Trying Dzhokhar Tsarnaev

It seems clear that Dzhokhar Tsarnaev exploded bombs at the Boston Marathon. Although some wanted him tried as an enemy combatant outside of the requirements of the Constitution, the Obama Administration has brought charges in the federal courts.

It’s fascinating how some Americans treat our Constitution. On the one hand, many people make a fetish about what the Founders thought and did in the eighteenth century, and on the other many, often the same people, argue that the Constitution is simply irrelevant, doesn’t apply, can safely be ignored or forgotten.

Let’s get past that one quickly. Although the evidence so far does not fit the definition, the Constitution has a very clear notion of what to call Americans who adhere to our enemies – “traitors.” And the Constitution specifies how to try traitors – in court with at least two witnesses to the treasonous acts. The Founders were careful because they understood that charges of treason had often been misused. Throughout the Constitution and the Bill of Rights, the Founders carefully built in protections so that we could be as sure as possible that the right people were convicted. They didn’t get careless when the crime was heinous and the stakes large. The larger the stakes, the more careful they were. Our Founders behaved like statesmen.

It took years before the U.S. Supreme Court managed to decide that the people imprisoned on Guantanamo were entitled to a decent opportunity to clear themselves of the charges against them. Sad that should be such a difficult issue in what we call “the land of the free.” And it turns out that there are a number of people who should never have been there, people the government eventually realized were not guilty of fighting us and should never have been detained. But because the Bush Administration made a fetish over being “tough,” it treated them so badly that they may well be dangerous now. Because the Bush Administraton couldn’t imagine living up to our international obligations, it refused to treat the men as prisoners of war, the better to hold them in the kind of conditions we deplored when done to our soldiers, and to make clear the hypocrisy of an American Administration that cried about rights and freedom but honored neither.

Some of us repeatedly swore our loyalty to the Constitution, and don’t think the Constitution is a fair weather document, good only when the sky is blue and we feel like basking in its sunny glow, but excess baggage when the sky darkens and our mood changes.

Some of us believed that we advanced the cause of freedom by binding ourselves together with other countries to honor human rights and liberties the world over, and standing up for those same values at home. But some of us apparently believe that freedom means you can do whatever you want to whomever you want without paying attention to the protections carefully put in place by the Founding Fathers we claim to honor. Perhaps those are the real traitors.

The current Administration, by charging Tsarnaev in federal court, stood by the legal system our Founders bequeathed us. It stands for the principles of a free society, and showcases faith in our own Constitution.

— This commentary was broadcast on WAMC Northeast Report, May 7, 2013.

A 28th Amendment

I got into a discussion about a proposed 28th Amendment to our Constitution a few days ago. Turns out there’s more than one proposal calling itself the 28th Amendment. I’m talking about the one that begins, “The rights protected by the Constitution of the United States are the rights of natural persons only.” There may be similar ones. There certainly are some calling themselves the 28th Amendment that address very different subjects and are totally misinformed. But the restriction of constitutional rights to natural persons is worth talking about.

The Gay Marriage Cases

Sunday night, my wife and I attended a Persian Nowruz or New Year’s festival, with many friends. We celebrated the best and happiest of the traditions they had left behind, along with other Americans who had come to take part. While celebrating the rebirth of Spring, we were also celebrating freedom with friends who had become refugees, whose humanity and efforts to use their skills to help others had become unwelcome to Iranian authorities.

Last night we celebrated freedom with another group of friends, this time in a Passover Seder at our home. We were all Americans by birth but we remembered the importance of freedom to the ancient Israelites and to the many different groups who have struggled for freedom in our own lifetimes.

On both evenings some of the conversation turned to what was going to happen in the cases dealing with the rights of gays and lesbians in front of the U.S. Supreme Court this week.

Saving Federal Dollars

Some congressmen believe the government should not spend any money, shouldn’t borrow, shouldn’t raise the debt ceiling, and shouldn’t raise taxes. They are from “red” states or districts. And they don’t want to vote for hurricane relief for the northeastern states.

Others believe government should do what is necessary for the welfare of the people. When people are in trouble, good people help. They are from “blue” states or districts. And they voted for hurricane relief for the South and Midwest.

It’s not just Tea Party ideology. Whose ox is gored matters to them. If the hurricane hits my district, well, they’re good people, so we gotta help. But if it’s somebody else’s district, especially a “blue” district, we certainly do not want to help “those” people. So we have a combination of politics and ideology.

OK then, here’s a proposal.

Supreme Court Protects Prosecutorial Misconduct That Threatens the Innocent

As you think about whom you’ll vote for, let me tell you about two decisions of the Roberts Court where the Court sprang to the defense of prosecutors whose denials of constitutional protections had put innocent men in prison for decades.

Real Election Fraud

Republican efforts to exclude voters from the polls have been in the news lately. A Pennsylvania judge recently decided it was OK to require voters to have photo IDs there. Many states have been doing that.

Indiana anti-voter fraud efforts got the blessing of the U.S. Supreme Court under John Roberts in 2008.[*] Indiana Republicans claimed to be terrified that poor people would show up at the polls fraudulently trying to vote, and worse, they would vote for Democrats. So they required picture IDs. Their claims have been repeated in many states. 

Due process & targeted assassination

Tasked with helping draft a constitution for India after World War II, B. N. Rau traveled abroad speaking to jurists. In Washington, Supreme Court Justice Frankfurter advised Rau not to include a due process clause in the Indian Constitution. Instead India should have a clause simply requiring that no one be charged with a crime but by the law of the land. That was the meaning of the Magna Carta in 1215 which said:

 No freemen shall be taken or imprisoned … or in any way destroyed … except by the lawful judgment of his peers or by the law of the land.

 That meant Parliamentary supremacy. Whatever crimes and procedures the legislature defined were kosher. But there was no check on the legislature.

Supreme Court Plays Guardian Counsel in the Health Care Argument

Let’s understand what that argument about the health insurance mandate was about. Everybody agreed that a single payer system would have been constitutionally OK. It would have been based on the taxing power. However toxic taxes are to the public, legally they are not particularly toxic. Everyone admits the taxing power is broad.

Toxic Taxes and Health Insurance

Yesterday the Supreme Court heard argument about whether the health insurance mandate is or is not a “tax”. If it were a “tax” then this legal challenge might be three years premature. If it were a “tax” we would be talking about the taxing power in addition to the commerce power. If it were a “tax”, it would be much harder to attack this law. So why isn’t it a “tax”?

Should we let government attach their GPS’s to our cars?

Earlier today the Court heard arguments in United States v. Jones. For a solid month, the feds tracked Jones with the aid of a GPS device hidden on his car. And they got him. He dealt drugs. The feds figured it out and convicted him. Why should anybody care? GPS data can be very revealing. Shouldn’t we cheer?