Tag Archives: U.S. Constitution

The New Attack on Democracy: What the Founders Knew But We’ve Forgotten

constitutionOne of the foundational principles of American democracy is under attack.

When the nation’s Founders crafted the United States Constitution in 1787, they were careful to include a requirement that:

“The Senators and Representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the treasury of the United States.” (Art I, Sec. 6, Clause 1).

A similar provision for compensation applies to the president:

“The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.” (Art II, Sec. 1, Clause 7).

The Founders understood that providing compensation for the new government’s elected officers was not a trivial matter, but an essential and cutting edge principle of the new democracy that they were striving to create — and one that directly and profoundly affected the kind of people who would be willing and able to serve as representatives of the people.

They knew too that no other nation on earth insisted on compensation for its elected officials.

In England, members of parliament as a rule served without pay.  In colonial America, candidates for public office usually followed the practice of their English counterparts and promised to serve without compensation.  In the states themselves, only Pennsylvania provided for “wages” from the “state treasury” to “all lawmakers.”

The Founders knew that this English aristocratic practice of not paying public officers created an enormous disadvantage for less wealthy candidates who could not afford to serve without receiving an adequate income for their efforts.

The Founders did not want public service to be a genteel avocation reserved for men of independent wealth, as it was in England, but wanted instead to create a system in which – as James Madison said – public office would be open to “those who have the most merit and least wealth.”

Fueled by the rhetoric of anti-government and anti-egalitarian demagogues (mostly in or allied with the Republican Party), this foundational and deeply American egalitarian principle is now under attack in this country – especially in California, where voters are responding to the state’s budget crisis by cutting the salaries of legislators and city officials, and where our billionaire governor constantly rails against legislative salaries and supports a 10 percent pay cut in legislative compensation.

But as the Founders knew – and we clearly have forgotten – adequate compensation for public officials is an essential element of a democratic government.

Cutting the salaries of public officials will mean that only the rich will able to serve – and when only the rich can serve, we will have the opposite of the government that Madison envisioned – one in which our representative have “the most wealth and the least merit.”

The Founders would not be pleased that the people are now so willingly – even eagerly – abandoning one of the fundamental principles of the American democracy that they fought to create.

The Trial of John Yoo


John Yoo

I have just returned from a debate on presidential power at Chapman University Law School.

In retrospect, the event should more properly have been called “The Trial of John Yoo.”

And strikingly, it was Yoo who cast himself in the role of defendant.

The debate was titled “Presidential Power and Success in Times of Crisis,” and the debaters included John Eastman, Dean of Chapman’s law school and one of the nation’s smartest (and therefore most dangerous) conservative legal scholars, as well as progressive Chapman law professors Katherine Darmer and Larry Rosenthal.

The first speaker and featured star attraction was John Yoo, currently Professor of Law at the University of California at Berkeley and Fletcher Jones Distinguished Visiting Professor of Law at Chapman, and the former Deputy Assistant Attorney General in the Office of Legal Counsel under President George W. Bush who co-authored the now-infamous memos justifying waterboarding and other forms of torture.

For those of us expecting a high power constitutional firefight over Bush era torture and presidential power, the debate was a letdown.

In fact, only one side – Darmer and Rosenthal – really addressed the scope of presidential power in the war on terror or the legal and ethical issues involved in the Bush administration’s torture program.

The other side – Yoo and Eastman – focused instead on the legal and ethical charges – only vaguely alluded to in the debate, but prominent in the media – against John Yoo himself.

Yoo’s self-defense consisted of unsubstantiated claims that torture (or what he called “enhanced interrogation”) was necessary to prevent a repeat of a 9-11 terrorist attack against the U.S., and strained analogies to prior unilateral presidential actions during wartime (such as Lincoln’s attempt to suspend habeas corpus during the civil war).

Most significantly, Yoo argued that President Bush — and, by clear implication, Yoo himself — should not be legally or morally judged in Obama era hindsight.  Rather, Yoo claimed, the legal and moral judgment of the Bush administration’s policy on torture must take into consideration the legitimate fear of terrorism that gripped the nation immediately following the 9-11 attacks.

Professor Rosenthal aptly called this argument the “I lost my head” defense.

For now, I will leave to others the discussion of Bush era torture, as well as the extent of John Yoo’s personal moral and legal culpability.

What I want to note is that John Yoo knows that he is already on trial – not just in Spain, but here in the United States – and he is already attempting to put on his defense.

And if his performance at Chapman is an indication of his skill as his own defense attorney – and I think that it is – John Yoo is in serious trouble.

Yoo was meandering, inarticulate, and alternately simplistic and condescending.  He was no match for Darmer and Rosenthal – both former federal prosecutors and both clearly far smarter and more savvy than John Yoo.

I came away from the debate feeling that Yoo is a rather pathetic figure, intellectually out-classed by the others on the panel.

Yoo’s rise in the legal world of the Bush administration was obviously more a product of his political beliefs and ultra-conservative connections – he clerked for Supreme Court Justice Clarence Thomas and Thomas’ friend and mentor Judge Laurence Silberman – than of his legal skill.

Yoo was probably not really even the primary author of the torture memos – that dubious distinction most likely belongs to his boss at the Office of Legal Counsel, former assistant attorney general and now federal appellate judge Jay Bybee.

And if John Eastman’s tepid and uncharacteristically dim performance as co-counsel for Yoo’s defense is an indication, Yoo may just end up as the designated fall guy for public outrage over Bush’s torture program.

At Chapman today, one sensed that John Yoo knew that he was the going to take the fall and that there was little, if anything, that he could do about it.

Gunfight at the OC Corral

There’s a gunfight brewing in Orange County, California, that would make a great John Wayne movie.


But the plot of the movie depends on your political perspective and your view on gun control.

Here’s plot number one:

In a corrupt town run by a few rich families, a crooked sheriff hands out guns and badges to those who pay him bribes and help him intimidate the poorer townspeople.

Then the U.S. Marshall comes to town, arrests the crooked sheriff, and takes him away to jail.

The rich and powerful families who still run the town get together and appoint a new sheriff – one who they think will continue to play by their corrupt rules and continue to supply them with guns and badges.

But the new sheriff in town isn’t as crooked as they thought.

Not only won’t the new sheriff hand out guns and badges to the rich and powerful – but also demands they give their illegal guns back.

They refuse.

Now the new sheriff has a choice: stand up for the law or give in to the rich and powerful who still run the town and risk a gunfight with them and their henchmen on the steps of the town hall.

Here’s plot number two:

In a dangerous border town, the sheriff gives guns and badges to the few good citizens who are struggling to keep their families safe from lawlessness and rising crime.

Then the U.S. Marshall comes to town, arrests the sheriff on trumped up charges, and takes him away to jail.

The good cirizens get together and appoint a new sheriff – one who they think will continue to help them fight crime by supporting them with guns and badges.

But the new sheriff isn’t as interested in fighting crime as they thought.

Not only won’t the new sheriff hand out guns and badges to the good citizens so they can protect themselves – but also demands that the good citizens hand in the guns that they have, exposing them and their families to attack by the criminals.

The good citizens decide to fight the sheriff and stand firm for the safety of their families and their right to protect themselves.  They refuse to give up their guns.

Now the new sheriff has a choice: allow the good citizens to their to keep their guns or  risk a gunfight with them and their law abiding supporters on the steps of the town hall.

Orange County Sheriff  Sandra Hutchins and most of the county’s liberals would probably pick plot number one as the more accurate version of what’s going on in Orange County regarding the sheriff’s decision to review and reevaluate all of the 1,024 concealed weapons permits (CCWs) issued by former sheriff (and now convicted felon) Mike Corona, revoke a substantial number of those permits, and institute a much more restrictive CCW policy in the future.

The Orange County Board of Supervisors (and especially Supervisors John Moorlach, Chris Norby, and Pat Bates), the gun-owners lobby, and most conservatives would pick plot number two.

Both sides would probably agree, however, that there’s no guarantee about who will be left standing once the shooting starts.

But whatever version of the plot you pick for The Gunfight at the OC Corral, the order of battle doesn’t favor the sheriff.

At least not in real life.

On the side of the sheriff, there is the California concealed weapons law (California Penal Code Section 12050), which gives authority to the sheriff to issue CCWs to persons who are of “good moral character,” who have completed “a course of training,” and where “good cause” exists for the issuance of a CCW license.

On the side of the Board of Supervisors are Orange County gun owners and a well-funded and highly motivated gun-owners lobby with close ties to the Republican Party.

And, perhaps most importantly, the Board of Supervisors will have the 2008 Supreme Court decision in District of Columbia v. Heller in their arsenal.

In Heller, the Supreme Court resolved (for the moment) the great debate on whether the Second Amendment — “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” — protects individual rights to own weapons or the collective rights of the states to establish militias.

Heller came down squarely favor of individual rights, holding that the Second Amendment “protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.”

The Supreme Court’s declaration in Heller that the right of individuals to own and carry guns is protected by the Constitution also probably means that the Privileges or Immunities Clause of the Fourteenth Amendment (“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens”) also applies to any attempt by the states to regulate or limit that right.

And while Heller noted that gun licensing requirements and concealed weapons prohibitions had long been upheld by the lower federal courts, it significantly stopped short of stating that such requirements and prohibitions would be sustained in the future.

Two states (Alaska and Vermont) do not require a permit to carry concealed weapons, and three states (Illinois, Nebraska, and Wisconsin) prohibit concealed weapons under all circumstances and do not issue concealed carry permits.  The remaining states are divided among the “shall issue” states that require the issuing of a concealed carry permit when certain conditions are met and “may issue” states – including California – that permit, but do not require, that a concealed carry permit be issued when good cause is shown.

After Heller, the constitutionality of the more restrictive state regulations of concealed weapons, including California’s, is (at the very least) in question.

Heller also raises the question whether the due process and equal protection requirements of the Fourteenth Amendment governs state and local decisions on whether to issue a particular concealed weapons permit.

If, as I would expect, the due process and equal protection requirements apply, then Sheriff Hutchins would be constitutionally required not to arbitrarily refuse to issue CCWs and to make CCW decisions on (at least) at rational basis.

No doubt lawsuits will be soon be filed in federal court raising these issues.

Orange County is gun country – but not because we hunt (I don’t think anyone’s shot a bear in Orange County in a very long time).

Orange County is gun country because it is homeowner country.

Homeowners in Orange County, or at least a great many of them, believe that they need guns, including concealed guns, to protect themselves, and that they have that right under the Constitution.

It seems that the Supreme Court agrees with them.

For both political and legal reasons, my guess is that if Sheriff Hutchins insists on turning the current stand-off into a real shooting war, she won’t be the one left standing.

Turn! Turn! Turn!: School Board Apologizes to Pete Seeger!

“To everything (turn, turn, turn)
To everything (turn, turn, turn)
There is a season (turn, turn, turn)
And a time for every purpose, under heaven
A time to gain, a time to lose
A time to rend, a time to sew
A time to love, a time to hate
A time for peace, I swear its not too late”
Turn! Turn! Turn!
by Peter Seeger, adapted from the Book of Ecclesiastes.

This machine surrounds hate and forces it to surrender
Inscription on Pete Seeger’s banjo.

The Obama inauguration had an unexpected consequence this week as the San Diego School Board formally apologized to folk-singer Pete Seeger for attempting to force him to sign a loyalty oath nearly fifty years ago.


In May 1960, Seeger was scheduled to perform at Herbert Hoover High School. Already a controversial figure as a supporter of unions, civil rights, and racial justice, Seeger was anathema to the right-wingers on the San Diego School Board.

In addition, Seeger was facing federal charges for his 1957 refusal to testify before the House Un-American Activities Committee: “I am not going to answer any questions as to my association, my philosophical or religious beliefs or my political beliefs, or how I voted in any election, or any of these private affairs.” Seeger told the committee. “I think these are very improper questions for any American to be asked, especially under such compulsion as this.” (Seeger was convicted of contempt in March 1961 and sentenced to 10 years in jail; an appeals court overturned his conviction a year later.)

The local chapter of the American Legion heard about the concert that Seeger was scheduled to give at Hoover High School and told the School Board to stop it.

The San Diego School Board then told Seeger that the concert would be cancelled unless he signed a statement saying that it would not promote communism or an overthrow of the government.

When Seeger refused to sign the statement on First Amendment grounds, the School Board cancelled the concert. Seeger then got a court order allowing the concert to proceed.

Last month, San Diego School Board member Katherine Nakamura watched Pete Seeger perform Woody Guthrie’s “This Land is Your Land” at the Lincoln Memorial during the Obama inauguration and decided to right the wrong that her predecessors had done to Seeger (and the Constitution) so many years ago.

On Tuesday, Nakamura introduced a resolution declaring that the San Diego School Board “deeply regrets its predecessors’ actions” and offering an apology to Seeger, whom it described as “one of our dearest national treasures.”

The apology resolution passed 5-0.

“It just seemed to me to be the right thing to do, and I had an opportunity to do it,” Nakamura said. “You don’t always get a chance to reflect on these things and the way they might have been or should have been.”

Nakamura and her colleagues on the San Diego School Board certainly deserve our praise for being inspired by Barack Obama’s inauguration to make amends to Pete Seeger.

Even more praise should go to the brave students of Hoover Senior High School’s Class of 1960 — who invited Seeger to perform at a time when an African-American President of the United States did not seem possible and people went to prison for insisting on racial equality, workers’ rights, social justice, and the freedom of speech guaranteed by the U.S. Constitution.

Why Sarah Palin Scares Me

Sarah Palin’s acceptance speech last night at the Republican convention scared me.

old-fashioned_fascism1Not because I think that it will help her and John McCain achieve victory in November, but because of what it signaled would happen to America if McCain and Palin did gain control of the White House and the institutions that preserve our Constitution.

I’m not prone to political panic.

I’ve lived though some horrible administrations and I know that our nation and our Constitution have survived.

I know, too, that most of the presidents we’ve had in the last forty years have been nefarious, incompetent, ludicrous, or all of the above, and that our country and Constitution have survived.

No matter who is president, or which party controls Congress, the basic ideals of American democracy and the rights of the individual inscribed in our Constitution will survive.

They’ll always survive, I thought.

Now I am not so sure.

Here is what scared me:

Taunting Barack Obama, Sarah Palin sneered “Al Qaeda terrorists still plot to inflict catastrophic harm on America … he’s worried that someone won’t read them their rights?”

The crowd at the Xcel Energy Center roared their approval.

And as the convention delegates wildly cheered Palin’s sarcastic dismissal of the Constitution, the darker meaning of the Republican convention – and the McCain campaign – came into focus.

These gun-loving, self-proclaimed tough-guys and hard asses, these belligerant self-proclaimed individualists, are ready to surrender their individual rights and freedoms in an instant to a self-proclaimed hero wrapped in a virtual flag.

In fact, they’re desparate to do so.

I saw that their wild applause for Palin’s call for the elimination of the Constitution exposed, beneath their pose of powerful individualism, their desparate need to subsume and relieve their feelings of individual powerlessness into the projected power of a leader.

I saw an America that would trade the great American experiment of a limited government held to rights guaranteed by a Constitution for the illusions of psychological security.

I saw American fascism.