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Thursday, April 17, 2014

Democracy In Our Republic

Just a couple thoughtful posts on subverting democracy at home:

Adding to that last one: I still think the NPV is unwise.


PS--Forgot that we're not a democracy, but an oligarchy.  Which shows that voting isn't the only fundamental component in a free society...

April 17, 2014 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Rancher? I...Can't...Stop!


Bundy doesn’t recognize the federal government. Speaking to conservative radio host Dana Loesch last week, he said he believes in a “sovereign state of Nevada” and abides by all state laws, but, “I don’t recognize the United States government as even existing.”

You don't recognize the US government?  Then you do not abide by state law.  The Nevada constitution:

[T]he Members of this Convention, elected by the Authority of the aforesaid enabling Act of Congress, Assembled in Carson City the Capital of said Territory of Nevada, and immediately subsequent to its Organization, do adopt, on behalf of the people of said Territory the Constitution of the United States.
In obedience to the requirements of an act of the Congress of the United States, approved March twenty-first, A.D. eighteen hundred and sixty-four, to enable the people of Nevada to form a constitution and state government, this convention, elected and convened in obedience to said enabling act, do ordain as follows, and this ordinance shall be irrevocable, without the consent of the United States and the people of the State of Nevada.
That the people inhabiting said territory do agree and declare, that they forever disclaim all right and title to the unappropriated public lands lying within said territory, and that the same shall be and remain at the sole and entire disposition of the United States.
[T]he Paramount Allegiance of every citizen is due to the Federal Government in the exercise of all its Constitutional powers as the same have been or may be defined by the Supreme Court of the United States; and no power exists in the people of this or any other State of the Federal Union to dissolve their connection therewith or perform any act tending to impair[,] subvert, or resist the Supreme Authority of the government of the United States. The Constitution of the United States confers full power on the Federal Government to maintain and Perpetuate its [existence]...

He's a fucking idiot, and a seditious anarchist bully, to boot.


April 17, 2014 in And Fuck..., Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Filibuster? I Hardly Know 'er!


An appeals court has rejected a long-shot lawsuit seeking to invalidate the Senate's filibuster rule as a violation of the Constitution's implicit principle of governance by the majority.

A three-judge panel of Republican appointees ruled unanimously Tuesday that the challengers -- led by the transparency group Common Cause -- lacked standing to sue, but didn't weigh in on the merits. They said the listed defendant, Vice President Joe Biden (in his capacity as president of the Senate), could not be held liable for any injuries suffered by the plaintiffs.
In his ruling, Randolph identified a major problem with regard to standing: the onus for the cloture rule is on the Senate, and senators cannot be held liable for filibustering, due to the Constitution's Speech and Debate Clause.

"If 'we assume for purposes of standing that [Common Cause] will ultimately receive the relief sought' ... it will be the Senate that has to conduct its legislative business according to a court-ordered change in its rule. Yet the complaint named neither the Senate nor a Senator. It is apparent why," the judge wrote. "The Constitution’s Speech or Debate Clause provides that 'for any Speech or Debate in either House,' Senators and Representatives 'shall not be questioned in any other Place.' The Clause confers immunity for any act that falls 'within the sphere of legitimate legislative activity.'"

Stephen Spaulding, policy counsel for Common Cause, took issue with the ruling.

"Obviously, we're disappointed by today’s DC Circuit decision. Our attorneys are reviewing the court’s opinion before deciding on a future course of action," he said in a statement Tuesday. "It's important to note that the court’s decision was strictly procedural; the judges did not rule on the merits of our claim that the filibuster rule and its 60 vote requirement for Senate action is unconstitutional."

Um...yeah, "strictly procedural" is a fairly important component in the process.  That's a silly dismissal of the ruling.  And you're wrong on the merits, too.


April 17, 2014 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Lochner? I Hardly Know 'er!

Activist judges used the 14th Amendment to toss labor laws.  Holmes dissented:

It is settled by various decisions of this court that state constitutions and state laws may regulate life in many ways which we as legislators might think as injudicious, or if you like as tyrannical, as this, and which, equally with this, interfere with the liberty to contract. Sunday laws and usury laws are ancient examples. A more modern one is the prohibition of lotteries. The liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same, which has been a shibboleth for some well-known writers, is interfered with by school laws, by the Postoffice, by every state or municipal institution which takes his money for purposes thought desirable, whether he likes it or not. The 14th Amendment does not enact Mr. Herbert Spencer's Social Statics. The other day we sustained the Massachusetts vaccination law. Jacobson v. Massachusetts...

United States and state statutes and decisions cutting down the liberty to contract by way of combination are familiar to this court...Some of these laws embody convictions or prejudices which judges are likely to share. Some may not. But a Constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the state or of laissez faire.

Naturally, Republicans wish Lochner were still the regime today.  Because government isn't instituted to help protect a variety of liberties, only to stay out of the way as the freedom to exploit others runs amok.  Damn those Reconstruction Amendments!


April 17, 2014 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Monday, April 14, 2014

More State Suicide

Think Progress:

Earlier this month, the Wisconsin Republican Party’s Resolutions Committee voted to endorse a proposal expressing the party’s support for “legislation that upholds Wisconsin’s right, under extreme circumstances, to secede...” 

Though there is no shortage of irony to the Party of Lincoln now morphing into the Party of Secession, this Wisconsin resolution is part of a larger pattern of conservatives questioning the legitimacy of the United States as a nation. Last week, several major conservative media figures, including Fox News’ Sean Hannity, promoted the cause of Cliven Bundy, a Nevada rancher who says that “I don’t recognize [the] United States Government as even existing.” On Saturday, federal officials announced that they would stop trying to enforce a court order against Bundy, at least for now, because of the potential for violence that resulted after armed right-wing militia members rallied to Bundy’s cause.

I guess they have the right to commit suicide and thus lose all their rights...


April 14, 2014 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Friday, April 11, 2014

Imagine There Was No Louisiana Purchase

Ah, so some "pull yourself up by your bootstraps" rancher now has armed militias defending him from paying grazing fees.  These strict constructionists claim the Constitution doesn't allow the Federal gummint to own lands.  It's fairly clear they are in error.  

What they're rally saying, of course, is that there is no United States beyond the 13 original colonies.  Because otherwise the nation would never have been able to acquire land to then dispose of in the form of territories and states.

Anyway, have fun stormin' da castle!


April 11, 2014 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Stevens, Speech And Skeeters

Lemieux looks at the amendment proposals in Justice Stevens' new book:

In light of last week's decision in McCutcheon v. FEC, it doesn't require elaborate argument to explain why Stevens's proposed amendment stating that "Neither the First Amendment nor any other provision of this Constitution shall be construed to prohibit the Congress or any state from imposing reasonable limits on the amount of money that candidates for public office, or their supporters, may spend in election campaigns" would be salutary (although I suspect Setevens would now amend his own amendment to include reasonable limits on campaign donations.) As his amendment reflects, campaign spending is a form of speech protected by the First Amendment, but this does not mean that the right is absolute: "the [state] interest in preventing wealth from becoming the deciding factor in contested elections is valid and significant." The Supreme Court ignoring this interest starting with Buckely v. Valeo in 1976 has helped to produce a polity in which the interests of the wealthy are increasingly dominant.

No right is absolute, and the First Amendment already contains some explicitly moderate limits as does each item in the Bill of Rights.  This minor clarification might be better than any of the corporate personhood amendments proposed to overturn Citizens United, et al.  Don't need a rocket launcher to kill a mosquito.


April 11, 2014 in Constitution, Schmonstitution | Permalink | Comments (1) | TrackBack

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To Promote General Conflation And Confusion

[T]o secure these rights, Governments are instituted among Men...

 - The Bible, Preamble

In that Slate article linked below, Jamelle Bouie notes that among constitutional conservatives, the Declaration of Independence "is conflated with the founding document and given near-divine status."  Indeed, Rush Limbaugh once declared:

We believe that the preamble to the Constitution contains an inarguable truth that we are all endowed by our creator with certain inalienable rights, among them life. [Applause] Liberty, Freedom. [Applause] And the pursuit of happiness. [Applause]

Not only didn't get the right document, couldn't even get the rights right.  Anyway, it's of interest that these guys always forget the part about securing those 3 or 4 or whatever rights by establishing government.  Which, of course, the Declaration does not actually do.

It's also interesting to me that Rush conflated the Declaration's broad sweep of general rights with the Constitution's preamble.  Because that's essentially what the Declaration is, something that lays out reason and intent but doesn't institute a specific frame of government with powers and rights spelled out.  And as SCOTUS ruled in Jacobson v Mass (1905):

Although that preamble indicates the general purposes for which the people ordained and established the Constitution, it has never been regarded as the source of any substantive power conferred on the government of the United States, or on any of its departments. Such powers embrace only those expressly granted in the body of the Constitution, and such as may be implied from those so granted.

The meat of the Constitution is the stuff that people haggled over, representing compromises over exactly how to implement a government dedicated to protecting individual rights, including when they come into conflict.  The Preamble lays down basic principles that motivated the Framers to create a new constitution which, oddly enough, also involved meeting the general needs of a diverse society made up of individuals.

And that brings me to another thing that so-called "constitutional conservatives" tend to miss.  I recall once observing something about the general welfare and a dude dismissed it as just in the preamble, which has no authority.  Strange that to "provide for the...general Welfare" is explicitly mentioned in Article I, Section 8, right there at the top of the list of enumerated powers.  So important it's mentioned along with the common defence twice, first as a significant purpose of We the People to ordain the Constitution, second as a specific thing Congress can (and arguably should) do stuff about.

So, we have a government that protects individual rights in the context of our common society.  Oddly enough, Jacobson was essentially the first major court case regarding public health.  Yup, it upheld MA's law requiring vaccination against smallpox.  You know, protecting my right to life from your ignorance.

People miss a lot when they don't understand all the piece parts of our history and government, and how they work in concert.  That can have some serious consequences, which is another reason I like to push back on stupid memes and bad quotations.


April 11, 2014 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Wednesday, April 09, 2014

The Necessary And Proper Clause Is One Louder

HR 4432 ain't up on Thomas yet, but I really look forward to the Constitutional Authority Statement when it's available.  It doesn't take much imagination to predict what it'll say, but I admit to finding those things to be damned entertaining.

The obvious clause is Commerce.  I'm also hoping for Necessary and Proper.  Then Roberts will cite Scalia's concurrence in Gonzales v Raich (which is awesome because it relies in part on McCulloch!).  This'll be more fun than geeks were meant to have.


April 9, 2014 in Constitution, Schmonstitution | Permalink | Comments (1) | TrackBack

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Action Is More Controversial Than Inaction


There’s an interesting op-ed up at WaPo today from Michigan State political scientist Matt Grossman arguing that conservatives are only “obstructionists” insofar as “most policies under debate are liberal,” not just now but for decades.

Grossman is implicitly illustrating a point about “constitutional conservatism” that I’ve often tried to make: If the divinely inspired Founders pretty much figured out the ideal governing model for all time (except for that troublesome bit about slavery), then all political controversy involving the limitation of absolute property rights and states’ rights is illegitimate and should be obstructed. This means that strictly speaking the “constitutional conservative” vision is perfectly compatible with an authoritarian system in which “illegitimate” policy options are off the table.

Sounds about right.  Any deviation from the status quo (and I mean that of 1789, not contemporary) is suspect and controversial and must be obstructed and/or reversed.  I'll note that's not just limited to liberal policy or statute, but includes amendments to the Constitution--witness the attempts to delegitimize the 14th, 16th, 17th and even the 19th.


April 9, 2014 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Tuesday, April 08, 2014

Pro Life Evolution

Haven't read the Atlantic piece yet, but I will, and I'm interested in the book:

A Monday piece in The Atlantic points to the death penalty...and how [Former Supreme Court Justice John Paul] Stevens' new book -- “Six Amendments: How and Why We Should Change the Constitution" -- shines a bright light on his policy evolution arriving at too late a juncture.

In the book, Stevens argues for adding a simple phrase to the Eighth Amendment, which would modify it to say: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments such as the death penalty inflicted.

As Atlantic Contributing Editor Andrew Cohen explains, Stevens' suggestion comes with "an apology of sorts for all that he got wrong," but he could also do something further:

It took Justice Stevens over 30 years—from his ascension to the Supreme Court in 1975 to 2008—to reach this point. And it has taken him another six years, from 2008 to 2014, to fully become the advocate for reform that he never was on the Court. 

Stevens "came out" in 2008, which naturally incurred the wrath of Scalia, who is the finest arbiter of Original Intent we have ever had, which is why he never, ever changes his mind.

Anyway, I am of course absolutely against the death penalty in all cases, but it's pretty clear to me that the punishment is constitutional.  And dog help me, I actually concur with Scalia (and Bork!) of all people.  

More palatable to me, however, is Blackmun's position:

I yield to no one in the depth of my distaste, antipathy, and, indeed, abhorrence, for the death penalty, with all its aspects of physical distress and fear and of moral judgment exercised by finite minds. That distaste is buttressed by a belief that capital punishment serves no useful purpose that can be demonstrated. For me, it violates childhood's training and life's experiences, and is not compatible with the philosophical convictions I have been able to develop. It is antagonistic to any sense of "reverence for life." Were I a legislator, I would vote against the death penalty...

Our task here, as must so frequently be emphasized and re-emphasized, is to pass upon the constitutionality of legislation that has been enacted and that is challenged. This is the sole task for judges. We should not allow our personal preferences as to the wisdom of legislative and congressional action, or our distaste for such action, to guide our judicial decision in cases such as these. The temptations to cross that policy line are very great.

While he agreed with me in terms of policy, he still "accepted and assumed [capital punishment is] not unconstitutional per se under the Eighth Amendment or the Fourteenth Amendment."  And the SCOTUS as a whole has observed since the 70s that even with this punishment being allowed under the Constitution, there are still limits as to its applicability--it is cruel and unusual to execute mentally-challenged defendents, or juveniles, etc.

I don't like it, and am glad there are people trying to change our system so the state doesn't retain a monopoly on killing, but I cannot argue that the death penalty itself is unconstitutional or that the SCOTUS has failed to do its duty just because it runs counter to my sense of morality.   Like Blackmun, I thankfully live in a state that does not use capital punishment and hasn't executed a person for several decades.  Vermont also happens to protect women's reproductive freedom, making it truly pro-life in my estimation.

And we can make the US Constitution more pro-life by using Stevens' suggested edit.  Of course, some wiseacre will probably try to insert abortion in there, too...


April 8, 2014 in Constitution, Schmonstitution | Permalink | Comments (1) | TrackBack

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Speaking Of Conspiracies

I think the 17th Amendment is just grand, and not just because it's a perennial target for repeal by folks who claim a deep love for federalism.  I bring it up because:

Connecticut had the distinction of being the requisite thirty-sixth state to ratify the Seventeenth Amendment, thereby making it a part of the Constitution. The governor, Simeon K. Baldwin, noted in his inaugural address on January 8, 1913, the importance of ratifying the proposed amendment.

Although the original resolution calling for ratification was adversely reported from the House committee on federal relations on March 27, the House was able to adopt a substitute resolution on April 8 by a vote of 151 to 77, and, five minutes later, the Senate concurred by a voice vote." While Connecticut was the last requisite state to vote ratification and did so on April 8, the Seventeenth Amendment did not become a part of the fundamental law of the land until May 31, 1913, because of the failure of the proper officials in a number of the states promptly to notify the State Department of the favorable action of their state legislatures.

Of course you're going to have certain inefficiencies in such a clunky mechanism, so it's not suprising that there were delays officially amending the Constitution because of failures on the part of various state officials (see Mississippi and the 13th Amendment).  What's interesting about that in this case is there appear to be some discrepancies between what various records say was the ratification date.

Okay, that might not seem interesting at first blush, but such things fuel conspiracy theories.  I mean, we've got some folks claiming there are "missing" amendments.  Others who assert the 14th Amendment was never ratified (I've covered a couple favorite arguments).  And let's not forget the 16th Amendment!

Even the 17th has its nutjob haters.  For example:

The amendment was declared ratified on April 8, 1913

According to the official documents from the National Archives, Arkansas ratified April 14, 1913; Connecticut ratified April 15, 1913; Wisconsin ratified May 9, 1913.

How is it the ratification process could be completed April 8, 1913, when three states didn't vote until after that date?

All it takes a little bit of misreading and misunderstanding to use such things as evidence of anything nefarious or otherwise faulty.  

First of all, the amendment was declared ratified on May 31, not April 8.  You certainly can read contemporary accounts of what transpired back then which mark April 8 as the date when the 36th state approved, but it's not like the White House announced anything official on Twitter that day.  

But what of this claim that Connecticut didn't actually ratify until April 15?  I've found both a Connecticut government source and a Federal document which suggest that is the case.  Yet the GPO indicates April 8 is correct.

So who's right?  Lemme just observe that the GPO also shows Pennsylvania as having ratified on April 2.  Yet that same Congressional document above says April 15.  A series of typos?  A deliberate attempt to conceal the true dates so we don't see the process as illegitimate?

I suspect it has something to do with delays in reporting to the US Secretary of State.  The history excerpted above seems to bolster that idea, as does Vermont's experience ratifying the Constitution itself.  Our Convention did its work on January 10, 1791, the Secretary transmitted results on January 21, and Congress received the necessary paperwork on February 9.  So on what date did we ratify?

Hardly something to hang your conspiracy on.  But these are the same people who see smudge marks, typos, etc, as indicative of something other than simple errors.  So, you know, whatever.


April 8, 2014 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Monday, April 07, 2014

No Writ For You!


The Supreme Court refused on Monday to be drawn into the spreading controversy over the right of business firms to refuse to serve gay and lesbian customers, turning aside the appeal of a New Mexico photography studio and its owners.  The Court made no comment as it denied review of Elane Photography v. Willock, involving a refusal to photograph a lesbian couple’s wedding-style ceremony.

In another significant denial, the Court left intact a lower court ruling that upheld the federal ban on direct contributions by corporations to candidates in federal elections.  The case ofIowa Right to Life v. Tooker had given the Justices the opportunity to decide whether to extend the Court’s ruling last week striking down one limit on contributions to the corporate ban.  The denial appeared to suggest that the Justices either found that the new case did not present the issue adequately, or they were not yet ready to consider extending the ruling in McCutcheon v. Federal Election Commission to other donation restrictions.

Hey, a couple minor victories.  I can be happy with this and some comfort food.


April 7, 2014 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Give The Blue Slip A Pink Slip, Pat

It's very sweet that Pat thinks the Senate can still operate based on age-old tradition and honor:

Senate Judiciary Chairman Patrick Leahy has come down hard on Republicans for delaying confirmation of qualified nominees to the federal bench. Yet the Vermont Democrat has preserved an arcane Senate tradition that critics — including White House officials — say allows Republicans to do just that.

The long-standing “blue slip” custom, used in various ways by Senate Judiciary Committee chairmen since the early 1900s, calls for home-state senators to sign off on judicial nominees on a blue sheet of paper before they can advance in the nomination process. Leahy says a blue slip “reflects the ‘advice’ prong of the Senate’s role,” and when senators withhold a slip, he stops the nominee from having a hearing.

President Barack Obama agrees that home-state senators should be consulted on judicial nominations, said Eric Schultz, White House deputy press secretary.
The power to abandon or alter the blue-slip custom rests with the committee chairman. Sen. Orrin Hatch, R-Utah, took a different tack when he chaired the committee from 2003-05, allowing President George W. Bush’s nominees to move forward if the administration had consulted with the home-state senators.

Leahy has said he would re-evaluate the tradition if he believes the blue-slip process is being abused. But his current policy ensures home-state senators can give the administration their recommendations, as he recently did after leading a nonpartisan commission that screened candidates for an upcoming vacancy on Vermont’s U.S. District Court, his spokesman said. Leahy said the process also helps the nominees ultimately get confirmed.

Odd that the Constitution says the president shall appoint with "advice and consent" of the (majority of the) Senate, not "with permission" of a single Senator.  Yeah, yeah, the chamber can make its own rules, I'm not arguing against that.

It's just that if you want the damned thing to work, you have to consider the principles that are codified when implementing your rules.  So, Pat, we see the rules can and have been changed, and it's really up to you to facilitate proper consultation and confirmation of nominees.

The other side is the one destroying comity--because they are obstructionists and also fear the consequences of elections that would allow Obama to make a lifetime impact on Judiciary--so why unilaterally disarm?  I love our senior senator.  It's great that little Vermont has so much clout thanks to his long decades of service.  But he's also an argument against such longevity, as somebody not willing to change when facts on the ground demand it.  


April 7, 2014 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Saturday, April 05, 2014

Returned With Objections

April 5, 1792:

Gentlemen of the House of Representatives

I have maturely considered the Act passed by the two Houses, intitled, "An Act for an apportionment of Representatives among the several States according to the first enumeration," and I return it to your House, wherein it originated, with the following objections.

First—The Constitution has prescribed that representatives shall be apportioned among the several States according to their respective numbers: and there is no one proportion or divisor which, applied to the respective numbers of the States will yield the number and allotment of representatives proposed by the Bill.

Second—The Constitution has also provided that the number of Representatives shall not exceed one for every thirty thousand; which restriction is, by the context, and by fair and obvious construction, to be applied to the seperate and respective numbers of the States: and the bill has allotted to eight of the States, more than one for thirty thousand.

George Washington.

That was 50% of Washington's total vetoes, BTW, neither of which were overridden.  Obama's currently got the same record.

Anyway, the apportionment was to be the first post-Census, so clearly a lot was riding on it.  There was quite a split amongst the president's advisors (detailed opinions here, summary notes by Washington's secretary here).  Jefferson recorded:

The President called on me before breakfast first introduced some other matters, then fell on the representn bill which he had now in his possn for the 10th day. I had before given him my opn in writing that the method of apportionmt was contrary to the constn. He agreed that it was contrary to the common understanding of that instrument, to what was understood at the time by the makers of it: that yet it would bear the constn which the bill put, he observed that the vote for against the bill was perfectly geographical, a northern agt a southern vote, he feared he should be thought to be taking side with a southern party. I admitted this motive of delicacy, but that it should not induce him to do wrong: urged the dangers to which the scramble for the fractionary members would always lead. He here expressed his fear that there would ere long, be a separation of the union; that the public mind seemed dissatisfied tending to this.

In the end, not only did Jefferson's ideas sway Washington, but his proposed formula became the standard apportionment for five decades (here's how we do it today).  Interestingly enough, the previous year Jefferson figured in another veto discussion, as former Congressman Abraham Lincoln noted a few score years later:

When the bill chartering the first bank of the United States passed Congress, it's constitutionality was questioned. Mr. Madison, then in the House of Representatives, as well as others, had opposed it on that ground. Gen: Washington, as President, was called on to approve or reject it. He sought and obtained on the constitutional question the separate written opinions of Jefferson, Hamilton, and Edmund Randolph; they then being respectively Secretary of State, Secretary of the Treasury, and Attorney General. Hamilton'sopinion was for the power; while Randolph's and Jefferson's were both against it. Mr. Jefferson, after giving his opinion decidedly against the constitutionality of that bill, closes his letter with the paragraph which I now read:

It must be admitted, however, that, unless the President's mind, on a view of every thing, which is urged for and against this bill, is tollerably clear that it is unauthorized by the constitution; if the pro and the con hang so even as to ballance his judgment, a just respect for the wisdom of the legislature, would naturally decide the ballance in favor of their opinion: it is chiefly for cases, where they are clearly misled by error, ambition, or interest, that the constitution has placed a check in the negative of the President.

February 15- 1791- Thomas Jefferson- 

So Jefferson at that point was once again opposed to the controversial measure in question, but advised that the president defer to Congress if he wasn't absolutely sure on the constitutionality.  In this case, though, it would seem there was no threat to Southern power (Jeffersonian distrust of bankers notwithstanding), so maybe that compelled him to be more conciliatory.  

Perhaps I'm being unfair and there were no such calculations in Jefferson's mind.  Yet given the "slave bonus" that arguably helped elect him as the first "Negro President" and ultimately set the stage for the dissolution that Washington feared and Lincoln presided over, I can't help but wonder...


April 5, 2014 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Friday, April 04, 2014

Speaking Of H8 And Free Debate

Indeed, people need to understand the First Amendment.  BooMan:

 why would Andrew Sullivan write the following?

The guy who had the gall to express his First Amendment rights and favor Prop 8 in California by donating $1,000 has just been scalped by some gay activists. After an OKCupid decision to boycott Mozilla, the recently appointed Brendan Eich just resigned under pressure.

You don't "express" your First Amendment rights. You have them. If you want to donate to an anti-gay marriage cause, that's your right. And if people want to call for your head, that's their right.

The bottom line is that there is price to be paid for CEO's who want to delve into hot button political issues. They will alienate either the right or the left, and that can lead to bad press, boycotts, and damaged revenues. Why can't CEO's say whatever they want and donate to whatever they want without fear of bad consequences?

Because people care about the values of the companies they do business with. And it's their First Amendment right to talk about it.

The Constitution doesn't codify a freedom from criticism.  There is no right to one's exercising unfettered free speech without other people also expressing their own, contrary thoughts.  Liberty doesn't require everybody to accept your bigoted views.

You have the absolute right to your own conscience and even sharing it publicly.  And I have the absolute right to disagree.  In public, even!

And in the much-beloved Free Market--that of Products and that of Ideas--people might exercise their First Amendment right to free association and determine that your free speech makes them not want to engage in commerce with you or the corporation you head.  That's rather different than the State trying to stop organizations from doing business (see NAACP v Alabama).

Everybody--particularly Sullivan and the Kochs--please make a note of it.


April 4, 2014 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Thursday, April 03, 2014

Everybody Loves A Convention


The Alabama House of Representatives Wednesday approved a resolution calling for a convention to put a same-sex marriage ban in the U.S. Constitution.

They are aware if there's a convention, all sorts of things can be proposed, right?


April 3, 2014 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Reports Of Democracy's Death Have Been Greatly Exaggerated

Loomis is right:

The problem today is that progressives believe the ballot box is where change is made, when in fact it is where change is consolidated. Organize on the ground to demand the change desired and the money can be overcome. But if you think a social movement is buying ad time on television or the right kind of media messaging, that’s a game that progressives are never going to win.

I've seen the usual breathless hyperbole about how democracy died and SCOTUS is fascist and blahblahblah.  It's a shitty ruling, but man, it's part of our republican structure and we still have democratic processes, both of which have always been imperfect.  As I said a couple years ago after the activist Court tossed out Montana's century-old anti-corruption statute:

I'm not one to say that democracy died in WI or today in DC, but the government we have, including the Supreme Court, does appear to be an imposter.  That just means our work for justice is significantly harder, not impossible.  

I suspect people were pretty damned discouraged before the Progressive Era and New Deal, when the fights for women's suffrage, child labor laws, etc, were not going well against the forces of greed and corruption.  They didn't lay down and give up, and neither should we.

First, a note about our "imposter" government.  I was referring to something James Madison wrote in the National Gazette a few months after the Bill of Rights was ratified:

A government operating by corrupt influence; substituting the motive of private interest in place of public duty; converting its pecuniary dispensations into bounties to favorites or bribes to opponents; accommodating its measures to the avidity of a part of the nation instead of the benefit of the whole: in a word, enlisting an army of interested partisans, whose tongues, whose pens, whose intrigues, and whose active combinations, by supplying the terror of the sword, may support a real domination of the few under an apparent liberty of the many. Such a government, wherever to be found, is an impostor.

Anyway, our goverment is indeed suboptimal right now for a lot of reasons.  Good on everybody for noticing.

Life is full of setbacks, and most of them are not fatal.  So yeah, bitch a little online, try spreading the word, have some rallies to make our numerous voices heard over the din of cash registers givin' out wings and corrupting politicians, etc.  Then what?  I won't bother rehashing my various suggestions over the years, but really, your hands can't be put to good use if you're always wringing them.


April 3, 2014 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Wednesday, April 02, 2014


In an earlier meta post I mentioned a paper by my friend Zephyr Teachout about corruption in American politics (she's got a book coming out on the topic, too).  She conducts a thought experiment applying her "anti-corruption principle":

Imagine that...the Supreme Court gets a case involving the new “Open the Books and Shut the Revolving Door” statute. The legislation makes it illegal for a lobbyist ever to run for Congress or work for a member of Congress, and vice versa, and requires all lobbyists to file weekly reports on their activities. A former member of Congress who has recently started working for Patton Boggs brings a First Amendment challenge against both provisions.

A court recognizing the anti-corruption principle would start from a specific set of grounding ideas. Instead of beginning with Free Speech, a political process case would begin with an affirmation that “corruption is one of the greatest threats to our democracy, and the founding fathers believed it was essential for each branch to use whatever tools at its disposal to limit corruption in the other branches.” History would lead the parade into the modern concern— Madison, Hamilton, and the Convention debates would be heavily cited. If one of the provisions at issue was one in which corruption was debated, those debates would be trotted out. If it was not, those debates would be trotted out in order to better understand the provision at issue.

Second, the Court would consider, in examining the provisions, what impact this might have on the civic incentives of prior members of Congress. While in modern courts the citizen is largely victim, or has only responsibilities in the arena of speech, the citizen in a court that gave corruption its due would have her own responsibility to be honest in interactions with the government. Third, the discussion of corruption would start with a discussion of the duty of all citizens not to take advantage of their public privileges. The citizen in these cases would not be the victim, but the accused—and the Court would consider the particular provision in terms of its impact on the citizen. The moral problem of corruption would be discussed.

Fourth, the Court would have to differentiate its constitutional corruption from criminal law corruption. It would discuss the subtle ways that money can corrupt the public servant or the citizen considering a petition to the government. It would explore the fragile strength of our representatives and give weight to those who would want to protect them. It would look at the incentives not only of those who are tempted but those who are tempting—like policymakers who realize that the pushers may be as big a problem as the junkies, and the Court would look at ways to diminish the corrupt spirit of elites who would use our government solely as ends to increase their wealth.

A case recognizing the anti-corruption principle would also note the problems with past decisions, even those that are sympathetic. For example, it would argue that unequal access arguments, while important, miss the larger fact of corruption. The access arguments largely assume, if they rest too heavily on equality concerns, that the representative (or clerk or agency employee) being accessed remains the same before and after these encounters. The information in the representative’s head is different, but the structure of the brain remains the same. What is missing in the access arguments is that these en- counters change the shape of the spirit, not just its content. Armed with these understandings, the Court would then consider whether these concerns—these mortal threats—justified Congress’s efforts to shape our polity in different ways.

The anti-corruption principle should work very much the way the separation-of-powers principle “works” inside other, similar cases. It is a freestanding principle, worthy of weighing directly against other freestanding principles...

Wait, you mean there's lots of different stuff in our political process and some stuff conflicts with other stuff and that's why we have laws and courts and stuff?  And sometimes stuff with a higher priority for the greater good might slightly impinge on the stuff that a few rich people like so that we might better protect the Republic?

Well anyway, she really does a great job surveying the history of corruption concerns and checks back to Philadelphia, and I think supports her arguments rather well.  Good enough for a Justice to cite in a dissent!  Wish more on SCOTUS would read it...


April 2, 2014 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Votes Are Worth Less Than 3/5s Of A Dollar


As Ari Berman of The Nation points out, there is a particularly cruel irony about the Roberts Court's attack on campaign finance reform in cases like McCutcheonand Citizens United. On the one hand, the Court is making it nearly impossible for Congress or state legislatures to reduce the influence of money in politics, holding restrictions unconstitutional even in cases where they don't suppress speech at all. On the other hand, the Court has been extremely hostile to the voting rights. On the one hand, they've upheld vote suppression at the state level even when these restrictions are directed at concededly non-existent problems. On the other hand, they've eviscerated the Voting Rights Act with an opinion that finds no discernible basis in the text of the Constitution or the Court's precedents. To the Roberts Court, money should talk as loudly as possible while ordinary voters can take a walk.

Well, the Originalists should be very pleased, what with our returning to an era when the rich could have undue influence over government whilst restricting the franchise.


April 2, 2014 in Constitution, Schmonstitution | Permalink | Comments (3) | TrackBack