Of Constitutions, Bibles, and Morons

Even for a newspaper with a history of printing op-ed pieces offensive to the intelligence of the average citizen, the Wall Street Journal has outdone itself today by publishing the intellectual excrement of John Bartels et al., former administrators for the Drug Enforcement Agency.

Bartels et al. are furious at the prospect of the legalization of the growth, distribution, sale, and use of marijuana in California.  They’re not furious because they are personally opposed to the use of marijuana (of course not), but rather because the legalization of marijuana in California would create a conflict between state and federal law concerning marijuana.

Oh lordy, that sounds like trouble.  Is this like what happens when the unstoppable force meets the immovable object?  Will the universe explode?  Definitely not, according to Bartels et al.  Rather, it will turn out that that the immovable object, California law, will be trampled over by the unstoppable force of federal law, because, again, according to Bartels et al., the Constitution’s “Supremacy Clause” trumps anything that those crime-loving Californians might legislate.  You know, treaties and such oblige the U.S. to punish the personal growth and use of marijuana.  What treaties?  Who knows? Bartels et al. are doling out information only in doses that our pot-addled brains can handle.

I have to assume that if Bartels et al. knew of a treaty prohibiting us from saying praying to God to punish pot-smokers, they would exhibit the same zeal in using the Supremacy Clause to suppress our First Amendment free speech and religion rights that they are currently employing to suppress our Ninth and Tenth Amendment rights to be free from inane federal interference.  They are just on the side of the Law.  They are like Kevin Costner in The Untouchables.  They probably have a bunch of fat blunts at home right now just waiting for those pesky treaties to expire.

On a serious note, the lamentably poor Constitutional scholarship of Bartels et al. would benefit from examining the tone of moderation in the Supreme Court’s response to a case very close to the present dispute.  In Gonzales vs. Raich, the Court points out that strict construction of arcane and obsolete sections of the Constitution – such as the Commerce Clause – is not helpful to the legislative process, and that the true power to govern the proper regulation of commerce lies with the people via the ballot box.  Perhaps we should regulate marijuana the same way?  And start at a local level, allow some state to function as a test zone?

You see, we could argue all day about what this section or that section of the Constitution means, and which trumps which, and when states’ rights apply and when they don’t.  Or we could just admit that we all twist the Constitution to our own purposes, and that the issue here isn’t the Constitution, but rather that I’m in favor of civil rights and that Bartels et al. are a bunch of violent-by-proxy evangelists bent on using the law of the land as a club to beat anyone who opposes their puritanical code of personal morality.

Once we see the discourse on this rational level, we can ask what are the real issues.  That’s really a question for Californians, since the exceptional status of marijuana in California will certainly affect a drug tourism industry.  But even the rest of us can consider such questions as “Is marijuana harmful?” or “What is the proper extent of governmental regulation of drug use?”

My guess is that Bartels et al. are perfectly cognizant of the relative importance of these issues, but realize that their fear-driven perspective on marijuana is becoming increasingly lonely.  Well, you have to admire a group that will do absolutely anything to get what they want.

Note: I realize that this turns some of my previous arguments in defense of the right to keep and bear arms on their head.  The ignorant raving of this bunch of Cro-Magnons has opened my eyes.  I shall endeavor to confine my future arguments in defense of an expanded right to keep and bear arms to practical considerations and the same local approach that I would here advocate for marijuana.  The salient practical considerations concerning firearms is that they are the ultimate check on an increasingly tyrannical federal power.  See the Federalist 46.

On Gun Control – Arguments I’ve Made a Thousand Times, Better

Kaili Joy Gray has stated, more eloquently than I ever have, could, or will, a case for gun rights.  I would recommend that anyone read this, if for no other reason, than because it is an example of clear, intellectually honest thought, which is something that modern political discourse dosen’t see much.

Read the essay!

That said, I am a proponent of gun rights.  My sole criticism of Ms. Gray’s essay is that it saves the most important, most interesting point for last, and then barely develops it.

What is this point?  It is simply that the Second Amendment of the Constitution is the right of revolution.  It is the right of the people, as a whole, to violently dispose of a government that has proven itself oppressive.  The thought of the Founders was incubated in the Revolution, and they intended that future generations should have the same ability and strength that they did.

Of course, the question is perhaps not what the Founders thought or wanted, but what the Constitution says, and whether it makes sense.  Consider the abuses our government daily heaps upon us.  It seems entirely possible that we are on an irreversible course toward technocratic absolutism.  Sure, we still (sort of) have free speech, and the right to object.  But the Second Amendment is like a nuclear option.  When everything else fails, when the government refuses to listen, the sound of gunshots cannot be ignored.  Sic semper tyrannis.

I should be clear that I am not endorsing the right of violently-inclined minorities to voice individual grievances with bloodshed.  Rather, I am endorsing the right of the overwhelming majority of the people, acting collectively, to depose unjust rulers who have effectively stolen power from the people.

Why can't we own these?

For example, the recent bailouts of financial companies and auto companies, multiplied many times and repeated over and over again, would be a reasonable casus belli; in these decisions, unlike in the recent healthcare debate that has so exercised the “tea party”, Democrats and Republicans acted in unified incompetence and injustice, and will suffer no electoral punishment for their actions.  And (at least in my impression) vastly more Americans of all political stripes opposed the bailout legislation.  In short, what we have here is not one half of America claiming that the other half is acting on behalf of those in power and against its own interests, but rather, a tiny and powerful elite – Congressmen, lobbyists, and Wall Street bankers – acting in unison to rob the entire rest of America.

The Case for Not Killing a Fellow American

Why shouldn’t we kill Anwar al-Awlaki, an American-born Muslim cleric living in Yemen and apparently providing material aid to terrorists?  So what if he’s an American citizen… if he’s putting other American lives in danger, he should be taken out, right?

It seems that even the most emphatic opponents of assassinating al-Awlaki, such as Keith Olbermann, think that if we can achieve some level of certainty about the above propositions – that al-Awlaki offers material aid to terrorists and puts American lives in danger – that it’s time to call in the hit squad.  So is there a real case against killing al-Awlaki, or are we just arguing about degrees of certainty?

Well, to start with, let’s cherry-pick some phrases from the Constitution that seem to prohibit the extra-judicial assassination of Americans:

First, Amendment V: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger…”

This part seems pretty clear.  If it’s a crime that al-Awlaki has committed, he must be tried by a grand jury before being “held to answer” for his crime.  In the most conservative interpretation, this last phrase means that he shouldn’t even have to explain his actions without an indictment, never mind worry about his life – but more on that later. The exception referring to time of war or public danger only applies to individuals serving in the military, and is presumably meant to indicate that these individuals can be tried by courts-martial.

More Amendment V: “nor shall any person… be deprived of life, liberty, or property, without due process of law…”

Obviously what constitutes “due process of law” is subject to an enormous amount of interpretation, but the legal precedent for giving the executive branch free rein to execute Americans at will does not exist, so for the al-Awlaki execution to be legal, at the very least, it needs to be challenged and confirmed in a federal court.

Amendment VI: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury…”

Once again, if al-Awlaki has been accused of a criminal offense, trial by jury seems like a right.

Article III: “Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witness to the same overt act, or on confession in open court.”

I’m inclined to think that al-Awlaki is guilty not of a crime, as covered in the Bill of Rights, but of treason, as covered here in Article III.  But once again, the Constitution seems pretty explicit about how treason has to be handled.  Nobody can be convicted of treason without the testimony of two witnesses who observed the overt act (two people who were actually there when al-Awlaki did something, not two relaters hearsay) or confession in court.  We don’t have either of these pieces at the moment.

So all this having been said, it doesn’t actually say in the Constitution anywhere that the government can’t kill citizens willy-nilly.  At best, we have the “due process” clause and a bunch of explicit procedures for treason and criminal offenses.  Now I’m ready to assume that the government must require some sort of legal process before deciding to execute someone, but if someone disagrees, let him state his position – that the government can execute citizens at will – clearly, so that everyone else can pick sides in an informed way.

So, due process.  Ultimately, the power to decide the meaning of this clause lies with the people.  We elect the President, he appoints the Supreme Court, and they decide.  Alternatively, we just make the Constitution more explicit.

In most cases of Constitutional dispute, I’d be against such a liberal distribution of the power to interpret – explicit, clear writing like that of the First and Second Amendments shouldn’t be interpreted against its meaning.  But in the case of due process, it’s much less clear what the original meaning was – which isn’t to say some scholar couldn’t dig something up about what the founders had in mind, but rather to say that the words themselves lack a clear relation to actual things and people.  “Due process of law” is more of a general thing than “the right to keep and bear arms”.  We know what arms are.  Due process could be anything, any process that you can think of that’s legal in nature.

So the simplest case against not killing al-Awlaki lies in the interpretation of the due process clause one way or another.  I’d be in favor of defining this clause to mean that no American can be executed for any reason at all without a trial, whether he be accused of a criminal offense, a treasonous offense, or (like al-Awlaki) neither.  The exception, which judicial precedent seems to have fleshed out in some detail, would be individuals violently and dangerously resisting arrest – which al-Awlaki has not.

The reason for doing this is that it keeps power in the hands of the people, and not the government.  There is no reason to assume that our government will always be benevolent or well-disposed toward us, and so it is prudent to limit the government’s ability to do harm to individuals.  “National security” or “terrorism” may seem like serious threats to our country, but very few people would contend that they are existential threats.  To permit the government to kill at will – or what is the same, its own discretion – is an existential threat.  To set a precedent that will echo through centuries – the killing of Americans – to solve a problem so fleetingly contemporary and narrow is a foolish apposition of the great threat of future tyranny against the tiny threat of a man who persuaded another man to put dynamite in his underwear.

In this particular case, today, the slippery slope seems to be so short and obvious that it ought hardly to bear mentioning.  We are trying to kill al-Awlaki because he is a terrorist.  But Bill Ayers has been called a terrorist, so why don’t we just execute him too?  And Obama associated with Bill Ayers, so he’s probably a terrorist too.  Plus his last name is Muslim.  Maybe we should take him in for extrajudicial questioning and indefinite internment just to be safe.  The power of “Homeland Security” has already been abused, in the few short years since it’s been implemented, to track down legislators who were disrupting a quorum call in Texas.  The Bush administration seems to have flung accusations of anti-Americanism at all of its opponents on every issue, and Fox News commentators have tarred anyone who opposed any step of the war with the taint of aiding terrorists.  Is it really such a leap for some legislator to agree and declare the killing of people aiding terrorists legal?  I’m not saying it could happen tomorrow, but what about ten years from now?

No.  Responsible, far-sighted individuals will realize that the cession of power to the government is dangerous and nearly irreversible.  Trusting the government to only use its power for good is foolish.  Government only behaves with discretion until it doesn’t, and then people get hurt, and justice trampled.

There is one final school of thought that sanctions the killing of al-Awlaki, and this school deserves attention because it is widespread and pernicious.  I would refer to this school as the “apathetics”.  These are people who observe that the Bush administration, in its pursuit of the war on terror, accidentally killed an American in a raid, and that FDR put the Japanese in internment camps, and that the Branch Davidians were massacred without trial, and so how is this any different and why should we care, this is just what governments do, and at least this time it’s a relatively good government doing it for a relatively good cause.

This apathetic school of thought should not be mistaken with pragmatism.  These are not people who are seeking to pick their battles and try to channel human nature rather than dam it.  Rather, they are people who will not lift a finger to fight unless it’s in their own immediate and direct self-interest.  They have no care for principle; human nature is the law of the land, and we are just living in an advanced and veiled state of anarchy.  Law is merely the tool of the strong, or anyone who can turn it to their ends, and has no inherent meaning or moral value beyond any application it may have to the pursuit of one’s own immediate and direct self-interest.

Perhaps these people are right.  Perhaps we who are not apathetics are romantics, or idealists.  But let us hope that if we are not, they will be consumed in the bonfire.  Let us hope that if the tide of human oppression ever again swells over the battlements of arrogance, the apathetics, that human dike of Pangloss and inertia, will be swept away with the crimes for which it apologized.