Justice Alito on “The Constitution: An Introduction”

TheConstitution-An Introduction Michael Stokes Paulsen is the University Chair & Professor of Law at the University of St. Thomas in the Twin Cities. Through his contributions to professional publications, he has emerged as one our foremost scholars of American constitutional law. As of May 5, Professor Paulsen is also the co-author, with his son, Luke Paulsen, of The Constitution: An Introduction. The book’s Web site is online here.

United States Supreme Court Associate Justice Samuel Alito read the book in galley and wrote a brief review of it for Engage: The Journal of the Federalist Society Practice Groups Volume 16, Issue 1. The Federalist Society has posted Justice Alito’s review online this morning. Through the kind permission of The Federalist Society we are republishing Justice Alito’s review below. Justice Alito writes:

The Constitution belongs to the American people. It is based on the proposition that all legitimate political power comes from “We the People,” and two centuries after its adoption, it is respected and cherished by ordinary Americans. When controversies arise about the exercise of power by the Congress, the President, or the courts, citizens turn to the Constitution for guidance.

Many Americans interested in understanding the Constitution naturally – and quite correctly – look first to the document itself, which is relatively brief and still quite readable. But where should interested citizens look if they want to know more?

A new book by Michael Stokes Paulsen, a distinguished constitutional scholar, and his son, Luke, a recent college graduate, fits the bill. It provides a solid, intelligent, reliable, and interesting look at the origins of the Constitution, its basic structure, and its interpretation over the course of our country’s history.

Professor Paulsen and his son began this collaboration when Luke was in high school and continued throughout his college years at Princeton. It is easy to imagine this process as a conversation between a father, who has been immersed in the study of the Constitution for his entire adult life, and a bright son, who brings a new perspective and challenges the father to explain and defend.

The book begins by retelling the extraordinary events that led to the drafting and ratification of the Constitution and the quick addition of the Bill of Rights. Then, in well under 100 pages, it elucidates the constitutional structure that the Constitution creates. The authors evidence a great respect for the work of the Founders, and they have harsh words for those who treat the Constitution like a Rohrshach blot. But they are also painfully honest about the flaws in the original design – and in particular, the Founders’ accommodation of slavery. The chapter devoted to this subject is one of the most interesting and will be instructive even for those who know a fair amount about the Constitution. (For example, how many lawyers know that, were it not for the infamous three-fifths provision, which counted a slave as three-fifths of a person for purposes of congressional apportionment, John Adams, not Thomas Jefferson, would have won the pivotal presidential election of 1800?)

After analyzing the constitutional text, the Paulsens provide a lively tour through 200 plus years of constitutional controversy and litigation. Famous and less well-known cases are recounted in accessible terms. Understanding some of the most important cases in our country’s history, including Marbury v. Madison and the Dred Scott case, requires at least some comprehension of what most non-lawyers are likely to regard as arcane and boring procedural questions. But the Paulsens explain these preliminary matters without seeming to break a sweat. The Paulsens also enliven the story of our country’s constitutional experience by providing brief biographies of individuals who made that history.

The Paulsens’ book fairly presents both sides on major interpretive issues, but they do not hide their own point of view. They favor a form of originalism and judicial restraint. They are decidedly Hamiltonian in their view of national and presidential power, but at the same time they support a robust conception of the individual rights set out in the Bill of Rights and post-Civil War Amendments. Substantive due process, which they trace back to Dred Scott, however, is another matter.

An appreciable percentage of those who read this impressive book are likely to disagree with the authors on at least some major points, and that is one of the book’s virtues. It invites readers to become personally engaged in the discussion of the Constitution that began in the fall of 1787 when the citizens of the states debated ratification, and this process continues today. The Paulsens’ book does not tell Americans what to think, but it provides invaluable help as they think for themselves.

Published with the kind permission of The Federalist Society.
Copyright © 2015 The Federalist Society. All Rights Reserved.

The Clinton Foundation — a “slush fund for the Clintons”

The Clinton Foundation’s finances are so messy that the nation’s most influential charity watchdog put it on its “watch list” of problematic nonprofits last month, the New York Post reports. Charity Navigator, which rates nonprofits, refused to rate the Clinton Foundation because its “atypical business model . . . doesn’t meet our criteria.” Instead, it placed the Foundation on its “watch list,” which warns potential donors about investing in problematic charities.

The Clinton Foundation joins Al Sharpton’s troubled National Action Network on Charity Navigator’s list. It seems appropriate that two great con artists, Bill Clinton and Al Sharpton, should be thus be joined.

Sharpton’s outfit reportedly made the list because it didn’t pay payroll taxes for several years. The Clinton Foundation’s problems run deeper. According to the Post, it took in more than $140 million in grants and pledges in 2013 but spent just $9 million on direct aid.

Much of the Foundation’s money goes to travel ($8.5 million in 2013); conferences, conventions and meetings ($9.2 million); and payroll and employee benefits ($30 million). Ten executives received salaries of more than $100,000 in 2013. Eric Braverman, a friend of Chelsea Clinton, was paid nearly $275,000 in salary, benefits, and a housing allowance for just five months’ work as CEO that year.

Bill Allison is a senior fellow at the Sunlight Foundation, a government watchdog group once run by prominent leftist Zephyr Teachout. In Allison’s view, “it seems like the Clinton Foundation operates as a slush fund for the Clintons.”

It’s important to note that the Clinton Foundation’s status as a problematic charity is distinct from the “Clinton cash” issue that Peter Schweizer and others have highlighted. “Clinton cash” focuses on the fundraising methods used by the Clintons. Specifically, there are substantial allegations that they raise money in part because nations and wealthy individuals hope to influence U.S. policy through their donations, and very possibly have succeeded in doing so.

The problem flagged by Charity Navigator and other watchdogs focuses on what the Clinton Foundation does with the money it raises (whether ethically or not). The Foundation’s profligacy and failure to spend a significant percentage of its funds on its alleged mission would be of concern even if there were no ethical problems associated with the Clintons’ fundraising.

The two sets of problems are related, however. Both stem from the same greed, sense of entitlement, and arrogance. In this respect, both are related to a host of Clinton scandals dating back to Whitewater.

Our Mean-Spirited President Cuts Loose

There has been quite a bit of news coverage of this year’s White House Correspondents’ Dinner. Don’t ask me why. The annual lovefest between Democratic politicians and Democratic journalists hasn’t generated any actual news in a long time. But this year’s event was perhaps notable because it exposed our president’s bitterness, as he approaches the end of his term. Humor is often revealing. Obama began with a joke that would be considered crude in a junior high school locker room:

After the midterm elections, my advisors asked me, “Mr. President, do you have a bucket list?” And I said, “Well, I have something that rhymes with bucket list.’” (Laughter and applause.)

Take executive action on immigration? Bucket. (Laughter.) New climate regulations? Bucket. It’s the right thing to do. (Laughter and applause.)

If I had said something like that when I was 12, my father would have whacked me. Now, we have a president so pitiful that he thinks such crudeness is appropriate humor.

What followed wasn’t humor, it was political aggression:

And that’s not all people say about me. A few weeks ago, Dick Cheney says he thinks I’m the worst President of his lifetime. Which is interesting, because I think Dick Cheney is the worst President of my lifetime. (Laughter and applause.) It’s quite a coincidence.

Our mean-spirited president next knocked the current GOP contenders–and, of course, the bete noir Koch brothers. Safe targets in a Democratic Party audience:

It’s amazing how time flies. Soon, the first presidential contest will take place. And I for one cannot wait to see who the Koch brothers pick.

It’s exciting. Marco Rubio, Rand Paul, Ted Cruz, Jeb Bush, Scott Walker. Who will finally get that red rose? (Laughter.) The winner gets a billion-dollar war chest. The runner up gets to be the bachelor on the next season of “The Bachelor.” (Laughter.) I mean, seriously, a billion dollars. From just two guys. Is it just me, or does that feel a little excessive? (Laughter.) I mean, it’s almost insulting to the candidates. The Koch brothers think they need to spend a billion dollars to get folks to like one of these people. (Laughter.) It’s got to hurt their feelings a little bit. (Laughter.)

That’s a very strange riff from the guy who destroyed public financing of presidential campaigns and ran the first $1 billion campaign. Does he really think people don’t know that? Well, maybe the people who attend the Correspondents’ Dinner don’t. And, of course, the Kochs don’t spend anywhere near a billion dollars, whereas Hillary Clinton has proudly declared that she will raise $2.5 billion in support of her campaign. It requires a high level of either dishonesty or ignorance for a Democrat to complain about campaign spending.

President Obama concluded with a shtick in which he incorporated a Comedy Central routine, with Luther the Anger Translator. Byron York explains the history of this hateful bit. Basically, Obama says something reasonably normal, while “Luther” explains what he really means. Obama’s adoption of the bit for the dinner implies approval of “Luther’s” counterpoints:

THE PRESIDENT: Because despite our differences, we count on the press to shed light on the most important issues of the day.

LUTHER: And we can count on Fox News to terrify old white people with some nonsense! (Laughter.) “Sharia law is coming to Cleveland. Run for the damn hills!” (Laughter.) Y’all, it’s ridiculous. (Laughter.)

President Obama, like most Democrats, hates Fox News because Fox breaks the leftist monopoly on broadcast and cable news. Leftists think that their policies would actually work, if only they could stifle Fox and thereby prevent reality from coming to light.

THE PRESIDENT: But we do need to stay focused on some big challenges, like climate change.

LUTHER: Hey, listen, ya’ll, if you haven’t noticed, California is bone dry. (Laughter.) It looks like a trailer for the new “Mad Max” movie up in there. (Laughter.) Ya’ll think that Bradley Cooper came here because he wants to talk to Chuck Todd? (Laughter.) He needed a glass of water. Come on! (Laughter and applause.)

This may or may not be funny, but scientifically it is stupid. California has been subject to prolonged droughts for thousands of years.

THE PRESIDENT: The science is clear. Nine of the ten hottest years ever came in the last decade.

LUTHER: Now, I’m not a scientist, but I do know how to count to 10. (Laughter.)

“Nine of the ten hottest years ever”? There is not a single scientist in the world who would support that claim. We are living in a relatively cool era, and something like 11,000 of the last 12,000 years have been warmer than the present. Never mind the previous millions of years! Obama knows little about climate science, or science in general. He is, frankly, uneducated.

THE PRESIDENT: Rising seas, more violent storms. 

LUTHER: We’ve got mosquitos. Sweaty people on the train, stinking it up. It’s just nasty. (Laughter.)

The ocean has been rising for around 12,000 years, since the end of the last Ice Age, and we are not now experiencing more violent storms. Actually, in recent years there has been less violent storm action than normal. When it comes to climate, Obama has no idea what he is talking about.

THE PRESIDENT: I mean, look at what’s happening right now. Every serious scientist says we need to act. The Pentagon says it’s a national security risk. Miami floods on a sunny day, and instead of doing anything about it, we’ve got elected officials throwing snowballs in the Senate!

LUTHER: Okay, Mr. President. Okay, I think they’ve got it, bro.

THE PRESIDENT: It is crazy! What about our kids? What kind of stupid, shortsighted, irresponsible bull— (Laughter and applause.) 

LUTHER: Wow! Hey! (Applause.)

More stupidity. Every serious scientist says that adopting Obama’s plan of a 28% reduction in CO2 emissions would have no perceptible effect on the Earth’s temperature, even if the alarmists’ models are correct (which they aren’t). See, e.g., Dr. Judith Curry’s Congressional testimony to the effect that best case, if the bogus models were correct, Obama’s proposal would “prevent three hundredths of a degree centigrade in warming by 2100.” Obama is simply ignorant of the relevant science. And “snowballs in the Senate”? What is that supposed to mean? Just another gratuitous partisan insult, added on top of scientific fantasy. That’s our president!

At the Correspondents’ Dinner, Obama played the supposedly comic role of the lame duck. The end of his tenure in office can’t come too soon.

The Baltimore protests — are they really about the police?

I’ve always had a soft spot for Baltimore. For one thing, its residents struck me as harder working, less surly, and, of course, less full of themselves than their counterparts in nearby Washington, D.C.

Unfortunately, the 2008 recession hit Baltimore very hard. That, at least, was my impression when, in 2011, I began going there regularly once again for work. The city looked badly run down and its residents seemed demoralized.

I was told that some major Baltimore law firms had pulled up stakes and moved to the suburbs. Even in the worst days of 1970s urban blight, I don’t recall law firms in hard hit cities giving up on downtown.

Baltimore is in the news now because of the death of Freddie Gray while in police custody and because of rioting that broke out yesterday during a protest over Gray’s death. The facts regarding Gray’s death are being investigated. However, we know that he died from a severe injury to his spine a week after police subdued him in an arrest. And the police have said that Gray should have received medical treatment at the scene of the arrest (reportedly, he was howling in pain at the time) and that Gray was not buckled into a seat, but should have been, when he was transported in a police van after the arrest.

We also know a few things about the Baltimore police department. We know that the commissioner, Anthony Batts, is African-American (so by the way is Baltimore’s mayor). And we know that less than half the force is White.

The fact that the commissioner is Black and that less than half the force is White doesn’t preclude the possibility that Gray’s death was the result of race-motivated conduct. But it’s extremely unlikely that systemic racism is a problem in the Baltimore police department. Neither the leadership nor the rank-and-file would tolerate it.

Turning to the protests, they have gotten out of hand. Yesterday, rioters damaged six police cars, shattered windows, and looted stores. Some fans who attended the Baltimore Orioles game were attacked before the game. During the latter stages of the game, the crowd was told to remain in the stadium because of the rioting.

The Post’s reporting suggests that, at root, the protests aren’t about the police department (which, as noted, is not a White institution and almost certainly not a racist one). One of the protest leaders said:

Officials are not interested in bettering our neighborhoods. People are tired of their quality of life, and they’re frustrated nobody helps them. They want to be heard, and they will do what it takes.

In other words, a population grown dependent on public officials is lashing out because said officials aren’t helping them attain the quality of life they desire.

I agree that the hard-working people of Baltimore have been let down by public officials. For one thing, liberal public policy has encouraged dependence on “officials.” For another, liberal housing policy helped produce the economic crisis that hit Baltimore so hard. In addition, liberal education policy has undermined educational opportunity. And now, liberal immigration policy seems determined to bring in foreign laborers to compete for jobs with hard-working, low-income Americans.

I find it depressing to see Baltimore in such a sorry state while Washington, D.C., fueled by the federal government, flourishes by comparison.

Baltimore is far from the only American city in a sorry state. Thus, it’s plausible to anticipate that we will see protests and riots throughout the U.S.

Given the enormous amount of police interaction with African-American lawbreakers, there will always be cases of problematic (or allegedly problematic) police behavior that can ignite protests. As time goes on, however, I wonder whether such cases will be required.

What Really Happened to Harry Reid? Part 5 [Updated]

I have written about the severe injuries that Harry Reid mysteriously sustained on New Year’s Eve or New Years Day on five occasions: here, here, here here and here. In each of those posts, I expressed skepticism that Reid’s injuries, including the loss of sight in his right eye, broken facial bones, severe bruising down his right jaw, a concussion and multiple broken ribs, were the result of a breaking elastic exercise band–or, as Reid later changed his story to claim, a slipping exercise band. My constant theme has been to call for an investigation of what appear to be obviously suspicious circumstances, along with contradictory accounts coming from Harry Reid and his office.

In one of those five posts, this one, I turned the floor over to a man called Easton Elliott. (As I noted in the post, he said that “Elliott” is the name he uses in connection with his avocation as an addiction recovery counselor. He told me that his real name is Lawrence Pfeifer.) His story, if true, strongly suggested that Reid sustained his injuries in a New Year’s Eve altercation with his brother Larry.

I, of course, couldn’t vouch for the veracity of Elliott’s story, and I didn’t. In the linked post I wrote: “That is Easton Elliott’s account. I can’t vouch for it, of course….” Later, I said: “Is Easton Elliott telling the truth? I have absolutely no idea.” But I did check him out to the extent reasonably possible. Among other things, that included spending a couple of hours with him in multiple telephone conversations. He told his story consistently and with seeming sincerity, and swore repeatedly that it was true.

Now, however, he has told the Las Vegas Sun that it was all a lie. Elliott/Pfeifer says he made up his story and went to great lengths to persuade me and others to publish his lies out of pure civic-mindedness: he wanted to “show the lack of credibility and journalistic standards among partisan media figures.” [Footnote: Not sure why he invested so much effort. He could have “show[n] the lack of credibility and journalistic standards among partisan media figures” by noting that virtually every “mainstream” news outlet repeated Harry Reid’s fabricated charge that Mitt Romney didn’t pay taxes.]

“It was just so outrageous,” he said. “The fact that someone can say something completely false that can destroy somebody’s life, it’s just wrong. Where’s the moral compass?”

Odd words, coming from someone who now says that he made his story up out of whole cloth and went to great lengths to make it public. In any event, it is now clear that Pfeifer is a liar. This is how he explained my (and apparently others’) lack of “standards” to the Sun:

Pfeifer said the media figures who published and broadcast the rumor did so without corroboration and without knowing his true identity. He revealed to them that he was using a pseudonym, he said, yet none demanded proof of his true identity.

That claim is a lie. In fact, I told Elliott that I wouldn’t give him a forum to tell his story unless he would stand behind it, using his real name. He relented and told me that his real name is Lawrence Pfeifer. I Googled Lawrence Pfeifer, and found this on Corporation Wiki:

Screen Shot 2015-04-26 at 6.29.15 PM

Until recent weeks or days, if you Googled Easton Elliott, you got a LinkedIn page that showed him as an officer of Rainmaker Consultants, a business that had the same Las Vegas address and the same business partner (Darryl Dorfman) that one sees for Lawrence Pfeiffer’s company. So at that level, at least, Pfeifer’s story checked out. All of this was known to me before I agreed to give Pfeifer a forum to tell his story. His claim that I didn’t insist on knowing his real name is a lie.

Very recently, Pfeifer has changed his Easton Elliott LinkedIn page, so that it now reads as follows:

Screen Shot 2015-04-26 at 6.36.30 PM

It now appears that Pfeifer lied to me in other ways, as well. He sent me a total of 45 emails, as best I can count them, including one containing best wishes for my family for the Easter season. In one email he said that his story had been corroborated by a reporter:

Screen Shot 2015-04-26 at 7.08.49 PM

In another series of emails he said that a friend named Tim had been present at the AA meeting that supposedly was attended by Larry Reid, that Tim could corroborate Pfeiffer’s story, and that he was going to call me. Later Pfeifer told me that Tim had tried to call but had missed me. These were all lies, apparently:

TimScreen Shot 2015-04-26 at 7.12.07 PM

I have no idea what game Pfeifer is playing. Is he some sort of provocateur, as he now implies? Or, more likely, is he an attention-seeking nut? I don’t much care: one way or another, he is a liar, and nothing he says can be taken seriously.

Which leaves us with what I have said in my five posts on Harry Reid’s bizarre New Year’s incident: 1) It is highly unlikely that a breaking or slipping elastic exercise band could cause the severe injuries that Reid sustained. 2) Anyone looking at Reid in the aftermath of the incident would say that he appeared to have been beaten up, although it is also possible that he could have been injured in, say, an automobile accident. 3) Reid has changed his story on what happened, apparently to explain why he hasn’t issued a product liability warning in connection with the (probably fictitious) exercise band. 4) We don’t know basic facts about the incident, such as the time of day when it occurred. If it was in the middle of the night, it is highly unlikely that Reid was exercising. 5) As far as I know, no journalist has conducted even a primitive investigation into the incident. Our compliant media have simply accepted an account, propagated by Reid and his minions, that is implausible at best.

Someday the truth about Reid’s injuries, which may or may not be related to his surprise decision to retire from the Senate, may come out. But that will only happen if one or more journalists gets serious about investigating the incident, rather than allowing Reid to sweep it under the rug.

UPDATE: Speaking of journalistic standards: the Las Vegas Sun article was written by Ric Anderson, the Sun’s Managing Editor. Even though the principal point of his article was to criticize me, Anderson did not contact me prior to publishing the article to ask whether the story Pfeifer told him was correct. This omission is particularly remarkable, given that Pfeifer described himself to Anderson as a liar. Yesterday I sent Anderson a link to this post, with a message along the lines of, “You should have contacted me before publishing the Lawrence Pfeifer article. Pfeifer lied to you, too.”

I, on the other hand, did give Harry Reid’s office an opportunity to comment on Pfeifer/Elliott’s account before posting it. Reid’s office responded irrelevantly, neither confirming nor denying Pfeifer’s story.

For the Clinton defense

On ABC’s This Week today, George Stephanopolous grilled Peter Schweizer on the stories generated by his forthcoming book, Clinton Cash (transcript here, video below). Toward the end of the interview, Stephanopoulous suggested that Schweizer’s work in the Bush administration somehow discredits his research.

Is this some kind of a joke? Schweizer’s research stands or falls on facts, inferences, evidence of Clinton lies and perhaps further investigation, as Peter himself suggests. But has Stephanopoulos had his cranial hard drive wiped? The absurdity of his pose escapes him. This is your brain on Clinton.

I know it’s ancient history, but I vaguely recall that Stephanoploulos himself worked directly for a party in interest to this rather consequential controversy. Does that not have any bearing on his standing and performance here? What a complete and utter farce. Stephanopoulos makes Lanny Davis look like an honest broker.


Via Ramesh Ponnuru/NR.

This is your brain on Clinton

Madam Hillary wiped her homebrew email server’s hard drive to dispose of unwanted messages deriving from her tenure as Secretary of State. It is a perfect metaphor for the return of the Clinton era. Everybody must get his hard drive wiped.

We must have our religious hard drives wiped to clear space for the sacrament of abortion according to the apostle Hillary.

We must have our ethical hard drives wiped to indulge the Clintons’ epic corruption.

We must have our humor hard drives wiped to keep from laughing at the higher motives in which the Clinton corruption comes packaged.

We must have our cranial hard drives wiped so that we can hear out Madam Hillary as she holds herself out as a class warrior and, oh, yes, as she moralizes on sexual assault at the Women in the World Summit in New York on Thursday:

“When women of any age, whether on college campuses or military bases or even in their homes, face sexual assault, then no woman is secure,” she declared.

“Every woman deserves to have the safety and security they [sic] need. That means we have to guarantee that our institutions respond to the continuing scourge of sexual assault.”

Paula Jones could not be reached for comment.