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Wednesday, March 04, 2015

A Reminder For Alabama Justices

Those probate judges just need to cite this:

Cooper v Aaron (1958): It is necessary only to recall some basic constitutional propositions which are settled doctrine.

Article VI of the Constitution makes the Constitution the "supreme Law of the Land." In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as "the fundamental and paramount law of the nation," declared in the notable case of Marbury v. Madison...that "It is emphatically the province and duty of the judicial department to say what the law is."

This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution [emph NTodd's], and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system....Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Art. VI, cl. 3 "to support this Constitution."

Sue. Prem. Uh. See?

ntodd

March 4, 2015 in Constitution, Schmonstitution | Permalink | Comments (1) | TrackBack

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Nullify-a While You Can, Monkey-Roy!

Funny part of Roy Moore's nullification parade:

Alabama TV Station WAFF reports on the latest:

Probate judges are now instructed to respond to Tuesday's order within five business days to show cause as to why they should be allowed to issue licenses.

Not only are probate judges allowed to issue license, but required, per the Federal court.  Their response should be easy: Supremacy Clause, bitch.  

ntodd

March 4, 2015 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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An Act For The Admission

It was a nice run, but even republics want to be part of Kewl Kids:

THE State of Vermont having petitioned Congress to be admitted a member of the United States, Be it enacted by the Senate and House of Representatives of the United Stales of America in Congress assembled, and it is hereby enacted and declared, That on the fourth day of March, One Thousand Seven Hundred Ninety One, the said State, by the name and style of "The State of Vermont," shall be received and admitted into this Union, as a new and entire member of the United States of America.

And yes, Vermont was most certainly a republic before it became the first new, co-equal state to be admitted after the original thirteen former colonies got their crap together.

ntodd

March 4, 2015 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Monday, March 02, 2015

Heh, He Said 'Duty'

To be fair, the Dersh didn't say there was a constitutional mandate (like some people enjoy inventing).  He merely asserted there's some sort of vague, morally-relativistic duty for Democrats to listen to a foreign national undermine delicate talks with an almost-nuke-capable regime.

ntodd

March 2, 2015 in Constitution, Schmonstitution | Permalink | Comments (6) | TrackBack

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Sunday, March 01, 2015

Enumerate This

Second to my beloved Post Office, I really love the constitutionl provision that provides for our decennial census.  President Washington signed the first act enabling enumeration of Americans on March 1, 1790.  Naturally there was debate about how best to go about the mandate, whether there'd be enough time to complete everything, etc.

James Madison observed on January 25:

[T]hey had now an opportunity of obtaining the most useful information for those who should hereafter be called upon to legislate for their country if this bill was extended so as to embrace some other objects besides the bare enumeration of the inhabitants; it would enable them to adapt the public measures to the particular circumstances of the community. In order to know the various interests of the United States, it was necessary that the description of the several classes into which the community was divided, should be accurately known; on this knowledge the legislature might proceed to make a proper provision for the agricultural, commercial and manufacturing interests, but without it they could never make their provisions in due proportion.

This kind of information, he observed, all legislatures had wished for; but this kind of information had never been obtained in any country. He wished, therefore, to avail himself of the present opportunity of accomplishing so valuable a purpose. If the plan was pursued in taking every future census, it would give them an opportunity of marking the progress of the society, and distinguishing the growth of every interest. This would furnish ground for many useful calculations, and at the same time answer the purpose of a check on the officers who were employed to make the enumeration, forasmuch as the aggregate number was divided into parts, any imposition might be discovered with proportionable ease. If these ideas met the approbation of the house, he hoped they would pass over the schedule in the second clause of the bill, and he would endeavor to prepare something to accomplish this object.

The following day he presented a plan:

...which he moved should be inserted in lieu of that annexed to the bill, viz.

Free white males, under 16; free white males, above 16; white females, free blacks, and slaves, the heads of families, &c.

And he likewise proposed that a particular schedule should be included in the bill, specifying the number of persons employed in different professions and arts, carried on within the United States; such as merchants, mechanics, manufacturers, &c. &c.

There was debate on Groundhog Day:

Mr. Livermore apprehended this plan was too extensive to be carried into operation, and divided the people into classes too minute to be readily ascertained.

For example, many inhabitants of New Hampshire pursued two, three, or four occupations, but which was the principal one depended upon the season of the year, or some other adventitious circumstance; some followed weaving in the spring and summer, but the making of shoes was the most predominant in the fair and winter; under what class are these people to be thrown, especially if they joined husbandry and carpenter's work to the rest? He was confident the distinction which the gentleman wished to make could not be performed; he was therefore against adding additional labor, and consequently, incurring additional expense, whether the work was executed or not.

Besides this, he apprehended it would excite the jealousy of the people; they would suspect that Government was so particular, in order to learn their ability to bear the burthen of direct or other taxes, and under this idea, they may refuse to give the officer such a particular account as the law requires, by which means you expose him to great inconvenience and delay in the performance of his duty.

Mr. Sedgwick understood, when the bill was recommitted, it was intended to specify every class of citizens, into which the community was divided, in order to ascertain the actual state of the society. Now, he had to ask, why it was not extended further? He thought the learned professions should be returned, as well as the others, and would furnish as grateful information as the return of any other. The state of society could be ascertained, perhaps, in some decree, from observing these proportions.

Mr. Madison.—If the object to bp attained by this particular enumeration be as important in the judgment of this House, as it appears to my mind, they will not sutler a small defect in the plan to defeat the whole. And I am very sensible, Mr. Speaker, that there will be more difficulty attendant on the taking the census,in the way required by the constitution, and which we are obliged to perform, than there will be in the additional trouble of making all the distinctions contemplated in the bill. The classes of people most troublesome to enumerate, in this schedule, are happily those resident in large towns, as the greatest number of artisans live in populous cities and compact settlements, where distinctions are made with great ease.

I take it, sir, that in order to accommodate our laws to the real situation of our constituents, we ought to be acquainted with that situation. It may be impossible to ascertain it as far as I wish; but we may ascertain it so far as to be extremely useful, when we come to pass laws, affecting any particular description of people.

If gentlemen have any doubts with respect to its utility, I cannot satisfy them in a better manner, than by referring them to the debates which took place upon the bills intended collaterally to benefit the agricultural, commercial, and manufacturing parts of the community. Did they not wish then to know the relative proportion of each, and the exact number of every division, in order that they might rest their arguments on facts, instead of assertions and conjectures?

Will any gentleman pretend to doubt but our regulations would have been better accommodated to the real state of the society than they are? If our decisions had been influenced by actual returns would they not have been varied, according as the one ude or the other was more or less numerous? We should have given less encouragement in some instances, and more in others; but in everv instance, we should have proceeded with more light and satisfaction.

The gentleman from Massachusetts, (Mr. Sedgwick) has asked, why the learned professions were not included: I have no objection to giving a column to the general body. I think the work would be rendered more complete by the addition, and if the decision of such a motion turned upon my voice, they shall beadded. But it may nevertheless be o&served, that in such a character they can never be objects of legislative attention or cognizance.

As to those who are employed in teaching and inculcating the duties of religion there may be some indelicacy in singling them out, as the General Government is proscribed from interfering, in any manner whatever, in matters respecting religion; and it may be thought to do this; in ascertaining who, and who are not ministers of the Gospel. Conceiving the extension of the plan to be useful, and not difficult, I hope it may meet the ready concurrence of this House.

Mr. Page thought this particular method of describing the people, would occasion an alarm among them: they would suppose the Government intended something, by putting the Union to this additional expense, beside gratifying an idle curiosity; their purposes cannot be supposed the same as the historian's or philosopher's —they are statesmen, and all their measures are suspected of policy. If he had not heard the object so well explained on this floor, as one of the people he might have been jealous of the attempt, and as it could serve no real purpose,for he contended, if they were now acquainted with the minutia, they would not be benefited by it. He hoped the business would be accomplished in gome other way.

Mr. Madison thought it was more likely, that the people would suppose the information was required for its true object, namely to know in what proportion to distribute the benefits resulting from an efficient General Government.

Ultimately between the House and Senate, the more specific enumerations were dropped.  They did, however, provide for greater distinction between classes of persons than merely opting for a raw count of Americans.  

Over the years different kinds of data were gathered to better understand our growing and changing nation so as to be more effective, as James Madison thought we should.  Something for the Ron (and Rand) Pauls of the world to remember.

They should also remember that Ben Franklin was our first demographer, having penned Observations Concerning the Increase of Mankind, Peopling of Countries, etc. in 1751.  He also applied statistical methods to smallpox in 1759 with Some Account of the Success of Inoculation for the Small-Pox in England and America:

Notwithstanding the now uncontroverted success of Inoculation, it does not seem to make that progress among the common people in America, which at first was expected. Scruples of conscience weigh with many, concerning the lawfulness of the practice: And if one parent or near relation is against it, the other does not chuse to inoculate a child without free consent of all parties, lest in case of a disastrous event, perpetual blame should follow.

These scruples a sensible Clergy may in time remove. The expence of having the operation perform’d by a Surgeon, weighs with others, for that has been pretty high in some parts of America; and where a common tradesman or artificer has a number in his family to have the distemper, it amounts to more money than he can well spare. Many of these, rather than own the true motive for declining Inoculation, join with the scrupulous in the cry against it, and influence others.

A small Pamphlet wrote in plain language by some skilful Physician, and publish’d, directing what preparations of the body should be used before the Inoculation of children, what precautions to avoid giving the infection at the same time in the common way, and how the operation is to be performed, the incisions dress’d, the patient treated, and on the appearance of what symptoms a Physician is to be called, &c. might by encouraging parents to inoculate their own children, be a means of removing that objection of the expence, render the practice much more general, and thereby save the lives of thousands.

A Republic, if you enumerate and inoculate it...

ntodd

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

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Articles, Schmarticles

We have at length finished the Confederation and shall send it to the different States in a few days with strong exortation to give it quick consideration and speedy return.

 - Richard Henry Lee to Samuel Adams, November 15, 1777


Quick consideration and speedy return.  Yeah.  Not so much: didn't go into effect until March 1, 1781 (Maryland was the last to ratify about a week earlier).

And to tell a family secret?  Slavery was a big topic during the debates, reminiscent of some sort of fractional compromise people might recall.

Anyway, as a frame of effective government, the Articles sucked.  Let's just face up to that.  As an expedience during the Revolution, they provided a bit more organization than the ad hoc Continental Congress and saw us through the early days as an independent nation.  Great, so far as that goes.

Yet Madison laid out a dozen problems with the Articles, including some faves of mine:

2. Encroachments by the States on the federal authority.
5. want of concert in matters where common interest requires it.
6. want of Guaranty to the States of their Constitutions & laws against internal violence.
7. want of sanction to the laws, and of coercion in the Government of the Confederacy.
11. Injustice of the laws of States.

#11 presaged Federalist 10 with a dash of Federalist 44, detailing the threats to liberty States pose.  #6 is pretty awesome as well:

According to Republican Theory, Right and power being both vested in the majority, are held to be synonimous. According to fact and experience a minority may in an appeal to force, be an overmatch for the majority.

1. If the minority happen to include all such as possess the skill and habits of military life, & such as possess the great pecuniary resources, one third only may conquer the remaining two thirds.

2. One third of those who participate in the choice of the rulers, may be rendered a majority by the accession of those whose poverty excludes them from a right of suffrage, and who for obvious reasons will be more likely to join the standard of sedition than that of the established Government.

3. Where slavery exists the republican Theory becomes still more fallacious.

It is left as an exercise for the reader to apply this to our contemporary political environment.

ntodd

March 1, 2015 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Saturday, February 28, 2015

The Discovered Country

Human rights and their defense are as old as civilization; but, more important to us, the founding American fathers wrote the covenant of a people's rule into the bond of national life, beyond all erasure or abridgement.

 - Warren Harding, speech renominating President Howard Taft (June 22, 1912)

Anthony comments below:

I asked several members of my mother's generation when they first remember people going on about [the phrase "founding fathers"], they couldn't remember it much being used before the reaction to the civil rights movement set it. That was about when I first remember hearing it being used as an assertion of the eternal and immutable minds of the gods.

I find this interesting because when talking about early American history we tend to take contemporary terminology for granted.  Does 'privacy' mean the same thing today as back in the Founding Era, or was the word more about bodily functions, with 'security' being closer to our modern concept?  And if the Pilgrims didn't really refer to themselves as such, who started it?

The various terms we use have really become shibboleth, part of our national myths.  I'd submit one of the biggest examples is the Founding Fathers:

The myth of the Founding Fathers constitutes an American master narrative which has enshrined a group of statesmen and politicians of the revolutionary and post-revolutionary period as personifications of the origin of American nationhood, republicanism, and democratic culture. More so than with the previously discussed individuals and groups. the Founding Fathers epitomize a political myth of origin that is phrased in a language of kinship. The term ‘Fathers’ suggests tradition, legitimacy, and paternity and creates an allegory of family and affiliation that affirms the union and the cohesion of the new nation. When the colonists in the revolutionary decade argued that they were no longer subjects of the British King and that they could now govern themselves (cf. Declaration of Independence), they claimed not only the maturity of the colonies and its ruling elite but also their capacity to produce progenitors in their own right. The construction of ‘new world’ authority and the logic of reproduction went hand in hand.

So where did this one come from?

No matter how many historians seek to drive a stake through its heart, the phrase “founding fathers” remains a core component of the way Americans talk about politics and government, one with remarkable rhetorical power. Given this fact, we might assume that “founding fathers” has had as long and honorable a history as “All men are created equal.” And yet, for an expression so central to Americans’ understanding of their past, and so fruitful a source of legal, political, and historiographic controversy,“founding fathers” has a surprisingly short life. It did not enter the political lexicon until the early twentieth century, and its inventor is no one you might expect.

None other than Warren Harding gets the credit.  First as Senator giving the RNC keynote address on June 7, 1916:

[W]e ought to be as genuinely American today as when the founding fathers flung their immortal defiance in the face of old-world oppressions and dedicated a new republic to liberty and justice. We ought to be as prepared for defense as Washington urged amid the anxieties of our national beginning, and Grant confirmed amid the calm reflections of union restored.
...
In building the surpassing temple of the republic, which we have been doing to the astonishment, sometimes the envy, sometimes the admiration of the world, and ofttimes inspiring others by our example, there ever will be modifications and additions to meet the public need and conform to popular ideals.

We do not fear to imitate nor fail to originate, but there can be no discord about underlying foundations or essential walls or proven arches or stately columns. Mine is a deep conviction that the founding fathers were divinely inspired, and the wisdom of representative popular government is proven in the surpassing achievement. 

He echoed the themes in his own inaugural on March 4, 1921:

Standing in this presence, mindful of the solemnity of this occasion, feeling the emotions which no one may know until he senses the great weight of responsibility for himself, I must utter my belief in the divine inspiration of the founding fathers. Surely there must have been God's intent in the making of this new-world Republic.

Ours is an organic law which had but one ambiguity, and we saw that effaced in a baptism of sacrifice and blood, with union maintained, the Nation supreme, and its concord inspiring. We have seen the world rivet its hopeful gaze on the great truths on which the founders wrought. We have seen civil, human, and religious liberty verified and glorified.

In the beginning the Old World scoffed at our experiment; today our foundations of political and social belief stand unshaken, a precious inheritance to ourselves, an inspiring example of freedom and civilization to all mankind. Let us express renewed and strengthened devotion, in grateful reverence for the immortal beginning, and utter our confidence in the supreme fulfillment.

It appears Harding planted the seed, but it didn't really grow to maturity until the 60s and 70s when scholars started to show great interest in whatever cohort was deemed Founding Fathers.  And now they are popularly treated as ouija boards, dragged out to provide spirit guidance on issues of the day that most likely could not have even imagined in their epoch.  Just as intended.

ntodd

February 28, 2015 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Friday, February 27, 2015

It Was The Best Of Times

I mentioned Lincoln's famous Cooper Union address earlier this month in the Tenther context.  But here's one of my favorite quotations from the speech he delivered on this date in 1860:

I do not mean to say we are bound to follow implicitly in whatever our fathers did. To do so, would be to discard all the lights of current experience - to reject all progress - all improvement. What I do say is, that if we would supplant the opinions and policy of our fathers in any case, we should do so upon evidence so conclusive, and argument so clear, that even their great authority, fairly considered and weighed, cannot stand; and most surely not in a case whereof we ourselves declare they understood the question better than we.

It is left as an exercise for the reader to determine why I like it.

ntodd

February 27, 2015 in Constitution, Schmonstitution | Permalink | Comments (1) | TrackBack

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Thursday, February 26, 2015

Knowledge Is No Longer Republican

Interesting thesis:

Many of the today’s biggest political issues, like our privacy rights, would not even be up for debate today had it not been for the attack on education. If more Americans had had a strong understanding of our history, George W. Bush and Dick Cheney would have never been able to pull off the Patriot Act. And, we wouldn’t be discussing the Orwellian government spy agencies like the NSA in this day and age.

While we can’t undo the damage to the Fourth Amendment overnight, we can protect our remaining rights by passing on accurate history, and protecting public education.

Thomas Jefferson recognized that education is vital to a functioning Democratic Republic.

In a letter to James Madison, Jefferson wrote: “And say, finally, whether peace is best preserved by giving energy to the government, or information to the people. This last is the most certain, and the most legitimate engine of government. Educate and inform the whole mass of the people. Enable them to see that it is their interest to preserve peace and order, and they will preserve them…. They are the only sure reliance for the preservation of our liberty.”

In light of Oklahoma’s recent attack on AP History, it would be easy to argue that today’s Republicans don’t recognize the value of a good education. However, the reality is that they do, and that the spreading attack on public education is far more sinister.

When the Patriot Act was signed, Bush and his ilk claimed the power to violate citizens’ private lives because, they said, there is no “right to privacy” in the United States. In that, they – perhaps purposefully – overlooked the history of America and the Declaration of Independence, signed on July 4, 1776. And they missed a basic understanding of the evolution of language in the United States.

Yeah, I've noted this kinda thing before:

Shorter Rick Santorum: Know who else thought government had a role in educating children?  Hitler!

It is a parent’s responsibility to educate their children. It is not the government’s job. 

I admit to being puzzled as to why so many people think parent's responsibilities and government's jobs are mutually exclusive.  Do we not each defend our children, for example, both at home and through constitutional mechanisms?  Why, then, should each authority not have some role in education, especially when the health of the republic is at stake?

Indeed, as Vermont's own Ira Allen observed:

The greatest legislators from Lycurgus down to John Lock, have laid down a moral and scientific system of education as the very foundation and cement of a State...

But since the article above brought up Jefferson, I gotta return to Senator Sessions:

Oh my (via LGM):

This week, Alabama Senator Jefferson Beauregard Sessions III...decided to wage war against humanistic inquiry in general. In a letter to the chair of the National Endowment for the Humanities, Carol Watson, Sessions demanded to know why the NEH was doling out so much grant money for projects that struck him as obviously worthless.
...
Sessions has also uncovered evidence that the government agency’s “Bridging Cultures” program is “distribut[ing] books related to Islam to over 900 libraries across the United States.” Books about Muslims in Uncle Sam's libraries? What nefarious plot is this?!

Sessions makes no bones about the purpose of his letter, which is to establish his reasons for trying to gut the NEH’s budget.

Oh, bah, Imma just quote Sayshuns' namesake, Thomas Jefferson, for rebuttal:

  • A Bill for the More General Diffusion of Knowledge (1780): [W]hence it becomes expedient for promoting the publick happiness that those persons, whom nature hath endowed with genius and virtue, should be rendered by liberal education worthy to receive, and able to guard the sacred deposit of the rights and liberties of their fellow citizens, and that they should be called to that charge without regard to wealth, birth or other accidental condition or circumstance; but the indigence of the greater number disabling them from so educating, at their own expence, those of their children whom nature hath fitly formed and disposed to become useful instruments for the public, it is better that such should be sought for and educated at the common expence of all, than that the happiness of all should be confided to the weak or wicked.
  • Letter to George Whythe (1786): Preach, my dear Sir, a crusade against ignorance; establish and improve the law for educating the common people. Let our countrymen know that the people alone can protect us against [tyranny, oppression, etc], and that the tax which will be paid for this purpose is not more than the thousandth part of what will be paid to kings, priests and nobles who will rise up among us if we leave the people in ignorance.
  • Letter to Pierre S. Dupont de Nemours (1816): Enlighten the people generally, and tyranny and oppressions of body and mind will vanish like evil spirits at the dawn of day...I believe [the human condition] susceptible of much improvement, and most of all, in matters of government and religion; and that the diffusion of knowledge among the people is to be the instrument by which it is effected.

Being generally enlightened--not just trained to be a cog in the capitalist machine--is important in a republic such as ours.  And if people want to deal effectively with the world at large, which includes 1.3 billion Muslims, it might even be a good idea to learn about Islam, oddly enough!  Which was central to Jefferson's and Allen's point.

Anyway, here's a funny little tangent.  Here's part of that Jefferson quote I grabbed from the Salon article again:

[The People] are the only sure reliance for the preservation of our liberty.

It sounded familiar to me, so I dug up yet another old post of mine

[On the People's] good sense we may rely with the most security for the preservation of a due degree of liberty. 

Not only are the sentiments identical with extremely similar wording, they both purportedly come from a letter written to James Madison on December 20, 1787.  I was a bit confused at first because when you look at each piece's source [Salon's, mine] you find a great deal of overlap and divergence.

It appears to matter which collection of TJ's letters you rely upon.  The one Salon used likely comes from the Memorial Edition (or the Washington Edition) whereas my source is the Ford Edition.  And about these myriad versions:

Unlike Henry Washington, Ford went to great lengths to check his transcriptions and page proofs against the original documents. In so doing, Ford insured that his was the most accurate and scholarly edition of Jefferson’s writings yet published.

Ford’s Writings of Thomas Jefferson was not a flawless work. Owing to the editorial rigor that he brought to the documents, especially the various state papers, Ford was not able to include as many papers as Henry Washington had...Nonetheless Ford’s Writings of Thomas Jefferson was a dramatic improvement over previous editions.

Paul L. Ford’s edition of Jefferson’s writings appeared four decades after the Congress Edition of Henry A. Washington. Despite Ford’s editorial rigor and the sophistication of his collection, it was soon followed by another, larger, collection of published Jefferson papers.

In April 1903 a new organization, the Thomas Jefferson Memorial Association, was launched. The Association was dedicated to raising money and support for the building of a monument to Jefferson in Washington. It failed to do so owing to a lack of funds. The Association did sponsor a new edition of Jefferson’s writings, edited by Andrew A. Lipscomb and Albert E. Bergh, usually referred to as the ‘Memorial Edition’...

They supplemented Washington’s original edition with some notable additions...In terms of its scope and coverage, the Memorial Edition was the most ambitious and comprehensive of the four major collections of Jefferson’s writing published between 18229 and 1904.

Unfortunately, the editing of the documents was uneven. In transcribing documents, Lipscomb and Bergh replicated Henry Washington’s earlier errors while introducing new mistakes of their own....Although widely circulated, the Memorial Edition was inadequate for serious study of Jefferson. While it was more inclusive than Ford’s recent Writings of Thomas Jefferson, it lacked the editorial sophistication and scholarly reliability that characterized Ford’s edition.“

Just goes to show that it's sometimes hard to be truly definitive when citing stuff from so long ago.  One must always be cautious.  And willing to learn new things instead of being stuck in old tropes, the way our republican founders intended for the good of our nation.

ntodd

February 26, 2015 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Wednesday, February 25, 2015

The Flag Frees

Redux:

[South Portland High School] Senior class president Lily SanGiovanni sparked community outrage in January when she changed the way she invited students and faculty members to recite the pledge.

“At this time,” SanGiovanni said over the intercom, “would you please rise and join me for the Pledge of Allegiance if you’d like to.”

It was the latest salvo in a monthslong effort by SanGiovanni and some of her friends to make it clear that reciting the pledge is optional under state and federal law, so students cannot be forced to stand and say it every morning. Although no students have filed formal complaints in recent years, SanGiovanni and her friends said they and other students have felt uncomfortable or pressured by their teachers to say it.

The addition of “if you’d like to” inflamed simmering opposition from staff members who had been wrestling with the pledge issue since June. It also triggered an emotional, anti-immigrant backlash in the community and left SanGiovanni and her friends searching for a way to carry their cause forward.

Schools never learn.

ntodd

February 25, 2015 in Constitution, Schmonstitution | Permalink | Comments (4) | TrackBack

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Tuesday, February 24, 2015

Let's Review

[I]ndependence of the judges is...requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves...

 - Federalist 78

 

Happy birthday to the Right's least favorite SCOTUS ruling ever! Thanks to this part of Marbury:

It is emphatically the duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret the rule. If two laws conflict with each other, the Court must decide on the operation of each.

If courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.

From this I think flows much good in America.  Other folks seem to believe the ruling enables "activist judges".  They are, of course, wrong. 

I certainly acknowledge that SCOTUS and the Judiciary are potential--in some cases, very real--threats to individual rights.  But given Madison's fears of tyranny at the state level, which is very much more pronounced today, the Court has proven to be a significant firewall against the spread of some injustice.  And the branch really is checked fairly easily when contrasted with the Imperial Presidency.

While the Judiciary is not democratic, that's part of the point.  We've seen examples of direct democratic action in many states wherein the People in their collective wisdom voted to deny basic civil rights to their fellow citizens (and those denials are falling like dominoes, much to Scalia's chagrin).  

The Court--even the Roberts Court--can mitigate problems of mob rule.  Judicial review is a necessary power to check other branches and other levels of sovereignty to preserve liberty, and functions in concert with the other branches to foster working governance.

Review is also a logical component of the courts' role in our republican system, as I think the Framers really understood.  While Justice Marshall might have made this more explicit than our Constitution--though he didn't use the phrase "judicial review" either--he didn't really assume any power the Court did not already possess.

When you look at the Council of Revision that was proposed which was proposed in Convention on June 4, 1787, you can really get the context.  Basically it was a vetoing body that included the Executive and members of the Judiciary.  Objections were raised from the start:

Mr. GERRY doubts whether the Judiciary ought to form a part of it, as they will have a sufficient check agst. encroachments on their own department by their exposition of the laws, which involved a power of deciding on their Constitutionality. In some States the Judges had actually set aside laws as being agst. the Constitution. This was done too with general approbation. It was quite foreign from the nature of ye. office to make them judges of the policy of public measures. He moves to postpone the clause...

Mr. KING seconds the motion, observing that the Judges ought to be able to expound the law as it should come before them, free from the bias of having participated in its formation.

When Madison later proposed having a Federal veto on State laws:

Mr. Govr. MORRIS was more & more opposed to the negative. The proposal of it would disgust all the States. A law that ought to be negatived will be set aside in the Judiciary departmt. and if that security should fail; may be repealed by a Nationl. law.

And when the Council was again debated:

Mr. L. MARTIN[A]s to the Constitutionality of laws, that point will come before the Judges in their proper official character. In this character they have a negative on the laws. Join them with the Executive in the Revision and they will have a double negative. It is necessary that the Supreme Judiciary should have the confidence of the people.

Mr. RUTLIDGE thought the Judges of all men the most unfit to be concerned in the revisionary Council. The Judges ought never to give their opinion on a law till it comes before them. He thought it equally unnecessary. 

There were more discussions of this nature on August 15 and 27.  I'd also like to quickly point out that one of my heroes, John Dickinson, wrote as Fabius in support of ratification later on:

Our government under the proposed confederation, will be guarded by a repetition of the strongest cautions against excesses. In the senate the sovereignties of the several states will be equally represented; in the house of representatives, the people of the whole union will be equally represented; and, in the president, and the federal independent judges, so much concerned...in the determination of [the laws'] constitutionality, the sovereignties of the several states and the people of the whole union, may be considered as conjointly represented.

A couple years after that, Madison said when he introduced the original Bill of Rights for consideration:

[I]ndependent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights.

And finally, when the Judiciary Act of 1789 was passed, Elbridge Gerry told the House:

[The courts] will, in this elevated and independent situation attend to their duty--their honor and every sacred tie oblige them.  Will they not attend to the constitution as well as your laws?  The constitution will undoubtedly be their first rule; and so far as your laws conform to that, they will attend them, but no further.

The point being that "expounding" the law inherently involves deciding constitutional questions, and if the highest court in the land rules something is repugnant to the supreme law of the land, all lower courts have to follow suit.  Then the other branches will have to figure out whether and how to respond (e.g., SCOTUS tossed out a flag burning ban, Congress tried again, lost again and gave up).

I have no love for Andrew Jackson (who is famously misquoted responding to Marshall's ruling in Worcester v Georgia regarding my Cherokee ancestors), but he was spot on with the message explaining his veto the Second Bank of the US:

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.

We do tend to treat SCOTUS as the ultimate arbiter of constitutionality, but everybody is responsible for interpreting the supreme law as they execute their duties.  And they all ought to be jealous of their powers.  There is no final step, so even if SCOTUS strikes down, say...ACA tomorrow, that's not the end of the process of reforming healthcare.

I'm not wholly in the departmentalist camp, but checks and balances aren't supposed to be super easy.  You can work to limit expansion of power in one arena, but it comes with a cost (political or otherwise).  If it were too easy to stomp on another branch, we'd have no government.  As Justice Jackson said:

While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.

By themselves, yes, a handful of people with lifetime jobs in charge of our fate would be extremely dangerous.  Fortunately, there are 2 other co-equal branches also doing their jobs.  On the flip side, I'm glad that those other departments don't have the final word, either.

ntodd

February 24, 2015 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Friday, February 20, 2015

Adam Smith And I Want A Threesome With The Post Office

[The Post Office] is perhaps the only mercantile project which has been successfully managed by, I believe, every sort of government. 

 - Adam Smith, Wealth of Nations (Book V, Ch 2)


The Post Office has been around since before we had even declared independence--with Ben Franklin made the first Postmaster General--showing just how important communication in general and the postal service in particular is.  The Articles Congress passed An Ordinance for Regulating the Post-Office of the United States of America in 1782.  

Once the US Congress ramped up under our Constitution in 1789, the House wanted to continue the existing regime: 

[U]ntil further provision be made by law, the General Post Office of the United States shall be conducted according to the rules and regulations prescribed: by the ordinances and resolutions of the late Congress, and that contracts be made for the conveyance of the mail in conformity thereto...

But the Senate had other ideas, and on September 11:

Mr. Butler, in behalf of the committee appointed on the tenth of September, on the resolve of the House of Representatives, providing for the regulation of the post of flee, reported, not to concur in the resolve, and a bill upon the subject matter thereof;

And, on the question of concurrence in the resolve of the House of Representatives:

It passed in the negative.

Ordered, That the bill, entitled "An act for the temporary establishment of the post office," have the first reading at this time.

It's not apparent from the record how much, if any, debate there was on the bill.  It zipped through the Senate, and was passed even more rapidly by the House.  The act was extremely brief and its operation was limited through the next session, though it had to be renewed the following August, and again in March after that (when service was also extended to Bennington in the new state of Vermont!).  It appears the Legislative branch has always had difficulty addressing some issues and needed to extend "temporary" solutions time and again.

Anyway, Congress put the Post Office under the Executive branch, which makes sense.  What they didn't do was provide the department much power except basically making contracts for transport of the mail.  The further expansion of the system, and delegation of authority to do so, was an unresolved constitutional question.  Because, you know, it is the Legislative branch who was granted this power in Article I, Section 8To establish Post Offices and Post Roads.  

Which brings us to the Second Congress.  President Washington lit a fire under legislators on October 25, 1791:

I shall content myself with a general reference to former communications for several objects, upon which the urgency of other affairs has hitherto postponed any definitive resolution. Their importance will recal them to your attention; and, I trust, that the progress already made in the most arduous arrangements of the government will afford you leisure to resume them with advantage.

There are, however, some of them of which I cannot forbear a more particular mention. These are: the militia; the post-office and post roads; the mint; weights and measures; a provision for the sale of the vacant lands of the United States.
...
The importance of the post-office and post reads, on a plan sufficiently liberal and comprehensive, as they respect the expedition, safety, and facility of communication, is increased by their instrumentality in diffusing a knowledge of the laws and proceedings of the government; which, while it contributes to the security of the people, serves also to guard them against the effects of misrepresentation and misconception. The establishment of additional cross posts, especially to some of the important points in the western and northern parts of the Union, cannot fail to be of material utility.

So the House finally got to work in earnest on December 6.  Mr Sedgwick started things off with a motion to have the president establish postal routes, as opposed to Congress' specifying each road in legislation.  There was objection:

Mr Livermore observed that the Legislative body being empowered by the Constitution "to establish post offices and post roads," it is as clearly their duty to designate the roads as to establish the offices; and he did not think they could with propriety delegate that power, which they were themselves appointed to exercise. Some gentlemen, he knew, were of opinion that the business of the United States could be better transacted by a single person than by many; but this was not the intention of the Constitution.

It was provided that the Government should be administered by Representatives, of the people's choice; so that every man, who has the right of voting, shall be in some measure concerned in making every law for the United States. The establishment of post roads he considered as a very important object; but he did not wish to see them so diffused as to become a heavy charge where the advantage resulting from them would be but small; nor, on the other hand, for the sake of bringing a revenue into the Treasury, consent to straiten them so as to check the progress of information.

If the post office were to be regulated by the will of a single person, the dissemination of intelligence might be impeded, and the people kept entirely in the dark with respect to the transactions of Government; or the Postmaster, if vested with the whole power, might branch out the offices to such a degree as to make them prove a heavy burden to the United States.

A reply:

Mr Sedgwick felt himself by no means disposed to resign all the business of the House to the President, or to any one else; but he thought that the Executive part of the business ought to be left to Executive officers. He did not, for his part, know the particular circumstances of population, geography, &c., which had been taken into the calculation by the select committee, when they pointed out the roads delineated in the bill; but he would ask, whether they understood the subject so thoroughly as the Executive officer would, who being responsible to the people for the proper discharge of the trust reposed in him, must use his utmost diligence in order to a satisfactory execution of the delegated power?

As to the constitutionality of this delegation, it was admitted by the committee themselves who brought in the bill; for if the power was altogether indelegable, no part of it could be delegated; and if a part of it could, he saw no reason why the whole could not. The second section was as unconstitutional as the first, for it is there said, that "it shall be lawful for the Postmaster General to establish such other roads as post roads, as to him may seem necessary."

Congress, he observed, are authorized not only to establish post offices and post roads, but also to borrow money; but is it understood that Congress are to go in a body to borrow every sum that may be requisite? Is it not rather their office to determine the principle on which the business is to be conducted, and then delegate the power of carrying their resolves into execution? They are also empowered to coin money, and if no part of their power be delegable, he did not know but they might be obliged to turn coiners, and work in the Mint themselves. 

Yaddayaddayadda.  

At the heart of discussion wasn't just whether Congress could delegate such power, but was it even a good idea?  Was the USPS a business, in essence, that should be run super efficiently with substantial executive discretion and maybe even generate some revenue for the national government?  Or was it really an essential public service that needed to be more responsive to the needs of the People and thus required very particular oversight by their representatives in the legislature?

Sedgwick's motion was defeated the following day, so it appears that Congress felt the Post Office wasn't a business per se.  Something that Darrell Issa ought to keep in mind.

Finally, a bill with about 50 lines of designated postal routes was delivered to the Senate on January 10, 1792.  Senators nitpicked, then the chambers came to agreement and Washington signed the rather expansive bill into law on this date.

But good on the people who want to destroy the Constitution's 222-year old (or older) institution, rather than trying to make it more responsive and useful to Americans.

ntodd

PS--Completely reposting this bitch because yeah.

February 20, 2015 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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So Much For 'No Religious Test'

Resolved, That the third section of the sixth article ought to be amended, by inserting the word "other" between the words "no" and "religious."

 - South Carolina ratification of US Constitution, May 23, 1788


Judicial Watch founder and right-wing legal activist Larry Klayman, ladies and gentlemen:

“Given the fact that the president is a Muslim at heart and half-Muslim by birth, he can’t even swear to the Constitution because you have to swear on the Holy Bible of Judeo-Christians,” he explained. “This president obviously believes in Sharia law, and as a result he has no respect for this Constitution, which was founded by our founding fathers under Judeo-Christian principles.”

President doesn't have to swear on the Bible, of course, though Obama has.  Twice.  On Lincoln's.

But who the fuck cares?  Even Mahometans can serve their beloved country, as the Framers had intended.  Says so in the Constitution that Obama upholds.

ntodd

February 20, 2015 in Constitution, Schmonstitution | Permalink | Comments (2) | TrackBack

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Bless The Pauls' Heart

Zandar brings our attention to this gem:

It’s getting progressively more and more difficult for Sen. Rand Paul to ignore his father’s osmium-density baggage.

Former Republican presidential candidate and congressman Ron Paul says secession is happening and it’s “good news.” Paul later predicted the states would stop listening to federal laws.

I would like to start off by talking about the subject and the subject is secession and, uh, nullification, the breaking up of government, and the good news is it’s gonna happen. It’s happening,” Paul, the father of potential Republican presidential candidate Rand Paul, told a gathering at the libertarian Mises Institute in late January. The event Paul was speaking at was titled “Breaking Away: The Case for Secession.”

Paul said secession would not be legislated by Congress, but would be de facto, predicting “when conditions break down…there’s gonna be an alternative.”

“And it’s not gonna be because there will be enough people in the U.S. Congress to legislate it. It won’t happen. It will be de facto. You know, you’ll have a gold standard when the paper standard fails, and we’re getting awfully close to that. And people will have to resort to taking care of themselves. So when conditions break down, you know, there’s gonna be an alternative. And I think that’s what we’re witnessing.”

Like the Walking Dead, only with Bitcoin and weed.

Um, yeah...no, and no, and no, and no, and no.  The end.

ntodd

PS--"Secession [will] not be legislated by Congress."  No shit?

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

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Wednesday, February 18, 2015

Republican Government

On this date, 1791:

Mr. Speaker: I am directed to inform this House, that the President of the United States did, this day, approve and sign, an act which originated in the Senate, entitled "An act for the admission of the State of Vermont into this Union." And then he withdrew.

And with President Washington's signature the Green Mountain State--having ratified the Constitution in January--was admitted on March 4 as a member with equal sovereignty to the Union.  An independent republic no more, but still republican in its organization and virtue.

ntodd

February 18, 2015 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Monday, February 16, 2015

A Nation Of Laws

Defy this, Justice Moore:

Alabama Probate Judge Steven Reed on Sunday said he had no problem defying the chief justice's order not to issue marriage licenses to gay couples after a federal court struck down the state's same-sex marriage ban.

"There was no hesitation. At the time Chief Justice Moore had not started bloviating on this topic and so there was no need to defy because I didn't ask for his opinion and frankly didn't need it," Reed said on ABC's "This Week" about his decision to begin issuing gay marriage licenses.
...
"I think it was a desperate attempt to defy the federal government," he said about Moore's order. "I think that's what places Alabama a step backwards in some people's eyes when they see things like this happen, the defiance and the resistance. And I think that we're on the front side of this and we're on the right side of history where this is concerned."

Hey, what's good for the goose...

ntodd

February 16, 2015 in Constitution, Schmonstitution | Permalink | Comments (2) | TrackBack

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Sunday, February 15, 2015

Remember Pinckney, Remembering Frequently

And give to the believers the good news that they shall have a great grace from Allah.

 -  Qur'an, Surah 33:47

Nice op-ed at TPM:

After the Constitution was drafted, Pinckney was tasked with taking it before the South Carolina legislature for that state’s ratification debate. During the debate, he was asked by one of the legislators about that exact Article VI paragraph, and more exactly about whether it would mean that “a Muslim could run for office in these United States?” Pinckney’s answer? “Yes, it does, and I hope to live to see it happen.” His words are inspiring, and a challenge to those who say they believe in inclusion today. How many white, Christian elected officials today would say “I hope to see more Muslim Americans in elected office” the way Charles Pinckney did?

I liked the framing, particularly in that it reminds us once again that the Founders weren't monolithic, and even slavers gave us a few good things.  Our history is much more nuanced than the treatment it generally gets.  And yeah, Pinckney deserves to be remembered for his contributions, but he gets lost in the background because we apparently can only keep track of so many heroes in our pantheon.

And now to go off on a completely different path, something tripped me up.  Using 'Muslim' in the quoted text above sounded anachronistic.  Everything contemporaneous that I've read contains words like 'Turk' or 'Moor' or "Mahometan', so naturally I went in search of original documentation of the exchange.

Since the author said Pinckney was replying to a legislator and not a delegate, it clearly is supposed to have taken place during legislative debate rather than at the ratifying convention.  However, the only thing I could find that's remotely related to the constitutional ban on religious tests was this:

Hon. PATRICK CALHOUN, of Ninety-six, made some observations on the too great latitude allowed in religion.

I did see concerns in the NORTH Carolina debates:

The exclusion of religious tests is by many thought dangerous and impolitic. They suppose that if there be no religious test required, pagans, deists, and Mahometans might obtain offices among us, and that the senators and representatives might all be pagans. Every person employed by the general and state governments is to take an oath to support the former. Some are desirous to know how and by whom they are to swear, since no religious tests are required--whether they are to swear by Jupiter, Juno, Minerva, Proserpine, or Pluto. We ought to be suspicious of our liberties. We have felt the effects of oppressive measures, and know the happy consequences of being jealous of our rights. I would be glad some gentleman would endeavor to obviate these objections, in order to satisfy the religious part of the society. Could I be convinced that the objections were well founded, I would then declare my opinion against the Constitution.

Thus stymied, I had a brief email conversation with the article's author, Ben Railton, in hopes of finding a specific source.  Professor Railton indicated that he'd seen the debate at the Library of Congress in Elliot's, but didn't take down a full transcription.  

No elucidation or closure, though it did at least confirm I had zeroed in on the correct general area.  It's quite possible that there's more detail in the physical papers at LoC, or when Railton originally made his notes he conflated a few things, or whatever.  Really neither here nor there from where I sit at this point--it captures the spirit of people and times like other things I've checked into (caveats about paraphrase masquerading as quotation notwithstanding).

In the end, I dug up a lot more interesting stuff--both new and familiar--as I investigated the Calhoun/Pinckney exchange.  First, here's Virginia Governor Randolph at his state's convention on June 4, 1788:

Religion, the dearest of all interests, has too often sought proselytes by fire rather than by reason; and politics, the next in rank, is too often nourished by passion, at the expense of the understanding.

Yathink?  Anywayz, the Constitution was the mother of all political compromises between people with different sectional, religious, and economic jealousies.  Hard to please everybody, which made ratification a dicey proposition, especially in states like Virginia.

Randolph's fellow Virginians James Madison and Thomas Jefferson discussed the various issues quite a bit.  From the former's letter of October 17, 1788, defending the lack of a Bill of Rights:

[T]here is great reason to fear that a positive declaration of some of the most essential rights could not be obtained in the requisite latitude. I am sure that the rights of Conscience in particular, if submitted to public definition would be narrowed much more than they are likely ever to be by an assumed power. One of the objections in New England was that the Constitution by prohibiting religious tests opened a door for Jews Turks & infidels.

Indeed, some folks in our neck of the woods weren't so high minded on issues of conscience.  Here's A Watchman addressing the citizens of the United States in The Worcester Magazine on February 7, 1788:

1st. There is no bill of rights in it.

2d. Although different religions are allowed to set in Congress, yet there is no liberty given to the people to perform religious worship according to the dictates of their consciences.

3d. There is a door opened for the Jews, Turks, and Heathen to enter into public office and be seated at the head of the government of the United States.

No sense of irony or cognitive dissonance there!  Sounds like Sarah Palin, complaining about a war on Christians because some people don't celebrate Christmas and are cool with mosques being built in America.

In a similar vein, here's Curtiopolis (apparently an anti-Publius) in the New York Daily Advertiser on January 18, 1788, complaining that the riffraff could be given power over legislation:

Ist. Quakers, who will make the blacks saucy, and at the same time deprive us of the means of defence--2dly. Mahometans, who ridicule the doctrine of the Trinity--3dly. Deists, abominable wretches--4thly. Negroes, the seed of Cain--Sthly. Beggars, who when set on horse back will ride to the devil--6thly. Jews etc. etc.

Certainly wouldn't want any of those types in government (trust me, I'm Quaker).  But even they had defenders, such as Reverend Daniel Shute at Massachusetts' convention on January 30, 1788:

In this great and extensive empire, there is, and will be, a great variety of sentiments in religion among its inhabitants. Upon the plan of a religious test, the question, I think, must be, Who shall be excluded from national trusts? Whatever answer bigotry may suggest, the dictates of candor and equity, I conceive, will be, None.

Far from limiting my charity and confidence to men of my own denomination in religion, I suppose, and I believe, sir, that there are worthy characters among men of every denomination — among the Quakers, the Baptists, the Church of England, the Papists; and even among those who have no other guide, in the way to virtue and heaven, than the dictates of natural religion.

I must therefore think, sir, that the proposed plan of government, in this particular, is wisely constructed; that, as all have an equal claim to the blessings of the government under which they live, and which they support, so none should be excluded from them for being of any particular denomination in religion.

The presumption is, that the eyes of the people will be upon the faithful in the land; and, from a regard to their own safety, they will choose for their rulers men of known abilities, of known probity, of good moral characters. The apostle Peter tells us that God is no respecter of persons, but, in every nation, he that feareth him, and worketh righteousness, is acceptable to him. And I know of no reason why men of such a character, in a community of whatever denomination in religion, caeteris paribus, with other suitable qualifications, should not be acceptable to the people, and why they may not be employed by them with safety and advantage in the important offices of government. The exclusion of a religious test in the proposed Constitution, therefore, clearly appears to me, sir, to be in favor of its adoption.

And Dr Benjamin Rush, signer of the Declaration and delegate to the Pennsylvania convention, described Philadelphia's first Independence Day parade after the Constitution's ratification (a mere two weeks prior):

The clergy formed a very agreeable part of the procession.  They manifested the sense of connection between religion and good government.  Pains were taken to connect ministers of the most dissimilar religious principles together, thereby to show the influence of a free government in promoting Christian charity.  The Rabbi of the Jews, Jacob Raphael Cohen of Congregation Mikveh Israel, Philadelphia’s only synagogue, locked in arms of two ministers of the gospel was a most delightful sight.  There could not have been a more happy emblem contrived of that section of the new Constitution, Article VI, prohibiting religious qualifications for holding office, which opens all its power and offices alike not only to every sect of Christians but to worthy men of every religion.

There you have it.  Despite vocal, bigoted objections to letting non-Christians participate in their own government, liberal forces won the argument.  An expansive view of religious liberty was codified in the Constitution even before the Bill of Rights was a glimmer in Madison's eye.

Today's demagogues stoke fears of Sharia law.  Back then, they warned that if the president were "a Jew, our dear posterity may be ordered to rebuild Jerusalem."  

There is nothing new under the sun, and the asshole shall never cease out of the land.  That said, surely the Future shall be better for us than the Past, and in the end shall our Lord be bounteous to us and we will be satisfied, Insha'Allah.

ntodd

February 15, 2015 in Constitution, Schmonstitution | Permalink | Comments (2) | TrackBack

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Abraham Lincoln: Tenther Killer

Senator Douglas and his peculiar adherents plant themselves upon the tenth amendment...

 - Abraham Lincoln, Cooper Union Address (February 27, 1860)

There's no spunk in that, you ahistorical pricks (via Lemieux):

In footage released by American Bridge, the progressive super PAC that seems always to know in advance when a Republican candidate is about to trip over himself, Perry told the party faithful that “Abraham Lincoln read the Constitution, and he also read the Bill of Rights, and he got down to the Tenth Amendment, and he liked it. That Tenth Amendment that talks about these states, these laboratories of democracy. … The Tenth Amendment that the federal government is limited, its powers are limited by the Constitution.”

For armchair historians whose first instinct is to protest that Abraham Lincoln never called the states “laboratories of democracy,” it’s only fair to note that, moments later, Perry properly credited that metaphor to former Supreme Court Justice Louis Brandeis. But the rest of Perry’s homage betrays a regrettable ignorance of Lincoln’s political outlook.

I suppose Perry could've been inspired by this from Lincoln's first debate with Douglas in 1858

The great variety of the local institutions in the States, springing from differences in the soil, differences in the face of the country, and in the climate, are bonds of union. They do not make “a house divided against itself” but they make a house united. If they produce in one section of the country what is called for by the wants of another section, and this other section can supply the wants of the first, they are not matters of discord but bonds of union, true bonds of union.

I know, that's giving him (or his speechwriters) too much credit for actually reading anything Lincoln said.  And I'll note that the president clearly saw state diversity in the context of a strong and perpetual union wherein nullification and other loose canon legalism was anathema to our Constitution.  I mean, c'mon, it's well known that his First Inaugural paid homage to great anti-nullifiers, including Andrew Jackson and his Nullification Proclamation.

Nobody disagrees that there is a deliberate tension between states and our general government, or that the latter is constrained by the Constitution.  The question is, as always, where precisely their respective spheres are bound.  

Certain Tenthers seem to appeal to or decry Federal power in ways that would make Lincoln drive a stake through their evil heart.

ntodd

February 15, 2015 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Friday, February 13, 2015

Homophobic Hobgoblins

Because, of course, these folks are always so consistent:

Daily Show host Jon Stewart found a big problem with Alabama Chief Justice Roy Moore’s order barring judges from performing same-sex marriages — one state voters created this past December.

Stewart pointed out that, while Moore argued that a federal court ruling striking down the state’s ban on marriage equality would “ring chaos and confusion into the system,” local probate judges were openly saying they would not follow the higher court’s decision because of their religious beliefs.

And that, Stewart explained, ran against the mandate of Amendment 1, the anti-”Sharia law” bill that bans the implementation of any ruling based on “foreign law.” The bill was featured in a report from correspondent Aasif Mandvi last month.

“Where was the Bible written again? Last time I checked, ancient Galilee is not one of the 50 states. Or even one of them territories that nobody knows about. Which makes it foreign law,” Stewart said on Wednesday. “The kind of foreign law you’d explicitly banned from judicial decisions. You have f*cked yourselves with your own statute..."

However, I'm not sure any parts of the Old or New Testaments were written in the backwater of Galilee.

ntodd

February 13, 2015 in Constitution, Schmonstitution | Permalink | Comments (1) | TrackBack

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Thursday, February 12, 2015

Dear State Judges

The Federal gummint does, in fact, have authority, tires of your recalcitrance, and has given you a homework assignment to re-read the Constitution.  Don't press too hard when writing those marriage licenses, or you'll cramp up!

ntodd

PS--Oddly enough, Alabama's constitution does not have a clause like this one in North Carolina's:

Sec 5. Every citizen of this State owes paramount allegiance to the Constitution and government of the United States, and no law or ordinance of the State in contravention or subversion thereof can have any binding force.

Shoulda made all secesh states include something similar before readmission.  But that would make the longest constitution in the world even longer.  No wonder the state's so fucked...

February 12, 2015 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack