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Friday, December 19, 2014

Read The Constitution

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

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


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

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Damn It, Now We'll Have A Drinking Game

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


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

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Monday, December 15, 2014

Little Better Than Whipsyllabub

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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Sunday, December 14, 2014

Scalia's Torturous Hobgoblin

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

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


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

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Thursday, December 11, 2014

Ron Paul Must Mourn This Date Every Year

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

And it was all downhill from there...


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

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Wednesday, December 10, 2014

Divide Et Impera

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

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

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

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



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

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Wait, We Still Have A Bill Of Rights?

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

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


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

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Sunday, December 07, 2014

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

Talk about cruel and unusual:

Rand Paul: Ophthalmologist turned US Constitution guardian

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

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


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

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Friday, December 05, 2014

Let Us All Raise Our Glasses To Utah

NYTimes, December 5, 1933:

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

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

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


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

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Wednesday, December 03, 2014

Check The Rigging

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

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


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

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Tuesday, December 02, 2014

The Dead Hand Writes No Dead Letters

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


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

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

Yeah, okay:

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

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


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

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

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

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

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

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


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

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Republicans in disarray!

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

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

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

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

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


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

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Wednesday, November 26, 2014

Yeah, See, States Can't Do That

So sorry to hear about your hunting dog being ill:

Under an unconstitutional proposal by Texas state Rep. Dan Flynn (R), just two people in the state of Texas — the state house speaker and the lieutenant governor — would effectively have the power to suspend any federal law within Texas’s borders, at least temporarily. The legislation creates a 14 member “joint legislative committee on nullification” that is co-chaired by the speaker and lieutenant governor. Half of the dozen remaining members are appointed by one of the committee’s chairs, while the other half are appointed by the other chair (although only eight of the committee’s fourteen total members may belong to the same political party). A bare majority of the committee, eight votes, may temporarily declare that a federal law “has no legal effect in this state.” If that declaration is ratified by the state legislature in the next legislative session, it becomes permanent.

Been there.  Done that.  Because states just can't.


November 26, 2014 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Saturday, November 22, 2014

Icky Thump

As a general rule, it is not a crime for a removable alien to remain in the United States.

 - Justice KennedyArizona et al v US (2012)

Yes, ja, a million times da:

I guarantee you’ll hear the phrase “My ancestors came here legally” in the aftermath of President Obama’s immigration address. It’s almost impossible to find any conversation about immigration—between elected officials, pundits, online commenters—in which at least one participant doesn’t use the phrase. It’s an understandable position, through which the speaker can both defend his or her family history and critique current illegal immigrants who choose to do things differently. It helps deflect charges of hypocrisy (since most Americans are descended from immigrants). It’s hard to argue with. And it’s also, in nearly every case, entirely inaccurate.

Prior to 1875’s Page Act and 1882’s Chinese Exclusion Act, there were no national immigration laws. None. There were laws related to naturalization and citizenship, to how vessels reported their passengers, to banning the slave trade. Once New York’s Castle Garden Immigration Station opened in 1855, arrivals there reported names and origins before entering the U.S. But for all pre-1875 immigrants, no laws applied to their arrival. They weren’t legal or illegal; they were just immigrants.

Moreover, those two laws and their extensions affected only very specific immigrant communities: suspected prostitutes and criminals (the Page Act); Chinese arrivals (the Exclusion Act); immigrants from a few other Asian nations (the extensions). So if your ancestors came before the 1920s and weren’t prostitutes, criminals, or from one of those Asian nations, they remained unaffected by any laws, and so were still neither legal nor illegal. This might seem like a semantic distinction, but it’s much more; the phrase “My ancestors came here legally” implies that they “chose to follow the law,” yet none of these unaffected immigrants had to make any such choice, nor had any laws to follow.

Indeed, it's a meaningless phrase.  I say that as someone whose ancestors came over in a few different waves: 17th century, the Billingtons (Strangers, one or more of whom almost set the Mayflower on fire); 18th century, the Roemers (eventually changed to Ramers in Pennsylvania Dutch country); 20th century, the Pritzkys (Jews escaping pogroms in Ukraine by becoming Christians in Brooklyn).  And somewhere in the mix are Scots-Irish who illegally crossed the Appalachians and married Cherokee (but at least they came here legally as indentured servants!).

Regardless, there's been a general tendency to warn against swarms of Aliens taking over (always the ones coming after We Good Aliens did).  Consider Senate debate over the 14th Amendment:

Now, then, I beg the honorable Senator from Pennsylvania, though it may be very good capital in an electioneering campaign to declaim against the Chinese, not to give himself any trouble about the Chinese, but to confine himself entirely to the injurious effects of this provision upon the encouragement of a Gypsy invasion of Pennsylvania. I had never heard myself of the invasion of Pennsylvania by Gypsies. I do not know, and I do not know that the honorable Senator can tell us, how many Gypsies the census shows to be within the State of Pennsylvania. The only invasion of Pennsylvania within my recollection was an invasion very much worse and more disastrous to the State, and more to be feared and more feared, than that of Gypsies. It was an invasion of rebels, which this amendment, if Iunderstand it aright, is intended to guard against and to prevent the recurrence of.
But why all this talk about Gypsies and Chinese? I have lived in the United States for now many a year, and really I have heard more about Gypsies within the last two or three months than I have heard before in my life. It cannot be because they have increased so much of late. It cannot be because they have been felt to be particularly oppressive in this or that locality. It must be that the Gypsy element is to be added to our political agitation, so that hereafter the Negro alone shall not claim our entire attention.

Anywayz, from the beginning of our Republic, we didn't care how Aliens got here, and really encouraged them to come on over to the Greatest Land Ever, all through the late 1800s.  Then we got worried about disease and, worst of all, teh Gayness.  And since Congress started being more restrictive, the Executive has also gotten into the act, including Hoover, Ike, and...everybody else.

But whatever.  I dare Congress to pass a very specific statute that makes an undocumented alien's presence a crime, and budget the necessary tens of billions of dollars to locate each and every criminal and deport them.


November 22, 2014 in Constitution, Schmonstitution | Permalink | Comments (1) | TrackBack

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Tuesday, November 18, 2014

Presidents Been Presidentin' Since 1789

The National Constitution Center, which I love, has a headline that bugged me a little today: Flaps over executive orders go back to Lincoln’s time.

They give a nod to Washington's spare use of EOs, but I was surprised they didn't mention his Neutrality Proclamation of 1793.  That was, you know, rather controversial--within his own Cabinet, even.  

It was ultimately codified into law by Congress the following year.  So maybe they wanted something as starting point that really pissed off Congress enough they didn't essentially approve of the president's actions..


November 18, 2014 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Sunday, November 16, 2014

Politicians In Robes

Well, it ain't Perry Mason:

If the justices really did act like judges, then perhaps our current judicial system would make sense. But given the reality, it is time to reconsider life tenure, ask the justices to perform their jobs with much more humility, place cameras in the court, and institute a nomination process in which senators demanded real answers to hard questions.

I am glad to report that a few of our most prominent scholars, court commentators, and even judges are coming around to my way of thinking about the court. Judge Richard Posner, an outspoken judge on the United States Court of Appeals for the 7thCircuit and the most cited legal scholar of the last 20 years (and a regular contributor to Slate), was asked whether he regretted never being a justice. Heanswered: “Well, I don’t like the Supreme Court. I don’t think it’s a real court.”

Posner’s book How Judges Think argues at length that, at most, the Supreme Court is a “political court” different in degree than other courts for many reasons, including that it defines its own caseload, picks the most politically charged cases, and pretends to make decisions based on vague text and contested history, when in fact what the justices are doing is deciding cases based on their personal values. He calls it a “political court,” whereas I say it is not a court at all, but the difference is largely a semantic one.

Linda Greenhouse, the former New York Times reporter who covered the Supreme Court for decades, is also coming around. In response to the court deciding to hear the latest political (dressed up as legal) challenge to the Affordable Care Act, she wrote a column in the Times about how unusual it was for the court to decide to hear the case even though there was no split in the circuit courts on the issue. After calling the grant “a naked power grab by conservative justices,” she wrote the following:

In decades of court-watching, I have struggled—sometimes it has seemed against all odds—to maintain the belief that the Supreme Court really is a court and not just a collection of politicians in robes. This past week, I’ve found myself struggling against the impulse to say two words: I surrender.

I'm not so sure a political Court is a bad thing.  It's part of a branch in our political system, after all, and to deny that Justices act like any other humans in government or life in general is folly.  It's thus rather important to recognize its political nature so when people say there's not a dime's worth of difference between the political parties that will govern the appointment process, you can smack them with a fish.

But yes, this probably means in an age where lifetime tenure means political ramifications of elections go well beyond their expiration dates, we should reconsider how long Justices should be allowed on the bench.  I continued to like the idea of 10-year terms with an automatic renomination/recomfirmation (maybe a supermajority to deny renewal, or a mere majority for approval) for a second term, barring egregious reasons to kick 'em off.  But whatever, something needs to change.

BTW, I also do not mind longer terms Justices.  There's still an argument to be made that keeping the Court a little bit above the fray, rather than shifting with the political winds, is good.  Not unlike the Senate's longer terms make it a little more stable than the House.  Let's just not have the Scalias hanging around until dementia makes their general cruelty more explosive.


November 16, 2014 in Constitution, Schmonstitution | Permalink | Comments (2) | TrackBack

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Saturday, November 15, 2014

Impeachment Fever: Catch It!

It's good to have a hobby:

Rep. Matt Salmon (R-Ariz.) on Friday invoked a high-profile conservative commentator to argue that President Barack Obama's planned executive action on immigration would constitute an "impeachable offense."
Obama has promised to provide deportation relief to an unspecified number of undocumented immigrants by the end of year. According to several media reports, 10-point immigration plan would cover up to 5 million people and could be announced as soon as next week. But executive action will face fierce resistance in Congress, where some Republicans hope to use a government spending bill to withhold funds for the planned action, potentially setting up a government shutdown.

Salmon circulated a letter on Thursday, with more than 50 signatures, urging House Appropriations Committee Chairman Hal Rogers (R-Ky.) and ranking member Nita Lowey (R-N.Y.) to do just that.

Though Salmon said he considered Obama's plans worthy of impeachment, he cautioned against proceeding down that path.

“But committing an impeachable offense and getting, you know, the two-thirds in the Senate to convict are two different stories,” Salmon said. “So, I mean, we have to play the hand that we are dealt right now.”

Points to Salmon for noticing the supermajority requirement to convict.  And while some people glibly dismiss it, there's a certain amount of discretion invested in the Executive.  Still, I welcome the challenges--anything is impeachable, really, and at least the Even Do Nothinger Congress won't provide us a dull two years!


November 15, 2014 in Constitution, Schmonstitution | Permalink | Comments (1) | TrackBack

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States' Rights And Ballots

Yeah, this canine will not be hunting any Electors:

[O]ne thing's been hanging over [Rand] Paul's and his supporters' heads: how does he get around Kentucky law that bars a candidate from running on the same ballot for two different jobs? Paul, after all, has said multiple times he plans to run for re-election in 2016.

Paul could easily decide that he just wants to run for the presidency and not run for re-election. But his lawyers reportedly see a way for Paul not to give up his seat for his presidential run.

Kentucky law specifically says that "no candidate's name shall appear on any voting machine or absentee ballot more than once" with an exception for special elections.
Paul's lawyers can file a lawsuit against the Kentucky law saying it's unconstitutional.

"The basis of the lawsuit would be that the U.S. Constitution lists the qualifications for people to run for either U.S. House or Senate and they are either citizens of the United States, resident of the state, and for Senate 30 years of age," University of Kentucky College of Law professor Josh Douglas told TPM. "So the argument here is that saying you can't be a candidate for more than one federal office is an additional qualification so it violates the qualification clause of the U.S. Constitution."

"There are several cases that say that a state has broad ability to dictate who appears on its ballot and also that there's no fundamental right to be a candidate," Douglas said, but warned that the argument, while it has merit, isn't a "slam dunk."

States do put additional qualifications on candidates.  X number of signatures on a petition are needed so you can qualify to be on the ballot, for example.  The Constitution doesn't prevent that, and in fact explicitly allows it for Federal office:

  • Article I, Section 4The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof...
  • Article II, Section 1Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors...

The expressed qualifications for office are there to make sure States don't send, say...a 29-year old Senator to DC, or a Representative who isn't a resident, or what have you.  Unless Congress passes a law requiring uniformity across all the states--which it does have some power to do--Kentucky can absolutely force its politicians to make a choice as to which office is important to them and take a risk that they might be out of a job.

Sorry Rand, it ain't repugnant to the Constitution.  A States' Rights kinda guy should be happy about that.


November 15, 2014 in Constitution, Schmonstitution | Permalink | Comments (2) | TrackBack

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Thursday, November 13, 2014

If Only Congress Had Some Kind Of Power

Crisis, schmisis:

The United States will be plunged in a “constitutional crisis” if President Obama takes unilateral action to delay deportations, Rep. Steve King (R-Iowa) said Thursday.

King, a leading opponent of the immigration bill passed by the Senate last year, sounded the alarm about reports that Obama is planning large-scale action to defer deportation for millions of illegal immigrants, perhaps as soon as next week.

“This president has been floating the trial balloon on executive amnesty for a long time," King said. “Today, new details surfaced that the president plans to attempt amnesty as early as next Friday, sending us into a constitutional crisis." 

I recommend the new Congress pass a law fully funding the deportations and requiring the president to deport everybody based on very, very specific rules.


November 13, 2014 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack