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Wednesday, October 29, 2014

Senate Rules Is As Senate Rules Does

Lyle Denniston over at the National Constitution Center:

From time to time, critics of Senate filibusters – the prolonged debate by one or more members to keep that chamber from reaching a vote on a controversial measure – have been trying to persuade the courts that the power can be abused and, when it is, flatly contradicts the Constitution’s embrace of action by a majority in each house (an idea that gets mentioned specifically in Article I).

In nearly all of those cases, the courts have turned aside the constitutional challenge for procedural reasons, finding that no challenger was in a position, legally, to raise the issue in court. The Supreme Court has not disturbed that kind of result.

The most recent court ruling on such a challenge, however, has led a new group of challengers to try again, and they are now attempting to persuade the Supreme Court to finally rule on the complaint. They believe that the way they lost the case in the federal appeals court in Washington, D.C., actually makes their case fundamentally different, and thus a better test of Senate filibusters than any previous challenge.

Instead of turning aside the challenge of four members of the House, three young individuals, and the advocacy group Common Cause on the premise that each lacked a sufficient interest to justify their challenge, the D.C. Circuit Court issued a more sweeping ruling.

If bills that the House had passed — bills that the four lawmakers had voted for, and that would have benefitted the three individuals and Common Cause – never came to a vote in the Senate, the blame lay with those senators who refused to vote to cut off debate and allow a final vote on passage, the Circuit Court ruled.

In other words, any frustration of the challengers’ interests, the Circuit Court said, came from those senators, or from the Senate itself. But, of course, the individual senators and the Senate itself cannot be sued for anything they do in the legislative realm, because that is flatly forbidden by the Constitution’s Speech or Debate Clause. Article I, Section 6, says that members of Congress “shall not be questioned in any other place” for any speech or debate, and that is understood to mean any legislative activity.

That ruling, the new appeal argued in Supreme Court filings, goes so far that no one could ever sue to challenge a legislative rule and that, as a result, Congress could even adopt a rule that flatly discriminated in the legislative process on the basis of race, and yet there would be no one who could go to court with a challenge.

The rules can be convoluted and annoying, but this dog really will not do the constitutional hunting dealio on filibusters.  Don't like how that works?  Elect better people.  Change the Constitution.  You know, follow the rules.

ntodd

October 29, 2014 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Sunday, October 26, 2014

Quarantines Is As Quarantines Does

A Republican admits the government has a responsibility to the public good when it comes to health matters:

New Jersey Gov. Chris Christie on Sunday defended the mandatory quarantines in New Jersey and New York for all health workers who return from treating Ebola patients in West Africa.

"I think this is a policy that will become a national policy sooner rather than later," Christie said on "Fox News Sunday." "We have taken this action, and I have no second thoughts about it."

Christie said that Centers for Disease Control protocol on Ebola was a "moving target" and that he thinks the CDC will eventually adopt the mandatory quarantine.

The governor said he doesn't have confidence in the CDC's "voluntary system with folks who may or may not comply."

"I don’t think, when you’re dealing with something as serious as this, that you can count on a voluntary system. This is government’s job," he said.

Still not sure it's a necessary step (let alone a potentially bad step) as opposed to "health security theater," but it's well within state police power, upheld by SCOTUS over a century ago.  And as the CDC has noted, quarantine has a long, rich history in America.

ntodd

October 26, 2014 in Constitution, Schmonstitution | Permalink | Comments (1) | TrackBack

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Saturday, October 25, 2014

Treason In Defense Of The Constitution Is Treason

Plainly, the central idea of secession, is the essence of anarchy.

 - Abraham Lincoln, First Inaugural

And now Digby on our modern treasonous secesh:

[W]hat amuses me about these scenarios is the fact that Ronald Reagan was the biggest flag-waving American patriot around. As were pretty much all Republicans not ten years ago. "These colors don't run" blah, blah, blah. And today they seem to hate it, mostly because they hate so many Americans. 

It's fine with me if they hate America. Everyone has the right to do that if they choose. But it would be nice if they could be the tiniest bit consistent about this. When the left complains about American policy it is accused of being UnAmerican and called traitors to their country by these same people. And yet when theydon't like American policies they can call for secession and maintain their reputations as All American patriots at the same time. 

Yeah, all of that.  

And no, Mr Reaganhead, secession was not and is not legal in any legal sense.  It's just treason, and calling for it is sedition.

ntodd

October 25, 2014 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Friday, October 24, 2014

Full Faith And Credit

Florida: so concerned about the sanctity of marriage it won't allow divorce equality.  They should note that this didn't work well for Texas...

ntodd

October 24, 2014 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Wednesday, October 22, 2014

Don't Panic

On this date in 1907, the Knickerbocker Trust Company collapsed, sparking the Panic of 1907.  This is something that must cause Ron Paul and his friends a great deal of consternation.  Not due to the economic and human cost involved, but because it drove commies in Congress to unconstitutionally create the Evil Fed.

So one might say the American Republic ended on that day.

ntodd

October 22, 2014 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Tuesday, October 21, 2014

The Trouble With Stubborn Facts

Via LGM, Chait notices some bad electoral argumentation and factualizationism:

Fund also argues that holding elections on a single date is a Constitutional requirement, or at least sort of Constitutional-ish:

The notion of Election Day isn’t just a tradition; it’s in the Constitution. Article II, Section 1 states that “Congress may determine the Time of choosing the Electors, and the Day on which they shall give their votes; which day shall be the same throughout the United States.” Congress codified this requirement in 1872 by setting a uniform presidential election date.

If you read this passage slowly, you will note the progressive deterioration of Fund’s argument. The first sentence asserts baldly that a single election day is “in the Constitution,” which sounds like, you know, a requirement. This raises the question of why Republicans have not mounted a successful constitutional law challenge against early voting.

The answer begins to reveal itself in Fund’s second sentence. It explains that the Constitution states that Congress “may” — but not must — set a uniform day for “choosing the Electors,” which is not the same thing as voting, anyway. (You could choose the electors on a single day after you count all the votes, which may be cast over a longer period of time.)

The final sentence points out, correctly, that there was no set day until Congress decided to create one in 1872, which is another way of saying that a single day when everybody votes is not in the Constitution at all.

True, it ain't required in the Constitution (very little is).  But it's worse than that:

The notion of Election Day isn’t just a tradition; it’s in the Constitution. Article II, Section 1 states that “Congress may determine the Time of choosing the Electors, and the Day on which they shall give their votes; which day shall be the same throughout the United States.” Congress codified this requirement in 1872 by setting a uniform presidential election date. But in a rare bow to the notion of federalism, today’s courts have nonetheless been reluctant to invalidate state laws that go against this dictate. In 2002, a panel of the U.S. Court of Appeals for the Ninth Circuit upheld Oregon’s vote-by-mail law because of “a long history of congressional tolerance” toward absentee voting. It rejected arguments from the Voting Integrity Project that Oregon’s effective end to voting in person represented “the difference between the exception to the rule and the exception that swallows the rule.”

He's correct that on Groundhog Day of 1872, the 42nd Congress set a day for House elections to the 45th Congress.  House elections.  Not presidential.  As I've noted before, election day to choose the Electors was legislated back in 1844.

I'll further note that elections sometimes did take more than one day, such as New York's in April of 1798.  The possibility of which, oddly enough, was accomodated by Congress...in 1872.

Fund also appears to whine about the 9th Circuit's finding in 2002.  But that just echoes Mr Fauxriginal's opinion in McIntyre v Ohio Elections Commission (1995):

Principles of liberty fundamental enough to have been embodied within constitutional guarantees are not readily erased from the Nation's consciousness. A governmental practice that has become general throughout the United States, and particularly one that has the validation of long, accepted usage, bears a strong presumption of constitutionality. 

Multi-day elections go back to the early days of our Republic.  Get over it.

ntodd

PS--I'm tired of the "there's no right to vote" crap.  There is, so shut up.

PPS--The right to vote was explicitly enforced by a law requiring paper ballots in May, 1872.  Just sayin'.

October 21, 2014 in Constitution, Schmonstitution | Permalink | Comments (1) | TrackBack

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Friday, October 17, 2014

The First Amendment Has Not Been Offended

RMJ clarifies the point of discovery to Charlie Pierce.  Everybody should read it, even though everybody really ought to understand this already, especially the fact that Madison's Remonstrance is a warning against Establishment and Corruption, not a Get Out Of Civil Society Free Card.

ntodd

October 17, 2014 in Constitution, Schmonstitution | Permalink | Comments (1) | TrackBack

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If The Framers Wanted Us To Have A Judiciary, They Would've Included One In The Constiution

It's cute how Gov Brewer is so disappointed with marriage equality in Arizona that she quotes Justice Fauxriginalism, whose dissent in Windsor could have absolutely no applicability to any other civil rights progress.  And their commitment to legislative primacy over judicial review is admirable.

ntodd

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

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We Have Always Delegated Authority

[O]ur jurisprudence has been driven by a practical understanding that in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives. 

 - Justice Harry BlackmunMistretta v. United States (1989)


The Ebola thing has been an interesting demonstration of contradictions inherent in the current Tea Party view of governance.  They're all about "government is best which governs least", yet demand accountability from said government for a couple sick people despite the fact that it was a for-profit entity that fucked things up.

With that as backdrop, I saw a discussion about whether we needed something like the CDC at all, let alone was it even constitutional.  Yeah, it's been a while since I got into that kind of thing, so had to chime in.

I'll leave aside facially absurd things like claiming Rand Paul (who is totes a certified doctor) is in the best position to develop Ebola protocols.  Let's just stick to the American concept of nondelegation doctrine.

My sparring partner contended that legislators should not delegate any authority to the Executive branch, whose only purpose is to do exactly what its co-equal branch requires.  So, instead of creating the CDC and giving it power to develop regimes to prevent the spread of Ebola, Congress should just bring in experts to craft policy then pass a very specific law detailing how to handle the virus.  Easy peasy!

Of course, that's absolutely fucking stupid.

Rep Louie Gohmert: Let's bring this meeting of the Joint Committee on Ebola Protocols to order.

Sen Tom Coburn: I don't know anything about this disease, but I've got a constituent who manufactures surgical tape, so that must be part of any safety process.

Gohmert: Excellent point.  Now I'd like to call our first witness, Pastor Rick Wiles.

Wiles: Let 'em all die and God will sort 'em out.

Sen Ted Cruz:  Sounds great.  And if Obama asks for any money to fight Ebola, we'll shut down the government unless he also promises to shoot Mexicans on sight.

Not something that would work in most contexts for our large, diverse society with rapidly changing needs and challenges.  And while delegating authority to executive agencies has been most prevalent in more moden times, it's been generally upheld by SCOTUS for almost a century and has been practiced since the beginning of our Republic.

Consider the earliest debates about my beloved Postal Service .  There was a fair amount of concern in in the First and Second Congresses over giving the president too much power to determine how the mails would be delivered, yet the Post was created as a department under the Executive.

What's more, even when Congress specified postal routes (some 50 odd the first time around), it also granted the Postmaster General power to contract for other roads to be used so the service could be extended.  He was also allowed to set various other regulations to manage how the department and delivery would function, and even given discretion as to payment arrangements.

So this stuff is as American as apple pie and tea parties.  But what if these departments make bad regulations?  The People can't hold them accountable!  Yeah, 'cept for Congressional oversight (perhaps Congressman Issa could hold fewer hearings on the IRS and more on the USPS).  

And naturally, there is a remedy if Congress thinks an agency is running wild with its rules.  I think it's called "legislation" or something.  That's right, the Legislature can pass stuff to fix what they don't like.  Imagine that!

But by all means, let's get rid of the CDC.  And impeach Obama while we're at it.  That should stop Ebola from scaring any more white people.

ntodd

PS--The thread in question kinda reminded me of tax evader arguments about the IRS.

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

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Friday, October 10, 2014

It's A Game Of Disenfranchisement Leapfrog

Digby on voter ID laws:

The idea then was the same as the idea now: to keep African Americans and Latinos from voting. And when one roadblock falls they figure out a way to put up another one.

Yeah:

[Y]ou have Guinn v US decided on [June 21, 1915], tossing out racist grandfather clauses, but Oklahoma and other Jim Crow states still found ways to disenfranchise people for decades.  And today attempts to disenfranchise people continue.

Always been thus.

ntodd

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

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Wednesday, October 08, 2014

NTodd's Law

Corollary to Godwin's: In any discussion about the Judiciary, the probability of a comparison involving Dred Scott approaches 1.  Addendum: it is invariably wrong.

ntodd

October 8, 2014 in Constitution, Schmonstitution | Permalink | Comments (3) | TrackBack

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Tuesday, October 07, 2014

There's 'Mawwiage' For You!

Yeah, okay, Sparky:

"This is judicial activism at its worst," he added, accusing the justices of "imposing their policy preferences to subvert the considered judgments of democratically elected legislatures."

Cruz argued that no language in the Constitution, nor the 14th Amendment, gives the court the authority to redefine marriage.

No language of the Constitution gives legislatures the authority to define, let alone redefine marriage.

ntodd

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

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Sunday, October 05, 2014

We Rebel(led) Against Bad Government, Not Government Itself

The Second Amendment stuff in this Salon article is pretty much crap, but one part is absolutely spot on:

It is critical that twenty-first-century American conservatives agree to one slippery principle, however, if anything good is to take place. And that is this: Individual liberty is not won by “getting government off our backs”; it is gained through good government. Eisenhower Republicans in the conservative 1950s agreed with this notion and responded to empirical evidence. The social safety net was not ideological anathema (socialism) then. We should all accept that in securing liberty, the individual is not free from all constraint, or immune to government. In terms the founders provided us, we are meant to be protected only from corrupt or despotic government.  Taxation in itself is not corruption. But when government acts counter to the majority’s welfare (as by delivering outsize economic power and opportunity into the hands of the few) it is corrupt. Fortunately, it is a reversible condition.

Today's Republicans really don't understand republican values.  To be fair, I think most people don't these days...

ntodd

October 5, 2014 in Constitution, Schmonstitution | Permalink | Comments (2) | TrackBack

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Friday, October 03, 2014

Well, Since I Already Started Xmas

Happy Thanksgiving!

By the President of the United States of America, a Proclamation.

Whereas it is the duty of all Nations to acknowledge the providence of Almighty God, to obey his will, to be grateful for his benefits, and humbly to implore his protection and favor-- and whereas both Houses of Congress have by their joint Committee requested me to recommend to the People of the United States a day of public thanksgiving and prayer to be observed by acknowledging with grateful hearts the many signal favors of Almighty God especially by affording them an opportunity peaceably to establish a form of government for their safety and happiness.

Now therefore I do recommend and assign Thursday the 26th day of November next to be devoted by the People of these States to the service of that great and glorious Being, who is the beneficent Author of all the good that was, that is, or that will be-- That we may then all unite in rendering unto him our sincere and humble thanks--for his kind care and protection of the People of this Country previous to their becoming a Nation--for the signal and manifold mercies, and the favorable interpositions of his Providence which we experienced in the course and conclusion of the late war--for the great degree of tranquility, union, and plenty, which we have since enjoyed--for the peaceable and rational manner, in which we have been enabled to establish constitutions of government for our safety and happiness, and particularly the national One now lately instituted--for the civil and religious liberty with which we are blessed; and the means we have of acquiring and diffusing useful knowledge; and in general for all the great and various favors which he hath been pleased to confer upon us.

and also that we may then unite in most humbly offering our prayers and supplications to the great Lord and Ruler of Nations and beseech him to pardon our national and other transgressions-- to enable us all, whether in public or private stations, to perform our several and relative duties properly and punctually--to render our national government a blessing to all the people, by constantly being a Government of wise, just, and constitutional laws, discreetly and faithfully executed and obeyed--to protect and guide all Sovereigns and Nations (especially such as have shewn kindness unto us) and to bless them with good government, peace, and concord--To promote the knowledge and practice of true religion and virtue, and the encrease of science among them and us--and generally to grant unto all Mankind such a degree of temporal prosperity as he alone knows to be best.

Given under my hand at the City of New York the third day of October in the year of our Lord 1789.

Go: Washington

This comes from a president who defended the Constitution's lack of relligious regulation a month later.  I'll also just note that Congress had exhorted him to make such a proclamation about a week before, at the same time they approved the proposed Bil of Rights.  I give thanks for the nuanced views these Founding Folks had on a variety of matters...

ntodd

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

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A Frontrunner Says What?

Oh, her again:

Iowa State Sen. Joni Ernst, the Republican candidate for an open U.S. Senate seat and current frontrunner in that race, told a group aligned with libertarian former Rep. Ron Paul (R-TX) that federal officials who carry out their legal obligations under the Affordable Care Act should be arrested. Ernst expressed this view in a questionnaire distributed by the Campaign for Liberty to state senate candidates in 2012. As Talking Points Memo‘s Daniel Strauss reports, one of the questions on that survey, which Ernst answered “yes” to, was “Will you support legislation to nullify ObamaCare and authorize state and local law enforcement to arrest federal officials attempting to implement the unconstitutional health care scheme known as ObamaCare?”

Still ignorant, so naturally she will win.

ntodd

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

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Fauxriginalists Can Never Recuse Themselves

Indeed, Scalia should recuse himself from, well...everything.  But of course, he's just speaking about Original Intent: all rulings have essentially been made and he's merely a conduit for Madison.

ntodd

October 3, 2014 in Constitution, Schmonstitution | Permalink | Comments (1) | TrackBack

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Thursday, October 02, 2014

Secular Conscience Postscript

I was tooling around the First Congress's Journals at LoC, looking for debate regarding rights of conscience, and in searching for some supporting text found this compilation elsewhere.  Scalia should note that the Framers kinda thought conscience of any stripe was important, not just in terms of religion--but he's clearly already twisted his conscience into pretzels to allow for establishment...er, favoring monotheism, so whatever.

ntodd

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

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Secularism Is As Scalia Does

Scalila says secularism isn't protected by the Constitution, which is weird because a number of religionists also contend secularism is a religion.  But that's okay, because he only counts monotheistic religions.

ntodd

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

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Saturday, September 27, 2014

Let's Call The Whole Thing Off

Another call for a new constitution:

What systemic changes would take place under this new, more sensible, and decidedly just Constitution?

It would limit the number of terms a representative or senator could serve, so as to introduce fresh blood from a pool of more visible talent. (Does 12 years sound reasonable?) It would not allow ex-congressmen to trade on their insider connections for at least five years–which might then produce fewer power-engrossing lawyer-politicians and more–let’s be really optimistic here–systems engineer- or bioethicist-politicians, i.e., problem solvers with a useful trade to fall back on after public service.

Next, let’s reform the debased Supreme Court by reducing tenure from life to 10 years. (Honestly, who’s not tired of Scalia?)

This is the thing. We all know the solution to our sorest problem. Let’s spell out what everyone’s saying, but voters, en masse, have failed to press for hard enough. It’s all the friggin’ campaign contributions. No more fundraising. Period.

I'm on board.  Sounds like a decent outline of a more modern frame of government for a continental, monied nation.  Which is why this will most likely never be signed, let alone ratified, even in the strange chance a convention actually happened.

But hey, let's dream.  That's the only way to ever make something happen.  I wonder if we're really that much different than the nascent USA in 1786 under the Articles, when unanimity was required to make anything happen nationally.

Anyway, I like term-limiting Congress.  2 for Senators sounds great.  What about 4 for Reps, with 3-year terms, just to get out of the box?  And 10 years for SCOTUS would be okay, I guess, but I'd be more for 2 terms with automatic renomination and reconfirmation, or just 20 years straight up.

And how about taking a page from the CSA with 1 presidential term pegged at 6 years?  No more re-election battles, longer time to fight with a Congress that has greater rotation and different midterms, if not completely eliminated.  And maybe it will keep the Southern states around, just for nostalgia.

Speaking of which, Convention would give us a great opportunity to reasses whether or not we want to all stick together.  Maybe we could agree to split up amicably.  We can work out the issues of army bases and Federal land and whatnot, shake hands and walk away.  But anyway...

ntodd

PS--I'll spare you my typical backlinkages on calls for convention.  If you're drunk and bored and care, start here.

September 27, 2014 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Thursday, September 25, 2014

The First Amendments To Be

Oh lookie what happened on September 25, 1789:

The Senate proceeded to consider the message from the House of Representatives of the 24th, with amendments to the amendments of the Senate to "Articles to be proposed to the Legislatures of the several States, as amendments to the constitution of the United States;" and,

Resolved, That the Senate do concur in the amendments proposed by the House of Representatives to the amendments of the Senate.

Took over 2 years to ratify the Bill of Rights (um...1st through 10th), not to mention over 200 years to ratify the Compensation Amendment (27th).  I think they're still a bit misunderstood to this day, especially that one about Militas.

Oddly enough, methinks Tenthers are still smarting about Ike's application of the Second in Little Rock on this date in 1957...

ntodd

September 25, 2014 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack