The Foreign Intelligence Surveillance Court, or FISC, rules in secret on requests from the NSA to access the private information of American citizens, or information hosted on U.S.-based computer systems.

Those requests became part of a media firestorm last week, when two media outlets published leaked documents that showed the federal government was actively monitoring phone calls and computer records of many Americans.

In the secret Foreign Intelligence Surveillance Court, the government doesn’t need to establish probable cause to get a warrant or court order, and it has a lower burden of proof than usually required by the Fourth Amendment.

The Fourth Amendment protects people from unreasonable search and seizure, and it says probable cause is needed by investigators.

During a tense Friday, as President Obama defended the actions, court papers were quietly filed about a possible Fourth Amendment violation involving government snooping.

The Electronic Frontier Foundation is suing the Justice Department under the Freedom of Information Act, based on a request made last year by Senator Ron Wyden of Oregon about that specific Fourth Amendment violation.

Wyden is regularly briefed about the activities of the NSA and FISC, and he asked the Director of National Intelligence (DNI) last year to release some information about the Patriot Act and the Fourth Amendment—most probably because he knew it existed and he couldn’t talk about it directly.

Related Link: Letter from the Director of National Intelligence to Wyden

A letter to Wyden from Kathleen Turner, the director of legal affairs for the DNI, confirmed that on at least one occasion, FISC found that an information request from the NSA wasn’t reasonable under the Fourth Amendment.

Turner also said, “I believe that the government’s implementation of Section 702 of FISA [the Foreign Intelligence Surveillance Act] has sometimes circumvented the spirit of the law, and on at least one occasion the FISA Court has reached this same conclusion.”

She also said that no time did the FISC find “intentional violations of law,” and the court found the NSA activities as reasonable and consistent with the Fourth Amendment.

Video: Jeff Rosen discusses the NSA on The Colbert Report

The EFF lawsuit, part of which the Justice Department had to respond to by Friday, asks for the government to declassify that FISC decision that found at least one spy operation violated the Fourth Amendment.

Related Link: Read the EFF lawsuit

In early documents filed in the case, it was revealed that there was an 86-page FISC opinion from October 2011 that says some NSA activity was unconstitutional.

The current impasse is that FISC, the Justice Department, and the U.S. Court in the District of Columbia need to agree on who has the final power to release that 86-page opinion—if a decision were made to release it.

Indeed, on Friday, the Justice Department filed a motion in court, claiming FISC didn’t have jurisdiction to release the decision, and the decision was “properly classified” and should remain under seal.

The Justice Department’s arguments include claims that the decision could only be fully understood in its unedited form, which would raise national security concerns. It also argues against claims by the EFF and others that the government was posing a “Catch-22” situation by presenting a confusing situation about who has jurisdiction in the case.

“The fact that [the EFF] lacks a legal right to obtain the document it seeks does not imply a ‘Catch-22,’” the department said.

In a statement after the filing, the EFF didn’t agree with the Justice Department’s position.

“Frankly, it’s difficult to understand what DOJ is saying. The government seems to have a knee-jerk inclination towards secrecy, one that often—as in this case—simply defies logic,” the group said.

For now, the case remains in the hands of the presiding judge of FISC, Reggie Walton. The EFF hopes to get an opinion from Walton that FISC can consent to release its own decision about the Fourth Amendment. The case then probably heads back to Judge Amy Berman Jackson of the U.S. District Court for the District of Columbia.

The fact that Walton even asked for the Justice Department to file a motion surprised observers in late May, and that was before the news broke about the extent of the government’s surveillance program.

The FISC judges almost always approve requests from the Justice Department and the NSA to collect private information as part of investigative activity.

In April, the Justice Department asked FISC for permission in 2012 to collect data in 1,788 applications. The department withdrew one request and the court approved all the other requests. About 212 of those requests were for business records that included electronic surveillance.

Scott Bomboy is the editor-in-chief of the National Constitution Center.

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The whole Guantanamo issue is complex and far from settled. On Thursday, the president made a new push to close the prison, where a majority of its residents are on a hunger strike.

But on Tuesday, the AP said the Defense Department wants $450 million to spend over an 8- to 10-year period to upgrade and maintain the prison. (The Pentagon is part of Obama’s executive branch.)

Congress, of course, will need to approve the request as part of the overall budget process.

By some estimates, it costs about $800,000 a year to maintain each prisoner at Guantanamo. President Obama put that number at closer to $1 million per prisoner in his speech on Thursday.

Currently, about 100 of the 166 prisoners there are on a hunger strike, with about 20 being force-fed by guards.

Outside the U.S., the costs extend beyond dollars—a point President Obama made in April when he indicated another effort will be made to close the prison and move (or release) its current inmates.

“Guantanamo is not necessary to keep America safe,” Obama said at a White House press conference last month. “It is expensive. It is inefficient. It hurts us in terms of our international standing. It lessens cooperation with our allies on counterterrorism efforts. It is a recruitment tool for extremists. It needs to be closed.”

The president in April also addressed some of the legalities of keeping people indefinitely at Guantanamo.

“The notion that we’re going to continue to keep over 100 individuals in a no-man’s land in perpetuity,” he said, “the idea that we would still maintain forever a group of individuals who have not been tried—that is contrary to who we are, it is contrary to our interests, and it needs to stop.”

But a majority of Americans still approve of the prison, according to recent polls. A Fox News poll this week says 62 percent of people want the prison to remain open as a facility to maintain suspects. A Huffington Post poll put that number at 54 percent in early May, while a Washington Post poll last year had the number closer to 70 percent.

And that includes a bipartisan majority within Congress, which has blocked past efforts by Obama to shutter Guantanamo.

Ultimately under the Constitution, Congress holds the purse strings for Guantanamo.

Lawmakers have made sure budgetary provisions prevent funding for the transfer of prisoners to facilities in the mainland United States, or money to pay for trials at Guantanamo.

At least half of the current 166 prisoners could be released under certain circumstances, if their countries would take them back and guarantee that tabs are kept on them. On Thursday, President Obama said he would lift a moratorium on detainee transfers to Yemen, to be reviewed on a case-by case-basis.

But there are concerns the released detainees could resume anti-American activities. One U.S. government study said that 16 percent of released detainees re-engaged in terrorist activities or associated with terrorists.

Peter Bergen, the director of National Security Studies at the New America Foundation, said in a recent CNN article that his foundation’s review of news articles came up with a number close to 3 percent for released detainees who took part in terrorism; another 3.5 percent were suspected of terrorism.

For the other 80 prisoners, they will most likely have to go through a court system of some type, or be released.

Some top Democrats want to join forces with President Obama to close the prison.

Representative Adam Smith of Washington, a top Democrat on the House Armed Services Committee, said on Tuesday that Guantanamo will “continue to symbolize an unjust attempt to avoid the rule of law and to undermine the United States’ moral standing in defending its values and protecting human rights.”

But many Congress members share deep concerns about national security issues and the transfer of prisoners to U.S. soil.

A longer-term issue is the idea of some type of due process for the detainees who have been held indefinitely and may go before a review board. That process could still happen at Guantanamo or at a domestic U.S. prison—or not at all in some cases, which brings up a whole set of constitutional issues.

On Thursday, President Obama said, “We will insist that judicial review be available for every detainee.” But he also acknowledged there wasn’t a current solution for detainees who “we know have participated in dangerous plots or attacks, but who cannot be prosecuted—for example because the evidence against them has been compromised or is inadmissible in a court of law.”

The president said, “I am confident that this legacy problem can be resolved, consistent with our commitment to the rule of law.” But he didn’t offer specifics.

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On Monday, news started coming out of Washington that the Obama administration would let the Defense Department handle drone operations in Yemen, where the U.S. is engaged in counterterrorism activities with local forces.

The news agency Reuters said it was unclear how drone operations would be handled in Pakistan, where the existence of the program isn’t officially acknowledged.

The moves are seen by some as a way to push the debate about drones, lethal force, and their use on foreign and American citizens into a public forum that can be better managed by the White House.

President Obama will be discussing the rationale for the drone operations in a nationally broadcast speech this Thursday, in his first detailed explanation of the use of drones for counterterrorism efforts. Earlier this year, Attorney General Eric Holder said the president would offer more transparency about drone policy.

On Tuesday, the International Crisis Group published a report that criticized the U.S. and Pakistan for its drone policies.

The nonpartisan group asked the U.S. to “develop a rigorous legal framework for the use of drones that defines clear roles for the executive, legislative and judicial branches and introduces a meaningful level of regular judicial and congressional oversight.”

Those aren’t novel ideas in Washington, where the secret policy decisions involving drones have been a hot-button issue for several years.

The death of al-Qaida leader Anwar al-Awlaki in September 2011, reportedly in a CIA drone strike in Yemen, was the first time a drone attack deliberately targeted and killed an American citizen. It set off a fierce debate about the constitutionality of such an action.

Those issues include whether drone attacks overseas on American citizens violate Fourth Amendment guarantees against unreasonable search and seizure, and the Fifth Amendment’s due process clause.

Attorney General Holder said in March 2012 the administration’s justification for killing U.S. citizens abroad rested on a determination that the person poses an “imminent threat of violent attack.”

Related Link: Read Holder’s entire speech

“The evaluation of whether an individual presents an ‘imminent threat’ incorporates considerations of the relevant window of opportunity to act, the possible harm that missing the window would cause to civilians, and the likelihood of heading off future disastrous attacks against the United States,” Holder said.

A Justice Department memo obtained by NBC in February 2013 shed more light on the government’s policy.

A kill order can be issued against an American citizen overseas if they are believed to be “senior operational leaders” of al-Qaida or “an associated force.” There doesn’t need to be “clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future,” the memo says.

An “informed, high-level” U.S. government official can determine if a targeted American citizen has been “recently” involved in planning a violent attack and “there is  no evidence suggesting that he has renounced or abandoned such activities.”

The New York Times and the American Civil Liberties Union have tried to obtain the Justice Department orders justifying the killing of American citizens with drones, but a judge was unable to compel the Obama administration to release the information.

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U.S. District Court Judge Colleen McMahon said in January, “I can find no way around the thicket of laws and precedents that effectively allow the Executive Branch of our government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reason for their conclusion a secret.”

In the U.S., one public opinion poll shows widespread support for using drones to kill suspected terrorists overseas, with much less support if the suspect happens to be an American citizen.

A March 2013 Gallup survey showed that while 65 percent of Americans approved the use of drones overseas to kill foreign suspected terrorists, only 41 percent approved of fatal attacks on Americans overseas who are terror suspects. Only 13 percent approved the use of drones against American citizens who are terror suspects living within the U.S.

A Fox News poll in March showed different results, with 60 percent of those polled approving of attacks on U.S. citizens abroad that are suspected terrorists.

In 2012, Pew Research conducted a global survey on how other countries view the U.S. drone policy in Pakistan, Somalia, and Yemen.

Out of 20 major nations, 19 countries disapproved of the American policy. Only in India did more people approve of the U.S. drone attacks than disapprove. And in 17 nations, a majority of people polled disapproved of the U.S. drone program.

Scott Bomboy is the editor-in-chief of the National Constitution Center.

The Battle of Churubusco.

On May 13, 1846, the United States Congress declared war on Mexico after a request from President James K. Polk. Then, on May 26, 1848, both sides ratified the peace treaty that ended the conflict.

In between those dates was enough drama to last for generations and the appearance of some familiar names that would dominate the Civil War, from President Abraham Lincoln to General Robert E. Lee.

To save space and make a long story short, the conflict centered on the independent Republic of Texas, which opted to join the United States after establishing its independence from Mexico a decade earlier.

The new U.S. president, James K. Polk, also wanted Texas as part of the United States, and his predecessor, John Tyler, had a late change of heart and started the admission process before he left office. Polk and others saw the acquisition of Texas, California, Oregon, and other territories as part of the nation’s Manifest Destiny to spread democracy over the continent.

The U.S. also tried to buy Texas and what was called “Mexican California” from Mexico, which was seen as an insult in Mexico, before war broke out.

Mexico considered the annexation of Texas as an act of war, and after border skirmishes, President Polk asked for the war declaration, since in Article I, Section 8 of the Constitution, only Congress can declare a war.

In the fighting that followed, the mostly volunteer United States military secured control of Mexico after a series of battles, and the Treaty of Guadalupe Hidalgo was signed on February 2, 1848.

It was the first large-scale success of a United States military force on foreign soil.

Mexico received a little more than $18 million in compensation from the United States as part of the treaty.

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The pact set a border between Texas and Mexico, and ceded California, Nevada, Utah, New Mexico, most of Arizona and Colorado, and parts of Oklahoma, Kansas, and Wyoming to the United States.

In today’s terms, those 10 states account for 136 electoral votes, more than half of the votes needed to secure a win a presidential election.

It also cut the territorial size of Mexico in half.

On the surface, the war’s outcome seemed like a bonanza for the United States. But the acquisition of so much territory with the issue of slavery unresolved lit the fuse that set off the Civil War in 1861.

The underlying issue of how adding new states and territories would alter the balance between free and slave states was critical.

The Missouri Compromise of 1850 attempted to appease Southern concerns about the shifting balances, but the die was cast as the nation headed toward the Civil War in 1861.

The Treaty of Guadalupe Hidalgo also set in motion a whole range of issues for Mexican-Americans and Native Americans.

During the conflict, one of the vocal objectors in the Whig party was Representative Abraham Lincoln from Illinois. Key players on the political side included Jefferson Davis and Stephen Douglas.

On the battlefield, Robert E. Lee, Ulysses S. Grant, and Stonewall Jackson were among the dozens of commanders who would later emerge in the Civil War.

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Emperor Hirohito signing the current constitution.

Japan celebrated its Constitution Day on Friday as controversy loomed over changes being led by Japan’s prime minister, Shinzo Abe, and his Liberal Democratic Party.

Japan marked the 66th anniversary of a constitution drawn up after World War II. It was written by American officials who were concerned with the possible return of Japan as a military power.

One constant discussion in Japan has been changes to Article 9, which limits the country’s military to a self-defense force. In recent years, the interpretation of Article 9 has been stretched to allow Japan to expand its forces.

But its military can’t take part in collective actions with U.S. forces, which is a growing issue as Japan and China boost their military spending.

Abe has made sure that in the upcoming elections in the upper house of Japan’s parliament (known as the National Diet), the central campaign issue is a constitutional revision beyond Article 9. He has pushed for significant changes to the country’s constitution–and for making the amendment process much easier.

The Liberal Democrats want to change Article 96, which requires two-thirds of both houses of parliament to approve a constitutional amendment before it goes to a national referendum for voters to approve.

This is similar to how the U.S. Constitution works, expect that state legislatures, not voters, ratify amendments in America.

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The change to Article 96 would allow just a simple majority of the Diet to approve a proposed amendment, and a simple majority of voters to ratify it in a national referendum.

Such a radical change could allow one party, if it controls a simple majority of the government and the electorate, to rapidly add amendments—which is the exact opposite of the system used in the U.S. Constitution.

For now, polls in Japan show strong support for the Liberal Democrats, but mixed signals about changing Japan’s constitution. Many Japanese voters remain undecided on the issue of constitutional change, according to some reports. One poll showed support for constitutional changes at just 39 percent.

Abe’s popularity may force the issue, since it’s possible that the Liberal Democrats could control two-thirds of both houses of the Diet after the summer elections or in coming years.

Japan’s current constitution was written in just a few weeks in 1946 by staffers who worked for General Douglas MacArthur.

The Liberal Democrats say they want a truly Japanese constitution that reflects their nation and its historic values–not those of the West.

Their draft version from 2012 is “appropriate to the times and circumstances of Japan,” the party said in a press release. That would include an emphasis on a traditional definition of family.

“It newly prescribes that a family shall be respected as a basic unit of a society and that family members should help one other,” the draft says.

Opponents believe that traditional definition could reduce rights held by women in Japanese society, since men hold the dominant role in family relations. They also think that free speech would become subordinate to a desire to keep “public order.”

But the bigger issue could be the fear of China and South Korea’s reaction to a Japan with a traditionally Japanese constitution.

“The real concern is that a couple of years later, we move to a redefinition of a ‘new Japan’ as an authoritarian, nationalist order,” Yale University law professor Bruce Ackerman told Reuters.

Last week, Abe said he saw no reason to explain Japan’s possible constitutional changes to China and South Korea. Both countries suffered harshly at the hands of Japan during World War II.

Source: Anna Frodesiak (OpenStreetMap).

To be sure, federal and local investigators are looking at all angles in the case, which they have called a “worldwide investigation.”

“It will take time to follow every lead and determine what happened, but we will find out,” President Barack Obama said on Tuesday. “We will find whoever harmed our citizens, and we will bring them to justice. We also know this: The American people refuse to be terrorized.”

Law enforcement officials have been quick to say that they won’t rule out any suspects—and people shouldn’t jump to conclusions.

Those statements might be an allusion to the Oklahoma City bombing on April 19, 1995, when government officials first blamed international terrorists for the massive blast that killed 168 people at the Alfred P. Murrah Federal Building.

Timothy McVeigh, a former U.S. Army soldier, was upset about government incidents at Ruby Ridge and Waco, and he plotted to bomb the Murrah building with Terry Nichols. Both were convicted, and McVeigh was executed in 2001, while Nichols is in jail for life without parole. A third man, Michael Fortier, testified against McVeigh and Nichols and received a 12-year prison sentence.

The federal government has ramped up its efforts against domestic terrorism since Oklahoma City and the 9/11 terror attacks.

According to a May 2012 Congressional Research Service report,  the Justice Department and FBI have defined domestic terror threats to include “individuals who commit crimes in the name of ideologies supporting animal rights, environmental rights, anarchism, white supremacy, anti-government ideals, black separatism, and anti-abortion beliefs.”

The report also explains why the federal government tracks a list of domestic terror threats, and not an official public list of groups that could be considered at threats.

“There is no official open-source roster of domestic groups that the FBI or other federal agencies target as terrorist organizations. The lack of such a designation may spring partly from First Amendment concerns. Such a list might discourage speech and expression related to the ideologies underpinning the activities of named groups.”

The CRS also cites an FBI report from 1999 that said “[d]uring the past 30 years, the vast majority—but not all—of the deadly terrorist attacks occurring in the United States have been perpetrated by domestic extremists.”

Among these incidents were a 1910 incident, when union organizers bombed the Los Angeles Times building (killing 21 people); the 1920 Wall Street bombing by anarchists (where 38 people were killed); the Bath, Michigan, schoolhouse bombing in 1927 (where 45 people died); the Centennial Park Olympics bombing of 1996; and the Unabomber incidents.

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And even in the post-9/11 world, there have been at least a dozen incidents, says the CRS, tied to domestic terrorism. They mostly have been planned under the radar.

“Aware of the lines between constitutionally protected speech and criminality, domestic terrorists often rope themselves off from ideological (above-ground) elements that openly and often legally espouse similar beliefs. In essence, the practitioners who commit violent acts are distinct from the propagandists who theorize and craft worldviews that could be interpreted to support these acts,” the CRS says.

The FBI does have a domestic terrorism list, which features six people wanted for crimes dating back to the 1970s.

Aiding the investigators in Boston will be a large amount of digital evidence in the case, where thousands of people had mobile devices and cameras at the event. The FBI will also be able to ask for subpoenas to see cell tower records in the vicinity of the explosions.

Scott Bomboy is the editor-in-chief of the National Constitution Center.

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The statements at issue:

“No American prosecutor can imprison or execute someone except on the orders of a judge or jury. That fundamental principle applies no less to the suspected terrorists that the executive branch chooses to kill overseas. … A growing number of lawmakers and experts are beginning to recognize that some form of judicial review is necessary for these killings, usually by missiles fired from unmanned drones. …Creating a court to approve targeted killings is the first step Mr. Obama can take if he is serious about bringing national security policy back under the rule of law.”

– The New York Times, in an editorial on February 14, titled “A Court for Targeted Killings.”

“Some politicians, pundits and professors have suggested that ‘kill lists,’ drone strikes and targeting protocols be submitted for ‘independent judicial review’–essentially, that federal judges ought to be assigned the task of monitoring, mediating and approving the killer instincts of our government. This is a very bad idea.

– Retired U.S. District Judge James Robertson, of Washington, D.C., in an op-ed column in The Washington Post on February 17, titled “The wrong venue for drone review.”

“The drone court idea is a mistake. It is hard to think of something less suitable for a federal judge to rule on than the fast-moving and protean nature of targeting decisions. … Putting aside the serious constitutional implications of such a proposal, courts are simply not institutionally equipped to play such a role.”

– Neal K. Katyal, Washington attorney and former Acting U.S. Solicitor General, in an op-ed column in The New York Times on February 20, titled “Who Will Mind the Drones?”

We checked the Constitution, and…

From the time of the Constitutional Convention until now, the separation of powers lodged in the national government was understood to be essential to Americans’ liberty. James Madison went so far as to suggest, in Federalist No. 47, that “the accumulation of all powers … in the same hands … may justly be pronounced the very definition of tyranny.”

Of course, the three branches are not sealed off entirely from each other, but there are some core functions of each that cannot be shared. No matter how eagerly some policymakers want to put some legal restraints on the Obama administration’s policy of targeted killing by drones in waging war on terrorism, it is a near-certainty that the idea of handing to a civilian court the power to decide who could be killed, and when, would not withstand constitutional scrutiny.

It would turn judges into functioning adjuncts to the president’s “war cabinet,” and give them a veto power over a policy that, however audacious or questionable, is still a part of the process of waging war.

Courts can judge the constitutionality of some exercises of war powers, when someone claiming to have been wronged can bring a lawsuit, but that is judicial, not military, work. The Supreme Court, for example, overturned President Harry Truman’s seizure of the nation’s steel mills in 1952 in the midst of the Korean War, because the steel industry went to the judicial branch with a constitutional grievance.

And the Supreme Court, during the war on terrorism, ruled in 2008 that Guantanamo Bay detainees have a constitutional right to challenge in a regular civilian court their prolonged confinement–in a case filed by detainees through their American lawyers.

One of the reasons that the Supreme Court can exercise that kind of power is that it has remained detached from the waging of war, and it can exercise an independent judgment over the constitutional dimensions of war.

Some say that setting up a drone court would be no different from giving judges the power to approve search warrants, or the power to judge life-or-death issues raised in capital punishment cases. But those, again, are judicial functions, carried out in the context of genuine legal “cases or controversies,” in constitutional terms.

Imagine what would have happened in 1945, when the U.S. government chose to use atomic bombs as way to try to bring an end to the war against Japan, if the B-29 bomber, Enola Gay, could not be dispatched until an “atomic bomb court” signed off on the flight plans and the target. That would have been a constitutional anomaly, indeed.

The administration’s drone policy has produced a yearning among some, perhaps many, for some independent review of the use of the power to call for the execution of an individual, even an American citizen, when suspected of being a terrorist threat. In an internal administration “white paper” that was leaked to the media recently, the Justice Department strongly resisted any form of judicial review, and that was hardly surprising.

Under the Constitution, if there is to be some oversight of the use of drones, and especially of the choice of individuals to be killed by such methods, that has to be done by Congress–another branch that is politically accountable. Congress would have the option (and this was an alternative suggestion by attorney Neal Katyal in his column in The Times) of creating a quasi-independent review panel within the executive branch, to function rather like the “inspector generals” do within executive agencies.

It is sometimes too easy, when a problem of governance newly arises, to forget the Madisonian view that concentration of government power is constitutionally dangerous. If there is a problem of accountability and transparency with the current targeted killing program, the answer lies with the political, not the judicial, branches–that is, until the unlikely day that a targeted individual can get into court before a drone strikes.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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One of the first struggles will take place over whether to again raise the federal debt ceiling.

Just 10 years ago, the federal debt limit was capped at just over $6.4 trillion; by the end of last year, it was just under $16.4 trillion, and government spending had almost reached the limit, triggering a major political battle that ended when the Congress agreed to a temporary increase due to expire in May.

Although the Congress began setting statutory limits on borrowing for certain expenditures as long ago as 1917, during World War I, and on overall debt limits in 1939, debt ceiling increases have generally been approved routinely, with only sporadic and futile attempts to stop the process. Lately, however, the issue has gained new traction (meaning, more serious attempts to prevent the generally routine increases), and therein lies the constitutional dilemma.

The Constitution places authority over federal spending in the legislative branch as one of the principal means by which the people, through their representatives, maintain control over the scope of the federal government.

At the same time, Section 4 of the 14th Amendment states that “The validity of the public debt of the United States, authorized by law . . . shall not be questioned.”

What exactly does that mean?  The debt ceiling increases are Congress’ means of authorizing the executive branch to borrow money–from citizens, private entities, even foreign governments.

But because the validity of the debt is not to be questioned, has the Congress authorized the necessary borrowing by having approved the spending for which the money was borrowed?

If Congress and the president fail to reach an agreement (perhaps more spending cuts in exchange for the authorization to borrow more), will the president attempt to devise his own, possibly extraconstitutional means, to get around the problem?

Will the United States be required to default on its obligations despite the constitutional admonition that those debts be beyond question?

The constitutional conundrum extends to defense policy, too.

While the president is commander in chief of the armed forces, there are serious questions about his authority to keep Congress in the dark about the secretive means often employed in carrying out military activities, such as the recent use of drone strikes in countries with which the United States is not at war.

There are also constitutional difficulties in the decision by the executive to order the killing of American citizens who are suspected (by unspecified officials), but not charged with, the support of enemy forces.

Following repeated cases of indefinite detention and waterboarding of prisoners, there is increasing unrest in Congress about presidential actions in the efforts to combat and disrupt terrorist activities.

And then there’s the recurring question of potential federal interference with citizen rights to privacy–and just how much privacy the Constitution guarantees.

Critics of the abortion-limiting Roe v. Wade decision, including Supreme Court nominee Robert Bork, argued that there is no constitutional right to privacy, but the Ninth Amendment states that the actual enumeration of rights in the Constitution does not suggest that citizens do not retain their other rights.

If that includes a right to privacy, how much may the government authorize private companies to give information about a citizen’s activities to officials of government agencies?

Again, a question that is likely to be raised in the coming months as the Congress wrestles with the persistent tension between constitutionally guaranteed liberties and the government’s need to ensure national security.

In every session of Congress, one thing is clear: major battles over the direction of government inevitably call into play the language, and interpretations, of the Constitution. This year will be no different.

Mickey Edwards is the National Constitution Center-Penn Law visiting scholar for 2013. Edwards, a former congressman, is an author, lecturer, and vice president of the Aspen Institute. His most-recent book is The Parties Versus The People: How To Turn Republicans And Democrats Into Americans, published by Yale University Press.

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On May 13, 1846, the United States Congress declared war on Mexico after a request from President James Knox Polk. Then, on May 26, 1848, both sides ratified the peace treaty that ended the conflict.

In between those dates was enough drama to last for generations and the appearance of some familiar names that would dominate the Civil War, from Abraham Lincoln to General Robert E. Lee.

To save space and make a long story short, the conflict centered on the independent republic of Texas, which opted to join the United States after establishing its independence from Mexico a decade earlier.

Mexico considered that an act of war, and after border skirmishes, President Polk asked for the war declaration, since in the Constitution, only Congress can declare a war (as in Article I, Section 8).

In the fighting that followed, the mostly volunteer United States military secured control of Mexico after a series of battles, and the Treaty of Guadalupe Hidalgo was signed on February 2, 1848.

The pact set a border between Texas and Mexico, and ceded  California, Nevada, Utah, New Mexico, most of Arizona and Colorado, and parts of Oklahoma, Kansas, and Wyoming to the United States.

In today’s terms, those 10 states account for 136 electoral votes, more than half of the votes needed to secure a win in a presidential election.

It also cut the territorial size of Mexico in half.

One underlying issue behind the war was slavery, and how addition of states and territories would alter the balance between free and slave states.

The Missouri Compromise of 1850 attempted to appease Southern concerns about the shifting balances, but the die was cast as the nation headed toward the Civil War in 1861.

The Treaty of Guadalupe Hidalgo also set in motion a whole range of issues for Mexican-Americans and Native Americans.

During the conflict, one of the vocal objectors in the Whip party was Rep. Abraham Lincoln from Illinois. Key players on the political side included Jefferson Davis and Stephen Douglas.

On the battlefield, Robert E. Lee, Ulysses S. Grant and Stonewall Jackson were among the dozens of commanders who would later emerge in the Civil War.

Scott Bomboy is the editor-in-chief of Constitution Daily.

News headlines, politicians, and hot-button issues come and go, but one 225-year-old document continues to emerge in our conversations about our nation’s most important questions and challenges: the Constitution. The Constitution is a big buzzword for Election 2012, and more than ever, citizens, pundits, and politicians are turning to the Constitution for answers–and sometimes ammunition, as they try to prove the Constitution is on

Here’s a brief look at the top constitutional news stories and commentaries from this week.

1. The Constitution and… Super Tuesday

The GOP primary season reached its height on Super Tuesday, with Mitt Romney winning Ohio, Massachusetts, Idaho, Vermont, Alaska, and Virginia; Rick Santorum taking Oklahoma, Tennessee, and North Dakota; and Newt Gingrich winning Georgia. Check out this post from Constitution Daily to understand Super Tuesday’s history and relevance.

2. The Constitution and… Santorum

http://www.youtube.com/watch?v=WoYsS8QSsoA

Along the campaign trail, Rick Santorum has routinely reminded voters that he carries a copy of the Constitution in his pocket. He has also invoked the image of the Founding Fathers in defense of his views. In a recent speech, he declared:

“If you actually go back and look up the dictionary definition of happiness at the time of our founders … happiness was not going out and doing whatever you want to do to make yourself feel good. Happiness was not doing what you wanted to do but doing what you ought to do, because that’s what leads to true happiness.”

PolitiFact took Santorum at his word and looked up the dictionary definition, in dictionaries from the Founders’ time. They also spoke with several scholars, including Richard Beeman, a member of the board of trustees at the National Constitution Center. The conclusion: “As it turns out, Santorum was right in some ways — and very wrong in others.” Read the full analysis here.

3. The Constitution and… Targeted Terrorists

Attorney General Eric Holder defended the constitutionality of the Obama administration’s position on targeting terrorists. In a speech to the Northwestern University School of Law, Holder argued that the U.S. government does not need judicial oversight in its efforts to target and kill terrorist operatives abroad, even when those individuals are American citizens. Holder stated:

“Some have argued that the president is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of Al Qaeda or associated forces. This is simply not accurate. Due process and judicial process are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, it does not guarantee judicial process.”

Constitutional Must-reads

“Rick Santorum isn’t crazy” – Stanley Fish, New York Times

“Egypt’s constitution: How 5 stakeholders would shape the document” – Kristen Chick, Christian Science Monitor

“Mandates and the Constitution: The government does in fact force you to buy vegetables” – M.S., The Economist

Holly Munson is Programs Coordinator at the National Constitution Center.