Birthright citizenship and the "living Constitution"

The National Council of La Raza is not happy.

"This was always seen in the past as some extreme, wacko proposal that never goes anywhere," said Michele Waslin, director of immigration policy research for the Hispanic advocacy organization. "But these so-called wacko proposals are becoming more and more mainstream--it's becoming more acceptable to have a discussion about it."

The "so-called wacko proposal" to which Ms. Waslin refers is the idea of changing U.S. law so that babies born to illegal immigrants in the United States do not automatically become American citizens.

The Fourteenth Amendment to the U.S. Constitution, ratified in 1868 following the Civil War, says "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States." Even though that provision was ratified with freed slaves in mind, it says what it says; it's the law, and changing it will require a constitutional amendment.

Some lawmakers have said they believe birthright citizenship can be revoked with federal legislation. They probably don't really believe that. They're likely just testing to see how the idea plays.

Judging from the hysteria over at La Raza, it's playing pretty well.

This issue nicely illustrates the truth about the widely-held view that the Constitution is a "living document." As long as it lives in a cage in the basement and only Sandra Day O'Connor has the key, "living Constitution" advocates are pretty content. But talk about handing the key to a conservative justice and all hell breaks loose.

Of course, the Constitution doesn't live in a cage. It lives in Article V, where you will find the framers' instructions for amending the Constitution whenever the American people think it's time for a change.

Article V says the people of the United States may amend the Constitution and puts no limitations on what they may amend it to say. It takes a two-thirds vote of the House and the Senate, or a constitutional convention called by two-thirds of the states, followed by ratification of three-quarters of the state legislatures. The president has no role. The Supreme Court has no say.

Bet you didn't know that.

La Raza knows it.

Sounds like they're worried you may find out.


Copyright 2005

Read the Constitution for yourself at the National Archives website. Read How to Get Congress to foot the bill for illegal immigration, and fast for more on this topic.

How the Republicans can lose their majorities

Democratic senators Pat Leahy, Dianne Feinstein and Harry Reid all said it within days of the New York Times' disclosure of the Bush administration's top-secret program of warrantless domestic eavesdropping: this is what happens when one party controls all three branches of government. There is no oversight.

Republican committee chairmen who want to hang on to their gavels should recognize right now that this is serious.

They should stop chanting about 9/11 and the terrorist threat long enough to state clearly that the president cannot order domestic wiretaps without seeking a warrant as required by law.

Period. Full stop.

Terrorism is a threat. But what would you call the idea that the president has unlimited power during a time of war, including the power to decide that the war will never end?

I'd call it a threat to the Republican majorities.

He has to seek a warrant. That's all there is to it. Republicans should not be afraid to say so.


Copyright 2005

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"Sneak and Peek" at Argus Hamilton's wiretapping jokes

AmericaWantstoKnow.com is pleased to leak these wiretapping jokes from comedian Argus Hamilton's Thursday column.:

Green Bay Packer Brett Favre had the worst game of his career Monday against the Baltimore Ravens defense. It wasn't his fault. Ever since Dick Cheney moved to Maryland the Ravens have been able to eavesdrop on the opposing huddle from space.

President Bush claimed the right to eavesdrop on U.S. citizens without a court order at his news briefing Monday. It caused a lot of irritation and complaint. Americans cannot understand why the Iraqis get to have a constitution and we don't.

Senate Democrats told the White House Tuesday they will demand to see all of Sam Alito's documents during the time he worked at the Justice Department. The White House was simply outraged by the demand. Is there no privacy in this country?

President Bush declared Monday his decision to spy on people without a court order was legal. Now you know why he's wearing a tuxedo to all the Christmas parties. Laura Bush has been described many ways but never until now as a Bond girl.

Dick Cheney told reporters Tuesday domestic wiretapping has kept this nation safe. He added that he believes in a robust executive authority. Then he threw his arms in the air and announced that from now on he will only be addressed as Thor.

John Kerry said Tuesday he thought President Bush offered a lame explanation for the secret wiretapping of U.S. citizens. That's about all the president needs to hear. If John Kerry says he's lame that should be good enough for a purple heart.

The FBI was discovered Tuesday to be spying on war protesters, animal rights activists and the Sierra Club. Twas ever thus. For forty years there's just been something about peace, love and tree hugging that rubs men with flat tops the wrong way.

Read Argus Hamilton's column every day at www.ArgusHamilton.com.

Copyright 2005 Argus Hamilton. Used by permission.

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Wiretapping for freedom: the president's secrets revealed

In the 1978 movie Heaven Can Wait, there is a memorable scene in which heavenly administrator James Mason calls off an overly aggressive subordinate who is trying to shout down a man who insists that a mistake has been made.

"The probability of an individual being right," Mason states calmly, "increases in direct proportion to the energy expended trying to prove him wrong."

On Saturday President Bush threw out the weekly radio address he had already taped and spoke to the nation live from the White House's Roosevelt Room. He slammed the United States Senate for arguing with him about the Patriot Act and he accused the New York Times of endangering the country by revealing that he has authorized secret wiretaps of U.S. citizens without first getting warrants.

The Saturday speech followed a week of presidential speeches defending his policy in Iraq and his conduct of the war on terror. It preceded a live address to the nation on Sunday evening on the same subject.

That's a lot of energy expended trying to prove his critics wrong.

President Bush accused a bipartisan group of senators of being irresponsible and endangering the lives of Americans by blocking reauthorization of the Patriot Act. The senators believed that the law, which would permit federal agents to break into your home and search it without informing you for thirty days, lacked sufficient protections for the civil liberties of innocent citizens.

President Bush said he must have this authority in order to protect the lives of Americans.

The New York Times reported Friday, after holding the story for a year, that the White House has authorized the ultra-secret National Security Agency to use its vast technological resources to eavesdrop on Americans without following the legal requirements of the 1978 Foreign Intelligence Surveillance Act. That law set up a special, secret court to authorize eavesdropping on suspected terrorists. Instead, President Bush signed a secret executive order allowing the NSA to wiretap Americans without a warrant from any court.

President Bush said he must have this authority in order to protect the lives of Americans.

The president said our freedom and way of life are under attack by brutal enemies who killed nearly 3,000 innocent Americans.

Yes, well, it's always something.

Our freedom and way of life have been threatened by Indian raids, civil war, two world wars, Sputnik, nuclear annihilation, inflation, malaise and terrorists with sharp objects. The Constitution doesn't give the president the power to do whatever he thinks necessary whenever our freedom and way of life are threatened.

In fact, nowhere in the presidential oath of office does the president swear to protect and defend the people of the United States. He takes an oath to protect and defend the Constitution of the United States.

The president said he is acting under his constitutional authority as Commander-in-Chief and by authority of Congress' 2001 Joint Authorization for Use of Military Force.

That's an interesting viewpoint. It suggests that the president's powers to suspend the Bill of Rights are unlimited during a time of war, and that the war does not actually have to be declared by Congress, but may be infinitely expanded by the president from a thin and specific authorization to use military force in one instance.

It's one more thing to explore with Judge Samuel Alito in next month's confirmation hearings.

Freedom is protected in this country not by a president with unlimited power, but by a Constitution that limits and divides the power of the federal government. Under the Fourth Amendment, you are not obligated to prove to the government on any given day that you have done nothing wrong. The government is obligated to prove to a judge that there is probable cause to search your home for specific evidence.

If the president doesn't like it, he can suggest an amendment to the Constitution that repeals the Fourth Amendment or adds a provision that states, "Except when the president thinks it's necessary."

Let's all tune in Sunday night and see if he does.


Copyright 2005

Mr. Rumsfeld's mythical privilege

The U.S. House of Representatives has subpoenaed the Pentagon for internal correspondence and documents related to the military's response to Hurricane Katrina. The Pentagon said Friday it will comply with the subpoena except, perhaps, in the case of correspondence from Defense Secretary Donald Rumsfeld.

Assistant Defense Secretary Paul McHale, the department's top official for homeland defense, said the decision to turn over Secretary Rumsfeld's e-mail is "subject to a continuing review of the communication for legitimate issues of legal privilege and confidentiality."

They can review all they like, they will not find a legitimate issue of legal privilege and confidentiality against a subpoena from the U.S. Congress.

In an indication that they may already know this, a spokesman for Paul McHale issued a clarification a few hours later, saying it was a hypothetical situation because Secretary Rumsfeld generally doesn't use e-mail.

One of the most pernicious myths put forward by this administration is the idea that the Constitution protects a president's right to receive frank advice in confidence from people who should not have to worry that what they say will be released to the public. Such a fear, the theory goes, inhibits honesty and causes advisers to censor themselves when they communicate with the White House, to the detriment of the interests of the people of the United States.

That's cute.

As long as we're on the subject of hypothetical situations, suppose an American administration was corrupt, and certain officials used their position to hand off lucrative government contracts to their friends and relatives in exchange for cash or favors or future jobs at extravagant salaries.

Suppose the Congress tried to exercise its constitutional power of oversight and began an investigation. Suppose it sent a subpoena to the departments in question and demanded to see documents.

Could the officials suspected of impropriety refuse to comply with the subpoena on the grounds that the inquiry compromises their ability to give the president the brutally frank advice we all know he craves?

Well, they could try. They could attempt to intimidate the always-up-for-reelection congressmen into backing down. They could accuse the lawmakers of grandstanding and harming national security and generally not understanding the gravity of the situation. That has worked in the past.

But if the Congress refuses to be intimidated, if the Congress hauls the administration in front of a judge, if at some point someone in Washington locates a copy of the U.S. Constitution, this is what they will read in Article II, Section 4:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Congress has the power under the Constitution to impeach any member of the president's Cabinet, and in order to carry out that power it has the power to investigate, to subpoena documents, and to compel testimony. It may investigate for any reason, not only on suspicion of a crime. The "President, Vice President and all civil Officers of the United States" may claim a Fifth Amendment right against self-incrimination, but that's not going to protect them from being removed from their jobs. Impeachment is a congressional power, not a judicial one, and the decision of the House and Senate is final.

And the president's right to receive confidential advice? You won't find it in the Constitution. Try the encyclopedia, under "unicorns."


Copyright 2005

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Dead serious: The execution of Tookie Williams

The Rev. Jesse Jackson tore himself away from ceremonies in Washington honoring the late Rosa Parks just in time to fly to Los Angeles and drape the mantle of civil rights martyr on the founder of the murderous, drug-dealing Crips street gang, Stanley "Tookie" Williams.

Mr. Williams was executed by the people of the state of California early Tuesday morning for murdering four people. What he did to the city of Los Angeles remains uncompensated.

Does Los Angeles appear to you to be a large city? It isn't, not if you're trying to find a place to live in it. The city is divided into two kinds of areas: unsafe and unaffordable.

With luck and two salaries, you may be able to find an area with a moderate-to-high rate of property crimes, not too close to the drive-by shootings and open-market drug sales that characterize the no-go areas controlled by street gangs.

The Crips and the Bloods have lost their monopoly now, muscled aside by ever more savage gangs from Mexico and Central America. The violence between Latinos and African-Americans in the city's schools is a small window into the minor leagues of a billion-dollar business in drugs and death.

Tookie Williams may go down in history as the George Washington of this Los Angeles.

Weeping supporters of Tookie Williams told reporters outside San Quentin that he should be allowed to live because he could use his life to teach kids to stay away from gangs.

He taught a lot of people to stay away from gangs. Whole sections of Los Angeles have been abandoned to crime. Murder statistics are recited with the reassuring tag line, "mostly gang-related." The late former mayor Tom Bradley once caused a political uproar by going on a foreign trade mission and answering questions about murders in Los Angeles by explaining that the criminals stay in their own neighborhoods.

In other words, the police make their stand at the 10 freeway, so stay north of that and all's well.

All is not well. The citizens of California have the right to say that they will not live with cold-blooded murderers running private criminal empires on the streets of their cities. They have the right under the U.S. Constitution to have the death penalty. They have the right to tell murderers and would-be murderers that when we say we will not tolerate those crimes or the people who commit them, we are dead serious.


Copyright 2005


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Howard Stern and the big secret

How many people who listen to Howard Stern for free will pay for the privilege?

It's the $500 million question for Sirius Satellite Radio. That's how much they're paying Howard Stern, in cash and stock, to walk away from broadcasting and perform for an audience of paying subscribers.

There's reason to believe they're in for a surprise so rude it will make the Howard Stern show look like high tea at Buckingham Palace.

The thinking behind the big contract goes like this: people don't buy technology, they buy content. They said they'd never pay for television but they signed up for cable TV to get CNN and the Atlanta Braves, they bought satellite TV for the football games, they pay for Internet access so they can read the New York Times online and they're moving to broadband so they can download episodes of Desperate Housewives.

You already know the secret, don't you.

The truth is, expensive new technologies from VCRs to CD-ROMs to DVDs to high-speed Internet connections--and even cell phones and video iPods and PlayStation Portables--can be and have been used to view pornography. Not always and not by everybody, but Sirius is chasing the young male audience, and those Girls Gone Wild videos aren't selling to elderly nuns.

Howard Stern is a marketing genius and nobody's fooling him. He told New York magazine he's planning segments for his new show that will include live sex. But radio is at a significant disadvantage in this area. Even if he brings in Vin Scully to do the play-by-play, it won't be the same as watching it yourself.

If Howard Stern wants to separate his listeners from $12.95 a month, he should start looking for hookers with inside information about next weekend's football games.

Gambling is the Internet's other big secret. Fantasy football leagues, online sports betting--nobody knows for sure how many hours of office time are really devoted to earning money Vegas-style.

People will pay for something that makes them money. The Wall Street Journal is the only newspaper that's been able to make a profit on its online site, charging subscribers about a hundred dollars a year for deep and up-to-the-minute information on publicly traded companies.

Think how much fun it would be to watch Howard Stern succeed wildly on satellite radio by turning his show into an orgy of borderline-illegal sports gambling. Picture the clucking congressmen, shaking a finger with one hand and shaking down Indian casinos with the other.

That would be so entertaining, even C-SPAN could charge $12.95 a month.


Copyright 2005


Editor's note: You might also be interested in these earlier posts: Self-censorship: Anatomy of an abuse of power and Brass knuckles and the First Amendment.

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