THE IGNORANCE OF THE ELITES
By Alan Nathan
Published March 4, 2008

On matters of war, illegal immigration and eminent domain, it's apparent that reporter, pundit and politico have an ongoing rivalry over who can most effectively misquote, mischaracterize and misrepresent the U.S. Constitution. On television, this contest of feeblemindedness usually has a predictable winner — whoever speaks last.

On NBC's "Chris Matthews Show" on Sept. 2, host and panelists discussed why, despite a weakened Republican president, the Democratic majorities in Congress were unable to stop funding the war. Newsweek's Howard Fineman said, "What the president wanted was just enough of a gloss of seeing progress to keep the Republicans in line. I hate to keep coming back to the Constitution. Sixty votes to stop a filibuster, 67 to overturn a presidential veto in the Senate." Mr. Fineman was right on the veto but wrong on the filibuster, and the Matthews panel echoed his ignorance by not correcting it.

Two-thirds of both chambers are needed to override a veto, and therefore 67 votes would do it in the Senate. However, the 60 votes necessary to stop a filibuster is a creature of the legislature; and that makes it legislative law, not constitutional law. Article 1, Section 5 states: "Each house may determine the rules of its own proceedings," which affords to Congress the option of the filibuster, but not the obligation. Paradoxically, it would only take 51 votes to get rid of the 60-vote supermajority standard never mandated by our founding document.

At the recent Democratic debate in Austin, Texas, CNN's John King seemed unfamiliar with the Constitution's trumping power over congressional law. He said to the candidates: "I want to stay on the issue, but move to a controversial item that was not held up when the immigration debate collapsed in Washington, and that is the border fence." The reason it wasn't delayed, like pathways to citizenship, was because border security has always been an inherent part of the government's Article 4, Section 4 obligation to protect us from invasion. And yes, a block of 400,000 people a year violating the entry laws into our homeland does constitute an invasion.

Amnesty advocates proved unable to hold border security hostage to their demand for concessions to illegal aliens via the Comprehensive Immigration Reform Bill of 2007.

Mr. King then ventured into eminent domain's role in the fence controversy. He argued that to some residents in the border states, it was a more personal question: "It might be an issue to a rancher of property rights." Sen. Hillary Clinton's response was, "I think when both of us voted for this, we were voting for the possibility that where it was appropriate and made sense, it would be considered." But she later added, "I think that the way that the Bush administration is going about this, filing eminent-domain actions against landowners and municipalities, makes no sense."

Sen. Barack Obama concurred, saying, "I think that the key is to consult with local communities, whether it's on the commercial interests or the environmental stakes of creating any kind of barrier. And the Bush administration is not real good at listening." Maybe that's true. However, on this issue, perhaps the senators have also joined the hearing-impaired.

In 2007, Mr. Bush signed an appropriations bill that gave Homeland Security Secretary Michael Chertoff the latitude in deciding how much of the fence would be necessary. It also obligated him to consult with all relevant local, state and federal officials prior to construction, with the understanding that the discretion was ultimately his. How did the senators miss what their own chamber produced? Contrary to popular myth, this is not causing a rift between most conservative border-security advocates and eminent-domain watchdogs. One thing I've learned as a centrist is that these folks recognize the dynamics of competing interest, wherein one must choose the least of multiple evils so as to prevent the worst evil from choosing itself.

Yes, in 2005 the Supreme Court perverted the Fifth Amendment's stance against "private property taken for public use, without just compensation." Justice John Paul Stevens wrote the 5-4 majority opinion in Kelo v. City of New London, arguing that "public use" could also be interpreted as "public purpose." This allowed local governments to take private property not just for the traditional needs of roads and bridges, but also to let developers take your land on the promise of being able to generate more tax revenue. Despite this vile development, most Americans still see legitimate use for eminent domain as originally intended - and border security meets that criteria.

The majority of illegal immigrants are peaceful workers, but that fact cannot be the standard in a land that prides itself on being a country of laws, not men. In other words, laws always matter more than the personalities violating them. Our children may play musical chairs, but we cannot be a nation of musical standards.

Once that happens, kiss goodbye your own seat of equal protection under the law.



Alan Nathan, combative centrist, columnist, speaker and the nationally syndicated host of "Battle Line With Alan Nathan" on the Radio America Network.

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