The First American

I live in Franklin County, Ohio, where the large statue of Benjamin Franklin pictured below is found at the county courthouse, so it makes sense that at some point I would finally turn to reading a biography of the county’s namesake.  I chose The First American, a fine recent biography by H.W. Brands that is well worth reading if you are interested in learning more about the early history of America and one of its foremost founding fathers.

Franklin is a fascinating character for more reasons that you can reasonably count.  During his lifetime, he was easily the most famous American alive, known and lauded in both America and in Europe for his experiments with lightning and electricity, his invention of the Franklin stove and other devices, and his writings, both in Poor Richard’s Almanac and elsewhere.  He was a hard-working capitalist, turning his printers’ shop into a thriving business and engaging in a number of other commercial ventures, yet he also had his eye on the common welfare and the greater good and played a key role in forming colleges, fire departments, lending libraries, and philosophical societies.  He was exceptionally well-traveled for that era, crossing the Atlantic multiple times, living in England and France, and exploring all parts of the American colonies.  Franklin saw a lot of the world during his 80-plus years, and he unquestionably left it a better place than he found it through his efforts.

Franklin’s life story, more than any other, also is the story of the early days of America.  He was born in Boston and began his writing career jousting with the Puritan fathers who dominated the life and politics of Massachusetts at that time.  He moved to Philadelphia, which quickly grew into the largest and most prosperous city in the colonies, where he became a successful printer and public figure, crossed swords with the Penn family, the proprietors of Pennsylvania, and conducted many of the experiments and created many of the inventions that made him famous.  He was a public spokesman for the colonies during the French and Indian War and made one of the first proposals for colonial unification under a single government, served as a de facto ambassador for the colonies in Great Britain during the years leading to the Revolutionary War where he was castigated in Parliament, became a proponent for independence and returned to America just in time to serve as a member of the Continental Congress and an editor of the Declaration of Independence, then traveled to France to engineer the pact that brought the French into the war on the American side, to broker loans and trade deals to help supply the war effort, and then, after the battle of Yorktown, to negotiate the treaty that ended the conflict.  He returned to America, again, in time to serve multiple terms as Pennsylvania’s president and play an important role in the Constitutional Convention and in encouraging popular support for the new Constitution before dying, in the early days of the new Republic, as a revered and celebrated figure.

Franklin was not a perfect human; he had warts and missteps and embarrassing moments and times of hubris and thoughtlessness.  Yet you can’t help but be struck by the enormity of his accomplishments.  Throughout his 80-plus years of life, Franklin wrote countless letters, engaged with countless historical figures, and left a trail of sayings, witticisms, practical concepts, and scientific ponderings that would do credit to a legion of people.  And he invented bifocals, for which I am particularly grateful since I’ve worn them since I was about 6.

When I read about Franklin, I wonder:  where are the Franklins among our current political class, and is there anyone in our government who even comes close to his record?

 

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Government By Referendum

Great Britain’s vote to leave the European Union has shocked the world and rocked the stock markets.  Any American who has a 401(k) retirement account has felt the ripple effects — which shows that, Brexit or not, the world remains a pretty interconnected place.  (Incidentally, is anyone else tired of hearing the word “Brexit”?  It’s such a clumsy, awkward construct for a really significant issue.)

In the wake of the Brexit vote, the Washington Post carried an interesting article questioning whether a popular referendum was the best way to decide whether Great Britain should remain in the EU.  The article noted, for example, that some voters regretted their votes as mistakes and that some of the promises made in the weeks leading up to the vote turned out to be false.  The Post article has been mocked by some people as suggesting that the Post, and the liberal elites, harbor deep anti-democratic impulses and an innate fear of an active, engaged electorate.

That’s not quite fair.  There has long been a vigorous debate about precisely how governments should be structured to allow people to exercise their democratic rights.  Those who remember their civics class will remember that the American Constitution was the product of a lively debate in which the Constitution, and the Bill of Rights, were adopted to provide checks on what the will of the majority could inflict on the minority. Determining public policy by popular referendum became commonplace only in the 20th century — and my guess is that, in many states, the shackles and unintended consequences imposed by broad, often poorly worded “propositions” often end up being regretted by many of the voters who supported them in the first place.

This is not to stake out a position on whether the decision to exit the EU was good or bad for Great Britain, only to note that it’s entirely legitimate to question whether a complicated issue, having so many ramifications that can’t be fully captured by electoral sloganeering, is something that should be resolved by a popular referendum.  I imagine the American Founding Fathers would have had a very vigorous debate about that question.

Putting The Process Back To Work

President Obama described the last Congress as one of the least productive in history — and he was right.  The last Congress passed only a handful of bills that were ultimately signed into law, and was characterized by constant backbiting and finger-pointing.

As of this week there’s a new Congress in town, one in which both the House and the Senate are controlled by large Republican majorities and have an ambitious legislative agenda.  And already President Obama has signaled that he would veto one of the bills that the Republicans want to pass first — an initiative that would authorize construction of the Keystone pipeline.

Oh, no!  More of that conflict and gridlock that commentators bemoan!  I guess that means the swearing-in of the new Congress won’t change anything, right?

Not so fast!  If I recall my civics lessons, what we’re seeing signs of now is how the process is supposed to work.  The House and Senate write legislation, hold hearings, have floor debates at which amendments are offered, and vote to pass actual, written bills, conference committees resolve differences between the Senate version and the House version, and the President then decides whether to sign or veto.  Public veto threats in advance are one method the President can employ to influence the course and content of legislation.  And if Congress passes the bill and the President carries through on his threat, Congress can decide whether to try to override that veto.

We’ve become so used to a shriveled, do-nothing Congress that seemed to exist simply to react to the initiatives of Presidents Bush and Obama that we’ve forgotten that the legislative branch is supposed to be a powerful, coordinate branch of government.  It’s early yet, obviously, and I certainly won’t agree with the full spectrum of the Republican congressional agenda, but I’m glad that the new Congress at least seems intent on doing what Congress is supposed to be doing — and thereby putting our constitutional process back to work.  After all, the system has worked pretty well for more than 200 years.

An Issue That Captures And Frames The Worst

Immigration is a hugely important, multi-faceted issue.  In a world of many terrorist threats, border security is of paramount importance.  The influx of immigrants who don’t enter the country in an authorized way puts pressure on education, health care, and social benefits systems.  Immigrants are happy to perform physically challenging, low-paying jobs that are essential to our economy.  And what should we do with immigrants who crossed the border illegally but have worked here for years and whose children were born here?

So it is perhaps not surprising — in fact, it’s entirely predictable — that the incredibly important immigration issue manages to encompass much of what is appalling about the current sorry state of American government:  completely politicized yet frozen in place, featuring a legislative branch that is seemingly incapable of acting despite the obvious need for action and a President who can’t lead or forge a compromise and so acts unilaterally, and infused with finger-pointing, cringing political correctness and demagoguery that seems to preclude both rational discussion and reasonable compromise.

President Obama’s decision yesterday to issue sweeping executive orders on immigration issues — orders that will establish new programs that will change the legal status of millions of immigrants, change deportation practices, and end other programs — don’t help matters because they just highlight the politicization of this important issue.  President Obama has previously said, correctly I think, that changing immigration laws and policies through unilateral executive orders would be “very difficult to defend legally.”  The President also earlier had made the decision to defer any action on immigration until after the election, an approach that obviously was calculated to help Senate Democrats up for reelection.  In view of that decision, arguments that unilateral action is urgently needed now ring awfully hollow.

I’m sure that President Obama’s supporters will argue that issuing executive orders of dubious constitutionality is justified here because it will goad Congress into taking action that should have been taken long ago.  That argument is like saying that the behavior of the bully in A Christmas Story was justified because it ultimately provoked Ralphie into standing up for himself.  I’m not buying that, either.  America is supposed to be a constitutional form of government where the executive branch and legislative branch both respect and honor the limitations on their powers.  The fact that Congress has dropped the ball doesn’t excuse the President’s overstepping of his constitutional authority.

I’m not trying to excuse Congress’ leaden inactivity on developing a comprehensive set of immigration reforms or side with the anti-immigration fear-mongers, but I think President Obama’s decision to issue these executive orders is a mistake that will only make it much more difficult to address a crucial issue in the correct, constitutional way.  Brace yourself, because the shrill demagoguery on all sides is about to increase in pitch and volume.

Protecting Cell Phone Privacy

The Supreme Court issued an important ruling yesterday.  In a 9-0 decision, the Court ruled that police must obtain a warrant before they search the cellphones of people they have arrested.  The ruling won’t directly affect most of us — unless you’re planning on being arrested in the near future, that is — but it represents a significant recognition of the central role of cellphones in our lives and an important bit of line-drawing in the ongoing battle between personal privacy and law enforcement.

IMG_6186In the ruling, Chief Justice John Roberts addressed both the pervasiveness of cellphones in modern America and the sweeping extent of information that people store on them.  From photos and video to address books, emails to calendars, financial information to maps, and other records of where we have been and who we have communicated with, cellphones are a handheld repository of huge amounts of very personal information about our private lives.  The Chief Justice thus reasoned that allowing warrantless searches of cellphones would be akin to the hated “general warrants” executed by the British authorities during colonial times that allowed them to rummage freely through homes in an effort to find some evidence of some kind of otherwise uncharged criminal activity — which is what drove the creation of the warrant clause of the Bill of Rights in the first place.

The Court also rejected arguments that a search of cellphones is needed to protect police officers or prevent the destruction of evidence.  When an arrest is made police can examine the cellphone to ensure that it can’t be used as a weapon and secure it, and if there is concern that evidence on the phone might be destroyed the officer can turn off the phone, or remove the battery, or place it in a foil bag to prevent any exchange of signals.  But before the police can access the cellphone and begin reviewing recent emails, the logs of recent calls, and other information, they must make the probable cause showing required by the Fourth Amendment and convince a judge to issue a warrant.

Two other points about the opinion seem worth emphasizing.  First, it was a unanimous decision.  For all of the fretting about political fracturing and the liberal and conservative wings of the Court, all of the Justices were able to agree on how to resolve a very central issue of how the Constitution works in modern life.  There’s nothing wrong with members of the Supreme Court disagreeing about legal issues — that’s why there are nine of them and the majority wins — but it’s nice to see the different perspectives coalesce around a simple, common approach to protecting individual liberty and privacy rights.

Second, many people have criticized jurists who return to the intent of the Framers of the Constitution and seek the meaning of its provisions in the historical context in which they were adopted, arguing that the Constitution should be a living document with meaning that changes in response to the realities of modern life.  Others contend that such an approach strips America’s core founding document of any objective significance and leaves it to mean whatever five Justices of the Supreme Court say it means.

The Court’s cellphone opinion, with its reference to the history of general warrants, shows how it is possible to draw upon historical context to identify the basic motivating principles underlying the Constitution and then apply those principles to the modern world.  Those observers who poke fun at purportedly hidebound efforts to discern “original intent” likely are happy with the opinion yesterday, but not about how the Court got to that result.

Droning On

Yesterday Kentucky Senator Rand Paul staged an old-fashioned filibuster on the Senate floor.  Paul held the floor for almost 13 hours until the urgent call of nature caused him to yield the floor at about 1 a.m. this morning.

The target of Senator Paul’s filibuster was the nomination of John Brennan to lead the Central Intelligence Agency — but the broader target was the Obama Administration’s drone program.  Attorney General Eric Holder has refused to rule out the possibility that the President could lawfully order drone strikes on American citizens on American soil under extraordinary circumstances, such as a terrorist attack akin to September 11.  Paul considers that position frightening and an affront to due process rights of American citizens, and that’s why he took to the Senate floor.

I don’t agree with Senator Paul on many issues, but I applaud his use of the filibuster to draw attention to the drone issue, which I think has largely flown under the radar of the American public.  We need to have a national discussion about our use of drones, both in America and in foreign countries.  We should fully consider the costs and benefits of the use of drones overseas, and whether we think it is prudent for the President to have the unilateral authority to authorize drones to kill suspected terrorists in other, sovereign nations with which we are not at war.  There is no doubt that the drones have been effective weapons in the fight against al Qaeda, but are they being used too frequently and too indiscriminately?  The strikes have injured and killed apparently innocent civilians and deeply damaged the United States’ reputation in several countries.  Is it worth it?  That’s not a question that the President, alone, should be answering.

Domestically, do we really want to give the President the power to order the killing of American citizens in the United States — without a judge or jury or a finding of guilt by any other entity or branch of government?  Reserving for the President the right to do so in “extraordinary circumstances” seems like an ill-defined limit on presidential power.  Supporters of President Obama might trust him to make wise decisions with such power, but what about the next President, and the President after that?  Presidential power runs with the office, not with its occupant.  Gradual accretions of presidential power never seem to get reversed, they just continue to accumulate and accumulate until the president seems less like a chief executive of a three-branch government and more like a tyrant.

I’m not ready to yield the power to the President to order drone strikes on American citizens on American soil just yet.  I hope Senator Paul’s old-fashioned, bladder-busting filibuster causes Congress, and the American public, to pay more attention to this important issue that addresses broad questions of individual liberty, due process, and how our government should work.