So apparently we celebrate Constitution Day here at UC Berkeley. Perhaps you’re aware because Chancellor Birgeneau sent an e-mail about it. It began:

On September 17th, Cal will celebrate Constitution Day-the anniversary of the signing of our country’s founding document. Federal law requires all schools who receive federal funding to hold an educational program annually on this day.

We sort of wished the e-mail continued like this:

Well, it took a few wine coolers, but screw it. I suppose I’ll be candid with you guys. Hell, it doesn’t matter. You all instantly delete my e-mails anyway. What I meant to say in the first paragraph is that the government gave us cash, so we’re bound to feign Constitution love. Now, if you’re paying attention, which I know you aren’t (and by the way, aren’t marshmallows the softest thing a man can eat?), you might ask me a few questions about this.

You might say, “Hey, didn’t John ‘torture memo’ Yoo speak at our first C-Day celebration back in 2005? Isn’t that kind of weird since the 8th amendment forbids cruel and unusual punishment? Also doesn’t that guy, who still works here by the way, also advocate a system where the checks and balances cease to matter in a time of war?”

Look, enough with your hypothetical questions. Which you, again, won’t ask since you aren’t reading this (and by the way, isn’t the Campanile just a tad phallic?). It is a bit weird that the guy still works here. After his friend (we would have asked Al Gonzales to speak at our 2007 C-day, but he’s tied up in some sort of legal trouble) got ousted from the government, we kind of expected the Yoo to hit the fan. He’s been “controversial” for quite some time. I mean, just look at this old interview exchange:

bq. Doug Cassel: If the President deems that he’s got to torture somebody, including by crushing the testicles of the person’s child, there is no law that can stop him?

bq. John Yoo: No treaty.

bq. DC: Also no law by Congress. That is what you wrote in the August 2002 memo.

bq. JY: I think it depends on why the President thinks he needs to do that.

(Shaking my head in disbelief.)

One has to wonder if there is a tipping point with this fellow. The truth is this, kids: John Yoo is our canary in the mine. If you’re seriously clamoring for his ouster, we’ll know that you might start asking for textbooks that are actually affordable and exercise facilities that aren’t crazily overcrowded. Anyway, that’s when I decide to buy a house out in Napa and take an extended sabbatical.

Fortunately, your lack of entitlement and abundance of apathy has spared me such annoyances. I’ve even had time to get really, really good at Madden 2008 on Xbox 360. I can flip a Cheeto into my mouth while simultaneously throwing a screen pass. In short, I totally rule at life. But yeah, even though you obviously don’t care about your democracy, you’re welcome to enjoy our C-day events. In the meantime, feel free to wiki your favorite Boalt prof.

Love,

Rob

Image Source: Michael Smith, Daily Cal



Comments:
Josh C said:
Sep 18, 2007 at 6:38 pm

Hi there, Rob. I appreciate greatly that you actually care about the state of politics and about issues in our society today, unlike many students at Berkeley.

However, I take issue with your stance on “constitutionality,” as well as with your view of Professor Yoo.

First off, Professor Yoo is an honorable man who deserves our respect for his intellectual achievements and willingness to stand up for what he believes is right and true in the face of extensive opposition, regardless of whether we agree with the man or not.

Secondly, neither John Yoo, nor Congress, nor the Executive Branch violated the constitution in writing, passing, and implementing(respectively) the Patriot Act. You may be familiar with the “necessary and proper” clause or “elastic” clause of the Constitution, which states:

Article I, Section 8, “Clause” 18:
“The Congress shall have power …To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.”

Congress deemed it necessary and proper, for the safety of Americans, to pass the Patriot Act. There is nothing unconstitutional in the slightest about that.



Amy B. said:
Sep 18, 2007 at 7:58 pm

Hey, John C. Congress may have deemed it necessary to pass the Patriot Act, but that doesn’t make it constitutional: http://news.bbc.co.uk/2/hi/americas/6982826.stm



Josh C said:
Sep 18, 2007 at 11:26 pm

Amy B., you are very correct in asserting that Congressional approval does not necessarily mean constitutionality.

However, the essence of being “constitutional” is conforming to the dictates of the Constitution. The constitution states plainly in the aforementioned clause that Congress DOES have the power to make any law which is “necessary and proper.” Granted, it is fairly vague language, and that is why it is called the “elastic” clause. Nonetheless, it validates the constitutionality of the Patriot Act.

And in reference to the article you linked, the ruling of one judge means virtually nothing. This is compounded by the reality that he is merely the judge for the U. S. District Court of the Southern District of New York. The Supreme Court is the real deciding group, and I can almost assure you they would rule the Patriot Act as constitutional.



Amy B. said:
Sep 19, 2007 at 5:09 pm

John C., you make a valid point that Congress does hold the power to deem things ‘necessary and proper,’ but the gray area still needing to be defined is the degree to which something can be defined as such.

To that end, I still don’t think that just because a legislative body deemed something ‘necessary and proper’ at one time that that decision was valid, necessary, or proper.

I’m not some flaming liberal here, but I think there are ambiguities to scrutinize when different courts (however low or high: they still have to go to law school) can interpret the laws governing things like the Patriot Act in ways that conflict.



Amy B. said:
Sep 19, 2007 at 5:10 pm

P.S. I’m sorry I called you John all this time, when you’re really Josh. My bad.



Beetle said:
Sep 19, 2007 at 8:39 pm

Ha!