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Monday, January 26, 2015

Assisted State Suicide

The Nation tackles disenfranchisement:

[A]n important tool remains unused, all but forgotten in a dark and dusty corner of the shed. Dating back to Reconstruction, it has the great merit of being already enshrined in the Constitution. According to Section 2 of the Fourteenth Amendment, any state that denies or abridges the right to vote for any reason must have its congressional representation reduced in proportion to the number of citizens it disenfranchises. Arguably the most radical clause in the Constitution, it was designed to remake the government and the country. It has never been enforced.
Last September, the Government Accountability Office released a report showing that in Kansas and Tennessee, both of which passed voter-ID laws, voter turnout in the 2012 elections declined 2 to 3 percentage points more than in comparable states that did not introduce such restrictions. The report demonstrated that turnout was disproportionately lower among African-Americans, newly registered voters, and those between the ages of 18 and 23.

Now imagine if Section 2 were finally enforced. Kansas sends only four representatives to the House, so disenfranchisement of 25 percent of its voting-age citizens would be required for it to lose one. Tennessee has nine, bringing the percentage down to 11. North Carolina has thirteen representatives; 7.7 percent of voters would need to be disenfranchised. Ohio, with sixteen members, would need 6.25 percent; Florida, with twenty-seven members, 3.7 percent—still too high. But Texas has thirty-six representatives. Only 2.8 percent of Texans would need to be disenfranchised for the Lone Star State to lose a member of its congressional delegation.
“Big deal,” the skeptics may scoff, “one measly representative.” Enforcing Section 2 would neither end the latest infringements on voting rights nor immediately reverse the balance of power in the House. But it would contextualize voter-ID laws and related policies within a broader project of voter suppression that’s as old as the restored Union. The provision was designed, as one of its supporters argued, for a future in which Congress refuses to enforce voters rights, so that disenfranchising states, in the interim, would “not have the benefit of their wrongdoing.” A gift from the Radical Republicans of 1866 to the radical democrats of today, Section 2 should figure prominently in the 2016 platform of any candidate or party committed to protecting the right to vote.

I guess this is clever so far as it goes.  

But, um...enforcement would require legislation per Section 5, which oddly enough has essentially the same language as Amendment XV's Section 2.  You know, the part that John Roberts found oddly less than compelling a reason to uphold the VRA.  So I'm not sure why the GOP Congress or SCOTUS would do this.

As for making this a platform plank, I just don't see this even as a useful rhetorical exercise.  I'm not sure it would scootch the Overton Window, and certainly it's not going to earn any political points when a lot of education would be required to even broach the subject of proportional representation.


January 26, 2015 in Constitution, Schmonstitution | Permalink | Comments (1) | TrackBack

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Sunday, January 25, 2015

Letting Aliens Vote

Had an interesting conversation on Twitter with a few people in light of BTV's exploration of re-enfranchising resident aliens for local elections.  Had a less interesting discussion with people who were more hostile, ignorant and racist on Facebook, too (it's treasonous!  it's unconstitutional!  it's about assmiliation!).

I'll leave aside the fact that the US Constitution is silent on the issue and rather allows the Several States to set voting qualifications for Federal elections.  I find this bit from Vermont history to be illuminating:

Although state-wide voting rights were linked to U.S. citizenship after 1828, non-citizens continued to participate as voters and government officials at the local level.  In Woodcock v. Bolster, decided in 1863, the Vermont Supreme Court considered whether voting by aliens in school and town elections conflicted with the Constitution...After declaring the practice of local non-citizen voting to be in keeping with the state Constitution and laws, the court commented on the policy arguments advanced by the challenger:    

“It is also urged, that, upon general principles of public policy, unnaturalized foreigners should not be allowed this limited right to vote and hold office; that with so little education as they usually have, and such limited knowledge of the principles and policy of our government as they possess, there is danger in allowing them to exercise even so small a share in the government and management of our educational and municipal institutions...But we are not satisfied that the objection itself is sound.'

...It has been the policy of our government to encourage emigration from abroad, and, at as early a period as may be, to extend to such emigrants all the rights of citizenship, that their feelings and interests may become identified with the government and the country. While awaiting the time when they are to become entitled to the full rights of citizenship, it seems to us a wise policy in the Legislature to allow them to participate in the affairs of these minor municipal corporations, as in some degree a preparatory fitting and training for the exercise of the more important and extensive rights and duties of citizens.

It is of the greatest importance that the children of such persons should be educated, at least to the extent for which opportunity is afforded by our common schools, and that the parents should be induced to send their children to school, and it seems to us that they would be much more likely to do so, and to take interest in their attendance and improvement, if allowed to participate in their regulation and management, than if wholly excluded.

One of the main objections (besides simple bigotry) is that these furriners are just too damned ignorant to vote properly.  What I find most compelling about SCOV's argument is that if you want people to be educated (which is funny because I have plenty of anectdata about Somali chemical engineers and university professors and the like living here), they need to be engaged in the system.  

How better to accomplish that than to allow them to vote for school board members and whatnot?  Denying them political rights in their local community is counterproductive and unwise, as well as immoral from my POV.


January 25, 2015 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Wednesday, January 21, 2015

Whistling Past The Nullification Graveyard

Bless his bigoted heart:

Huckabee told conservative radio host Hugh Hewitt that he was "angry" with the "notion of judicial supremacy."

"If the courts make a decision, I hear governors and even some aspirants to the presidency say well, that's settled, and it’s the law of the land," he said. "No, it isn't the law of the land. Constitutionally, the courts cannot make a law. They can interpret one. And then the legislature has to create enabling legislation, and the executive has to sign it, and has to enforce it."

According to Huckabee, the legislative branch would need to draw up legislation to legalize same sex marriage.

Yeah, pretty sure he's wrong there.  Statutes and practices are invalidated, that's it.  After Loving, anti-miscegenation laws were still on the books in some states even though they were unenforceable (actually, Vermont just last spring repealed an anti-abortion law from the 1840s that ran afoul of Roe).  Clerks would no longer be able to discriminate when doling out licenses, end of story.  Which is precisely what we've seen with each ruling since Windsor (short-lived stays notwithstanding)...


January 21, 2015 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Tuesday, January 20, 2015

Go Recuse Yourself

Bless their hearts:

"Kagan and Ginsburg: Recuse Yourselves!" reads the press release. "Supreme Court Justices Elena Kagan and Ruth Bader Ginsburg should recuse themselves from making any same-sex marriage decisions because they have both conducted same-sex marriage ceremonies," it adds.

Other Supreme Court justices have officiated at different-sex weddings, so its unclear why officiating at a legal same-sex wedding should make any difference.

But the American Family Association, home to social grenade thrower Bryan Fischer, rarely makes logical arguments. And now, its president, Tim Wildmon, is making a false one.

“Congress has directed that federal judicial officers must disqualify themselves from hearing cases in specified circumstances," Wildmon writes in the release. "Both Kagan and Ginsburg have not only been partial to same-sex marriage but they have also proven themselves to be activists in favor of it. In order to ensure the Court’s integrity and impartiality, both should recuse themselves from same-sex marriage cases. Congress has an obligation to Americans to see that members of the Supreme Court are held to the highest standards of integrity. The law demands it, and the people deserve it."

The only problem with Wildmon's statement is it's inaccurate. Supreme Court justices are not bound by any rule or law to recuse themselves, although many have at different times, including Justice Kagan, out of a sense of propriety and duty.

I think all straight Justices should recuse themselves since they are ruling on the rights of gay people.  Clearly a conflict of interest.


January 20, 2015 in Constitution, Schmonstitution | Permalink | Comments (1) | TrackBack

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Friday, January 16, 2015

How Can Evolution Be True If There Are Gays Marrying?

The Obama evolution proceeds apace:

In a statement issued on Friday, U.S. Attorney General Eric Holder said the Justice Department will file a friend-of-the-court brief calling for gay and lesbian Americans across the country to be able to marry.

"The Supreme Court has announced that it will soon hear several cases raising core questions concerning the constitutionality of same-sex marriages. As these cases proceed, the Department of Justice will remain committed to ensuring that the benefits of marriage are available as broadly as possible. And we will keep striving to secure equal treatment for all members of society—regardless of sexual orientation," Holder said.

Holder cited the Obama administration's decision to stop defending the Defense of Marriage Act in court, which led to a 2013 Supreme Court decision requiring federal recognition of legal same-sex marriages.

"As such, we expect to file a ‘friend of the court’ brief in these cases that will urge the Supreme Court to make marriage equality a reality for all Americans," he said. "It is time for our nation to take another critical step forward to ensure the fundamental equality of all Americans—no matter who they are, where they come from, or whom they love."

Here's hoping that Kennedy listens...


January 16, 2015 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Tuesday, January 13, 2015

Gay Patrols

Oh, well this is nice:

Anti-LGBT activist Randy Thomasson has a message for governors across America: deploy the National Guard to stop same-sex marriages.

It certainly is keeping with American tradition to use state militias for repression of minorities.


January 13, 2015 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Sunday, January 04, 2015

A Chipped Saucer

It still cools:

Maybe the Senate should be abolished, but it would be a luxury we couldn't previously afford. And I don't really see the country as becoming more homogenous and unified. I see it as becoming more and more splintered along regional lines within and between states. This country aspires to small 'd' democracy, but it's never had it in its long history and I'm not sure we're ready for it.

One thing I'm sure about it is that we don't have any need for a truly democratic Senate. It would just be an expensive redundancy, the only merit of which would be longer terms for its members.

If you want to know if we can afford to abolish the Senate, ask yourself how long the country would hold together if it was governed by a standalone House of Representatives led by Nancy Pelosi one day and John Boehner the next?

The undemocratic nature of the Senate seems like an affront to our values, but this is only because we think we can have a united country without it that consents to be governed in radically different ways from one election cycle to the next.

But I see less evidence for this proposition with each passing year.

No need to break the china just because the tea tastes bad.


PS--Yes, I still love the Senate.

January 4, 2015 in Constitution, Schmonstitution | Permalink | Comments (4) | TrackBack

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Friday, December 19, 2014

Read The Constitution

Okay, this is after the video signoff, but HFS, what an awesome comment thread under Boner's SOTU invite:

Squinting really hard to see where there's any mention of a Speaker, let alone a required invitation for a SOTU in the Constitution.  Because, you know.  But originalists are right in decrying unconstitutional posts to Facebook...


December 19, 2014 in Constitution, Schmonstitution | Permalink | Comments (4) | TrackBack

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Damn It, Now We'll Have A Drinking Game

Fucking Boner invited Obama to give a SOTU.  I'd love it if the president simply replied he's busy since that is Date Night with Michelle, but he'll be happy to send them a copy of his address when he gets around to it.


December 19, 2014 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Monday, December 15, 2014

Little Better Than Whipsyllabub

[T]hey are not those solid and substantial amendments which the people expect; they are little better than whipsyllabub, frothy and full of wind, formed only to please the palate; or they are like a tub thrown out to a whale, to secure the freight of the ship and its peaceable voyage.

 - Congressman Aedanus Burke (AF-SC) on the proposed Bill of Rights, August 15, 1789

On December 15, 1791, the requisite number of States approved what we've come to know as the Bill of Rights.  Despite calling for such amendments during ratification of the Constitution, Virginia was tail-end Charlie because of its rather interesting, complicated politics.

I thought it would be fun to go look at the debates and various original documents to see how it played out.  I won't go into huge detail, but some of the evolution and nuance is fascinating.

Soon after the Constitution was sent to the People, James Madison wrote to Thomas Jefferson about the factional landscape on December 9, 1787:

The body of the people in Virgina., particularly in the upper and lower Country, and in the Northern neck, are as far as I can gather, much disposed to adopt the New Constitution. The middle Country, and the South side of James River are principally in the opposition to it. As yet a large majority of the people are under the first description. As yet also are a majority of the Assembly. What change may be produced by the united influence and exertions of Mr. Henry, Mr. Mason, & the Governor, with some pretty able auxiliaries, is uncertain.

My information leads me to suppose there must be three parties in Virginia. The first for adopting without attempting amendments. This includes Genl. W and ye other deputies who signed the Constitution, Mr. Pendleton, (Mr. Marshall, I believe,) Mr. Nicholas, Mr. Corbin, Mr. Zachy. Johnson, Col. Innes, (Mr. B. Randolph as I understand) Mr. Harvey Mr. Gabriel Jones, Docr. Jones, &c., &c.

At the head of the 2d. party which urges amendments are the Govr. & Mr. Mason. These do not object to the substance of the Governt., but contend for a few additional guards in favor of the Rights of the States and of the people.

I am not able to enumerate the characters which fall in with their ideas, as distinguished from those of a third class, at the head of which is Mr. Henry. This class concurs ar present with the patrons of Amendments, but will probably contend for such as strike at the essence of the System, and must lead to an adherence to the principle of the existing confederation, which most thinking men are convinced is a visionary one, or to a partition of the Union into several Confederacies. 

Indeed, Patrick Henry was no fan of the proposed government frame (and was no democrat).  He spoke near the end of Virginia's Convention:

[A]fter observing that the proposal of ratification was premature, and that the importance of the subject required the most mature deliberation, proceeded thus: — The honorable member must forgive me for declaring my dissent from it; because, if I understand it rightly, it admits that the new system is defective, and most capitally; for, immediately after the proposed ratification, there comes a declaration that the paper before you is not intended to violate any of these three great rights — the liberty of religion, liberty of the press, and the trial by jury. What is the infercnce when you enumerate the rights which you are to enjoy? That those not enumerated are relinquished. There are only three things to he retained — religion, freedom of the press, and jury trial. Will not the ratification carry every thing, without excepting these three things? Will not all the world pronounce that we intended to give up all the rest? Every thing it speaks of, by way of rights, is comprised in these things. 
Is it not worth while to turn your eyes, for a moment, from subsequent amendments to the situation of your country? Can you have a lasting union in these circumstances? It will be in vain to expect it. But if you agree to previous amendments, you shall have union, firm and solid.

I cannot conclude without saying that I shall have nothing to do with it, if subsequent amendments be determined upon. Oppressions will be carried on as radically by the majority when adjustments and accommodations will be held up. I say, I conceive it my duty, if this government is adopted before it is amended, to go home. I shall act as I think my duty requires. Every other gentleman will do the same. Previous amendments, in my opinion, are necessary to procure peace and tranquillity. 1 fear, if they be not agreed to, every movement and operation of government will cease; and how long that baneful thing, civil discord, will stay from this country, God only knows. When men are free from restraint, how long will you suspend their fury? The interval between this and bloodshed is but a moment. The licentious and wicked of the community will seize with avidity every thing you hold. In this unhappy situation, what is to be done r It surpasses my stock of wisdom. If you will, in the language of freemen, stipulate that there are rights which no man under heaven can take from you, you shall have me going along with you; not otherwise.

[Here Mr. Henry informed the committee that he had a resolution prepared, to refer a declaration of rights, with certain amendments to the most exceptionable parts of the Constitution, to the other states in the confederacy, for their consideration, previous to its ratification. The clerk than read the resolution, the declaration of rights, and amendments...]

Madison, who really wanted a clean ratification, embraced the amendment proposals but as something to be pressed for AFTER ratification:

I am persuaded that the gentlemen who contend for previous amendments are not aware of the dangers which must result. Virginia, after having made opposition, will be obliged to recede from it. Might not the nine states say, with a great deal of propriety, "It is not proper, decent, or right, in you, to demand that we should reverse what we have done. Do as we have done; place confidence in us, as we have done in one another; and then we shall freely, fairly, and dispassionately consider and investigate your propositions, and endeavor to gratify your wishes. But if you do not do this, it is more reasonable that you should yield to us than we to you. You cannot exist without us; you must be a member of the Union."

The case of Maryland, instanced by the gentleman, does not hold. She would not agree to confederate, because the other states would not assent to her claims of the western lands. Was she gratified? No; she put herself like the rest. Nor has she since been gratified. The lands are in the common stock of the Union.

As far as his amendments are not objectionable, or unsafe, so far they may be subsequently recommended--not because they are necessary, but because they can produce no possible danger, and may gratify some gentlemen's wishes. But I never can consent to his previous amendments, because they are pregnant with dreadful dangers.

After a plea by Governor Edmund Randolph to vote for Union (despite his having voted against the final Constitution in Philadelphia) so Virginia wouldn't be left behind, Henry stayed his course and introduced a resolution to delay of ratification until the States could also consider Virginia's proposed changes.  That was narrowly defeated, 88-80.  The main question on approving the Constitution passed by a similar margin, 89-79.

Now to the Bill of Rights.  There were shenanigans in the Virginia Legislature and during various electoral campaigns.  But as Madison promised, a slate of amendments made its way through Congress.  Edward Carrington filled Madison in as to the workings in the Virginia Legislature on December 20, 1789 (including Henry's taking his ball and going home):

During the session, there has been much less intemperance than prevailed last year. Mr. H—— was disposed to do some antifederal business, but having felt the pulse of the House on several points and finding that it did not beat with certainty in unison with his own, he at length took his departure about the middle of the session without pushing any thing to its issue...

[He pushed] to refer the amendments sent forward by Congress, to the next session of Assembly, in order that the people might give their sentiments whether they were satisfactory, alledging that in his opinion they were not. To this purpose he proposed a resolution, but finding the disposition of the house to be otherwise, he moved that it might lie on the Table, and went away without ever calling it up again.

Somewhat later in the session the subject of the amendments was taken up—the ten first were, with the exception of perhaps not more than ten Members, unanimously agreed to—on the eleventh and twelfth some difficulty arose...

Through the whole course of the business in that house there was on the several questions equal divisions of the members, so, as to leave the decision to the chair. Notwithstanding the unequivocal decision in the house of delegates for adopting the amendments, yet in the course of the discussion some intemperance was generated—this led to propositions which in the earlier parts of the session none would have thought of, and it was with difficulty that a proposition for demanding a compliance with the amendments proposed by our convention, so far as they have not been agreed to, by Congress was prevented from passing.

This proposition was presented to the house as often as three times, at first it was rejected by a great majority, at the next attempt it was rejected by a less majority, and at the third by the vote of the Speaker. Had Mr. Henry conceived that such would have been the temper in the latter stages of the session, he would not have left us.

So the lower House had passed the BoR.  The Senate was expected to follow suit, but the Anti-Federalists took another stand and rejected the amendments:

We are satisfied that the people of Virginia would never have ratified the Constitution of the United States, but from a confident hope and firm persuasion of speedily seeing it much more materially altered and amended than it would be by ratifying the propositions lately submitted by Congress to the State Legislatures. That although we consider some of the amendments offered as similar, and others nearly equivalent, to a part of the amendments proposed by Virginia and other States, yet that some of them which seem analogous to other amendments so proposed, are not substantially the same and fall short of affording the same security to personal rights, or of so effectually guarding against the apprehended mischiefs of the government...

Ah well.  In the meantime, Vermont became a state and the overall political reality was such that the Constitution was here to stay.  Even Patrick Henry conceded on January 24, 1791:

[A]ltho' The Form of Governt into which my Countrymen determined to place themselves, had my Enmity, yet as we are one & all imbarked, it is natural to care for the crazy machine, at least so long as we are out of Sight of a Port to refit. I have therefore my Anxietys to hear & to know what is doing, & to what point the State pilots are steering, & to keep up the Metaphor, whether there is no Appearance of Storms in our Horizon?

Still took several months, but Virginia finally ratified the BoR on December 15, 1791, about which Congress was informed on December 30.  Oddly enough, Vermont had passed the amendments on November 3, but Congress didn't find out until January 18, 1792.

Thus, after yet another couple years of debate, Secretary of State Thomas Jefferson issued his anticlimactic certification.  Professor Lucas A Powe, Jr writes about it:

One would think that the document announcing ratification of the Bill of Rights would have a special prominence in bicentennial celebrations and would, perhaps, be a fit subject for public readings like Washington's Farewell Address. But then one reads the letter of the secretary of state to the state governors announcing the ratification of the Bill of Rights and such thoughts evaporate. "I have the honor to send you herein enclosed," the usually eloquent Thomas Jefferson wrote,

two copies duly authenticated, of an Act concerning certain fisheries of the United States, and for the regulation and government of the fisherman employed therein; also of an Act to establish the post office and post roads within the United States; also the ratification by three fourths of the Legislatures of the Several States, of certain articles in addition and amendment of the Constitution of the United States, proposed by Congress to the said Legislatures, and being with sentiments of the most perfect respect, your Excellency's &c.

The ordering in Jefferson's transmittal is quite consistent with the view that the Bill of Rights originated in a desire to kill the Constitution. The goal of the Antifederalists was to defeat, in any way possible, ratification. Pointing to the failure to include a declaration of rights was the most effective way of creating opposition to the Constitution. That it was a ploy is demonstrated by the fact that the Antifederalists were far less interested in the "necessity" of a Bill of Rights after the Constitution was ratified than they were when it might have been defeated. Thus Jefferson got it right: fish were more important, and the Bill of Rights ran a poor third.

As I've noted before, there was a parallel set of flip-flops on the BoR, with Federalists and Antis essentially adopted each other's positions, so it is not surprising that Jefferson's proclamation would be a bit muted.  Hey, ain't that the same thing as we've seen with Obamacare?  Republicans used to love the mandate, now they hate it once it's been co-opted by the Dems.  And after years of fighting against it, they do seem to have (mostly) gotten over full repeal and are nibbling at the margins.

It's almost like politics has always been weird and nuanced and contradictory and stuff.  Because people are.


December 15, 2014 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Sunday, December 14, 2014

Scalia's Torturous Hobgoblin

Oh, Steve, you know if torture's allowed by the Constitution, it must be okay morally.  Just like slavery.

Besides, torture isn't punishment (so no 8th Amendment objection) but rather is an inherent part of due process (so no 5th Amendment objection).  With that time bomb ticking since 2008, we'd better hurry and get the info to save BILLIONS OF LIVES! 


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

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Thursday, December 11, 2014

Ron Paul Must Mourn This Date Every Year

As I must mark it.  Anywayz, Wikipedia reminds us that in 1815:

The U.S. Senate created a select committee on finance and a uniform national currency, predecessor of the United States Senate Committee on Finance.

This was a direct response to President Madison's 7th Annual Message to Congress on December 5th:

Although the embarrassments arising from the want of an uniform national currency have not been diminished since the adjournment of Congress, great satisfaction has been derived in contemplating the revival of the public credit and the efficiency of the public resources. 
The arrangements of the finances with a view to the receipts and expenditures of a permanent peace establishment will necessarily enter into the deliberations of Congress during the present session. It is true that the improved condition of the public revenue will not only afford the means of maintaining the faith of the Government with its creditors inviolate, and of prosecuting successfully the measures of the most liberal policy, but will also justify an immediate alleviation of the burdens imposed by the necessities of the war.

It is, however, essential to every modification of the finances that the benefits of an uniform national currency should be restored to the community.

To put it into context, the War of 1812 created a great deal of chaos in our nation's financial state.

The war had...led the federal government to rack up significant debt. Without the First Bank, the government had to rely more heavily on state banks to help finance the war. The influx of federal government deposits to these institutions led them to issue greater quantities of banknotes and loans.

The proliferation of banknotes increased money in circulation and resulted in inflation, because too much money was chasing too few goods. Without the First Bank’s ability to limit the state banks’ issuance of paper currency, there was no longer an entity that could control the amount of money created. In addition, strong demand for loans during the war increased interest rates and thus bank profits. Without the restraining hand of the Bank of the United States, state banks became less cautious in their lending habits and credit expanded rapidly.

In effect, the country found itself in circumstances similar to those after the Revolutionary War: mounting debt from a war with England, soaring prices, and devalued money from rising inflation. These problems and the resulting economic consequences would soon lead the United States to make another attempt at creating a national bank. In 1816, President James Madison signed the bill that would create the second Bank of the United States.

Leading up to the Bank Act, the debate included this little morsel from Representative Randolph, Democratic-Republican from Virginia:

All banking institutions were alike in their desire to swell their profits to the greatest extent, howsoever correct and virtuous the directors might be in their private characters; and he would guard against every public robber of every grade, whether he be a Governor General of India or a Bagshot highwayman. He would put it out of the power of this bank to commit frauds on the community, without ruin to itself.

Anyway, the constitutionality of the National Bank was challenged and upheld in McCulloch v. Maryland (1819):

Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.

Yet when President Andrew Jackson vetoed the Second Bank 16 years later, he noted:

The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision. The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve.

And it was all downhill from there...


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

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Wednesday, December 10, 2014

Divide Et Impera

Speaking of the Constitution and Bill of Rights, I just thought I'd expand on something from an old post about state-level oppression.  So here's James Madison writing to Thomas Jefferson in October of '87:

We know however that no Society ever did or can consist of so homogeneous a mass of Citizens...In all civilized Societies, distinctions are various and unavoidable. A distinction of property results from that very protection which a free Government gives to unequal faculties of acquiring it.

There will be rich and poor; creditors and debtors; a landed interest, a monied interest, a mercantile interest, a manufacturing interest. These classes may again be subdivided according to the different productions of different situations & soils, & according to different branches of commerce, and of manufactures. In addition to these natural distinctions, artificial ones will be founded, on accidental differences in political, religious or other opinions, or an attachment to the persons of leading individuals.

However erroneous or ridiculous these grounds of dissention and faction, may appear to the enlightened Statesman, or the benevolent philosopher, the bulk of mankind who are neither Statesmen nor Philosophers, will continue to view them in a different light. It remains then to be enquired whether a majority having any common interest, or feeling any common passion, will find sufficient motives to restrain them from oppressing the minority.
The great desideratum in Government is, so to modify the sovereignty as that it may be sufficiently neutral between different parts of the Society to controul one part from invading the rights of another, and at the same time sufficiently controuled itself, from setting up an interest adverse to that of the entire Society.



December 10, 2014 in Constitution, Schmonstitution | Permalink | Comments (5) | TrackBack

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Wait, We Still Have A Bill Of Rights?

The National Constitution Center is all excited about getting an originl copy of the Bill of Rights next week, so has posted about several things Madison originally proposed that were changed by Congress.  Regular readers should already be familiar with a few of those items, including the pre-Preamble (perhaps a nod to Patrick Henry, who hated "We the People"?) and interweaving the amendments, and removing a conscience clause from what became the Second.

All y'all should also be able to get 10/10 on their BoR quiz, as did your humble blogger.  And here's a bonus question: what's the significance of December 15th?  (No cheating.)


December 10, 2014 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Sunday, December 07, 2014

An Honest Man Gets Sick When He Hears The Word 'Constitution' From Rand Paul

Talk about cruel and unusual:

Rand Paul: Ophthalmologist turned US Constitution guardian

Instead of an American flag, Rand Paul wears a red penny in his lapel, symbolizing the core of the politician's philosophy: no more runaway debt, and relentless submission to the US Constitution...The senator fancies himself a "libertarian-ish" Republican and a "constitutional conservative"...But with his reputation for fealty to the Constitution...

FTR, Paul is a wicked shitty guardian of the Constitution.  Perhaps the media could stop repeating his PR.


December 7, 2014 in Constitution, Schmonstitution | Permalink | Comments (3) | TrackBack

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Friday, December 05, 2014

Let Us All Raise Our Glasses To Utah

NYTimes, December 5, 1933:

Prohibition of alcoholic beverages as a national policy ended at 5:321/2 P.M., Eastern Standard Time, when Utah, the last of the thirty-six States furnished by vote of its convention the constitutional majority for ratification of the Twenty-first Amendment. The new amendment repealed the Eighteenth, and with the demise of the latter went the Volstead Act which for more than a decade held legal drinks in America to less than one-half of 1 percent of alcohol and the enforcement of which cost more than 150 lives and billions in money.

Earlier in the day, Pennsylvania had ratified as the thirty-fourth State and Ohio as the thirty-fifth.

Currently enjoying a glass of Malbec, despite the Mormon Church's best efforts.


December 5, 2014 in Constitution, Schmonstitution | Permalink | Comments (1) | TrackBack

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Wednesday, December 03, 2014

Check The Rigging

Yeah, I guess Michigan Republicans are proposing to "rig" the Electoral College results, but States can--and have--done lots of different things over the centuries to award votes.  It's their constitutional prerogative.

That said, it's a shitty thing to do and gets to the heart of Republican anti-democratic tendencies.  Suppress the vote by certain people, gerrymander to make your representation disproportionate, get your guy enough electoral votes by virtue of your district advantage to tip the balance, etc.  A whole lot has to change to prevent further erosion of our franchise.


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

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Tuesday, December 02, 2014

The Dead Hand Writes No Dead Letters

Shorter Judge Sutton upholding marriage equality bans: eleven words trump thousands written over four decades and civil rights.  Bonus: that was 11 words, too.


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

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Blessed Are They That Have Not Seen, And Yet Have Believed

Yeah, okay:

A listener on the call told Santorum that “a number of the things that the far left, a.k.a. the Democrat [sic] Party, and the president is pushing for and accomplishing actually accomplishes a number of the tenets of ‘The Communist Manifesto,’ including the amnesty, the elevation of pornography, homosexuality, gay marriage, voter fraud, open borders, mass self-importation of illegal immigrants and things of that nature.” The likely presidential candidate replied that “the words ‘separation of church and state’ is not in the U.S. Constitution, but it was in the constitution of the former Soviet Union. That’s where it very, very comfortably sat, not in ours.”

Of course, Thomas Jefferson and James Madison, among others, referred to the separation of church and state when explaining the amendment which they drafted.


  • Jefferson did talk about a wall of separation, but he did not draft the First Amendment (perhaps an ounce of inaccuracy saves a ton of explanation, as a religious tolerance bill was drafted by TJ in 1777)

Elections of deputies are universal: all citizens of the U.S.S.R. who have reached the age of eighteen, irrespective of race or nationality, religion...have the right to vote in the election of deputies and to be elected...

Freedom of religious worship...is recognized for all citizens.

Citizens of the USSR are equal before the law, without distinction...attitude to religion...

Citizens of the USSR are guaranteed freedom of conscience, that is, the right to profess or not to profess any religion, and to conduct religious worship...

Sounds awful on paper.  But to be fair, Ricky's right that the words "separation of church and state" don't appear in the Constitution.  Of course, neither does "founded on Christian principles" or "God"...


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

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Republicans in disarray!

The "censure" strategy has much of the bombast of impeachment — a formal vehicle for Republicans to vent their disapproval of Obama, and throw red meat to the conservative base — without the risks of a politically nuclear confrontation that could backfire on them (not to mention, a guaranteed failure to obtain the two-thirds majority required in the Senate to remove the president from office).

But there's one big problem with this plan: censuring the president might be unconstitutional. Or at least, any censure resolution that would meaningfully punish the president risks violating the Constitution, legal experts say.

"If you can put together in the abstract a resolution that does nothing more than express disapproval, I think it's possible for Congress to do that. But you can't do more than that," said Michael J. Gerhardt, a law professor at the University of North Carolina, who has written a law review article exploring the issue. "I think any impact beyond expression would pose a constitutional problem for the attempted censure."

Harvard law professor Laurence Tribe said a congressional resolution to censure a president is not clearly authorized by the Constitution, "so a strict constitutionalist would say that it's an action beyond the authority of Congress."

I'm not sure I've ever heard of a "strict constitutionalist" who's decried simple resolutions passed by the House to organize itself or express the chamber's collective opinion (like H.Res.754 condemning Iran), which goes back to the First Congress (even censure is an old idea).  So if the House wanted to scold Obama, they totes could, even though it would carry no legal weight--it's just, like, their opinion, man.


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