Progressively Surreal: The Gulf Between Words & Deeds

We learn today that the Obama administration - which came into office promising to bring us the most transpartent administration ever - has in fact been far more restrictive in answering Freedom of Information requests than the Bush administration ever thought of being. This from Raw Story:

. . . [A] provision in the Freedom of Information Act law that allows the government to hide records that detail its internal decision-making has been invoked by Obama agencies more often in the past year than during the final year of President George W. Bush.

Major agencies cited that exemption to refuse records at least 70,779 times during the 2009 budget year, compared with 47,395 times during President George W. Bush's final full budget year, according to annual FOIA reports filed by federal agencies.

An Associated Press review of Freedom of Information Act reports filed by 17 major agencies found that the use of nearly every one of the law's nine exemptions to withhold information from the public rose in fiscal year 2009, which ended last October.

The AP review comes on the heels of another bit of government transparency news: that the Obama Administration has threatened to veto a congressional intelligence bill because it objects to efforts to increase intelligence oversight.

Among other things, the proposed legislation would subject intelligence agencies to General Accountability Office review. US intelligence agencies are currently immune from review by the Congressional auditing office.

. . . In all, major agencies cited that or other FOIA exemptions to refuse information at least 466,872 times in budget year 2009, compared with 312,683 times the previous year, the review found. Agencies often cite more than one exemption when withholding part or all of the material sought in an open-records request.

All told, the 17 agencies reviewed by AP reported getting 444,924 FOIA requests in fiscal 2009, compared with 493,610 in fiscal 2008." . . .

Let us not forget, Obama promised that his would heal the divides and even slow the rise of the oceans. He was to lead us into the promised land of post-partisanship. Instead, he seems to be leading us to a period of bitter partisanship not seen since prior to the Civil War.

The left is hypocrisy unbound. Under the Bush Presidency, the left screamed from the rooftops that the Bush administration was warring on the Constitution - essentially because Bush and the right would not grant new Constitutional rights to enemy combatants and because he passed the Patriot Act as a responsible means of balancing the needs for protecting America against terrorist attack. Yet now all of that is turned on its head.

Now the left conducts a real war on our Constitution - from Obama's war on private property to Pelosi's plan to Slaughter the Constitution. That does not even begin to consider Obama and the left's larger war on our form of deliberative democracy. Nor the fact that, now that Obama is President, a Democrat controlled Congress, at the request of President Obama, has yet again extended the Patriot Act.

Now Obama, who promised us the most transparent government in office, has pulled down all the blinds on the windows into our government. There was of course his utterly opaque handling of the drafting of Obamacare. But that is one instance. The reality is that, in his first year in office, he has not merely held less press conferences than Bush, he has engaged in an effort to manipulate the press that even radical leftie Helen Thomas, sharply criticized several months ago:

White House correspondent Helen Thomas told CNSNews.com that not even Richard Nixon tried to control the press the way President Obama is trying to control the press.

“Nixon didn’t try to do that,” Thomas said. . . .

“What the hell do they think we are, puppets?” Thomas said. “They’re supposed to stay out of our business. They are our public servants. We pay them.

True, Helen, true. November cannont come soon enough.

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The Living Constitution, Private Property Rights and Eminent Domain

The Fifth Amendment to the Constitution provides in relevant part that "private property" shall not "be taken for public use, without just compensation." This clause functioned for two hundred plus years to protect private property rights in America. It provided a bright line limitation on the Government's ability to use its police power to take the private property. The Government could use the legal process of eminent domain to take private property if it was then going to put it to a "public use." A public use is something that would involve use of the property by an arm of government, such as a military installation, or a use that would open up the property to the public at large, such as a road or a park.

That all changed when the Supreme Court decided Kelo v. New London. The liberal wing of the Court prevailed and, in substance, rewrote the Fifth Amendment to the Constitution. No longer is government limited to taking private property only if it is going to put the property to a public use. It is now sufficient that the Government show that the private property will be used for a public "purpose," such as increasing the tax revenues of the government. Thus a government can now take your private property and transfer to another private property to be commercially developed so long as the Government claims that the public - i.e., the government itself - will somehow gain.

The effect of this change to the plain language of the Constitution are now just being felt. Drew Carey hosts a very good webcast showing how this decision is effecting the poor and the working class. You can see it here. And indeed, what you see in the Carey webcast is anything but an isolated instance.

There are, for all practical purposes, two approaches to constitutional interpretation, both of which were clearly evident in the Kelo deicision. The first of these is the approach of the "originalists," such as Justices Scalia and Thomas. Origninalists believe that the Constitution is a fixed instrument and that it is the duty of the courts to interpret the Constitution as and to the extent they can discern what the original drafters intended. This limits the discretion of the Court. For example, originalists do not see abortion as a constitutional right. It appears nowhere in the Constitution and its an activity wholly local in nature. Orignalist thus view abortion as beyond the power of the federal government to regulate.

At the opposite end are proponents of the "Living Constitution," such as Justices Breyer and Ginsburg. They do not feel constrained by original intent and are willing to look outside of the Constitution, to foreign law or current social mores in order to interpret the Constitution. To them, the Constitution should be given a meaning that they perceive as appropriate in the modern day - in essence, imposing their own personal belief system on America as a matter of constitutional law. For a good look at this issue, see Justice Scalia's speech on the living constitution in 2005, and here is a transcript of the debate between Justices Scalia and Breyer on the issue of using foreign law to determine the meaning of the U.S. Constitution.

Looking outside the four corners of the written Constitution and the intent of the drafters makes of the Supreme Court a supra-legislature, taking over the position of Congress and the executive to create laws rather then to interpret them in light of the Constitution. That is not the function for which the Supreme Court is designed. Besides not being assigned any legislative role in the Constitution, the Supreme Court does not have the ability of Congress to hold hearings or subpoena witness - in essence, to make findings of fact beyond whatever record lies before it. Nor does allowing the Court such leeway comport with the concept of democracy. The Supreme Court justices are not subject to the will of the people, being an unelected body with tenure for life. And Drew Carey shows us just how much of a Pandora's box the Living Constitution is.

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