to talk about stifling… let’s talk about the assumption SHE CAN’T GIVE HER INPUT. This is Orwellian doublespeak here.

[T]his whole thing is basically an argument that non-religious people are better-suited to decide what we should be learning at our local library than religious people. This is al basically just an attack on Christians and christian beliefs…

This was about as much as I could take. After a few more exchanges of (mostly) personal attacks, I felt my time would be better spent on other things).

However, just yesterday an article appeared in the American Thinker that really drew my attention back to this discussion. The author takes a somewhat different angle on this whole “book banning” issue and, from my point of view, lays it to rest.

Among the many accusations against Sarah Palin was that she banned books. Though debunked, that charge highlights a deeper issue, which is Rule By the Discreet Elite. In this case the Elite is librarians, yet another group credentialed by left-leaning institutions…

When a mayor or parent or just anyone in the community tries to do such a thing, it is called censorship, book-banning or book-burning. When a librarian does it, it is called “selection.”

If a book is removed from a public library, it is not “banned,” it is simply not provided free of charge at taxpayer expense. And if a book is not even removed from the library, but merely taken off its prominent display shelf, it is not banned or censored at all, it is simply not promoted by your local government.

But let’s get back to considering the stocking of public libraries with books. The Library of Congress has about 21 million catalogued books…. That means that just about any library you or your child uses has less than 0.1% of all books in it. Someone must have censored 99.9% of them!

When you choose what books go into a library, you are also choosing what books will not go into that library, since you simply can’t fit them all in. So why are librarians considered the one and only ones who can make such decisions? Concerned citizens can’t. Parents of children who use the school library can’t… That’s censorship. But librarians not only do it, they do it every day. It’s considered their job.

The real question is not which books should be stocked and not stocked at your local library, but who decides.

At the end of the blog fight, my friend tried pinning me with the question: “So is it okay to ban then or not? YES OR NO? Answer the question Joel!!” — to which my response is, well, I think local communities should decide which books to carry and vise-versa. I think that an institution that survives solely by the taxpayer expense should reflect the taxpayer’s values. Libraries SHOULD NOT be used as a tool by which an elite who think they “know better” about what children should be reading to force their ideas and values on to the community as a whole. My friend’s solution to this problem is “don’t fuc***g read [the book]“. While this is certainly a rational solution, it pre-supposes that the book SHOULD be there in the first place! This is a self-contradictory argument and therefore unacceptable. One cannot logically criticize one person for demanding something be pulled while simultaneously demanding it be shelved. It is a clever trick, but in the end, it is no better of an argument. Face it Priscilla, you lost this round!

Based on such an odd move, I can think of only one explanation. It seems this fear-mongering about Bush’s police state is nothing more than a political ploy. They know the program is within constitutional limits, but are trying to scare their base into believing Bush is going to listen in on their phone conversations. They know how effective the wiretapping program is at preventing terrorists activities and know that the consequences of future terrorist activity could be placed squarely on them should they stonewall the bill.

I suppose the Democratic leadership could be so ineffective that they can’t stop anything the Bush administration wants passed–even though they are the majority party in a lame duck presidency, but I’d hate to be accused of thinking that badly of them.

Within days, MediaMatters.org , a liberal, media-watchgroup funded by Hillary Clinton, picked up on those words and picked up this statement and ran with it, claiming that he “called service members who advocate U.S. withdrawal from Iraq phony soldiers.” — an obvious misrepresentation.

Within days, (and without bothering to check his facts) Senate Majority Leader Harry Reid went before the floor of the Senate and called on Limbaugh to apologize for his 2 words.

REID: That’s why Rush Limbaugh’s recent characterization of troops who oppose the war as “phony soldiers” is an outrage. Our troops are fighting and dying to bring to others the freedoms that many take for granted. It is unconscionable that Mr. Limbaugh would criticize them for exercising the fundamental American right to free speech. We call on you to publicly repudiate these comments that call into question their service and sacrifice and ask Mr. Limbaugh to apologize for his comments.

Mr. Reid, who daily makes it is mission to undermine the success of our troops is trying to use the power of his elected office to silence via intimidation a public media figure by selectively pulling two words of a much larger conversation out of context and imposing his own interpretation on them.  He is claiming that Mr. Limbaugh (a host who expresses deep gratitude to every military figure who calls in to his show) is now being unsupportive of the troops because he called soldiers who lie “phony”. How ironic; the man who threatens anyone who challenged his patriotism is now challenging Mr. Limbaugh’s…. patriotism. Quite the double-standard.

And if this were not enough, Mr. Reid sent a letter to the CEO of Clear Channel Communications which calls on him to “publicly repudiate these comments that call into question their service and sacrifice and ask Mr. Limbaugh to apologize for his comments.” I’m sorry, but if this is not Government surpression of free speech, I don’t know what is. He is trying to use political force to frighten a private entity from expressing opinions (which he has to fabricate) that he disagrees with. It is clear that Mr. Reid is reverting to personal attacks on his political opponents in order to divert attention from his shameful record as leader of the Senate. His incredibly low approval rating and his failure to end the Iraq war…despite his own promises that it would end under his leadership… amount to nothing more than a record of incompetence.

Allow me to ask my liberal friends a question. Is this the kind of people you want running our country? Politicians who will slander private citizens for personal interests; politicians who use their coercive power to silence speech they disagree with; politicians on whom facts have so little impact? I hope not. Can you imagine the outrage if BUSH tried to attack Democrats for not supporting the troops? Can you imagine the hell that would ensue? How is it that such acts are acceptable… if coming from the mouths of Democrats and not Republicans? Is this not a horrible double-standard?

The speaker was Larry D. Kramer and he was speaking about his new book, “Popular Constitutionalism“. The basic thrust of his book is that the constitution’s interpretation should be left to the legislative and executive branches–or, at the very least, not so dependent on the unquestionable “final say” of the judicial branch.

In fact, he makes some great points:

1) The Revolutionary War (and, more broadly, the reason for America’s division from Great Britian was actually a dispute about the failure of the British government to uphold the BRITISH constitution–one that guarenteed rights of representation which the colonists were not able to exercise.

2) After having a war fought for the right of self-determination, would the founding fathers suddenly be willing to give up that right to a handful of unaccountable, unelected judges?

3) The Supreme Court was never intended to be the final arbitrar of CONSTITUTIONAL RIGHTS… it was not until Marbury v. Madison that the Supreme court took on this role. On a broader level, the courts were only to be one voice in a loud chorus of voices that debated the constitutionality of laws.

After listening to his speech, I must admit I felt challenged in my “originalist” tendencies. It seems that originalism isn’t necessary a very “originalist” method of constitutional interpretation. Nevertheless, we can’t pretend that ‘populist’ interpretation can co-exist with an entrenched judiciary that still commands absolute fealty when determining constitutionality.

I don’t have hours to touch-up this post and fully develop many of these thoughts… but hey, that’s what the comments section is for!