Individual Liberty — Individual Responsibility 

First principles – Part 2

Government of the States, for the States, and by the People and States

Yes, you read that heading correctly. That’s what I believe that the Constitution originally established, and for the purposes of this part of the discussion, I’m referring to the unamended Constitution. I plan to talk about the amendments to the Constitution as well, but I think that it’s important to realize that the Constitution was first ratified in its unamended form. I suppose this idea might be a bit controversial, but by and large I believe I’ve laid out my argument for it in a clear fashion, and that the context of the Constitution amongst our other founding documents supports this idea. I also think that this interpretation of the Constitution is important if we really want to understand the great gift that our founders gave to us and the possibility of fixing what many perceive to be great problems with our government the way it’s operating now without resorting to violent means, or to a radical rewriting of its underpinnings.

The first article of the Constitution establishes the federal legislature, the Congress of the United States. This Congress is divided into two separate deliberative bodies, a Senate and a House of Representatives. The House of Representatives is dealt with in detail first, followed by the Senate including powers specific to the Senate, then by several rules by which the two houses of Congress will operate, a power specific to the House of Representatives, a description of the Presidential veto power and the limitations on it, followed by the enumerated powers of Congress, and finally by a list of restrictions upon what Congress may do, and a list of restrictions upon what the states may do.

Why two separate deliberative bodies? I believe that by examining the differences between the House of Representatives and the Senate we can answer that question. At the time the Constitution was ratified, there were several significant differences between the two Houses. The first of these differences has to do with their composition, and how their members are selected. The House of Representatives is by far the larger of the two Houses. Each state’s representation in the House of Representatives is proportional to the population of that state. Each member of the House of Representatives is elected by the people of the state that member represents. The Senate on the other hand is smaller. Each state is entitled to exactly the same number of Senators as any other state, two. And finally, Senators are not selected by the people of the state they represent – remember, I’m talking about the unamended form of the Constitution – instead they are selected by the legislature of that state.

Under this scheme, it should be clear that the House of Representatives was meant to represent the people of the states, while the Senate was meant to represent the governments of the states. The very short term (two years) of members of the House of Representatives as opposed to the relative long term (six years) of Senators also reflects this difference in purpose. A Representative, elected by the people he represents, with a short term of office would tend to be more responsive to his constituents – serving at their pleasure as he does. A Senator on the other hand, chosen by the deliberative body of a state government and required by the qualifications of office to be older and presumably more mature, serves a longer term allowing for the benefit of experience in office.

There might be another reason why we have two Houses in our national legislature. The original thirteen states that made up the union were a diverse lot, some with larger populations some with much smaller populations. Some of these states had a powerful industrial base, while others were largely agrarian. The interests and needs of such a diverse collection of states are bound to be significantly different. A legislature dominated by representatives from populous states might be prone to favor the interests of those states over the interests of less populous states. A legislature where each state has equal representation might end up favoring the interests of more sparsely populated states, at the expense of the needs of the majority of the people.

The separation of powers

A few more differences between the House of Representatives, the people’s house, and the Senate, the states’ house, remain. These differences also reflect upon the character and nature of the Houses. The people’s house has the sole power of impeachment, as well as the responsibility for originating all bills for raising revenue (this last says something about the founders’ notion of where the monies that the federal government spends really originate).  The states’ house on the other hand has the power to try impeachments, and to advise and consent on the appointment of executive officers, the ratification of treaties, and advise and consent to the appointment of judges to sit upon the supreme court, as well as upon all other governmental appointments – unless in the case of those appointments Congress vests that power directly in the President, the courts, or the heads of the departments the appointees will serve under. This last power isn’t covered in article 1 of the Constitution though, it is granted to the states’ house in article 2.

The second article of the Constitution establishes and defines the executive office, the Presidency. While the Congress establishes the laws of the United States, the President carries them out. Power is not granted to Congress to execute the laws it establishes, although power is granted to Congress to “make all Laws which shall be necessary and proper for carrying into Execution” those laws. Execution of the laws is a power reserved to the office of the Presidency.

Coupled with this power is the power to pardon people who have violated those laws, or to grant reprieves from the punishment imposed for those violations. The power to grant a reprieve or a pardon for offenses against the United States is for the most part unlimited. Congress has no authority over how the President may use this power. None. The Constitution does not grant the Congress any oversight of this power whatsoever. If the President chooses to exercise this power in a way that Congress does not approve – they have no recourse. They can rant and rave about it all they want – but they cannot undo the pardon, nor can they punish the President for it.

Even so, this isn’t an absolute power. While the president may pardon someone for violations of law  or grant them a reprieve from a criminal sentence he cannot grant a reprieve or a pardon in the case of an impeachment. If Congress impeaches a judge and removes him from office, the President cannot grant a reprieve. If the vice President is found to have violated the law and is impeached and removed from office for it the President can pardon the violation of law, but he cannot affect the results of the impeachment.

Impeachment

The House of Representatives has “the sole Power of Impeachment”. This power may be exercised over the President and Vice President, over Judges, and over all civil officers of the United States. Essentially impeachment is a political process designed to impede the actions of an elected or appointed official. It is not a criminal proceeding.  An impeachment is merely an accusation – politically charged and motivated – but it’s only an accusation nonetheless. Simply being impeached is not an impediment to holding or continuing to hold office.

Two Presidents of the United States have been impeached, Andrew Johnson and William Jefferson Clinton. Articles of Impeachment were drawn up against Richard M. Nixon, but he resigned before the House of Representatives was able to act and vote on impeachment. Despite being impeached no U.S. President has been removed from office for impeachment. This is because the impeachment itself is only an accusation – there still has to be a trial for the impeachment – and no U.S. President has been convicted on impeachment.

Article 2, section 4 of the Constitution provides that…

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

This gives the grounds for impeachment. Lets examine them shall we? First, treason. Treason is explicitly defined in the Constitution in Article 3, section 3.

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.

So if the President, Vice President or any civil officer of the United States levies war against them (meaning the United States – note the plural even here – it gets back to the idea of a union of nations, not a single nation) he can be impeached. If the President, Vice President or any civil officer of the United States adheres to the enemies of the United States (say for example through membership in Al Qaeda) he can be impeached. Even supporting the enemies of the United States (say by providing financial support to Al Qaeda) is sufficient grounds for a charge of treason.

Note: I used Al Qaeda as an example of “enemies of the United States” not because any Presidential administration past or present has declared them to be our enemy – but rather because Al Qaeda has declared themselves to be our enemy.  Osama bin Laden declared that Al Qaeda was “at war” with the United States, and he did so long before President Bush declared his “war on terror”. In fact, he did so during President Clinton’s term of office. It should therefore be a fairly safe claim to say that the members of Al Qaeda are enemies of the United States without regard for the political party preference of either the person making the claim or the person to whom the claim is made.

In any case, the reason why treason should be listed as the first of the causes for impeachment should be obvious. If any official of the United States commits treason against them, then they obviously do not belong in a position of power serving them. If this isn’t intuitively obvious even to the most casual observer of government then there’s really no point in even trying to educate ourselves – hope is lost and slavery to despotism is inevitable.

The second reason for impeachment listed in the Constitution is bribery. Again, it should be obvious why this is the case. Public officials are expected to serve the public, yet their very office holds the potential for a great deal of power. Again, whether you are on the political “left” or the political “right” it shouldn’t matter, it’s a generally accepted idea that power should not simply be sold to the “highest bidder”. Arguments are made on both sides of the political spectrum that bribery is a sufficient reason to “get the money out of politics”. I want to discuss that – but I’ll save it for later. We will get to it though, because it does cut to first principles.

The third reason for impeachment given is “other high Crimes and Misdemeanors”. This runs a very large gamut indeed, because every criminal act is either a misdemeanor or a “high crime”. Getting a parking ticket isn’t a criminal act – it’s a civil infraction. Failure to pay parking tickets on the other hand may well be a criminal act – depending on the jurisdiction where it’s considered, and as such would be at least a misdemeanor and therefore reason enough to impeach a public official. I can’t imagine an actual impeachment proceeding from such a minor act, but it is there. Political appointees to public office have had even bigger impediments to their eligibility for office that have not been impeached, and in fact were confirmed into office in spite of very real “high crimes and misdemeanors” that they committed – and admitted to – that turn out to be directly related to the office they were confirmed into.

Simply “lying to the American people” is not a high crime or misdemeanor either, although perjury under oath is. Calls to have a President removed because he “lied to the American people” don’t have merit. Calls to have a President removed because he lied to a grand jury under oath on the other hand do have merit. This is why President Clinton was impeached – the charges were perjury and obstruction of justice – not “merely lying about sex” as some have claimed. President Clinton was found not guilty of perjury and not guilty of obstruction of justice as well by the Senate, and so he was not removed from office – but it is important to remember that impeachment is not a criminal proceeding – it’s purely a political proceeding.

The Senate voted 55-45 to find him not guilty of perjury – despite the clear fact that if the case were brought in a criminal court he would have been found guilty. The fact of the matter is that President Clinton did commit perjury although he was never charged with it in a criminal court. Federal judge Susan Webber Write presided over the Paula Jones lawsuit against President Clinton and she found him to be in contempt of court. She ruled that he willfully provided false testimony under oath. He later admitted to the same. That is the very definition of perjury – one of those high crimes and misdemeanors.

Now then, I’m not bringing up President Clinton’s impeachment to re-open old wounds. Instead my point here is that impeachment is a purely political process with purely political punishments. The failure of the Senate to convict a person on impeachment has nothing to do with the actual guilt or innocence of the person impeached. It’s a political decision. If a person is convicted by the Senate on impeachment, the punishment that can be imposed is not a criminal punishment, it’s a political punishment.

The specific penalty that is required to be imposed on impeachment and conviction is removal from office. The punishment can go further, but only to disqualification from future office. That’s all. Of course, a successful impeachment might imply criminal liability and the Constitution allows for the criminal trial of an impeached person, but criminal penalties are not authorized in cases of impeachment – only political ones.

The fact that impeachment is a political process involving purely political punishments goes a long way to explaining the limitation upon the Presidential pardon power. The President cannot pardon an impeachment – it’s not a criminal conviction in the first place even though criminal acts are implied in the reasons for impeachment.

It should be of interest too that Congress is exempt from impeachment - “no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.” Since the Constitution explicitly says the “President, Vice President and all civil Officers of the United States” may be impeached, and further says that “Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.” It is far easier to remove a sitting Representative or Senator than the President – after all, removing the President requires a two-thirds vote of the Senate and a majority of the House of Representatives. Both Houses of Congress must get involved in that. On the other hand, only one house need be involved in the removal of a member of Congress. To date fifteen Senators and three Representatives have been expelled from Congress.

The executive power

Article 2 section 1 of the Constitution begins “The executive Power shall be vested in a President of the United States of America.” It goes on to describe the manner of the choosing of the President and the Vice President, the qualifications for office of the President, what to do in case of the Removal, Death, Resignation or incapacity of the President and Vice President. It further tells us that the President should be compensated for his service, and that he must swear an oath to faithfully execute the office and to “preserve, protect, and defend” the Constitution of the United States.

Article 2 section 2 defines the powers of the President – in a brief three paragraphs. Much more verbiage was dedicated to the manner of election of the President and his qualifications than to his powers. Even here, the powers granted to the President are strictly curtailed.

The President is the commander in chief of our military forces – and the militia of the States when they are called to national service. This power is tempered by Congress’ exclusive power to “make Rules for the Government and Regulation of the land and naval Forces”. Simply being commander in chief does not grant the President the power or authority to call up the Militia – that power is again reserved to Congress. Nor does being commander in chief grant the President the power to declare war. That again is a power reserved to Congress.

We’ve already discussed the limitation on his ability to pardon offenses against the United States, but the majority of his powers are granted “by and with the Advice and Consent of the Senate”.  The first of these is the power to conclude peace – by making treaties – which requires the concurrence of two-thirds of the Senate. His other powers granted “by and with the Advice and Consent of the Senate” include the power to appoint people to offices under the United States. This doesn’t require a two-thirds majority of the Senate to carry out – merely a majority – although article 1 section 5 of the Constitution declares that the Senate (actually “each house”) may determine the rules of its own proceedings – meaning if a “cloture” vote is required to move the vote to the floor that’s entirely the prerogative of the Senate – notwithstanding arguments by conservatives to the contrary.

Further, Congress can vest the power to appoint inferior officers “as they think proper” in the President alone, the courts, or the heads of departments. This is a further limitation on the Presidential power of appointment, since Congress can choose to vest this power in a completely different branch of the government than the executive, or even in the bureaucracy itself.

Article 2 section 3 defines the duties of the President. Here we are told what he must do – He must report to Congress on the “State of the Union”. Here too we are told of his power over Congress. He can recommend legislation – not that Congress is required to consider his recommendations – but he is given the power to make them. Clearly the President doesn’t have nearly the power that is so often attributed to him – he is subordinate to the Congress – in just about every meaningful way.

  He can convene both Houses of Congress, or just one of them. He can cause them to adjourn until a time of his choosing – provided that they are in disagreement about when to adjourn and for how long. He is also given the power to receive Ambassadors, he is enjoined to see to it that the laws of the United States are faithfully executed

Finally section 4 of Article 2 defines how he may be removed from Office.  We’ve already covered that in detail, and I don’t think we need to rehash it yet again here.

It should be obvious that if Congress is dissatisfied with the President, they have a lot of power to obstruct him in the carrying out of the executive power. They can block his appointments of civil officers, of judges, and of ambassadors. They can deny their consent on treaties. They can override his veto of bills if they choose to and have the political will, and they can ignore his policy recommendations entirely. They can even, for purely political reasons have him removed from office (yes, the Constitution does provide specific reasons why he might be removed, but there is no Constitutionally defined evidentiary standard in an impeachment).

Of course, a recalcitrant Congress cannot completely obstruct the Presidential power of appointment. If they neglect to fill up the vacancies in offices that the President has the power “by and with the Advice and Consent of the Senate” to fill, he can simply make appointments that the Senate cannot reject while the Senate is in recess. These appointments are for a limited time of course – they expire at the end of the next session of the Senate, but the power to do this does belong to the President. Regardless of what one political party or another might say about it – and regardless of how the Senators themselves may feel about it, a President that uses this “recess appointment” power to fill vacancies in offices that the Senate has refused to provide “Advice and Consent” for is not “abusing his power”, but instead is fulfilling his duties. If the Senate wants to reject a nominee for any office all they have to do is vote to do so. By failing to vote they open the door for the President to choose to do as he pleases.

More on the Presidency when I continue in Part 3. If you want to review Part 1, just click on the link.

“Unfixable” Flash flaw puts you at risk

“Don’t trust e-mail attachments.” “Don’t click on links you find in unsolicited e-mail.” These are two warnings I’ve given in recent posts, and for good reason. There are people in the world with a malicious bent that are intent upon gaining access to your personal information, or even to your computer, and they use e-mail as a way to do it.

If you’re a web site programmer, I’ve warned you to close security loopholes in your code, and to be aware of malicious attacks such as SQL injection attacks. There are other types of attacks to be aware of such as cross-site scripting and denial of service attacks. But now, there’s a new one.

Well maybe it’s not really all that new – apparently the flaw that can be exploited has been around for a while. But this article warns of a flaw in Adobe’s Flash that can allow attackers to compromise “nearly every web site that allows users to upload content, including Google’s Gmail, then launch silent attacks on visitors to those sites.” The article emphasizes Flash objects, but…

Brad Arkin, Adobe's director for product security and privacy, agreed that the problem can't be solved with a patch to Flash. “We see this as a generic problem that affects any site that allows active scripting, not just Flash, but things like JavaScript and Silverlight as well. Even if Flash figured out some magical safeguard, this would be true for all active content sites that allow users to upload files.”

To emphasize, it’s not just Flash it’s active content. That includes such basic things as JavaScript, the little scripting engine that so many sites use to make things convenient for you. Does your site include a “blogroll” widget? What do you do if the blogroll provider (typically blogrolling.com) is vulnerable? What do your user’s do?

Although Foreground has not detected any in-the-wild attacks using the technique, Murray said that there's evidence hackers are moving toward such tactics. “We’re starting to see Flash used in these ways,” he said, and cited a recent worm that leveraged a similar vulnerability in Adobe's software, which is pervasive on the Web and on users' machines. “The worst-case scenario is that someone would figure this out, and launch silent attacks against the entire Internet.”

…

“Almost everyone using the Internet is vulnerable to a Web site that allows content to be updated inappropriately,” said Murray. "That's not hyperbole, it's just fact. This has the potential to affect any social media site, any career site, any dating site, many retail sites and many cloud applications. That's why this attack is so serious. End users would never know they got exploited.”

If you’re paranoid or even just extremely cautious as an end user visiting the web you can disable JavaScript, Flash, and Silverlight in your browser. If you disable Flash, your web experience will be faster. Many sites use banner ads to raise money. Many banner ads use Flash objects for animation and other eye-catching gimmicks. And many Flash ads are slow. Townhall.com comes to mind. They use Flash objects for advertising heavily. I have had times when I visited their site when my browser would almost lock up – or it would be downloading an ad and hang – leaving me unable to access the content on the rest of the site.

Unfortunately, many sites rely on these technologies to even function. A lot of social media sites seem to depend on JavaScript. Any site that uses AJAX technology for it’s primary function would be broken when you visited it if you disable JavaScript. YouTube won’t work without Flash – in fact the whole service is built around it (YouTube does happen to be safe from this particular vulnerability by the way, as mentioned in the article). If Flash and Silverlight weren’t so darned useful for other things I’d have them blocked in my browsers now.

Think about what that means. The script-kiddies and the black hats are going to see their window of opportunity open even wider when they think about ways to exploit this “unpatchable” flaw.

But if you’re a web site designer and programmer there is STILL something you can do to protect your visitors…

…Adobe has tried to get the word out to Web application designers and site administrators about the danger of allowing users to upload content. “Sites should not allow user uploads to a trusted domain,” Arkin argued. “The real issue here is that developers should be cautious about using techniques that can be misused maliciously. In general, this is a general challenge in managing active content.”

There’s a bit more to protecting your site than that. Even Adobe hasn’t got it right on some of their own properties. If you do allow user content to be uploaded, don’t allow it to be downloaded without some processing first. For example, if you allow image files to be uploaded – process them first. Re-size them, water-mark them, do something to ensure that the original file can’t be downloaded. Your processed file will likely be safer for your end users. Don’t allow users to upload active content. These are just a few of the things you need to do.

I don’t allow users to upload any content to my site. I do allow users to put HTML into the comments on my postings, but I block the use of script. The JavaScript I use on my site is small and simple – hooking up the menus at the top of the page for browsers that don’t handle CSS properly. If you use a more modern browser, the JavaScript I wrote for them is completely unnecessary.

But I do use third party scripting. For some things, you just can’t get around it. The “Blogs Against Nancy Pelosi” blogroll is provided by blogrolling.com. Last I checked, they don’t allow the uploading of user content, so that should be safe. The same is true of Sitemeter and Statcounter. The other web tracking software I use is provided by my ISP, and should be safe for the same reasons – content is uploaded to a different domain.

Be aware that this flaw exists – and that someone is going to exploit it.