Two former Secretaries of State, James Baker III, a Republican, and Warren Christopher, a Democrat, chaired a commission looking into the War Powers Resolution of 1973. The resolution was passed by Congress toward the end of the Vietnam War and was intended to revamp the way that the nation was led into armed conflict. The resolution states that the president may only take the armed forced into conflict with the express approval of Congress through an authorization or a declaration of war. President Nixon vetoed the resolution when it passed, calling it unconstitutional, a position supported by every president since. Congress was able to override that veto.

Baker and Christopher admit that the resolution may indeed be unconstitutional and have proposed a new law aimed not at fixing the War Powers Resolution, but at creating a new regime for executive and legislative branch cooperation in matters of war and defense.

"Our proposed new law, the War Powers Consultation Act of 2009, does not pretend to resolve the underlying constitutional issues - only a constitutional amendment or a Supreme Court decision could do that. It would reserve the ability of both Congress and the president to assert their constitutional war powers. In drawing up the statute we focused on a common theme that almost all past proposals shared: the importance of meaningful consultation between the president and Congress before the nation is committed to war."

The Constitution divides the war powers of the federal government between Congress and the president. The president is the commander-in-chief of the military and has exclusive authority to command the armed forces in war time. Congress has the sole authority to declare war, although it has not done so since World War II, and controls the funding for military operations. The president has Constitutional authority to use military force in times of emergency or defensive necessity, but must go to Congress for authorization if hostilities are expected to last for an unspecified longer period of time. It is that lack of specificity that Baker and Christopher are trying to address with their proposal.

The question of whether Sen. John McCain is eligible for the presidency has popped up from time to time in the media and on the Internet. The controversy, such as it is, hinges on the circumstances of McCain's birth. The Constitution lays out three eligibility requirements for presidential candidates. A candidate must be at least 35 years old, a resident of the United States for at least 14 years, and must be a "natural-born citizen." McCain qualifies on all three; but some commentators have questioned whether he can be considered to have been natural-born because he was born on a U.S. Navy base in the Panama Canal Zone.

Now, however, the Senate has moved to put that minor controversy to rest. Yesterday, the Senate passed a resolution declaring that McCain is a natural-born citizen. The resolution was passed by unanimous consent. More surprising than the result, however, was the fact that the bill was written and submitted by Democratic Senator Claire McCaskill (D-MO), and co sponsored by both Democratic presidential candidates, Sen. Hillary Clinton (D-NY), and Sen. Barack Obama (D-IL). Politics makes strange bedfellows.

"Interpreting the Constitution is the Supreme Court's most important and most difficult task. An even harder question is how to approach a Constitution that, in fact, is no longer in pristine form. . . ."

The Wall Street Journal has an interview today with Supreme Court Justice Clarence Thomas. As always, on the rare occasions when Justice Thomas provides a glimpse into his mind and jurisprudence, one ought to pay due attention. Particularly in light of the forthcoming Supreme Court decisions on matters of great public concern (see Charles Lane's excellent WaPo column on a case considering the right to bear arms), Justice Thomas' opinions on constitutional interpretation are of profound significance:

"I don't put myself in a category. Maybe I am labeled as an originalist or something, but it's not my constitution to play around with. Let's just start with that. We're citizens. It's our country, it's our constitution. I don't feel I have any particular right to put my gloss on your constitution. My job is simply to interpret it.

"And when I can't find something in that document or in the tradition or history around that document, then I am getting on dangerous ground. Because that's when you drift so much more towards your own policy preferences."

After the Supreme Court heard oral arguments. The money this afternoon, the smart money seems to be where the smart analysis was all along, namely that the right to keep and bear arms is an individual right, not a collective one. The passage that threw so many off is that clause, "a well regulated militia," which many have taken to mean that individuals have no rights at all, but only ... the state?

Of course it flies in the face of the Bill of Rights to suggest that anything there protects the state. Against whom, one might ask? The entire thrust of the Bill of Rights is to protect the individual against the state. Clearly, that was the intent here.

The Supreme Court heard oral arguments today in the case of District of Columbia v. Heller, a direct challenge to the Districts 32-year old handgun ban. When the Court issues its opinion in the case in June, it will be the first time in 70 years that the Court has opined on the right to bear arms, enshrined in the Second Amendment to the Constitution.

At issue is the case of Dick Heller, a District resident that applied for the right to keep a handgun in his Capitol Hill home for self-defense. The District rejected his claim based on a city ordinance banning possession of handguns within the city limits. Residents of the District have the right to maintain rifles and shotguns in their homes, but they must be unloaded and disassembled. Heller argued at the Court of Appeals for the DC Circuit that the requirement effectively denied him his Constitutional right to keep and bear arms. The appeals court agreed, saying that the right to bear arms is an individual right that attaches to persons, not just to states or organized militias. The District of Columbia appealed the ruling to the Supreme Court.

Do you think that terminally ill patients should have access to experimental drugs that are not yet approved by the FDA. I'm leaning that way pretty strongly myself. But the Supreme Court just ruled otherwise.

Shock. Outrage. #$%*@%$*!

Ah, but the Supreme Court was right. The Court was being asked to decide if there is a constitutional right for terminally ill patients to have legal access to experimental drugs. Look, I've read the Constitution backward and forward, and I've never come across a passage that would begin to justify this claim.

The Department of Justice has asked the Supreme Court to weigh in on a controversial ruling stemming from the corruption probe of Rep. William Jefferson (D-LA). The D.C. Circuit Court of Appeals ruled last year that a search of Rep. Jefferson's office for documents related to the investigation into allegations of bribery and official corruption violated the Constitution's "speech and debate" clause. The clause, found in Article I, Section 6 reads:

They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

The three judge panel of the D.C. Circuit Court ruled that the clause prevented FBI agents from conducting a search in, "a location where legislative materials [are] inevitably to be found," unless they have the Representative's permission. The Justice Department calls that an "unprecedented expansion" of the speech and debate clause's historical meaning and has petitioned the Supreme Court to overrule the lower court.

I read an article this morning in USA Today about a toddler who donated money to Barack Obama's campaign. It's a cutesy little story that really signifies how bad campaign finance has become. Unlike our candidates, the system is bankrupt.

The candidates never had it so good.

So far the top four candidates on each side have combined to spend a total of $126.6 million so far. The same candidates have another $112.3 million on hand as of now. This is just the primaries. The real money starts to fly in the general election.

Why can't we fix this?

I'll tell you what separates a judicial conservative from a judicial liberal: it's the ability to separate your policy preferences from your constitutional imperatives.

I have mixed feelings about the lethal injection review by the Supreme Court. I recently saw A Thin Blue Line for the first time. I had long told myself that if there were a significant chance of a false conviction, I'd oppose the death penalty. Now, I'm feeling pretty conflicted -- not because the method of execution is ugly and painful, but because it is so final, and can be wrong.

But this lethal injection review is another effort to make policy making through constitutional end run. Like Roe v. Wade. I can oppose the death penalty as policy -- and I think I do -- but that does not mean that I can declare it unconstitutional by fiat. [more]