Heinlein

I haven't read much (maybe any) Heinlein, so I hadn't come across this until just now (and I still haven't read the source material). Evidently Heinlein, in The Moon is a Harsh Mistress, suggests that a Congress should require a two-thirds majority to pass legislation (our own requires nearly that in the Senate, except for Obamacare) but only a one-third minority to repeal legislation. That fascinates me.

Our current system of government places the same strictures on any change to government, but it seems obvious to me that not all changes are the same. Requiring two houses, selected differently, to independently authorize (one by supermajority) and an executive to approve a new incursion on the freedom of the populace seems like an eminently reasonable, and maybe even insufficient, policy. But requiring the same to increase the freedom of the populace, even in a way that might be injurious to society, does seem a bit excessive. And luckily we're provided with a fantastic proxy for what infringes freedom and what increases it. The only lever available to government is the restriction of freedom, so all laws must necessarily impinge on it.

I'll note I'm not arguing that all restrictions on freedom are bad. I'm, rather, arguing that while prohibiting me from stealing things from my neighbor's house is a good idea, it does restrict my freedom to steal things from my neighbor's house. But surely a super-majority of people would agree that the protection of property is worth that restriction and by extension a significant minority would never wish to repeal it.

On the whole I can't think of a good reason why I wouldn't want to see bills repealable by a significant minority. I do question, though, whether parts of bills should also be repealable. On the one hand much legislation going back to the founding has been based on compromises that would fall apart if some of the parties believed that the compromise could be repealed later by a significant minority. On the other hand, maybe not being able to pass a bill that Joe Senator would have voted against if it hadn't been for the promise to build a bridge in his hometown wouldn't be such a bad thing.

Impeachment

I came across something today I had never noticed before. In the closing of Federalist 81 (about abuse of judicial power), Hamilton says

And the inference is greatly fortified by the consideration of the important constitutional check which the power of instituting impeachments in one part of the legislative body, and of determining upon them in the other, would give to that body upon the members of the judicial department. This is alone a complete security. There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations. While this ought to remove all apprehensions on the subject, it affords, at the same time, a cogent argument for constituting the Senate a court for the trial of impeachments.

I had two thoughts upon reading this. The first was that modern justices clearly do not live in fear that Congress should punish them for usurpation by degradation from their station, since no justice has ever been impeached. The second is that I don't recall anything in the Constitution assigning such a power to Congress. I checked and I was correct. There are three sections on impeachment in the Constitution (excepting the sections excluding powers during impeachment proceedings from the courts and the executive):

Article I, Section 2:

The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.

Article I, Section 3:

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

And 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

Plus one section on the terms of a Justice staying in office, Article III, Section 1

The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.

Now one might reasonably argue that the arrogation of power not mentioned in the Constitution violates "good Behavior", but I think this clearly falls short of terms that would lead the Justices to fear Congressional rebuke for their actions. I find it rather difficult, then, to square the text of the document with Hamilton's (now I think clearly shown to be false) assurance that the judiciary would never exceed their bounds because of fear of impeachment.

A Tale of two Louisianas

Though it isn't really what I mean to write about, I feel like I need to start this with a defense of why so much of the right is correct to place blame on Obama for the cleanup of the BP oil spill. It is correct that BP, and not Obama, caused the spill. Last I checked only Al Gore believed Bush caused Katrina, but the cleanup efforts to it were still viewed by the media as his fault.

Lets engage in a little thought experiment. Lets say you live in a neighborhood with a bunch of houses very close together. Bob is a chain smoker and he smokes in bed and causes his house to catch fire. You call the fire department and are told "Don't worry, Bob will have to pay for any recovery costs." So the fire department never responds and 12 houses end up burning to the ground. A subsequent inspection finds that even if the fire department had come out and assessed the situation, the prevailing winds made it highly unlikely they actually would have stopped the fire. Is the fire department negligent? Of course they are. Even if it ends up they couldn't have done anything, they should have assessed the situation before rather than after, as it is they put the other houses at risk that the fire could have been stopped and they never bothered to find out. I'll note, I'm giving Obama the benefit of the doubt and accepting that if he had responded more quickly the Fed couldn't have done anything to fix the spill.

But the situation is actually ever more interesting than that, and that's what caught my attention. In the case of a natural disaster hitting a state the state bears primary responsibility for the mitigation and cleanup. The evacuation plan for the city of New Orleans was not used, Kathleen Blanco did a terrible job mobilizing her National Guard and refused to allow the federal government to take control of them at least as late as 15 days after landfall (which I actually believe was the correct decision, but you can hardly blame the President for actions taken by a National Guard whose control he was not given) and disallowed at least the Red Cross from entering the city of New Orleans. In spite of all this, though, the poor response in Louisiana (note I don't mention Mississippi, they somehow managed in spite of Bush) was Bush's fault.

In the case of an oil spill on the coastal shelf the State has no authority to act. This cleanup and prevention is entirely within Federal Jurisdiction, but the new Governor of Louisiana, Bobby Jindal, is itching to take over mitigation for his state anyway. He has requested on May 11th permission to dredge part of the coastline to build an artificial reef and block oil from hitting the coast. I'll note I'm not sure it's a good idea, but it ought to be a state matter and Obama has had 15 days and hasn't given a response at all. This, though, is entirely BP's fault.

Right to Privacy

As another Supreme Court appointment comes up, I was thinking about the left's signature judicial issue: the right to privacy and its effects upon abortion law. I find it ironic that the supposed legal justification for the central tenet of liberal jurisprudence is a "right to privacy." The left would like to make cigarettes illegal in your own home, to pass laws about what kinds of firearms you can use, to control where your child goes to school and even how you discipline them, and what health coverage you carry. Limitations on a commercial transaction involving a doctor, a few nurses, a medical billing practice, and a patient, though, are off limits because of the egregious invasion of privacy. Not all such transactions, of course, a fair share of the left actually want the government more involved in health care which would necessarily require a government office to be familiar with your medical records and to determine what treatments are efficacious for your present condition. Also not all aspects of abortion transactions, off the top of my head an abortion must be regulated by at least OSHA, the FDA, the OMH, the MHRA, the DOL, and the EEOC, and probably the CDC and the CPSC. And if, as many Democrats want, Abortion came under a universal government healthcare program then every aspect of it would be subject to government oversight, regulation and control, but it's still too private to be regulated by the government.

Overruling the Supreme Court

Andy McCarthy made a post on the Corner today indicating, in part, that he would like to see the Constitution amended so that a supermajority of Congress can overrule the Supreme Court. I frequently see proposals for changes to the Constitution, but usually they're something to allow a faster slide into a progressivist state. This is different. I like McCarthy, but I can't assert that he wants this change for reasons other than to attempt to overturn decisions with which he disagrees, but I think it's a good position in the abstract.

There actually isn't anything in the Constitutional that allows the Courts to overrule Congress at all, but it seems to have been generally agreed, even at the time of the framing, that that was a natural power of the appellate judiciary (at least from what I've read on it). They didn't give Congress the power to overturn the Supreme Court ruling that something they did was unconstitutional because that would allow a supermajority of Congress to de facto amend the Constitution. Unfortunately the judiciary at some point (I think not before Dred Scott and not after Lochner) decided that they have the right to imagine requirements of the Constitution stemming from emanations from penumbras of the text that just happened to support policies they agreed with.

I'll note, I actually think it highly unlikely that this change would ever be used. The fact of the matter is that if the Supreme Court makes a boneheaded departure from the text of the Constitution they almost always do it on grounds popular enough that you couldn't get two thirds of the Congress to overturn them (I, in fact, can't think of an instance where they couldn't get a third of Congress). I'll also note that historically the Congress was the first branch to abandon the Constitution (We know that they had abandoned it to the popular temptation by 1854 when Pierce vetoed a very popular bill for a national program for the mentally ill). In spite of these negatives, and even though I fundamentally think Democracy can't avoid the servile temptation, I think reserving for the people's representatives some way to overturn the acts of an unelected oligarchy in the form of the Courts is better than giving the country over to them. I would love to see the act state that Congress can only do it if a super majority thinks the court's decision unconstitutional, but I don't flatter myself that they couldn't find some emanations from penumbras that suggest whatever they disagree with is unconstitutional.

The Tebow Ad

Spurgeon in his exposition on the second Psalm wrote "O that men were half as careful in God's service to serve him wisely, as his enemies are to attack his kingdom craftily. Sinners have their wits about them, and yet saints are dull." I'm happy to say Focus on the Family didn't deserve that this week. My hat's off to their outstanding effort with the Super Bowl ad. The ad itself was almost content free, but FotF managed to enlist practically every pro-abortion group in the country in making it about abortion. Good job.

Pro Abortion

Most Pro-choice activists are at pains to clarify that they aren't pro-abortion, just pro-choice. I think the current posturing by various "women's" groups to stonewall an advertisement scheduled to run during the Super Bowl in which Tebow and his mother talk about the negative consequences of abortion put the lie to this. I haven't seen the ad (and neither have any of the activists complaining about it, as far as I know) but my impression is part of the current "Choose Life" campaign to discourage abortion rather than an attempt to outlaw abortion. Given that only a Supreme Court Justice could return the right to the states to outlaw abortion, it seems like a massive waste of money to run an ad to people who have virtually no input on such a decision.

Assuming this is right, and I've heard no evidence to the contrary, then it's extremely difficult for me to see how those who wish to silence advocates of one of the choices they wish to leave open are actually "pro-choice". I can see how someone could be both pro-life and pro-choice (you wish the choice to be legal, but believe that abortion is never a preferable alternative. Similarly I think smoking cigarettes is stupid, but I'm not for restricting your right to do it.) similarly I can see how someone could be both pro-abortion and pro-choice (you think that abortion is often a better choice but don't want the government making such decisions. It's easy to see how either a eugenicist or a population growth type could believe this). I have no idea what the motivation of women's groups is, but a dedication to restricting advocacy for choosing life demonstrates to me a preference for abortion, not just choice.

On a related note, if CBS declines to run the ad (and I'd say odds are on them declining) then I can't help but conclude that CBS either refuses to run advocacy ads during sporting events (and I suspect a quick perusal of past ads will show this to be false) or they are themselves a willing advocate for abortion.