The Constitution and Berkeley

Much has been written and said this past week on the actions of the Berkeley, California City Council essentially telling the Marines to get out of Dodge by sundown. Here's an article if you need a refresher:

http://www.cnn.com/2008/US/02/07/berkeley.protests/index.html

I have three points related to the Constitution I'd like to make about this matter:

1. I sometimes think that the most profound comment uttered by any of the delegates to the Constitutional Convention of 1787 was one made by Pennsylvania's James Wilson on June 16th. As described in James Madison's notes, Wilson took the floor to remark that: "With regard to the sentiments of the people, he conceived it difficult to know precisely what they are. Those of the particular circle in which one moved were commonly mistaken for the general voice." (Emphasis mine).

What does this have to do with the goings on in Berkeley? Take a look at a recent column by Michelle Malkin:

http://www.townhall.com/columnists/MichelleMalkin/2008/02/06/berkeley_vs_america,_again

Malkin notes that the action in Berkeley aroused the ire of Move America Forward, the American Legion, South Carolina Senator DeMint, and others, then she writes:

"After feeling the heat, not just from veterans, military families and troop supporters outside of Berkeley but also from their own embarrassed citizens, the council is waving a partial white flag: Two council members will move to rescind the obnoxious letter and Code Pink privileges next week. It seems a little light bulb went off in Councilwoman Betty Olds' head: 'I think we shouldn't be seen across the country as hating the Marines.'"

When a citizen in Berkeley speaks to a neighbor at the local Starbucks, who is he probably conversing with? Another person with almost the exact viewpoint on many issues, that's who. Many--perhaps even most--of the people who live in Berkeley have similar opinions to their town council, but these aren't necessarily shared by the people in North Dakota or South Carolina. It's like after the 2004 Presidential election I heard some otherwise intelligent people making comments such as "How could John Kerry have lost? Every sign I saw on lawns in Midtown Atlanta was for Kerry; I didn't see a single one for Bush." Of course, if only homosexuals from Atlanta, actors from Los Angeles, and Unitarians from Boston could vote, Kerry would have won with about 95% of the vote. But Kerry and Bush were running to be President of all Americans, not President of select demographic groups.

The people in Berkeley caught off guard by how much negative commentary has been directed towards their town simply forgot what I like to call James Wilson's dictum. They mistook the sentiments of the particular circle in which they moved for the general voice.

2. One of the wonderful things about reading history books is that quite often something will occur in contemporary America that relates to whatever volume you're perusing at the moment. I happen to be reading Geoffrey R. Stone's Perilous Times: Free Speech in Wartime (2004); right now I'm on the chapter about the appalling suspensions of civil liberties that took place during World War I. It is truly jolting to learn, for instance, that Rose Pastor Stokes, editor of the Jewish Daily News, was convicted and sentenced to ten years in prison for saying "I am for the people and the government is for the profiteers" at a meeting of the Women's Dining Club of Kansas City. (See pp. 171-72; fortunately, her conviction was overturned on appeal, n. 143 p. 593.)

I don't approve of many of Code Pink's present day activities, but thank goodness we now live in an America where the First Amendment isn't just marks on paper and mere expression of disapproval of the war isn't grounds for arrest. Of course, protestors have an obligation to keep it civil; I think one should at least face misdemeanor charges for thrusting blood stained hands in the Secretary of State's face:

http://www.nypost.com/seven/10242007/news/nationalnews/protestor_attacks_condoleezza_.htm

And in the specific case of Berkeley and the Marines, I don't think putting imprints of bloody hands on Saran wrap and taping it to the recrutment center's window is acceptable conduct:

http://www.zombietime.com/berkeley_marine_corps_2-1-2008/

So to sum up: I say no to women in 1918 being sentenced to a decade in prison for making antiwar statements, and I also say no to women in 2008 thrusting bloody hands in faces or pasting them to storefront windows. Society has a hard time finding an acceptable middle ground sometimes, doesn't it?

3. I haven't seen anything written on this, but it's pretty obvious to me that what the Berkeley City Council did was unconstitutional. Article 1 § 8 of the Constitution grants Congress the power to raise military forces and to use means necessary and proper to staff the troops. It's rather difficult to see how this could be done without having recruiting centers. Never mind whether the Marines can recruit a voluntary force, the Supreme Court in 1918 unanimously upheld federal authority to hold a draft, see Selective Draft Cases, 245 U.S. 366. What the heck, the following year the Court without dissent even ruled that the feds could shut down brothels near military bases as a necessary and proper exercise of the military powers, see McKinley v. U.S. 249 U.S. 397 (1919). (So that's why some young men who could have used family connections to remain stateside during the Vietnam War chose to go to IndoChina instead...)

And remember: a power specifically granted to Congress, the President, or the federal courts may NOT be interfered with by a state or local government. We've got almost two hundred years of precedent on this, going back to Justice Marshall's famous opinion in McCulloch v. Maryland, denying Maryland the power to tax the Second Bank of the United States. Argued Marshall:

"If we apply the principle for which the State of Maryland contends, to the Constitution generally, we shall find it capable of changing totally the character of that instrument. We shall find it capable of arresting all the measures of the Government, and of prostrating it at the foot of the States. The American people have declared their Constitution and the laws made in pursuance thereof to be supreme, but this principle would transfer the supremacy, in fact, to the States." 17 U.S. (4 Wheat.) 316, 432 (1819).

Clearly what the Berkeley City Council intended to do was just that, prostrate at their feet the federal military power. Thanks to numerous voices raised in protest, it seems likely they won't get away with it.

I love it when the Constitution wins.