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Thursday, May 14, 2015

To Secure A Slightly More Perfect Union

Framin' and constitutin':

Monday May 14th 1787 was the day fixed for the meeting of the deputies in Convention for revising the federal system of Government. On that day a small number only had assembled. Seven States were not convened till, Friday 25 of May...

Mr. ROBERT MORRIS informed the members assembled that by the instruction & in behalf, of the deputation of Pena. he proposed George Washington Esqr. late Commander in chief for president of the Convention. 

Mr. JNo. RUTLIDGE seconded the motion; expressing his confidence that the choice would be unanimous, and observing that the presence of Genl. Washington forbade any observations on the occasion which might otherwise be proper. General WASHINGTON was accordingly unanimously elected by ballot, and conducted to the Chair by Mr. R. Morris and Mr. Rutlidge; from which in a very emphatic manner he thanked the Convention for the honor they had conferred on him, reminded them of the novelty of the scene of business in which he was to act, lamented his want of better qualifications, and claimed the indulgence of the House towards the involuntary errors which his inexperience might occasion. 

[FN6][The nomination came with particular grace from Penna. as Docr. Franklin alone could have been thought of as a competitor. The Docr. was himself to have made the nomination of General Washington, but the state of the weather and of his health confined him to his house.]

What's instructive to me is that we had a completely broken government (The Articles) and people from different regions and ideologies who really disagreed on a lot of fundamental shit somehow compromised enough to form a more perfect Union.  It even mostly worked for a a few score years, if you ignore the liberty denied to certain segments of the population...


May 14, 2015 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Ben Carson Wants To Be An Imperial President

Stick to rocket surgery, Dr C:

As TPM previously noted, Carson argued that a ruling by the high court wiping out a series of same-sex marriage bans across wouldn't make the president go along with such a decision.

Bloomberg Politics pressed Carson on his comments during a gathering in Greenville, South Carolina and Carson cited the court's 1857 Dred Scott ruling validating slavery to support his claim.

"Probably the best thing to do is go back and read about the Dred Scott case," Carson said. "And as you know, President Lincoln wasn't too much in favor of that. And his policies indicated that. Clearly it created a lot of division. We ended up fighting a war over it but in the long run it was the right thing to do."

As Bloomberg noted, no other presidential candidate has argued that the president could disregard the Supreme Court's ruling on same-sex marriage.

Thing is, Ben's not entirely wrong (wait, again?), but he and Newt really need to brush up on their details and context.  Hypothetically, I mean.


May 14, 2015 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Wednesday, May 13, 2015

Take A Picture, The Truth And Your Jail Term Will Last Longer

This is rather fucked up:

Imagine visiting Yellowstone this summer. You wake up before dawn to take a picture of the sunrise over the mists emanating from Yellowstone hot springs. A thunderhead towers above the rising sun, and the picture turns out beautifully. You submit the photo to a contest sponsored by the National Weather Service. Under a statute signed into law by the Wyoming governor this spring, you have just committed a crime and could face up to one year in prison.

Wyoming doesn’t, of course, care about pictures of geysers or photo competitions. But photos are a type of data, and the new law makes it a crime to gather data about the condition of the environment across most of the state if you plan to share that data with the state or federal government. The reason? The state wants to conceal the fact that many of its streams are contaminated by E. coli bacteria, strains of which can cause serious health problems, even death. A small organization called Western Watersheds Project (which I represent pro bono in an unrelated lawsuit) has found the bacteria in a number of streams crossing federal land in concentrations that violate water quality standards under the federal Clean Water Act. Rather than engaging in an honest public debate about the cause or extent of the problem, Wyoming prefers to pretend the problem doesn’t exist. And under the new law, the state threatens anyone who would challenge that belief by producing information to the contrary with a term in jail.

Money equals speech.  Nothing else does.


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

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Tuesday, May 12, 2015

Read Harder

I love Akhil Amar: keep reading Wickard till you understand it.  


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

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Friday, May 08, 2015

Checked And Balanced

I've seen some people upset by this:

Republican presidential candidate and tea party favorite Ben Carson said in an interview with Newsmax that the President of the United States doesn't have to follow the Supreme Court if the high court were to rule in favor of same-sex marriage.

"First of all, we have to understand how the Constitution works. The president is required to carry out the laws of the land, the laws of the land come from the legislative branch," Carsonsaid on Tuesday. "So if the legislative branch creates a law or changes a law, the executive branch has a responsibly to carry it out. It doesn’t say they have the responsibility to carry out a judicial law. And that's something we need to talk about."

Sure, Judicial Review is real, important, and powerful.  But Carson is not entirely wrong (for a change).


May 8, 2015 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Tuesday, May 05, 2015

Over My Dead Constitution!


Before a gathered audience at Southern Methodist University in January, right-wing  Supreme Court justice Antonin Scalia declared that the US Constitution was “dead, dead, dead.”

It's not, really, which is probably why some folks want to kill it so they can dance on its grave during their quaint religious rites...


May 5, 2015 in Constitution, Schmonstitution | Permalink | Comments (1) | TrackBack

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Sunday, May 03, 2015

The Establishment Of Equality In The Enjoyment Of Basic Civil And Political Rights

Shelley v Kraemer (May 3, 1948):

In 1930, J. D. Shelley, his wife, and their six children migrated to St. Louis from Mississippi to escape the pervasive racial oppression of the South. For a number of years they lived with relatives and then in rental properties. In looking to buy a home, they found that many buildings in St. Louis were covered by racially restrictive covenants by which the building owners agreed not to sell to anyone other than a Caucasian.

The Shelleys directly challenged this discriminatory practice by purchasing such a building at 4600 Labadie Avenue from an owner who agreed not to enforce the racial covenant. Louis D. Kraemer, owner of another property on Labadie covered by restrictive covenants, sued in the St. Louis Circuit (State) Court to enforce the restrictive covenant and prevent the Shelleys from acquiring title to the building.

The trial court ruled in the Shelleys' favor in November of 1945, but when Kraemer appealed, the Missouri Supreme Court, on December 9, 1946, reversed the trial court's decision and ordered that the racial covenant be enforced. The Shelleys then appealed to the United States Supreme Court.

On May 3, 1948, the United States Supreme Court rendered its landmark decision in Shelley v. Kraemer, holding, by a vote of 6 to 0 (with three judges not sitting), that racially restrictive covenants cannot be enforced by courts since this would constitute state action denying due process of law in violation of the 14th Amendment to the Constitution. Although the case did not outlaw covenants (only a state's enforcement of the practice), in Shelley v. Kraemer the Supreme Court reinforced strongly the 14th Amendment's guarantee of equal protection of the laws, which includes rights to acquire, enjoy, own, and dispose of property.

The Shelley case was a heartening signal for African Americans that positive social change could be achieved through law and the courts.

But now everything is great, with no such thing as White Privilege.  So any problems in Bal'mer are because lazy blacketyblack people are just not taking enough responsibility in their communities...


May 3, 2015 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Friday, May 01, 2015

At Least These White Rioters Didn't Burn Down A CVS

The remote cause of the riot as it appears to us is a bitterness of feeling which has always existed between the low whites & blacks, both of whom have long advanced rival claims for superiority, both being as degraded as human beings can possibly be.

 - The Freedmen’s Bureau Report on the Memphis Race Riots of 1866

The scene on May 1, 1866, in Memphis, TN:

[A] street brawl erupted between several Irish policemen and a group of blacks recently discharged from the United States Army. The conflict quickly escalated into a full-scale battle between the police department and virtually all Negroes wearing Union blue in the downtown area.
A detachment of federal troops from nearby Fort Pickering, occupying Memphis since the end of the Civil War, intervened to halt the violence within five hours. Most of the black veterans then retreated to the safety of the Fort, just outside the city. With the fall of darkness, peace seemed secured and the soldiers returned to their banacks. But soon thereafter a large white mob descended upon the city's Negro community and rampaged unchecked for the entire night and the following day.
By the time martial law was declared and order firmly reestablished on the afternoon of May 3, 46 blacks and 2 whites lay dead. Seventy-five other persons had received bullet wounds. Moreover, during the forty-hour span of anarchy, predatory gangs had raped at least 5 Negro women, robbed over I00 victims and dealt severe beatings to 10 others. Property destroyed included the houses of 91 families, (89 belonging to blacks, 1 owned by a white man and 1 of an interracial couple), 4 churches, and 12 schools. A contemporary estimate placed the damage at over $100,000.

Backlash to the riot gave Radical Republicans the ability to push the 14th Amendment, which finally eliminated structural racism in America...


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

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Wednesday, April 29, 2015

Speaking Of Judicial Review And Mob Rule

Lemieux again on anti-equality oral arguments before SCOTUS:

John J. Bursch, the lawyer charged with defending the bans, began with the rather strange argument that there was a "fundamental liberty interest" for individuals in giving their states the right to define the institution of marriage. Justice Antonin Scalia, the arch-conservative who is adamantly opposed to same-sex marriage and enjoys making homophobic jokes in court, attempted to state the point in a somewhat more defensible form, drawing a distinction between judicial decisions and popular self-government. When state courts rule same-sex marriage bans unconstitutional, Scalia asserted, "that's not the people deciding it. It's judges deciding it." At other times, Scalia described the argument of the states as "leave it to the people."

The point has a certain superficial appeal. Given how deeply entrenched the traditional definition of marriage had been — a point the conservative justices returned to again and again, citing millennia of human history — doesn't it make sense for the change in definition to come from the people themselves, rather than having unelected judges make it?
Making a distinction between "the people" (as represented by legislators) and "judges" is misleading. In the American system of government, legislative enactments, state initiatives, and constitutional amendments are subject to judicial review.

It's just not fair for a legitimate branch of government established to protect civil rights to not let a majority take rights away.  Amirite, California?


April 29, 2015 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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"It certainly is a vile law system, calculated for expense..."

Hey, so it's Oliver Ellsworth's birthday.  Who?   Why, Oliver Ellsworth of Connecticut, born in 1745.  Not a Founder most people know, but some should have a real love/hate relationship with him

Let's start with the Constitutional Convention in Philly on May 30, 1787, when Edmund Randolph proposed "that a national Government ought to be established."  This was recapitulated on June 19 with quite a number of additional proposed resolutions:

1. Resolved that it is the opinion of this Committee that a national government ought to be established consisting of a Supreme Legislative, Judiciary, and Executive.

2. Resolved. that the national Legislature ought to consist of Two Branches.

3 Resolved that the members of the first branch of the national Legislature ought...

4 Resolved. that the members of the second Branch of the national Legislature ought...

Yadayadayada, lots of "national" this and "national" that.  Which concerned Ellsworth who moved on June 20:

to alter [the first proposal] so as to run "that the Government of the United States ought to consist of a supreme legislative, Executive and Judiciary." This alteration he said would drop the word national, and retain the proper title "the United States."

He could not admit the doctrine that a breach of any of the federal articles could dissolve the whole. It would be highly dangerous not to consider the Confederation as still subsisting. He wished also the plan of the Convention to go forth as an amendment to the articles of Confederation, since under this idea the authority of the Legislatures could ratify it. If they are unwilling, the people will be so too. If the plan goes forth to the people for ratification several succeeding Conventions within the States would be unavoidable. He did not like these conventions. They were better fitted to pull down than to build up Constitutions.

And thus the Government of the United States got its name, as well as its federal (as opposed to national) form.  So thanks, Activist Judge Ellsworth, I guess.  Our States' Rightsers like Ted Cruz should love him for that.

Yet oddly enough, he was fairly involved in debates about what we would call judicial review today.  After Philadelphia, he was prominent in the Connecticut Ratification Convention, and observed:

If the general legislature should at any time overleap their limits, the judicial department is a constitutional check. If the United States go beyond their powers, if they make a law which the Constitution does not authorize, it is void; and the judicial power, the national judges, who to secure their impartiality, are to be made independent, will declare it to be void. On the other hand, if the states go beyond their limits, if they make a law which is a usurpation upon the federal government the law is void; and upright, independent judges will declare it to be so.

So naturally, he was the principle author of the Judiciary Act of 1789, which further cemented the role of our Judiciary in reviewing the law (annoying conservatives of the day like Maclay).  And it was Chief Justice Ellsworth's SCOTUS that ruled in favor of Hamiltonian construction (sorry, Jemmy) regarding our nation's first luxury tax (which the Roberts Court referenced when upholding Obamacare's mandate/penalty).

An interesting guy, who was instrumental in giving us an important component of constitutional law.  With that pedigree, this might be why Ted Cruz et al (not to mention Texas history books) don't speak of Ellsworth.  

Makes me dig him that much more...


April 29, 2015 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Tuesday, April 28, 2015

Dignity Matters

Dahlia Lithwick is the Kennedy-whisperer:

As for Justice Anthony Kennedy, if we know anything at all about him it is this: You don’t tell him what dignity is, or who has it, or how much it counts. As most Kennedy-watchers well know, to the extent that Kennedy’s vote is in play on most issues, what he is contemplating is dignity. Often balanced against other dignity. He’s the dignity-whisperer.

Dignity is a key element of civil rights case law...


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

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Charlie Kelly Defends Bans On Marriage Equality

Scott Lemieux's take on today's oral arguments being shoved down SCOTUS' throat:

Inevitably, the specter of religious leaders being compelled to perform same-sex marriages was raised by Justice Scalia. Kagan swiftly rebutted the argument, pointing out that “there are many rabbis that will not conduct marriages between Jews and non­Jews, notwithstanding that we have a constitutional prohibition against religious discrimination.” Even if the court rules that states cannot ban same-sex marriage, this will not mean that religious leaders will be compelled to perform marriages that contravene their religious traditions. It will be city hall, not previous religious leaders, who will be required not to discriminate.

The arguments made by John J Bursch on behalf of the discriminating states were no better than the ones sympathetic justices made on their behalf. Bursch began by arguing that every individual has a “fundamental liberty interest in deciding the meaning of marriage” that would be violated by finding a constitutional right to same-sex marriage. As Justice Sotomayor explained, the argument is bizarre: individuals would retain the ability to define marriage as they see fit even if states did not discriminate against same-sex couples. At best, the argument seems to be that the “rights” of states to discriminate should trump the rights of individuals to not be discriminated against, which is no more attractive a notion than it was when it was used to justify racial discrimination in the 19th and 20th centuries.

And yet, it made sense for Bursch to open with inept, disproven democratic theory, because his other arguments were worse. His attempts to argue that extending marriage rights to same-sex couples would harm child-rearing and heterosexual marriage were so feeble that Justice Scalia intervened at one point to suggest that Bursch didn’t actually have to answer the question.

I love lawyer talk!


April 28, 2015 in Constitution, Schmonstitution | Permalink | Comments (1) | TrackBack

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Monday, April 27, 2015

The United States Supreme Cis-het Court

How about everybody except Kennedy recuse themselves?  

Two anti-gay-marriage groups, the National Organization for Marriage and the American Family Association, have since called on Ginsburg to recuse herself, arguing that she can no longer be impartial. They’ve also targeted Justice Elena Kagan for officiating at a same-sex marriage, asking her to step down from the case, too.

Scalia is a well-known gay hater, so he clearly should not rule on this issue.  What's more, all of the Justices are cis-het so far as I know and clearly have a conflict.  Just to be safe, maybe the whole Judiciary should be disbanded.  Legislative, too...


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

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Sunday, April 26, 2015

Hate Is The Outlier

Wow, didn't know Bob Schieffer had it in him:

“The Southern Poverty Law Center has branded the Family Research Council an anti-gay hate group,” Schieffer explained as if it were a warning to his viewers. “We have been inundated by people who say we should not even let you appear because they, in their view — quote — you don’t speak for Christians.”

Perkins argued that the Supreme Court had no place deciding whether LGBT people deserved equal protection under the Constitution because “it does a disservice to both sides if the court weighs in on public policy like this.”

“The courts are decided [SIC] to interpret the Constitution and the constitutionality of laws, not to create public policy,” he opined. 

Which part of "interpreting whether bans on marriage equality are constitutional or not" isn't "interpreting the Constitution"?


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

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Saturday, April 25, 2015

98% Of People Still Believe In Family Values

Which explains why we wouldn't want the queers to have families:

"Their relationships are unions, not marriages," said Skinner.

Orthodox priest Hans Jacobse warned that "society will crumble" if same-sex unions were legalized.

"Marriage begins with God, not with the state," he said.

Why do these people hate the Pilgrims?


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

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We Have A Government Of Laws, Not Gods

I forgot that God stole this nation from indigenous people, rebelled against an empire, and framed a government that would require no religious test:

During an appearance on John Hagee Ministries’ Global Evangelism Television (GETV) network on Wednesday, host Matt Hagee asked the Texas Republican where the country had gone wrong.

“I think we got off the track when we allowed our government to become a secular government,” DeLay explained. “When we stopped realizing that God created this nation, that he wrote the Constitution, that it’s based on biblical principles.”

“Governments like we have are very easy to destroy,” Hagee later noted.

Hagee's right that governments like ours are very easy to destroy by people such as he...


April 25, 2015 in Constitution, Schmonstitution | Permalink | Comments (1) | TrackBack

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Friday, April 24, 2015

I Knew The Constitution Would Cause Something Awful!

Shorter losing argument: exercise of your constitutional rights causes other people to exercise their constitutional rights.


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

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You Say Sovereignty, I Say Criminality

Apropos of the aimless revolution thing I posted last night, here's a fun one:

Gun Owners of America director Larry Pratt has a long history in the far-right fringesof the anti-government movement, so it is hardly a surprise that members of the radical “sovereign citizen” movement — who believe that they are not beholden to U.S. laws —are now courting his favor.

Pratt was a guest on VCY America’s “Crosstalk” program on Tuesday when a listener called in identifying himself as a “sovereign” from Wisconsin and asked him, “I just wondered if somebody of your stature would stand up and scream from the rooftops that these 60 million codes and regulations don’t apply to us, only to U.S. citizens.”

While Pratt didn’t address the “sovereign citizen” movement directly, he told the caller that most federal laws are unconstitutional anyway and “should be stricken.”

“Well, I think you can make the same point with another argument, that the body of, the corpus of law and regulations you’re pointing to, almost none of it comes under the Constitution,” he said. “It gives powers to the federal government that were not given to the federal government in the Constitution. They should be stricken.”

Yeah, well, challenge those things in court.  If it's legal, don't matter none it ain't konstitooshunul until those damned activist judges get involved.  Your resistance is too illegit to acquit if you ain't scrupulous.  Rebellion oft has consequences, beyotch...


April 24, 2015 in And Fuck..., Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Thursday, April 23, 2015

And Justice For All

Mustang Bobby on Bobby Jindal:

Those who believe in freedom must stick together: If it’s not freedom for all, it’s not freedom at all. This strategy requires populist social conservatives to ally with the business community on economic matters and corporate titans to side with social conservatives on cultural matters. This is the grand bargain that makes freedom’s defense possible.

In short, religious bigotry has a long and proud tradition in America, and no bunch of radical liberals and people of conscience are going to put an end to it.

I doubt that Mr. Jindal is self-aware enough that “if it’s not freedom for all, it’s not freedom at all” (just pithy enough to fit on a bumper sticker) is exactly what the fight for gay rights is all about.  No one is asking him to change his faith-driven view on anything.  You are free to discriminate against anyone you want in your church or in your mind, but if you’re going to sell cakes, flowers, and hotel space to the public, you have to sell to all the public or not at all.

'Freedom for all' has always been limited, sadly.  Taney told us that "negroes" didn't have freedom as envisioned by the Founders.  Women didn't have the freedom to vote.  Hell, married white hetero couples couldn't even buy contraceptives.

When those who believe in freedom stick together, blacks, women, everybody gains more freedom.  And when people who believe in only their freedom divide us, generally they lose.  That's justice.


April 23, 2015 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Stripping The Constitution

Can't let Ted Cruz have all the fun, eh?

Less than a week before the Supreme Court plans to hear arguments in potentially one of the nation’s most influential cases on gay marriage, Rep. Steve King (R-Iowa) introduced the Restrain the Judges on Marriage Act of 2015 to preserve state bans.

“For too long, federal courts have overstepped their constitutionally limited duty to interpret the Constitution.” King said in a news release. “Rather, federal courts have perverted the Constitution to make law and create constitutional rights to things such as privacy, birth control, and abortion. These Unenumerated, so-called constitutionally-protected rights were not envisioned by our Founding Fathers.”

King’s bill strips way Article III of the Constitution, which gives federal courts the jurisdiction to hear or decide any question pertaining to the interpretation of, or the validity under the Constitution of, any type of marriage. 

That last graf looks like a bad rewrite of what King's press release says:

My bill strips Article III courts of jurisdiction, and the Supreme Court of appellate jurisdiction, ‘to hear or decide any question pertaining to the interpretation of, or the validity under the Constitution of, any type of marriage.’ 

The text of HR1968 isn't available yet on Thomas, so we'll just go with what he says for now.  

Article III courts are Federal, and have certain constitutional jurisdictions.  One of their jobs is to deal with controversies between States, which some folks are hanging their hats on to deny King's proposal has any constitutional merit.

Yet I'm not sure we'd ever see a State sue another State over marriage recognition.  The only parties who would sue a State are citizens of another State, which according to the 11th Amendment is not something under Federal jurisdiction.  And Congress clearly can deny SCOTUS the power to review appeals of certain types of cases.

It's a stupid proposal, and will go nowhere like, you know...pretty much every other attempt to break down the separation of powers.  But it will fail on the political plane, not constitutionally the way I see it.

Now, lemme address one truly horrid thing King asserts.  When he cries about unenumerated rights, he curiously ignores the 9th Amendment:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

But maybe it's not so curious.  If he elides the 9th, then Griswold and thus all reproductive freedom protected by SCOTUS rulings become mere phantasms.

Then that would only leave 2nd Amendment remedies to protect marriage equality...


PS--Lemieux has more.

April 23, 2015 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack