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by Mia T, 01.28.06 
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CROOKS
PARDONING CROOKS PARDONING CROOKS:
10/19/00
1:10 p.m. By
Mark R. Levin, president of the Landmark Legal
Foundation It's now
official: Hillary Clinton, like her impeached
husband, is a liar. The Special
Division of the Court of Appeals for the District
of Columbia, which oversees the Office of the
Independent Counsel (OIC), released yesterday the
final investigative report on Hillary Clinton's
role in the firing of the White House Travel Office
staff. Independent Counsel (IC) Robert Ray
concluded that Mrs. Clinton (that would be
"Hillary!" for those familiar with her campaign
bumper stickers) gave "factually inaccurate" sworn
testimony when she tried to conceal her role in the
scandal. Let's recall
a few facts. Billy Dale, the longtime career
supervisor of the Travel Office, and his staff were
not only fired abruptly when the Clintonoids took
control of the White House, but several of them,
including Dale, were thereafter audited by the IRS.
Moreover, Dale was prosecuted by the
always-diligent attorney general, Janet Reno, on
trumped up charges of financial wrongdoing, for
which he was acquitted in 90 minutes by a jury of
his peers. And why was
this relatively insignificant office, and these
low-level worker bees, put upon by the White House
and federal law enforcement? Well, the Clintons'
good friend and supporter, Hollywood's Harry
Thomason, was a partner in TRM, Inc. Both had an
interest in securing some of the White House's air
charter business, but Dale had no interest in doing
business with them. Thereafter, the White House
suddenly unleashed an audit of the office, followed
by White House allegations of crimes. Next, the FBI
was ordered to conduct a criminal investigation.
The lives and careers of the Travel Office civil
servants were all but destroyed. Those of us
who have done our own research of the Travel Office
scandal have known for years that Hillary! was the
moving force behind this hideous act. The evidence
was overwhelming, including the contemporaneous
notes of the late White House deputy counsel
Vincent Foster, a memorandum prepared by former
White House assistant David Watkins, and statements
by former White House chief of staff Mack McLarty
-- all of which demonstrated that Hillary! was
pushing, and pushing hard, to oust immediately the
Travel Office staff by whatever means. Yet, in a
sworn deposition, when Hillary! was asked if she
had any role in the firings, she told
investigators: "No, I did not." IC Ray is
wrong. Hillary's! statements were more than
"factually inaccurate." They were blatant,
premeditated lies intended to conceal her role and
deceive prosecutors. Like her husband, she perjured
herself and obstructed justice. Unfortunately, when
the White House succeeds in intimidating the IC --
where the prosecutor himself is forced to adopt
Clinton-like language to evade his responsibility,
i.e., to indict -- great damage is inflicted on the
rule of law and the public's faith in the criminal
justice system. Despite the
fact that Hillary! wasn't charged criminally, there
can be no question that she's a liar. The jury was
out before this report was released
yesterday. January 8, 1996 By WILLIAM
SAFIRE Drip by drip, like Whitewater
torture, the case is being made that she is
compelled to mislead, and to ensnare her
subordinates and friends in a web of
deceit. 1. Remember the story she
told about studying The Wall Street Journal to
explain her 10,000 percent profit in 1979 commodity
trading? We now know that was a lie told to turn
aside accusations that as the Governor's wife she
profited corruptly, her account being run by a
lawyer for state poultry interests through a
disreputable broker. She lied for good reason: To
admit otherwise would be to confess taking, and
paying taxes on, what some think amounted to a
$100,000 bribe. 2. The abuse of Presidential
power known as Travelgate elicited another series
of lies.... 3. In the aftermath of the
apparent suicide of her former partner and closest
confidant, White House Deputy Counsel Vincent
Foster... [h]er closest friends and aides,
under oath, have been blatantly disremembering this
likely obstruction of justice, and may have to pay
for supporting Hillary's lie with jail
terms. Again, the lying was not
irrational. Investigators believe that damning
records from the Rose Law Firm, wrongfully kept in
Vincent Foster's White House office, were spirited
out in the dead of night and hidden from the law
for two years -- in Hillary's closet... The records show Hillary
Clinton was lying when she denied actively
representing a criminal enterprise known as the
Madison S.& L., and indicate she may have
conspired with Web Hubbell's father-in-law to make
a sham land deal that cost taxpayers $3 million...
By concealing the Madison
billing records two days beyond the statute of
limitations, Hillary evaded a civil suit by
bamboozled bank regulators.... "Why didn't she just come
clean at the beginning?" She had good reasons to
lie; she is in the longtime habit of lying; and she
has never been called to account for lying herself
or in suborning lying in her aides and
friends.... excerpt Hillary is Above
the Law Right after the New York
Times advised the voters in New York to elect
Hillary Clinton to the Senate, William Safire, the
paper's lone conservative columnist, wrote a
searing column about the first lady exposing her as
"a habitual prevaricator." This was inspired by the
release of Independent Counsel Robert Ray's report
on the Travelgate scandal. We commented on this
last June when Ray submitted the report the
judicial panel that appointed him and disclosed its
findings. Hillary Clinton had said
under oath that she played no role in the decision
to fire the White House Travel Office staff. Safire
in his column posed four basic questions: Was her
testimony that she played no role in the firings
false? Did she pressure White House aides into
starting an FBI investigation of the Travel Office
staff? Did this result in the Justice Department
bringing criminal charges against people found to
be innocent? Did she and her minions impede and
increase the cost of the investigation of her
involvement? Safire
said the answer to each of those questions is
yes. Travelgate involved the
firing of seven career White House employees with
unblemished reputations. They were all indicted for
embezzlement, but not one was convicted. The
Justice Department subjected Billy Dale, the head
of the office, to a trial even though its case was
so weak that it took the jury less than half an
hour to find him not guilty. The IRS then audited
him, but it found nothing wrong. Thanks to Hillary
Clinton, Billy Dale's family suffered three years
of torment and incurred a crushing financial
burden. Robert Ray's report says that
there is overwhelming evidence that Hillary Clinton
played a role in firing Billy Dale and his staff
and that her sworn statement to the contrary was
false. That means that she committed perjury, a
crime for which many people have been sentenced to
prison. The House Committee on Government Reform
and Oversight report on Travelgate said, "A
recurring question arises...whether the First Lady
is above the law." Robert Ray has answered that
question. Despite Hillary's blatant lies, he sought
no indictment because he didn't think he would be
able to convince a jury beyond a reasonable doubt
that she had committed perjury. He even said she
was entitled to a presumption of innocence because
she had not been convicted. Billy Dale, who was
prosecuted even thought there was no evidence that
he had committed any crime, has commented,
"Everyone, especially Robert Ray, knows Hillary
Clinton lied under oath.... (He) would not
prosecute her simply because of a fear of what a
Washington, D.C. jury might do." Independent Counsel Donald
Smaltz could not get a predominantly black jury in
Washington to convict Mike Espy, the former
secretary of agriculture, of accepting bribes, but
having convicted whites of giving Espy bribes, it
would have been racist not to try Espy, who is
black. There was far more reason to insist that
Hillary Clinton stand trial. But instead of making
that point, the editors of the New York Times
recommend sending her to the United States
Senate. Reed Irvine is the former
Chairman of Accuracy In Media and Cliff Kincaid is
the Editor of the AIM Report. For Immediate
Release Mar 6, 2002 Contact: Press
Office 202-646-5188 INDEPENDENT
COUNSEL RAY "TAKES A DIVE" ON CLINTON
INVESTIGATION Despite "Sufficient Evidence"
to Indict Clinton, OIC Ray Fails to Seek Justice
and Follow the Law Ray's Political Ambitions In
NJ Likely to Have Influenced
Investigation (Washington, DC) Judicial
Watch, the public interest law firm that
investigates and prosecutes government corruption,
stated today that it condemns the abysmally poor
investigative efforts of Independent Counsel Robert
Ray as documented in his final report concerning
the criminal activities of former President
Clinton. Ray and Clinton's attorneys
cut a deal on the former president's next-to-last
day in office that required Clinton to admit he had
made false statements under oath about his
relationship with former White House intern Monica
Lewinsky and surrendered his law license for five
years. Ray's final report states
that, "The independent counsel's judgment that
sufficient evidence existed to prosecute President
Clinton was confirmed by President Clinton's
admissions," the report continues. "President
Clinton admitted he 'knowingly gave evasive and
misleading answers'" about his sexual relationship
with Ms. Lewinsky. Independent Counsel Ray and
his staff never bothered to examine the millions of
White House e-mail, uncovered by Judicial Watch in
its litigation over the Clintons' illegal abuse of
FBI files, known as "Filegate." Witnesses that
offered additional, corroborative testimony, on a
wide range of matters, to the Independent Counsel's
office, such as Linda Tripp, were never
re-contacted and interviewed. Ray's efforts were,
at best, incomplete. We now know why he wanted to
shut down his investigations &endash; so he could
run for the U.S. Senate, as recently
reported. "Ray's failure to bring
criminal charges against former President Clinton,
his wife, the junior Senator from New York, Hillary
Clinton, and the rest of their henchmen is an
enormous miscarriage of justice," stated Judicial
Watch Chairman and General Counsel Larry Klayman.
"Ray is busy trying to be the Republican Senatorial
candidate in New Jersey. He never intended to seek
true justice, because that might tarnish his
political prospects. The real tragedy is that we
can expect absolutely no follow-up by the Ashcroft
Justice Department on a host of Clinton era
criminal activity. For our part, Judicial Watch has
over 80 cases against the Clintons and their
underlings, and we intend to bring them to
justice." added Klayman. Judicial Watch has filed an
ethics complaint against Ray for his candidacy to
the U.S. Senate while serving as Independent
Counsel. See: http://www.judicialwatch.org/cases/84/raycomp.htm © Copyright 1997-2004,
Judicial Watch, Inc. But
the obsessively perfectionistic dodo
wasn't able to fake even one wrong answer
in the Letterman phony "pop quiz," a
nostalgic electuary of "Twenty-One" fraud
and (Groucho) Marxist left-wing
crow. Instead,
this documented incompetent with no
apparent creative or analytic (not to
mention thespian) skills gushed forth with
a lame--"It's the bluebird--I know that"
--globally exposing herself to be the
corrupt clown that the sentient among us
already know she is. It
is no accident--and the Sheehy hagiography
notwithstanding, it is certainly not
because of any patriarchal society--that
this reflexive kleptocrat never sought
office. She never ran simply because she
is a perfectionist and an incompetent who
cannot tolerate personal (as opposed to
bill-related) criticism, witness the
prescreened, heavily controlled,
sycophantic crowds, her pre-programmed,
totally scripted appearances (or,
alternatively, her totally mute "listening
tour"), her unavailability to the press,
indeed, her "bluebird." Thus,
the question begging to be asked is
this: Why
would this compulsively perfectionistic
grotesquerie allow herself to be
unambiguously exposed as the utter
incompetent and fraud and fool and horror
that she is? And
why would this self-proclaimed protector
of "the children" prolong her own child's
profound trauma by forcing her own
bottom-heavy self, soiled in its own
right, onto the political
stage? The
answer, I believe, resides more in liberty
loss than in power gain. Simply
put, she is not running for office; she is
running from indictment. And
I fear Starr successor, Robert Ray, is
unable to catch her... Ray's
recent statement , " I have been charged
with responsibly conducting the work of
this office. Some of my responsibility is
to ensure that there is no untoward effect
on the political process," both confirms
and encourages this latest round of
clinton raping, pillaging, despoiling,
destroying. Will
this nightmare never end? |
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KnowNothing's brother,
Hugh Rodham, secured two of the 141 clinton midnight
pardons, one for a cocaine kingpin and the other for a
snake-oil swindler. Rodham netted a quick $400,000 for his
"work" according to various rodhams and clintons and their
assorted lawyers. KnowNothing's campaign treasurer, William
Cunningham III, himself a law partner of longtime
KnowNothing adviser Harold Ickes,
helped obtain last-minute pardons for two convicted
felons. LA FAMIGLIA Displaying a willingness to throw her brother (along with her husband) to the wolves, Sen. Victim Clinton was quick to make a distinction between her big, bad brother's pardon "work" and that of her campaign treasurer, "a fine lawyer and a fine man." The "family" connection of brother Rodham to Clinton rendered Rodham's "work" offensive, whereas the campaign treasurer Cunningham's connection to the senator and her campaign coffers made his securing of two pardons in record time a sterling example of highminded, effective public service. KnowNothing has
apparently not thought this thing through. If the "family"
connection makes lobbying for cocaine-kingpin and
snake-oil-swindler pardons unsavory for brother Rodham, then
the "family" connection makes lobbying for the Hasidim 4
(see Keating 5) pardons even more distasteful for the
wife, First Lady and senator-elect. Moreover, pardons for
votes is arguably a greater offense than pardons for
cash. EFFECTIVELY PLEADS FIFTH BY INVOKING SPOUSAL PRIVILEGE KnowNothing specifically declined to answer when asked whether she discussed the pardons with her husband, effectively pleading the fifth. Turning aside questions about the pardon decisions her husband had made, she told reporters they should address those issues with him and his staff. She refused to say whether he should agree to appear voluntarily before congressional committees investigating the pardons. Interestingly, no one asked her whether she would agree to appear voluntarily before those same congressional committees. I DIDN'T HAVE SEX WITH THAT PARDON "I did not have any involvement in the pardons that were granted or not granted," insisted Sen. KnowNothing, seeming to forget her presence at the New-Square/Oval-Office schmooze that secured pardons for the four Hasidic felons who set up a phony school in Brooklyn to swindle the government out of millions intended for the poor.
KnowNothing noted that
her"best memory" was that she never spoke to her brother or
to Mr. Cunningham about the pardons. With variations of "I
don't have a memory" and "my best memory, and avoiding the
more obvious "I don't recall" and "my best recollection,"
KnowNothing reprised the Ruffian standard used during the
clinton years to commit perjury without penalty. I GET LETTERS ...or more precisely, envelopes. During her denials of involvement in any of the pardons, KnowNothing made the curious claim: "People handed me envelopes, I passed them on [and never opened a single one. Honest.]"
Reprising the role of victim that enabled her to win a senate seat in spite of low poll numbers, high personal negatives and consistent public failures, the senator peppered her answers about big, bad Hugh (understanding that the subtext was big, bad Bill) with "saddened" and "disappointed" and "heartbroken" and "shocked." UTTER CONTEMPT FOR THE PEOPLE This session today was cut short by a staffer when reporters appeared dissatisfied by Senator KnowNothing's lack of candor. In the end, this press conference full of poses, poll-tested phrases and prevarication was just another display of the clintons' utter contempt for the people. Bill Clinton committed the same error last Sunday in his shameless, lie-filled New York Times Pardongate Apologia. The clintons'
fundamental error: They are too arrogant and dim-witted to
understand that the demagogic process in this fiberoptic age
isn't about counting spun heads; it's about not discounting
circumambient brains. |
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REDACTION LOOPHOLE: ACCESS TO THE BARRETT REPORT
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STALINIST RISING? 1
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There are a lot of ways to make a man's death look like an accident, suicide or a street crime. That wasn't the intent of whoever murdered former KGB agent Alexander Litvinenko in London. By using such an exotic murder weapon—a radioactive isotope known as polonium-210—his killers sent a message: Don't mess with the powers that be in Russia. Max Boot |
NEO-STALINIST
hillary clinton is our Putin.
To get a glimpse of her Stalinist proclivities, one need only go back to 2 July 2006. As the country prepared to celebrate its independence, missus clinton was applying the jackboot. Stealthily, almost subliminally.
It was clinton's response (by proxy (how else?)) to what was plainly in the field... and what was doubtless in her internal polls: Big problems ahead for the quondam shoo-in. The 'dump hillary' movement within the Democratic Party was getting traction.3, 4
She dispatched longtime clinton operatives, James Carville and Mark J. Penn, to the Washington Post to prop her up yet one more time. The Post Carville-Penn apologia was full of the usual clinton poses, poll-tested phrases and prevarication, but that was not the real story. The real story was the headline: 'The Power of Hillary.'
'The Power of Hillary' had the whiff of raw FBI files and IRS audits. It had the stink of the clinton jackboot.
The message was clear: Be advised! Try to dump hillary and hillary will, quite simply, crush you.
As with Putin and other Stalinists, missus clinton's functional assassination weapons of choice are drummed up charges of tax evasion and character assassination, 9 not necessarily in that order.
The Barrett Report, paid for by The People and redacted by the DC mutual protection racket writ large—which is also, we note (and will remember), paid for by The People—documents the clintons' abuse of the IRS and other clinton abuses of power that were—and still are—routinely used to silence clinton critics.
FAKE OUT
If functional assassination is a clinton staple, the reputation for assassination-in-fact is the clinton coup de grâce.
To make sure their repulation always precedes them, the clintons never miss an opportunity to spread the rumors around themselves. By repeating every allegation of clinton murder and mayhem—while affecting an incredulous air, of course—the clintons intimidate and silence their critics even as they marginalize the enemy.
The outrageousness of the clintons' crimes, actual and apparent, will always work to the clintons' advantage, making the disabling of these flagrant psychopaths all the more challenging.
But disable them we must.
For the children.
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December 7, 1941+64 RE: a not-so-modest proposal concerning hillary clinton
The context of our concern today--regardless of political affiliation--is Iraq and The War on Terror, but the larger fear is that our democracy may not survive. We have the requisite machines, power and know-how to defeat the enemy in Iraq and elsewhere, but do we have the will? In particular, do we have the will to identify and defeat the enemy in our midst? Answerable to no one, heir apparent in her own mind, self-serving in the extreme, hillary clinton incarnates this insidious new threat to our survival. What we decide to do about missus clinton will tell us much about what awaits us in these perilous new times. COMPLETE LETTER |
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ON
WARRANTLESS SEARCHES AND
WIRETAPS:
"Prominent
Democrats in Congress have spent much of the
last decade in a campaign to suppress
Barrett's report," columnist Robert Novak
reported yesterday. "Its disclosures could
dig deeply into concealed Clinton
administration scandals." Notes
Fox News Radio's Tony Snow: "By all accounts,
the 400-page Barrett report is a bombshell,
capable possibly of wiping out Hillary Rodham
Clinton's presidential prospects. At the very
least, it would bring to public attention a
scandal that would make the Valerie Plame
affair vanish into comical
insignificance." When
he launched his probe in 1994, Mr. Barrett's
initial focus was former Clinton Housing
Secretary Henry Cisneros. But his
investigation quickly zeroed in on
allegations that the Clintons were using the
IRS to persecute their political enemies -
including scandal witnesses against
them. Reports
Novak: "An IRS whistleblower told Barrett of
an unprecedented coverup. The informant said
a regional IRS official had formulated a new
rule enabling him to transfer an
investigation of Cisneros to Washington to be
buried by the Justice Department. Barrett's
investigators found Lee Radek, head of
Justice's public integrity office, determined
to protect President Bill
Clinton." Though
the Clinton White House dismissed it as
"coincidental," one witness after another
against the then-first couple found
themselves under IRS scrutiny - with a
particular focus on Mr. Clinton's female
accusers. Before
the 1990's were over, Gennifer Flowers, Paula
Jones, Juanita Broddrick and Elizabeth Ward
Gracen had all been targeted by audits. Mrs.
Jones, whose sexual harassment lawsuit led to
Mr. Clinton's impeachment, even had her
confidential tax returns leaked to the press
in 1997. At
the time of the Jones audit, Clinton press
secretary Mike McCurry insisted that it was
crazy to suspect any political
connection. "We
may do dumb things from time to time," he
told reporters, "but we're not certifiably
insane." Advance
word on the Barrett report, however, suggests
suspicions at the time were right on the mark
- and that would mean that the Clinton White
House had perpetrated one of the worst abuses
of power in presidential history. Hillary
is said to be particularly vulnerable to the
Barrett report's exposure, since her old
college chum, Margaret Milner Richardson, ran
the IRS at the time. But
Novak reports that "hardly any of Barrett's
allegations will remain" in the report when
the final version is released, thanks to
maneuvering by Senate Democrats - despite a
previous agreement to the
contrary. Longtime
IRS critic Sen. Charles Grassley had hammered
out a deal with Sen. Byron Dorgan to amend a
Treasury appropriations bill that would have
closed down Barrett's office - as long as
"all portions of the final report" were made
public. But
the Senate-House appropriations conference
slipped through a critical change that
authorized the three judge panel overseeing
Barrett's probe to keep most of his findings
under wraps. Sen.
Grassley, says Novak, is the last hope to get
critical information that could change the
course of the next presidential race into the
public domain. "A
stubborn Iowa farmer who often drives the
White House and Republican leaders to
distraction, he has said that if the Barrett
report finally emerges as a mutilated remnant
in order to protect the IRS, he will press
for legislation to change that." Report
Could Torpedo Hillary Clinton's Prez
Plans |
Cato Policy Analysis No.
271 March 31, 1997 Timothy Lynch is assistant director of
the Cato Institute's Center for Constitutional
Studies. President Clinton recently put his
hand on the Bible and swore an oath to "preserve, protect
and defend the Constitution of the United States." He took
the same oath in January 1993. As the president embarks on
his second term in office, it is an appropriate time to
review his record thus far to see how well he has defended
our Constitution. Although President Clinton has
expressed support for an "expansive" view of the
Constitution and the Bill of Rights, he has actually
weakened a number of fundamental guarantees, including those
of free speech and the right to trial by jury and that
against double jeopardy. He has also supported retroactive
taxes, gun control, and warrantless searches and seizures.
The president's legal team is constantly pushing for
judicial rulings that will sanction expansions of federal
power. The Clinton White House has, for example, supported
the federalization of health care, crime fighting,
environmental protection, and education. Clinton also claims
constitutional authority to order military attacks against
other countries whenever he deems it appropriate. President
Clinton's record is, in a word, deplorable. If
constitutional report cards were handed out to presidents,
he would receive an F. It is to be hoped that President
Clinton will resolve to be more conscientious about his
constitutional responsibilities in his second term. But
should his dereliction of duty continue, Congress and the
Supreme Court should stand fast against any constitutional
transgression. In the present climate, it is vitally
important for all Americans to understand that the
Constitution is incapable of enforcing itself. That task
ultimately rests with the citizenry. If the American people
demand adherence to the Constitution, government officials,
including President Clinton, will respect the limitations
that were wisely placed on their power. --Oath of office, taken by President Clinton recently put his
hand on the Bible and swore an oath to "preserve, protect
and defend the Constitution of the United States." He took
the same oath when he assumed office in January 1993. As the
president embarks on his second term in office, it is an
appropriate time to appraise his record thus far to see how
well he has defended our Constitution. Contrary to popular belief, the
Supreme Court holds no monopoly on constitutional matters.
The Framers of the Constitution created three separate and
equal branches of government. Each branch was expected to
"check" the others on the basis of its own understanding of
the Constitution. Supreme Court justices are obligated, of
course, to void unconstitutional laws and to issue writs of
habeas corpus to free illegally detained prisoners.
Similarly, legislators are obligated to vote against
unconstitutional bills, repeal unconstitutional laws, and
scrutinize judicial nominees for the federal bench. And the
president is obligated to veto unconstitutional bills,
refrain from executing unconstitutional laws signed by
previous presidents, and nominate judicial candidates who
are committed to the Constitution. Supreme Court pronouncements about the
Constitution are not necessarily binding on the president or
legislators. [1]
As Justice Felix Frankfurter once observed, "The ultimate
touchstone of constitutionality is the Constitution itself
and not what [the Court] has said about it."
[2]
No one, for example, would dispute the proposition that a
legislator can vote against a bill because of perceived
constitutional infirmities even if it is clear that the
judiciary will uphold the law as constitutional. Similarly,
the president can veto bills on the basis of his own
constitutional convictions. Our third president, Thomas Jefferson,
acted on his own understanding of the Constitution when,
after taking the oath of office, he immediately pardoned all
prisoners who had been prosecuted under the Alien and
Sedition Act, which he believed was in violation of the
First Amendment to the Constitution. When some of his
contemporaries criticized him for not deferring to the
constitutional opinions of the courts, Jefferson's response
was that the three branches were made "co-equal and
co-sovereign within themselves." [3]
Just as the Supreme Court is entitled to make an independent
judgment on the merits of a case, so too is the president
entitled to make an independent judgment about his official
duties. The Framers' design might be faulted by modern
political scientists as being a formula for "gridlock," but
such criticism would miss the point. The primary purpose of
the Constitution is to safeguard the freedom of the American
people, not to facilitate the lawmaking process. As Judge
Frank Easterbrook noted, "Separation of powers--the
inability of any one person or branch to have its way--was
thought to be an essential component of a free republic, not
a hindrance to good government." [4] Most Americans have become so
accustomed to our Bill of Rights and other legal limitations
on political power that they do not fully appreciate how
fragile our constitutional system really is. The
Constitution, it must always be remembered, is incapable of
defending itself. There is no constitutional police force
that deters potential offenders and brings perpetrators to
book. The primary "check" of the citizenry on the
unconstitutional conduct of government officials is, of
course, the electoral process. But that check is both blunt
and attenuated. Moreover, between elections people can lose
their liberty, their businesses, and their personal
possessions in a short period of time. Indeed, until very
recently, a person could be arrested, tried, and executed
within a few weeks' time. What assurance does our legal
system give to the minority party that it will not be abused
by the majority party, which holds the reins of power? What
assurance does the minority party have that the president
will not use police-state tactics to intimidate his
political rivals? Our forefathers grappled with those
questions and tried to design legal mechanisms that would
guard against those dangers. An initial safeguard, as just noted,
is the electoral process itself. The Framers tried to
discourage the election of corrupt and mischievous officials
by a series of eligibility requirements and procedural
hurdles. Once in office, however, officials are essentially
"on their honor" with respect to their constitutional
responsibilities. The Framers of the Constitution were
keenly aware of that, which is why they required the
president-elect to publicly and explicitly bind himself to
the Constitution "before he enters on the Execution of his
Office." [5]
The primary purpose of the oath of office is to provide some
measure of assurance to the minority party--the party that
just did its best to keep the newly elected president away
from the levers of power--that the executive power would not
be wielded outside the framework established by the
Constitution. The Constitution expects the chief
executive of the nation to effect change cautiously and to
respect constitutional procedures and the limitations on his
office. To be sure, the Framers harbored no
illusions about the inviolability of the oath of office.
Indeed, the fact that they devised many other "checks and
balances" in our fundamental legal charter is a clear
indication that they feared power would periodically corrupt
oath-taking officials in all three branches. The oath of
office is, however, the Constitution's first line of defense
against encroachment and usurpation. Although our modern political culture
regards the oath of office as little more than a ceremonial
exercise, it was taken very seriously by the founding
generation and in early treatises on constitutional law.
Justice Joseph Story said the oath of office resulted "from
the plain right of society to require some guaranty from
every officer, that he will be conscientious in the
discharge of his duty." [6]
In 1899 law professor John Randolph Tucker wrote, "This
[oath] is a very emphatic obligation on the
President by positive and negative action to keep the
Constitution, in all its integrity, secure from his own
violation, and against that of all others in so far as his
power can do so; to preserve from his own acts; to protect
from outside influence, and to defend against all invasion."
[7] In his first inaugural address, Grover
Cleveland observed that if the American people wanted to
preserve the Constitution, they had an obligation to keep a
close watch on government officials and constantly remind
them of their constitutional responsibilities. It is in that spirit that this study
will appraise the constitutional record of President
Clinton. The study takes the Clinton
administration to task on a whole range of constitutional
issues. From free speech and unreasonable searches to double
jeopardy, jury trials, the separation of powers, and
federalism, executive branch actions are scrutinized. This
study is a systematic examination of the legal papers that
the Clinton Justice Department has filed in court cases over
the past four years. Those official documents, in addition
to President Clinton's public statements and public policy
initiatives, demonstrate a level of caprice that should
disturb people of goodwill from across the political
spectrum. The criticism expressed in this study is often
harsh, but the evidence is there, as a matter of public
record, for all fair-minded people to see--and it paints a
disturbing picture of the president's comportment in
office. The free speech clause of the First
Amendment is, without a doubt, the most famous provision of
the American Constitution. Its simple, yet profound, command
provides: "Congress shall make no law . . . abridging the
freedom of speech." The underlying principle of the free
speech clause is that "each person should decide for him or
herself the ideas and beliefs deserving of expression,
consideration, and adherence." [9]
That principle has been recognized as "one of the preeminent
rights of Western democratic theory, the touchstone of
individual liberty." [10]
The invocation of the free speech guarantee, however, is
often controversial because it requires the government and
the citizenry to tolerate the speech and writings of
unpopular, crude, ignorant, and malicious people. Civil
libertarians must often remind government officials (and
others) that if the First Amendment only protected the
expression of popular and agreeable ideas, it would be
totally unnecessary since those ideas would never be
threatened by our democratic form of government. Our
society's commitment to free speech is tested when we
encounter the expression of ideas that are disagreeable--or
even offensive. One would think that President
Clinton, a former professor of constitutional law, would
have a deep appreciation for the principle of freedom of
speech, but his official actions in office show just the
opposite. The Clinton Justice Department has attempted to
censor (a) the rights of peaceful protesters; (b) the views
of priests and doctors; (c) radio, television, and the
Internet; and (d) truthful advertisements for lawful
products. Censoring
Protesters President Clinton has used the "bully
pulpit" of the Oval Office to express his opinion on a whole
range of topics--from teenage pregnancy rates and gasoline
prices to human rights abuses in China. He can use the power
of his office to reverse the policies of past
administrations and to initiate new policies. Indeed, that
is what the electoral process is all about. At the same
time, however, the Constitution protects the rights of those
who oppose the president and his policies. As the Supreme
Court has noted, "One's right to life, liberty, and
property, to free speech, a free press, freedom of worship
and assembly, and other fundamental rights may not be
submitted to a vote; they depend on the outcome of no
election." [11]
The oath of office requires the president to effect change
cautiously-- so as not to violate the constitutional rights
of the minority party, or, for that matter, the rights of a
single individual. Unfortunately, the Clinton
administration has repeatedly attempted to use the power of
government to suppress dissent. In July 1994, for example,
the Department of Housing and Urban Development launched an
"investigation" of a married Berkeley couple, Alexandra
White and Joseph Deringer. White and Deringer did not want a
hotel in their neighborhood to be converted into a homeless
shelter, so they organized a fledgling opposition campaign.
HUD managers were put off by the citizen resistance to their
"fair housing" initiative. The HUD officials threatened
White and Deringer with fines in order to set an example for
other would-be objectors. [12]
According to defense attorney David Bryden, federal
investigators asked for every article, flier, and letter to
the editor that his clients (White and Deringer) had
written. The opinions expressed in those publications were
to be used as "evidence" of Fair Housing Act violations.
When the incident began to receive national attention, HUD
secretary Henry Cisneros tried to quell the controversy over
his agency's tactics by pledging to protect the right of
every American "to speak freely on issues of public
concern." [13]
That magnanimous gesture was small comfort to White and
Deringer. The Clinton Justice Department has
supported extraordinary measures against abortion
protestors. In Madsen v. Women's Health Center
(1994), Solicitor General Drew Days urged the Supreme Court
to uphold the constitutionality of "buffer zones" around
abortion clinics in order to keep abortion demonstrators
away from clinic staff and potential patients.
[14]
It is, of course, an important responsibility of government
to keep the peace and to protect citizens from criminal
behavior. But Days went so far as to defend a judicial
injunction that barred protesters from merely displaying
"images" that might be "observable" by people within the
abortion clinic during prescribed time periods.
[15]
The Supreme Court upheld the buffer zones but found the most
sweeping aspects of the injunction unconstitutional. The
blanket prohibition on all "images observable" was ruled a
violation of the First Amendment since it "burdened more
speech than [was] necessary to achieve the purpose
of limiting threats to clinic patients." [16] Justices Antonin Scalia, Anthony
Kennedy, and Clarence Thomas saw constitutional infirmities
with the buffer zone concept as well and could not help
concluding that the Justice Department was seeking to strip
abortion demonstrators of their First Amendment rights.
"Anyone . . . familiar with run-of-the-mill labor picketing,
not to mention some other social protests, [would]
be aghast" at the creation of zones in which "only a
particular group, which had broken no law, cannot exercise
its rights of speech, assembly and association."
[17] American Civil Liberties Union
attorney Robyn Blumner agrees with the Madsen
dissenters that the Court's ruling on buffer zones marks a
serious setback for the First Amendment right of protest.
Blumner recognizes that the president's legal team is
attempting to send "a censorious message to the activist
world: If your protest is too relentless, too provocative,
too persuasive, a court will intervene to stop it."
[18] Censoring Priests and
Doctors In the 1992 presidential campaign,
Bill Clinton railed against the so-called gag rule, which
prohibited abortion counseling by medical personnel in
federally funded clinics. After he assumed office, President
Clinton fulfilled a campaign promise by rescinding that rule
with an executive order. A few years later, however, the
Clinton White House signed off on a few gag orders of its
own. In September 1996 the Catholic Church
directed its bishops and priests to notify parishioners of
the Project Life Postcard Campaign. Parishioners were to be
encouraged to write to Congress to urge an override of
President Clinton's veto of a legislative ban on
"partial-birth" abortion. When the Pentagon learned of that
initiative, however, it ordered service chaplains not to
push the postcard campaign, since lobbying was not
permissible under Defense Department regulations.
[19] Facing a "conscience conflict," the
Rev. Vincent Rigdon, an Air Force Reserve chaplain, filed
suit in federal district court, contending that the military
orders violated his right to free speech and religious
liberty. While it is true that chaplains are government
employees, the role of a military chaplain is comparable to
that of a public defender. Rigdon argues that the men and
women of the military "have a right to a real chaplain, not
a tame one, and to real homilies, not censored ones."
[20]
He has asked the court to void the military order and allow
service personnel and their families to receive "uncensored
homilies and counseling from their clergy members." The
Clinton administration is defending the constitutionality of
the Pentagon directive in federal court. President Clinton also supports a gag
order on doctors who believe that drugs like marijuana can
alleviate the suffering of some patients. Medical research
suggests that marijuana can relieve symptoms associated with
glaucoma and AIDS, among other illnesses. In November 1996
the citizens of California and Arizona approved referenda
that would allow physicians to recommend marijuana for
patients if the physicians deem it appropriate. But Clinton
drug czar Gen. Barry McCaffrey has threatened to criminally
prosecute any physician who prescribes marijuana for a
patient. [21]
Under the Clinton policy, doctors must seek the permission
of the Drug Enforcement Administration before they can
render forthright medical opinions. And the citizens who
might benefit from the medicinal use of marijuana face even
starker choices: they must forgo the drug and endure the
pain and discomfort of their illness, use the drug and risk
arrest and a jail sentence, or leave the United
States. Censoring Television and
Radio President Clinton has supported
increasing state control over television and radio. The
president has been eager to show the American people what an
activist government can do for citizens who are tired of
gratuitous sex and violence on television. For example, when
the White House learned about a computer chip (popularly
know as the V-chip) that could block out certain TV channels
or programs, the president urged Congress to force the
technology on television makers. [22]
Congress acceded to the president's request, and the bill
was signed into law. The Justice Department will now fine
any person or organization that has the temerity to build an
"old-fashioned" television set to be sold to buyers who have
no interest in electronic censorship. The Clinton administration has also
asserted the power to police the content of television
programming. In October 1993 Attorney General Janet Reno
defended the constitutionality of legislation that would
have regulated the content of television entertainment. Reno
warned the television industry that if it did not reduce its
"violent" programming, the White House would seek laws to do
it for the industry. When Reno was asked about the
constitutionality of a law that would have prohibited
"violent" programming during children's hours, she said the
law posed no free speech problem. [23]
But attorney Floyd Abrams, who specializes in First
Amendment issues, pointed out that the White House-backed
proposals would inevitably lead to the creation of a
national censorship board that would determine such
questions as whether the battle scenes in Star Wars
or Patton constituted excessive or gratuitous
violence. Abrams called the Clinton effort to reduce
programming to that fit for children "censorship, plain and
simple." [24] The Clinton administration has not
only tried to wield a veto over TV programming, it has also
mandated what America should be watching. In July 1996 the
Federal Communications Commission issued a regulation that
is forcing television stations to carry a certain quota of
state-approved "educational programming" aimed at children.
[25]
The president backed the idea at a White House "summit" on
children's issues. President Clinton also believes that
government must police speech on the radio more aggressively
than in years past. Over the last four years, he has
repeatedly condemned radio-talk-show hosts for filling the
airwaves with "hate" and "indecency." The Clinton White
House has supported FCC efforts to crack down on American
broadcasters. The administration maintains that because some
parents do not supervise what their children listen to, all
material considered "indecent" should be restricted to the
hours between midnight and 6 a.m. As for the millions of
adults who like to sleep during those hours, the White House
response seems to be, "You've had it too good for too
long." When a panel of the U.S. Court of
Appeals for the D.C. Circuit struck down the FCC regulations
as an abridgment of the free speech clause, the Clinton
administration urged that the case be reargued en banc.
During reargument, Judge Patricia Wald deplored the
president's paternalistic proposal. "You are [trying to
be] the national nana. You are not facilitating parents.
You are saying 'We are the people who decide' [what will
be listened to]." [26]
Unfortunately, the White House ultimately scored a "victory"
when Judge Wald and two other judges were overruled by the
other judges on the panel. [27] Censoring the
Internet President Clinton supports federal
censorship of the Internet. In February 1996 he signed the
Communications Decency Act into law. That act makes it a
crime to transmit or allow "indecent" material to be
transmitted over computer networks to which minors have
access. But since there is no affordable, effective way for
nonprofit or low-profit speakers to restrict children's
access to such a broad, ill-defined category of material,
the CDA has the effect of banning much speech from the
Internet. [28]
As civil liberties attorney Harvey Silvergate observed,
"Overnight, the federal government transformed the newest
and freest medium of communication into the most heavily
censored." [29] The Internet is a revolutionary
development in communications. It has been described as "the
most participatory marketplace of mass speech that
[America]--and indeed the world--has yet seen."
[30]
Forty million people around the world have access to the
Internet. And that figure is expected to grow to 200 million
by the year 2000. Computer communications networks,
including the linked network of networks that constitutes
the Internet, "empower anyone, anywhere, to create any kind
of content and to distribute it to anyone, anywhere, who
seeks it out." [31]
Never before has the ordinary citizen had the ability to
reach a potential audience of millions of people. But
because the sweeping provisions of the CDA add to the
speaker's cost, in effort and in money, that law threatens
to "chill" public discourse over computer
networks. Recognizing that fact, the ACLU
brought a constitutional challenge to the CDA in federal
court within hours of its enactment. On June 11, 1996, a
three-judge panel unanimously ruled that the CDA violated
the free speech clause of the First Amendment. Judge Stewart R. Dalzell, in his
separate opinion as a member of the panel, said the CDA was
no more acceptable than a "newspaper decency act" or a
"novel decency act." [33]
Judge Dalzell also pointed out that concerned parents are
not without options in the marketplace. Blocking software
can be installed on home computers, or families can
subscribe to commercial online services that provide
parental controls. The Clinton Justice Department has
asked the Supreme Court to overturn the federal district
court ruling on the CDA. [34]
The president's lawyers are attempting to persuade the
courts that the Justice Department can be trusted not to
violate the free speech rights of Americans.
[35]
That argument misses the whole point of our constitutional
safeguards. The Framers of the Constitution crafted the Bill
of Rights so that Americans would not have to rely on the
promises of prosecutors and politicians to respect their
rights. [36] Censoring
Advertisements Judging from his official actions,
President Clinton seems to subscribe to the view that
commercial advertising falls wholly outside the protection
of the First Amendment's free speech clause.
[37]
Although he has not explicitly challenged Supreme Court
holdings on that proposition, Clinton has demonstrated his
willingness to push the limits of federal power over
commercial marketing. In August 1995, for example, the
president supported sweeping regulations of tobacco products
proposed by the Food and Drug Administration--an agency that
had not previously considered tobacco within its purview.
[38]
Under the administration's proposals, tobacco businesses
would be forced to spend their own money on anti-smoking
campaigns. Cigarette ads would be limited to black-and-white
text in any magazine more than 15 percent of the readership
of which is under age 18. T-shirts with company logos would
be forbidden, as would brand name sponsorship of sporting
and entertainment events. To fully appreciate the
breathtaking scope of the power that the president is
asserting here, it is important to take a step back from the
immediate context of the White House proposal, which is
tobacco regulation. Since there is no First Amendment
"exception" for tobacco advertisements, the president
apparently believes that the federal government can
arbitrarily target lawful products and censor the
communicative activity of the businesspeople who manufacture
those products. To sustain his proposal, therefore,
President Clinton presumably would like to see the Supreme
Court roll back a series of First Amendment cases that limit
the government's power over commercial speech. President Clinton's legal team has
tried mightily--but so far unsuccessfully--to advance the
government's censorship powers over business communications.
In November 1994, for example, the Coors Brewing Company
asked the Supreme Court to recognize its First Amendment
right to display truthful and verifiable information about
alcohol content on its beer labels. Solicitor General Days
urged the Court to uphold the constitutionality of federal
labeling restrictions because "consumer preferences might
change if . . . brewers were free to market malt beverages
on the basis of their alcohol content." [39]
The Supreme Court unanimously rebuffed Days's argument.
Justice John Paul Stevens noted that the Justice Department
was carrying its paternalistic notions of consumer
protection too far. In another case, Justice Clarence
Thomas also rejected the government's asserted interest in
keeping legal users of products and services "ignorant in
order to manipulate their choices in the marketplace."
[41] The Clinton White House has
rationalized its tobacco regulations on the basis of
protecting youngsters from slick and seductive marketing
campaigns from Madison Avenue. But Days's strenuous
arguments against the simple display of alcohol content on
beverage containers are a clear indication that the
administration does not want even grownups to make informed
choices about their lives because it fears too many will
make the "wrong" choice. Most telling of all was the suggestion
by Days that the Supreme Court resolve constitutional doubts
in the government's favor: "Any doubt as to whether the
labeling restriction . . . comports with the First Amendment
should be resolved in favor of the statute's validity."
[42]
That suggestion to the highest court in the land about a
fundamental constitutional guarantee lay bare the true
colors of the president's legal team. It was a suggestion
that flatly contradicted President Clinton's publicly stated
preference for an "expansive view" of the Bill of Rights.
[43]
And it speaks volumes about the constitutional reading that
the Clinton White House actually advocates in constitutional
litigation, namely, an expansive view of federal
power. The Framers of the Constitution
detested the idea of retroactive legislation. The
Constitution contains two specific prohibitions against ex
post facto laws: Article I, section 9, addresses Congress:
"No . . . ex post facto Law shall be passed." Article I,
section 10, addresses state officials: "No State shall pass
any ex post facto Law." The Constitution contains no
exception to either prohibition. As Professor William
Winslow Crosskey of the University of Chicago once observed,
it is evident that ex post facto laws "were thoroughly
disapproved by the framers of the Constitution and intended
by them to be completely impossible under our system."
[44] Not only has President Clinton failed
to defend the prohibition of ex post facto laws; he
encouraged the 103rd Congress to violate the prohibition. In
the summer of 1993 he urged Congress to levy a retroactive
tax on the American people. Under the president's initial
budget plan, income, corporate, gift, and estate taxes were
to be increased retroactively to January 1, 1993--20 days
before the president assumed office. Never before in
American history had a tax been made retroactive to the time
of a prior administration. The retroactive tax plan was bitterly
opposed by many in Congress as grossly unfair and
unconstitutional. Yet the Clinton administration defended
its initiative--pointing out, as if it made a difference,
that most Americans would be unaffected by the controversial
tax. Vice President Al Gore, for example, displayed a
callous disregard for the constitutional rights of a
minority when he told a television interviewer, "All of the
hoopla and waving of arms about retroactivity is all in
behalf of the wealthiest 1 percent of people in this
country. Those are the only people affected by
retroactivity." [45]
Obviously, the constitutionality of a law does not depend on
the number of people it affects. The president swears to
protect the constitutional rights of all
Americans--even those who happen to be wealthy. President Clinton pressed his views on
the legality of retroactive taxation on the judiciary as
well. When the U.S. Court of Appeals for the Ninth Circuit
struck down a 1987 retroactive change in the tax code as
unconstitutional, the Clinton administration asked the
Supreme Court to reverse the ruling. Instead of defending
the ex post facto clause against "artful" interpretations,
President Clinton's legal team urged the Court to give the
legislators great leeway. For the taxpayer hit by retroactive
tax changes, Clinton expressed little sympathy. The Justice
Department's legal brief coldly warned, "The taxpayer must
be prepared for such possibilities." [47] In the landmark case of McCulloch
v. Maryland (1819), Chief Justice John Marshall issued
his famous warning that "the power to tax involves the power
to destroy." [48]
Instead of shielding the American people from the
unconstitutional power to tax retroactively, President
Clinton fought for additional power. [49] The warrant clause of the Fourth
Amendment, specifying the conditions that must be met before
officials may search a person's home or seize papers and
effects, provides: "no [search] Warrants shall
issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be
searched, and the person or things to be seized." The
warrant clause protects the citizenry from arbitrary
searches by requiring law enforcement personnel to obtain
judicial authorization before they demand entrance
to any person's home. The Supreme Court described the
constitutional importance of the warrant application process
in McDonald v. United States (1948). The Clinton administration has
repeatedly attempted to play down the significance of the
warrant clause. In fact, President Clinton has asserted the
power to conduct warrantless searches, warrantless drug
testing of public school students, and warrantless
wiretapping. Warrantless "National
Security" Searches The Clinton administration claims that
it can bypass the warrant clause for "national security"
purposes. In July 1994 Deputy Attorney General Jamie S.
Gorelick told the House Select Committee on Intelligence
that the president "has inherent authority to conduct
warrantless searches for foreign intelligence purposes."
[51]
According to Gorelick, the president (or his attorney
general) need only satisfy himself that an American is
working in conjunction with a foreign power before a search
can take place. The warrant clause was designed to
give the American people greater security than that afforded
by the mere words of politicians. It requires the attorney
general, or others, to make a showing of "probable cause" to
a magistrate. The proponents of national security searches
are hard-pressed to find any support for their position in
the text or history of the Constitution. That is why they
argue from the "inherent authority" of the Oval Office--a
patently circular argument. The scope of such "authority" is
of course unbounded in principle. Yet the Clinton Justice
Department has said that the warrant clause is fully
applicable to murder suspects but not to persons suspected
of violating the export control regulations of the federal
government. [52]
If the Framers had wanted to insert a national security
exception to the warrant clause, they would have done so.
They did not. The Clinton administration's national
security exception to the warrant clause is nothing more, of
course, than an unsupported assertion of power by executive
branch officials. The Nixon administration relied on similar
constitutional assertions in the 1970s to rationalize "black
bag" break-ins to the quarters of its political opponents.
[53]
The Clinton White House--even after the Filegate
scandal--assures Congress, the media, and the general public
that it has no intention of abusing this power. Attorney General Reno has already
signed off on the warrantless search of an American home on
the basis of the dubious "inherent authority" theory.
[54]
The actual number of clandestine "national security"
searches conducted since 1993 is known only to the White
House and senior Justice Department officials. Warrantless Searches of
Public Housing In the spring of 1994 the Chicago
Public Housing Authority responded to gang violence by
conducting warrantless "sweeps" of entire apartment
buildings. Closets, desks, dressers, kitchen cabinets, and
personal effects were examined regardless of whether the
police had probable cause to suspect particular residents of
any wrongdoing. Some apartments were searched when the
residents were not home. Although such searches were
supported by the Clinton administration, Federal District
Judge Wayne Anderson declared the Chicago sweeps
unconstitutional. [55]
Judge Anderson found the government's claim of "exigent
circumstances" to be exaggerated since all of the sweeps
occurred days after the gang-related shootings. He also
noted that even in emergency situations, housing officials
needed probable cause in order to search specific
apartments. Unlike many governmental officials who fear
demagogic criticism for being "soft on crime," Judge
Anderson stood up for the Fourth Amendment rights of the
tenants, noting that he had "sworn to uphold and defend the
Constitution" and that he would not "use the power of
[his] office to override it, amend it or subvert
it." [56] The White House response was swift.
President Clinton publicly ordered Attorney General Reno and
HUD secretary Henry Cisneros to find a way to circumvent
Judge Anderson's ruling. One month later the president
announced a "constitutionally effective way" of searching
public housing units. The Clinton administration would now
ask tenants to sign lease provisions that would give
government agents the power to search their homes without
warrants. [57] The Clinton plan was roundly
criticized by lawyers and columnists for giving short shrift
to the constitutional rights of the tenants.
[58]
A New York Times editorial observed that the
president had "missed the point" of Judge Anderson's ruling.
[59]
Harvard law professors Charles Ogletree and Abbe Smith
rightly condemned the Clinton proposal as an open invitation
to the police to "tear up" the homes of poor people.
[60] Warrantless Drug Testing
in Public Schools The Clinton administration has
defended warrantless drug testing programs in the public
schools. In March 1995 the Supreme Court heard arguments on
whether public school officials could drug test student
athletes without a warrant or any articulable suspicion of
illegal drug use. The Department of Justice sided with the
school authorities, arguing that the privacy rights of
individual students were outweighed by the interest of the
school in deterring drug use by the student body generally.
[61] Solicitor General Days, arguing for
the government, claimed that the school district "could not
effectively educate its students unless it undertook
suspicionless drug testing as part of a broader
drug-prevention program." [62]
Days maintained that the Fourth Amendment's requirement of
individualized suspicion would "jeopardize" the school's
drug program. Justices Sandra Day O'Connor, John Paul
Stevens, and David Souter expressed skepticism about that
claim and pointed out that if the Supreme Court followed the
Justice Department's reasoning, America's public school
students might well end up receiving less constitutional
protection under the Fourth Amendment than do convicted
criminals under correctional supervision. [63] The Clinton administration supports
warrantless drug tests in other contexts as well. Thus, when
Republican presidential candidate Robert Dole said, during
the 1996 campaign, that he would subject welfare recipients
to warrantless, suspicionless drug tests, President Clinton
quickly followed suit with his own approval of such an
initiative. [64] Warrantless
Wiretapping The Supreme Court has recognized that
electronic surveillance, such as wiretapping and
eavesdropping, impinges on the privacy rights of individuals
and organizations and is therefore subject to the Fourth
Amendment's warrant clause. [65]
President Clinton, however, has asked Congress to pass
legislation that would give the Federal Bureau of
Investigation the power to use "roving wiretaps" without a
court order. [66]
The president also fought for sweeping legislation that is
forcing the telephone industry to make its network more
easily accessible to law enforcement wiretaps. Those
initiatives have led ACLU officials to describe the Clinton
White House as "the most wiretap-friendly administration in
history." [67] It is unclear why the president made
warrantless roving wiretaps a priority matter since judges
routinely approve wiretap applications by federal
prosecutors. According to a 1995 report by the
Administrative Office of U.S. Courts, it had been years
since a federal district court turned down a prosecutor's
request for a wiretap order. [68]
President Clinton is apparently seeking to free his
administration from any potential judicial
interference with its wiretapping plans. There is a problem,
of course, with the power that the president desires: it is
precisely the sort of unchecked power that the Fourth
Amendment's warrant clause was designed to curb. As the
Supreme Court noted in Katz v. United States
(1967), the judicial procedure of antecedent justification
before a neutral magistrate is a "constitutional
precondition," not only to the search of a home, but also to
eavesdropping on private conversations within the home.
[69] President Clinton also lobbied for and
signed the Orwellian Communications Assistance for Law
Enforcement Act, which is forcing every telephone company in
America to retrofit its phone lines and networks so that
they will be more accessible to police wiretaps.
[70]
The cost of that makeover is expected to be several billion
dollars. Any communications carrier that fails to meet the
technology standards of the attorney general can be fined up
to $10,000 per day. The passage of that law prompted
Attorney General Reno to marvel at her newly acquired power:
"I don't think J. Edgar Hoover would contemplate what we can
do today." [71]
That is unfortunately true. In the past, law enforcement had
to rely on the goodwill and voluntary cooperation of the
American people for investigative assistance. That tradition
is giving way to a regime of coercive mandates.
[72] The takings clause of the Fifth
Amendment provides: "nor shall private property be taken for
public use, without just compensation." While government
officials have relentlessly sought to narrow the judicial
application of that clause to circumstances in which the
state has actually taken title and deed away from the
property owner, the Supreme Court has recognized that
governmental regulations that leave the title with the owner
might also amount to a compensable "taking." Thus, the Court
has held that regulations that take all the value from the
property by effectively prohibiting its use amount to a
taking of the property. [73] As the number and scope of federal and
state regulations have multiplied over the years, so have
the grievances of landowners who point out that their
property has been commandeered for various public policy
objectives--from the preservation of wetlands and wildlife
habitats to the provision of various community amenities.
[74]
But since few property owners have the financial wherewithal
to wage a long legal battle against the federal or state
governments, many governmental takings go uncompensated
because lawsuits are never filed in the first place. The
104th Congress attempted to redress the imbalance between
landowners and regulators by introducing various property
rights measures aimed at giving property owners a statutory
remedy against overweening federal agencies.
[75] Unfortunately, the move to enact
property rights legislation stalled when President Clinton
announced that he was unalterably opposed to such measures
and would veto any such bill that emerged from Congress. The
president characterized the property rights legislation as a
"budget buster" that would "benefit wealthy landowners at
the expense of ordinary Americans." [76] It is revealing to consider the
president's characterization of takings legislation as a
"budget buster" in context. The Clinton White House, after
all, has been urging Congress to spend a trillion
dollars--over and above current spending levels--during the
next several years. Against that background, it is difficult
to take the president's expression of concern over spending
levels seriously. But even if the president were a true
advocate of spending restraint, his budgetary objection
would be irrelevant as a constitutional matter. Since the
takings bills were an attempt to vindicate constitutional
rights guaranteed under the Fifth Amendment, the president
had a duty to find room in the federal budget for
victims of regulatory overreach. To paraphrase Justice
Antonin Scalia, the president and Congress are not at
liberty to conduct a cost-benefit analysis of a
constitutional guarantee and then adjust the meaning of that
guarantee to comport with their findings. [77]
Everyone recognizes, for example, that jury trials are more
expensive and time-consuming than bench trials, but no one
who takes the Constitution seriously would propose the
legislative abolition of the jury trial procedure in order
to "balance the budget." President Clinton's inability to
distinguish the property rights bills in Congress from the
vast array of special-interest spending programs (foreign
aid, corporate welfare, art subsidies, etc.)--which are not
necessitated by the Constitution--should be disturbing to
all Americans. Not only is the president's claim that
the takings bills "benefit wealthy Americans" false, but it
is important to recall that the Bill of Rights was designed
to protect the rights of every individual against the
government. No American should be forced to expend
exorbitant amounts of money in litigation in order to
vindicate his constitutional rights (those rights, after
all, were the individual's to begin with). The fact that
some individuals and organizations can comfortably absorb
those expenses is beside the point. That said, it is not
difficult to see that middle-class and poor owners of
property would have been the primary beneficiaries of the
takings legislation, since they are the least able to afford
the attorneys' fees that are necessary to fight a regulatory
agency in court. Finally, as will be argued below,
President Clinton's record on behalf of "ordinary Americans"
is open to question--at least in the takings context. When a
small businesswoman named Florence Dolan took a takings
claim to the Supreme Court in March 1994, the Clinton
Justice Department filed a legal brief against
her. Dolan wanted to expand her plumbing
and electrical supply store in Tigard, Oregon, but the local
zoning board refused to issue a permit for the expansion
unless she dedicated a 15-foot strip of land to the city to
be used for a bicycle pathway. The city also said that Dolan
would have to pay for the construction of that
pathway. After several failed attempts to
secure a variance from the proposed condition, Dolan sued
the city for forcing her to choose between two of her
rights: her right to build without giving up her land and
her right to compensation if she did give up her land.
[78]
Dolan's attorney, David Smith, introduced evidence that
showed that city planners had contemplated the construction
of a citywide floodplain greenway and bicycle-pedestrian
pathway. Smith plausibly argued that the city had planned to
use its permit and zoning powers to force certain landowners
to pay for the public improvements in a piecemeal fashion
instead of using funds from the general treasury. Smith's argument raised a classic
takings claim. The Supreme Court has noted that one of the
primary purposes of the takings clause is "to bar Government
from forcing some people alone to bear public burdens which,
in all fairness and justice, should be borne by the public
as a whole." [79] Solicitor General Days's legal brief
to the Supreme Court made two primary arguments: first, that
the burden of proof in the takings area ought to be
shouldered by property owners, not governmental
regulators--and Days maintained that Dolan had not met the
requisite burden in the instant case--and second, that
cities ought to be given "considerable latitude" when they
impose permit conditions. Days urged the Court not to
subject governmental conduct in the takings area to the high
level of scrutiny that the Court uses in reviewing other
claims of constitutional violation. [80] The Supreme Court rejected both of
Days's pleas and then went on to remind the Clinton Justice
Department that "the Takings Clause of the Fifth Amendment
[is] as much a part of the Bill of Rights as the
First Amendment or the Fourth Amendment" [81]
and to place the legal burden on the government to justify
any conditions it wishes to attach to zoning permits. The
Supreme Court sent the case back to the Oregon district
court to give the city of Tigard another opportunity to
justify the conditions it attached to Dolan's
permit. The double jeopardy clause provides:
"nor shall any person be subject for the same offense to be
twice put in jeopardy of life or limb." As Justice Hugo
Black once observed, the underlying principle of the double
jeopardy clause was recognized long before the American
Revolution. The double jeopardy principle was
explicitly incorporated into the Constitution when the Bill
of Rights was ratified in 1791. Although the double jeopardy clause
bars federal prosecutors from subjecting any person to
multiple prosecutions for the same offense, the Supreme
Court opened the door to double jeopardy when it sanctioned
separate prosecutions by federal and state officials for the
same conduct. The Court announced its "dual sovereign"
exception to the prohibition against double jeopardy in
Bartkus v. Illinois (1959). [83]
The sharply divided (five-to-four) decision in
Bartkus was and remains very controversial. Many
legal analysts thought the majority opinion was poorly
reasoned. Indeed, 24 states have, on their own initiative,
attempted to shore up the double jeopardy principle by
prohibiting their prosecuting officials from pursuing any
defendant who had already been prosecuted by the federal
government. [84] A president committed to vindicating
the double jeopardy principle could close the Supreme
Court's "dual sovereignty" loophole with the stroke of a pen
by issuing an executive order forbidding U.S. attorneys to
pursue individuals who have already been prosecuted by state
authorities. To the disappointment of many civil
libertarians, President Clinton has expressed no such
interest. In fact, the Clinton Justice Department has signed
off on several double prosecutions since 1993. The best known double prosecution in
recent years was the federal case that was brought against
the Los Angeles police officers who viciously beat Rodney
King in 1991. The Bush administration was responsible for
convening a federal grand jury in the wake of the state
court acquittal, but the trial did not get under way until
after President Clinton assumed office. [85]
It could have been--and should have been--stopped.
[86] When columnist George Will asked
Attorney General Reno about the constitutionality of
retrying the Los Angeles police officers, she tried to
absolve the Clinton administration of responsibility by
invoking the Bartkus precedent. Ms. Reno: This wasn't double
jeopardy, because you have two separate sovereigns. We
addressed this issue in Miami on a number of occasions
where federal authorities followed with a subsequent
prosecution. And as the Supreme Court--as case law has
evolved in this nation, you had two separate sovereigns,
and therefore it is not double jeopardy. [87] Reno's response, while strictly
accurate, obscures the fact that the Justice Department can
initiate or decline successive prosecutions at its
discretion. There is a critical difference, after all,
between permissible action and obligatory action. Indeed,
that difference explains why the political branches of our
government can be legitimately criticized for constitutional
negligence with respect to their failure to desegregate the
public school systems before the Brown decision was
rendered in 1954. The fact that Plessy v. Ferguson
(1896) had condoned separate but equal facilities did not
absolve the other branches of our government of their
responsibility to abide by the Constitution. Similarly, Reno
cannot excuse the Clinton administration's failure to defend
the double jeopardy clause by throwing up her hands with a
bland reference to Supreme Court case law. The Clinton administration has not
only embraced the double prosecutions that began under the
Bush administration but has initiated a few of its own as
well. When Lemrick Nelson was acquitted of murder charges by
a jury in state court in October 1992, pressure began to
build for a second trial in the federal court system. It was
only a pending matter when President Clinton assumed
office--a matter that required no action. The attorney
general took an interest in the Nelson case, however, and
the federal code was combed for possible charges.
[88]
Like the Los Angeles police officers involved in the King
incident, Nelson was ultimately charged with violating the
civil rights of the victim. [89]
There are probably dozens of unreported double prosecutions
being plea bargained in federal courthouses across the
United States. [90] The Clinton Justice Department has
also sought to limit the effect of the double jeopardy
clause as it relates to civil forfeiture proceedings. When
the United States Court of Appeals for the Sixth Circuit
told a federal prosecutor that he could not constitutionally
seize a drug dealer's home in a civil forfeiture proceeding
and prosecute the dealer under federal criminal
law, the Clinton administration appealed. [91] Even though there was no evidence that
the home had been purchased with drug money, Solicitor
General Days filed a legal brief with the Supreme Court that
said the civil forfeiture action should not trigger the
double jeopardy clause since it could not be fairly
characterized as a "punitive" measure. [92]
How, one wonders, could the confiscation of someone's home
not be punitive? The Framers of the Constitution
despised the governments of Europe for being "afraid to
trust [their own] people with arms."
[93]
If a government had no designs on the liberties of the
people and administered justice in its courtrooms, the
Founders thought there was no reason to fear an armed
citizenry. Indeed, an armed citizenry would be an effective
"check" on the nefarious ambitions of
politicians. The Second Amendment to our
Constitution provides: "A well-regulated Militia, being
necessary to the security of a free State, the right of the
people to keep and bear Arms, shall not be infringed." One
of the most salutary developments in law schools in recent
years has been a growing recognition among constitutional
theorists that "perhaps the [National Rifle
Association] is not wrong, after all, in its general
Second Amendment stance." [94]
The idea behind that stance, of course, is that the general
purpose of the Second Amendment is to guard the right of the
citizenry to keep and bear arms. [95] The Clinton White House has shown
little interest in Second Amendment scholarship. In fact,
President Clinton has established himself as the most
fervent opponent of gun ownership in presidential history.
He lobbied strongly for the passage of the Brady bill and a
ban on "assault weapons"--and signed both measures into law.
The president has also indicated his desire for a national
scheme for licensing all gun owners. Although there are
hundreds of federal and state regulations concerning the
manufacture and use of firearms, Clinton believes that the
right to keep and bear arms must be regulated further
because that right has become an instrument for "maintaining
madness." [96] In the 1992 presidential election
campaign, Bill Clinton vowed to fight for the passage of the
Brady bill. He kept his promise by making that bill a top
priority. After a ferocious legislative battle, the Brady
bill was signed into law on November 30, 1993. That law
requires the purchaser of a handgun to wait five business
days before taking possession of the gun. During the
five-day waiting period, law enforcement officials are
supposed to check the background of the prospective buyer
for any criminal record or mental instability. The
ostensible purpose of the law is to "keep guns out of the
hands of criminals." [97] To understand the ferocity of the
Brady battle, it is important to note that before the Brady
law took effect, federal law presumed--as a general
proposition--that every American citizen had the right to
gun ownership. That right could be overridden, but the
government had to have a very good reason to do so. A felony
conviction, for example, would have disqualified a person
from lawful gun possession. President Clinton and advocates
of gun control were anxious to reverse that legal
presumption so that it would work against the constitutional
right to keep and bear arms. The five-day waiting period was
to be the "first step" toward solidifying a new legal
presumption against gun ownership. [98] Gun lobbyists, many lawmakers, and
principled defenders of the Constitution were equally
determined to protect the Second Amendment against
encroachment. They viewed the Brady bill as an
unconstitutional "prior restraint" on the right to keep
arms. They also feared that the Brady law would open the
door to a series of incrementally restrictive gun control
measures. One month after passage of the Brady
bill, a new round of calls for government controls was
touched off when a deranged man killed five commuters and
injured many others on the Long Island Railroad. President
Clinton seized the moment with an ambitious gun control
initiative. He publicly ordered Attorney General Reno to
develop plans for a national licensing system for all
American gun owners. [99] President Clinton's licensing scheme
would have crippled the constitutional right to keep and
bear arms because it would have forced law-abiding citizens
to go hat in hand to the government to get permission to
purchase a firearm. Far from defending the Second Amendment
rights of the citizenry, the president sought to reduce a
constitutional guarantee to an arbitrary dispensation of
government. [100]
President Clinton clearly hoped that a poll-sensitive
Congress would succumb to his far-reaching proposal in the
wake of a well-publicized tragedy. Although the president's
gambit failed, it was a telling indication of his
understanding of federal power and the Second
Amendment. The Sixth Amendment provides: "In all
criminal prosecutions, the accused shall enjoy the right to
a speedy and public trial, by an impartial jury." The
Clinton administration's fidelity to the jury trial clause
was tested on three occasions--all involving cases before
the Supreme Court. Unfortunately, President Clinton's legal
team tried to weaken the jury trial guarantee in each
case. Shifting Power from Juries
to Judges The first case was United States
v. Gaudin (1995). [101]
Michael Gaudin was accused of making false statements on
Federal Housing Administration loan documents. The issue
before the Supreme Court was whether the trial judge gave
appropriate legal instructions to the jury. The trial judge
told jurors that he had already determined that Gaudin's
statements were "material" and that the only question for
the jury to resolve was whether the accused had "knowingly"
made false statements. Gaudin's attorney argued that the
materiality issue should have been decided by the jury, not
the trial judge. The Sixth Amendment gives the accused the
right to demand that a jury find him guilty of all of the
elements of the crime with which he is charged. Since
materiality was an essential element of the crime with which
Gaudin was charged, his right to have that issue resolved by
a jury was violated. Instead of defending the jury trial
clause, the Clinton Justice Department urged the Supreme
Court to affirm Gaudin's false statement conviction, arguing
that historical and legal precedents supported the trial
judge's legal instructions. The Supreme Court unanimously
rejected the Clinton administration's legal
position. The Court concluded that the trial
judge had violated Gaudin's constitutional right to trial by
jury and that the government would have to give him a new
trial. No Jury Trial for "Minor"
Offenses The second case involving the jury
trial clause was Lewis v. United States (1996).
[103]
Ray Lewis was a postal employee charged with two counts of
obstructing the mail. Each count carried a maximum
authorized prison sentence of six months. Lewis requested a
jury trial, but federal prosecutors argued that because the
crimes with which he was charged were only "petty offenses,"
he had no constitutional right to trial by jury. The
magistrate sided with the prosecutors, and a bench trial was
held shortly thereafter. Lewis was found guilty, but he
appealed the magistrate's decision denying him a jury
trial. The language of the Sixth Amendment is
unambiguous. The accused is guaranteed the right to a jury
trial in "all criminal prosecutions." Unfortunately, many
years ago government lawyers persuaded a majority of Supreme
Court justices that a jury trial was required only for
"serious" offenses. According to Supreme Court case law, a
"serious" offense is a crime that carries a penalty in
excess of six months' imprisonment. Over the years a number
of Supreme Court justices have questioned the logic
underlying the so-called petty offense doctrine. Justice
Hugo Black, for example, found the "petty-serious"
distinction to be utterly specious. Instead of seizing on Justice Black's
clear-eyed analysis of the constitutional text and urging
the Supreme Court to correct its past mistake, the Clinton
administration defended the petty offense doctrine and asked
the Supreme Court to affirm Lewis's conviction.
[105] Overturning Jury
Acquittals at Sentencing The third case involving the jury
trial clause was United States v. Watts (1997).
[106]
Vernon Watts was arrested after police detectives discovered
cocaine base in his kitchen cabinet and two loaded guns in
his bedroom closet. At trial, the jury convicted Watts of
drug charges, but acquitted him of "using a firearm" during
a drug offense. Despite Watts's acquittal on the weapons
charge, the sentencing court announced that Watts had indeed
possessed the guns in connection with the drug offense and
that his prison sentence would be increased accordingly.
Watts promptly appealed the additional prison time. The
Clinton Justice Department defended the controversial
sentence before the Ninth Circuit Court of Appeals but lost.
The appellate court vacated Watts's sentence, holding that
"a sentencing judge may not . . . rely upon facts of which
the defendant was acquitted." Undaunted, Clinton's legal
team asked the Supreme Court to overturn the Ninth Circuit
ruling--and to reinstate Watts's original
sentence. The legal issue in Watts had
been festering in the federal court system for years. Ever
since the Federal Sentencing Guidelines were enacted by
Congress in 1984, federal courts have been engaged in
"real-offense" sentencing, which basically allows a
sentencing judge to consider a broad range of "relevant
conduct" on the part of the defendant. As unbelievable as it
may seem, our courts have been punishing individuals even
after juries have found them not guilty of the conduct for
which they are being punished. The Framers of the Constitution placed
the jury at the heart of our criminal justice system. They
did so for a very specific reason. The Framers did not want
the federal government to have the power to unilaterally
brand a citizen a criminal. In America prosecutors must
first persuade a jury of laymen that the accused is a
criminal who must be punished. The jury's unanimous assent
to the government's indictment was to be a prerequisite to
punishment. Real-offense sentencing, however,
undermines the constitutional safeguard of trial by jury in
at least two ways. First, if prosecutors fail to persuade a
jury of a defendant's guilt at trial, they can now ask a
judge for a second opinion. That is what the federal
prosecutor did in the Watts case. Second, by filing an indictment with a
single charge, prosecutors can withhold shaky evidence on
some allegations, then introduce it at the sentencing phase.
If the government is able to secure a conviction on the
charge set forth in the formal indictment, prosecutors can
then seek "enhanced penalties" for offenses the jury never
heard about. The government has a strong incentive to employ
that strategy against defendants because the evidentiary
standards before a sentencing judge are well below those
required at trial. Prosecutors only have to prove
"sentencing factors" by a preponderance of the evidence
instead of the traditionally high standard of "beyond a
reasonable doubt." And because the Federal Rules of Evidence
do not apply at sentencing, federal judges can add years to
a defendant's sentence on the basis of flimsy hearsay
evidence. Justice Department officials defend
real-offense sentencing by claiming that no person is being
punished for conduct of which he has not been convicted;
rather some are being punished more severely simply because
of the factual circumstances surrounding the crime of which
they were convicted. That is a dangerous play on words. For
if the connection between trial and sentencing procedures is
severed, Congress can simply manipulate the statutory
maximum penalties for the thousands of offenses that are
criminally prohibited. Such manipulation would effectively
obviate the government's burden to prove beyond a reasonable
doubt criminal activity before juries. Law professor
Elizabeth Lear of the University of Florida observes that
"under the current regime of nonconviction offense
sentencing, only the judge and the prosecutor need approve
the bulk of punishment decisions." Such unbridled
governmental power "dislodges the jury from its crucial
oversight role in the criminal justice system."
[107] The Watts case was a golden
opportunity for President Clinton's lawyers to demonstrate
the administration's commitment to an "expansive view of the
Constitution and the Bill of Rights." [108]
Sadly, the Justice Department once again sought the
opposite, advocating a narrow reading of the jury trial
clause. One of the most important structural
features of the American Constitution is the partition of
powers among three separate branches of government:
legislative, executive, and judicial. James Madison
expressed the sentiment of the founding generation when he
wrote that "the preservation of liberty requires that the
three great departments of power should be separate and
distinct." [109]
Every president is responsible for remaining within his
sphere of authority and respecting the powers the
Constitution vests in the judicial and legislative
branches. President Clinton and the
Judiciary The Framers of the Constitution
believed in an independent judiciary. Their colonial
experience under English rule taught them that when the
executive power is combined with judicial power, liberty and
justice are endangered. One of the grievances set forth in
the Declaration of Independence was that King George III had
"made Judges dependent on his Will alone, for the Tenure of
their Offices." To guard against that potential threat to
the impartial administration of justice, the Framers created
a court system in which federal judges would enjoy lifetime
tenure as long as they remained honest and avoided
malfeasance. In the 1992 presidential campaign, Governor
Clinton assured the legal community that he appreciated the
importance of an independent judiciary in our constitutional
framework: "As a lawyer, a former law professor and attorney
general of [Arkansas], I have a deep commitment to
our legal system and a reverence for the role that federal
judges play in our system as interpreters of federal law and
protectors of constitutional rights." [110] A few years later, President Clinton
shocked the legal community when he brazenly pressured a
federal judge to reverse an evidentiary ruling. In March
1996 Federal District Judge Harold Baer Jr. suppressed
incriminating physical evidence and a videotaped confession
in a New York City drug bust. That controversial ruling
provoked a firestorm of criticism from local and national
politicians, including Dole. Dole used the incident to
attack the president for appointing "soft-on-crime" judges
to the federal bench. Under rising political pressure to
distance himself from some of the liberal rulings of his
judicial appointees, President Clinton made an extraordinary
move. On March 21, 1996, the White House let it be known
that if Judge Baer did not reverse his suppression ruling,
President Clinton would ask for his resignation.
[111] The president's blatant attempt to
intimidate a judge in a pending case sparked its own
firestorm of controversy. The chief judge and three senior
judges of the United States Court of Appeals for the Second
Circuit issued a statement that said calls for the
resignation and impeachment of Judge Baer had "done a grave
disservice to the principle of an independent judiciary."
[112]
The White House quickly retreated from its earlier
announcement by issuing platitudinous statements about the
importance of "judicial independence." [113] The Baer incident is a telling
indication of President Clinton's commitment to an
independent judiciary. Like so many of his other purported
beliefs, it is evidently subject to raw political
calculations. President Clinton and the
Legislature President Clinton claims the
Constitution gives him the unilateral power to attack other
countries whenever he deems that course of action
appropriate. Over the last four years, he has authorized
missile attacks against Iraq, ordered air strikes in Bosnia,
and threatened to invade Haiti. In each instance the
president claimed that it was unnecessary to seek any
constitutional authorization from Congress. The Framers of the Constitution gave
the war power careful consideration. Although in the
European countries of the 18th century the war power was
commonly vested in monarchs, the Framers made a deliberate
decision to leave the war-making power with the national
legislature, not the president. [114]
Article I of the Constitution states that "Congress shall
have the power . . . to declare war." The president was to
exercise his article II responsibilities as commander in
chief within the framework established by the Constitution.
The American executive would direct the military
operations that the people's representatives in Congress had
authorized. When President Clinton threatened to
invade Haiti, 10 prominent legal scholars sent him a letter
to remind him of the constitutional boundaries of his
office: President Clinton ignored that letter
and came perilously close to commanding U.S. forces to
attack the Haitian military. [116] Haiti was not an isolated incident.
The Clinton administration has repeatedly demonstrated its
willingness to use military force without congressional
authorization. In September 1996, for example, President
Clinton ordered a cruise missile attack on Iraq.
[117]
The president characterized that attack as a "retaliatory
strike" because Iraqi forces were engaged in murderous
activity in an "exclusion zone" that President Bush had
created, on his own authority, in 1991. (Recall that
Congress only authorized U.S. military forces to expel the
Iraqi military from Kuwait; President Bush created exclusion
zones on Iraqi territory for the Kurdish people after the
successful conclusion of Operation Desert Storm.) President Clinton's rationale for his
Iraqi missile attack is extremely distressing because it
perfectly illustrates the dangerous propensities that the
Founders apprehended at the Constitutional Convention. The
Framers wanted the legislative branch to have the war power
because of the ambitious tendencies of the executive branch.
As James Madison noted, "The executive is the branch of
power most interested in war, and most prone to it."
[118]
James Wilson, though an advocate of a strong presidency,
approvingly observed that the new constitutional system
"will not hurry us into war" since the war-making power
"will not be vested in the power of a single man."
[119] Today, the United States military is
obviously involved in an open-ended "police action" in the
Middle East--and the fateful decision to engage in
full-scale war rests with a single person in the American
government: Bill Clinton. That is precisely the type of
situation that the Constitution was designed to
prevent. Most Americans support the
propositions that "all persons are created equal" and that
individuals ought to be judged according to "the content of
their character, not the color of their skin."
[120]
And those propositions are now a fixture in American law.
The equal protection clause of the Fourteenth Amendment
provides: "No State shall . . . deny to any person within
its jurisdiction the equal protection of the laws." While it
is an unfortunate part of our history that that provision
lay dormant for many decades, Congress did pass the Civil
Rights Act of 1964, which brought the promise of equal
rights under the law to fruition by giving any victim of
state-sponsored discrimination an effective remedy in the
federal court system. [121] Although President Clinton has always
campaigned as a moderate Democrat and has expressed
opposition to racial quotas and reverse discrimination, his
conduct in office tells a different story. The Clinton White
House has supported racial preferences in a variety of
contexts, including government hiring, contracting, and
university admissions. In September 1994, for example, the
Clinton administration raised eyebrows around the country
when it switched sides in a discrimination lawsuit that was
pending before the Third Circuit Court of Appeals,
Piscataway Township Board of Education v. Taxman.
[122]
Sharon Taxman sued the Piscataway Board of Education for
illegal discrimination in 1989 when she was fired for the
sake of "racial diversity." Taxman had been teaching a
business education course at the Piscataway high school for
nine years. Because of declining enrollment, the board was
forced to eliminate a teaching position. Under union rules,
seniority was to be the primary factor in determining who
would stay and who would have to go. The board acknowledged
that Taxman and a black colleague "were tied in seniority
and all other respects." [123]
Although similar situations had been previously resolved by
drawing lots, the school board decided to retain the black
teacher in order to maintain diversity within the business
department. The Bush administration filed legal
briefs in the case, agreeing with Taxman that the action by
the Piscataway Board of Education was prohibited by federal
civil rights laws. The Clinton administration, however,
reversed the position of the U.S. government in federal
appellate court. Clinton's legal team defended the school
authorities, arguing that a broad ban on race-conscious
policies would have a "harmful effect upon the ability of
employers to voluntarily adopt and implement affirmative
action policies." [124] The Clinton Justice Department also
defends racial preferences in government contracting. In
1989 a Colorado-based highway construction company named
Adarand Constructors Inc. submitted a bid on a Department of
Transportation construction project. Although Adarand
submitted the lowest bid of all the competing construction
companies, the contract was awarded to a minority-controlled
company. The prime contractor admitted that it would have
accepted Adarand's bid had it not been for monetary
incentives in federal law that encourage the hiring of
businesses controlled by "socially and economically
disadvantaged individuals," which were legally
presumed to be "black Americans, Hispanic Americans, and
other minorities." [125]
Adarand sued the Department of Transportation for its
racially based contracting practices. The Adarand
case ultimately reached the Supreme Court. President
Clinton's legal team defended the government's contracting
procedures and said Adarand's constitutional right to equal
protection of the law had not been violated.
[126] The Clinton administration believes
racial preferences in university admissions are appropriate
as well. In March 1996 the Fifth Circuit Court of Appeals
struck down the admissions policy of the University of Texas
Law School. That policy had been challenged by four white
students who were denied admission because of their race.
The University of Texas conceded in court papers that its
admissions policy was designed to meet an "aspiration" of
admitting a class of 10 percent Mexican Americans and 5
percent blacks. The university also conceded that the white
students had better academic credentials than some of the
minority students who had gained admission but defended the
double standard as necessary to attain a desirable racial
composition of the student body. The Fifth Circuit decision jarred the
academic world. Many colleges and universities were under
the impression that the law permitted racial preferences if
the purpose was to enhance diversity. The court, however,
unanimously rejected that justification for racial
discrimination: President Clinton's legal team
strongly disagreed with the Hopwood ruling--and it
urged the Supreme Court to reverse the appellate court
decision so that colleges and universities could continue to
take race into account in admissions decisions. The Supreme
Court apparently did not share the alarm expressed by the
Justice Department as it declined the government's strenuous
plea that it review the case. The most disturbing aspect of the
Clinton civil rights record, however, is the lengths to
which the president (and his lawyers) will go to stop
policies with which he disagrees. In the Hopwood
case, the president's legal team struck a "states' rights"
posture, expressing alarm at the prospect of federal judges'
"second-guessing the wisdom" of policies adopted by state
governmental organs (such as a state university law school).
[128]
But when California citizens voted to forbid state-sponsored
racial preferences in public schools, public employment, and
public contracting, the president's legal team rushed into
court to ask a federal judge to second-guess the wisdom of
that policy. [129] The Clinton administration's attack on
the California Civil Rights Initiative drew derision from
Legal Times columnist Stuart Taylor, among others.
Taylor opposed the CCRI but was taken aback by the claim
that the initiative was a violation of the Constitution.
[130]
He began his cogent legal analysis by juxtaposing the equal
protection clause and the CCRI. --U.S. Constitution,
Amendment XIV The state shall not discriminate
against, or grant preferential treatment to, any
individual or group on the basis of race, sex, color,
ethnicity, or national origin. . . . --California Civil
Rights Initiative Taylor proceeded to identify the legal
issue before the courts and to assess the persuasiveness of
the constitutional argument against the CCRI. The Justice Department's legal
challenge to the CCRI will in all likelihood fail. The point
here, however, is simply to show the president's willingness
to use all of the powers (and arguments) at his disposal to
perpetuate race-conscious policies in America. The Justice
Department's lawsuit is forcing every state and locality to
think twice about following California's lead--lest they be
sued by the attorney general of the United States. By
raising the specter of costly litigation, President Clinton
clearly hopes to keep every state and locality in line with
his personal belief in racial social engineering. By his official actions as president,
Bill Clinton has once again demonstrated a fundamental
misunderstanding of what the Constitution is all about. The
equal protection clause and the Civil Rights Act of 1964
were designed to protect individual persons, not certain
racial or ethnic groups. And the whole point of those laws
is to make race, religion, ethnicity, and gender
irrelevant factors in governmental decisionmaking.
[132]
The racial policies of the Clinton administration, however,
reflect a different philosophy. As former New
Republic editor Andrew Sullivan has observed, "The
President's heart . . . clearly belongs with those people
who look at America and see groups rather than individuals
and who see results rather than opportunities."
[133]
President Clinton has a right to his own opinion, of course,
but until he can persuade the citizenry to change the
fundamental law of the Constitution, it is his duty to
enforce the norms that are embodied in the equal protection
clause. President Clinton is the first
president in American history to deny that the Constitution
limits the powers of the federal government. The Clinton
White House has sought to federalize health care, crime
fighting, environmental protection, and education. It has
also tried to thwart any effort to downsize federal agencies
and programs. Although the Washington press corps has
dutifully scrutinized the fledgling efforts of the 104th
Congress to breathe life into the Tenth Amendment of the
Constitution, which affirms that the federal government has
only limited powers, the president's efforts to expand
federal power have received scant attention from a Tenth
Amendment perspective. By his official conduct as president,
Clinton has made it clear that he believes there is no area
of human activity that is beyond the redistributive or
regulatory reach of the federal government and that the
state governments essentially operate at the sufferance of
the national government. Such a view contravenes the text,
history, and structure of our Constitution. A Government of Limited
Powers The Constitution creates a federal
government of limited powers. As James Madison noted in
Federalist no. 45, "The powers delegated by the proposed
Constitution to the federal government are few and defined.
Those which are to remain in the State governments are
numerous and indefinite." [134]
Most of the federal government's "delegated powers" are
specifically set forth in article I, section 8 of the
Constitution. The Tenth Amendment was appended to the
Constitution to make it clear that the powers not delegated
to the federal government "are reserved to the States
respectively, or to the people." Thomas Jefferson considered the Tenth
Amendment "the foundation of the Constitution" because it
preserved vast areas of life from national politics.
Jefferson explained the American conception of federalism
this way: Despite that "correct understanding,"
however, Jefferson recognized that federal officials were
subverting the original design by venturing outside their
constitutional sphere. "I see . . . the rapid strides with
which the federal branch of our government is advancing
towards the usurpation of all the rights reserved to the
States, and the consolidation in itself of all powers,
foreign and domestic." [136]
Jefferson did not view that development with indifference;
he bitterly condemned it. Since Jefferson's day, American
history has recorded dozens of battles in the political
arena and the courts between those who would usurp
undelegated powers and those who defend the Tenth Amendment
and the doctrine of enumerated powers. [137] Before proceeding to President
Clinton's record in this area, it will be useful to make two
points about the ongoing debate over constitutional
federalism. First, this debate is not about the wisdom or
desirability of imposing a federal solution on any
particular social problem. The issue is one of
constitutional legitimacy, plain and simple.
[138]
Second, the debate has always been over the scope of a
particular delegated power, not over whether the federal
government can exercise undelegated powers. No
one--not even President Clinton--has dared to argue that
federal laws can be passed simply to enhance the welfare of
the American people. When the subject is constitutional
federalism, the debate is always between those who contend
that a federal program or law is within the scope of a
delegated power and those who maintain that the government
is invoking a delegated power as a pretext to usurp powers
that were reserved to the states or the people under the
Tenth Amendment. [139] Clinton's Drive for
Limitless Federal Power President Clinton came to Washington
claiming an affinity with Thomas Jefferson. In January 1993
Clinton symbolically retraced the journey Jefferson had made
to the capital city in 1801 to assume office as the third
president of the United States. [140]
When the inaugural festivities were over, however, President
Clinton proceeded to repudiate Jefferson's constitutional
principles by trampling all over the Tenth
Amendment. The top priority of President
Clinton's first term was, of course, the federalization of
the health care system. If Clinton's plan had been enacted,
the federal government would have taken over any state
program that did not meet centrally planned goals.
[141]
The president fought hard for a comprehensive system that
would have included every person in America. While almost
everyone debated the merits of the Clinton plan on a policy
level, David Rivkin, writing in the Wall Street
Journal, raised a more fundamental question about the
president's initiative: "Where, exactly, does the U.S.
government get the power to require that every one of its
citizens must participate in a government-sponsored health
care plan?" [142]
Although the question never arose because the Clinton plan
was ultimately rejected by Congress, had the plan succeeded,
the president's legal team would have been forced to
identify one of the federal government's enumerated powers
in constitutional litigation. It would become painfully
clear later on, however, that Clinton believes that the
federal government has "plenary powers." [143] The Clinton administration removed any
doubts about its stance in a landmark case before the
Supreme Court, United States v. Lopez (1995).
[144]
A 12th-grade student in San Antonio, Texas, Alphonso Lopez,
was discovered carrying a handgun at school. He was arrested
under a Texas law prohibiting the possession of firearms on
school premises, but federal agents soon took over the case,
charging Lopez with violating the Gun-Free School Zones Act
of 1990, and he was convicted in federal court. Lopez's
attorney argued on appeal that Congress had exceeded its
constitutional authority when it passed the school zone law.
The Fifth Circuit Court of Appeals agreed with Lopez's
attorney, and the conviction was overturned, whereupon
Clinton's legal team appealed the Fifth Circuit's ruling to
the Supreme Court, which agreed to hear the case. Solicitor General Days argued that the
Gun-Free School Zones Act could be justified under
Congress's power "to regulate Commerce with foreign Nations,
and among the several States, and with the Indian Tribes."
145]
Days's argument went like this: possession of a gun in a
school zone (a) might lead to violent crime, which (b) might
threaten the learning process, which (c) might ultimately
produce less productive citizens, which (d) might,
cumulatively, impair the national economy and interstate
commerce. When Days appeared before the Court
for oral argument, the justices pressed him on the
implications of his constitutional theory: GENERAL DAYS: Yes. QUESTION: --that all violent crime,
if Congress so desired, could be placed under a Federal
wing, could be placed in the Federal court for
prosecution, all violent crime, or is there any stopping
point? Is there any violent crime that doesn't affect
interstate commerce on you[r]
rationale? GENERAL DAYS: Well, Your Honor, I
think the answer is that it may be possible for Congress
to do that under the commerce power. . . . QUESTION: [So] there is no
question that Congress has the power, in effect, to take
over crime, because I-- GENERAL DAYS: I do not-- QUESTION: --presume there's no
limitation on your rationale, or on Congress' rationale,
that would preclude it from reaching any traditional
criminal activity. GENERAL DAYS: That's correct.
[146] As that exchange makes clear, the
stakes in Lopez went well beyond the
constitutionality of the Gun-Free School Zones Act. The
Clinton Justice Department outlined a radically expansive
theory of federal power. Solicitor General Days maintained
that the federal government could not only fight all types
of violent crime but could regulate any activity that might
lead to violent crime. Days also argued that Congress's
power to regulate commerce included the power to regulate
activities related to the "productivity" of individual
citizens. The Supreme Court recoiled from the
Clinton administration's position. "If we were to accept
[Days's] arguments, we are hard-pressed to posit any
activity by an individual that Congress is without power to
regulate." [147]
Justice Clarence Thomas observed that under Days's theory,
the Court would essentially have to turn "the Tenth
Amendment on its head" to read that all power that was not
expressly prohibited by the Constitution was
reserved to the federal government. [148] President Clinton was outraged by the
Supreme Court's decision. He ordered Attorney General Reno
to find a way to circumvent the Lopez ruling.
[149]
Within weeks a nearly identical law with a thin
constitutional veneer was sent to Congress for legislative
action. Several months later President Clinton demanded that
his school zone bill be included in a year-end
appropriations measure. In a stunning act of defiance,
Clinton signed the Gun-Free School Zones Act into law again
on September 30, 1996. [150]
In all likelihood, the Supreme Court will strike the law
down again. The point here, once again, is simply to show
how committed President Clinton is to his expansive vision
of federal power. The president continues to push his
broad reading of the commerce power. That power, he would
have us believe, gives the federal government carte blanche
to do whatever it wants. Thus, in December 1996, in
constitutional litigation before the Supreme Court, Acting
Solicitor General Walter Dellinger maintained that the
federal government could commandeer state government
resources (including employees) to pursue federal
objectives. At oral argument, Justice Antonin Scalia
observed that under the Clinton administration's theory, the
states could be forced "to dance like marionettes on the
fingers of the Federal Government." [151] President Clinton has also backed
"anti-terrorism" proposals that would have federalized all
violent offenses in America. [152]
Although those provisions did not pass Congress, the
president has indicated his willingness to federalize
anything that Congress does approve. Clinton has, for
example, signed bills that would make it a federal crime to
engage in church arson, wife beating, stalking, and female
genital cutting. [153]
All of that and more is rationalized under Congress's
delegated power "to regulate Commerce with foreign Nations,
and among the several States, and with the Indian Tribes."
Here are a few examples of what the executive branch is
pushing in federal court: The constitutional claims in the above
cases pose a very stark question: are President Clinton's
lawyers defending the Constitution, or are they using the
commerce clause as a pretext to pursue objectives that are
not entrusted to the federal government by the Constitution?
The answer to that question is sadly obvious. Thomas Jefferson had nothing but
contempt for constitutional subterfuge. He decried the
arguments of the federal aggrandizers in 1800: "Congress are
authorized to defend the nation. Ships are necessary for
defense; copper is necessary for ships; mines necessary for
copper; a company necessary to work the mines; and who can
doubt this reasoning who has ever played at 'This is the
house that Jack built'?" [159]
Jefferson and many others recognized that the Tenth
Amendment was added to the Constitution to protect the
states and the people against "constructive" powers: "Our
peculiar security is in [our] possession of a
written Constitution. Let us not make it a blank paper by
construction." [160] President Clinton has exhibited utter
disdain for the Tenth Amendment, for the doctrine of
enumerated powers, and for state policies with which he
personally disagrees. His repeated attempts to consolidate
all power in the federal domain are indefensible. As his first term of office drew to a
close, Bill Clinton proclaimed, "One of my highest goals as
President has been . . . to protect and uphold the
Constitution." [161]
In light of the evidence set forth in this study, it seems
obvious that that statement was simply a platitudinous
throwaway line that was completely devoid of
substance. Supporters of the Clinton White House
can point with pride to a handful of presidential actions in
defense of constitutional rights--such as the signing of the
Religious Freedom Restoration Act and the Justice
Department's lawsuit against the Virginia Military Institute
on behalf of gender equality [162]--but
those acts were exceptions to the rule. Indeed, some
constitutionalists and civil liberties attorneys might very
well claim that this study does not go far enough in its
criticisms of the Clinton record. [163]
Although this study is not an exhaustive account of every
presidential action over the last four years, it does
present overwhelming evidence that Clinton has been derelict
in his duty to "protect and preserve" our Constitution. If
constitutional report cards were handed out to presidents,
Bill Clinton would certainly receive an F--an appalling
grade for any president--let alone a former professor of
constitutional law. Perhaps Clinton will resolve to be
more conscientious about his constitutional responsibilities
in his second term. One can only hope that he will. But
should his dereliction of duty continue, Congress and the
Supreme Court should stand fast against any constitutional
transgression. All three branches of
government--executive, legislative, and judicial--should
strive to be more conscientious about meeting the
responsibilities that have been assigned to them under the
Constitution. Constitutional violations are frequently
temporary, isolated events. The most serious constitutional
violations occur when all three branches conspire
to expand the bounds of government power. When that happens,
it becomes very difficult to right the wrong. Precedents are
extremely important. That is why any constitutional
transgression by any branch is alarming. The American people should jealously
guard their liberty and hold all government officials
accountable when they neglect or disregard the Constitution.
Its Framers were keenly aware that the ultimate source of
the Constitution's authority is the consent of the people.
If the American electorate demands adherence to the Bill of
Rights and the other provisions of our Constitution,
government officials will respect the constitutional
limitations on their power. But, as Judge Learned Hand
warned many years ago, "Liberty lies in the hearts of men
and women; [if] it dies there, no constitution, no
law, no court can save it." [164]
[1].
See Gary Lawson and Christopher D. Moore, "The Executive
Power of Constitutional Interpretation," Iowa Law
Review 81 (1996): 1267-1330. See also Edwin J. Meese,
"The Law of the Constitution," Tulane Law Review 61
(1987): 979-90; and Sanford Levinson, "Could Meese Be Right
This Time?" Tulane Law Review 61 (1987):
1071-78. [2].
Graves v. O'Keefe, 306 U.S. 466, 491-92 (1938). See
also Stephen Carter, "The Courts Are Not the Constitution,"
Wall Street Journal, February 7, 1989, p.
A24. [3].
Thomas Jefferson, Letter to William C. Jarvis, September 28,
1820, excerpted in Gerald Gunther, Constitutional
Law, 12th ed. (Westbury, N.Y.: Foundation Press,
1991),p. 22. [4].
Frank H. Easterbrook, "Presidential Review," Case
Western Reserve Law Review 40 (1990): 918. See also
John O. McGinnis, "Models of the Opinion Function of the
Attorney General: A Normative, Descriptive, and Historical
Prolegomenon," Cardozo Law Review 15 (1993):
375-436; and David P. Currie, "The Constitution in Congress:
Substantive Issues in the First Congress," University of
Chicago Law Review 61 (1994): 775-865. [5].
Constitution of the United States, article II, ß 1,¶
8. [6].
Joseph Story, Commentaries on the Constitution of the
United States (1833; Durham, N.C.: Carolina Academic
Press, 1987), ß 969, p. 688. [7].
John Randolph Tucker, The Constitution of the United
States: A Critical Discussion of Its Genesis, Development,
and Interpretation (Chicago: Callaghan, 1899), vol.
2,p. 715. [8].
Grover Cleveland, First inaugural address, March 4, 1885, in
The Inaugural Addresses of the Presidents, ed. John
Gabriel Hunt (New York: Gramercy Books, 1995), p.
245. [9].
Turner Broadcasting, Inc. v. FCC, 114 S. Ct. 2445,
2458 (1994). [10].
John E. Nowak, Ronald D. Rotunda, and J. Nelson Young,
Constitutional Law, 3d ed. (St. Paul: West, 1986),
p. 830. For a fuller discussion of the history and purpose
of the free speech clause, see William Van Alstyne, "A
Graphic Review of the Free Speech Clause," California
Law Review 70 (1982): 107-50. [11].
Board of Education v. Barnette, 319 U.S. 624, 638
(1943). [12].
See "U.S. Considers Suing 3 Who Fought a Project for the
Homeless," New York Times, July 31, 1994, p. 18;
and Guy Gugliotta, "ACLU Alleges Free Speech Violations in
HUD Probes," Washington Post, August 17, 1994, p.
A20. [13].
Quoted in Nat Hentoff, "Watch What You Say," Washington
Post, February 4, 1996. See also Heather MacDonald,
"HUD Continues Its Assault on Free Speech," Wall Street
Journal, September 14, 1994, p. A19. [14].
See Brief for the United States, Madsen v. Women's
Health Center, 114 S. Ct. 2516 (1994). [17].
Ibid. at 2535 (Scalia, J., dissenting). [18].
Robyn Blumner,"Abortion Battles Limit Rights for All,"
St. Petersburg Times, October 29, 1995, p. 7D. See
also Robyn Blumner, "Anti-Abortion Protestors Treated
Unfairly," St. Petersburg Times, April 14, 1996, p.
5D. [19].
See Toni Locy, "Priest Sues Military over Speech Issue,"
Washington Post, September 24, 1996. [20].
Quoted in Doug Bandow, "Military Yardstick of Religious
Freedom?" Washington Times, August 14, 1996. In
Rankin v. McPherson, 483 U.S. 378, 384 (1987), the
Supreme Court stated, "Vigilance is necessary to ensure that
public employers do not use authority over employees to
silence discourse, not because it hampers public functions
but simply because superiors disagree with the content of
employees' speech." [21].
See "Doctors Given Federal Threat on Marijuana," New
York Times, December 31, 1996, p. A1; and "A Doctor Is
Questioned over Marijuana Law," New York Times,
February 17, 1997. For some background information on the
politicization of medicinal marijuana, see Doug Bandow,
"Sometimes Marijuana Is the Best Medicine," Wall Street
Journal, January 28, 1993, p. A15. [22].
See Todd S. Purdum, "Clinton Takes on Violence on TV,"
New York Times, July 11, 1995, p. A1. See also
Robert Corn-Revere, "'V' Is Not for Voluntary,"
Cato
Institute Briefing Paper no. 24,
August 3, 1995. [23].
See Ellen Edwards, "Reno: Curb TV Violence: Regulation Not
Unconstitutional, Panel Told," Washington Post,
October 21, 1993, p. A1. See also "Janet Reno's Heavy Hand,"
editorial, New York Times, October 22,
1993. [24].
Floyd Abrams, "Save Free Speech," New York Times,
November 23, 1993. See also Lawrence J. Siskind, "The Folly
and Futility of Censoring Violence," Legal Times,
November 22, 1993, p. 28. [25].
See Lawrie Mifflin, "It's Now Law: 3 Hours of Chil-dren's
TV," New York Times, August 9, 1996. See also
Robert Corn-Revere, "Regulation in Newspeak: The FCC's
Children's Television Rules," Cato
Institute Policy Analysis no. 268,
February 19, 1997. [26].
Quoted in "FCC Rules Overprotective, Judge Says,"
Chicago Tribune, October 20, 1994. [27].
See Action for Children's Television v. FCC, 58
F.3d 654 (1995). [28].
See Solveig Bernstein, "Beyond the Communications Decency
Act: Constitutional Lessons of the Internet,"
Cato
Institute Policy Analysis no. 262,
November 4, 1996. [29].
Harvey Silvergate, "Cyber Speech at Risk," National Law
Journal, March 4, 1996, p. A19. [30].
American Civil Liberties Union v. Reno, 929 F.
Supp. 824, 881 (1996) (opinion of Dalzell, J.). [32].
American Civil Liberties Union v. Reno at 855
(internal quotation marks omitted). [33].
Ibid. at 882 (opinion of Dalzell, J.). [34].
See Linda Greenhouse, "Statute on Internet Draws High
Court's Review," New York Times, December 7, 1996,
p. A1. See also Brief for the United States, Reno v.
American Civil Liberties Union, Case no. 96-511,
January 21, 1997. [35].
See American Civil Liberties Union v. Reno at
857. [36].
See United States v. Dotterweich, 320 U.S. 277,
292-93 (1943) (Murphy, J., dissenting). [37].
Although the Supreme Court itself adhered to such a view for
many years, more and more justices have recognized that
speech does not lose its First Amendment protection just
because it concerns commercial matters or promotes
commercial interests, as in a paid advertisement. The best
scholarly work on commercial speech is by Federal Appellate
Judge Alex Kozinski and attorney Stuart Banner. See Alex
Kozinski and Stuart Banner, "Who's Afraid of Commercial
Speech?" Virginia Law Review 76 (1990): 627-53; and
Alex Kozinski and Stuart Banner, "The Anti-History and
Pre-History of Commercial Speech," Texas Law Review
71 (1993):747-75. [38].
See Todd S. Purdham, [Purdum], "Clinton Urges
Sweeping Plan to Curb Teen-Age Smoking," New York
Times, August 11, 1995, p. A1; and John Schwartz and
John F. Harris, "Clinton to Sign Plan to Curb Teen Smoking:
Order Would Grant Broad Powers to FDA," Washington
Post, August 22, 1996, p. A1. For a strong
constitutional defense of tobacco advertising, see Robert
Peck, "Is Cigarette Advertising Protected by the First
Amendment? Yes," Priorities, Summer 1993, p.
24. [39].
Brief for the United States at 30, Rubin v. Coors
Brewing Company, 115 S. Ct. 1585 (1995). [40].
Rubin at 1597 (Stevens, J., concurring). [41].
44 Liquormart v. Rhode Island, 116 S. Ct. 1495,
1515-16 (1996) (Thomas, J., concurring). [42].
Brief for the United States at 17, Rubin. For an excellent
article on why both liberals and conservatives should resist
that argument, see David M. Burke, "The 'Pre-sumption of
Constitutionality' Doctrine and the Rehnquist Court: A
Lethal Combination for Individual Liberty," Harvard
Journal of Law and Public Policy 18 (1994):
73-173. [43].
Quoted in Ruth Marcus and Joan Biskupic, "Justice White to
Retire after 31 Years," Washington Post, March 20,
1993, p. A1. See also Bill Clinton, "Judicial Excellence
Safeguards All," National Law Journal, November 4,
1996, p. A19 (describing his constitutional
philosophy). [44].
William Crosskey, "The True Meaning of the Constitutional
Prohibition of Ex Post Facto Laws," University of
Chicago Law Review 14 (1946): 539. See also Steve
Selin-ger, "The Case against Civil Ex Post Facto
Laws,"
Cato Journal 15, nos. 2-3
(Fall-Winter 1995-96): 191-213. [45].
This Week with David Brinkley, August 8, 1993,
Program no. 615, transcript, p. 6. [46].
Brief for the United States at 18n. 15, United States v.
Carlton, 116 S. Ct. 2018 (1994). [47].
Ibid. at 20 (internal quotation marks omitted) (approvingly
quoting Cohan v. Commissioner, 39 F.2d 540,
545(1930)). [48].
McCulloch v. Maryland, 17 U.S. 316, 431
(1819). [49].
The Clinton administration may take solace from the fact
that the courts have long viewed the ex post facto clause as
applying solely to criminal statutes. There are at least
three responses to that observation. First, that fact cannot
absolve the president from responsibility for his pernicious
proposal. If other presidents have managed to avoid signing
retroactive tax increases--and they have--President Clinton
could have done so as well. Second, any American taxpayer
who refused to pay the Clinton tax would have been exposed
to criminal penalties. It is therefore difficult to see how
even the narrow judicial reading of the ex post facto clause
would not be applicable. Third, there is much evidence that
the early Court rulings on the ex post facto clause were
incorrect and that that clause actually prohibits criminal
and civil laws. See Crosskey; and Selinger. If Clinton's
legal team was anxious to protect the civil liberties of the
American people, they would have sought out that easily
obtainable information and urged the Court to reverse its
earlier misguided holdings. [50].
McDonald v. United States, 335 U.S. 451, 455-56
(1948). For a fuller discussion of the Fourth Amendment's
warrant clause, see Tracey Maclin, "The Central Meaning of
the Fourth Amendment," William and Mary Law Review
35 (1993): 197-249; and Phyllis T. Bookspan, "Reworking the
Warrant Requirement: Resuscitating the Fourth Amendment,"
Vanderbilt Law Review 44 (1991):
473-530. [51].
Quoted in R. Jeffrey Smith, "Administration Backing
No-Warrant Spy Searches," Washington Post, July 15,
1994,p. A19. [52].
See Kate Martin, Testimony on behalf of the American Civil
Liberties Union on Warrantless National Security Physical
Searches before the House Permanent Select Committee on
Intelligence, July 14, 1994, p. 17. [53].
See Richard Gid Powers, Secrecy and Power (New
York: Free Press, 1987), pp. 439-85. [54].
See Benjamin Wittes, "Aldrich Ames' Legal Legacy:
Surveillance Court Gets New Powers," Legal Times,
November 7, 1994, p. 1. [55].
See Pratt v. Chicago Public Housing Authority, 848
F. Supp. 792 (1994). [57].
See Guy Gugliotta, "Clinton Lets Police Raid Projects,"
Washington Post, April 17, 1994, p. A1; and Kevin
G. Salwen, "White House Allows Searches without Warrants in
Public Housing," Wall Street Journal, April 18,
1994. [58].
See, for example, Clarence Page, "For CHA Residents, a Fight
to Keep Their Constitutional Rights," Chicago
Tribune, April 13, 1994, p. 21; and Cal Thomas, "The
Danger in Clinton's Desire to Waive Our Inalienable Rights,"
Orlando Sentinel, April 28, 1994, p.
A17. [59].
See "Gun Sweeps: No Model for Cities," editorial, New
York Times, April 20, 1994, p. A18. [60].
Charles Ogletree and Abbe Smith, "Clinton's Plan Is
Misguided," New York Times, May 7, 1994, p.
23. [61].
See Brief for the United States, Veronica School
District v. Acton, 115 S. Ct. 2386 (1995). [63].
See Veronica School District at 2404 (O'Connor, J.,
dissenting). [64].
See Robyn Blumner, "Clinton Showing Disdain for Civil
Liberties," St. Petersburg Times, June 9, 1996, p.
4D. [65].
See Katz v. United States, 389 U.S. 347
(1967). [66].
See John F. Harris and John E. Yang, "Anti-Terror Bills
Pushed by Clinton," Washington Post, July 30, 1996,
p. A1. [67].
ACLU official Laura Murphy quoted in Marcia Coyle, "Clinton,
Dole Rate Low on Civil Liberties," National Law
Journal, October 28, 1996, p. A1. See also Nadine
Strossen, "No Safer, But a Little Less Free," Washington
Post, September 2, 1996. [68].
See Jim McGee, "Wiretapping Rises Sharply under Clin-ton,"
Washington Post, July 7, 1996, p. A1. [70].
See Sabra Chartrand, "Clinton Gets a Wiretapping Bill That
Covers New Technologies," New York Times, October
9, 1994, p. 27. For a good critique of that measure, see
Barry Steinhardt, "New Legislation Authorizes Wholesale
Invasion of Privacy," St. Louis Post-Dispatch,
November 5, 1996,p. 11B. [71].
Quoted in McGee. See also John Markoff, "F.B.I. Wants
Advanced System to Vastly Increase Wiretapping," New
York Times, November 2, 1996, p. A1. [72].
See "The Ominous Powers of Federal Law Enforcement,"
Cato
Handbook for Congress
(Washington: Cato Institute, 1997), pp. 235-43. [73].
See Lucas v. South Carolina Coastal Council, 505
U.S. 1003 (1992). For a fuller discussion of takings, see
Roger Pilon, "Property Rights, Takings, and a Free Society,"
Harvard Journal of Law and Public Policy 6
(1983):165-195. [74].
See H. Jane Lehman, "Private Property Rights Proponents Gain
Ground," Washington Post, September 17, 1994, p.
E1; and Marianne Lavelle, "The 'Property Rights' Revolt,"
National Law Journal, May 10, 1993, p. 1. See also
Jonathan H. Adler, "The Takings Cause," National
Review, December 19, 1994, pp. 32-36. [75].
See Kenneth R. Harney, "Senate Bill Would Give Property
Owners New Weapons in Battle with Regulators,"
Washington Post, May 13, 1995, p. E1. [76].
Quoted in "President Vows Veto of Bill to Reimburse Property
Owners," New York Times, April 23, 1995, p.
24. [77].
See Maryland v. Craig, 497 U.S. 836, 870 (1990)
(Scalia, J., dissenting). It must also be recognized that
the cost of the property rights bill is a function of the
federal government's regulatory activity. If the government
simply abated genuine nuisances that threatened the rights
of others, the "toll" on the U.S. Treasury would be nothing.
See Roger Pilon, "Are Property Rights Opposed to
Environmental Protection?" in The Moral High Ground: An
Anthology of Speeches, ed. Carol W. LaGrasse, Speeches
from the First Annual New York State Conference on Private
Property Rights, October 14, 1995, Property Rights
Foundation of America, Inc., p. 18. [78].
See Paul M. Barrett, "A Store Owner's Squabble with a City
Tests Government's Right to Private Land," Wall Street
Journal, March 23, 1994, p. B1. See also George F.
Will, "Extortionist City Government," Washington
Post, March 20, 1994, p. C7; and Steven J. Eagle,
"Private Property Rights vs. Public Works," Wall Street
Journal, March 2, 1994,p. A11. [79].
Armstrong v. United States, 364 U.S. 40, 49
(1960). [80].
See Brief for the United States at 25, Dolan v. City of
Tigard, 114 S. Ct. 2309 (1994). [81].
Dolan at 2320. See also Richard A. Epstein, "The Permit
Power Meets the Constitution," Iowa Law Review 81
(1995): 407-22; and Timothy Lynch, "Property Rights and
'Rough Proportionality,'" Regulation,
no. 3 (1994): 16-18. [82].
Bartkus v. Illinois, 359 U.S. 121, 151-55 (1959)
(Black, J., dissenting) (citations omitted). [84].
See Daniel A. Braun, "Praying to False Sovereigns: The Rule
of Successive Prosecutions in the Age of Cooperative
Federalism," American Journal of Criminal Law 20
(1992): 4, 5n. 15. [85].
See Philipp M. Gollner, "2d Trial of Officers Stirs Talk Of
Jeopardy," New York Times, February 19,
1993. [86].
The federal prosecution was rightly condemned by a broad
range of commentators. See William F. Buckley, "The Los
Angeles Trial, in a Word, Stinks," Houston
Chronicle, April 14, 1993, p. 10C; Alan Dershowitz,
"Double Jeopardy for L.A. Cops," San Francisco
Examiner, May 10, 1992; Charlotte Allen, "The King Cops
and Double Jeopardy," Wall Street Journal, May 20, 1992, p.
A17; and Doug Bandow, "The Risks of a Second King Trial,"
Chicago Tribune, June 23, 1992. [87].
This Week with David Brinkley, April 18, 1993,
Program no. 599, transcript, p. 4. [88].
See Jan Hoffman, "A Rarely Used Law from the Civil Rights
Era," New York Times, January 26, 1994. [89].
See Joseph P. Fried, "A New Crown Hts. Trial Revisits
Brooklyn Night of Murder in '91," New York Times,
January 17, 1997, p. A1. [90].
See, for example, United States v. Robinson, 42
F.3d 433 (1994); and United States v. Alvarez, 928 F. Supp.
734 (1996). Many other cases are under consideration. See,
for example, Don Van Natta Jr., "Federal Charges Weighed in
Fireman's Death," New York Times, July 4,
1996. [91].
See Brief for the United States, United States v.
Ursery, 116 S. Ct. 2135 (1996). See also Roger Pilon,
"Forfeiting Reason," Regulation,
no. 3 (1996): 15-19. [92].
Brief for the United States, Ursery. For another
variation of this sort of one-two punch by prosecutors, see
United States v. 152 Char-Nor Manor Blvd., Chestertown,
Md., 922 F. Supp. 1064 (1996). [93].
James Madison, Federalist no. 46, in The Federalist
Papers (New York: New American Library, 1961), p.
299. [94].
William Van Alstyne, "The Second Amendment and the Personal
Right to Arms," Duke Law Journal 43 (1994): 1241.
See also Sanford Levinson, "The Embarrassing Second
Amendment," Yale Law Journal 99 (1989): 637-59;
Robert J. Cottrol and Raymond T. Diamond, "The Second
Amendment: Toward an Afro-Americanist Reconsideration,"
Georgetown Law Journal 80 (1991): 309-61; Glenn
Harlan Reynolds, "A Critical Guide to the Second Amendment,"
Tennessee Law Review 62 (1995):461-512; and Akhil
Amar, "The Bill of Rights as a Constitution," Yale Law
Journal 100 (1990): 1131-1210. Liberals outside the
academy have also questioned the conventional wisdom
surrounding the Second Amendment. See, for example, Nat
Hentoff, "A Second Look at the Second Amendment,"
Washington Post, March 9, 1996, p. A21; and Don B.
Kates Jr., "Handgun Prohibition and the Original Meaning of
the Second Amendment," Michigan Law Review 82
(1983): 204-73. [95].
For a fuller discussion on the history of the Second
Amendment, see Stephen P. Halbrook, "The Right of the People
or the Power of the State: Bearing Arms, Arming Militias,
and the Second Amendment," Valparaiso Law Review 26
(1991): 131-207; and Joyce Lee Malcolm, "The Right of the
People to Keep and Bear Arms: The Common Law Tradition,"
Hastings Constitutional Law Quarterly 10 (1983):
285-314. [96].
Quoted in Thomas L. Friedman, "Clinton Signs Bill on Guns
into Law," New York Times, December 1,
1993. [97].
It is far from clear that the Brady law is working as its
proponents advertised it would. A national survey of police
chiefs found that 85 percent believed that the law had done
next to nothing to prevent criminals from obtaining handguns
in their jurisdictions. Criminals just use the local black
market. See Clifford Krauss, "Much Ado, Little Done,"
New York Times, November 23, 1993, p. B9; and James
Bovard, "Clinton's Gun Hoax," Wall Street Journal,
September 17, 1996. Even more disturbing, however, is the
life-threatening vulnerability that some honest and peaceful
citizens must endure during the five-day waiting period.
See, for example, Peter Alan Kasler, "A Victim of Gun
Control," New York Times, July 13, 1991, ß 1,
p. 21. [98].
Proponents of gun control openly admitted that that was
their strategy. See Stephen Labaton, "Administration Floats
Proposal for Licensing All Gun Owners," New York
Times, December 10, 1993, p. A1. A similar dynamic was
at work in the debate over the so-called assault weapons
ban. As my colleague William Niskanen observed, "The ban is
hotly contended, primarily because its supporters hope and
its critics fear that it will serve as a precedent for a
broader ban of semiautomatic rifles." William A. Niskanen,
"Crime, Police, and Root Causes," Cato
Institute Policy Analysis no. 218,
November 14, 1994, p. 3. For a critical appraisal of
President Clinton's proposal, see James Bovard, "The Assault
on Assault Weapons," Wall Street Journal, January
6, 1994, p. A12; and Eric C. Morgan and David Kopel, "The
Assault Weapons Panic," Independence Institute Issue Paper
no. 10-93, Golden, Colorado, April 10, 1993. [99].
See Labaton; and Ann Devroy and Pierre Thomas, "White House
Group Studies Broadest Gun Control Plan in Decades,"
Washington Post, December 10, 1993, p.
A11. [100].
Attorney General Reno explained the administration's view at
a Justice Department news conference: "I don't think
somebody should have a gun unless they can demonstrate that
they know how to safely and lawfully use it, that they're
capable of safely and lawfully using it, and that they're
willing to safely and lawfully use it." Quoted in Labaton.
Former White House counsel Lloyd Cutler has called for
restricting handgun licenses to "persons who can demonstrate
a compelling need--such as police, security guards, and
residents of remote unpoliced areas." Lloyd Cutler, "License
and Restrict Handguns," Washington Post, December
21, 1993, p. A23. For a strong critique of handgun licensing
schemes, see Jeff Snyder, "A License to Save Your Life?"
Washington Times, January 20, 1994. [101].
United States v. Gaudin, 115 S. Ct. 2310
(1995). [102].
Ibid. at 2316. See also Richard Hansen, "A Ray of Hope at
the End of a Bleak Term," Champion,
January-February 1996, pp. 18-22. [103].
Lewis v. United States, 116 S. Ct. 2163
(1996). [104].
Baldwin v. United States, 399 U.S. 66, 74-75 (1970)
(Black, J., dissenting). See also Timothy Lynch, "Rethinking
the Petty Offense Doctrine," Kansas Journal of Law and
Public Policy 4 (1994): 7-22; and George Kaye, "Petty
Offenders Have No Peers!" University of Chicago Law
Review 26 (1959): 245-77. [105].
See Brief for the United States, Lewis. [106].
United States v. Watts, 65 U.S.L.W. 3461 (per
curiam) (U.S. January 7, 1997). [107].
Elizabeth Lear, "Is Conviction Irrelevant?" UCLA Law
Review 40 (1993): 1237. [108].
Bill Clinton, quoted in Marcus and Biskupic. See also Bill
Clinton, "Judiciary Suffers Racial, Sexual Lack of Balance,"
National Law Journal, November 2, 1992, p.
15. [109].
James Madison, Federalist no. 47, in The Federalist
Papers, p. 301. [110].
Clinton, "Judiciary Suffers Racial, Sexual Lack of Balance,"
p. 15. [111].
Alison Mitchell, "Clinton Pressing Judge to Relent," New
York Times, March 22, 1996, p. A1. [112].
Quoted in Don Van Natta Jr., "Judges Defend a Colleague from
Attacks," New York Times, March 29, 1996, p.
B1. [113].
Quoted in ibid. See also Joan Biskupic, "A Declaration of
Independence," Washington Post, April 10, 1996, p.
A17. [114].
This was so clear to Thomas Cooley that his well-respected
treatise on the Constitution simply and plainly provides:
"The power to declare war being confided to the legislature,
[the president] has no power to originate it, but he
may in advance of its declaration employ the army and navy
to suppress insurrection or repel invasion." Thomas M.
Cooley, The General Principles of Constitutional Law in
the United States of America (Boston: Little, Brown,
1898),p. 114. See also John Hart Ely, "Clinton, Congress and
War," New York Times, October 23, 1993, p. 21; and
Louis Fisher, "Clinton's Not King--War Is for Congress,"
National Law Journal, June 19, 1995, p.
A21. [115].
Quoted in Stuart Taylor, "A Betrayal of the Constitution,"
Legal Times, September 19, 1994, p. 25. For a
fuller discussion of the war power under the U.S.
Constitution, see Louis Fisher, Presidential War
Power (Lawrence: University Press of Kansas,
1995). [116].
See Thomas Friedman, "Clinton Vows to Fight Congress on His
Power to Use the Military," New York Times, October
19, 1993, p. A1. [117].
See Steven Lee Myers, "U.S. Attacks Military Targets in
Iraq," New York Times, September 3, 1996, p.
A1. [118].
Quoted in Taylor, "A Betrayal of the
Constitution." [119].
Wilson quotes are found in Doug Bandow, "Another Crisis of
Presidential War-Making," Los Angeles Times, July
7, 1994; and Anthony Lewis, "'Not in a Single Man,'" New
York Times, September 12, 1994. [120].
This sentence is, of course, paraphrasing the Declaration of
Independence and Martin Luther King's famous "I Have a
Dream" speech delivered at the Lincoln Memorial on August
23, 1963. [121].
It should be noted, however, that the Civil Rights Act of
1964 is flawed in two important respects. First, it has a
dubious constitutional grounding. Instead of relying on its
power under section 5 of the Fourteenth Amendment, Congress
passed the act under its power to regulate commerce "among
the several states." See Gunther, pp. 148-49. Second, the
act went beyond prohibiting state discrimination and sought
to regulate the private conduct of individuals--thereby
violating the right of freedom of association. See Roger
Pilon, "Discrimination, Affirmative Action, and Freedom:
Sorting Out the Issues," American University Law
Review 45 (1996): 775-90. [122].
Piscataway Township Board of Education v. Taxman,
91 F.3d 1547 (1996). [123].
Quoted in Pierre Thomas, "Justice Dept. Changes Stance in
Bias Suit," Washington Post, September 7,
1994. [124].
Ibid. See also Nat Hentoff, "Fired for Being White,"
Washington Post, October 5, 1996. [125].
See Adarand Constructors Inc. v. Pena, 115 S. Ct. 2097
(1995). See also Clint Bolick, "So Far, Clinton Can't Kick
His Quota Addiction," Wall Street Journal, June 12,
1996,p. A17. [126].
See Brief for the United States, Adarand Constructors
Inc. v. Pena, 115 S. Ct. 2097 (1995). [127].
Hopwood v. Texas, 78 F.3d 932, 945
(1996). [128].
See Brief for the United States at 20, Hopwood,
certiorari denied, 64 U.S.L.W. 3868 (U.S. July 1, 1996) (no.
95-1773). See also Joan Biskupic, "Admissions Appeal
Stresses States' Rights," Washington Post, May 2,
1996, p. A5. [129].
See Pierre Thomas and William Claiborne, "Administration to
Join Fight on California Preferences Law," Washington
Post, December 21, 1996, p. A3. [130].
Stuart Taylor Jr., "Why the Courts Will Uphold 209,"
Legal Times, December 9, 1996, p. 21. [132].
As the Supreme Court noted in Washington v. Davis,
426 U.S. 229, 239 (1976), "The central purpose of the Equal
Protection Clause of the Fourteenth Amendment is the
prevention of official conduct discriminating on the basis
of race." With respect to the Civil Rights Act of 1964, see
Johnson v. Transportation Agency, 480 U.S. 616,
657-77 (1987) (opinion of Scalia, J.). [133].
Andrew Sullivan, "Let Affirmative Action Die," New York
Times, July 23, 1995. See also Glynn Custred, "Both
Parties Lack Principles on Preferences," Wall Street
Journal, December 2, 1996. [134].
James Madison, Federalist no. 45, in The Federalist
Papers, p. 292. [135].
Thomas Jefferson, Letter to Major John Cartwright, June 5,
1824, in Jefferson Writings (New York: Library of
America, 1984), p. 1493. Professor Andrew Kull of Emory
University writes, "The text of the Constitution (and
everything we know about the circumstances in which it was
composed and ratified) makes it clear that the federal
government was to exercise its enumerated powers to the
exclusion of all others." Andrew Kull, "The Stealth
Revolution," New Republic, January 22, 1996, pp.
38-41. [136].
Thomas Jefferson, Letter to William Branch Giles, December
26, 1825, in Jefferson Writings, p.
1509. [137].
See Roger Pilon, "Freedom, Responsibility, and the
Constitution: On Recovering Our Founding Principles,"
Notre Dame Law Review 68 (1993): 507-47; and Gary
Lawson, "The Rise and Rise of the Administrative State,"
Harvard Law Review 107 (1994): 1231-54. [138].
As the Supreme Court noted in United States v.
Butler, 297 U.S. 1, 63 (1936), "The question is not
what power the federal government ought to have but what
powers in fact have been given by the people." See also the
testimony of Cato senior fellow Roger Pilon before the House
Subcommittee on Human Resources and Intergovernmental
Relations, July 20, 1995, reprinted in Cato Policy Report,
November-December 1995. [139].
Chief Justice John Marshall made this clear in his landmark
opinion in McCulloch at 405, 423: Modern treatises on the Constitution
continue to acknowledge that federal laws must be rooted in
one of the delegated powers. "[The federal
government] can only act to effectuate the powers
specifically granted to it, rather than acting for the
general welfare of the populace." Nowak, Rotunda, and Young,
p. 111. [140].
Sue Anne Pressley and Michele L. Norris, "Clinton Arrives on
a Wave of Hope: From Monticello to the Mall, Journey to
Washington Is Steeped in Symbolism," Washington
Post, January 18, 1993, p. A1. See also Ann Devroy,
"Jefferson Would Agree U.S. Needs 'Change,' Clinton Says,"
Washington Post, April 14, 1993, p. A6. [141].
See Dana Priest, "Health Plan Seeks Broad New Powers:
Government Could Take Over State Programs," Washington
Post, September 11, 1993, p. A1. [142].
David Rivkin Jr., "Health Care Reform v. the Founders,"
Wall Street Journal, September 29, 1993, p.
A19. [143].
In oral argument before the Supreme Court, Solicitor General
Drew Days stated, "Congress was legislating for the entire
Nation pursuant to its plenary powers under the
Constitution." Proceedings before the Supreme Court of the
United States, United States v. Lopez, Case no.
93-1260, Tuesday, November 8, 1994, official transcript, p.
4. [144].
United States v. Lopez, 115 S. Ct. 1624 (1995). See
also Glenn Harlan Reynolds, "Kids, Guns, and the Commerce
Clause: Is the Court Ready for Constitutional Government?"
Cato
Institute Policy Analysis no. 216,
October 10, 1994. [145].
Constitution of the United States, article I, ß 8,
clause 3. For a fuller discussion of this delegated power,
see Richard A. Epstein, "The Proper Scope of the Commerce
Power," Virginia Law Review 73 (1987):
1387-1455. [146].
Proceedings before the Supreme Court of the United States,
United States v. Lopez, Case no. 93-1260, Tuesday, November
8, 1994, official transcript, pp. 10-13. See also Jeff
Jacoby, "Are There No Limits to Congressional Power?"
Boston Globe, November 15, 1994; and Lyle
Denniston, "Going Overboard for A Federal Law," American
Lawyer, January-February, 1995, pp. 94-95, describing
Solicitor General Days's "daring claim of power for
Congress." [147].
Lopez at 1632. For some good scholarly work on the
significance of the Lopez ruling, see Richard A.
Epstein, "Constitutional Faith and the Commerce Clause,"
Notre Dame Law Review 71 (1996): 167-91; and Steven
Calabresi, "'A Government of Limited and Enumerated Powers':
In Defense of United States v. Lopez," Michigan Law
Review 94 (1995):752-831. [148].
Lopez at 1645 (Thomas, J., concurring). See also
"Remember the 10th Amendment?" editorial, Washington Post,
November 19, 1994; and Roger Pilon, "It's Not about Guns,"
Washington Post, May 21, 1995. [149].
See Todd S. Purdum, "Clinton Seeks Way of Avoiding Ruling on
School Gun Ban," New York Times, April 30, 1995, p.
A1; and "Bill Seeks to Revive Gun Ban," New York
Times, May 7, 1995. [150].
Public Law 104-208. See also U.S. Congress, Making
Omnibus Consolidated Appropriations for Fiscal Year
1997, Conference Report 104-863 to accompany H.R.
3610,pp. 380-82. [151].
Quoted in Linda Greenhouse, "Justices Weigh Rights of States
in Gun Control," New York Times, December 4,
1996,p. A1. Dellinger made his argument in Brief for the
United States, Printz v. United States, Case no. 1478,
October 10, 1996. [152].
The Omnibus Counterterrorism Act of 1995, H.R. 896,ß
101(c), introduced February 10, 1995, by Rep. Charles
Schumer (D-N.Y.), Congressional Record 141, no. 27 (1995),
H1611. See also Kenneth J. Cooper, "Anti-Terrorism Bill Gets
Hung Up: House GOP Conservatives Object to Expansion of
Federal Powers," Washington Post, August 6, 1995,
p. A4. [153].
See, for example, Celia W. Dugger, "New Law Bans Genital
Cutting in United States, New York Times, October
12, 1996, p. A1; and Helen Dewar, "Senate Sends
Anti-Stalking Measure to President as Part of Defense
Authorization," Washington Post, September 11,
1996, p. A4. [154].
See affidavit of Bureau of Alcohol, Tobacco and Firearms
agent Scott Etheridge in support of criminal complaint in
United States v. Gary Cox, Case no. 2:96-267 (May
10, 1996). Obtained from the Office of Public Affairs, U.S.
Department of Justice. [155].
See Brief for the United States, Doe v. Doe, 929
F.Supp. 608 (1996) on appeal in the United States Court of
Appeals for the Second Circuit. Although this case involved
a private plaintiff who sought to avail herself of a civil
rights remedy under the Violence Against Women Act of 1994,
the Justice Department intervened in the lawsuit when it
learned that the defendant was challenging the
constitutional authority of Congress to pass such a law. The
Department of Justice is seeking to reserve its option under
the VAWA to prosecute crimes that are "motivated by the
victim's gender." See also Brzonkala v. Virginia
Polytechnic and State University 935 F. Supp. 779
(1996). [156].
See United States v. Pappadopoulos, 64 F.3d 522
(1995). [157].
See Leslie Salt Co. v. United States, 55 F.3d 1388
(1995) certiorari denied 64 U.S.L.W. 3313 (U.S. October 31,
1995) (no. 95-73). See also the opinion of Justice Clarence
Thomas dissenting from the Supreme Court's denial of
certiorari, ibid. at 3313-14. [158].
See United States v. Paredes, 65 U.S.L.W. 2442
(January 14, 1997). [159].
Quoted in Charles Warren, The Supreme Court in United
States History (Boston: Little, Brown, 1922), vol. 1,p.
501. [160].
Thomas Jefferson, Letter to Wilson Carey Nicholas, September
7, 1803, in Jefferson Writings, p. 1139. [161].
Clinton, "Judicial Excellence Safeguards All," p.
A19. [162].
See Peter Steinfels, "Clinton Signs Law Protecting Religious
Practices," New York Times, November 17, 1993, p.
A18; and Brief for the United States, United States v.
Virginia, Case no. 94-1941, 64 U.S.L.W. 4638 (June 26,
1996). It should be noted that if VMI were a
private institution, there would be no
constitutional problem. See Pilon, "Discrimination,
Affirmative Action, and Freedom,"p. 775. [163].
A number of writers have criticized President Clinton's
civil liberties record. See, for example, John Heilemann,
"Big Brother Bill," Wired, October 1996, p. 53; Nat
Hentoff, "First in Damage to Constitutional Liberties,"
Washington Post, November 16, 1996, p. A25; Anthony
Lewis, "Clinton's Sorriest Record," New York Times,
October 14, 1996; Richard Cohen, "Civil Liberties: Campaign
Casualty," Washington Post, July 11, 1996, p. A25;
Jacob Weisberg, "Clinton Turns Yellow," Slate,
November 1, 1996; and Robyn Blumner, "Clinton Showing
Disdain for Civil Liberties," St. Petersburg Times,
June 9, 1996, p. 4D. [164].
Learned Hand, "The Spirit of Liberty," Speech delivered in
New York, May 21, 1944, in The Spirit of Liberty: Papers
and Addresses of Learned Hand, 2d ed., ed. Irving
Dilliard (New York: Alfred A. Knopf, 1953), pp.
189-90 ©
1997 The Cato Institute THROUGH
A GLASS DARKLY: 'All
of Us See Through the Glass Darkly'
When properly
misconstrued, the phrase at once captures and
effectuates the clinton con perfectly, placing
clinton conveniently beyond the reach of criticism,
impeachment (figuratively speaking), and, most
important, punishment. Notice the
tenuous, self-serving logic here. Notice how
clinton slyly implies that because we all see
through a glass darkly, we are unable to see the
truth (about him)--ever, all charges past, present
and future (against him) are necessarily
indeterminable and, therefore, false, and it is
wrong, therefore, to bring any charge (against
him), ever.* So, for
example, while all the evidence and all the
contemporaneous accounts of all the witnesses
support the charge that bill
clinton raped Juanita Broaddrick and that hillary
clinton aided and abetted that
rape,
we must throw out all the evidence and all the
witnesses and keep two rapists in the Oval
Office. Excellent.
* Lewis
Caroll Bill and hillary and
their fixers in the press and DC are up to their old
tricks.1
The clintons trade our national security for
their power and treasure2
while old media and the DC establishment--pre-9/11,
20th-century relics all--do nothing.3
But this time the betrayal is happening in real time, right
before our very eyes. Aided and abetted by
the usual useful-idiot suspects in the press, allowed to
operate with impunity by a Congress cowered by Filegate and
other clinton abuses of power4
past, present and future,5
the husband is pushing the Dubai ports deal as seven-figure
kickbacks from the crown prince sluice into clinton-family
coffers6
and vulturine clinton cronies7
circle the kill.8
All this while the bagman wife assumes phony poses, both
familiar 9
(hillary
'KNOWNOTHING VICTIM' clinton),
and newly configured10,
11
(hawkish scold). There are none so
blind as those who will not see... except, perhaps, those
who do and prop the clintons up anyway12.
The Constitutional Record of President
ClintonI do solemnly swear that I
will faithfully execute the Office of President of the
United States, and will to the best of my Ability,
preserve, protect and defend the Constitution of the
United States.
William Jefferson Clinton, January 20, 1997He who takes the oath . . .
to preserve, protect, and defend the Constitution of the
United States only assumes the solemn obligation which
every patriotic citizen--on the farm, in the workshop, in
the busy marts of trade, and everywhere--should share
with him. The Constitution which prescribes his oath, my
countrymen, is yours; the government you have chosen him
to administer for a time is yours. . . . Every citizen
owes to the country a vigilant watch and close scrutiny
of its public servants and a fair and reasonable estimate
of their fidelity and usefulness. [8]
We have . . . found that
there is no effective way for many Internet content
providers to limit the effective reach of the C.D.A. to
adults because there is no realistic way for many
providers to ascertain the age of those accessing their
materials. As a consequence, we have found that many
speakers who display arguably indecent content on the
Internet must choose between silence and the risk of
prosecution. Such a choice, forced by Sections 223(a) and
(d) of the C.D.A., strikes at the heart of speech of
adults as well as minors. [32]
Any [governmental]
"interest" in restricting the flow of accurate
information because of the perceived danger of that
knowledge is anathema to the First Amendment; more speech
and a better-informed citizenry are among the central
goals of the Free Speech Clause. Accordingly, the
Constitution is most skeptical of supposed state
interests that seek to keep people in the dark for what
the government believes to be their own good.
[40]
In preparing tax legislation,
it is not always possible for Congress to foresee all
possible applications of proposed statutory language. The
possibility of drafting errors is far from negligible in
a massive legislative undertaking such as the Tax Reform
Act of 1986, a highly complex bill that made extensive
revisions in the Internal Revenue Code. [46]
The presence of a search
warrant serves a high function. Absent some grave
emergency, the Fourth Amendment has interposed a
magistrate between the citizen and the police. This was
done not to shield criminals nor to make the home a safe
haven for illegal activities. It was done so that an
objective mind might weigh the need to invade that
privacy in order to enforce the law. The right of privacy
was deemed too precious to entrust to the discretion of
those whose job is the detection and the arrest of
criminals. Power is a heady thing; and history shows that
the police acting on their own cannot be trusted. And so
the Constitution requires a magistrate to pass on the
desires of the police before they violate the privacy of
the home. [50]
Fear and abhorrence of
governmental power to try people twice for the same
conduct is one of the oldest ideas found in western
civilization. Its roots run deep into Greek and Roman
times. Even in the Dark Ages, when so many other
principles of justice were lost, the idea that one trial
and one punishment were enough remained alive through the
canon law and the teachings of early Christian writers. .
. . While some writers have explained the opposition to
double prosecutions by emphasizing the injustice inherent
in two punishments for the same act, and others have
stressed the dangers to the innocent from allowing the
full power of the state to be brought against them in two
trials, the basic and recurring theme has always simply
been that it is wrong to "be brought into Danger for the
same Offense more than once." Few principles have been
more deeply "rooted in the traditions and conscience of
our people." [82]
Mr. Will: As you know . . . a
lot of civil libertarians, generally, are worried that
this second trial constituted double jeopardy, that it
violates the principle and the spirit of the principle
that you should not be subject to trial twice for the
same offense. Can you explain simply to our viewers why
this wasn't double jeopardy?
The existence of a unique
historical exception to this [constitutional]
principle--and an exception that reduces the power of the
jury precisely when it is most important, i.e., in a
prosecution not for harming another individual, but for
offending against the Government itself--would be so
extraordinary that the evidence for it would have to be
convincing indeed. It is not so. [102]
The Constitution guarantees a
right of trial by jury in two separate places but in
neither does it hint of any difference between "petty"
offenses and "serious" offenses. . . . Many years ago
this Court, without the necessity of amendment pursuant
to Article V, decided that "all crimes" did not mean "all
crimes" but meant only "all serious crimes." . . . Such
constitutional adjudication, whether framed in terms of
"fundamental fairness," "balancing," or "shocking the
conscience" amounts in every case to little more than
judicial mutilation of our written Constitution.
[104]
The President may not order
the United States Armed Forces to make war without first
meaningfully consulting with Congress and receiving its
affirmative authorization. . . . In our view, those
principles, as well as your oath of office, require you
to follow President Bush's example in the Persian Gulf
War: to seek and obtain Congress's express prior approval
before launching a military invasion of Haiti.
[115]
The use of race in admissions
for diversity in higher education contradicts, rather
than furthers, the aims of equal protection. Diversity
fosters, rather than minimizes, the use of race. It
treats minorities as a group, rather than as individuals.
It may further remedial purposes but, just as likely, may
promote improper racial stereotypes, thus fueling racial
hostility. [127]
No State shall . . . deny to
any person within its jurisdiction the equal protection
of the laws.
The question presented is
whether the second of these two laws violates the first.
The question should answer itself, even for those who
think the CCRI is bad policy. The notion that a state
violates the 14th Amendment's prohibition of almost all
racial discrimination when it prohibits all racial
discrimination is absurd on its face. [131]
With respect to our State and
federal governments, I do not think their relations
correctly understood by foreigners. They generally
suppose the former subordinate to the latter. But this is
not the case. They are co-ordinate departments of one
simple and integral whole. To the State governments are
reserved all legislation and administration, in affairs
which concern their own citizens only, and to the federal
government is given whatever concerns foreigners, or the
citizens of other States; these functions alone being
made federal. The one is domestic, the other the foreign
branch of the same government; neither having control
over the other, but within its own department. There are
one or two exceptions only to this partition of power.
[135]
QUESTION: General Days, just
to understand what we're talking about, do I correctly
understand your position to be, your rationale for
this--
This [federal]
government is acknowledged by all to be one of enumerated
powers. . . . That principle is now universally admitted.
But the question respecting the extent of the powers
actually granted, is perpetually arising, and will
probably continue to arise, as long as our system shall
exist. . . . Should Congress, under the pretext of
executing its powers, pass laws for the accomplishment of
objects not entrusted to the [federal]
government; it would become the painful duty of this
tribunal . . . to say that such an act was not the law of
the land.
Please send comments to webmaster
HOW DECADES OF
CLINTON DOUBLE-DEALING COMPROMISED OUR NATIONAL SECURITY
It is wrong to demonize and cartoonize one
another and ignore evidence and to make
false charges and to bear false witness.
Sometimes I think our friends on the other
side have become the people of the Nine
Commandments. It is wrong to bear false
witness because we all see through
[the] glass darkly.
bill clinton
sermon at Riverside Church
before the start of the Republican
convention, 2004
'Through
a glass darkly' is bill clinton's favorite biblical
metaphor and his fixers' spin-of-last-resort.
THROUGH THE
LOOKING
GLASS'
page
1, line 1
How cheerfully he seems to
grin,
How neatly spreads his
claws,
And welcomes little fishes
in
With gently smiling jaws!
~Alice's Adventures in
Wonderland~
ld
habits die hard.
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WHY
HILLARY IN THE OVAL OFFICE IS A NATIONAL-SECURITY
NO-NOPART
ONE
For example, the one prominent name missing from Hillary's recent "tell-all" book is Riady. Mrs. Clinton failed to mention the Riady family at all. One would get the impression that the Riadys were not present in the Clinton White House. Hillary Clinton certainly overlooked listing the table settings and menus for White House dinners with the Riadys. The Riadys knew the Clintons from their Arkansas years, when Moctar bought out a local bank. Moctar and his son James were close to Bill and Hillary through 1992 and into the White House. Moctar even owned the firm selected by Hillary Clinton to replace the White House travel office. Riady and Hillary Moctar and James Riady played a key role in bringing the Clintons to power in Washington. The Indonesian billionaire and his Lippo banking company managed to contribute large sums of money to the Clintons' campaigns even though it was against the law. Moctar's gardener contributed $450,000 directly to Bill Clinton in a single check. James Riady, Moctar's son, eventually pleaded guilty to campaign violations. The connections between the Riadys and the Clintons have a much more sinister theme than simple foreign money inside U.S. elections. Testimony before the U.S. Senate revealed Moctar Riady's involvement in Chinese espionage. The Lippo Group is in fact a joint venture of China Resources, a trading and holding company "wholly owned" by the Chinese communist government and used as a front for Chinese espionage operations. Mrs. Clinton not only knew the Riadys but took their money as well. To prove my point I need only to cite photographic evidence. Her picture with Moctar Riady is certainly damning evidence of a relationship that spanned several bank accounts and two decades. It is often said that a picture tells a thousand words. However, Hillary's pictures not only tell stories left out of her book but they also netted $10,000 each for the DNC in illegal donations. Hillary's Most-Wanted Mrs. Clinton has left us with a wide selection of photo evidence. Mrs. Clinton has had her photo taken with drug dealer Jorge Cabrera. Jorge donated a load of drug money to the DNC in order to get close to the first lady. Jorge is currently serving federal time for smuggling 3,000 pounds of cocaine into the United States.
Mrs. Clinton also has a virtual personal photo gallery of modern crime. It is almost as if she wanted to collect snapshots of herself and major crime figures. For example, the co-presidents were photographed together with Macao criminal boss Ng Lapseng. Ng makes most of his money through the female-empowering career of prostitution. Ng owns the Fortuna Hotel in Macao. You can stay overnight at the Fortuna for a reasonable price. In addition, you can also purchase the services of a Fortuna hostess for an additional nightly or hourly fee. Ng frequently visited the Clintons with his close friend Charlie "Yah-Lin" Trie. It was through Charlie Trie that Ng also donated thousands of dollars to the Clintons. Ng's Fortuna Hotel showed up again later in official State Department charges against the satellite division of Hughes. The Fortuna turned out to be a front for a Chinese army company that leased a Hughes satellite. Hillary Clinton's close relationship with the Chinese army is all too well documented. The first lady was clearly involved with Chinese agent Johnny Chung and the penetration of Col. Lui of Chinese army unit COSTIND, the Chinese Commission of Science, Technology and Industry for National Defense. According to the GAO, COSTIND "oversees development of China's weapon systems and is responsible for identifying and acquiring telecommunications technology applicable for military use." Johnny Chung also had several photo sessions with both Clintons. Many of the photos appear in Mr. Chung's beer advertisements. Chung passed Chinese army money to the DNC through Mrs. Clinton. In return, a very young and attractive female PLA colonel and COSTIND computer information warfare specialist was allowed inside the White House to meet Bill Clinton.
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Senator James Inhofe Mr. President, I want you to listen again. I am going to pick up on the incredible but true story of the Clinton Administration's betrayal of national security and the scandalous coverup that continues as we speak. In doing so, I fully realize that the majority of Americans will not believe me. They have continued to believe our President even after he has demonstrated over and over that he has no regard for the truth. Though you would never realize it by listening to the national media or the Clinton spin doctors, the recently released Cox Report has revealed a wealth of information on how the Clinton Administration has undermined national security to simultaneously pursue its misguided foreign policies and self-serving domestic political agendas. On the one hand, there is the mind-boggling story of how the Clinton Administration deliberately changed almost 50 years of bipartisan security policies--relaxing export restrictions, signing waivers to allow technology transfers, ignoring China's violation of arms control agreements and its theft of our nuclear secrets, opening up even more nuclear and high technology floodgates to China and others--thus harming U.S. national security. On the other hand, there is the continuing coverup--the effort to hide from Congress and the American people the true damage that has been done to national security and the Clinton administration's central role in allowing so much of it to happen on their watch. Over three months ago--on March 15--I spoke on this floor about China's theft of the W-88 nuclear warhead. I spoke about how serious this was to our national security--how it was a story with life and death implications for millions of Americans. I told how President Clinton was directly responsible for downplaying the significance of and covering up this story. While the information on the W-88 design--the crown jewel of our nuclear arsenal--was stolen in the late 1980's, the theft was first discovered in 1995 by this administration. I told how it was this administration and this president who deliberately covered up this vital information from Congress and the American people and, at the same time, lulled our people into a false sense of security by repeating the lie that there were no nuclear missiles targeted at America's children. At that time, I spoke of six proven incontrovertible facts...and let me repeat them now: 1. President Clinton hosted over 100 campaign fundraisers in the White House, many with Chinese connections. 2. President Clinton used John Huang, Charlie Trie, Johnny Chung, James Riady, and others with strong Chinese ties to raise campaign money. 3. President Clinton signed waivers to allow his top campaign fundraiser's aerospace company to transfer U.S. missile guidance technology to China. 4. President Clinton covered up the theft of our most valuable nuclear weapons technology. 5. President Clinton lied to the American people over 130 times about our nation's security while he knew Chinese missiles were aimed at American children. 6. President Clinton single-handedly stopped the deployment of a national missile defense system, exposing every American life to a missile attack, leaving America with no defense whatsoever against an intercontinental ballistic missile. On March 15, I began my speech by asking the American people to listen as I told them "a story of espionage, conspiracy, deception and cover-up--a story with life and death implications for millions of Americans--a story about national security and a President and an administration that deliberately chose to put national security at risk, while telling the people everything was fine." In the three months since I made these statements, none of this has been refuted. Now, I come before you to tell some of the rest of the story that we have learned since March 15. And it is a truly astounding story. We thought the W-88 story was bad--and it is. But with the release of the Cox Report last month, the American people have been presented with documented evidence that the harm that President Clinton has done to U.S. national security is enormously worse than we thought. On March 15, I said that, as damaging as the W-88 breach was, I believed we had not yet scratched the surface of the national security scandal exposed by this one revelation. I must say that I was right--even beyond my own worst fears. Let's not be distracted by the self-serving Clinton spin: that everybody does it; that it all happened during previous administrations; that this is only about security at the nuclear weapons labs; that there is equal blame to go around on all sides; that President Clinton acted quickly and properly when he found out; and that the problem is now being fixed. I am here today to tell you that all of this is wrong. The Clinton spin is nothing more than a dishonest smokescreen designed to divert attention from the real issues. It is also, I believe, an attempt to dissuade people from actually reading the Cox Report and discovering for themselves that the Clinton spin is a snare, a delusion and a lie. This is why I want to take some time to walk through some of the more important revelations in the Cox Report and to remind my colleagues that we have an obligation to tell the American people the truth--the truth that the media is inexplicably ignoring and that the President seems to hope the people will never find out on their own. First, let us begin with a simple fact: Sixteen of the 17 most significant major technology breaches revealed in the Cox Report were first discovered after 1994. With the lone exception of the breach of the initial design information of the W-70 warhead (the so-called neutron bomb)--which was first discovered during the Carter administration--everything else was first discovered during the Clinton administration. Let me repeat--sixteen of the 17 most significant major technology breaches revealed in the Cox Report were first discovered during the Clinton administration. Those who tell you otherwise are willfully lying to you. Second, of the remaining 16 technology breaches, one definitely occurred during the Reagan administration--the W-88 Trident D-5. Seven occurred sometime before 1995, though it is unclear exactly when. And eight occurred--without question--during the Clinton administration. Let's take a closer look at these. The seven that occurred before 1995 included breaches of information on all of the currently deployed nuclear warheads in the U.S. intercontinental ballistic missile arsenal: the W-56 Minuteman II; the W-62 Minuteman III; the W-76 Trident C-4; the W-78 Minuteman Mark 12A; and the W-87 Peacekeeper. In addition, there was the breach of classified information on reentry vehicles, the heat shield that protects warheads as they reenter the earth's atmosphere when delivered by long range ballistic missiles. Let me repeat that all of these technology breaches were first discovered in 1995. They were discovered when a Chinese "walk-in" agent actually approached the CIA at a location outside of China and handed them a secret Chinese government document containing state-of the art classified information about the W-88 and the other U.S. nuclear warheads. We still don't know why he did this, but he did. The Cox Report also tells us that the Energy Department and FBI investigations of this matter have focused exclusively on the loss of the W-88, which we know happened around 1988. There have been no investigations undertaken about the loss of the other warheads, the timing of whose loss cannot be as clearly pinned down. Next, we move to the other eight major technology breaches revealed in the Cox Report. All of these were not only first discovered during the Clinton administration, they also happened on Clinton's watch: 1. The transfer of the so-called Legacy Codes containing data on 50 years of U.S. nuclear weapons development including over 1,000 nuclear tests; 2. The sale and diversion to military purposes of hundreds of high performance computers enabling China to enhance its development of nuclear weapons, ballistic missiles, and advanced military aviation equipment; 3. The theft of nuclear warhead simulation technology enhancing China's ability to perfect miniature nuclear warheads without actual testing; 4. The theft of advanced electromagnetic weapons technology useful in the development of anti-satellite and anti-missile systems; 5. The transfer of missile nose cone technology enabling China to substantially improve the reliability of its intercontinental ballistic missiles; 6. The transfer of missile guidance technology (by President Clinton to China) enabling China to substantially improve the accuracy of its ballistic missiles--these same missiles that are targeting US cities; 7. The theft of space-based radar technology giving China the ability to detect our previously undetectable submerged submarines; and 8. The theft of some other "classified thermonuclear weapons information" which "the Clinton administration" (not the Cox committee) "has determined...cannot be made public." We used to think China was decades behind us in terms of building a modern advanced nuclear arsenal. Now we learn that, later this year, China is planning to test its new JL-2 long range ICBM, a submarine launched ballistic missile with MIRV capability--meaning multiple independently targeted warheads on each missile --almost a replica of our Trident ICBM. This missile will have a range of over 13,000 kilometers and could reach anywhere in the United States from protected Chinese waters. In addition, we know that China has been helping North Korea, among others, with weapons and technology. North Korea is also expected to test its long range Taepo Dong II missile later this year. I remind my colleagues we have no defense against either of these potential threats, because of the policy decisions of the Clinton administration. Some one very smart back in 1983 determined that we would need a national missile defense system in place by Fiscal Year 98. We were on track to meet the deadline until 1993 when President Clinton, through his veto power, stopped this missile defense system. But as the Cox Report points out, nuclear espionage by China is only one part of the problem. China's efforts to acquire U.S. military related technology is pervasive. Operating through a maze of government and quasi-government entities and front companies, China has established a technology gathering network of immense proportions. They are willing and able to trade, bribe, buy, or steal to get U.S. advanced technology--all for the purpose of enhancing their long-term military potential. Their success is often determined largely by our willingness to make it easier for them to get what they want. The Cox Report has shed light on the fact that the Clinton administration has actually helped China in its technology acquisition efforts or made it easier for them to commit thefts and espionage. You know the truth is always difficult and controversy is difficult. It is easier to take polls and tell people what they want to hear. But I have to make a decision--who do I love more, this President or America. That is easy. The following are just some of the things that the Clinton administration has done. And I want to applaud Cong. Weldon for helping to bring many of these things to light. 1. In 1993, the Clinton Administration removed the color-coded security badges that had been used for years at Energy weapons labs claiming they were "discriminatory"-- as if that makes any sense whatsoever. Now just a few weeks ago, in the wake of all these revelations, the Energy Department has reinstated the color-coded badges to tell us it is fixing the problem. But I don't hear current Energy Secretary Bill Richardson talking about who created this particular problem. 2. In 1993, the Clinton Administration put a hold on doing FBI background checks for lab workers and visitors, an action which helped to dramatically increase the number of people going to the labs who would previously have not been allowed to have access. 3. In 1995, the Clinton Administration took the extraordinary action of overturning its own agency's decision to revoke the security clearance of an employee found guilty of breaching classified information. When this happened, it sent a message to employees throughout the Department, that this administration was not serious about countering breaches of classified information. 4. The Clinton Administration deliberately, and many would say recklessly, declassified massive amounts of nuclear-related information in what the Clinton administration touted as a new spirit of openness. 5. In the W-88 investigation, the Clinton Administration turned down four requests for wiretaps on a suspect who was identified in 1996 and allowed to stay in his sensitive job until news reports surfaced in 1999. 6. In 1995, someone at the Department of Energy gave a classified design diagram of the W-87 nuclear warhead to U.S. News & World Report magazine which printed it in its July 31 issue that year. Rep. Curt Weldon is still trying to get answers about how this leak was investigated and what was determined. He has good reason to believe the investigation was quashed because it was going to lead straight to President Clinton's Energy Secretary. 7.
Career whistleblowers at the Department of Energy, who
tried to warn of serious security breaches--people like 8. Rejecting advice from his Secretaries of State and Defense, President Clinton approved switching the licensing authority for satellites and other high technology from the State Department to the Commerce Department, making it easier for China to acquire U.S. missile technology. 9. President Clinton granted waivers making it easier for U.S. companies to transfer missile and satellite technology to China during the launching of U.S. satellites on Chinese rockets. 10. In 1994, President Clinton ended COCOM, the Coordinating Committee on Multinational Export Control, the multi-nation agreement among U.S. friends and allies that they would not sell certain high technology items to countries like China. When this happened, it opened the commercial floodgates. Ever since, there has been a wild scramble of competition to sell more and more advanced technology to China. As a result, proliferation has never been worse than it has been in the last six years. 11. In a series of decisions throughout his presidency--and many surrounding the 1996 election--Clinton has consistently relaxed export and trade restrictions on various forms of high technology of interest to China. 12. At the same time, President Clinton has ignored or downplayed numerous China's arms control violations by not imposing sanctions required by law. So while we're selling more and more high tech to China, China is sending prohibited military technology to countries like Pakistan, Iran, North Korea, Syria, Libya and Egypt. And what does the Clinton administration do? Nothing. What are the motives for all this? Why did the Clinton administration act the way it did, in almost total disregard for any traditional concern for U.S. national security? The Cox Report did not answer these questions because it was only concerned with the facts of the security breaches themselves, not what was behind it. But FBI Director Louis Freeh did assign one man to look into this. His name was Charles LaBella, who became head of the Justice Department's China Task Force. He and his investigators spent months looking into the connections, trying to connect the dots with campaign contributions, foreign influences and administration actions. What he found is laid out in a 100-page memo he prepared for Janet Reno. We know this memo argues in favor of the appointment of an independent counsel to carry on the investigation. But the memo itself has remained secret, even though it has been subpoenaed by Congress. Janet Reno, who rejected its recommendation for an independent counsel, has refused to release the memo to the Congress or to the public. It is time for that memo to be released. FBI Director Freeh has testified that the public knows only about one percent of what the FBI knows about the Chinagate scandal. It is time for the truth to come out. It is time for the public to get some sense of the other 99% which is contained in the LaBella memo. Mr. President, over the last six years, President Clinton and his administration have shown a pervasive disregard for national security. In both actions and inactions, this President has broken ranks with the bipartisan consensus about national security that helped us win the Cold War. His policies and attitudes--towards export controls, nuclear weapons, militarily important high technology, and dealing with our adversaries in the world--have been strikingly different from those of all of his predecessors in the modern era. His administration has acted as if the end of the Cold War gave them carte blanche license to open the commercial and technology floodgates to countries like China....simply because it was good for business, or good for getting campaign contributions, or good for other domestic political reasons. The traditional concern about national security--about protecting our nuclear secrets, about maintaining our military and technological superiority, about sanctioning those in the world who engaged in flagrant and hostile espionage and proliferation--all that went out the window, replaced by other priorities this President somehow thought were more important. President Clinton claims he has "redefined" national security. In fact--as the Cox Report conclusively documents--he has "harmed" national security. This is the message that every American must understand. My hope is that we never again have a president who is so disrespectful of, and inattentive to, traditional national security concerns. Yesterday at the joint hearing of the Armed Services, Energy and Intelligence committees, I asked whether or not it would be possible to put in place some safeguards so that no future president could ever again so successfully undo the country's national security defenses as this one has. We are working on an answer. Some of us will continue to speak out--seeing it as our highest duty of public service. As I said on March 15--and repeat again here today-- I only hope America is listening. We have a nation to save. THE
CLINTON NATIONAL SECURITY SCANDAL AND COVERUP |
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COPYRIGHT MIA T 2004 |
HILLARY REMEMBERS: the clintons commit perjury with impunity
- by Mia T, 4.25.06
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HILLARY REMEMBERS
HILLARY DOES NOT RECALL, DOES NOT REMEMBER, HAS NO MEMORY, HAS NO RECOLLECTION, BUT DOES NOT BELIEVE SHE SAID IT BECAUSE SHE WOULD HAVE REMEMBERED IF SHE DID.
Carpe Mañana: The (bill + hillary) clinton Terrorism Policy
('Can we kill 'em tomorrow?')
HILLARY CLINTON VOTES FOR ILLEGAL IMMIGRANTS BEFORE SHE VOTES AGAINST THEM
HEAR HER NOW
"HAIR" THEY GO AGAIN: CYNTHIA McKINNEY PLAYS THE RACE CARD
BILLY + CYNTHIA McKINNEY vs. BILL + HILLARY CLINTON
a distinction without a difference
HILLARY DOES JESUS
"FURTHER EVIDENCE WHY SHE IS ONE OF THE MOST DESPICABLE POLITICIANS OUT THERE RIGHT NOW"
HILLARY VOTE FRAUD
missus clinton uses Jesus
SEX, LIES AND SOCK PUPPETS:
HOW THE CLINTONS ARE HANDLING THE HILLARY DUD FACTOR 4
THREE WOMEN AND A FUNERAL:
HOW THE CLINTONS ARE HANDLING THE HILLARY DUD FACTOR 3
WHY THE RELIGIOUS RIGHT MUST MOBILIZE AGAINST HILLARY:
CLINTON CONFLATES EVANGELICAL CHRISTIANS AND ISLAMO-FASCIST TERRORISTS
THROUGH A GLASS DARKLY:
HOW DECADES OF CLINTON DOUBLE-DEALING COMPROMISED OUR NATIONAL SECURITY
DUBAI-ITIES:
HILLARY 'KNOWNOTHING VICTIM' CLINTON STRIKES AGAIN
DICK MORRIS:
CLINTON IS A PAID AGENT OF THE CROWN PRINCE OF DUBAI
WHY HILLARY IN THE OVAL OFFICE IS A NATIONAL-SECURITY NO-NOPART ONE
"I DON'T RECALL"
(THE CLINTONS COMMIT PERJURY WITH IMPUNITY)
'REFUSAL TO LEVEL WITH THE AMERICAN PEOPLE'
... IS HILLARY 'KNOWNOTHING VICTIM' CLINTON'S MIDDLE NAME
THE (oops!) INADVERTENT (TERRORISM) ADMISSIONS OF BILL + HILLARY CLINTON (HEAR HILLARY IN SF) ~PART ONE~
ON THE FICTIONALIZED MEMOIR (HEAR HILLARY IN SF)~PART TWO~
THE (oops!) INADVERTENT ADMISSIONS OF HILLARY AND JANE IN SAN FRANCISCO
CLINTON 'CULTURE OF CORRUPTION'
CROOKS PARDONING CROOKS PARDONING CROOKS:
Justice Undone in the clinton White House
clintonCORRUPTION: the more things change. . . .
ON WARRANTLESS SEARCHES AND WIRETAPS:
THE ABYSMAL CONSTITUTIONAL RECORD OF BILL + HILLARY CLINTON
REDACTION LOOPHOLE: ACCESS TO THE BARRETT REPORT
HILLARY CLINTON KNEW ABOUT THE RAPE: HEAR JUANITA BROADDRICK
ROCKEFELLER SEDITION: WHO IS CALLING THE SHOTS?
Alien Abductions, Flying Saucers + Other Weird Phenomena, c.1992-2000
WAR AND TREASON AND THE NEW YORK TIMES
(Please see post 65)
THE FAILED, DYSFUNCTIONAL CLINTON PRESIDENCY
(DECONSTRUCTING CLINTON'S HOFSTRA SPEECH) -- part1: clinton's "Brinkley" Lie
AFTERWORD: ON CLINTON SMALLNESS
(BRINKLEY MISSES THE POINT)
WHY THE CLINTONS FAILED "TO CAPTURE OR KILL THE TALLEST MAN IN AFGHANISTAN"
(DID THEY REALLY WANT TO TAKE HIM OUT ANYWAY?)
'MAKE IT A RULE' -- PLACE YOUR ORDER FOR OSAMA WITH CLINTON and CO.
(HEAR HILLARY + BILL MAKE THEIR PITCH)
WHY DID BILL CLINTON IGNORE TERRORISM?
Was it simply the constraints of his liberal mindset, or was it something even more threatening to our national security?
IT TAKES A CLINTON TO RAZE A COUNTRY
BIN LADEN FINGERS CLINTON FOR TERROR SUCCESS (SEE FOOTAGE)
THE THREAT OF TERRORISM IS AS CLOSE AS A CLINTON IS TO THE OVAL OFFICE
PRESIDENTIAL FAILURE, 9/11 + KATRINA
I M P E A C H M E N T
h e a r --c l i n t o n --l o s e --i t
WHY HILLARY MUST NOT WIN. WHY HILLARY CANNOT WIN.
(ICKES + ESTRICH PROVIDE ROADMAP--oops!--FOR HILLARY DEFEAT)
AN OPEN LETTER TO TIM ROBBINS, DAVID GEFFEN, CHRIS MATTHEWS, MAUREEN DOWD + JEANINE PIRRO
RE: a not-so-modest proposal concerning hillary clinton
December 7, 1941+64
for the birds
(THE INCOMPETENCE OF HILLARY CLINTON)
CHENEY: CALL THEM REPREHENSIBLE
THE DEMOCRATS ARE GONNA GET US KILLED (kerry, clinton + sandy berger's pants) SERlES5
A CALL TO IMPEACH CLINTON IN ABSENTIA
NEWT: CLINTON COMMITTED ONE OF WORST CRIMES, ENDANGERED COUNTRY, IF HIT ABDULLAH UP FOR CASH
Listen to this and ask yourself if America Ever Had the Remotest Chance Under a clinton to Avoid 9/11
(To paraphrase Einstein: "The unleashed power of terrorism has changed everything save our modes of thinking, and we thus drift toward unparalleled catastrophes.")
Is the 9/11 commission calling bill clinton's statement '"unreliable," or did it choose willful ignorance this time, too?
sandy berger haberdashery feint
(the specs, not the pants or the socks)
NANO-PRESIDENT
the danger of the unrelenting smallness of bill + hillary clinton
HIROSHIMA'S NUCLEAR LESSON
bill clinton is no Harry Truman
CLINTON RAPES, REVISIONISM, USEFUL IDIOTS AND ENTROPY (an update)
JENNINGS DOES A DIMBLEBY: clinton legacy-RAGE redux
1st Feminist Prez Impeached
(clinton, pushed by the "smartest woman in the world," managed to impeach himself)
THE FIRST BLACK PRESIDENT?
clinton legacy of lynching update
bird
pro-islamofascist-terrorist radical chic
WHY THE LEFT IS DANGEROUS FOR AMERICA
The Left's Fatally Flawed "Animal Farm" Mentality
(Why America Must NEVER AGAIN Elect a Democrat President)
Why hillary clinton should never be allowed anywhere near the Oval Office... or any position of power
REASON 1: SHE HIRED JAMIE GORELICK
HILLARY'S TRIPLE PLAY
the clinton putsch + filegate + the gorelick wall
HILLARY'S MIDDLE-FINGER MINDSET (MAD COVER 2)
Do you really want THAT finger on the button?
"What, me worry?"
ALFRED E."What, me worry?" CLINTON + CRAZY HIL MAD COVER STORY
THE THREAT OF TERRORISM IS AS CLOSE AS A CLINTON IS TO THE OVAL OFFICE
How did the flower children fall for the clintons, 2 such self-evident thugs and opportunists?
(FOOL ME ONCE, SHAME ON YOU! FOOL ME TWICE, SHAME ON ME!)
Alfred E. Neuman + the threat of terrorism, according to hillary
HILLARY IS NIXON-PLUS part 1
BEWARE THE SYNERGY
Nixonian paranoia and fascistic mindset combine with
clintonian megalomania, ineptitude and, most important, easy betrayal of America
to make hillary clinton deadly dangerous for us all.
HILLARY IS NIXON-PLUS part 2
BEWARE THE SYNERGY
Nixonian paranoia and fascistic mindset combine with
clintonian megalomania, ineptitude and, most important, easy betrayal of America
to make hillary clinton deadly dangerous for us all.
KLEIN BOOK CAUSES HILLARY TO (oops!) CONFIRM "THE TRUTH ABOUT HILLARY"
CLINTON'S REACTION EXPOSES FASCISTIC MINDSET, TEXTBOOK CASE OF PARANOIA + MEGALOMANIA, AND A CONSCIOUSNESS OF GUILT IN BROADDRICK RAPE
SCHEMA PINOCCHIO
how the clintons are handling the hillary dud factor
REINVENTING HILLARY... AGAIN
(clinton machine dumps Geena Davis for Margaret Thatcher)
how the clintons are handling the hillary dud factor2
HILLARY'S COMMANDER-IN-CHIEF PROBLEM
(see descriptor morphs)
HILLARY IN AVIARY
CLINTONS' DOCUMENTED ABUSE OF WOMEN
hillary clinton is a "CONGENITAL LIAR"
("I am not a crook")
the clinton-clinton-Broaddrick kind of rape, according to Susan Estrich
HEAR CHRIS MATTHEWS + MAUREEN DOWD DEVOUR HILLARY
THE DANGER OF RUNNING VICARIOUSLY
Bill O'Reilly chews up and spits out the hillary clinton candidacy
(clip included)
STRANGE BEDFELLOWS: ED KLEIN AND SUSAN ESTRICH AGREE ABOUT HILLARY
HEAR SUSAN ESTRICH: hillary plays 'the victim' for votes
HILLARY FLUNKED D.C. BAR EXAM
"the smartest woman in the world" sought less competitive venue
HILLARY!?? WHAT IS THIS MORIBUND LOSER DOING IN THE POLITICAL ARENA, ANYWAY? (bill's bud explains)
- COPYRIGHT MIA T 2006
"Bird
of paradise" would have been a brilliant
wrong answer for the New-York-state-bird
question; in one fell swoop it would have
flattered the necessary constituency,
rendered hillary's cheating marginally
believable and suggested a quick, secure,
creative mind. 
RESURRECTING
RUFF
I
AM VICTIM
hillary clinton's revisionist tome notwithstanding, 'living history' begets a certain symmetry. It is in that light that I make this not-so-modest proposal on this day, exactly 64 years after the attack on Pearl Harbor. 
It
is no secret that Hillary's past takes us through a pile of
hard, cold cash from the Chinese army, Chinese army agents
roaming the White House and photos with a wide variety of
scoundrels.
Twenty
presidents rank higher than bill clinton and 20
rank lower. But this placement assumes equal weight
for each of the dimensions. And therein lies the
flaw.
Hillary
Clinton's revisionist tome notwithstanding, 'living
history' begets a certain symmetry. It is in that
light that I make this not-so-modest proposal on
this day, exactly 64 years after the attack on
Pearl Harbor. 
