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Monday, April 20, 2015

Flags Should Never Touch The Grass

But boobs are okay:

A former Air Force sergeant who left the military after posing naked with the American flag in Playboy in 2007 was arrested on Friday after she attempted to steal the flag of an African-American student group she believed was disrespecting it, the Washington Post’s Michael E. Miller reports.

In a video recorded by her daughter, Michelle Manhart can be seen holding the flag as she encounters a student who demands she return it. “That’s not yours,” the student says.

“Actually it is,” Manhart replies. “This flag belongs to the entire United States.”
...
In a telephone interview with Fox News commentator Todd Starnes, Manhart said that “the flag is an iconic symbol for freedom. If you are going to fight for a cause and use the First Amendment — how are you going to stomp and trample the icon that gives you that right?”

Manhart also appeared nearly naked in an advertisement for People for the Ethical Treatment of Animals in 2008 — she had a tiny American flag covering each of her breasts.

Ah, so there is such a thing as property that isn't private.

ntodd

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

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Saturday, April 18, 2015

Cease To Resist

Giving my goodbye:

Legislators here are deeply divided over a proposal to make the holy text an official state book, with some saying it's far too sacred to be trivialized like the state fruit (tomato), the state amphibian (Tennessee cave salamander) and several state songs ("Tennessee Waltz" and "Rocky Top").

Conversely, others believe the Bible is an integral part of the state's history, or don't want to appear to be against it. And then there are a host of constitutional questions to consider.

JFC.  Oh, yeah, BTW, we still have constitutional wall of separation!  Good on the TN Senate for kicking the bill to the dead letter office.

ntodd

April 18, 2015 in Constitution, Schmonstitution | Permalink | Comments (1) | TrackBack

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Friday, April 17, 2015

Today's Edition Of Treason In Defense Of Slavery

Suppose they elevated Sumner to the Presidency? Suppose they elevated Fred. Douglas, your escaped slave, to the Presidency?...I say give me pestilence and famine sooner that that.

 - Henry Benning, Commissioner from Georgia, to the Virginia Secession Convention


Adopted by the convention of Virginia, April 17,1861:

[T]he Federal Government having perverted said powers not only to the injury of the people of Virginia, but to the oppression of the Southern slave-holding States:

Now, therefore, we, the people of Virginia, do declare and ordain, That the ordinance adopted by the people of this State in convention on the twenty-fifth day of June, in the year of our Lord one thousand seven hundred and eighty-eight, whereby the Constitution of the United States of America was ratified, and all acts of the General Assembly of this State ratifying and adopting amendments to said Constitution, are hereby repealed and abrogated; that the union between the State of Virginia and the other States under the Constitution aforesaid is hereby dissolved, and that the State of Virginia is in the full possession and exercise of all the rights of sovereignty which belong and appertain to a free and independent State.

And they do further declare, That said Constitution of the United States of America is no longer binding on any of the citizens of this State.

But it wasn't about slavery.

ntodd

April 17, 2015 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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A Blind South Carolinian Finds A Nut

I tell you, an honest man gets sick when he hears the word ‘Tyranny’ today, after what the Ted Cruz did to it:

It all started with a fundraising email Cruz sent making the case that “The 2nd Amendment to the Constitution isn’t for just protecting hunting rights, and it’s not only to safeguard your right to target practice. It is a Constitutional right to protect your children, your family, your home, our lives, and to serve as the ultimate check against governmental tyranny — for the protection of liberty.” TPM’s Sahil Kapur asked Graham what he thought of his Texan colleague’s view of the Second Amendment, and the South Carolina senator was not impressed. He even invoked the Civil War, which should make Cruz’s people plenty upset. “Well, we tried that once in South Carolina,” Graham said. “I wouldn’t go down that road again.”

Just more daily politics from some of our crazier rulers.  Still very, very, very wrong (and it never works).  Nice of Graham to notice.

ntodd

April 17, 2015 in Constitution, Schmonstitution | Permalink | Comments (1) | TrackBack

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Tuesday, April 14, 2015

Speaking Of Founders Working Tirelessly To End Slavery

I brought up John Quincy Adams again, so here's a little background into his vaunted antislavery career:

[He] had shown little concern about slavery during his early career, and although he had no love of the institution he in no way condemned it...Still, to Adams the obligation to respect and obey the law of the land did not mean he had to assist slavery's expansion or gag congressmen who wished to express their opposition to it, or, most importantly, abolish a citizen's right of petition.

As the issue continued to inflame the country Adams came to real-ize that the question of slavery threatened the very existence of the Union. And that he could never abide. "The real question convulsing the Union,” he wrote in a statement that was later echoed in Lincoln's "House Divided" speech, “was whether a population spread over an immense territory, consisting of one great division of all freemen, and another of masters and slaves, could exist permanently together as members of one community or not.”

In addition he began to see slavery as the root cause of all sectional divisions, be it the tariff internal improvements, Indian removal, public land, territorial expansion, whatever. And he claimed that the Democratic party was responsible for protecting slavery and preventing its free discussion in Congress...

In a very real sense Adarns’s hatred of the South and Democrats in general stemmed from his desire to punish them for having wrecked his administration...By attacking slavery he could inflict the revenge he so desperately sought for the role played by Democrats, north and south, in ruining his presidency.

Still that motive alone does not entirely explain his present attitude toward slavery. Although it had taken many years it is possible that, following the massacres of blacks during the Denmark Vesey Conspiracy and the Nat Turner Rebellion, along with the race riots of the 1830s, he finally came to the realization that something had to be done about the "peculiar institution.” Not that he joined the abolitionists or agreed with their tactics. He opposed the idea of emancipating slaves in the District of Columbia because he did not believe Congress had the constitutional authority. And he showed only contempt for radical abolitionists who would actually destroy the Union to achieve their goal...

He would tolerate slavery where it existed but he would fight its expansion as well as any attempt to prevent the free expression of those who abhorred the institution. So when he finally raised his voice in defense of the right of petition he not surprisingly gained the reputation of a fierce and dedicated enemy of slavery.

In a number of ways, JQA was the proto-Lincoln: not an abolitionist, but saw slavery as something ungood, and that caused a great deal of strife in the Union.  Consider this floor speech by JQA that meandered from April 14-16, 1842:

I would compound never to take Texas, or, if they will agree that slavery shall be abolished there, I will agree to take her. But no, never, while breath is in my, body, will I consent to the annexation of any foreign State which is burdened with the curse of slavery. 

What I am now to say, I say with great reluctance and with great pain. I am well aware that it is touching upon a sore place, and I would gladly get over it if I could. It has been my effort, as far as was in my power, to avoid any allusion whatever to that question which the gentleman from Virginia tells us that the most lamblike disposition in the South never can approach without anger and indignation. Sir, that is my sorrow. I admit that the fact is so. We cannot touch that subject without raising throughout the whole South a mass of violence and passion, with which one might as well reason as with a hurricane.

That I know is the fact in the South, and that is the fact in this House. And it is the reason why members coming from a free State are silenced as soon as they rise on this floor; why they are pronounced out of order; made to sit down ; and, if they proceed, are censured and expelled...

What I say is involuntary, because the subject has been brought into the House from another quarter, as the gentleman himself admits. I would leave that institution to the exclusive consideration and management of the States more peculiarly interested in it, just as long as they can keep within their own bounds. So far I admit that Congress has no power to meddle with it. As long as they do not step out of their own bounds, and do not put the question to the People of the United States, whose peace, welfare, and happiness are all at stake, so long I will agree to leave them to themselves.

But...if they come to the free States and say to them you must help us to keep down our slaves, you must aid us in an insurrection and a civil war, then I say that with that call comes a full and plenary power to this House and to the Senate over the whole subject. It is a war power.
...
[T]his is a reason with me for not desiring the annexation of Texas to this Union, because, if we go to war for that annexation, I entertain serious apprehensions that this will become a practical question...[T]he day is not remote, when, in one of the slave States, an invading army from abroad may be combined with an insur- rection of the slaves and with a civil war, and the danger still further heightened by an irruption of that whole body of Indians whom you have accumulated and compressed together as if for the very purpose of organizing them for a hostile movement upon our frontier.

The gentleman is soon to plant the lone star of Texas and slavery on the walls of Mexico; and then what is to become of the liberties of these United States. [A laugh.] Is it conformable to the history of the world that the leader of such an army after conquests not reaching to one-tenth the extent of those which the gentleman will achieve, should remain content with the station of an humble, private citizen? No. No.

The experience of all mankind has given us warning that if that is to be the course of our public affairs, and such are to be the brilliant fortunes of the gentleman from Virginia, our liberties will stand as little chance in after times as those of the nine millions of the people of Mexico after he shall have conquered them.

Turns out, there's a direct line from this speech to the Emancipation Proclamation:

Lincoln...feared that Roger Taney’s Supreme Court might object. The constitutional basis for such a bold decree would have to be the war powers of the president, a somewhat vague concept implied in the chief executive’s status as “Commander-in-Chief of the Army and Navy of the United States” and in the presidential oath of office. In 1842, Congressman John Quincy Adams had emphatically insisted that in a civil or foreign war, “not only the President ofy the United States, but the commander of the army has power to order the universal emancipation of the slaves.” Charles Sumner, Henry Ward Beecher, and other antislavery militants had endorsed Adams’s dictum and urged Lincoln to act on it. With these thoughts in mind, Lincoln drafted his momentous proclamation.

Indeed, Harper's Weekly and William Lloyd Garrison harkened back to Adams, as did Charles Sumner when speaking to the Massachusetts Republican State Convention on October 1, 1861:

There is a higher agency that may be invoked, which is at the same time under the Constitution and above the Constitution : I mean Martial Law in its plenitude, and declared by solemn Proclamation. It is under the Constitution, because the War Power to which it be longs is positively recognized by the Constitution. It is above the Constitution, because, when set in motion, like necessity, it knows no other law. For the time it is Law and Constitution.

The civil power, in mass and detail, is superseded, and all rights are subordinate to this military magistracy. Other agencies, small and great, executive, legislative, and even judicial, are absorbed in a transcendent tribune power, which, for the time, declares its absolute will, while holding alike the scales of justice and the sword of the executioner. The existence of this power nobody questions. If rarely exercised in our country, and never largely, the power is none the less fixed in our political system. As well strike out the kindred law of self-defence, belonging to states as to individuals. Martial Law is only a form of self-defence. 

That this law might be employed against Slavery, without impediment from State Rights, was first pro claimed in the House of Representatives by a Massachusetts statesman, who was a champion of Freedom, John Quincy Adams. [Applause.] His authority is such that I content myself with the sanction of his name, which becomes more commanding when we con sider the circumstances under which he first put forth this great rule, then repeated it, and then again most defiantly vindicated it. 

Student of history, and of Public Law in all its forms, from earliest youth, under the teaching of his father, counsellor-at-law, Senator of the United States, Minister at foreign courts, including Holland, Prussia, Russia, England, negotiator of Peace at Ghent, then Secretary of State and President, this illustrious citizen, after such varied experience, entered the House of Representatives, where it became his duty to expound the War Power in our government, especially with regard to Slavery. On such a question, his whole life was the open book from which he spoke with magistral authority. No well-worn, dog-eared volume was needed. Himself was enough. And the circumstances of the debate, with the sensitiveness of the hour, gave new force to the principle which he announced.

I'm not so sure how much Henry Ward Beecher endorsed the view, though:

How far our government, by a just use of its legitimate powers under the Constitution, can avail itself of this war to limit or even to bring slavery to an end, is matter for the wisest deliberation of the wisest men.

If there be in the hand of the warpower, as John Quincy Adams thought there was, a right of emancipation, then let that be shown, and, in God's name, be employed. But if there be given to us no right by our Constitution to enter upon the States with a legislation subversive of their whole interior economy, not all the mischiefs of slavery, and certainly not our own impatience under its burdens and vexations, should tempt us to usurp it.

This conflict must be carried on through our institutions, not over them. Revolution is not the remedy for rebellion. The exercise on the part of our government of unlawful powers cannot be justified, except to save the nation from absolute destruction.

The South, like an immense field of nettles, has been overrun with the pestilent heresies of State rights. Because our hands are stinging with these poisonous weeds, we shall be tempted inconsiderately to go to the opposite extreme, and to gather up the diffused powers of the State and consolidate and centralize them in the National Government.

Seems a bit equivocal to me, which I guess that makes sense: Beecher appears to be more of a gradualist and cautious, like his father, in contrast to Sumner, who was quite the firebrand.  

Anyway, folks who share the same goals might just not agree on the means.  Probably why Lincoln pissed off some people.  Adams, too (who was not a Founder, dammit).

ntodd

April 14, 2015 in Constitution, Schmonstitution | Permalink | Comments (1) | TrackBack

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Monday, April 13, 2015

The Best Thing We Can Do Is Go On With Our Daily Pledge

Paging Nurse Ratched:

On the morning of April 2nd, most of the students of Wilson Middle School in Pennsylvania rose to recite the daily Pledge of Allegiance. One student, however, had sought medical treatment from the school nurse at the same time. As is her constitutional right, she refused to stand even as the nurse ordered her and other students to do so.

After the normal day resumed, the school nurse demanded to know why the girl didn’t stand and recite the pledge. She informed the nurse that she had every right to do so. That’s when the nurse snapped, berated her and refused to treat her medical needs, causing her to tearfully run to the office to contact her mother. But she was prevented from making the phone call by the same nurse, who arrived in the office to inform the girl that she wouldn’t be allowed to use the phone until after she sat through a long lecturing.

Der Treueschwur macht frei!

ntodd

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

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Sunday, April 12, 2015

Presidents, Like Fish, Begin To Smell After 2920 Days

[A]ll democracies are based on the proposition that power is very dangerous and that it is extremely important not to let any one man or any one small group have too much power for too long a time.

 - Aldous Huxley to Mike Wallace (May 18, 1958)


It was a lovely Mud Season day, finally.  I still can't hear a damned thing out of my left ear, but I'm sure I heard birds singing and trilling and chirping.

And since a day without my blogging about annoying memes is like a day without sunshine, here's the latest:

Now, I'm not one to disagree that these old white men (and Barbara) have lost that new car smell.  Our own Senior Senator has been in office essentially for Ericka's whole lifetime, making him the current longevity leader in that chamber (Cochran has some House service under his belt).

I used to be against term limits ("we already have them, they're called 'elections'!").  It's not a cause I'm going to work hard for, but I can see their merits at this point.  I'm just more interested in changing electoral processes themselves (expanding franchise, public funding, IRV, etc).

All that said, I rather dislike this meme for a few reasons.

Long service is nothing new.  The first two record holders (John Brown and Nathaniel Macon) started their runs in the Second Congress.  And what of somebody like James Monroe, who pretty much did everything in State and Federal gummint?

It appears the the meme is trying to quote "Congress" (given the word 'stating'), but I can't find any citation for that literal phrase.  I wouldn't argue against the concept, but "Congress" sounds more like a bumper sticker and less like Congress right there. 

There is this from H.R. Rep. No. 17, however:

By reason of the lack of a positive expression upon the subject of the tenure of the office of President, and by reason of a well-defined custom which has risen in the past that no President should have more than two terms in that office, much discussion has resulted upon this subject. Hence it is the purpose of this . . . [proposal] . . . to submit this question to the people so they, by and through the recognized processes, may express their views upon this question, and if they shall so elect, they may . . . thereby set at rest this problem.

Not an entirely unreasonable reaction to FDR's unprecedented tenure after two centuries of a traditional self-limitation to avoid any perceived slide back into monarchy.  The Executive is extremely powerful and maintaining control over that office for a long time certainly carries a lot of risk.

Yet Congress didn't limit the president's length of service.  The People, who just a few years before re-elected FDR (while rejecting Dewey, who supported a tenure-limiting amendment), did it through ratification.

What's more, Congress isn't a singular entity like the Executive.  It's a collection of people--the majority of whom face the voters more often than a president--and represent more parochial, non-national interests.  

It's a different animal.  Silly comparing the power of one person to the individual voting members of a large body wherein there's arguably some merit to having the people you send possess a bit of experience (not unlike a solid corps of civil service employees).

Anyway, the meme doesn't even make a call for action (like vote 'em out, or let's pass an amendment).  So why am I even bothering with it?  Because it dost infect mine eyes.

ntodd

April 12, 2015 in Constitution, Schmonstitution | Permalink | Comments (4) | TrackBack

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Thursday, April 09, 2015

The Fauxriginal Fourteenth Amendment

Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?”

In a jaw-dropping amicus brief recently filed with the Supreme Court, the state’s attorney general argues for a truly originalist understanding of the 14th Amendment, insisting that the Constitution permits discrimination not just against gays, but also against women. This argument is as morally abhorrent as it is historically accurate. And South Carolina deserves some credit for having the chutzpah to raise it.
...
The crux of South Carolina’s brief...is this: If the 14th Amendment permits discrimination against married women, it surely also allows discrimination against gay people who wish to wed. In fact, according to South Carolina, the 14th Amendment forbids only racial discrimination, leaving states free to disadvantage women and gays in any way they wish.

The state may well have its history right here. Congressional records show that the men who drafted the 14th Amendment were pretty adamant that their measure wouldn’t force states to recognize married women as independent humans with rights of their own. John Bingham, the chief framer of the amendment, assured one sexist congressman that he “need not be alarmed” that the measure would alter “the condition of married women,” since it would leave intact state property laws. Another framer, Samuel Shellabarger, explained that under the equal protection clause, states could still “deprive women of the right to sue or contract or testify.”

Some framers went further:

The 14th Amendment, adopted after the Civil War in 1868 to grant emancipated slaves full citizenship, states, “No state shall ... deprive any person of life, liberty, or property without due process of law, nor deny to any person ... the equal protection of the laws.”

We have the likes of former U.S. Senator Roscoe Conkling to thank for the extension of Equal Protection to corporations. Conkling helped draft the 14th Amendment. He then left the Senate to become a lawyer. His Gilded Age law practice was going so swimmingly that Conkling turned down a seat on the Supreme Court not once, but twice. 

Conkling argued to the Supreme Court in San Mateo County v. Southern Pacific Rail Roadthat the 14th Amendment is not limited to natural persons. In 1882, he produced a journal that seemed to show that the Joint Congressional Committee that drafted the amendment vacillated between using “citizen” and “person” and the drafters chose person specifically to cover corporations. According to historian Howard Jay Graham, “[t]his part of Conkling’s argument was a deliberate, brazen forgery.”

Which explains why the majority of early 14th Amendment cases were not, in fact, about race at all but rather dealt with corporate rights.  But it's always been a puzzle to me why the language isn't more specific in the ratified amendment.

The 14th repeatedly says all "persons" have the same privileges and immunities, defense against deprivation of life, liberty, and property without due process, and equal protection under the law.  It doesn't say anything about being limited to race.  Contrast to the 15th, which explicitly mentions race and color.

I'm more inclined to look at the plain text than consider what disparate members of that Congress said when they had every opportunity to choose their words.  So from where I sit--and Scalia can bite my shiny metal ass--women and queers are covered.

ntodd

PS--SC also suggests that the 14th Amendment never compelled  "one size fits all" state marriage laws.  You know, 'cept for the ban on polygamy.

April 9, 2015 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Wednesday, April 08, 2015

The Entire Constitution Is Based On A Conspiracy

I've cited Clavius--an Apollo Hoax debunking site--a few times when talking about conspiracy theories.  Here's their high level observations about motivations for the crazies:

  1. To account for variations in observation.
  2. As entertainment.
  3. To seem intelligent.
  4. To be "on the inside."
  5. To express distrust for authority.

In the case of Amendment Nutjobs, #1 and #5 seem to be the dominant factors.  Certainly the Sixteenthers (so clunky compared to Tenthers and Birthers) are perfect exemplars of distrust (or outright rejection) of authority, with the ulterior motive of denying the requirement to pay income taxes.

Of course, it's the little inconsistencies they think they've uncovered that form the basis for their laughable arguments:

Anyone who studies history seriously knows that there is rarely a completely reliable, authoritative version of the facts surrounding any notable occurrence. The tidbits of inconsistency upon which most conspiracy theories rely occur constantly in connection with any activity we undertake. It's only when important activities are closely scrutinized that these details receive close attention. In other words, it's natural for people to believe that there should be no inconsistency in legitimate activities. So if we observe an inconsistency, we take that alone as evidence that the intuitive explanation must be flawed and we should search for a more complicated answer.

Yeah, the 7th Circuit would have none of that in 1986:

Thomas is a tax protester, and one of his arguments is that he did not need to file tax returns because the sixteenth amendment is not part of the constitution. It was not properly ratified, Thomas insists, repeating the argument of W. Benson & M. Beckman, The Law That Never Was (1985). Benson and Beckman review the documents concerning the states' ratification of the sixteenth amendment and conclude that only four states ratified the sixteenth amendment; they insist that the official promulgation of that amendment by Secretary of State Knox in 1913 is therefore void.

Benson and Beckman did not discover anything; they rediscovered something that Secretary Knox considered in 1913. Thirty-eight states ratified the sixteenth amendment, and thirty-seven sent formal instruments of ratification to the Secretary of State. (Minnesota notified the Secretary orally, and additional states ratified later; we consider only those Secretary Knox considered.) Only four instruments repeat the language of the sixteenth amendment exactly as Congress approved it. The others contain errors of diction, capitalization, punctuation, and spelling...

Thomas insists that because the states did not approve exactly the same text, the amendment did not go into effect. Secretary Knox considered this argument. The Solicitor of the Department of State drew up a list of the errors in the instruments and--taking into account both the triviality of the deviations and the treatment of earlier amendments that had experienced more substantial problems--advised the Secretary that he was authorized to declare the amendment adopted. The Secretary did so.

Although Thomas urges us to take the view of several state courts that only agreement on the literal text may make a legal document effective, the Supreme Court follows the "enrolled bill rule." If a legislative document is authenticated in regular form by the appropriate officials, the court treats that document as properly adopted...The principle is equally applicable to constitutional amendments...Secretary Knox declared that enough states had ratified the sixteenth amendment. The Secretary's decision is not transparently defective. We need not decide when, if ever, such a decision may be reviewed in order to know that Secretary Knox's decision is now beyond review.

But wait, what about this from 2003?!

THE COURT:  I WILL SAY I THINK, YOU KNOW, COLONEL, I HAVE TO TELL YOU THAT THERE ARE CASES WHERE A LONG COURSE OF HISTORY IN FACT DOES CHANGE THE CONSTITUTION, AND I CAN THINK OF ONE INSTANCE. I BELIEVE I’M CORRECT ON THIS.  I THINK IF YOU WERE TO GO BACK AND TRY TO FIND AND REVIEW THE RATIFICATION OF THE 16TH AMENDMENT, WHICH WAS THE INTERNAL REVENUE, INCOME TAX, I THINK IF YOU WENT BACK AND EXAMINED THAT CAREFULLY, YOU WOULD FIND THAT A SUFFICIENT NUMBER OF STATES NEVER RATIFIED THAT AMENDMENT.

MR. SULLIVAN: TRUE STATEMENT.

THE COURT:  AND NONETHELESS, I THINK IT’S FAIR TO SAY THAT IT IS PART OF THE CONSTITUTION OF THE UNITED STATES, AND I DON’T THINK ANY COURT WOULD EVER – WOULD SET IT ASIDE.  WELL, I’VE SEEN THAT– I’VE SEEN SOMEWHERE A TREATISE ON THAT, AND I THINK IT WAS — I THINK I’M CORRECT IN SAYING THAT ACTUALLY THE RATIFICATION NEVER REALLY PROPERLY OCCURRED.

MR. SULLIVAN: CORRECT, SIR.

THE COURT: YET NONETHELESS, I’M SURE NO COURT’S GOING TO SAY THAT THE 16TH AMENDMENT PERMITTING INCOME TAX IS VOID FOR ANY REASON, ALTHOUGH I WOULDN’T MIND FILING FOR A REBATE MYSELF.

So, yeah:

That’s a pretty startling admission by a Federal judge and, in my mind, lends a great deal of credibility to those who believe the 16th Amendment was never properly ratified.

I think it's totally dispositive when a Reagan-appointed District Judge in North Carolina meanders into das Wolkenkuckucksheim.  District rulings are never bad, which is why we don't have Circuit courts, let alone SCOTUS to overrule them.  Which brings us back to #5...

ntodd

April 8, 2015 in Constitution, Schmonstitution | Permalink | Comments (1) | TrackBack

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Happy Birthday, 17th Amendment!

I think the 17th Amendment is just grand, and not just because it's a perennial target for repeal by whackjobs who claim a deep love for federalism.  I bring it up because:

Connecticut had the distinction of being the requisite thirty-sixth state to ratify the Seventeenth Amendment, thereby making it a part of the Constitution. The governor, Simeon K. Baldwin, noted in his inaugural address on January 8, 1913, the importance of ratifying the proposed amendment.

Although the original resolution calling for ratification was adversely reported from the House committee on federal relations on March 27, the House was able to adopt a substitute resolution on April 8 by a vote of 151 to 77, and, five minutes later, the Senate concurred by a voice vote." While Connecticut was the last requisite state to vote ratification and did so on April 8, the Seventeenth Amendment did not become a part of the fundamental law of the land until May 31, 1913, because of the failure of the proper officials in a number of the states promptly to notify the State Department of the favorable action of their state legislatures.

Of course you're going to have certain inefficiencies in such a clunky mechanism, so it's not suprising that there were delays officially amending the Constitution because of failures on the part of various state officials (see Mississippi and the 13th Amendment).  What's interesting about that in this case is there appear to be some discrepancies between what various records say was the ratification date.

Okay, that might not seem interesting at first blush, but such things fuel conspiracy theories.  I mean, we've got some folks claiming there are "missing" amendments.  Others who assert the 14th Amendment was never ratified.  And let's not forget the 16th and 19th Amendments!

Even the 17th has its nutjob haters (including those who see it as part of a greater conspiracy to destroy America).  For example:

The amendment was declared ratified on April 8, 1913

According to the official documents from the National Archives, Arkansas ratified April 14, 1913; Connecticut ratified April 15, 1913; Wisconsin ratified May 9, 1913.

How is it the ratification process could be completed April 8, 1913, when three states didn't vote until after that date?

All it takes a little bit of misreading and misunderstanding to use such things as evidence of anything nefarious or otherwise faulty.  

First of all, the amendment was declared ratified on May 31, not April 8.  You certainly can read contemporary accounts of what transpired back then which mark April 8 as the date when the 36th state approved, but it's not like the White House announced anything official on Twitter that day.  

But what of this claim that Connecticut didn't actually ratify until April 15?  I've found both a Connecticut government source and a Federal document which suggest that is the case.  Yet the GPO indicates April 8 is correct.

So who's right?  Lemme just observe that the GPO also shows Pennsylvania as having ratified on April 2.  Yet that same Congressional document above says April 15.  A series of typos?  A deliberate attempt to conceal the true dates so we don't see the process as illegitimate?

I suspect it has something to do with delays in reporting to the US Secretary of State.  The history excerpted above seems to bolster that idea, as does Vermont's experience ratifying the Constitution itself.  Our Convention did its work on January 10, 1791, the Secretary transmitted results on January 21, and Congress received the necessary paperwork on February 9.  So on what date did we ratify?

Hardly something to hang your conspiracy on.  But these are the same people who see smudge marks, typos, etc, as indicative of something other than simple errors.  So, you know, whatever.

What's so strange to me is that I've not seen any similar conspiracy theories about the abolition of slavery.  Many years later after the 13th Amendment's passage, Lincoln's secretaries, Nicolay and Hay, collaborated on an article about it:

The ever-vigilant public opinion of the loyal States, intensified by the burdens and anxieties of the war, took up this far-reaching question of abolishing slavery by constitutional amendment with an interest fully as deep as that manifested by Congress. Before the joint resolution had failed in the House of Representatives the issue was already transferred to discussion and prospective decision in a new forum.
...
The logic of events had become more powerful than party creed or strategy. For fifteen years the Democratic party had stood as sentinel and bulwark to slavery; and yet, despite its alliance and championship, the peculiar institution was being consumed like dry leaves in the fire of war.

For a whole decade it had been defeated in every great contest of congressional debate and legislation. It had withered in popular elections, been paralyzed by confiscation laws, crushed by Executive decrees, trampled upon by marching Union armies. More notable than all, the agony of dissolution had come upon it in its final stronghold--the constitutions of the slave States. Local public opinion had throttled it in West Virginia, in Missouri, in Arkansas, in Louisiana, in Maryland; and the same spirit of change was upon Tennessee, and even showing itself in Kentucky.

Here was a great revolution of ideas, a mighty sweep of sentiment, which could not be explained away by the stale charge of sectional fanaticism, or by alleging technical irregularities of political procedure. Here was a mighty flood of public opinion, overleaping old barriers and rushing into new channels. The Democratic party did not and could not shut its eyes to the accomplished facts.

I particularly like the part about how final emancipation couldn't be "explained away...by alleging technical irregularities of political procedure."  Brings to mind a favorite, goofy ruling by the Utah Supreme Court regarding the subsequent amendment.  After summarizing how regular everything was in passing the Thirteenth, it then went into great detail about just how illegitimate the Fourteenth was.

But maybe you don't want to attack the amendment itself when you can use it to undermine civil rights.  I'm sure Roberts and Scalia would happily up with clever new doctrine to that end.

ntodd

April 8, 2015 in Constitution, Schmonstitution | Permalink | Comments (2) | TrackBack

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Tuesday, April 07, 2015

Cruz's Strip Tease

Yeah, it's some tasty red meat for the base still hoping for a successful rearguard action:

Ted Cruz raised more than a few eyebrows last week when, barely a week into his presidential run, he proposed a radical plan to strip federal courts of the ability to decide cases involving marriage equality.

As Esquire’s Charles Pierce notes, Cruz is echoing a time-honored rallying cry of people who are losing a battle in the federal courts: “Previous attempts include trying to remove the Supreme Court's jurisdiction over cases in a number of instances, including those involving school prayer, school busing, abortion, and pornography.”

The strategy has also been used in recent memory by another prominent player in t​oday’s marriage equality debate: Alabama Chief Justice Roy Moore.

Back in 2004, shortly after Moore was removed from his first stint in the court after he defied a federal court order to remove a monument of the Ten Commandments from the state judicial building, he worked with attorney Herb Titus to draft a bill that would have stripped jurisdiction over all such cases from the federal courts.

Congress does have this power, so it's not out of bounds constitutionally.  Politically it will be great for Cruz with the crazies and bigots.  

Practically it will be counterproductive in terms of the rest of the nation who doesn't hate gays or marriage equality.  And given that it would come after SCOTUS' likely pro-equality ruling this summer, even enactment of such a statue would have little positive impact on their hateful cause--though it could foster confusion at the state/county/municipal level for a while, delaying justice for some people in certain jurisdictions.

Really, it's just a tease.  But just the kind that could make primary season entertaining, especially with two whole Republican candidates in the race so early!

ntodd

 

April 7, 2015 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Monday, April 06, 2015

V-CSA Day

Loomis on Beutler's proposed national holiday marking the defeat of armed treason:

Two things. First, Crushing Treason in Defense of Slavery Day should absolutely be a national holiday. That should go without saying. It should be a national remembrance of the Confederacy’s evil and the end of the racist slave labor system that underwrote the development of American capitalism (that it was replaced by another racist labor system is a fair enough point).

Second, monuments to Confederates should be renamed but that doesn’t mean those previous names should be forgotten about. In other words, the Edmund Pettus bridge should be renamed the John Lewis bridge and there should be a historical marker there explaining who Pettus was and why the name was changed. That should be done around the nation. There should be no schools receiving federal money named after Robert E. Lee, Stonewall Jackson, or Jefferson Davis. But that they were named after those slaveholding traitors should be part of our official history. Similarly, we should rename American military bases named after slaveholding traitors.

I love it all.  I'll just add that we should celebrate with fireworks and burning the Confederate flag.

ntodd

April 6, 2015 in Constitution, Schmonstitution | Permalink | Comments (1) | TrackBack

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Speaking Of Racism In Defense Of God's Law

RMJ:

There is a lot of concern now about "gay marriage," and the ability to object to it.  Legally, of course, it's a public accommodation argument:  you can't open your business to the public and then refuse to serve certain classes of people.  Well, you can refuse to serve LGBT persons, because there is no federal law (and few state laws) that prohibit discrimination against them.  But the objection now is settling on marriage, and whether or not you can be "forced" to participate in them.

[E]ven after Loving v. Virginia and now Hobby Lobby v. Burwell, no baker is demanding a right to refuse to cater a mixed race wedding.

Mostly because you wouldn't get very far with that argument in court, or in the court of public opinion. It was tried when the Civil Rights Act was passed.  In Newman v. Piggie Park Enterprises, Inc., the defendant claimed: "that the [Civil Rights] Act [of 1964] violates his freedom of religion under the First Amendment 'since his religious beliefs compel him to oppose any integration of the races whatever.' "   The court was not too impressed with that argument...

This imbroglio will probably soon blow away.  If the Supreme Court decides there is no rational basis for disallowing same sex marriages, they will be as protected as mixed race marriages, and at that point I don't think RFRA laws in Indiana or Arkansas will be much protection to bakers and florists, if only because of the social pressure (an amendment to the Civil Rights Act of 1964 is still advisable, because a Supreme Court decision might still not make sexual orientation a protected class).  As I say, no one would think today to refuse to cater, say, a Protestant/Catholic wedding, or a Jewish/Gentile wedding.  It won't be such a large step to adding that for same sex marriages, in practice if not soon in law.

But this time it's different! 

ntodd

April 6, 2015 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Pickrick Drumsticks

Certainly denial of a right to discriminate...would not weaken the attributes of private property that make it an effective means of obtaining individual freedom. In fact, in order to assure that the institution of private property serves the end of individual freedom and liberty it has been restricted in many instances. The most striking example of this is the abolition of slavery.

 -Justice Douglas citing S. Rep. No. 872 in Atlanta Motel v US (1964)


Something RMJ said in comments reminded me of Lester Maddox.  He of the famous Pickrick Drumsticks used to forcibly prevent African-Americans from entering his establishment.

After he lost in court and faced enforcement of the Civil Rights Act:

As his customers and wife wept, Lester Maddox, restaurant operator and integration fighter, announced today that he would serve Negroes. It would have cost him $200 a day to continue serving white persons only.

But the very next day:

Lester Maddox, renouncing money for a vow to God, went out of business today when a Negro showed up at his restaurant for Sunday dinner... "I cannot betray my vow to God," Maddox told reporters. "Dollars are unimportant to me."

But I guess gay couples should be glad the very principled Memories Pizza never tried to bust their heads, so today's discrimination is okay.  Because freedom.

ntodd

April 6, 2015 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Bake Me A Cake With "I Love Title II" On It

Most likely I'm not the first to have this thought occur, but...

Even in states where there are no anti-discrimination protections based on orientation (ala NM's)--or perhaps especially in states that have an RFRA like IN--could one not attack bigoted business under the auspices of Title II?  I mean, if my religion allows for marriage equality, then your refusal to accommodate based on your religious beliefs seems like a violation of Federal statute. 

Yeah, it's tenuous, but could be an interesting basis for a 14th Amendment/CRA65 test case.  I mean, in light of all the bigots trying the reverse-discrimination angle in court.

ntodd

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

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Sunday, April 05, 2015

Gridlock In The Face Of Tyranny

April 5, 1792:

Gentlemen of the House of Representatives

I have maturely considered the Act passed by the two Houses, intitled, "An Act for an apportionment of Representatives among the several States according to the first enumeration," and I return it to your House, wherein it originated, with the following objections.

First—The Constitution has prescribed that representatives shall be apportioned among the several States according to their respective numbers: and there is no one proportion or divisor which, applied to the respective numbers of the States will yield the number and allotment of representatives proposed by the Bill.

Second—The Constitution has also provided that the number of Representatives shall not exceed one for every thirty thousand; which restriction is, by the context, and by fair and obvious construction, to be applied to the seperate and respective numbers of the States: and the bill has allotted to eight of the States, more than one for thirty thousand.

George Washington.

That was 50% of Washington's total vetoes, neither of which were overridden.

What interests me more than being a big first is just how readily folks were able to compromise on this rather fundamental bill.  

The House handily passed the original bill on February 21 (34-16), the Senate barely passed their amended version on March 12 (14-13).  The House disapproved, and the Senate agreed to a conference.  After they could come to no resolution, the Senate insisted on its amendments, the House receded from their objections, then on March 22 they presented Washington with their bill.

It was returned to the originating chamber, which failed to override with a surprisingly flipped vote (33-28) the very next day.  The Senate got the memo on April 9, which I only mention because Washington signed a new apportionment statute on April 14.  Pretty speedy response!

Of course, the Second Congress was still rather strongly pro-Administration, so I can understand the disagreement on particulars and rapid acquiescence to Washington.  Everybody was still trying to generally figure out some implementation issues, and they didn't necessarily think they had all the right answers.  Yet they accorded the president a great deal of respect.

Unlike today.  Alas.

ntodd

April 5, 2015 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Saturday, April 04, 2015

I Want To Force You To Bake An Acorn Cake

In the face of real discrimination, the stunts are pretty pathetic:

In the ruling released Friday, the Colorado Civil Rights Division rejected the argument that Azucar Bakery discriminated against the customer’s religion when it refused the order in March 2014, reports KUSA-TV.

The state ruled that the cake shop had every right not to make the cakes on the grounds that the message on the cakes would be “derogatory.”

The complaint against Marjorie Silva, owner of Azucar Bakery, was filed by Castle Rock, Colo., resident Bill Jack, who claimed Silva discriminated against his religious beliefs when she refused to decorate a cake showing two groomsmen with a red “x” over them and messages about homosexuality being a sin.

Silva said she would make the cake, but declined to write his suggested messages on the cake, telling him she would give him icing and a pastry bag so he could write the words himself. Silva said the customer didn’t want that.

In its ruling, the state determined that because Silva would have responded to any other customer the same way, the bakery didn’t refuse service because of the customer’s religion.

It strikes me as much like the accommodation that SCOTUS supposedly supported in Hobby Lobby.  How many fucking degrees of separation do you people need?

In one case, you sign a form, people get what they need and deserve by right, you're off the hook.  But that's not enough for the religious zealots who hate contraception.

In the other, the cake would be baked, and even the means to write your own hateful free speech would be provided.  But that's not enough for the religious zealots who hate queers.

Then there's death threats, but likely no GoFundMe riches, for bakers in similar positions.

Contrast to a baker who would make a cake and not be a part of loving ceremony.  It ain't rocket bakery.

ntodd

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

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Friday, April 03, 2015

Distinctions Without A Difference

Not a whole lot of energy to address it right now, but one thing has really struck me about our friendly neighborhood pizza withholders is their attempt to differentiate between being homosexual and gettin' gay hitched.

Now IN doesn't have protections against discriminating based on orientation.  Yet it's still instructive to look at NM and CO, where photographers and bakers denied service to homosexual couples using that same distinction.  

The bigots lost in court.  With good reason.

ntodd

PS--Maybe later I'll post some stuff from the various decisions, including SCOTUS rulings that support the other courts.  For now, it's left as an exercise to figure out the basis of the rulings.

April 3, 2015 in Constitution, Schmonstitution | Permalink | Comments (1) | TrackBack

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Thursday, April 02, 2015

Incitement

Digby on the ever reasonable DiFi:

Fergawdsakes:

I am particularly struck that the alleged bombers made use of online bombmaking guides like the Anarchist Cookbook and Inspire Magazine. These documents are not, in my view, protected by the First Amendment and should be removed from the Internet.

Setting aside what Senator Feinstein believes should and shouldn't be protected by the First Amendment, does she think it's possible to just "erase" these documents from the internet and then nobody will be able to build a bomb? Does she think that people are so stupid they can'tuse some of the million other books in the world that contain information about how to build a bomb? Burning all those books would be quite a task. 

Jesus, my friends and I had paper copy of Anarchist Cookbook when I was a kid.  It's not like the Internet created samizdat or other underground communications.  But, you know, best of luck deleting it from Ted Stevens' tubes.  The book burnings will be fun for roasting weenies and marshmallows.

Oh yeah, also, hello, Brandenburg v. Ohio (1969):

[T]he constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. As we said in Noto v. United States...

the mere abstract teaching . . . of the moral propriety or even moral necessity for a resort to force and violence is not the same as preparing a group for violent action and steeling it to such action.

But what do you expect from somebody who sets low bars for treason?  Not a deep thinker about constitutional rights...

ntodd

April 2, 2015 in Constitution, Schmonstitution | Permalink | Comments (1) | TrackBack

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Render Unto Washington

The Congress shall have Power...To coin Money, regulate the Value thereof, and of foreign Coin...

 - Article I, Section 8

Yup, I am an old coin collector and like numismatics.  So how could I ignore the enactment on April 2, 1792 of this: An Act establishing a Mint, and regulating the Coins of the United States.  

Section 10 is of particular interest to me:

That, upon the said coins respectively, there shall be the following devices and legends, namely: Upon one side of each of the said coins there shall be an impression emblematic of liberty, with an inscription of the word Liberty, and the year of the coinage; and upon the reverse of each of the gold and silver coins there shall be the figure or representation of an eagle, with this inscription, “UNITED STATES OF AMERICA,” and upon the reverse of each of the copper coins, there shall be an inscription which shall express the denomination of the piece, namely, cent or half-cent, as the ease may require.

Believe it or not, that was at the heart of a disagreement between the House and Senate.  The former took it up on March 24:

The House resolved itself into a Committee of the whole House on the bill sent from the Senate, entitled, "An act establishing a Mint, and regulating the coins of the United States." The following amendment being under consideration, viz: "In the tenth section, strike ont the words, 'Or representation of the head of the President of the United States for the time being, with an inscription, which shall express the initial or first letter of his Christian or first name, and his surname at length, the succession of the Presidency numerically^ and, in lieu thereof, insert, 'Emblematic of Liberty,' with an inscription of the word Liberty."

Mr. Page, in support of this motion said, that it had been a practice in monarchies to exhibit the figures or heads of their kings upon their coins, either to hand down, in the ignorant ages in which this practice was introduced, a kind of chronological account of their kings, or to show to whom the coin belonged. We have all read, that the Jews paid tribute to the Romans, by means of a coin on which was the head of their Caesar....

Mr. Williamson seconded the motion also, and affirmed that the Romans did not put the heads of their Consuls on their money; that Julius Caesar wished to have his on the Roman coin, but only ventured to cause the figure of an elephant to be impressed thereon; that by a pun on the Carthaginian name of that animal, which sounded like the name of Caesar, he might be said to be on the coin. He thought the amendment consistent with Republican principles, and therefore approved of it

Mr. Livermore ridiculed, with an uncommon degree of humor, the idea that it could be of any consequence to the United States whether the head of Liberty were on their coins or not; the President was a very good emblem of Liberty; but what an emblematical figure might be, he could not tell. A ghost had been said to be in the shape of the sound of a drum, and so might Liberty for aught he knew; but how the President's head being on our coins could affect the liberty of the people, was incomprehensible to him. He hoped, therefore, that the amendment would be rejected.

Mr. Smith, of South Carolina, agreed with Mr. Livermork in opinion; adding, that the President representing the people of the United States, might with great propriety represent them on their coins. He denied that Republics did not place the images of their Chief Magistrates on their coins; and said, he was surprised that a member who so much admired the French and their new constitution, should be so averse to a practice they have established; the head of their King is by their constitution put upon their money. Besides, it was strange that for a circumstance so trivial we should lose time in debating, and risk the loss of an important bill.

The said amendment was again read, and a division of the question thereon called for: Whereupon,

The question being taken, that the House do agree to the first part of the said amendment, for striking out the words "or representation of the head of the President of the United States for the time being, with an inscription, which shall express the initial or first letter of his Christian or first name, and his surname at length, the succession of the Presidency numerically:"—it was resolved in the affirmative— yeas 26, nays 22.

And then the question being taken that the House do agree to the second part of the said amendment, for inserting, in lieu of the words stricken out, the words, "Emblematic of liberty, with an inscription of the word Liberty:"—it was resolved in the affirmative—yeas 42, nays 6.

The Senate disagreed.  March 26:

It was moved that the House should recede from their amendment...

Mr. Livermore supported the motion. He said, he did not conceive it possible that and friend to the President of the United States, the Chief Magistrate, that great and good man, would have refused to pay every tribute of respect which was justly due to him. We have now a favorable opportunity of complimenting him, without any shadow of flattery, and without any expense.

But, instead of this, what is proposed? An emblematical figure of Liberty. But what is this liberty which some appear to be so fond of? He had no idea of such liberty as appears to possess the minds of some gentlemen. It is little better than the liberty of savages—a relinquishment of all law that contradicts or thwarts their passions or desires. His idea of liberty was that which arose from law and justice, which secured every man in his proper and social rights.

Some gentlemen may think a bear broke loose from his chain a fit emblem of liberty; others may devise a different emblem; but he could not conceive that any of them would be applicable to the situation of the United States, which justly boasted of being always free. If any idea of an emblem is necessary, he thought it might be applied to the head of the President of the United States...

Mr. Mercer replied to Mr. Livermore with some degree of asperity. He observed that there was a rule in the British House of Commons that the name of the King should never be mentioned in any debate. He thought some such rule might be introduced with advantage into this House. In the course of his remarks, to show that the circumstance of having the President's head stamped on the coin could not be justly considered as doing him an honor, he said, that persons of no better character than a Nero, a Caligula, or a Heliogabalus, may enjoy it as well as a Trajan, &c.

Mr. Seney adverted with severity on the remarks offered by Mr. Livermore, and on the conduct of the Senate; particularly in returning the bill with a negative to the amendment of the House, within a period that left them no time to deliberate on the reasons which might have influenced the House.

Mr. Giles opposed the motion for receding. He adverted to the ideas which are connected with the subject in European countries. The President's head will not designate the Government. There is to be but one head; but does not our Government consist of three parts...?

Mr. Benbox said, he supposed he should be extremely disorderly were he to mention the motives which influenced the Senate in their discussions. He knew not what they were, nor was it of importance that he should...Mr. B. ridiculed the idea of the people's being enslaved by their Presidents, and much less by his image on their coin.

Mr. Page replied that he was sorry to find that some gentlemen endeavored to ridicule Republican cautions. He thought it both indelicate and inconsistent with their situations, as well as highly impolitic...[T]his indiscriminate honor is unworthy of the President's acceptance. A Nero, a Caligula, a Heliogabalus, it has been observed, (by Mr. Mercer,) may enjoy it as well as a Trajan...

The question being now put, that this House doth recede from the said amendment, it passed in the negative—yeas 24, nays 82

The Senate gave up on March 27.  

What I find rather funny is the Senate was up in arms about titles of nobility and any perceived monarchial trappings for Washington at the beginning of the First Congress.  But we only got to the Second before they proposed putting the President on coins like Caesar, et al.

It's also funny that they completely forgot to put In God We Trust on coins until 1864, thus allowing heathens to deny our Christian heritage so we can oppress pizza makers.

ntodd

April 2, 2015 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack