Schwarzenegger suggests that there should be some measure of parity between the amount that Californians pay to support the federal government and the quantity of services or federal funding they receive in return. He might have a legitimate complaint on this score, if only we were still governed by the same constitutional provisions written in 1787 and ratified in 1791. The Founders understood, and concurred with Schwarzenegger, that the several independent, sovereign states should not be disproportionately burdened with the responsibility of funding the operation of the federal government. To protect against this, the apportionment clause (Article I, Section 2) was written to ensure that each state share the responsibility of providing for those federal activities enumerated in the Constitution, in direct proportion to the number of citizens residing in each state.

It is gratifying to see Schwarzenegger arrive at the Founders’ view of budgetary fairness some 219 years after the fact, but his argument comes 108 years too late. The Sixteenth Amendment effectively overrides the apportionment clause, and authorizes the U.S. Congress to levy direct taxes against individual incomes, “without apportionment among the several States, and without regard to any census or enumeration.” Not only does this amendment authorize Congress to tax some states more than others (with respect to their proportional populations), but as of this writing, no intrepid litigator has yet mounted a successful general welfare argument to prevent the feds from spending the proceeds just as disproportionately. You can hardly swing a dead cat these days without hitting someone who will argue that passage of the Sixteenth Amendment dealt a potentially fatal blow to both state sovereignty and individual liberty, and much progress could be made in restoring responsible governance and economic prosperity with the repeal of the Sixteenth Amendment. Nonetheless, since 1913, it has been the law of the land. Sorry, Arnold, but on this count, you lose — especially since California was among the earliest states to ratify the Sixteenth Amendment in January of 1911.

In response to Schwarzenegger’s claim that unfunded federal mandates are bankrupting his state, the most obvious question is, “So who’s fault is that?” To which specific federal mandates is the Governator referring? In his remarks on Friday, Schwarzenegger referred to mandates in the areas of health, education and welfare. Fascinating that he should choose these examples, since all are areas in which the politicians in Washington have no constitutional authority to govern, much less issue binding mandates (funded or otherwise). What Schwarzenegger is really saying is that he, as governor, the California legislature and thousands of their predecessors have voluntarily chosen to comply with one illegitimate federal mandate after another. Rather than take seriously their sworn obligation to preserve the integrity of their offices, and to defend the sovereignty of their state and the liberty of its citizens, Schwarzenegger, his counterparts and their predecessors have repeatedly taken the path of least resistance, and evaded the difficult work of doing the right thing. Now we are told that California must be saved, because it is “too big to fail”. This is like the couple in the house down the street losing their life savings to a con artist, and then self-righteously demanding that all of their neighbors pool their resources to compensate them for the loss. Thanks, but no thanks.

None of us living outside of California should imagine that our own state officials have shown greater responsibility than Schwarzenegger and his colleagues. Officeholders in every state have consistently refused to face down unconstitutional federal intrusion. The solution, however, cannot possibly come from the very same practices that created the mess in the first place. If states across the nation are unable to meet the costs of their own ill-advised obligations, where does Schwarzenegger expect them to find the surplus to help Californians meet theirs? He seems infected with the currently popular misconception that the federal government has its own supply of money to spend. To give Californians $6.9 billion, the federal government can either tax it away from the rest of us (leaving us less prepared to stave off our own collapse); borrow it from foreign lenders (leaving us and our descendants indebted to those with no inherent concern for our well-being); or simply print more money (destroying the economic value of everything we currently have). Unless folks in the Golden State know of some economic alchemy that Adam Smith, Milton Friedman, and John Maynard Keynes never imagined, there are no other options.

Despite the logic of the very argument he made on Friday, don’t expect Arnold Schwarzenegger or any other state governor to lobby for repeal of the Sixteenth Amendment anytime soon. However sensible this proposal may seem in principle, those wishing to be considered “mainstream” will inevitably yield to pressure to denounce the idea of repeal as a product of lunatic fringe thinking. With the resulting opportunities for disproportionate federal taxation, don’t expect state officials to exercise restraint in trying to curry federal favor, in the hope of landing a disproportionate share of the resulting proceeds. This pathetic effort to regain a few crumbs of the loaf already taken from their citizens at gunpoint keeps state officials jumping through whatever federal hoops Washington contrives, however constitutionally indefensible they may be.

We have little hope of untying this Gordian knot, but it may soon be cut by economic realities no politician can ignore forever. Over the past year, not a week has gone by without someone blogging or “tweeting”:

The problem with socialism is that eventually you run out of other people’s money.

Usually attributed to Margaret Thatcher (perhaps apocryphally), this quote invariably expresses the frustration of those who think themselves unfairly burdened with the consequences of someone else’s irresponsibility. Faced with the unvarnished prospect of seeing their own state services slashed, while being taxed to maintain the existing basket of benefits Californians enjoy, citizens of other states may finally be ready to revolt against the federal spoils system that got us into this mess. Whether enough of us see the issues clearly or not, the economic reality is that we cannot all bail each other out. We’ve already run out of each others’ money.

Yes, there certainly is a lot for Washington to do these days. Most, if not all, of what Washington is doing however, is more of what created the problems in the first place. Capitol Hill is filled with politicians running around putting out fires – but with gasoline. The truth is that all these fires keep so many powerful people employed and wealthy that it is not truly in many decision makers’ interests to be very effective problem-solvers. If Washington ran out of problems, think how many lobbyists would be out of a job, and how many special interest groups would just disband? Sadly, whatever is bad for the greater economy is good for the economy and job market in DC.

Of course, no form of government, not even one that respected its Constitutional restraints, would magically create a problem-free society. The question is: how should a society deal with its problems? The form of government that our founders envisioned, in which the federal government was strictly constrained by the Constitution, allows private citizens and communities to solve their own problems. The role of the government should be to protect contracts, punish fraud and violence through appropriate laws, law enforcement and the courts. Not a whole lot of laws or bureaucrats are really necessary to work on just that. Instead, new laws are constantly needed to fix the problems that previous unconstitutional laws created. We have ended up with an incomprehensible maze of laws and regulations that severely constrains the people and expands the government – the exact opposite of what our founders intended.

This is all because the Constitution is treated like a suggestion manual instead of the supreme law of the land. Under the Constitution, politicians’ hands are supposed to be tied in most of the areas they involve themselves in today. But somewhere along the line, politicians stepped out of Constitutional bounds and started pretending to solve our problems for us. All we have to show for it is more problems.

Today, Washington politicians can busily “solve” one problem, knowing that unintended consequences from that “solution” will keep them and their friends all very busy tomorrow. The people are ultimately left suffocating under the burden of Washington’s helping hands. It is coming to a point where our economy, our dollar, and indeed, the rest of the world have had about all the help from Washington that they can stand. The United States is headed the way of Rome and the Soviet Union, for the same reasons, unless we reverse the trend.

I continue to hope that enough Americans will realize that the true strength of our country doesn’t come from Washington, but rather the limitations placed on government in the Constitution. We must resolve to reverse the destructive course that we are on and then never again let big government problem-solving take over our lives and our country.

by John Yoo

It was instantly clear after Sept. 11, 2001, that our security agencies knew little about al Qaeda’s inner workings, could not detect its operatives’ entry into the country, nor predict where it might strike next.

Suppose an al Qaeda cell in New York, Chicago or Los Angeles was planning a second attack using small arms, conventional explosives or even biological, chemical or nuclear weapons. Our intelligence and law enforcement agencies faced a near impossible task locating them. Now suppose the National Security Agency (NSA), which collects signals intelligence, threw up a virtual net to intercept all electronic communications leaving and entering Osama bin Laden’s Afghanistan headquarters. What better way of detecting follow-up attacks? And what president — of either political party — wouldn’t immediately order the NSA to start, so as to find and stop the attackers?

Evidently, none of the inspectors general of the five leading national security agencies would approve. In a report issued last week, they suggested that President George W. Bush might have violated the 1978 Foreign Intelligence Surveillance Act (FISA) by ordering the interception of international communications of terrorists without a judicial warrant. The report also suggests that “other” intelligence measures — still classified only because they are yet to be reported on the front page of the New York Times — similarly lacked approval from other branches of government.

It is absurd to think that a law like FISA should restrict live military operations against potential attacks on the United States. Congress enacted FISA during the waning days of the Cold War. As the 9/11 Commission found, FISA’s wall between domestic law enforcement and foreign intelligence proved dysfunctional and contributed to our government’s failure to prevent the 9/11 attacks.

Under FISA, to obtain a judicial wiretapping warrant the government is supposed to show probable cause that a specified target is a foreign agent. Unlike, say, Soviet spies working under diplomatic cover, terrorists are hard to identify. Yet they are vastly more dangerous. Monitoring their likely communications channels is the best way to track and stop them. Building evidence to prove past crimes, as in the civilian criminal system, is entirely beside the point. The best way to find an al Qaeda operative is to look at all email, text and phone traffic between Afghanistan and Pakistan and the U.S. This might involve the filtering of innocent traffic, just as roadblocks and airport screenings do.

Chad Crowe

In FISA, President Bush and his advisers faced an obsolete law not written with live war with an international terrorist organization in mind. It was to meet such emergency circumstances that the Founders designed the presidency. As John Locke first observed, foreign threats “are much less capable to be directed by antecedent, standing, positive laws.” Legislatures are too slow and their members too numerous to respond effectively to unforeseen situations. Only the executive can act to protect the “security and interest of the public.”

The power to protect the nation, said Alexander Hamilton in the Federalist, “ought to exist without limitation,” because “it is impossible to foresee or define the extent and variety of national exigencies, or the correspondent extent & variety of the means which may be necessary to satisfy them.” To limit the president’s constitutional power to protect the nation from foreign threats is simply foolhardy. Hamilton observed that “decision, activity, secrecy, and dispatch will generally characterize the proceedings of one man, in a much more eminent degree, than the proceedings of any greater number.” “Energy in the executive,” he reiterated, “is essential to the protection of the community against foreign attacks.”

Clearly, the five inspectors general were responding to the media-stoked politics of recrimination, not consulting the long history of American presidents who have lived up to their duty in times of crisis. More than a year before the attack on Pearl Harbor, President Franklin Delano Roosevelt authorized the FBI to intercept any communications, domestic or international, of persons “suspected of subversive activities . . . including suspected spies.” FDR did not hesitate long over a 1937 Supreme Court opinion (United States v. Nardone) interpreting federal law to prohibit electronic surveillance without a warrant. It is too late to do anything about it after sabotage, assassinations and ‘fifth column’ activities are completed,” he wrote in a secret 1940 memo authorizing the wire tapping. Indeed, he continued to authorize the surveillance even after Congress rejected proposals from his attorney general, Robert Jackson, to authorize national security wiretapping without a warrant.

Every federal appeals court to address the question has agreed that the president may gather electronic intelligence to protect against foreign threats. This includes the special FISA appeals court, which in a 2002 sealed case upholding the constitutionality of the Patriot Act held that “the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information.” The court said it took the president’s power “for granted,” observing that “FISA could not encroach on the President’s constitutional power.”

Now, according to the inspectors general, those of us in government following the 9/11 terrorist attacks should have assumed that the usual peacetime rules for domestic wiretaps applied and interpreted FISA in a most curious way — to delete the president’s traditional authority as commander in chief to collect signals intelligence in wartime.

The 1952 Supreme Court case of Youngstown Sheet & Tube v. Sawyer is the IG’s lodestar. In Youngstown, the Court addressed President Harry Truman’s effort to seize steel mills shut down by a labor strike during the Korean War. Truman claimed that maintaining production was necessary to supply munitions and material to American troops in combat. Youngstown correctly found that the Constitution gives Congress, not the president, the exclusive power to make law concerning labor disputes. It does not, however, address the scope of the president’s power involving military strategy or tactics in war. If anything, it supports the proposition that one branch cannot intrude on the clear constitutional turf of another.

Moreover, earlier Justice Departments — reaching across several administrations from both parties — had likewise concluded that Youngstown did not limit the president’s legitimate conduct of foreign affairs and national security policy. This is why all administrations have refused to accept the 1973 War Powers Resolution and have regularly engaged in military conflicts without congressional approval.

Our Constitution created a presidency whose function is to protect the nation from attack. Gathering intelligence — including intercepting enemy communications — has long been a key aspect of war. Our military and intelligence agencies cannot attack or defend the nation unless they know where to aim. As we confront terrorists who remain intent on attacking the U.S., using weapons we cannot anticipate, we should be skeptical of those who insist that we radically change the way this country has always made war.

Mr. Yoo is a law professor at the University of California, Berkeley. He was an official in the Justice Department from 2001-03 and is a visiting scholar at the American Enterprise Institute.

by Thomas Sowell

It is one of the signs of our times that so many in the media are focusing on the life story of Judge Sonia Sotomayor, President Obama’s nominee for the Supreme Court of the United States.

You might think that this was some kind of popularity contest, instead of a weighty decision about someone whose impact on the fundamental law of the nation will extend for decades after Barack Obama has come and gone.

Much is being made of the fact that Sonia Sotomayor had to struggle to rise in the world. But stop and think.

If you were going to have open-heart surgery, would you want to be operated on by a surgeon who was chosen because he had to struggle to get where he is, or by the best surgeon you could find — even if he was born with a silver spoon in his mouth and had every advantage that money and social position could offer?

If it were you who was going to be lying on that operating table with his heart cut open, you wouldn’t give a tinker’s damn about somebody’s struggle or somebody else’s privileges.

The Supreme Court of the United States is in effect operating on the heart of our nation — the Constitution and the statutes and government policies that all of us must live under.

Barack Obama’s repeated claim that a Supreme Court justice should have “empathy” with various groups has raised red flags that we ignore at our peril — and at the peril of our children and grandchildren.

“Empathy” for particular groups can be reconciled with “equal justice under law” — the motto over the entrance to the Supreme Court — only with smooth words. But not in reality. President Obama used those smooth words in introducing Judge Sotomayor, but words do not change realities.

Nothing demonstrates the fatal dangers from judicial “empathy” more than Judge Sotomayor’s decision in a 2008 case involving firemen who took an exam for promotion. After the racial mix of those who passed that test turned out to be predominantly white, with only a few blacks and Hispanics, the results were thrown out.

When this action by the local civil-service authorities was taken to court and eventually reached the Second Circuit Court of Appeals, Judge Sotomayor did not give the case even the courtesy of a spelling out of the issues. She backed those who threw out the test results. Apparently she didn’t have “empathy” with those predominantly white males who had been cheated out of promotions they had earned.

Fellow Second Circuit Court judge Jose Cabranes commented on the short shrift given to the serious issues in this case. It so happens that he too is Hispanic, but apparently he does not decide legal issues on the basis of “empathy” or lack thereof.

This was not an isolated matter for Judge Sotomayor. Speaking at the University of California at Berkeley in 2001, she said that the ethnicity and sex of a judge “may and will make a difference in our judging.”

Moreover, this was not something she lamented. On the contrary, she added, “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”

No doubt the political spinmasters will try to spin this to mean something innocent. But the cold fact is that this is a poisonous doctrine for any judge, much less a justice of the Supreme Court.

That kind of empathy would for all practical purposes repeal the 14th Amendment to the Constitution of the United States, which guarantees “equal protection of the laws” to all Americans.

What would the political spinmasters say if some white man said that a white male would more often reach a better conclusion than a Hispanic female?

For those who believe in the rule of law, Barack Obama used the words “rule of law” in introducing his nominee. For those who take his words as gospel, even when his own actions are directly the opposite of his words, that may be enough to let him put this dangerous woman on the Supreme Court.

Even if her confirmation cannot be stopped, it is important for senators to warn of the dangers, which will only get worse if such nominations sail through the Senate smoothly.

by Thomas Sowell

While Pres. Barack Obama has, in one sense, tipped his hand by saying that he wants judges with “empathy” for certain groups, he has in a more fundamental sense concealed the real goal — getting judges who will ratify an ever-expanding scope of federal-government power and an ever-declining restraint by the Constitution of the United States.

This is consistent with everything else that Obama has done in office and is consistent with his decades-long track record of alliances with people who reject the fundamentals of American society.

Judicial expansion of federal power is not really new, even if the audacity with which that goal is being pursued may be unique. For more than a century, believers in bigger government have also been believers in having judges “interpret” the restraints of the Constitution out of existence.

They called this “a living Constitution.” But it has in fact been a dying Constitution, as its restraining provisions have been interpreted to mean less and less, so that the federal government can do more and more.

For example, the Constitution allows private property to be taken for “public use” — perhaps building a reservoir or a highway — if “just compensation” was paid. But that power was expanded by the Supreme Court in 2005 when it “interpreted” this to mean that private property could be taken for a “public purpose,” which could include almost anything for which politicians could come up with the right rhetoric.

As for “just compensation,” that is often about as just as “separate but equal” was equal. As for “empathy” for the less fortunate, it is precisely lower-income and minority neighborhoods that are disproportionately bulldozed to make way for upscale shopping and entertainment centers that will bring in more taxes for politicians to spend to get themselves re-elected.

This process of “interpreting” the Constitution (or legislation) to mean pretty much whatever you want it to mean, no matter how plainly the words say something else, has been called judicial activism. But, as a result of widespread objections to this, that problem has been solved by redefining “judicial activism” to mean something different.

By the new definition, a judge who declares legislation that exceeds the authority of the legislature unconstitutional is called a “judicial activist.”

The verbal virtuosity is breathtaking. With just a new meaning to an old phrase, reality is turned upside down. Those who oppose letting government actions exceed the bounds of the Constitution — justices like Antonin Scalia and Clarence Thomas — are now called “judicial activists.” It is a verbal coup.

Not only politicians like Sen. Patrick Leahy, but also law professors like Cass Sunstein and many in the media, measure how much of a judicial activist a judge is by how many laws that judge has declared unconstitutional. Professor Sunstein, incidentally, is among those being mentioned as a possible nominee for a post on the Supreme Court.

When the Supreme Court in 1995 declared that carrying a gun near a school was not “interstate commerce,” there was consternation and outrage in the liberal press because previous decisions of the Supreme Court in years past had allowed Congress to legislate on virtually anything it wanted to by saying that it was exercising its authority to regulate interstate commerce.

When the Supreme Court decided by a narrow 5 to 4 vote that carrying a gun near a school was not interstate commerce, it was saying something that most people would consider too obvious for words. But it was considered outrageous that the Supreme Court recognized the obvious and refused to rubberstamp the sophistry that allowed Congress to pass laws dealing with things that the Constitution never authorized it to deal with.

Incidentally, carrying a gun near a school was something that states had the authority to deal with, and the great majority of states had already banned it.

What is at stake in Supreme Court nominations is the power of the federal government. “Empathy” is just camouflage, a soothing word for those who do not look beyond nice-sounding rhetoric.

by Glenn Foden