The ACRU Blog

This morning (28 February, 2008) the New York Times ran an article by
Carl Hulse, entitled, "McCain's Canal Zone Birth Prompts Queries About
Whether that Rules Him Out." The article spends 21paragraphs getting sweaty
palmed over whether John McCain is eligible to be elected President, since
he was born outside the mainland United States.

The article begins, of course, with the requirement in the Constitution
that to be President a person must be a "natural born Citizen." The
Constitution also requires that President be "thirty five Years" old, and
"fourteen years a Resident within the United States." The Times left out
that last requirement, which makes clear that citizenship and residency are
not the same thing.

The article quotes various experts, most questioning McCain's" natural
born citizenship." Only three paragraphs from the end does the article
mention that Congress passed a law defining children of US citizens born in
the Canal Zone after 1904, as US citizens "at birth." The Times totally
misses a law passed in 1790, written by many of the same people who wrote the
Constitution, which provided "citizenship at birth" to children born to US
citizens, outside the country.

The other aspect of the story which the Times totally ignores is the
power of Congress to pass such laws defining citizenship. The original
authority is in Article I, Section 8, Clause 8, which gives Congress the
power to "establish an (sic) uniform Rule of Naturalization." More recent
and more important, the 14th Amendment begins, "All persons born or
naturalized in the United States, and subject to the jurisdiction
thereof...." That Amendment ends with this, "The Congress shall have the
power to enforce, by appropriate legislation, the provisions of this
article."

Note the critical phrase, "and subject to the jurisdiction thereof...."
Jurisdiction is a legal matter, which is defined in this instance by federal
law, not by accidents of geography.

The bottom line is clear. The 14th Amendment gives Congress the power to
define a child of US parents born outside the US, as nonetheless a "natural
born citizen." Therefore the Act of Congress to include children born to US
parents in the Canal Zone is plainly constitutional.

So, by doing incomplete homework, perhaps deliberately, the New York Times
has created another hatchet job on John McCain, to benefit either Barack
Obama or Hillary Clinton, either of whom the Times prefers. The Times has
also, again, damaged its reputation as a newspaper that supposedly seeks and
publishes the facts.

But the Times has also done an accidental public service with
this article. It has drawn public attention to Congress' authority to define,
by law, the circumstances which make a child a "natural born" American.

If Congress has the power to declare that a child of American parents,
but born overseas, is an American, then Congress has the equal power to
declare that a child born of Mexican parents in the United States is NOT an
American citizen. That would apply only if the Mexican, or Canadian, or any
other nationality, parents were not legally in the US at the time of the
child's birth.

John Armor, a spokesman for the ACRU, has written that the problem of
"anchor babies," children of illegal immigrants who were "US citizens by
birth," could and should be solved by Congress. "As I pointed out months
ago," Mr. Armor said, "it is routine federal law that children of embassy
personnel in D.C. are citizens of their parents' nations, not of the US, even
when they are born in US hospitals. This is not rocket science."

Those who say that only a constitutional amendment can solve the "anchor
baby" problem, including the Times, are incompetent in doing their homework

Horace Cooper will be on the Sean Patrick Show from 8:20am EST on February 7. The show can be heard on WOC 1420AM in the Quad Cities.

Senior Fellow Horace Cooper has an op-ed in today's Washington Times, where he argues for renewing FISA.

Says Cooper,

It's been six years since the odious attacks of September 11 and even though there is an understandable amount of complacency settling in, as Margaret Thatcher warned the first President Bush, it's "no time to go wobbly." It is essential that our policy-makers at home drown out the scare tactics of leftist groups like the American Civil Liberties Union (ACLU). We absolutely must do so in order to make sure that we stay ever vigilant and protect our citizens domestically.

In today's New York Sun, Senior Fellow Ken Blackwell wrote a column arguing Congress should reauthorize FISA.

Says Blackwell,

We are at war. Destroying two skyscrapers and part of our military headquarters are not just criminal acts. Killing 2,973 people in a planned attack is not just a criminal act. These are acts of war. While law enforcement is to maintain harmony within our culture, war is to protect our culture from being eradicated.

ACRU Senior Fellow Han Zeiger has an op-ed in today's Washington Times. He discusses Philadelphia's Cradle of Liberty Council of the Boy Scouts of America about to be kicked out of their headquarters they have been in for 80+ years.

Senior Fellow Ken Blackwell wrote this column for Townhall.com where he makes the argument that the Justice Department betrayed us with the amicus brief it filed in the DC Gun Ban case, to be heard by the Supreme Court this term.

Says Blackwell of the US Government's apparent desire to split up gun rights:

The problem with splitting a baby in half is that the baby usually dies. If our rights can be regulated to the point that we can't exercise them in our own homes, then they've been regulated out of existence.

Information on this case, DC v. Heller, can be found here.

Rob Bluey, a columnist at Townhall.com wrote the following column Sunday on the upcoming Indiana Voter ID Case being heard Wednesday, January 9th. This is following ACRU Senior Fellow Kenneth Blackwell's column in the New York Sun.

Rob talked about, among other points, that the left claims requiring an ID will reduce voter turnout. Says Bluey,

Claims of disenfranchisement have been rebutted in numerous studies of voter ID requirements. The most recent, a statistical analysis completed by The Heritage Foundation in September, flatly concluded that voter ID laws don't depress voter turnout.

According a poll quoted in Bluey's column, 77% of approve of an ID system at the polls. The ACLU is out of the mainstream.

The problem is spreading. It used to be that Chicago or St. Louis was famous for having dogs, cats and others voting when they were not allowed. But more and more areas around the country are facing this problem. The ACLU and other leftists are on the wrong side of this one. They seem to not care that dogs, cats, and dead people seem to vote.

BY JOE DEJKA
WORLD-HERALD STAFF WRITER

Security was tight Monday as a Kansas woman appeared in Sarpy County Court to answer charges that she mutilated a flag and put her child in danger while protesting at the funeral of a Bellevue soldier.

Although the Sarpy County Sheriff's Office prepared for a possible protest by members of the Westboro Baptist Church, to which Phelps-Roper belongs, none materialized. Shirley Phelps-Roper, 50, came into the courthouse in the company of just a few family members and her attorney to push for more specifics on the charges she faces.

According to Bellevue Police, Phelps-Roper had her 10-year-old son stomp on an American flag. Church members had obtained a City of Bellevue permit to protest.

The church, founded by her father, has protested across the country at the funerals of numerous soldiers, alleging that their deaths were God's retribution for America's toleration of homosexuality.

Last Wednesday, a Maryland jury awarded nearly $11 million to a man who sued Westboro Baptist for invasion of privacy after its members protested at his son's funeral.

The pretrial hearing centered on a defense motion requesting that the prosecution describe in detail the specific facts that support the charges, which include disturbing the peace, contributing to the delinquency of a minor and negligent child abuse.

Her attorney, Bassel El-Kasaby, argued that without specifics on what actions broke the law in each case and who was victimized he can't prepare his case.

"I don't think you can disturb the peace of a police officer or firefighter," he said.

He said it was "unorthodox" and potential "overreaching" by prosecutors to charge Phelps-Roper with contributing to the delinquency of a minor and negligent child abuse.

"I'd like to know who the victim is and what harm they suffered," he said.

He said if the flag mutilation charge is found unconstitutional, the other charges likewise may be dismissed, but he needs to know the relationship between the charges.

Deputy Sarpy County Attorney Marc Delman resisted El-Kasaby's request, saying he didn't want to limit the basis for the charges.

Delman told the judge that Phelps-Roper had "cleanly, openly and notoriously" made her son step on an American flag while her church protested at the funeral of William Bailey.

"Clearly the Bailey family was very upset by this," he said. Delman said Phelps-Roper's contempt for the flag gave rise to the case, but the rest of the charges stemmed from other actions as well, including slogans on signs and other conduct.

Phelps-Roper, outside the courtroom, said she didn't force her son, Jason, to do anything.

She said he has grown up attending protests and acted on his own.

"He laid it on the ground, and he stood on it. And he stood there peacefully," she said.

Sarpy County Court Judge Todd Hutton told both sides he wants written arguments on whether the prosecution should specify in more detail the actions that support the charges.

He said he wanted to proceed cautiously and would give both sides ample time to submit arguments. Given the filing deadlines, a decision on the motion could take six months.

Although church members did not protest, a few military veterans gathered outside the courthouse.

Veteran John Henry Pearcy of American Legion Post 32 in Papillion said they showed up to ensure there wasn't any desecration of the veterans' memorial monument in the middle of the courthouse plaza and to show their support for the country.

In 1989, the U.S. Supreme Court struck down a Texas flag desecration statute. A year later, the court struck down a federal flag protection law. In both cases, the court ruled that flag burning was protected speech under the First Amendment.

Sarpy County Attorney Lee Polikov, however, has said that Phelps-Roper's actions at the Bellevue funeral went beyond civility and common decency and inserted an "overly provocative" message into the emotionally charged funeral.

Last Wednesday, a Maryland jury awarded nearly $11 million to a man who sued the Westboro Baptist Church for invasion of privacy after its members protested at his son's funeral.

World-Herald Staff Writer Leia Baez contributed to this report.

Read Hans Zeiger's article, in today's The Philadelphia Inquirer, here.

Read additional emails here.

Reporters who choose to be martyrs don't warrant a federal law. Read more in USA Today here.

This article originally appeared in Barrons.com: link

FEDERAL SPENDING HAS HOVERED around 20% of gross domestic product for more than 50 years now, ever since it settled down after World War II. Despite all the battles over taxes and spending in that time, the federal share of our economy has remained fairly stable.

That will change quite dramatically without fundamental reform of our nation's entitlement programs. The latest long-term projections of the Congressional Budget Office estimate that federal spending will soar, reaching close to 40% of GDP over the next 40 years, primarily owing to exploding costs for Social Security, Medicaid and Medicare. Add in costs for state and local government, and total government spending in America will be well over 50% of GDP.

If anything even close to this happens, the fundamental nature of our economy and our government will have changed. Our capitalist free-market system, the source of America's historic prosperity, will constitute less than half of our economy. Something like Swedish-style socialism will dominate.

Too Big to Cut

Simply cutting entitlements will never avert this looming economic and fiscal catastrophe. The gap is just too big. And, in any case, the political system would never allow enough cuts to make much of a difference.

Some want to negotiate a grand deal, mixing huge tax increases in return for large benefit cuts. But such a deal would leave us spending 30% to 35% of GDP, still a disaster. The true problem isn't the long-term deficits, but the long-term level of government spending.

Finding a way out of this trap starts with recognizing that our entitlement programs are based on old-fashioned ideas of tax-and-spend redistribution. Social Security, for example, doesn't involve any saving and investment at all. Close to 90% of the money that comes in is paid out within 30 days in current benefits. Any surplus is lent to the federal government and immediately spent. Medicare has a small dedicated tax that doesn't come close to covering expenses, and Medicaid is a spending program, pure and simple.

Such old-fashioned systems retard economic growth and carry perverse incentives on both the tax and spending sides. High taxes to finance these programs discourage savings, investment, entrepreneurship and work. Welfare discourages work, and government retirement benefits discourage private retirement savings, as workers don't have to save for benefits that Uncle Sam will pay.

There is an opportunity to modernize and thoroughly restructure these entitlement programs through pro-growth reforms. The key: allowing efficient capital and labor markets to serve the goals of these programs.

Reformers must recognize that voters will insist that sturdy safety nets remain in place. But with positive, pro-growth, structural reforms and the broad benefits of capital and labor markets, we could maintain such safety nets while actually providing a far better deal for beneficiaries, and with far lower government spending.

An Example of Reform

We could start with something that has worked spectacularly well. Legislation enacted in 1996 turned the old Aid to Families with Dependent Children program back to the states. The money that the federal government contributes to this program was returned to each state in a block grant, to be used in a new program designed by the state based on mandatory work for the able-bodied. Block grants are finite. The federal government doesn't match every dollar that the state spends. If the state spends more, it must foot the extra costs itself. If the state spends less, it can keep the savings.

The AFDC rolls were reduced by close to 60% nationwide, close to 80% in states that pushed work most aggressively. Requiring able-bodied recipients to work for their benefits was useful, but perhaps even more important were the reversed incentives for state administrators. Previously, the feds matched increased state spending, so that each new welfare dependent signed up brought more federal funds to the state. But with the state now paying all the added costs of adding "clients," the focus changed to getting able-bodied recipients to work.

Such reforms should now be extended to the other federal welfare programs, particularly budget-busting Medicaid, the open-ended medical-care program for the poor. The federal government now spends about $275 billion a year on Medicaid, accounting for about 10% of its entire budget. States also pay a share of the total expense -- as much as half in the wealthy states.

Even if the reforms allowed each state to keep all of the savings derived from greater flexibility, positive incentives and reduced rolls, the use of block grants would save the federal government a trillion dollars over the first 10 years.

If federal spending growth on the block grants were then barred from growing faster than the rate of expansion in the U.S. gross domestic product, Medicaid would no longer contribute to increasing federal spending as a percent of gross domestic product.

Ideally, such reforms should be expanded to food stamps, federal housing assistance programs and other, smaller federal welfare programs, as well. These programs account for roughly another $200 billion in spending each year, or about 7% of the federal budget. Adding these programs to the block-grant reform might enhance its appeal to the states, as it would give them greater flexibility, along with more funds.

The new state programs could be focused on getting beneficiaries into real, private-sector jobs, market-rate health insurance and home ownership. The result would be a much better overall safety net for the poor. We would be changing our welfare system into a prosperity system.

Keep Trying on Social Security

A second key reform would be the creation of personal accounts for Social Security. Workers would be free to substitute savings and investment accounts for some of their stake in the current system. Social Security spends close to $600 billion a year, constituting 21% of the federal budget.

Most importantly, personal accounts wouldn't just trim the growth of such spending. They would redistribute huge chunks of it from the public to the private sector, dramatically trimming federal spending over the long run.

The accounts could start at any size, and then be expanded over time. Eventually, workers could choose to substitute the accounts for all of their Social Security retirement benefits. The accounts could be expanded further to substituting private insurance for survivors and disability benefits as well. Such accounts alone would reduce federal spending by close to 7% of gross domestic product without reducing retirement benefits, an unprecedented, historic achievement.

Workers would actually get much better benefits through these accounts because market investment returns are so much higher than what the noninvested, purely redistributive Social Security system can promise, let alone afford to deliver. Workers across the board could each accumulate several hundred thousand dollars by the time they retire.

These funds would be owned directly by each worker and would be available to pay for annuities or held as part of an estate. This would do a great deal to reduce inequality, yet in a way that would reinforce, rather than undermine, the economy. Done right, such reforms would produce a historic breakthrough in the personal wealth of working people.

A bill introduced in the last Congress by two Republicans, Rep. Paul Ryan of Wisconsin and Sen. John Sununu of New Hampshire, offers a comprehensive model of how to structure such accounts. It was devised with substantial input from the Social Security Administration and from experienced Wall Street fund administrators.

The bill would maintain the current social safety net in full, by including a federal guarantee that if any retiree's account couldn't pay at least what Social Security would under current law, the federal government would make up the difference.

This provision reflects the kind of risk reduction that would be necessary to succeed with such sweeping reform on an issue as politically explosive as Social Security.

The transition to the personal accounts would be financed primarily by spending restraints and reductions in other programs, and by the revenue from greater economic growth.

This plan can work politically. Many candidates have won elections while campaigning for private Social Security accounts, including President Bush. However, instead of fighting for what he campaigned on so successfully, the president got lost in the swamps of Washington, putting every bad, unpopular idea on the table as well. This buried the positive features of the personal accounts, confused people and blurred the appeal to the general public that's necessary to have reform enacted. Few want to cut the basic benefit formula, increase taxes or raise the retirement age.

The Final Hurdle

Medicare, which now accounts for 13.4% of the federal budget, would be the most difficult entitlement program to reform, because it is so badly overextended in the long term. But personal accounts could be allowed for the 2.9% Medicare payroll tax, shifting some of the program's spending to the private sector. Such accounts would also provide advantages for workers.

The general revenues financing the rest of the program would have to be limited to grow no faster each year than GDP growth, with the funds used to give vouchers for private health coverage to low- and moderate-income seniors to help them purchase private health coverage. The reform would have to be carefully designed to leave a health-care safety net in place for all seniors who need it.

If we also bar federal discretionary spending from expanding faster than the rate of growth of GDP, this reform program would eliminate projected federal deficits, sharply reducing long-run federal spending for interest.

The result would be a federal government spending less than 15% of gross domestic product each year, rather than more than 40%.

At the same time, the reforms would produce broad benefits and advantages for working people, while keeping comprehensive safety nets in place. This is a hopeful, positive vision for America, truly worth fighting for.

PETER J. FERRARA is director of entitlement and budget policy at the Institute for Policy Innovation and general counsel of the American Civil Rights Union.

The Constitution is simple, short and easy to read. There is no excuse for any reporter to write about it, without reading it. The latest example is an article about anchor babies in the Orlando Sentinel today (29 September) by Jim Stratton.

The article concerns a comment about anchor babies by Fred Thompson, Republican candidate for President. If you haven't followed the illegal immigration debate, anchor babies are children born on US soil of illegal immigrant parents. The babies get citizenship. Then, the provisions for "reuniting families" kick in, and the baby assists the parents in becoming legal.

It is a serious problem. Even illegals who cannot read a word of English, are aware of the law. Mexican women who are eight months pregnant are dying every month in the deserts on the border, trying to have their child here as "an American."

Thompson's comment on the automatic citizenship was, "I think that law was created at another time and place for valid reasons, [and] needs to be revisited." The reporter's gloss on Thompson's comment, was "Citizenship by birth has been prescribed by the Constitution since 1868 -- and upheld for 109 years by the Supreme Court...."

The reporter was either incompetent or dishonest. Here's what the 14th Amendment to the Constitution says in its first sentence: "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." That's the legal basis for anchor babies.

Those who say anchor babies are guaranteed by the Constitution, and cannot be eliminated without an amendment, jump right over the phrase "subject to the jurisdiction thereof." Here's an example to explain that, applied to children.

An Australian diplomat and his wife (or her husband) are serving in the United States. She has a child, born in a US hospital. Is that child an American? Absolutely not. Under the laws of the US, a child born of a diplomatic couple is a citizen of their nation, not ours, just as the embassies themselves are defined as territory of the foreign nations, not of the US.

What is the connection between the diplomatic child and the child of an illegal alien from whatever country, though most likely from Mexico? Here's the last sentence of the 14th Amendment, a provision which is common to many amendments: "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."

Based on the plain language of the Constitution, Congress is given the power in the 14th Amendment itself to pass "appropriate" legislation. Therefore, Congress could pass a law that says, "For the purpose of citizenship of them or their children, aliens who are not in the US legally, or not here for the purpose of obtaining citizenship are not subject to the jurisdiction of the US as stated in the 14th Amendment."

Such a law would be legal, because the Constitution permits it. It would mean a child born in a Tucson, or San Diego, or Laredo hospital of Mexican parents, would be a Mexican child. The anchor baby problem would be over. No more pregnant women would die in deserts of the Southwest, trying to get to a US hospital to have their "American" child.

Contrary to what Jim Stratton asserts as fact, this Amendment ratified in 1868 provides for this very solution, if Congress chooses to solve the problem by law. His assertion that the Supreme Court has held to this result is equally ignorant. The case he refers to, but doesn't name, concerned the child of two aliens who were in the US legally, not illegally.

I am not picking on Jim Stratton and the Orlando Sentinel. The ignorance they display on this issue is common to most of the local and national reporters who talk about anchor babies. Almost all of them assume, and state, that the problem is built into the Constitution and cannot be changed without a constitutional amendment. All of them are either dishonest, because they've read the Constitution, and know the legislative power is given to Congress. Or, more likely, they are merely ignorant. They haven't read the Constitution; they assume because many other reporters have said this, it must be true. Therefore, they don't look it up.

This is not the first instance, nor the last, of the American press being a copraphage, consuming its own output.

On 24 September, the New York Times published an article on the decision of the Circuit Court of Appeals in Chicago, which approved the Indiana voter ID law in January, in a divided decision. The losing plaintiffs asked the whole circuit to rehear the case, which it just rejected, so the decision stands.

Both dissenting Judge Terence T. Evans in the 2-1 decision, and reporter Adam Liptak, the reporter on the story, demonstrated a profound misunderstanding of the role of judges in the American political system. But first, the article denigrates the well-respected Judge Richard A. Posner, who wrote the majority decision.

Judge Posner wrote, "It is exceedingly difficult to maneuver in today's America without a photo ID. Try flying, or even entering a tall building such as the courthouse in which we sit." The reporter immediately says, "somewhere between 13 million and 22 million Americans of voting age, most of them poor, get by without driver's licenses...." No source is given for this number. Nor does it deal with the fact that millions of those living in the US are illegal aliens, who in most cases do not have drivers licenses, and who should not be voting in American elections, anyway.

The article sneers in print, "Judge Posner seemed to think it a small burden to ask such people to get a photo ID in order to vote." The article does not note that anyone who wants to present a $20 check at the grocery store is subject to the requirement of a picture ID. And most states make picture IDs available for free, to those who cannot pay for them.

The article implies that there is no factual need for such a voter ID law. It says, "As far as anyone knows," Judge Posner conceded, "no one in Indiana, and not many people elsewhere, are known to have been prosecuted for impersonating a registered voter." Neither the lawyers in the case nor the reporter afterward bothered to punch up "voter fraud" in any computer program. It would have produced dozens of pending cases in at least five states, involving more than 10,000 false entries, all apparently provided by a national organization, ACORN.

The article closes with a quote from the dissent: "Is it wise," Judge Evans asked, "to use a sledgehammer to hit either a real or imaginary fly on a glass coffee table?"

This demonstrates the failure to understand the role of a judge. The "wisdom" of a law is never the province of a reviewing judge. All laws involve trade-offs between benefits and liabilities. Usually, that is a balance between the desirability of the program against the undesirability of more taxes to pay for it. Whether a given choice is "wise" is committed to elected representatives. If they are wrong in their decisions, they can be replaced by better, and wiser, representatives in the next election.

Federal judges are subject to no such correction. That is precisely why judges should only determine whether the action of a legislature, or of Congress, is within the limits of the powers granted by their constitutions. To consider whether a law is constitutional has nothing to do with whether an unelected judge in his personal opinion believes that the law is wise.

Judges who think and write this way are unfit to serve on either state or federal courts. And reporters who believe this is a valid argument in a case on the Constitution are unfit to report on decisions made by courts. Such judges and such reporters, if they are genuinely interested in the "wisdom" of any political decision, they are welcome to step down from their present positions, run for the legislature. Once elected, they will have a legitimate right to consider the wisdom of any proposed law that may come before them.

http://www.townhall.com/Columnists/HoraceCooper/2007/09/22/executive_decision

President Bush's announcement of the name of the person who would replace Attorney General Alberto Gonzales was eagerly anticipated by many in Washington. Gonzales, caricatured as inept and bumbling by critics of the President, had decided in August that he wouldn't continue in his designated role as Washington's whipping boy du jour. In the end the President's choice of Judge Michael Mukasey wasn't a surprise as much as it was a stinging acknowledgement of the complete political breakdown that has taken place in Washington - a breakdown that increasingly is trampling all over the executive's appointment power. If after 2008 the Democrats win the White House will they regret the precedent that they are helping to establish?

The subtext of yesterday's Joint hearing in the House featuring General Petraeus and the coming Senate hearing, is the position that the Democrats in Congress will take when the dust settles. Some Democrat warhorses, like Senator Kennedy, staked out their position in advance of the hearings and the "Petraeus Report." But for the Liberals to actually DO anything will require the consent of their back benchers in both Houses. And, that is very much an undecided outcome.

When the United States engages in military action, the Constitution requires two forms of congressional consent. One is a declaration of war, a joint resolution supported by a majority of both Houses of Congress. In some recent acts of war, for instance in Bosnia, this has not been done. However, the Supreme Court has white-washed that lack by saying it wasn't necessary, since Congress "voted for the money for the military."

Now, technically, that's not what the Constitution says. But in this instance, Congress passed Joint Resolutions (which were folded into laws) in 2001 and 2002, authorizing the "use of military force across international boundaries," as determined by the President. Only those who bury their noses in dusty history books know this is nearly word for word the authorization Congress gave President Jefferson to go after the Barbary Pirates back in 1805. (That was the only other time that Congress declared war without naming one or more nations as the target.)

The other step which the Constitution requires is that Congress must appropriate the money for any military action, the same way that it spends public money for any other purpose. Congress has done that for the wars that are going on in Iraq, Afghanistan, and in a much lower-grade way in Indonesia, India, Pakistan, Britain, Germany, and other places around the world.

Yesterday, a Congressman posed a hypothetical question to General Petraeus about Congress "withdrawing authority for the war." Let's examine his hypothetical. If the Democrats in Congress, plus a handful of Republicans, actually agree to "stop the war" in its tracks, what are their constitutional options to accomplish that?

They could withdraw the authority of the President to "use military force" in Iraq, or elsewhere. This requires only a majority vote in both Houses. No official action is required, or even permitted, by the President. The Democrats have a majority in both Houses. Yet, this step will not be taken, and here is why.

There are roughly 42 so-called "Blue Dog" Democrats in the House. These are somewhat conservative Democrats from largely conservative districts in the South. These Representatives had to appear conservative to win election and will not be reelected if they stray too far from that stance. The idea of declaring the war over while our soldiers are still in the field is anathema in districts like mine, NC 11th in the Blue Ridge Mountains where the events like those depicted in Cold Mountain really happened to real people.

Our current House of Representatives cannot muster a majority to terminate the declarations of war. And, the Senate, knowing the status of the House, has no reason to climb out on that limb, and let the House saw it off.

The other option is to cut off the money to "terminate the war." Ah, but this requires legislation and the Democrats would have to pass a law to end the appropriation of money for the military to fight on. Perhaps they could muster a majority vote for this purpose, but it would be subject to a presidential veto -- support for which would be very unlikely.

So, the bottom line is -- terminating funding requires a two-thirds majority in each House, the number needed to override a veto. The Democrats plus a few Republicans in each House do not add up to a two-thirds majority in either House. Therefore, neither House of Congress will pass a de-funding bill, only to see it fail in the end.

The "anti-war" Members of Congress in both Houses will give thundering speeches about the "failure" of the surge, and of the war. Members will praise the service and integrity of General Petraeus in the hearings while quibbling both his integrity and his competence in the questions they put to him.

The bottom line is this: There will be only be speeches and slanted questions by those who oppose the war. Neither Senate Majority Leader Reid nor House Speaker Nancy Pelosi will introduce a withdrawal of the declarations or a termination of funding for action this year.

About the Author: John Armor was a member of the Bar of the Supreme Court for 33 years, and briefed 18 cases there. John_Armor@aya.yale.edu He is now a counsel to the American Civil Rights Union. www.theacru.org

The supposedly anti-war organization, A.N.S.W.E.R., has just filed suit against the District of Columbia for fines imposed on the organization for defacing public property with its rally signs. Anyone who has traveled at all in D.C. is aware of the A.N.S.W.E.R signs, since they are plastered on light boxes and light poles, especially in the downtown area. The D.C. Department of Public Works has imposed fines in excess of $10,000.

The organization claims that its signs are posted with "a water-soluble glue that is easily removed." The fact that some of this group's signs from rallies years ago are still tenaciously clinging to public property after hundreds of rainstorms puts the lie to this claim. The group also claims that it is being discriminated against, as compared to "election or crime prevention posters."

The experienced traveler in D.C. knows that political posters sprout like weeds in the rain in election seasons, but are swiftly removed thereafter. Other posters, such as for rock bands, night spots, and other entertainments, are plastered on the plywood at construction sites. Those posters, conveniently, come down when the plywood comes down.

A.N.S.W.E.R. seems to be the only group which routinely pastes its posters on permanent, public structures, so the posters won't come down. Other users of posters usually don't paste over them, because other users generally lay off the light poles and transformers.

In its suit in the US District Court in D.C., the group claims that it is being subjected to a "politically targeted harassment campaign" by the D.C. government and the US Park Service. It seems the Park Service detained a couple of the group's people defacing a public park by pasting posters on it. It's unknown whether the ACLU is involved in trying to protect the group's right to deface public property. It is clear that the ACLU is a long-time political ally of the group.

The newspaper simply accepted A.N.S.W.E.R. at its word as an "anti-war" coalition. Had the reporter gone to its website and followed the links she would have discovered that the group favors certain wars and certain mass murderers. Several of its leaders have visited with and praised Kim Il Sung of North Korea. Its best-known organizer is Ramsay Clark, the lawyer who defended Saddam Hussein, among other tyrants whose primary virtue is virulent anti-Americanism.

A spokeswoman for D.C. injected some common sense into the discussion, saying, "The District hosts marches and protests all the time and we never weigh in on the merits of the issues, rather our role is to keep the city neat." The law suit will probably be thrown out. But justice will not be done unless both the group and its lawyers are fined with costs for engaging in frivolous litigation and wasting the court's time.

The facts for this article, but not the legal conclusions, come from an article in The Hill, published in Washington, D.C. on 21 August. (Go here to find this article on the Net)

Recent comments by Senators Leahy and Schumer critical of Justices Roberts and Alito demonstrate the senators' significant misunderstanding about the role of the Supreme Court and reveal their own flawed judicial philosophy.

According to Senators Leahy and Schumer, Justices Roberts and Alito misled the committee during their respective confirmation hearings regarding their willingness to uphold the traditions and precedents of the Supreme Court. Nothing could be further from the truth. Actually the Justices have been fairly incrementalist and supportive of judicial precedence in their approach to interpreting constitutional law.

A recent article in The Sunday Paper - "What is an American? Immigration debate reveals patriotism-and nationalism" - has been brought to my attention. In this article, my essay on what it means to be an American, first published at National Review Online in the days following the September 11, 2001, terrorist attacks on our country, was cited. I thought this was a good time to republish that essay here:

What Is An American? A Primer

You probably missed it in the rush of news last week, but there was actually a report that someone in Pakistan had published in a newspaper there an offer of a reward to anyone who killed an American, any American.

So I just thought I would write to let them know what an American is, so they would know when they found one.

An American is English...or French, or Italian, Irish, German, Spanish, Polish, Russian or Greek. An American may also be African, Indian, Chinese, Japanese, Australian, Iranian, Asian, or Arab, or Pakistani, or Afghan.

An American is Christian, or he could be Jewish, or Buddhist, or Muslim. In fact, there are more Muslims in America than in Afghanistan. The only difference is that in America they are free to worship as each of them choose.

An American is also free to believe in no religion. For that he will answer only to God, not to the government, or to armed thugs claiming to speak for the government and for God.

An American is from the most prosperous land in the history of the world. The root of that prosperity can be found in the Declaration of Independence, which recognizes the God-given right of each man and woman to the pursuit of happiness.

An American is generous. Americans have helped out just about every other nation in the world in their time of need. When Afghanistan was overrun by the Soviet army 20 years ago, Americans came with arms and supplies to enable the people to win back their country. As of the morning of September 11, Americans had given more than any other nation to the poor in Afghanistan.

An American does not have to obey the mad ravings of ignorant, ungodly cruel, old men. American men will not be fooled into giving up their lives to kill innocent people, so that these foolish old men may hold on to power. American women are free to show their beautiful faces to the world, as each of them choose.

An American is free to criticize his government's officials when they are wrong, in his or her own opinion. Then he is free to replace them, by majority vote.

Americans welcome people from all lands, all cultures, all religions, because they are not afraid. They are not afraid that their history, their religion, their beliefs, will be overrun, or forgotten. That is because they know they are free to hold to their religion, their beliefs, their history, as each of them choose.

And just as Americans welcome all, they enjoy the best that everyone has to bring, from all over the world. The best science, the best technology, the best products, the best books, the best music, the best food, the best athletes.

Americans welcome the best, but they also welcome the least. The nation symbol of America welcomes your tired and your poor, the wretched refuse of your teeming shores, the homeless, tempest tossed.

These in fact are the people who built America. Many of them were working in the twin towers on the morning of September 11, earning a better life for their families.

So you can try to kill an American if you must. Hitler did. So did General Tojo and Stalin and Mao Tse-Tung, and every bloodthirsty tyrant in the history of the world.

But in doing so you would just be killing yourself. Because Americans are not a particular people from a particular place. They are the embodiment of the human spirit of freedom. Everyone who holds to that spirit, everywhere, is an American.

So look around you. You may find more Americans in your land than you thought were there. One day they will rise up and overthrow the old, ignorant, tired tyrants that trouble too many lands. Then those lands too will join the community of free and prosperous nations.

And America will welcome them.

(This article was first published at National Review Online on September 25, 2001)

In Sunday's paper, the Washington Post has an article with the title, "Fewer See Balance in Court Decisions." The article is based on a poll conducted by the Post and ABC News. Its findings were that "about half the public thinks the Supreme Court is generally balanced in its opinions." But since that isn't the point the paper wants to make, it highlights the fact that the number of citizens who think the Court is "too conservative" has increased to 31%.

Both the writers of this article and the editors who put it in print have no clue why the Supreme Court exists. If it was merely a popularity contest, there would be no need for a Supreme Court. The Congress of the United States, especially the House which is in proportion to population, is always capable of expressing the will of a majority of citizens.

The entire reason that all federal courts exist, not just the Supreme Court, is to enforce the law and the Constitution especially, regardless of what majority opinion might be. Without that understanding, the Court's decisions ending racial segregation in all schools would not have occurred. Nor, its decision that Jehovah's Witnesses should not be expelled from schools for following their faith and refusing to recite the Pledge of Allegiance. Nor, its decision, left-handed and belated, that Japanese-Americans were justifiably imprisoned for their race alone, during World War II.

The article quotes a number of sources, people who do not care whether the Constitution is trashed, as long as their side in the particular issue somehow prevails. The President of People for the American Way is such an "expert."

Much of the article expresses the attitudes of various segments of the population about the partial birth abortion decision of the Court. Again, this totally misses the point. It is no more relevant whether this decision is popular with various parts of the population, then whether the original decision on abortion was popular.

The Post ought to apologize to the public for printing an article which demonstrates such ignorance about why the Supreme Court was created by the Constitution and the lower federal courts were established by Congress. It won't, but it should.

To honor our nation's independence on this Fourth of July, 2007, I think is good to do or read something to become more knowledgable and filled with greater appreciation of our Founding Fathers and thanksgiving to God for the work He did through them. In that spirit, I reproduce the section on Thomas Jefferson and the Declaration of Independence from the essay on Jefferson I wrote back in February 2001 for the Bill of Rights Institute. You can read the full essay - which is biographical, though focused on his contributions to American freedom and government - here.

I also encourage readers to review the quotes I posted here and here from many of the Founders on the significance they believed of what they were doing and did in drafting and signing the Declaration of Independence. And, of course, the best thing of all is to read the Declaration of Independence. Happy Independence Day

Thomas Jefferson and the Declaration of Independence

...[Thomas] Jefferson's fame comes from a wide-range of achievements and roles - diplomat, secretary of state, governor, historian, philosopher, founder of a university - but he achieved greatness and secured his place in history most firmly with his primary authorship of the Declaration of Independence. In the midst of growing hostilities with the British on the eve of the Revolutionary War, the Second Continental Congress appointed Jefferson, John Adams, Benjamin Franklin, Roger Sherman, and Robert Livingston to draft the Declaration. The other four members deferred to thirty-three year old Jefferson, one of the youngest members of Congress, to write the document. They did this for two main reasons: 1) his brilliant and powerful writing style, and 2) his Virginia citizenship. As the largest and most influential southern colony, Virginia's support for the revolutionary cause was indispensable for presenting a united front against the British.

The Unanimous Declaration of the Thirteen United States of America, as it is officially titled, was signed on July 4, 1776 (though it passed on July 2). It was proclaimed to the public in Philadelphia on July 8.

Jefferson's penmanship of the Declaration grew to legendary status by the time of his presidency. This drew the ire of Adams, whose vast patriotic credentials were now overshadowed by the document, leading him to decry it and the ideas it contained as "hackneyed," utterly unoriginal. Jefferson agreed. He wrote of the Declaration, "Neither aiming at originality of principle or sentiment, nor yet copied from any particular and previous writing, it was intended to be an expression of the American mind."

Indeed, the arguments and principles contained in the Declaration of Independence - including, in some cases, the actual wording - were culled from various sources. For instance, it included Richard Henry Lee's June 7, 1776, resolution for independence nearly in its entirety, including the phrase, "that these United Colonies are, and of right ought to be, free and independent states."

Other influences included George Mason's Virginia Declaration of Rights ( "all men are by nature equally free and independent") and Jefferson's own June 1774 pamphlet, "A Summary View of the Rights of British America." The Summary was intended for delegates in the Virginia legislature, and rejected all British parliamentary authority whatsoever over the colonies, while acknowledging that allegiance was owed only to the king. Given that the king had no tax or legislative authority without Parliament, this allegiance was merely ceremonial and in effect represented virtual independence from Great Britain.

In the Declaration of Independence, Jefferson sought to present the colonists' grievances against the throne, citing numerous instances of British transgressions against their "rights as Englishmen" under common law, as were often asserted. These legal rights were not enough, though, to forge a bridge with other countries around the world who were uninterested in the "rights of Englishmen." The enduring masterstroke for Jefferson was in finding that common ground through an appeal to natural law philosophy.

Like Mason and many other colonial leaders, Jefferson was greatly influenced by John Locke's thoughts on natural law. He also revered fellow natural law philosopher Christian Wolff from Germany. Jefferson had a copy of Wolff's Institutiones in his library, in which passages on the asserted right of revolutionary war were specifically marked. The Declaration's philosophical paragraph on man's inherent and inalienable equal rights to life, liberty, and the pursuit of happiness continues to exert influence and inspiration to this day...

Dear Senator Specter,

I am writing to you as the Ranking Republican on the Judiciary Committee. It's useless to write to Chairman Patrick Leahy, because his views are the same as a minority of the Supreme Court Justices -- whatever outcome in any case benefits the Democratic Party is fine with him, regardless of what that does to or with the US Constitution.

You, at least, say that you are interested in accurate analysis of the constitutional issues presented. I've read a couple of your books and I must say that your scholarship, except in the area of Scottish law, leaves a great deal to be desired.

But, let bygones be bygones. Today's issue is the incompetence of the press in dealing with the issue of habeas corpus and its application, or not, to the prisoners at Guantanamo. I'm sure you'll be hit with questions about that. And it would behoove you to know what you're talking about, better than the editors at the New York Times, to choose an example not entirely at random.

If, so, read on. Here's an explanation of that very subject in words of one syllable or less:

Executive Summary

The Seattle District case, decided 28 June by the Supreme Court, is unique in the way that the 5 Justice majority and the 4 Justice dissent attack each other for abusing the Court's prior cases, essentially of intellectual dishonesty. The majority holds that assigning children to a school solely on the basis of their race, offends the Constitution. The minority would hold that school administrations have the right to do that, in the interests of "diversity."

Both sides claim to be in the tradition of the classic decision, Brown v. Board of Education, and accuses the other side of betraying that decision.

In my judgment as a 33-year practitioner in the US Supreme Court, the majority is being faithful to Brown, and the dissent is not. Lawyers can go through the cases cited by each side to determine one by one which side is honest, and which is not.

Conservatives have been fighting to reverse a liberal activist Supreme Court since the 1968 Nixon campaign. Now, almost 40 years later, we are on the verge of success. But have we lost interest?

The current court is very finely balanced between conservatives and liberals. There are 4 solid conservatives on the court, Antonin Scalia, Clarence Thomas, John Roberts, and Sam Alito. There are also 4 solid liberals, John Paul Stevens, Ruth Bader Ginsburg, David Souter, and Stephen Breyer. Then there is Anthony Kennedy, who keeps wandering back and forth, with the outcome of every ideological case dependent on his whims.

Conservatives have already begun winning key cases in both the Supreme Court and lower courts. School vouchers, even for religious schools, have been upheld as constitutional. The Supreme Court recently upheld a Federal law banning partial birth abortion, even though the High Court and the lower courts had consistently struck down all previous bans. In 2000, the Supreme Court ruled that the Boy Scouts have a constitutional right to choose what values they want to uphold and promote, and can choose to hire only those who represent those values. Consequently, the Scouts cannot be found to have committed illegal discrimination in refusing to appoint openly gay Scoutmasters. The DC Circuit Court of Appeals also recently ruled that the Second Amendment really does protect an individual right to keep and bear arms, just like it says.

By April 20, 2009, ultraliberal John Paul Stevens will be 89 years old. He is unlikely to survive the next President's term on the court. If he is replaced by a true conservative like the other 4, the balance of the Court will shift decisively to the conservatives.

In addition, Ruth Bader Ginsburg looks every one of her 74 years and is reportedly in ill health. Before the end of the next President's term, she will be 80 years old. The next President will likely replace her as well. If another solid conservative is appointed, that would make 6 conservatives, 1 wandering moderate, and 2 liberals.

What an enormous victory for conservatives that would be. In addition to the social issues, this will make a big difference as well on such economic issues as property rights, including intellectual property, tort reform, business regulation, further school voucher cases, and others.

But are the conservatives still paying attention? They seem confused, disoriented, and diffident regarding the next election. They need to be focused on getting a President who will make appointments like Alito and Roberts, or even Scalia and Thomas. They also need to be focused on getting a Senate that will confirm them.

Twenty years ago today, then-President Ronald Reagan stood at the Brandenburg Gate in West Berlin, West Germany. He bristled at the inclusion of "West" in the names of the city and nation, forced upon the world as they were by a wall, built by the communists in the East. More, he bristled at the totalitarianism of East Germany and the Warsaw Pact - where the communist ideology necessitated the building of the Berlin Wall, armed with razor wire and machine guns aimed, not at the West, but inward to the east in order to cut down those who would flee to freedom.

Reagan gave a speech that blustery day in 1987. In many ways, the speech represented the culmination of his near-lifelong crusade against communism, beginning as it did while he was a young adult and president of the Screen Actors Guild in Hollywood, and capped by a two-term presidency whose first order of business was to confront the Soviet menace from a position of strength - both militarily and economically. The goal was not war, but to bring the Soviets to the table on our terms. The goal was to bring about internal reforms in the East that would bring freedom to peoples long-suppressed by Marxism-Leninism. The goal was for the West to "transcend" communism, as Reagan put it, and to condemn the murderous, suffocating ideology - and its ultimate symbol, the Berlin Wall - to the "ash heap of history."

The Berlin Wall did come down, on November 9, 1989. Soon thereafter Germany was reunified, and the Soviet Empire was no more.

Here is an extended excerpt of Reagan's famous speech - the speech that tore down a Wall and helped deliver hope and freedom to millions living behind the Iron Curtain:

Behind me stands a wall that encircles the free sectors of this city, part of a vast system of barriers that divides the entire continent of Europe. From the Baltic, south, those barriers cut across Germany in a gash of barbed wire, concrete, dog runs, and guard towers. Farther south, there may be no visible, no obvious wall. But there remain armed guards and checkpoints all the same--still a restriction on the right to travel, still an instrument to impose upon ordinary men and women the will of a totalitarian state. Yet it is here in Berlin where the wall emerges most clearly; here, cutting across your city, where the news photo and the television screen have imprinted this brutal division of a continent upon the mind of the world. Standing before the Brandenburg Gate, every man is a German, separated from his fellow men. Every man is a Berliner, forced to look upon a scar.

President von Weizsacker has said, "The German question is open as long as the Brandenburg Gate is closed." Today I say: As long as the gate is closed, as long as this scar of a wall is permitted to stand, it is not the German question alone that remains open, but the question of freedom for all mankind. Yet I do not come here to lament. For I find in Berlin a message of hope, even in the shadow of this wall, a message of triumph...

US District Judge Leslie Southwick comes before the Senate Judiciary Committee today on his nomination to move up to the Fifth Circuit Court of Appeals. When Judge Southwick was nominated to the District Court, his approval was unanimous. But now, the Democrat left has attacked him for being "against" homosexuals and blacks.

Both charges have to do with just two of the more than 7,000 decisions he participated in as a Judge on the Mississippi Court of Appeals. In both cases, he joined the opinion, but did not write it.

In one, the appeals court approved a trial court decision granting custody of a child to the father, rather than the mother. After a review of the mother's living conditions, the trial court ruled for the father. However, the opinion used two words, "homosexual lifestyle," which sent the Democrat left into a frenzy. This is a frivolous objection, unless one has the prejudicial view that mothers should ALWAYS win custody disputes.

In the other case, the appeals court upheld a decision of the state employment agency's decision not to fire a woman who used the "N" word once, who apologized for doing so, and whose apology was accepted. Unless one accepts the view that every slight, however small, belongs in court being settled by lawyers, this was an eminently reasonable decision.

In short, the left wants to tar Judge Southwick for using common sense in his prior judicial work. That may be a hanging offense for the left, but it is exactly what most Americans would expect from members of the federal bench.

UPDATE - BREAKING NEWS: The Democrats have now pulled the vote on Judge Southwick, and in response the Republicans have threatened to "shut down the Senate" over the issue of Democrats blocking all judicial nominees by Bush - even ones like Southwick who were unanimously approved to the US District Court just a year ago.

Today, a US military judge dismissed charges against a 20-year-old prisoner. This decision was widely, but not competently, reported around the world. The Associated Press story in US papers was close to accurate.

Canadian detainee, Omar Khadr, was accused of throwing a grenade in Afghanistan which killed U.S. Army Sgt. Christopher Speer. Many of the foreign reports focused on the fact that Khadr was 15 at the time, which had nothing to do with the decision.

The judge, Army Col. Peter Brownback, dismissed the charges because Khadr was classified as an "enemy combatant," whereas the law enabling the trials applied to "alien unlawful enemy combatants." The same defect applies to all of the other detainees subject to military trials.

After quoting assorted lawyers saying that all the trials are defected, the reporter finally gets to the nub of the matter. Note these two paragraphs:

The Pentagon said the issue was little more than semantics.

A spokesman said the system was not dealing with lawful combatants, who fight in uniform for a national army. It was set up to determine if a detainee acted as an "unlawful enemy combatant" who was not in an internationally recognized military, did not wear a uniform or rank insignia, did not carry arms openly and was not a party to the Geneva Conventions, he said.

Individuals are not, of course, ever parties to the Geneva Conventions. The other points are all correct. Illegal combatants - like Nathan Hale (American) and Major John Andre (British) in the American Revolution - are illegal combatants under the Law of War, because they are behind enemy lines, not in a unit and not in uniform.

Thousands of words will be wasted on this case, not counting those of Rep. Gerald Nadler of New York, who has already weighed in. The charges were dismissed without prejudice. The labels on the prisoners need to be changed in accord with their factual circumstances. Then all the trials can proceed.