The Offenses Clause and America’s Commitment to International Law

Article I, Section 8 of the U.S. Constitution contains the obscure but significant “Offenses Clause“, which empowers Congress to “define and punish … Offenses against the Law of Nations.” The law of nations was the 18th century term for what we now call international law.

As the time, these “offenses” would have included “attacks on foreign nations, their citizens, or shipping;” failing to honor “the flag of truce, peace treaties, and boundary treaties” (including unauthorized entry across national borders); and mistreating prisoners of war. The law of nations also obliged states to prosecute pirates, protect wrecked ships and their crew (regardless of their nationality); and protect foreign dignitaries and merchants in their territory.

Thus, the Framers clearly sought to convey to the world that the U.S. would be a responsible actor among the global community, enshrining in its highest legal instrument a commitment to safeguarding foreign nationals, property, and interests, even if it means ostensibly prosecuting American perpetrators.

Some jurists have argued that this provision, in theory, permits Congress to criminalize private conduct in the U.S. that violates international law.

United States v. Wong Kim Ark

United States v. Wong Kim Ark was an 1898 U.S. Supreme Court case in which the Court ruled 6–2 that a child born in the U.S. to Chinese nationals with permanent residence—but not citizenship—automatically becomes a U.S. citizen. The ruling established a key—and as of now legally unchallenged—precedent that the Citizenship Clause of the Fourteenth Amendment (ratified in 1868) should be interpreted broadly.

WongKimArkPlaintiff Wong Kim Ark, who was born in San Francisco in 1873, to Chinese parents who were legally domiciled and resident there at the time. Following a trip abroad, Wong returned to the U.S.—which had done without incident before—only to be denied entry based on the 1882 Chinese Exclusion Act, which prohibited immigration from China. Border agents argued that Wong was actually a Chinese subject rather than a citizen because his parents were Chinese, and thus the Act applied to him.

Wong challenged the government’s refusal to recognize his citizenship, and both the district court in California and the Ninth Circuit Court agreed he had citizenship. The government appealed all the way up to the Supreme Court, which had never decided the question of the citizenship status of U.S.-born children of alien parents.

The case highlighted disagreements over the precise meaning of Citizenship Clause—namely, the provision that a person born in the U.S. who is “subject to the jurisdiction thereof” acquires automatic citizenship. The Supreme Court’s majority concluded that the clause needed to be interpreted in light of English common law—from which the U.S. legal system derives—which for centuries had recognized virtually all native-born children as automatic citizens, except those born to foreign rulers or diplomats, born on foreign public ships, or born to enemy forces occupying the territory in wartime. Thus, they concluded that the phrase “subject to the jurisdiction thereof” referred to being required to abide by U.S. law, thereby granting U.S. citizenship to at least some children born of foreigners because they were born on American soil—a concept known as jus soli, or “right of soil”.

By contrast, the court’s dissenters argued that being subject to the jurisdiction of the U.S. meant not being subject to any foreign power—i.e. not being a citizen by another country, such as through jus sanguinis (“right of blood”), citizenship is granted only to anyone born to a citizen (this is the most common approach worldwide). This interpretation would exclude most children of foreigners, such as those whose parents were staying for a limited time, or who otherwise have no intention of becoming U.S. citizens. This foreshadowed the current debate about whether birthright citizenship should apply to children born to illegal immigrants.

However, the dissenters also cited racial and cultural reasons why Chinese, in particular, could not be full-fledged citizens, namely that Chinese law made renouncing one’s allegiance to the Emperor a capital crime. Of course, this assumed such allegiance mattered to one’s eligibility for U.S. citizenship: based on the two dissenters’ interpretation of jurisdiction, it does, since it means they are thus subject to a foreign power; but the other six justices rejected this argument, since they interpreted jurisdiction differently.

Wong’s victory was shocking given the widespread resentment and discrimination against Chinese, as evidenced by an act of Congress dedicated specifically to excluding them. An editorial in the San Francisco Chronicle published two days after the decision may have captured the prevailing reaction: namely that it would open the door to citizenship and voting rights to other undesirable peoples, such as Japanese and Native Americans; the editorial suggested that “it may become necessary … to amend the Federal Constitution and definitely limit citizenship to whites and blacks.”

In any event, the broad jus soli principle established by Wong Kim Ark has never been seriously questioned by the Supreme Court or any lower court, notwithstanding occasional Congressional attempts to pass a law or even ratify an amendment to restrict it. In the 1982 case Plyer v. Doe, the Supreme Court reaffirmed the broad view of the Citizenship Clause, ruling that illegal alien children are people “in any ordinary sense of the term,” and therefore had protection from discrimination unless a substantial state interest could be shown to justify it. Both the majority and the dissent agreed on the broad interpretation of the Citizenship Clause:

Texas officials had argued that illegal aliens were not “within the jurisdiction” of the state and thus could not claim protections under the Fourteenth Amendment. The court majority rejected this claim, finding instead that “no plausible distinction with respect to Fourteenth Amendment ‘jurisdiction’ can be drawn between resident immigrants whose entry into the United States was lawful, and resident immigrants whose entry was unlawful.”

The dissenting opinion also rejected this claim, agreeing with the Court that “the Equal Protection Clause of the Fourteenth Amendment applies to immigrants who, after their illegal entry into this country, are indeed physically ‘within the jurisdiction’ of a state.” The dissent simply concluded that the distinction the statute drew should survive an equal protection attack.

Nonetheless, legal scholars remain increasingly divided about Wong Kim Ark’s application to children born to illegal immigrants. One argument is that the jurisdiction of the U.S. requires a status of “full and complete jurisdiction” that naturally does not apply to foreign nationals who are in the country illegally. A counter-view is that because Wong’s parents were themselves not eligible for citizenship and other rights, their situation is very much like those of illegal immigrants. Scholars differ on the original intent of the Fourteenth Amendment, with some claiming the drafter never had in mind to permit unconditional jus soli citizenship, while others have found debates and conversations among the Senators involved suggesting that they did.

The Rights of Immigrants in the U.S.

How America treats foreigners, regardless of their legal status, is of supreme importance morally, politically, and even diplomatically. It speaks to our values, impacts our standing in the world, and may even influenced the way our own citizens are treated abroad. This is not a bleeding heart talking point, but the sober and matter-of-fact conclusion of the U.S. Supreme Court in Arizona v. U.S. (2012), as cited and recounted by the Fifth Circuit Court in Hernandez v. U.S. (2014): Continue reading

Happy 150th Anniversary to the Fourteenth Amendment

Today the Fourteenth Amendment to the U.S. Constitution turns 150; as it happens, it is the same day that President Donald Trump will nominate a new Supreme Court justice to replace Anthony Kennedy, whose three-decade tenure in the court included many refinements and defenses of the often-beleaguered and contentious amendment.

More from The Atlantic:

Ratified in 1868, the Fourteenth Amendment was originally intended to allow Congress and the courts to protect three fundamental values: racial equality, individual rights, and economic liberty. But the amendment was quickly eviscerated by the Court, and for nearly a century it protected economic liberty alone. Justice Kennedy embraced all three values of the Fourteenth Amendment, invoking it to protect reproductive autonomy and some forms of affirmative action, as well as to establish marriage equality, but also to limit federal economic regulations, such as the Affordable Care Act. His replacement will determine which vision of the amendment prevails for decades to come.

Of the five sections that make up the amendment, the one most often in contention is the first, which reads:

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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Given the context of its passage, this language is very significant, as The Atlantic again explains:

After the Civil War, many of the former Confederate states passed laws known as the “Black Codes,” which sharply limited the rights of former enslaved people. In response, on July 9, 1868, Congress ratified the Fourteenth Amendment, which guarantees equal protection under the law and also denies any state the right to deprive people of liberty without due process.

Only five years later, the Supreme Court eviscerated the amendment in the 5–4 Slaughterhouse Cases decision. As drafted by the Ohio congressman John Bingham, the amendment was intended to require states as well as the federal government to respect the fundamental liberties guaranteed by the Bill of Rights.

A decade later, in a lopsided 8–1 decision, the Court struck down the Civil Rights Act of 1875, which banned discrimination in public accommodations and transportation. Finally, in 1896, the Court upheld the doctrine of “separate but equal” in Plessy v. Ferguson, standing aside as the South constructed the Jim Crow regime. Justice John Marshall Harlan provided the only dissent. In one of the most famous passages in the history of Supreme Court opinions, he wrote: “There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful.”

At the same time that the Court turned away from the Framers’ vision of equal civil rights, it invoked the Fourteenth Amendment to protect economic liberties, such as freedom of contract. This period is remembered as the Lochner era, named after a 1905 decision striking down a maximum-hour law for bakers in New York. It culminated in decisions in the early 1930s that struck down the core of Franklin D. Roosevelt’s New Deal.

I remember learning a lot of this in my constitutional law class, and being quite surprised at how immediately resisted and controversial the amendment was, even to the courts. It is even more disconcerting to learn that it would be until fairly recently in American history that the Fourteenth Amendment was enacted as its framers ostensibly intended:

It wasn’t until Brown v. Board of Education in 1954 that the Court resurrected the Fourteenth Amendment’s promise of racial equality, overturning Plessy and attacking school segregation. It struck down state laws banning interracial marriage in Loving v. Virginia. And it upheld landmark civil-rights laws like the Civil Rights Act of 1964 and the Voting Rights Act of 1965. While the Court stopped short of guaranteeing equal funding for education, it did much to attack the jurisprudential foundation of Jim Crow.

At the same time, Chief Justice Earl Warren’s Court resurrected John Bingham’s vision of national enforcement of fundamental rights—most notably, by extending the protections of the Bill of Rights to the states, thereby safeguarding free speech, religious liberty, the right to counsel, and the right to be free of unreasonable searches and seizures.

More controversially, the Warren Court laid the foundation for rights not explicitly mentioned in the text of the Constitution, such as the right to privacy. In later years, the Supreme Court would build on these privacy decisions to issue decisions such as Roe v. Wade—which led to a conservative backlash against the Court.

These competing visions of economic liberty, racial equality, and personal autonomy came to a head in 1987. Justice Lewis Powell—the swing justice on Warren E. Burger’s Court—resigned. President Ronald Reagan, nearing the end of his second term, sought to place his enduring stamp on the Court by nominating the conservative legal intellectual Robert Bork. Following a bruising battle, the Senate rejected the Bork nomination, in part because he refused to recognize a constitutional right to privacy. When Anthony Kennedy embraced the right to privacy, the Senate unanimously confirmed him.

While perhaps not as well known as the first ten amendments enshrined as the Bill of Rights, the implications of the Fourteenth Amendment — and how it will be applied, broadened, or restricted — are vast, especially in light of the replacement of one of its greatest proponents.

With Kennedy leaving the Court, the future of this 150-year-old amendment is at stake. His successor will determine whether the Supreme Court interprets the amendment as allowing or prohibiting laws and policies regulating abortion, marriage, voting rights, and affirmative action. Also at stake are the scope of the Bill of Rights’ protections for free speech, gun rights, religious liberty, freedom from unreasonable government searches and seizures, and economic liberty. Strong constitutional arguments can be made for both sides of all these issues, and Justice Kennedy often held the decisive vote. His successor could determine the shape of the Fourteenth Amendment until its 200th anniversary in 2038.

What are your thoughts?

Interesting Read: Is the U.S. Constitution Too Sacred?

It is a debate as old as the United States itself: how should the Constitution, our seminal governing document, be treated? Should it be more flexible and easy to change — a “living document” — or should it remain fixed and difficult to alter, in favor of an “originalist” interpretation? An article in Aeon weighs in:

In effect, the amending clause contained in Article V says that any change, no matter how minor, must be approved by two-thirds of each house of Congress plus three-fourths of the states. This is daunting, certainly. But growing population disparities render it even more so since the three-fourths rule means that 13 states representing as little as 4.4 per cent of the population can veto any change sought by the remaining 95.6 percent of the population.

As a result, Americans have succeeded in modifying the Constitution only 17 times since ratification of the Bill of Rights in 1791. Since amendments tend to come in clumps during periods of exceptional turmoil, this means that decades can race by without any change at all. For instance, the US was constitutionally frozen for nearly 60 years prior to the Civil War, and then spent another 40 years in a constitutional deep-freeze during the Gilded Age that followed. Only one amendment, the 27th, concerning the scheduling of Congressional pay raises, has been approved since the civil-rights revolution of the 1960s and early ’70s, and that one was drafted in 1789 and then gathered dust in various state legislatures for more than two centuries. Excepting this unusual amendment, the present constitutional ice age could wind up outlasting the first.

Arguably, this Constitutional paralysis is the real source of American exceptionalism – not America’s military or economic clout, but its basic political structure, so unlike that of just about any other country on Earth. It’s certainly the source of its exceptional political psychology. One might think that Americans would be impatient with a Constitution that frustrates any and all efforts at reform, yet the response has been the opposite: instead of growing angry, people have reassured themselves over the years that immobility is all to the good because anything they do to change things can only make them worse. In effect, they’ve taken the old adage, ‘If it ain’t broke, don’t fix it,’ and turned it around. Since a fix is impossible due to the system’s deep-seated resistance to change, then it must not be broken at all. In fact, it must be perfect and therefore divinely inspired. And if the Constitution is divinely inspired, can the US be anything other than divinely inspired as well?

The Constitution is perfect because it’s impervious to change and vice versa. This is exceptional all right, as well as more than a bit odd. After all, cars, washing machines, and vacuum cleaners all run down from time to time, so why not the US machinery of government? Why should it be spared the usual wear and tear? This would seem to be the case especially given the news out of Washington these days about gridlock, high-wire negotiations, and government shutdowns. Surely, a government that periodically shuts its doors due to budget disputes between the executive and legislative branch can’t be said to be functioning up to snuff? In fact, it seems more and more dysfunctional. Yet everyone say it’s the greatest system on Earth. How can that be?

As you can tell from the excerpt, the article clearly takes a skeptical view of the Constitution’s “sacredness”, but I feel it is a thought-provoking read, and it does highlight some troubling trends that stem, at least to some degree, from the way the Constitution is applied and interpreted:

Since economic polarisation is a global phenomenon, a sclerotic 18th century Constitution can’t be entirely to blame. But an increasingly unrepresentative system obviously doesn’t help. Thanks to a Senate that gives equal representation to all 50 states even though the largest (California) is now some 65 times more populous than the smallest (Wyoming), U.S. government is arguably more undemocratic now than it was even in the 19th century.

In the 114th US Congress, 67.8 million people voted for senators who caucus with the Democratic Party, while 47.1 million voted for senators who caucus with the Republican Party. Yet those 67.8 million votes elected 46 senators while the 47.1 million votes elected 54 senators. Call this what you will, but representative it’s not. Thanks to a bizarre filibuster system that allows 41 senators (representing as little as 11 per cent of the population) to prevent any bill from reaching the floor, it has never been more unfair. Yet a fix is impossible. The results in the economic realm are all too obvious. While other countries have succeeded to a degree in bucking the trend toward financial oligopoly, the U.S. has given it free reign. The system continues tottering forward because no one is able to come up with a viable alternative.

Throughout my many college courses in political science and law, I came across a consistent theme: that the U.S. Constitution was deliberately designed to promote deadlock and create a high bar for laws to pass. The logic was that this would prevent the government from being swayed by one populist whim after another, while representatives would be forced to appeal to their higher nature by coming together rather than allow gridlock to transpire (incidentally, partisan politics — and for that matter actual political parties — were virtually nonexistent at the time of the nation’s founding).

But given the present circumstances, namely how much media, politics, and the wider world have changed, is this approach too dated, if not naive? Is it feasible to retain the Constitution’s strict approach to change? Has politics become so cynical and oligarchic as to render the status quo in law and elections abusive? Maybe the problem isn’t the Constitution, but the politicians, or perhaps the public…or perhaps all of the above?

I encourage you to read the rest of the article and share what you think? How should this document — and by extension American government and law — be treated?

Juan Linz’s Take on America’s Political Dysfunction

Though he recently passed away, the esteemed Yale political scientist has left us with prescient and concerning observations about the nature of America’s current political problems. Linz specialized in comparative government, determining why some nations do better at democracy than others. He saw the contrast between stable long-term democracies and dysfunctional coup-ridden ones as being driven more by structural problems that by culture or economic conditions.

As an article in Slate observes, his insight is both informative and relevant, beginning with his views as to why presidential systems seem more flawed than others:

The problem, according to Linz, is right there in the title: too much reliance on presidents. In Linz’s telling, successful democracies are governed by prime ministers who have the support of a majority coalition in parliament. Sometimes, as in the British Commonwealth or Sweden or post-Franco Spain, these prime ministers are formally subordinate to a monarch. Other times, as in Germany or Israel or Ireland, there is a largely ceremonial, nonhereditary president who serves as head of state. But in either case, governing authority vests in a prime minister and a cabinet whose authority derives directly from majority support in parliament.

When such a prime minister loses his parliamentary majority, a crisis ensues. Either the parties in parliament must negotiate a new governing coalition and a new cabinet, or else a new election is held. If necessary, the new election will lead to a new parliament and a new coalition. These parliamentary systems are sometimes very stable (see the United Kingdom or Germany) and sometimes quite chaotic (see Israel or Italy), but in either case, persistent legislative disagreement leads directly to new voting.

In a presidential system, by contrast, the president and the congress are elected separately and yet must govern concurrently. If they disagree, they simply disagree. They can point fingers and wave poll results and stomp their feet and talk about “mandates,” but the fact remains that both parties to the dispute won office fair and square. As Linz wrote in his 1990 paper “The Perils of Presidentialism,” when conflict breaks out in such a system, “there is no democratic principle on the basis of which it can be resolved, and the mechanisms the constitution might provide are likely to prove too complicated and aridly legalistic to be of much force in the eyes of the electorate.” That’s when the military comes out of the barracks, to resolve the conflict on the basis of something—nationalism, security, pure force—other than democracy.

But what about the United States, the world’s first and oldest continuous democracy, which has retained a presidential system from the start? It would seem to poke holes in Linz’s analysis, and indeed he argued that America was something of an outlier for unique reasons:

The success of American democracy seemed to show that institutions were not the key. Old-fashioned Anglophone pluck and liberal values triumphed under both presidential and parliamentary systems. If something was going wrong south of the border, blame some aspect of Latin culture or economic development. But Linz always did have an answer to this objection. In the 1990 paper, he said that a full explanation of America’s success was complicated, but that “it is worth noting that the uniquely diffuse character of American political parties—which, ironically, exasperates many American political scientists and leads them to call for responsible, ideologically disciplined parties—has something to do with it.”

That was 23 years ago. Today, of course, we have ideologically disciplined parties that are “responsible” in the sense that they make a serious effort to deliver on their stated policy agendas. We also have a government shutdown, a looming debt ceiling breach, and a country in which regular order budgeting is an increasingly distant memory.

Indeed, it’s worth remembering that the Civil War was precipitated largely by the inability of political parties to compromise on the issue of slavery — it took an all out war to resolve the problem that our institutions could not. This is partly because our representative system lends disproportionate weight to smaller states, which is also why the expansion of civil rights was such a difficult and piecemeal process (since a minority of Southern senators could filibuster any such effort).

While it’s very unlikely that the US will succumb to a another civil war, let alone a military coup, this vulnerability to deadlock does seem likely to continue haunting us.

…Linz’s work raises the deeper question not of what will happen next week or next month, but next year or next decade. In a world with well-sorted parties and little ticket-splitting, the geography-driven differences in voting results for the House, Senate, and president are going to lead to persistent conflicts, in which both sides feel they have an electoral mandate to stand firm and there’s no systematic way to resolve the issue. That’s very bad news for America, and nobody knows how to stop it.

Indeed, our constitutional system was predicated on the idea that the virtue and integrity of our politicians would make effective governance possible, whatever the hurdles. The checks and balances written into our government were designed to be challenging, forcing representatives to be pragmatic and cooperative — or else. Thus it depended — and still depends — on the character of each individual public servant. As with any political system, without virtue, there is bad government. The problem is that our system depends far more on it than others, which is why we find ourselves in this troubling predicament.

But that’s just my interpretation. What are your thoughts?

Canada’s Charter of Rights: A Global Model

This past Tuesday, thirty years ago, Canada signed the Charter of Rights and Freedoms, their equivalent to the American Bill of Rights. They were the first nation in the British Commonwealth to establish such rights, solidifying one and for all their status as an independence.

But not only was the Charter a landmark for Canadian identity and political development: it’s apparently become a model to nations across the globe, superseding even the much-vaunted US Constitution. According to theGlobal Mail:

Both the Charter itself and the nation that gave birth to it serve as an example to the world. “Some countries may be especially prone to borrow from the Canadian Charter of Rights and Freedoms because they perceive themselves as sharing the same goals and values as Canadian society,” write David S. Law, who is professor of law at Washington University in St. Louis, and Mila Versteeg, who teaches law at University of Virginia.

In contrast, professors Law and Versteeg conclude that the American constitution, once the foundational document for new nations in search of a government, has fallen out of favour. It fails to protect rights, such as freedom from discrimination based on race or sex, that are considered fundamental in our time; it enshrines rights, such as the right to bear arms, that other nations don’t value; its courts increasingly interpret the American document so perversely – by claiming that it must only be applied as the founding fathers originally intended – as to render it useless as a tool for tackling modern problems.

The Charter of Rights and Freedoms not only prohibits discrimination based on race or gender, it protects mobility and language rights and enshrines the presumption of innocence. It balances the rights of legislatures and courts through the “notwithstanding” clause, which gives the federal and provincial parliaments limited powers to override court decisions.

Indeed, the Constitution has been little-changed, relatively speaking, since its creation. In fact, we’re the only developed democracy that still relies on an 18th century document to ground our political and legal systems. And because of both procedural hurdles and growing political polarization, it’s unlikely that our Constitution will be brought up to speed any time soon. Even our comparatively more astute judicial system seems lacking:

Beyond the Charter itself, the Canadian Supreme Court is considered an exemplar in balancing constitutional and legislative powers, a role the American Supreme Court lost entirely after Republicans and Democrats turned it into an ideological battleground.

“The Charter is widely admired, and so are the decisions of the Canadian court,” observes Peter Hogg, one of Canada’s foremost constitutional authorities. “And one reason is that Canada is not the United States.”

The U.S. study, which offers a meticulous comparison of how constitutions around the world reflect and influence each other, leads the authors to conclude that “other common-law countries are looking either directly or indirectly at the Charter,” as they draft and amend their own constitutions, Prof. Law explained in an interview Sunday.

“Overall, the evolution of global constitutionalism has tilted more toward the mild-mannered country to the north than its superpower neighbour to the south,” the report concludes.

Canada’s CBC news also reported on this trendsetting, citing the same study (albeit with more detail):

One chapter — “Is Canada a constitutional superpower?” — says that “among common law countries, Canada has served as a constitutional trendsetter.”

To reach this conclusion the authors analyzed 729 constitutions drafted between 1946 and 2006 and found that the U.S. Constitution, the oldest national constitution still in force, “no longer serves as the primary source of inspiration for constitution-making.”

Their findings are consistent with the work of other scholars about the Canadian charter’s significant global impact. It has been described as the leading influence on Israel’s basic laws and the bill of rights of Hong Kong, South Africa and New Zealand.However, they also found that, “from the enactment of the Bill of Rights in 1960 through the dawn of the 1980s, the overall global constitutional trend was one of increasing similarity to the Canadian constitution.”

Another study found that “the decisions of Canadian courts are cited by New Zealand judges far more than those from any other jurisdiction.”

The article goes on to note how Egypt, by the advice of a US Supreme Court justice, is looking to Canada’s constitution as it works on drafting its own. Israel and South Africa did the same, with the latter citing the Charter’s superior enshrinement of minority rights, especially of ethnic groups and women.

Indeed, the Charter officially defines Canada as a multicultural nation, and places an explicit emphasis on equality of the law. Freedom of expression is actually stronger in the Charter than in the Bill of Rights, such that certain acts not protected by the US First Amendment are accepted in Canada.

But is this fair to the US Constitution? After all, it did inspire its Canadian counterpart, and in practice both countries courts reach similar conclusions from similar cases. What are some of the pros and cons of each nation’s supreme legal document?

(In fairness, the Charter isn’t without detractors from both sides of political spectrum, although that could be said of any constitution of any country).

Senates Votes to Restrict Civil Liberties

Yesterday, the Senate passed the National Defense Authorization Act for 2012, which includes a nakedly unconstitutional provision that give the military power to indefinitely detain anyone deemed a national security threat without evidence or trial. They also rejected the Udall Amendment, which would have removed this part of the bill, by a wide margin of 61 to 37.

Interestingly, nearly all Republicans – the same people who drape themselves in the American flag, revere the constitution as sacred, and shrilly claim to be pro-small government – supported this effort, along with 16 Democrats. I find their justification to be laughable.

 ‎”The enemy is all over the world. Here at home. And when people take up arms against the United States and [are] captured within the United States, why should we not be able to use our military and intelligence community to question that person as to what they know about enemy activity?” Sen. Lindsey Graham (R-S.C.) said.

“They should not be read their Miranda Rights. They should not be given a lawyer,” Graham said. “They should be held humanely in military custody and interrogated about why they joined al Qaeda and what they were going to do to all of us.”

Indeed Mr. Graham – presumably one of our more moderate conservatives – but that’s assuming there is even proof that they are terrorists to begin with – that little bit of legal tradition that presumes innocence until *proven* guilty. How would we know the right people are being detained if there is no legal due process? Are we to take the military’s word for it? Where’s the incentive to make legitimate case for detainment if there is no limit to how long someone is held in custody without formal charges?

The problem is that many conservatives revere our military to the point of trusting it’s judgment without any real oversight. But the military is like any other institution – prone to corruption, bureaucracy, and mistakes. That is why our system is so complexly designed with numerous checks and balances and procedural safeguards. Our national security apparatus isn’t even suited for matters of law – that’s what our judicial system is for.

If anyone is curious about who supported these disquieting measures, check this list and feel free to contact them accordingly. Only two Republicans, including the libertarian Rand Paul, son of Ron, voted against the provision. The great state of Florida, where I live, was an even split: our senior Democratic senator Bill Nelson was rightly opposed to the measure, while our junior Republican senator Marco Rubio supported it (some may note the irony of a Cuban-American showing approval of such draconian measures).

Thankfully, the White House has expressed its disapproval and presumably intends to block this measure (not that it hasn’t engaged in its own legally questionable acts – recall the assassination of US citizen Anwar al-Awlaki, to name but one known example). Even if this struck down, the fact that our representatives would even go through with this bodes ill for the integrity of an already increasingly eroded democratic system. Given the sad historical precedent, there’s little doubt that we’ll be seeing more efforts like this in the future.

Evangelical School Funded By Taxpayer Money

I’ve always said that government is only bad insofar as it doesn’t work for your self-interests. Very often, people only rally against the parts that don’t benefit them, while betraying their principles and happily using big government for their own causes.

We saw this when conservatives were largely silent during Bush’s eight years of largess, only to be up in arms once the other side took the mantle of heavy spending; and we see it with liberals who decried Bush’s concentration of power to the executive branch, at the expense of our civil liberties, only to look with other way as Obama has continued – and even intensified – these same policies.

And so it is with the religious conservatives of Liberty U, whom, like many on the right, drape themselves with the American flag, maintain visceral hostility to government, and seem to hold the constitution to be the most sacred written work after the Bible.

For those who don’t know, Liberty U is one of the largest private universities in the country, and perhaps the single largest Evangelical Christian one. It was founded by the late Jerry Falwell, who was infamous for controversial and intolerant beliefs, and was a major figure among the Christian Right (if not one of it’s principle founders). He was also highly critical of government, while his flagship university is ironically propped up by it – to the tune of nearly half-a-billion dollars.

During the last fiscal year alone, Liberty received about $445 million in federal financial aid money, according to the U.S. Department of Education. Over the past few years, Liberty University has raked in so much taxpayer money from the federal government that is now ranked among the top ten universities in the United States receiving federal dollars. It is also Virginia’s top recipient of federal money.

In a 2009 piece for RH Reality Check titled, “Why is the Federal Government Supporting Evangelism?” Eleanor J. Bader pointed out that LU’s [Jesse] Helms School of Government “crows that it turns out ‘Christ-centered leaders, able to apply God’s word in every area of life.’ What’s more, LU’s webpage showcases its mission, promising students an ‘action-oriented curriculum dedicated to world evangelism and repudiation of political correctness.’

“Not sure what that means? The site explains: ‘A strong commitment to political conservatism, total rejection of socialism, and firm support for America’s economic system of free enterprise.'”

Since it doesn’t get much more religiously oriented than Liberty University, a fair question to ask is: Should a private sectarian institution be receiving federal funds?

“The short answer is that it would be difficult — if not impossible — to challenge the government grants going to Liberty students,” Rob Boston, Senior Policy Analyst with Americans United, told me in an e-mail exchange. “This can be difficult area of the law. The Supreme Court has always been more lax on aid to religious colleges than it has been on aid to secondary schools. In years past, the court has held that tax aid cannot go to institutions deemed ‘pervasively sectarian’ but that such aid was permissible for those schools that were judged to be ‘religiously affiliated.’ This test has begun to erode at the high court, however, under the conservative majority. Complicating the matter is that the fact that many conservative legal scholars argue that Pell Grants are actually aid to the student, not the school — an argument that has been embraced by the Supreme Court’s conservative bloc.”

Keep in mind that NPR, which the GOP was very riled up about de-funding, took in a little less than $3 million dollars in federal dollars as of 2010. Indeed, there are plenty of cash-strapped social programs or public schools that could certainly use just a third of all that money, yet we see their budgets getting readily slashed, while little to no acknowledgement is made of LU’s egregious absorption of public funds.

So aside from being constitutionally specious – given the long established separation of church and state, it’s rather wasteful: this is a school that teaches Young Earth Creationism and churns out ultra-conservatives that go on to condemn gays and continue the contempt for the very government that funded their education.

Granted, as was pointed out in an article in Salon, this money isn’t necessarily going to the school itself but to it’s students, through Pell Grants.

That massive sum was thanks to the growth of Liberty’s online program, which enrolled 52,000 students last year. The school is the No. 1 recipient of Pell grant money in the state of Virginia. While it may seem like the federal government is basically subsidizing this formerly financially challenged ultra-conservative religious private school, LU’s executive director of financial aid sees it differently:

For Ritz — a financial aid veteran who got his start at a small Bible college — Liberty’s use of federal financial aid does not run counter to the university’s conservative values. Liberty does not receive the federal money directly, Ritz said, but through students, who use it to pay for tuition, room and board and other expenses.

“These funds are authorized by Congress and Congress is elected by voters. . . I’ve always been in the position where I believe I’m a steward of those federal funds. I’m a steward of tax-payer money.”

And I’m sure ACORN, Planned Parenthood and NPR feel the same way.

So for the sake of fairness, maybe it is a gray area (though I disagree with it). What say you all? I for one can’t help but find this interesting in light of Liberty U’s main mission statement, which I’ll reiterate here:

A strong commitment to political conservatism, total rejection of socialism, and firm support for America’s economic system of free enterprise.

You don’t say. Where do Pell Grants fit into the idea of free enterprise? For a longer, though more leftist and angry rant, feel free to check out another take on this.