As has been reported in numerous press publications, Vice Presidential candidate Sarah Palin recently claimed on camera that the Vice President is "...in charge of the Senate" and at least implied that the position held power above and beyond any other member of the Senate. She was roundly criticized in the general news media on the grounds that Article I, Section III of the U.S. Constitution says nothing remotely like what she claimed. Many seem to think that this statement was just yet more ignorance on display by Ms. Palin. But I don't think so, for Gov. Sarah Palin is not the only one making these arguments.

Starting off, let's source Ms. Palin's quote and get that out of the way. We all know what she said, but it's still good to prove the point:

PALIN: That's something that Piper would ask me! ... [T]hey're in charge of the U.S. Senate so if they want to they can really get in there with the senators and make a lot of good policy changes that will make life better for Brandon and his family and his classroom.

Next, while this issue has been discussed several times in comments, diaries, and even a Front Page post I believe, I don't remember a single diarist quoting the actual text of the section of the constitution in question:

Article I, Section III of the US constitution:

The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.

Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year; and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies.

No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.

The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.

The Senate shall chuse their other Officers, and also a President pro tempore, in the absence of the Vice President, or when he shall exercise the Office of President of the United States.

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

Ignoring minor variations in spelling and grammar that have accumulated over the last two centuries, the document is still easily read and understood with only a basic high school education.

According to Section III's actual text, the Vice President is only responsible for two functions:

1. Being ready at a moment's notice to fill in for the President due to any emergency which prevents he or she from fulfilling the roles of President. If a President dies while in office, the Vice President steps in. If the President is unconscious due to, for example, anesthesia while undergoing surgery, the Vice President steps in. This is pretty simple.
2. The only other official duty is for the Vice President use his authority as President of the Senate to preside over the session, vote, and thus break a tie in those rare occurrences where that happens. Also, pretty simple.

That's it. Or so every Vice President and senator thought for the last two hundred years. As John Nance Garner, Senator, 1932 Democratic Presidential candidate and then Vice President to FDR in his first term put it, the Vice Presidency is "... the spare tire on the automobile of government" and "...not worth a bucket of warm piss." (Note: Some publications quote Mr. Garner as having said ...bucket of warm spit). The term President of the Senate in paragraph four has been interpreted for the last two hundred years as nothing more than a ceremonial role trotted out when the Vice President presides for formal occasions - such as during a State of the Union address - and, very rarely, when the Vice President votes to break a tie in the Senate. But never has a Vice President intruded on traditional matters of Senate prerogative, such as rule-making, recognizing speakers, setting a legislative agenda, or calling votes. Never. Thus, in the traditions of the Senate, a Vice President rarely presided as "President of the Senate". Back in Vice President Garner's day, those few official acts would have been as much as he could have expected from his job as 'Presidential Spare Tire.'

All that changed after the election of President Jimmy Carter and Vice President Walter Mondale in 1976. President Carter chose to change the role of the Vice Presidency within the executive branch to one where Mr. Mondale was given an official office in the White House and numerous new duties as assigned at the President's discretion and in agreement with the office of the Vice President. This is how Wikipedia described Mondale's additional responsibilities:

Under Carter, Mondale traveled extensively throughout the nation and the world advocating the administration's foreign policy. Mondale was the first vice president to have an office in the White House, and established the concept of "activist Vice President". He expanded the vice president's role from that of figurehead to presidential adviser, full-time participant, and troubleshooter for the administration. Subsequent vice presidents have followed this model in the administrations in which they serve. Mondale established the tradition of weekly lunches with the president, which continues to this day.

That decision by President Carter set the precedent for what Ms. Palin argues today: the Vice President has powers far in excess than those that is explicitly enumerated in the constitution. There are differences between Mondale and Palin's perspectives. For example, under Carter's policy the President had the direct authority to assign executive tasks to the Vice Presideent, assuming Mondale accepted those responsibilities. In this circumstance there was no extra-constitutional usurpation of authority within the executive, as the system ran by a gentleman's agreement between those two offices of the executive. This agreement is what sustained the growing power of the Vice Presidency over both Republican and Democratic office holders from 1980 on to 2000 when Bush/Cheney took office.

Ms. Palin was characteristically vague when she stated that the Vice President is, "...in charge of the Senate...", leaving it up to her supporters and critics to discern just what she meant. However, other conservatives have not been so ambiguous. For example, Law Professor Steven Willis (please do not contact or otherwise invade Mr. Willis' privacy, this link exists simply to cite his credentials), a Tax Attorney who teaches at the Florida School of Law, posted over at Redstate:

Title: Article I Section 3

Posted by: Steven_Willis October 21st, 2008 at 3:27 p.m. CDT (link)

------

The VP is President of the Senate.

While most VPs have ignored the position other than for the occasional tie-breaking vote, Palin could do otherwise.

The VP is much like a Committee Chair who can: recognize speakers, enforce rules, or even help set agenda, if not more. This is an interesting Constitutional theory and one I hope she pursues.

-------

Signature: Steve Willis Professor of Law University of Florida College of Law

That's an astonishing revisionist reinterpretation of Section III's text. What he's arguing is that the Vice President, as President of the Senate, really has the power of the Majority Leader's gavel to recognize speakers, enforce rules, restore order, and and even "help set [the legislative] agenda". Never before has the Vice President had such authority. But at least some conservative legal scholars think the role should be changed such that the Vice President would have at least some - if not all - of the powers of the Majority Leader as set by longstanding Senate rules and traditions.

Among conservatives, Steve Willis is not alone. For example, Bruce Ackerman, of The American Prospect, wrote back in 2005 on the topic of Vice President Cheney's seemingly extra-constitutional usurpation of power during the filibuster debates of that time:

The key rule in this debate isn't the one that requires 60 senators to end a judicial filibuster. It isn't even the special provision that requires 67, rather than 60, senators to terminate debate on those special occasions when the Senate is considering a change in its standing rules. It is Rule 5: "The rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules." The only way of changing the filibuster provision that is "provided in these rules" is the one that requires 67 votes. If Cheney followed Rule 5, he would have to rule out of order any effort to change the filibuster provision with less than this kind of super-majority support.

It really is as simple as that -- which is why the leadership isn't consulting with the Senate parliamentarian. Instead, Cheney has announced that he won't enforce the rule, which expresses the consistent understanding of the Senate for two centuries. He will put the power of his office behind Frist's complex parliamentary maneuvers that aim to nullify the key provision. And if the Senate ties at 50-50, he will cast his deciding ballot in favor of destroying the rules that, as the Senate's presiding officer, he is charged with enforcing. No Senate president has abused his power like this in American history.

In other words, the claim of additional powers to the Vice Presidency is not something that an ignorant Sarah Palin just trotted out in the hopes of looking smart in front of a camera. And Cheney clearly has been willing to abuse his power in ways far outside the normal rules and decorum of Senate process. Diminishing of the legislature would appear to be a long-standing project among some conservatives. Professor Willis may turn out on the losing side of this debate, but he's not the fountainhead of this idea. I suspect that Cheney and Rumsfeld, however, is. And their plans have been long and deep to reach such a rotten fruition as this.

To realize why, one need only look back to the 1970s when Vice President Cheney was a staffer at the White House under Presidents Nixon and Ford, to then ascend to the position Chief of Staff after Donald Rumsfeld was promoted to Defense Secretary. One should note this short statement in the Wikipedia article:

[Cheney] held several positions in the years that followed [1969-1970]: White House Staff Assistant in 1971, Assistant Director of the Cost of Living Council from 1971-73, and Deputy Assistant to the president from 1974-1975. It was in this position that Cheney suggested in a memo to Rumsfeld that the Ford White House should use the Justice Department in a variety of legally questionable ways to exact retribution for an article published by The New York Times investigative reporter Seymour Hersh.

So, even back in the Mid-1970's then White House staffer Dick Cheney was promoting as executive privilege extra-legal methods of action within the White House to target 'enemies'. One suspects that Mr. Cheney learned these tactics while as a staffer under President Nixon. Thus, one can see a direct line from disgraced President Nixon and his abuse of power straight to the current abuses of power in the Bush Administration. And - ironically - it would appear that President Carter unfortunately set the precedent conservatives are now using to try to usurp power away from the Majority Leader to the office of the Vice President.

However, the Senate runs by two centuries of rules and traditions, many of which would be superseded by the proposed change. It is unclear just how the executive could wrest authority from the Senate, especially considering an unlikely Republican Presidential win in 2008 and the divided government that would follow. But suppose the President directed the Vice President to preside over the Senate floor, raise the gavel, and call a session to order? There's nothing in the constitution to prevent this action, and further, there's two hundred years of precedent where the Vice President did just that - during ceremonial occasions.

But just how could a President and Vice President convince the Majority Leader to hand the reigns of Senate process - and the constitutional authority of the legislature - over to a Vice President in the executive branch? The rationale behind Mr. Cheney's repeated assertions that the Vice President is not a member of the executive branch but is instead a part of the legislative branch now becomes clear. Presumably, under this scenario, the Vice President would simply take the gavel, call a session to order, and wait for the Majority Leader to challenge the Vice President with an objection and try to force a rules vote. With a strong majority in the Senate one would expect Mr. Reid to win that vote. So what is a Vice President to do to wrest those reigns over the Senate from Mr Reid's hands?

Take it to the Supreme Court, where all constitutional matters between government branches are resolved.

And now we see why this is such a dangerous theory. With this Supreme Court, who knows what might be the outcome?

Given the widespread executive abuses we've seen over the last eight years, from abandoning George Washinton's edict to not torture enemies in warfare to extra-legal rampant spying on US citizens in opposition to the clear text of the fourth amendment, it would appear that an overly-empowered executive branch can easily arm-twist enough members of congress to enact almost any agenda they want. But that may not be enough for them. An empowered executive branch would want the legislative branch fully neutered so they could enact whatever agenda the President wished - particularly in divided government.

And while it may be conservatives pushing for this change right now, we should remember that it was at least some Democrats who voted for FISA immunity; it was at least some Democrats who voted to continue funding the Iraq War; it was at least some Democrats who voted for the Iraq War in the first place. Without those Democrats, Republicans may never have enacted their agenda and thus cocked the gun that we now see pointed at our republic and constitution.

Thus, I argue that liberals and moderates should not ignore or laugh at these statements and just assume that ridicule will make this idea go away. Conservatives have a plan. And while the election today would appear to thwart their most recent plans for how they view a future Amerika, conservatives have shown that they are patient. They spent almost forty years reshaping and cleaving American social mores in order to first regain power and then slowly shift the debate from one that was moderate-liberal to one that should be termed a radical rightist agenda today. After the disaster of the Nixon administration, it took only one full term before they regained power. Think about that. Within only two generations conservatives, with the support of Republican Presidents in power along with an army of think-tank Ph.D. soldiers, have reinterpreted the constitution such that our founders would barely recognize the institutions they created. I fully expect we're going to see this argument trotted out in a future Republican administration. Next time, lets be prepared to demolish it intellectually so that it never resurfaces again.

-------

UPDATE: Special Thanks to Kagro X and arodb at Dailykos for a very helpful debate that elicited several points I had not thought of. Also, some minor text revisions as a result of that debate.

Disclaimer: IANAL (not a lawyer)

Text Copyright 2008, J. Maynard Gelinas. Some rights reserved. Permission granted to duplicate content in full, with attribution, per a Creative Commons Attribution 3.0 license.

With Barack Obama having secured the Democratic nomination, <a href="http://www.dailykos.com/story/2008/6/3/20114/01909/252/528606">speculation</a> <a href="http://www.dailykos.com/story/2008/6/4/9452/78181/384/526416">has</a> <a href="http://rawstory.com/news/2008/With_nomination_in_hand_Obama_turns_0604.html">abounded</a> about whether Obama should offer Hillary the VP slot, as well as whether it is appropriate for Hillary to discuss in public this negotiation. I think Hillary should be offered the Vice Presidency, and further it would be supremely to Obama's advantage for him if she accepts. But I have Machiavellian reasons for arguing this position.

<!--break-->

Josh Marshall at TPM puts the issue in stark terms by <a href="http://talkingpointsmemo.com/archives/198705.php">publishing an email</a> he received from a reader that says in part

<blockquote>Let's be clear about what Hillary is doing here. By signaling that she'll take the VP slot if offered -- and insinuating that a joint ticket is necessary to heal the party(!) -- she is foregoing the normal diplomatic niceties in order to screw Obama. It sticks him with the choice between looking like the bad guy (for not offering) and doing something he really doesn't want to do (putting her on the ticket). Either way, he loses. And either way, she wins: she gets on the ticket or else she engenders a lot of bitterness in her supporters, hurting Obama's chances in November (and thereby increasing her chances for a 2012 run).</blockquote>

Josh isn't convinced that this is Mrs. Clinton's intention, though he does admit that her campaign benefits from these tactics in just the manner the email author says. If Obama doesn't at least offer her the VP slot, he runs the risk of insulting her large base of support. If he does offer her the VP slot, he's presumably taken her into the inner circle of presidential politics where she  - as VP - might interfere with Obama's policymaking.

But there's a third approach that few seem to be mentioning.

I say give her the VP slot. In fact, be magnanimous about it and do it in a large public ceremony so she can't refuse, such as at the Democratic convention in Denver. Come on, Hillary - join the team! :)

Once January 20th comes and he's taken the oath of office, well then things can change a bit. For example, why does the Vice President need an office at the White House? Doesn't the Vice President have an official office at the Eisenhower building? She'll be fine there - there's plenty of room in that building. Further, why does she need to attend any oval office meetings or functions? Obama can CC: her on any official correspondence that's necessary for a Vice President to be aware of.

What am I suggesting? That it's time for the ascendancy of the power of the Vice Presidency that has taken shape since Jimmy Carter's relationship with Walter Mondale and Bill Clinton's relationship with Al Gore to be knocked down a few notches. Hey, if Obama needs Mrs. Clinton on the ticket to win - fine by me. Let them pretend they like one another like JFK pretended to like Lyndon Johnson. But, like JFK gave Vice President Johnson no authority to even pick his nose in policy meetings, perhaps so too should a Vice President Hillary Clinton have all levers of power removed from her grasp.

We'll watch her power in the senate wane as she spends her busy schedule attending such perfunctory ceremonies as funerals for foreign heads of state and other officials who have passed away, or the occasional ribbon cutting ceremony instead of attending senate committee and sub-committee hearings.

Thus, I argue that the Vice Presidency is the perfect place to dump Mrs Clinton where she can do President Obama and his agenda no harm.

Hello,

I recently had a comment censored and my account posting privileges revoked at Huffington Post after submitting a single comment. The article concerned Depression, not mainstream politics:

link

My comment questioned the author's use of a NY Times lay article to refute an assertion quoted by another author, a psychiatrist whose quoted work cited peer reviewed studies to support his assertion. For this my comment was not published and my posting privileges suspended.

I've send two emails to the editorial staff at Huffington Post, none of which have been returned. I must now assume this is policy at the site and not a rogue editor.

QUESTION: Has anyone else experienced this type of arbitrary and capricious censorship there? If so, may I quote you? Please reply here or contact me by email. I am working on an article about the issue.

In positive news, a helicopter co-pilot stood outside on the wing of his Apache helicopter to give room for a severely wounded soldier, who had been waiting 40 minutes for a medivac. This daring decision during a firefight saved the soldier's life. A few choice quotes below the fold:

Chief Warrant Officer-4 Kevin Purtee and Chief Warrant Officer-2 Allen Crist, two Apache helicopter aviators flying their last combat mission, are credited with assuring a Soldier of Company A, 1st Battalion, 77th Armor, of prompt medical care by their actions. The Soldier had been shot in the face and the arm, and needed to be evacuated from a raging battle near Donkey Island in Ramadi.

The pilots learned that more than 40 minutes had elapsed since the ground unit had called for the medical evacuation aircraft to transport wounded Soldiers to the hospital at Camp Ar Ramadi. Chief Purtee, from Houston, Texas, was the pilot, which is commonly referred to as the "back-seater." Chief Crist, from Warrensburg, Mo., was the copilot/gunner, or "front-seater." Chief Purtee asked Chief Crist if he felt comfortable giving up his seat for the critically-wounded Soldier for the quick flight back to the camp.

"Absolutely," Chief Crist emphatically answered. Chief Purtee made the decision that to save the Soldier’s life, Chief Crist would fly on the wing of the aircraft on the way to the hospital.

He risked his life both from incoming fire, and plain standing outside the aircraft. And saved a man's life. What's that worth? A Bronze Star? A Silver Star? Whatever. Dude kicks ass.

The ACLU announced today that it considers the current stalemate between the Bush administration and Congress to be a "constitutional crisis", further asserting that congress must "[...]reaffirm itself as an equal branch of government and vote to hold White House officials in contempt for refusing to cooperate with legitimate congressional subpoenas." The press release further states that it is "do-or-die time" and that without further action to restore congressional checks and balances the US risks "[...]a historic moment when it can fight for its rightful place in our Constitution or accept the president’s continued and sweeping claims of supremacy."

I think we all know what that means. Critical outtakes from the press release below the fold. Also: secondary source from UPI.

Press release:

"Presidents have tried in the past to overreach in claiming executive privilege," said Caroline Fredrickson, director of the ACLU Washington Legislative Office. "However, Congress has long served as a check to such abuses of power, slapping the president’s hand when needed and pursuing contempt or enforcement actions that eventually resulted in the release of crucial information. Today’s Congress must do the same if it wishes to remain a meaningful and independent branch of government."

Fredrickson added, "It’s do-or-die time for the separation of powers. Congress is facing a historic moment when it can fight for its rightful place in our Constitution or accept the president’s continued and sweeping claims of supremacy."

UPI Coverage:

The American Civil Liberties Union Wednesday said it is "do or die time" to save the U.S. Constitution.

The ACLU in a statement urged the U.S. Congress to "vote to hold White House officials in contempt for refusing to cooperate with legitimate congressional subpoenas."

The ACLU statement said the issue had become "a constitutional crisis that threatens to destroy the separation of powers."

OK Folks: Who's with me on Impeaching and Convicting these criminals? As Bruce Fein said on Bill Moyer's program Tough Talk on Impeachment, to allow this criminal precedent to stand in the Executive is to give tacit approval for future criminal conduct in the White House. And House Democrats do believe the Bush Administration has broken the law. If the Executive is above the law, there is no law. Nor any constitution to speak of.

It is DO OR DIE time. Here is one approach for how to impeach and remove these criminals from office for the crime of Obstruction of Justice and Conspiracy to Obstruct Justice - which I believe there is more than ample evidence to begin a trifecta parallel Impeachment proceedings for Gonzalez, Cheney, and Bush right now. All we need do is buy off the right Republican Senators.

Let's do it! Our nation and way of life is in real danger from within! Our founders knew of this risk and proscribed a means to cut the cancer away from the reigns of power. There is no better time than now, for on its own cancer only grows to metastasis. And then the great experiment our founders left us - that republic 'if we can keep it' will have been lost in the name of an ignorant and historically insignificant dictator.

Text of my letter to Speaker of the House Nancy Pelosi, below the fold:

Madam Speaker,

As a registered Democrat in the state of Massachusetts, I contact you not as a California 8th district constituent, but as a citizen of the United States first, and a party member second. I have already contacted my representative, congressman Capuano, with these concerns.

Our president and vice president have committed grave crimes against the republic and the office of the Presidency. The most obvious and recent was the commutation of Scooter Libby, Vice President Cheney's aide, after a jury convicted and a judge sentenced him to a standard 30 month jail sentence for his crime of perjury and obstruction of justice. These are felonies. But President Bush, while admitting that Mr. Libby broke the law, commuted his sentence anyway - even though he has never done so before for anyone else convicted of the same crime. Citizens must conclude then that rule of law is only for those without friends in the White House.

This is more than just the appearance of conflict of interest. It undermines the whole judicial system. Rule of law has been tarnished at the very top. One could detail any number of other examples where the president has flaunted law, but this is instance is so obvious, so contemptuous of our most basic and cherished principals as set forth by our founders, that there is no more rationale needed to impeach.

In fact, Ms. Pelosi, I argue that it is your RESPONSIBILITY to begin impeachment hearings immediately. If you do not remove those men from office, it will set a precedent that we - the citizens - may never undo by legal means. I fear that we are at the precipice of despotic tyranny. You swore an oath to defend the constitution. Not the Democratic party. Not your congressional seat. And most certainly not Mr. Bush, as his aide seemed to imply recently during senate testimony.

Seek out responsible conservatives who realize the danger to our republic. They exist. As Bill Moyers has shown in his interview with Bruce Fein and John Nicols. It is clear that the Democrats do not have a supermajority to force the issue. But you could raise one with the help of responsible Republicans who would be willing to take the helm after Bush and Cheney's removal from office. All we need is another honest Republican, like Gerald Ford, at the ready.

If you fail to act, you and the 110th congress, may well be remembered in history as that feckless and cowardly legislature that handed a modern Caesar his dictatorship without even a whimper or a cry. Today, you needn't hide a knife under your senate robes, legal means exist to achieve the same result. Tomorrow, that may not be the case. Democrats are watching, Speaker Pelosi. Please act. I don't want to live under the thumb of a despotic state. I am a citizen, not a subject.

Thank You,

J. Maynard Gelinas

ADDRESS REDACTED

Registered Democrat

About two weeks back, the ACLU hosted a one hour long televised debate between ACLU president Nadine Strossen and Supreme Court justice Antonin Scalia. C-SPAN has posted a podcast of the debate, however, unfortunately, no written transcript is available. I've hand transcribed about fifteen minutes of the program for my own project, and thought there might be some members who would appreciate the posting of it here. Transcript is below the fold:

Starting 14 minutes 13 seconds into recording:

Moderator: But Professor Strossen, there are these other cases --

Strossen: There certainly are, and here we get to the ‘but Nino I don’t want you to think you’re too popular with this group’ [referring to a prior discussion about a privacy rights decision in support of the banning of police infrared imaging by helicopter within homes unsuspected of any criminal activity] I think the -- uh -- and I do enormously respect your -- uh -- being here and thank you for the votes that happen to coincide with ACLU positions. Let me zero in on what I think is probably the single biggest difference, and that is although you have a great respect for privacy in the Kyllo case in enforcing the 4th amendment -- uh -- many people, and including those of us in the ACLU who are very distressed at your failure to find within the constitution protection for what we think is at least as important a type of privacy, namely the right of consenting individuals -- mature individuals in their own homes -- to decide what they are going to see, or read, to decide with whom they are going to live, what kind of sexual intimacies or relationships they are going to engage in. Isn’t this, in fact, a confluence of the 1st amendment and the 4th amendment. That government should not have the right to criminalize -- uh -- certain materials that we read, and should not have the right to criminalize certain sexual intimacies.

(applause)

15:37 Scalia: Well, that may well be so. I do not take -- I do not take any public view on whether it would be good or bad for government to allow that. That’s not the business I’m in. My job is simply to say whether those things that you find desirable are contained in the constitution. Now your -- your -- Washington -- uh -- President said in his remarks before this session that -- uh -- what the ACLU is for is democracy. Right? --

Strossen: -- I thought you would like that. --

16:11 Scalia: -- You thought I would like that. -- I’m in the business of enforcing the laws. What democracy means is that on controversial issues -- even stuff like homosexual rights, abortion, whatever -- we debate with each other, and persuade each other, and vote on it. Either our representatives, or through a constitutional amendment in the states, we decide the question. Now, there are some exceptions to that. In any liberal democracy -- and in ours most of those exceptions are contained in the bill of rights. But that bill of rights was adopted by the majority. Which is why it is proper in a democracy to have a bill of rights, because the majority adopted it. Now when they adopted it, what did they take out of that general principle -- what did they take out of that general rule of democracy, that we allow open speech, we persuade each other, and we vote -- what did they take out of it? They never took out these issues! Abortion, homosexual conduct, what -- nobody ever thought that they had been included in the rights contained in the Bill of Rights, which is why -- uh -- abortion, and homosexual sodomy were criminal for two hundred years. Now whether that’s a good idea or a bad is -- is -- not what I’m talking about. That’s not my job to say that. It is my job to say whether the Bill of Rights has taken it out of the realm of democratic debate. Just because you feel strongly about it, it isn’t necessarily in the Bill of Rights.

17:39 Strossen: As -- as -- you rightly say, the -- uh -- constitution included an amendment process, and the ACLU’s defense of rights does not stop with the Bill of Rights, nor does the constitution. Fortunately, the constitution was amended after the Civil War, to create equality rights, and rights for African Americans, and others who had been excluded under the original constitution, and it is the 14th amendment -- as you know, Nino, we agreed we would be on a first name basis since we usually are -- uh, that you understand, Nino, that the Due Process clause of the 14th amendment has been interpreted by -- I think you are the sole exception in the modern court, to refuse to find that as a source of protection for implied fundamental rights. Going back to the nineteenth century, Supreme Court justices have recognized -- uh -- that that carved out an area free from government regulation, and that area has always included basic decisions about our own bodies, our own relationships, and what we do in our own homes.

18:47 Scalia: Well, whoever said that was wrong. Uh, (laughter) you have a text that says no person shall be deprived of life, liberty, or property, without due process of the law. That’s not a guarantee of any right, it’s not a guarantee of life, of liberty, or of property -- you can be deprived of all three of them, but not without due process. And I will enforce the due process clause when what it is directed to are the procedures of trial -- procedures that are necessary to deprive you of life, liberty, or property. But to say that there is within that due process clause some substantive right to abortion -- or to anything else -- I mean, words have no meaning if you begin to talk like that. And when words have no meaning, a democracy cannot function -- because that is how we express the people’s will, through words. So, -- now -- you may say -- and you may be right -- that -- I’m not the only one on the modern court, that at least Clarence Thomas is not a fan of so-called substantive due process, which is a contradiction, and, frankly, more and more law professors are abandoning substantive due process because it is such an obvious contradiction in terms.

(crosstalk)

20:00 Strossen: It’s interesting that on the modern court, the very first justice to read the due process clause as protecting the right of individuals to choose to use contraception was a Republican justice, the very revered John Marshal Harlan, but let’s come at it from another perspective Nino --

20:18 Moderator: -- Actually, before you do, may I ask you (Justice Scalia) to explain --

20:20 Scalia: to explain whether I would change my mind?

20:24: Strossen: (laughter) May I please make another point?

20:26 Moderator: I was just going to ask Justice Scalia to explain what “substantive due process” means.

20:29 Strossen: Oh. That there are -- um -- affirmative (laughter) He doesn’t -- um -- he doesn’t believe in it, how could he explain it! (laughter)

20:38 Moderator: He knows what it is! (laughter) Well, whoever would like to explain it.

20:41 Scalia: I don’t believe in anarchy either, but I’m (laughter) -- go ahead!

20:49 Strossen: I wanted to start from the opposite perspective, that -- uh Nino, let’s put aside what the Due Process clause does or doesn’t say. We are a government of limited powers, and unless the framers gave a power to the government the presumption is that we as individuals have that freedom that government may not intrude upon. Where in the constitution does the government have the power to tell free individuals -- adults -- what we may or may not do in the privacy of our own homes with our own bodies, and with those we choose to live with?

(applause)

21:28 Scalia: Nadine, you’re appealing to some natural law --

21:31 Strossen: -- Yes! --

21:32 Scalia: I don’t know that -- uh -- that I’ve been appointed to apply natural law, I apply the limitations upon democracy that the American people have adopted. And as long as those are not infringed, the constitution hasn’t been violated. It’s not up to me to decide -- you know -- what ought the equal protection of the laws to mean. There’s a lot of things it could mean, it could mean that in all public buildings you need unisex toilets. Now, you know, does it mean that? No, it doesn’t. Why doesn’t it? Because nobody ever thought that’s what it meant.

22:08 Strossen: Well, let say what that --

22:09 Scalia: -- And, in 1919, when, when, when women’s right to vote -- uh -- came up, nobody thought the supreme court would suddenly say ‘equal protection of the laws means women suddenly have the right to vote’ that’s not how it was done! We amended the constitution because it was very clear that when the equal protection clause was adopted nobody thought that it prohibited discrimination in the franchise on the basis of sex, on the basis of literacy, on the basis of property. So the American people did what you do in a democracy, they amended the constitution --

22:45 Strossen: -- Nino, in --

22:46 Scalia: -- and that’s the way all this other stuff ought to be brought in.

22:48 Strossen: But when the equal protection clause was adopted, nobody thought that it would outlaw racially segregated schools, nobody thought that it would outlaw interracial marriages. And fortunately, the United States Supreme Court did have an evolving interpretation of the equal protection clause that did read it as prohibiting those vile practices.

23:14 Scalia: Well, that’s fine. The question is whether that’s right. The question is whether, whether, you can live with an evolving constitution. Once you say it evolves, it doesn’t depend what the people thought they were doing when they adopted it -- it evolves. Somebody is going to have to decide how it evolves. Why in the world would you want nine people from a very uncharacteristic class of society -- to whit, nine lawyers -- to decide how the constitution evolves? It means whatever they think it ought to mean!

23:44 Strossen: I would want it for the very same reason that I’m happy that we are not a pure democracy, that the framers of the original constitution -- and certainly of the 14th amendment recognized that there are some rights that are so fundamental that no majority can take them away from any minority; no matter how small and unpopular that minority might be. And who is better positioned to represent and defend and be the ultimate backstop for rights of individuals and minorities than those who are not directly accountable to the electoral process? Namely, federal judges.

(applause)

24:21 Scalia: Well, you know, try putting that in the text. If that was the deal, it should have been in there. How many people would have voted for it? It would have read -- uh -- the phrases within the constitution that have generalized meaning, due process of law, equal protection under the law and so forth, do not mean what they mean today, but rather, they will mean whatever an unelected committee of nine lawyers, known as the Supreme Court, thinks they ought to mean from time to time. Who in the world would vote for government by such an aristocracy? I can’t imagine.

25:00 Strossen: This is what the broad textured clauses of the constitution themselves say, Nino. By definition, the framers could have chosen very specific language, and they did, in certain clauses, so one has to assume that they deliberately chose capacious language -- to quote your colleague, or to paraphrase your colleague Justice Kennedy in Lawrence vs. Texas -- if they had intended to confine the meaning of the due process clause to very specific rights, they were capable of writing such specific language but they did not pretend to know what meaning would be appropriate as society evolved. And that was a clarion call for future generations to expand -- hopefully, we’re coming closer and closer to what was the aspiration of the Declaration of Independence but far from the reality of equal rights for all under the law in this country.

(applause)

26:05 Scalia: Nadine, language can be capacious without implying that its meaning changes in the future. When they said ‘due process of law’ they meant those rights of Englishmen in 1791. And the reason they didn’t set them forth in detail is because it would have taken a casebook this fat! Of course they couldn’t list them all. So they said ‘due process of law’ which meant something different in France in 1791, or in Hawaii in 1791, but they knew what it meant in America -- it meant, that process which was the right of Englishmen. There’s no necessity to say, ‘oh, and they invited the Supreme Court to give this thing new meaning’ -- whatever new meaning this Supreme Court thinks is a good idea in the future. Someday, Nadine, you’re going to get a very conservative Supreme Court --

26:57 Strossen: -- I think that day has come! (laughter) --

26:58 Scalia: And you’re going to regret what you’ve done.

27:02 Strossen: I think that for those who would conserve the original meaning of the constitution, I think that would be fine. But Nino, do you think that the Supreme Court was wrong in Brown vs. Board of Education in 1954? As the court itself has acknowledged, it clearly was not the intent of the framers of the 14th amendment to outlaw racially segregated public schools.

27:23 Scalia: I don’t know. It -- uh -- I think, Harlan, when he dissented in Plessy, had the better of the argument, as far as I’m concerned, and I think that would have led to the same result in Brown. But even if you assume that -- yes -- suppose, I have to say yes, Brown was wrong -- which I don’t think I do -- but even if I did, what does that prove? I will stipulate that if you have an aristocratic supreme court, who changes the constitution whenever the Supreme Court thinks it’s a good idea, you’ll get some good stuff! I mean, a king would give you some good stuff. But -- you know -- the untidy process of democracy will not produce. But that doesn’t prove it’s a good system, just because now and then it gives you good results.

Speaking at a New York City town hall meeting on corporate media consolidation and its deleterious impact on the expression of minority viewpoints, FCC Commissioner Michael Copps, Democrat, stumped against greater local media concentration and instead argued for greater diversity of media outlets and voices. In 2003 the FCC, under Chairman Michael Powell, changed media ownership rules to favor greater corporate media consolidation at the expense of local owners. In what would be an apparent total reversal of prior FCC policy, Mr. Copps argued strongly for a complete policy shift at the FCC to favor independent media owners:

MICHAEL COPPS: "The FCC is in the midst of a hugely important proceeding right now to decide what the future of our media, our TV, our radio, our newspapers, our cable, even our internet, are going to look like for a long, long time to come.

A little history, just to set the stage for our discussion. Three years ago, under then FCC Chairman Michael Powell and over the objections of my good friend Commissioner Adelstein and myself, the FCC severely cut back -- really “eviscerated” is a better word -- the rules that were meant to check big media’s seemingly endless appetite for more consolidation. It passed new rules, which have allowed a single media giant to own in a single market up to three television stations, eight radio stations, the cable system, the cable channels, even the internet portal, and the local newspaper, which in most cities in the United States of America is already a monopoly. And the agency did all of that behind closed doors and without seeking meaningful input from the American people. Can you imagine that? Authorizing a sea change in how news and entertainment are produced and presented over the people's airwaves, without even involving the people who own those airwaves and who depend so heavily upon them. It was a near disaster for America.

Thankfully, citizens rose up across the land. They sent nearly 3 million protests to the Federal Communications Commission. Congress rose up, too, and then a federal court sent those rules back to the FCC saying they were badly flawed and they needed to be reworked. That was good, and anybody that doesn’t believe that citizen action can have an effect should just revisit what happened there. We checked those rules. You checked those rules from going into effect. It was concerned citizens at work, and it was a citizen consumer victory.

But, here’s a reality check now. We’re right back at square one, and it’s all up for grabs again. And if we're going to have a better result this time around, doing something positive for media democracy, it’s going to be because of more citizen action and more input from folks like you. So, this time we need to make it an open public process, instead of hiding in our office in Washington like the majority did in 2003. This time, let all the commissioners come to New York City -- I wish they were all here tonight -- and let all the commissioners get out across America and find out what’s happening in the real world, beyond that Beltway that they bemoan so much but seem to love staying behind so much.

So, as we begin our discussion, then begin with that simple reminder: it’s all of us who own the airwaves. There is not a broadcaster, a business, a special interest, and any industry that owns one airwave in the United States of America. They belong to you, and they belong to me. And, my friends, now is the time to assert our ownership rights."

[EDIT for factual retraction: This blog entry originally had the title: "FCC Chairman Copps Stumps for media diversity" and intro text that referred to Commissioner Copps as the FCC Chair. That is factually incorrect. Kevin Martin is the current FCC Chairman. I apologize for the error]