“This Is Not The18th Century”: Fourth Amendment Purists Are Living In A Dream World
Spy work holds deep allure for many people. My own career as a secret agent began as an outgrowth of training beagle hunting dogs. See, I needed new antennas for the little radio transmitters in the animal’s collars—which combined with a directional antenna and multi-channel receiver helped me bring the little rascals home alive at day’s end.
You wouldn’t believe some of the scrapes those dogs could get into. One time, we found three beagles inside a beaver dam fighting a cornered raccoon. Had we not intervened, he’d probably have drowned them.
So anyway, I called customer service at Wildlife Materials, Inc. to order the antennas. Ever the subversive, I made a joke about buckling a tracking collar to the bumper of my wife’s car.
Long, painful silence.
“Um, air, we’re not supposed to talk about that.”
Oh well.
Of course these days, that technology’s way out of date for marital espionage. You can’t make a beagle carry a cellphone, but most wives cling to theirs 24/7. With the right software and a wi-fi connection, you can track her whereabouts in real time from your friendly neighborhood tavern, and even message her at the No-Tell Motel to say you’re stuck at the office.
Unless she’s also tracking you, in which case all bets are off.
Of course, my own wife’s phone is lost half the time. I sometimes wish the National Security Agency weren’t too busy monitoring guys calling 1-900-HotVirgins over in Yemen to help her find it.
But let’s get halfway serious about this NSA business. First, where has everybody been since 2006, when USA Today first revealed the existence of large scale NSA telephone data mining? That was objectionable in two big ways: the Bush White House acted unilaterally, without the court supervision required by law, and it was also indulging in warrantless wiretaps.
Congress fixed that in 2008, permitting statistical analysis of telephone traffic, but requiring both ongoing FISA Court oversight and search warrants for actual eavesdropping. After his customary tap-dancing, Sen. Barack Obama supported the bill. Hearing no announcement that the Obama White House had canceled the program, a person would have to be awfully naïve to imagine NSA had gone out of business.
The court order produced with a great flourish by Glenn Greenwald and The Guardian mainly confirmed that the system appears to be working as designed. So why the hyperventilating? The way some people are carrying on, you’d think the KGB or East German Stasi had set up shop in the White House—which definitely isn’t how people would act if they really feared tyranny.
Greenwald himself rather specializes in hyperventilation. It’s a rare terrorist attack that isn’t immediately followed by a Greenwald essay pointing out that Norwegian civilians or off-duty British soldiers are no less legitimate targets than Pakistani children — true enough in an abstract moral sense, but of vanishing political usefulness.
However, when a reporter begins a profile by praising his own work as “one of the most significant leaks in US political history,” a skeptic is apt to wince. Maybe it’s just me, but I wouldn’t have taken Edward Snowden (or any single source) at face value. There are plenty of clues even in The Guardian hagiography that not everything may be exactly as it seems. Running to China seeking freedom?
China?
Then there’s this: Any NSA analyst “at any time can target anyone, any selector, anywhere,” Snowden said. “I, sitting at my desk, certainly had the authorities to wiretap anyone from you or your accountant to a federal judge to even the president if I had a personal email.”
Now me, I don’t think NSA computer tech can wiretap a Federal judge any more than I think a bank teller can transfer the judge’s bank account to her boyfriend without getting caught. Sure enough, Robert Dietz, a former CIA and NSA lawyer, told the Los Angeles Times the claim was “complete and utter” falsehood.
“First of all, it’s illegal,” he said. “There is enormous oversight. They have keystroke auditing. There are, from time to time, cases in which some analyst is [angry] at his ex-wife and looks at the wrong thing and he is caught and fired.”
Which is basically where we came in. Fourth Amendment purists are living in a dream world. Neither cellphones nor lunatics using airliners as weapons existed in Ben Franklin’s day. If you want privacy as defined in the 18th century, it’s easy: no phones, no Internet (and certainly no Facebook or Twitter) no credit cards or bank accounts, no EZ-Pass, no nothing.
But if you want government to have any chance to defeat mass-casualty terror attacks, surrendering raw phone data isn’t much of a concession. Besides, there are far more efficient ways of targeting enemies of the state than trying to make something of who they’ve talked to on the phone.
By: Gene Lyons, The National Memo, June 12, 2013
A Conservative Defense Of Government: You’re A Fan Of Government, So Stop Pretending Otherwise
Everyone knows that Ronald Reagan famously said, “Government is not the solution to our problem; government is the problem.” But as Ramesh Ponnuru recently pointed out, there is a “less famous yet crucial beginning of that sentence”: “In our present crisis.”
Conservatives rightly hate nanny-state government and big-spending bureaucracy. But too often, the word “government” has become unfair shorthand for what is actually only bad or oppressive government.
Conservatives aren’t anarchists, after all. We don’t want Big Brother, but none of us should want to live in a Hobbesian state where every person is absolutely and entirely for himself, either. Instead, we believe in ordered liberty via limited government.
Certainly, the size and scope of government has increased over the years. But still, we shouldn’t conflate all government with bad government. We need a functioning state, and yes, there is such a thing as a government that is too weak.
This is a lesson that goes back to our founding. And it’s one conservatives should appreciate. Judging from their colonial garb and tri-cornered hats, Tea Party activists are fond of the Constitution and its Founders. So you might expect that they, of all people, would appreciate the importance of having a government that isn’t laughably weak.
As Baylor professor and Patrick Henry author Thomas Kidd tells me, “Most of the major Founders became convinced that Americans needed a stronger national government to coordinate trade policy and protect against domestic and foreign threats.”
Under the Articles of Confederation, the government was impotent. “Major decisions — declaring war and signing treaties — needed the approval of nine states,” writes Richard Brookhiser in his book James Madison. Congress couldn’t even tax, and “as a result, the United States was perpetually broke,” Brookhiser adds.
To be sure, some patriots, like Patrick Henry and Samuel Adams, opposed the Constitution precisely because they feared big government. But as Kidd points out, “the majority of the best-known Founders believed that the new republic needed a bigger, stronger government for the United States to survive and compete on the world stage.”
“If men were angels, no government would be necessary,” wrote Madison, who (in fairness) added, “If angels were to govern men, neither external nor internal controls on government would be necessary.”
So, a natural question: What should a limited government do?
For starters, preserve law and order, ensure the rule of law, enforce contracts, provide for our defense — and yes, control the border. (I’m also partial to clean water, but that’s just me.)
Max Weber said the government has a “monopoly on legitimate violence in society.” This is needed to enforce law and order. Otherwise, whoever has the biggest gun — or the most brothers — takes your property.
“Government is the most common form of hierarchy,” Robert Kaplan recently noted. “It is a government that monopolizes the use of violence in a given geographical space, thereby preventing anarchy. To quote Thomas Hobbes, the 17th-century English philosopher, only where it is possible to punish the wicked can right and wrong have any practical meaning, and that requires ‘some coercive power.'”
But government functions don’t just keep us safe, they also make us prosperous. Sure, overregulation can be a job killer. But consider the extreme alternative. If you believe that someone could steal your business if he wants to, then you are much less likely to start one. If you believe that someone can break a contract with you — or steal your invention — without fear of punishment, that might make it less likely that you will go into business or to invest in research and development.
In their 2012 book Why Nations Fail, economists Daron Acemoglu and James A. Robinson provide a largely free market argument for why some nations succeed. For example, Acemoglu and Robinson fault protectionist policies instituted to avoid the process of creative destruction as a primary reason some nations fail.
But interestingly, they also frequently cite a lack of a strong central government as a prime reason nations fail. For example, the authors lament Somalia’s “lack of any kind of political centralization, or state centralization, and its inability to enforce even the minimal amount of law and order to support economic activity, trade, or even basic security of its citizens.”
I can’t imagine that any conservatives who decry government would prefer this sort of extreme chaos to our current, albeit imperfect, government.
So maybe the answer is to be more specific about our concerns with government. Attempting to do just that, Nobel Prize-winning economist James M. Buchanan distinguished between the productive state, the protective state, and the redistributive state.
Essentially, the productive state would constitute infrastructure like roads and bridges, the protective state would encompass the police, criminal justice, etc., and the redistributive state is obviously the entitlement state.
While most conservatives concede that we need some social safety net, they are mostly worried about the out-of-control growth of the redistributive state. And yet, too seldom is that distinction made. Instead, the criticism is usually directed at “government.”
When it comes to government, a lot of conservatives are probably too obsessed with size. Grover Norquist famously wants to shrink government to such a small size that you can drown it in a bathtub.
But I’m not sure most Americans want that. And trying to force it via draconian cuts doesn’t work, especially if they don’t address the specific problem, such as the need for entitlement reform. “You can’t make a fat man skinny by tightening his belt,” observed John Maynard Keynes.
Whether you’re a conservative who cares about preserving law and order, or a free marketer who appreciates the importance the rule of law plays in providing confidence and incentives to entrepreneurs, you’re a fan of government. Stop pretending otherwise.
By: Matt K. Lewis, The Week, May 9, 2013
“The Tyranny Of Small States”: Did Our Founders’ Lack Of Foresight Doom Gun Control?
When the Senate takes up the bill to expand background checks for gun purchases this week, we will hear plenty rationalizations for opposing it similar to the one offered recently by Heidi Heitkamp, the newly elected Democrat from North Dakota: “In our part of the country, [gun control] isn’t an issue. This is a way of life. This is how people feel, and it is extraordinarily difficult to explain that, especially to grieving parents.” Heitkamp’s bottom line: “I’m going to represent my state.”
That state has a population that did not crack 700,000 as of last year. In other words, that state is smaller than cities like Columbus, Fort Worth and Charlotte, and is only slightly larger than El Paso, Memphis and Nashville. North Dakota is separate from South Dakota only because Republicans who dominated the Constitutional Convention in 1889 thought it better to carve two Republican-leaning states out of Dakota Territory (railroad politics also played a role). And yet, North Dakota will have as much say this week as California, Texas, New York and Florida—how those 699,000 people “feel” in towns like Minot and Williston and Fargo will matter as much as how 38 million people “feel” in towns like Los Angeles and San Francisco and San Jose. Small, rural states will not only make it much harder to expand background checks to the huge gun shows where a big share of firearms are purchased, they may succeed in passing an amendment that would allow states with lax regulations for concealed-carry to trump stricter rules elsewhere—that is, to allow someone who got a concealed-carry permit in Wyoming (population 576,000, smaller than Portland, Oregon) to carry a concealed weapon in New York, where it’s much tougher to get a permit.
The undemocratic nature of the upper chamber of our legislative branch of government has been noted many times—it is, as the New York Times observed in an in-depth piece just a few months ago, “in contention for the least democratic legislative chamber” in the world, with the 38 million people who live in the 22 smallest states represented by 44 senators, while 38 million Californians are represented by two. But it is worth dwelling on this feature of our government again this week, because there are few issues where it makes itself felt as strongly as on guns. Max Baucus, the Montana Democrat, helped carry Obamacare to passage, but here he is on the background check bill: “I don’t support the bill, but I support open debate. Montanans are opposed to this bill—by a very large margin.” Montana’s population? Just over a million—a veritable giant by contrast with North Dakota, but also quite a bit smaller than Dallas, San Antonio and San Diego. And here’s Mark Begich shortly before he became one of two Democrats, along with Arkansas’ Mark Pryor, to decline to even allow the expanded background-check bill to come up for debate: In Alaska, he said, “We love our guns.” That’s nice! In Columbus, which has more people than Alaska’s 731,000, they love their Buckeyes, but that doesn’t mean they get to set national policy around them.
Bring this up, and the guardians of the wide-open spaces throw the Constitution in your face. But it’s worth recalling just how haphazardly this feature of our government came about, that it was not handed down from the mountaintop by James Madison. In fact, Madison, the father of the Constitution, vehemently opposed this design for the Senate when it was being debated at the Constitutional Convention. As a representative of one of the big states, Virginia, he was in favor of—gasp—apportioning votes in both legislative chambers by population. This fact is often lost on the small-state defenders, as I learned in the onslaught I received when I brought this matter up in 2009: They assume that because Madison supported one of the Senate’s initial undemocratic features—having its members selected indirectly, by state legislatures, in order to keep the Senate at a remove from the tempestuous masses—he must have supported undemocratic apportionment. He did not. He drafted the “Virginia Plan,” which called for two chambers, with members allotted by state population. Countering this was the “New Jersey Plan,” which called for only a single chamber with equal representation for each state (remember, this was pre-Short Hills Mall, and New Jersey was at the time a relatively small state.)
The solution, as any good civics student knows, was the Connecticut Compromise, which, as proposed by Connecticut’s delegates to the convention, created two chambers, the lower one apportioned by population, the upper one not. It was also hailed as the “Great Compromise,” which in hindsight makes it look like the first shining example of our political culture’s tendency to hail as achievements any deal that represents a middle point, no matter how shoddy its logic or deleterious its consequences. It’s also awfully ironic that it should be the Connecticut Compromise that may well keep the Senate from responding seriously to the worst act of mass violence ever perpetrated in Connecticut.
What to do? When, some time ago, I put this whole issue to Kent Conrad, the North Dakota Democrat whose retirement led to Heitkamp’s ascension, he was taken aback: “This was the grand bargain that was struck when the Founding Fathers determined the structure and form of the United States Congress… Are you proposing changing the Constitution?”
Maybe I am. At the time of the not-so-Great Compromise, the largest state, Virginia, was 11 times bigger than the smallest, Delaware. The ratio between California and Wyoming is now 66 to 1, yet they have the same sway in the Senate. Could the Founders have envisioned that? And are we OK with that? If so, just don’t be surprised if the gun bill is blocked or seriously weakened this week despite polls showing overwhelming support for expanded background checks. Undemocratic institutions produce undemocratic results. Mr. Madison could tell you that.
By: Alec MacGillis, The New Republic, April 16, 2013
“Constitution? What Constitution?”: Paul Ryan Refuses To Provide For The General Welfare
When the members of the 113th Congress of the United States took office this week, they swore an oath to “support and defend the Constitution of the United States against all enemies, foreign and domestic and to “bear true faith and allegiance to the same.”
The preamble to that Constitution establishes its purpose: “to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity…”
The Constitution rests a special responsibility in this regard on the legislative branch of the federal government, declaring that the Congress shall use its powers to tax and spend to “provide for the common Defence and general Welfare of the United States.”
A good debate can be had about the precise meaning of “the general Welfare of the United States.” The founders had that debate—with James Madison and Alexander Hamilton differing vociferously—and it has continued in the Congress and the courts to this day.
But even in the 1790s, there was broad understanding that providing for the “general welfare” involved the taking of steps to protect the people from “misfortune, sickness, calamity or evil”—and to help them respond to such circumstances. Then, as now, “calamity” was understood to involve epic storms, floods and natural disasters.
It is difficult to imagine a recent crisis that more precisely fits the definition of “calamity” than Superstorm Sandy and its aftermath, which has left hundreds of thousands of Americans with destroyed or damaged homes and made it impossible for thousands of businesses to operate along the East Coast of the United State. Whole communities are struggling simply to return to something resembling normal.
On Friday, mere hours after swearing an oath to “support and defend the Constitution of the United States against all enemies, foreign and domestic” and to “bear true faith and allegiance to the same,” the House of Representatives faced a simple vote on the most basic federal intervention on behalf of the victims of Superstorm Sandy: a measure to temporarily increase the borrowing authority of the Federal Emergency Management Agency to assure that the National Flood Insurance Program could meet its obligations.
One hundred and ninety-one Democrats voted for the first real response by Congress to a disaster that occurred more than two months earlier. They were joined by 161 Republicans, including Majority Leader Eric Cantor, R-Virginia, and Congresswoman Michele Bachmann, R-Minnesota.
But sixty-seven House members —led by House Budget Committee chairman Paul Ryan—voted “no.” The House Budget Committee chairman termed the maintaining of the existing flood-relief program to be “irresponsible.”
Ryan, as is frequently the case when it comes to matters constitutional, was precisely wrong.
One of his few clearly defined responsibilities, one of the few clearly defined responsibilities of any House member, is “to provide for the general Welfare.” They swear an oath to do so. And, barely hours into the new Congress, Ryan and his compatriots rejected that oath and a fundamental premise of the Constitution it supports.
By: John Nichols, The Nation, January 5, 2012
“The NRA’s Worse Nightmare”: Gun-Rights Advocates Should Fear History Of Second Amendment
On Sunday, New York Sen. Chuck Schumer went on CBS’s Face The Nation and argued that people who support gun control “have to admit that there is a Second Amendment right to bear arms”.
Schumer’s effort to reach out to the gun-rights community may be well-intentioned, but it is also deeply ironic. If the nation truly embraced the Second Amendment as it was originally written and understood, it would be the NRA’s worst nightmare.
A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.
It’s time for a history lesson about one of America’s most popular and least understood rights. It’s also long past time to expose the hollow, ignorant fawning over the Second Amendment by gun-rights advocates for what it is.
In contrast to the libertarian fantasies that drive the contemporary debate about firearms in America, the Founders understood that liberty without regulation leads not to freedom, but anarchy. They understood that an armed body of citizens easily becomes a mob. In other words, a bunch of guys grabbing their guns and waving a flag emblazoned with a rattlesnake is not a militia.
A cursory look at the history of the Second Amendment shows that regulation was a central part of its rationale—putting “well regulated” at the very start of the amendment was no accident. For instance, starting in the colonial period, states enacted a variety of “safe-storage” measures to deal with the danger posed by stored gunpowder. A 1786 law went as far as prohibiting the storage of a loaded gun in any building in Boston.
But many people who defend gun rights today are more than happy to skim over the first part of the amendment in their zeal to embrace the second. (The NRA itself literally chopped off that pesky first half when it chiseled the words on the face of its old headquarters.) As a result, our modern gun-rights ideology is often unmoored from any sense of corresponding civic obligation.
This ideology claims to rely heavily on the Second Amendment, and yet it is rooted not in the Founders’ vision, but in the insurrectionary ideas of Daniel Shays and those who rose up against the government of Massachusetts in 1786 and 1787. Indeed, there are gun-rights advocates today who think the Second Amendment actually gives them the right to take up arms against the government—but if that were true the Second Amendment would have repealed the Constitution’s treason clause, which defines treason as taking up arms against the government!
This is all so deeply twisted: after all, the Founders framed the Constitution in part as a response to the danger posed by Shays’ Rebellion.
As a result, our modern debate over gun rights has virtually nothing to with the Founders’ Second Amendment; that debate actually started about 30 years after the Amendment was adopted. What emerged was the notion that reasonable regulation was not inconsistent with the right to bear arms. In fact it was the only option in a heavily armed society.
Up until the 1980s, there was no “individual-rights” theory of the Second Amendment. Many states had adopted provisions protecting an individual right to own guns, but this tradition was distinct from the Amendment. All that changed when right-wing think tanks undertook a conscious effort to fund new scholarship to rewrite the amendment’s history. At first that effort was not well received, even in conservative circles. As late as 1991, former Supreme Court chief justice Warren Burger famously called the idea of an individual right to bear arms “one of the greatest pieces of fraud—I repeat the word ‘fraud’—on the American public by special-interest groups that I have ever seen in my lifetime.”
But the revisionism ultimately won over most of the legal establishment, reaching its zenith in 2008, when the Supreme Court broke with 70 years of established jurisprudence and affirmed that the Second Amendment protects an individual right to have guns in the home for reasons of self-defense.
In order to do this, the majority followed the lead of gun-rights advocates and essentially excised the first clause of the amendment—the “well-regulated militia” part—from the text.
(Let us pause briefly to note the irony that the opinion, District of Columbia v. Heller, was written by none other than Justice Antonin Scalia—America’s staunchest defender of originalism, or reading the Constitution according to its supposed original meaning.)
If the Heller court had simply said, “Look, most Americans think the Amendment is about an individual right, and no one really cares what James Madison or the average man on the street in 1791 thought”—then the case would be pretty uncontroversial. Instead, Scalia produced a pompous, error-filled opinion that has done more to discredit his beloved originalism than a generation of liberal academics ever could.
Even leading conservative legal scholars have harshly criticized the ruling: federal judge Richard Posner said most professional historians reject Scalia’s historical analysis in the case, and described Scalia’s jurisprudence as “incoherent”. Perhaps even more damning, J. Harvie Wilkinson, a federal judge appointed by Ronald Reagan, compared Heller to Roe v. Wade.
Of course, the fact that the Second Amendment is now treated as an individual right has almost no bearing on gun regulation, because no right is absolute. You can’t shout “Fire!” in a crowded theater, nor can you fire a gun in one.
And most Americans—including those who own guns—are open to reasonable gun regulation. The only people who oppose such policies are the NRA, extreme gun-rights advocates, and the craven politicians who do their bidding.
But what would such regulation look like?
For one thing, we could have a comprehensive system of firearm licensing and registration. At the moment we have none (even though it is hard to fathom how one might ever muster a militia without such a system). To avoid the irrational fears of gun confiscation, such a system ought to be instituted by the states, which maintained militias long before the Second Amendment existed. Could anyone with even a minimal understanding of the history of the Second Amendment seriously maintain that a state-based system violated the Amendment’s text or spirit?
The bottom line is that although we hear the Second Amendment invoked all the time, few of those who trumpet it the most vehemently realize that restoring the Founders’ vision of the Second Amendment would be a call for more gun regulation, not less.
By: Saul Cornell, The Daily Beast, December 18, 2012
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