Sunday, September 20, 2009

Charlie and the Constitution Factory

Congressman Charles Rangel (D-NY15) saw fit to explain his vote against de-funding ACORN:

The Constitution impels Congress not to pass a bill of attainder that would punish a named individual or group without a judicial trial. The amendment would punish ACORN after allegations surfaced last week that two of the organization’s staff members, who have since been fired, counseled their clients to break the law − a role the Constitution explicitly leaves for the courts.
Michael McAuliff of the New York Daily News wants us to know "This, some will recall, was the argument many Republicans made against taking back bonuses paid out by AIG.". Rangel and McAuliff fail to appreciate the differences between those two situations, and how the term "bill of attainder" does not apply to the ACORN situation.

When Hot Air's Ed Morrissey brought up Rangel's remarks in his "Week in Review" webcast on Friday, I enunciated a definition of the term in the show's chatroom, and briefly described how it didn't fit the situation. Ed responded, calling me a language "martinet", but he seemed to agree with my point that Rangel had abused the term. Well, most folks don't use the term "martinet" positively, but when the Left and the media (but I repeat myself) twist language to pervert its meaning, maybe it takes a martinet to untwist it (although a martini might help too, with or without a twist).

Let us begin with some history. The British government, from which our own legal traditions descended, centralizes effective power in the Parliament; the majority party/coalition in the House of Commons controls the executive branch, and until recently, the highest judicial body was the House of Lords. There is no Constitution in the sense we use the term. The only limitations on the power of Parliament are self-imposed. Those who rebelled against what they saw as an oppressive central government were determined, when they set up their own government, to put strict external limits on its power. The legitimacy of our government is based on the subjugation of all authority to the Constitution; any attempt to wield power that is not authorized by it is a violation of the contract we make with each other as citizens.

This distinctively American implementation of "Separation of Powers" enforced by a written constitution came from Enlightenment philosopher Baron de Montesquieu's idealization of the British system into truly separate entities. Our constitution explicitly forbids a member of Congress, the executive, or judiciary, to serve in either of the other two branches of government at the same time. It then sets about to forbid any of the three branches from doing the job of the other two, while giving each of them some ability to check the powers of the others. For good measure, the first batch of amendments take many matters out of the hands of the national government, reserving most power in the hands of the state governments and individual citizens (who serve on juries both grand and petit, elect state and local governments to enact laws, and directly make law in the fashion of the New England Town Hall or through initiative/referendum as their state constitutions and local government charters provide).

Representative Rangel appeals to one of the explicit prohibitions on the power of Congress to make law: Article I, Section 9, Paragraph 3, which states simply enough: "No Bill of Attainder or ex post facto Law shall be passed." But what do those phrases mean?

The English translation of ex post facto is simply "after the fact". The primary purpose of punishing criminal behavior is to deter it. We do this by making laws that codify behavior that is subject to punishment, and what that punishment can be. People who might be tempted to engage in such behavior will consider the consequences, and most will refrain from doing so. But once the behavior has occurred, it cannot be deterred by strengthening its punishment. Punishing someone for an act that was legal when they did it is tyranny, if not sadism.

The "bill of attainder" is a bit more complicated:
A legislative act pronouncing a person guilty of a crime, usually treason, without trial and subjecting that person to capital punishment and attainder. Such acts are prohibited by the U.S. Constitution.
The word "attainder" itself refers to the cancellation of civil rights. As part of a judgment against a convicted criminal, he could lose the right to own property, and therefore pass it to an heir upon his death. (In cases of treason, that death could be quite grisly.) The term of art for the government stripping the criminal's heirs of their inheritance is "escheatment" or "corruption of blood". It was common for the Crown to escheat the assets of those condemned to death after a judicial conviction, but occasionally one would be killed in the act of committing his crime, or tortured to death in an effort to gain a confession. Dead men can't be tried, so a bill of attainder would be proposed in Parliament to escheat those assets away from the heirs. After all, it wouldn't do to let the son of a traitor inherit the family estate, and any titles of nobility the old boy had.

This practice, especially when performed in distant Westminster (where Colonials would find it difficult to have their side heard), was one of the many grievances that led to the American Revolution.

In particular, what constituted "treason" tended to depend quite a bit on who happened to hold sway in Parliament at the time. Factions loyal to a recently-deposed monarch could find themselves declared traitors by those who deposed him. Thus, many British bills of attainder also criminalized behavior ex post facto, prompting the conjunction of the two in Art. I §9 ¶3. A separate prohibition against corruption of blood is in Art. III §3 ¶2, where "treason" is defined so as to minimize political prosecutions, and allow the Loyal Opposition to disagree without fear of reprisal. (Eric Holder should take note of this.)

Although the traditional meaning of "bills of attainder" included capital punishment, the Supreme Court has interpreted their prohibition to include lesser forms of punishment. In Cummings v. Missouri it defined the term thus:
A bill of attainder is a legislative act which inflicts punishment without a judicial trial.

If the punishment be less than death, the act is termed a bill of pains and penalties. Within the meaning of the Constitution, bills of attainder include bills of pains and penalties. In these cases, the legislative body, in addition to its legitimate functions, exercises the powers and office of judge; it assumes, in the language of the textbooks, judicial magistracy; it pronounces upon the guilt of the party without any of the forms or safeguards of trial; it determines the sufficiency of the proofs produced, whether conformable to the rules of evidence or otherwise; and it fixes the degree of punishment in accordance with its own notions of the enormity of the offence.
In the case of the AIG bonuses, employees agreed to work for a lower base salary, with performance bonuses tied to objective measures of productivity. They did the work, hit the targets, and thereby earned the bonuses. To declare after the fact that the bonuses are too high, and seize the money earned by those workers would clearly violate both parts of Art. I §9 ¶3., and the Fifth Amendment "takings" clause as well.

The biggest problem with Representative Rangel's ridiculous reasoning is that it tacitly makes the ridiculous Leftist assumption that not giving public funds to a person or organization is the same thing as taking money or other property from them. We have become so accustomed to that assumption that even some conservatives seem to accept it, but it is untrue. Those funds are the property of the US taxpayer, not ACORN or any other government contractor, unless and until the contractor is lawfully engaged to perform work, and the contract faithfully executed.

The measure Rangel voted against does not call for incarceration of ACORN employees, the levying of monetary fines, or withholding of funding for any work that ACORN has already done in conformance with existing laws; It doesn't even call out ACORN by name. It only specifies restrictions on organizations' eligiblity to participate in any future funding based on certain activities. And ACORN is clearly covered by those stipulations.

If we must compare ACORN to AIG, the closest analogue would be for Congress to order that as a condition of the bailout, the bonus programs be cancelled for work done in the future, while allowing bonuses that had already been earned to be paid. Those employees have the right to be paid for the work they did under the terms in force when they did the work. They are not entitled to compel the continuation of those terms in perpetuity.

Rangel and his political allies embody just such an "entitlement" mentality; like the hereditary British nobleman, they believe our money belongs to them, year after year, in ever-increasing amounts. When tax rates are reduced, they call it "giving tax breaks to the wealthy". That is a corollary of the above. There is a difference between not taking private funds from a person or organization and giving it to them. The government does not give a taxpayer what is already his by not taking it from him.

No one has a "right" to get paid to administer government programs, and we don't have hereditary titles of nobility (the Kennedys notwithstanding) that treat power over others as if it were a personal right. Such titles are explicitly forbidden by the Constitution. On the contrary, we taxpayers have the right to a government run as cleanly and efficiently. We elect representatives to attend to that.

Congress is given great latitude in executive oversight. It has the authority to require Senate confirmation for any executive position, and can investigate how our money is spent. Congress is entirely within its legitimate power to direct the executive branch that funds it has authorized to run government programs only be awarded to individuals or groups that meet strict standards of conduct. In doing so, it is fulfilling its obligations under the original Contract With America. That's not something I can always say with a straight face.
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  1. "Language martinet"? Good grief, do words have meaning or not? The corruption of the language is probably one of the biggest weapons the Left has in its arsenal.

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  3. You're right, Wayne. Words either have meanings, or they don't. If they do, we should use them correctly. If they don't, then communication isn't really possible. Anyone making the charge of "language martinet" is saying in effect, "I'm too lazy to use language correctly and just use the words I imagine are correct and leave it to the hearer to puzzle out my intended meaning."

  4. It's even more important than just communicating, Doug. When it comes to a contract (and what is our Constitution if not a contract the Framers made with each other, and their own future generations), it is important that there is a "meeting of the minds". When the parties to an agreement don't agree on what the agreement says, then is it really an agreement?

    I don't know if the intense cultural pressure to use slanguage that inverts the meaning of words (That's baaad, man!) and mocks those who care about definitions, grammar, etc. as "pedantic" is the result of an organized conspiracy to poison the peace by confusing what it is we've agreed upon, but I do know it is at the core of our problems.

    If we don't get our definitions straight, not only can't we communicate clearly; we can't even think clearly.

  5. That's why I always insist on using words properly. That includes "fascist," as Tyrone in another thread here can't quite understand.


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