All You Need to Know About This Editorial...

...is that it Cites the Passage of the Alien and Sedition Acts in Support of his Proposal.

But a little background is necessary to understand how devastating this is to his argument.  Today in the New York Times, Constitutional Law Professor Louis Michael Seidman advocates that we should ignore the constitution.  No, I am not exaggerating.  The title of the piece is “Let’s Give Up on the Constitution” arguing that Congress and the president should conspire to violate the Constitution and presumably the Supreme Court should just look the other way or rubber stamp it.

You could go step-by-step, tearing apart the flimsiness of his argument, but that isn’t necessary.  All you have to do is cite the passage when he brings up the Alien and Sedition Acts as a precedent supporting his proposal.  Here’s the money quote:

No sooner was the Constitution in place than our leaders began ignoring it. John Adams supported the Alien and Sedition Acts, which violated the First Amendment’s guarantee of freedom of speech.

Mind you, if you read the whole dumb article, he is not citing it as a negative precedent, an outcome to be avoided.  He is not saying that ignoring the Constitution is a bad thing.  He thinks it is a swell idea.  And he cites the Alien and Sedition Acts, which most historically aware people consider to be an affront to Constitutional Freedom, as setting a precedent he would like to apply to other cases.

Now to be fair, he does later say that Freedom of Expression should be respected but not out of respect for the Constitution but because we just should.  Which most of us just don’t think is good enough.  The episode with the Alien and Sedition Acts does show that you cannot depend on the Supreme Court to protect our First Amendment rights in all cases—that sometimes We the People have to enforce the Constitution ourselves.  But it seems downright insane to give up what protection the First Amendment does give.

But really, why stop with the Alien and Sedition Acts?  There are so many other wonderful, illustrious examples of the Constitution being ignored.

The Trail of Tears.  The Cherokee of Georgia, when faced with encroachment on their land, decided to become “civilized” as the term was understood at that time.  They created a written version of their language, built proper homes, farmed in the white man’s way, and even owned slaves (which was, bizarrely, considered civilized behavior at the time).  But they weren’t white so the white people of Georgia wanted them to go.  But in Worcester v. Georgia (1832), the Supreme Court declared that this was their land, and thus they were entitled to keep it.  Still, the Georgians proceeded to kick the natives off their land, ignoring the constitutional authority of the Supreme Court.  And while historians doubt that President Andrew Jackson really said, “Marshall has made his decision, let him enforce it,” there is no doubt that this is the attitude Jackson took.

(By the way, as a point of trivia, because of this history many of the “classic” plantation mansions you see in Georgia were actually built by the Cherokee imitating Southern culture.)

The Fugitive Slave Act of 1850.  Slaveholders feared that their institution would die from a thousand cuts due to the underground railroad.  And to be fair, this was a real possibility, though it would take some time for it to work.  So they advocated and obtained the Fugitive Slave Act of 1850, empowering federal marshals to capture slaves and doing other things we will discuss in a minute.

The very passage of any kind of “catch the slaves” law was itself unconstitutional.  Ask yourself this: where in the Constitution (circa 1850) does it empower the Federal Government to catch slaves?  Now reasonable people might go, “well, isn’t there a part in there somewhere about fugitive slaves?”  Well, here is the Fugitive Slave Clause, and you can read for yourself:

No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, But shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

Of course the language is odd, because they didn’t want to say the word “slave” in the Constitution.  The first time slavery was mentioned in the Constitution was to abolish it.  But if you pick through it, all it says is: 1) if a slave flees into a free state, s/he is not freed by that state’s laws, and 2) the state authorities shall pursue and deliver such slaves back to their masters.  There is nothing in there about Federal agents picking up the slaves themselves.   So the act itself was in violation of the Constitution.

But it was worse than that.  On top of that, the federal marshals were empowered to conscript ordinary citizens into the pursuit of such slaves.  Indeed, in theory, a slave could be conscripted to capture him or herself, though I don’t believe any marshal had the chutzpah to do such a thing.  And again, there is nothing in the Constitution allowing them to do that.

But I have saved the worst for last on this point.  On top of all of that, they provided a method for determining who is and is not a slave under this law by creating a series of special judges called commissioners.  In these special courts, a free black person could be declared a slave based on nothing more than the affidavit of the alleged master.  Further, the accused slave would not the allowed to appear on his or her own behalf, or to have a lawyer make such an appearance, or to put on any kind of defense whatsoever.  I mean the slave holder could be as untrustworthy as Brett Kimberlin, and the accused slave could have twenty nuns on her side ready to swear they know her to be a free born black woman, and none of that evidence in her favor could be heard.  And as if that wasn’t enough, the law built in a bribe.  The commissioner was paid by the decision: ten dollars if he declared the person to be a slave, and five dollars if he declared that person to be free.

And this was not merely outrageous.  It was unconstitutional.  There is a lot that is vague about the interpretation of the Fifth Amendment, which declared in relevant part that a person shall not be deprived of their life, liberty or property without due process of law.  There are many finer points that can be debated when discussing what amount of process is due, but it seems elementary that due process requires an un-bribed judge, not to mention a chance to defend oneself.

Japanese Internment.  I don’t think I really have to go into a lot of detail about this, but the short version is that we were afraid of being invaded by the Japanese so we locked up every Japanese American, out of fear that they were some kind of fifth column.  And this was ratified by the Supreme Court in Korematsu v. U.S.

I mean if we are looking for cases where the Constitution has been ignored, and Seidman is comfortable with citing the Alien and Sedition Acts in support of his thesis that the Constitution should be ignored, let’s bring out all of the examples, right?

Of course besides the unmitigated threat to our liberties that this poses, Glenn Reynolds highlights the other fundamental problem with this approach:

[The Federal Government’s] entire authority comes from the Constitution, and is the only reason we aren’t entitled simply to ignore them, or hang them from a tree for their insolence. Take away that source of authority because you don’t like the constraints it involves, and you’re a lot closer to the tree. Those who think themselves above the law are not in a position to hide behind it.

How many times in history has the Supreme Court ruled in a way that the people disagreed with, but we are told we have to abide because it is the Constitution?  During the Civil Rights era, racists were told they had to obey the courts and the laws of the United States because the Constitution says so.  Would Seidman tell them they don’t have to obey?

This is not to say the Constitution has always been obeyed.  But just because the Constitution has not always been faithfully followed, it doesn’t mean that we should never follow it.  We should not accept “cafeteria constitutionalism.”

But by far the most ridiculous thing about this piece is what prompted this plea to lawlessness in the first place.  Was he advocating a ban of weapons that might be allowed by the Second Amendment?  Was he advocating pulling out the fingernails of terror suspects in order to get information that might save lives?  What great national emergency justified this outburst?

Believe it or not, it was this:

Consider, for example, the assertion by the Senate minority leader last week that the House could not take up a plan by Senate Democrats to extend tax cuts on households making $250,000 or less because the Constitution requires that revenue measures originate in the lower chamber. Why should anyone care?

That is right, he is upset that we are enforcing the rule that revenue measures have to originate in the House of Representatives.  Which is admittedly a requirement of limited utility, but its equally a silly thing to object to.  So the Democrats have to introduce it in the House where the political reality is that it will have to satisfy Republicans in order to get passed, where from there it has to go to the Senate, where the reality is that it was have to satisfy the Democrats to get passed.  Instead he wants to be able to pass it in the Senate first, where it will have to satisfy the Democrats to get passed, so that it will go to the House where... it will still have to satisfy the Republicans to get passed.  So for that trivial thing, he wants to throw out the Constitution?

I mean, while I don’t believe we should violate the Constitution for any reason, could we pick a more silly reason to create a Constitutional crisis and put whatever law passes into serious doubt?  And in his entire piece, this is the only specific constitutional provision he is apparently upset about.

Of course he has been pushing this idea of ignoring the Constitution for several months, airing similar ideas here and here, and even writing a book on the subject.  So if we return to the question of why he is raising this objection now, his specific objection which justifies this rant—the rule that revenue measures originate in the House—is so trivial it invites you to exclaim: “you can’t be serious!  You want to trash the Constitution over that?”  But on the other hand, if you look up his book on Amazon.com you find out it is coming out on January 4.  What a coincidence!  He has a book coming out in four days and he writes an op-ed in the New York Times expounding on its major theme: that gee, we should just stop paying attention to that crusty old constitution!

No, no, and when we put it all together, the game he is playing is obvious.  He wanted to put out his thesis to sell books and he added a lame line attempting to make the editorial current.

Which, by the way, is why I am not naming the book or linking to its Amazon page.  It’s not hard to find out what he wrote, but I am not promoting it, either.

---------------------------------------

My wife and I have lost our jobs due to the harassment of convicted terrorist Brett Kimberlin, including an attempt to get us killed and to frame me for a crime carrying a sentence of up to ten years.  I know that claim sounds fantastic, but if you read starting here, you will see absolute proof of these claims using documentary and video evidence.  If you would like to help in the fight to hold Mr. Kimberlin accountable, please hit the Blogger’s Defense Team button on the right.  And thank you.

Follow me at Twitter @aaronworthing, mostly for snark and site updates.  And you can purchase my book (or borrow it for free if you have Amazon Prime), Archangel: A Novel of Alternate, Recent History here.  And you can read a little more about my novel, here.

---------------------------------------

Disclaimer:

I have accused some people, particularly Brett Kimberlin, of reprehensible conduct.  In some cases, the conduct is even criminal.  In all cases, the only justice I want is through the appropriate legal process—such as the criminal justice system.  I do not want to see vigilante violence against any person or any threat of such violence.  This kind of conduct is not only morally wrong, but it is counter-productive.

In the particular case of Brett Kimberlin, I do not want you to even contact him.  Do not call him.  Do not write him a letter.  Do not write him an email.  Do not text-message him.  Do not engage in any kind of directed communication.  I say this in part because under Maryland law, that can quickly become harassment and I don’t want that to happen to him.

And for that matter, don’t go on his property.  Don’t sneak around and try to photograph him.  Frankly try not to even be within his field of vision.  Your behavior could quickly cross the line into harassment in that way too (not to mention trespass and other concerns).

And do not contact his organizations, either.  And most of all, leave his family alone.

The only exception to all that is that if you are reporting on this, there is of course nothing wrong with contacting him for things like his official response to any stories you might report.  And even then if he tells you to stop contacting him, obey that request.  That this is a key element in making out a harassment claim under Maryland law—that a person asks you to stop and you refuse.

And let me say something else.  In my heart of hearts, I don’t believe that any person supporting me has done any of the above.  But if any of you have, stop it, and if you haven’t don’t start.