2007/04/02

Presidential Competency Test

Glenn Greenwald's Sunday column at Salon, brought up an interesting deficiency in at least two of the GOP presidential hopefuls. Neither Mitt Romney nor Rudolf Giuliani would unequivocally state that they would refrain from arresting and detaining American citizens without review. In other words, these men consider a tyrannical (and unconstitutional) power as something worth considering. Mr. Greenwald goes on to speculate that, based on their voting records, the most prominent Democratic candidates wouldn't consider such a power.

But I think that in modern America, where we've already experienced a President who considers himself free of constitutional limitations--that the executive is a superior branch of government allowing him to effectively "rule-by-decree"--we shouldn't assume anything about what candidates Democrat or Republican will do once they're in office. In fact, I think that a common understanding of the Constitution that should be imposed as a litmus test on our candidates. And any candidate that is unwilling to promise to govern under constitutional restraints should be treated as a political pariah undeserving of anyone's attention, money, or vote.

And just what would such a litmus test include? I don't know, but I'd be willing to contribute the following ideas:

Due Process - The 5th Amendment and the Section 1 of the 14th Amendment are explicit in extending due process of law to all "persons" within the jurisdiction of the United States or the separate states--citizens, resident aliens, visitors...even illegal aliens. Any candidate that proposes to ignore due process (aka Giuliani) should be treated as a potential tyrant.

Separation of Powers - The executive branch has no authority to ignore the laws Congress passes, and so the notion of the 'statement at signing' has to go. There are perfectly reasonable remedies for when Congress' understanding and the President's understanding of legislation differ. The president can veto a bill. Congress can use the courts when the executive's enforcement of law does not meet with Congress' intent. The signing statement is a unconstitutional circumvention of the separation of powers, and any candidate who does not promise to eschew their use should told to find another career.

I'm sure there are literally dozens of other examples, but I'll stop here and wait for your ideas.

32 Comments:

I agree with you. Under the right circumstances, anyone who thinks in terms of political value would do it. I think it is more along the lines of how President Bush sees a perfect America, but I have little faith that Senator Clinton would refrain from doing so if support was there for it
The problem with your exercise is that I'm sure Giuliani has a glib response to your accusation, just as Bush, McCain, Clinton, et al. "You think that's what I meant when I aid that? I fully believe that all people are entitle to the full protection afforded them under statute and the Constitution (silent subjunctive clause - they are entitled to what I think they are entitled to until the Supreme Court tells me different - and if you think it is going to tell me different, you haven't been paying attention to who has joined it lately.)

Shorter answer they'll never respond to your test.

Though, to my mind you are absolutely right about the Fourth Amendment's protections of "persons" you are naive if you believe government is going to apply the amendment as it was written. Think Guantanamo recently and the Mariel boat people back in the Eighties.

Finally, "signing statements" are the executive parallel of legislative history. Bush hasn't been tested yet on their efficacy in the Supreme Court. I think he'll lose the issue if it is considered.

Other than those small points, I'd add, "promise to tell us the truth" to the litmus test. Couldn't hurt.
Dave, you're probably right, but it seems to me that the onus is on us to demand the an unambiguous statement on the issue and then evaluate the candidate's answer. In other words, if a candidate is not willing to state clearly (as an example) "I agree that there are no circumstances under which a person may be deprived their due process rights, and I will conduct my administration accordingly," you pretty much know where they stand.

They may violate it later...probably will, but the test is for our benefit, not their's. Like I said, a candidate's refusal to articulate a shared understanding of the Constitution's meaning and intent is grounds all by itself for you to refuse to vote for someone.
Too many candidates (of both parties) think the solution to all our problems is for they themselves to be in the White House. They think there's nothing wrong with our lopsided balance of power or the eroding Constitution; the only problem is, the wrong person is in the White House.

Chris Dodd and Hillary Clinton were both asked if they'd be willing to have the president's war-making powers reduced if they got elected. They both just skirted around the question and babbled something about "I won't declare war on a country that hasn't provoked us" or something like that. So far I don't see any candidate out there who will bring any real change.
I think part of the problem too is that we are witnessing a death to diplomacy and basic critical thinking skills. The Constitution actually gives great advantage politically to us as a country because there is great weight to the proverbial "moral high ground".

We no longer have that. As Bush said, he earned political capital and he was going to spend it.

That's exactly what he did. And the consequences will last for generations.
How about they know their ass from their elbo? I know this is a bit contrite, but I'm in a sour mood.
Due Process side note (because I attended a School of Government): the operative section of the clause is the part about "except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger".

A 1950 holding in a 1946 case found that the protection did not extend to nonresident enemy aliens. However, this no doubt refers to enemies in the conventional sense.

For our purposes therefore, the matter hinges on how the prisoners were classified "enemies" in the first place, and that is the problem. The standard is "members of the al Qaida organization or to have engaged in, aided or abetted, or conspired to commit acts of international terrorism that have caused, threaten to cause, or have as their aim to cause, injury to or adverse effects on the United States or its citizens, or to have knowingly harbored such individuals."

The problem is that in deciding who the enemy is, King George is willing to accept hearsay and secret evidence, accept the word of go-betweens in it for the money, and confessions made under torture.

THAT is the violation of due process.
Scott... I have no problem applying it to my own party. If fact, I think that such a test should especially be applied to my own party.

Tom... Kucinich might, but he doesn't stand a chance. No, you're right. Most candidates believe that they are the solution--that they would never abuse their authority. Makes the whole notion even more urgent.

Windspike... Hard to tell your ass from your elbo when you've got your head up the former. ;-)
CitizenBoo... I suspect that President Bush think very critically of the Constitution. ;-) [snark,snark] But you're right. In fact, I think that very few of us have a good understanding of the Constitution.

Mr_Blog... But that's not the case with the 14th Amendment. Certainly an enemy military combatant is a different thing, but a citizen or "person" under the jurisdiction of the United States (visitor, resident alien, citizen) should be able to challenge that designation and if successful be accorded their due process rights. There are many who claim that due process is for citizens only, and that is simply not true, and Bush goes so far as to deny the right of anyone so designated to challenge their status.
I wonder if we could pass a law that would be revolutionary: Any presidential candidate who lies to the American people to gain power or to engage in any activity using treasury monies must be tried for impeachment within 30 days. In other words, make declarations to the public equal to lying under oath. Then we could actually apply litmus tests and hold them accountable to their statements.

Now, we distrust all politicians more than ever.
Scary!!!

Particularly when the Supreme Court refuses to do anything about the current situation.
Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.


Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.


Amendment VIII,

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

It pissed me off that some in this country, especially right wing tools try to tell people the Constitution and our Bill of Rights are comlicated. Like when Bush tried to tell everyone we were "living in a different world" to try to justify the violation of our rights.

It's always a different world. Every day, every week , every year, every decade, every Presidency and for over 200 years until Bush came along our Bill of Rights and Constitution served us just fine through a Civil War and (2) world wars.

The only difference is we have a tyrannt as President who has surrounded himself with sycophantic followers and allows decisions to be made by a malicious vice President who's sole purpose in life is to enrich the coporrations he serves.
I think we should start with the first Amendment and work down.

Be sure not to skip the second. I would hate to think it, but there may come a time when we need that one to save ourselves from our own government.

Thomas Jefferson would surely concur.
Peacechick... Interesting idea, but determining when a lie occurs might be kind of tough. Candidates like nothing more than keeping their statements so vague that you can't really tell when they've been lying and when they haven't.

Aaron... What's scary? Think I'm missing the context.
PoliShifter, Praguetwin... Sure, the Amendments are the point, but we've got a President who actually makes factually incorrect assertions about the Constitution. So I guess what I'm trying to say is that it's the understanding that's important.

Take capital punishment for example, I'm willing to bet that every single candidate, Democrat and Republican, will tell you that they support it for certain crimes. But I want them to state in no uncertain terms that capital punishment does not violate the VIII Amendment. Then I know, without doubt, whom I can't vote for.
Hi Frog,

I still maintain that the Bill of Rights is very easy to understand.

It does not require Constitutional Scholars and Lawyers to interpret it for us.

Cruel and Unusual Punishment includes any manner of being put to death. Being put to death is cruel and unusual in itself.
I think you had some good ideas rolling around there. See...the thing is that these people take oaths on their beloved Bible...and I figure if THAT isn't enough to keep them on their straight and narrow...what would. They are supposed to fear their God's wrath for any wrongdoing yet it doesn't seem to work that way. And I was always under the impression that to them it was a most extremely important thing. If they can betray their oath to their God...then there's no hope.
No Government Bailout for Sub-prime Lenders.

The following is an example of what will happen to the best sub-prime lenders -- Chapter 11. The weaker lenders will file Chapter 7 -- complete liquidation.

New Century Financial Chapter 11 Petition Filed

New Century Financial filed for Chapter 11 protection with the U.S.
Bankruptcy Court in the District of Delaware.

In conjunction with the
filing, The CIT Group and Greenwich Capital Financial Products have agreed to provide New Century Financial up to $150 million in debtor-in-possession financing, subject to Court approval. The financing provides the Company with a $50 million commitment level at closing with
the potential to increase the commitment to $150 million.

New Century Financial also announced it has entered into an agreement to sell its servicing assets and servicing platform to Carrington Capital Management
and its affiliate. The purchase price for the assets is approximately $139 million.

The Carrington agreement, which has been approved by New Century Financial's board of directors, will be subject to higher and
better offers pursuant to procedures to be established by the Court.

In addition, New Century Financial has agreed to sell to Greenwich Capital Financial Products certain loans originated by the Company, as well as residual interests in certain securitization trusts owned by the Company, for an aggregate price of $50 million.

In connection with the Chapter 11 filing, New Century Financial also announced it will reduce its workforce by approximately 3,200, or 54%, to better align the
Company's cost structure with the current operating environment and to properly size these businesses in preparation for possible sale.

These reductions will be effective immediately. Lazard and Alix Partners are acting as financial advisors to New Century Financial, and O'Melveny & Myers is acting as legal advisors with respect to the bankruptcy.
kvatch, you urged:

"I think that a common understanding of the Constitution should be imposed as a litmus test on our candidates."

What is the definition of a "common understanding of the Constitution"?

It was once commonly understood that the Earth was at the center of the solar system. It was also once commonly understood the Earth was flat.

It was also once commonly understood in this country that blacks were not human and were therefore not protected by the Constitution.

It was once commonly understood that differences between men and women rendered women unfit to vote. That common understanding endured from the founding of the nation until 1920.

Today it is commonly understood that a fetus is not protected by the Constitution, because, like slaves, a fetus is not considered human.

A branch of our federal government exists solely to determine if enacted laws are, in fact, Constitutional. In 1857 that goverment branch declared, in the Dred Scott decision, that slaveholders had rights.

After a number of states seceded from the USA because they agreed with the Supreme Court, the president ignored many laws to force those states to rejoin the union.

Thousands were arrested in Maryland and Delaware on SUSPICION of being southern sympathizers.

He suspended habeas corpus and later received Congressional support for this move.

He delcared martial law. A war was fought.

In that war 625,000 Americans died. The US population in 1860 was about 30 million, or 10% of today's population. Thus, if we fought the Civil War today with similar loss of life, the death toll might exceed 6 MILLION.

Furthermore, the Constitution is so commonly understood that Constitutional Law is its own field of study.

So I ask again, what is the definition of a "common understanding of the Constitution"?
Gee, Froggie - what does Subprime Lender Bailout have to do with basic understanding of Civics 101?

Quite frankly, I was given a test in 8th grade that was a "pass or flunk the entire 8th grade" weighted. The test was 100 questions long, and the subject matter was the Constitution of the United States.

(I got 100%. Only one in my class. I was scared SPITLESS of that test...)

I think each and every one of the persons who want to serve in ANY of the 3 branches of our government should be forced to take and PASS that test (passing grade = 98 or better) every single year.

Just as a bit of a refresher course and reminder - especially since so MANY of the members of the current administration seem to have a problem with "I do not recall that"
Slappz... Of course there is no common understanding in law. As should have been obvious from the post and comments, the 'common understanding' that is useful here is one that allows one particular political group to vet potential candidates, and my example was a plain language interpretation 5th and 14th Amendments. Split hairs all you want, but without candidates who are willing to articulate clear positions on important Constitutional issues, our rights will continue to be eroded by scoundrels.

Sewmouse... As I'm sure Slappz will inform me in a minute or two, I probably couldn't pass a basic civics test these days. But your point about our basic knowledge of civics and our founding documents is good one.
kvatch, you wrote:

"...we've already experienced a President who considers himself free of constitutional limitations..."

You must be referring to Lincoln.
kvatch, you wrote:

"I think that a common understanding of the Constitution should be imposed as a litmus test on our candidates."

Followed by:

"Of course there is no common understanding in law."

Followed by:

"...the 'common understanding' that is useful here is one that allows one particular political group to vet potential candidates..."

Okay. First you want to apply a "litmus test", which, by definition, means testing based on a single factor. In your test world, the "candidates" will face tests on the Constitution. Is it possible any candidate for any office in the US is going to claim he/she is against the Constitution?

Furthermore, any claims mean nothing. The Constitution is flexible. The Constitution once permitted slavery. It permits gun onwership. According to the Supreme Court killing a fetus is protected by the Constitution.

What questions could you possibly ask a candidate? How would anyone "pass" such a test? Clearly every test-taker would fail, no matter what he believed and no matter what party he represented.

Lastly, what you are actually advocating is the system that we have. Anyone can run for office. Almost all elections are popularity contests. Will Giuliani maintain his popular lead with Republican voters through the primaries? I have no idea. But it would surprise me if he did.

He was a good mayor for NY City. He was right to drop his run for the Senate. He's not a Senatorial kind of guy. Wrong office for him.

President? Hard to say. He's far less willing to negotiate with middle east leaders than any of the other 2008 hopefuls. Compared with Giuliani, Bush is a mild-mannered fellow.

Is he presidential material? The public will speak.

Hillary, Obama, Edwards? Obama's out. But the other two? Not out. Yoou seem to like Kucinich. Presumably he will drop out. But peristence pays. Kerry was nowhere in 2004, nowhere until Howard Dean went crazy and dynamited his campaign with his big mouth.

Furthermore, the primaries are so far away that it's impossible to know which candidates will disappear due to campaign disasters or the emergence of skeletons.

It's within reason to think that none of the current candidates will survive till election day. If any campaign has ever promised the emergence of a dark horse or the surprise success of a late entrant, it's this one.
sewmouse, you wrote:

"...what does Subprime Lender Bailout have to do with basic understanding of Civics 101?"

This. There's clearly a pattern here of considering a topic, spouting off a few glib phrases and declaring a position that may have no connection to fact or reality. A smug group laugh usually follows before a new topic is suggested. The Sub-prime mortgage business has passed through this process.

My comment was inserted here to remind readers that market forces generally dictate the ebbs and flows of the business world and financial matters. I thought it was a good idea to bring a little reality to the discussion of troubled Sub-prime mortgage lenders.

YOu wrote:

"I was given a test in 8th grade that was a "pass or flunk the entire 8th grade" weighted...and the subject matter was the Constitution of the United States."

There might be some value in demanding that public schools increase the amount of time devoted to this topic. But you can't force voters to take a literacy test. Therefore I don't think you'll have much luck requiring voters to demonstrate 8th-grade knowledge of the Constitution.

You opined:

"I think each and every one of the persons who want to serve in ANY of the 3 branches of our government should be forced to take and PASS that test (passing grade = 98 or better) every single year."

Would it be okay if the government declared a special annual holiday -- perhaps a week -- so everyone could study for the exam?

Would you mind if the Stanley Kaplan Test Review company offered a review class and taxpayers covered the bill?

Should states impose the same testing requirement?

If we're testing for Constitutional knowledge, should we also test for the presence of certain unacceptable attitudes? Or disturbing points of view?

What do we do with the people who fail the test? Would we hold elections to replace them. Or, in the case of the Supreme Court, find new justices to appoint? Since the justices are appointed for life, a Constitutional question might arise if one failed the test and was told to vacate his chambers.

I have my doubts about this test plan. If it got going, the nation might fall under the control of 8th-graders, possibly the only people capable of passing the test.

Where would that get us? Free cell-phones for everyone. Free clothes for girls. Endless free video games for boys. Guns for everyone. No more school. Free hot cars for teenagers. Parents required to meet all money demands made by kids.
Slappy:

You incorrectly assumed:

"There might be some value in demanding that public schools increase the amount of time devoted to this topic. But you can't force voters to take a literacy test. Therefore I don't think you'll have much luck requiring voters to demonstrate 8th-grade knowledge of the Constitution."

Obviously a course in READING COMPREHENSION 101 would be in order for you - the test would be for CANDIDATES, you stupid git.

You then further put your foot into your rather cavernous oral orifice by stating:

"Would it be okay if the government declared a special annual holiday -- perhaps a week -- so everyone could study for the exam?"

Since your beloved Republican Congress and Pretender to the Presidency have "worked" less than 1/2 of the days in their current terms of office - I'm sure they can fit it into their schedules, Snookiedimples.

You then blathered on:

"Would you mind if the Stanley Kaplan Test Review company offered a review class and taxpayers covered the bill?"

It seems to me that there isn't a single governmental office holder who doesn't make sufficient cash to pay the minimal fee necessary to provide the basic credential of proving their knowledge on a 100 question Constitution test, Moron.

You then erroneously concluded:

"Where would that get us? Free cell-phones for everyone. Free clothes for girls. Endless free video games for boys. Guns for everyone. No more school. Free hot cars for teenagers. Parents required to meet all money demands made by kids. "

Since girls and boys are not eligible for public office until they are grownups - something you might learn, Infant, your conclusion is a strawman and without any validity.

Typical dittohead childish blithering on your part.

Also, since you so obviously missed the entire meaning of my comment, it does not in the least surprise me that you still cannot LEGITIMATELY connect the idea of a bailout for poorly negotiated loans - with basic Civics 101.

Because... YOU"RE STUPID!!!!!!!!
sewmouse, you wrote:

"Obviously a course in READING COMPREHENSION 101 would be in order for you - the test would be for CANDIDATES, you stupid git."

We've got to start training and educating future politicians early in their lives. If we get everyone on track now by making everyone a Constitutional scholar, we'd relieve ourselves of all the problems that have arisen from letting graduates from the nation's leading law schools run the show.

You didn't like my test-review-vacation idea for government workers facing immediate dismissal for failing the Constitution test. That's disheartening.

Working a job and studying for a final exam is tough stuff. These government workers have families too. Job, final exam, family. Lotta work.

You also didn't like my Stanley Kaplan Test Review plan. Again, that's unfortunate.

You wrote:

"It seems to me that there isn't a single governmental office holder who doesn't make sufficient cash to pay the minimal fee necessary to provide the basic credential of proving their knowledge on a 100 question Constitution test, Moron."

Whether or not they have enough money to pay for test prep really isn't the issue. Fairness is my chief concern.

Do we give those 8th-graders free exam preparation services? Yes. Do we charge them for their high school diplomas? No.

Taxypayers support programs that fund review programs at public schools throughout the country. No one asks whether the individual student comes from a home affluent enough to pay for the review services. How can we treat government employees differently from students in government-run schools? Seems inconsistent to me.

You disagreed with my conclusion about what our nation would face if 8th-graders were the only people capable of passing a Constitutional exam.

You wrote:

"Since girls and boys are not eligible for public office until they are grownups - something you might learn, Infant, your conclusion is a strawman and without any validity."

It's true. I forgot to mention that putting 8th-graders in charge of the country would lead to the repeal of every law regarding minimum ages. If only 8th-graders could pass the Constitutional test, little time would pass before 13-year-olds were eligible for election to the highest offices and appointment to the Supreme Court. I suspect they'd revoke the usual requirement of graduating from law-school before appointment to the bench.

I imagine the drinking age would fall as well. I'd be interested in how this group of young leaders would decide upon a reasonable minimum age for receiving a driver's license. Pilot's license, too.
Rudy's a bully and an extra-constitutional kind of guy. NYers already know that about him. I hope the rest of America learns it before they make some awful mistake.
Rudy is a meglomanic. Not only does he think the president should be able to ignore due process, I read somewhere today that he thinks the President can fund a war by "alternate means" if Congress refuses to fund it.
reality, you wrote:

"Rudy's a bully and an extra-constitutional kind of guy. NYers already know that about him.

Yeah, we New Yorkers hated him so much we re-elected him in a landslide.

It galls liberals that Rudy was a huge success as mayor of NYC. Now they're worried he'll win the presidency and repeat his success.

You wrote:

"I hope the rest of America learns it before they make some awful mistake."

What mistake? Rudy left New York City much improved. The city staged remarkable gains in every category you can mention, except for schools.
Kvatch: "But that's not the case with the 14th Amendment."

True! But we started out with the Fifth, and Due Process.

At any rate, the thing w/the 14th is that the Military Commissions Act of 06 sets up two different systems of justice, one for citizens and one for non-citizens. There is a good chance this violate s Equal Protection. However, I don't think a court has had the chance to decide that question.
"It galls liberals that Rudy was a huge success as mayor of NYC."

A temperate individual would have said "some liberals". Mayor Giuliani never bothered me. I've seen some awful things done by liberal leaders whom I otherwise supported. While I don't care for the authoritarian streak in Mayor Giuliani (you probably know him better than I do and since you're on a first name basis) with regard to the "quality of life laws" and while the police did some horrible things during his administration, the police did horrible things during other administrations as well and Mayor Giuliani wasn't as bad as he's been made out to be.

His biggest problem in pursuing a presidential bid will be among some social conservatives, not liberals. He's pro-choice and decent in his approach to gay rights. His multiple marriages and adultery as well as his current wife's multiple marriages won't sit that well with a lot of people either.

Did the RCC annul the first two marriages? If not, he may run into some big problems with the RCC, since they saw fit to attack Kerry for his pro-choice views in the last election. Remarrying without an annulment is a serious offense in the RCC, and the pro-choice views won't help.
dean you wrote:

"His biggest problem in pursuing a presidential bid will be among some social conservatives, not liberals. He's pro-choice and decent in his approach to gay rights. His multiple marriages and adultery as well as his current wife's multiple marriages won't sit that well with a lot of people either."

For all the reasons you mentioned, his nomination would surprise me.

There's way too much time to kill before we pick the two contenders. Lots will go wrong for those whose hats are already in the ring. A thing or two will go fortuitiously right for one or two candidates who have yet to appear.

This presidential race is more of a double-marathon Iron Man competition than a traditional run for the White House.

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