Monday, December 09, 2013
Impeachment's Just Another Word For Nothing Left To Learn
A little more on the movement to impeach George Washington. From an article entered into the Congressional Record by Republican Congressman John Wydler on July 2, 1974:
The charge against him was “A daring Infringement of our Constitutional rights.” It arose when the Jay Treaty was concluded with Great Britain In 1794. William Roscoe Thayer, a biographer of Washington, declares that a bitter struggle was precipitated when the President’s opponents in Congress demanded that he hand over the correspondence and exchanges that led up to the signing of the Jay Treaty. This George Washington resolutely refused to do. even though he had neither precedent nor legal landmark to guide him. Dr. Thayer remarks that Washington clearly foresaw the danger of such a concession to his own administration and also the likelihood that it would be used against his successors In the Presidential office.
During and after confrontation with his antagonists Washington was deeply hurt by assaults not only on his capacity to govern but also on his character and honor. He wrote. “Every act of my administration has been attacked in such exaggerated and indecent terms as could scarcely be applied to a Nero— or even to a common pickpocket.” George Washington was undeniably “first in war” . . . but several decades had to pass before he was "first in the hearts of his countrymen."
Just remember, anything that gets enough House votes is impeachable, even if the President is just, you know, doing his Constitutional duties...
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The Short Answer Is 'No'
It does not occur that the inspection of the papers asked for can be relative to any purpose under the cognizance of the House of Representatives, except that of an impeachment, which the resolution has not expressed.
- George Washington's message to the House, March 30, 1796
On his radio broadcast today, Bryan Fischer agreed with a caller who demanded that Republicans in the House of Representatives "take a stand" and impeach President Obama even if he won't be convicted and removed by the Senate.
Fischer readily agreed, saying that even though there is no chance that Obama would actually be removed from office, House Republicans ought to go ahead and impeach him any way ... for educational purposes.
"There could be a powerful educational benefit from the House filing articles of impeachment," Fischer said, because "it would give the House the opportunity to make their case why this man needs to be removed from office ... And so they're be tremendous educational value in that; it may not go anywhere in the Senate ... but it may be time to recognize there's an educational benefit here"
Why yes, that DOES sound familiar:
At the time when this vocal minority was calling for action against Washington the United States was in an extremely, vulnerable position. With the Constitution less than a decade old, secession was being talked of in New England and the West. Dis- satisfaction with the federal government had flared into armed insurrec- tion only a year earlier. Only the most sanguine of observers could have absolute confidence that the union and republicanism would last.
Yet despite this, these presidential critics were convinced that impeachment proceedings should be initiated. For even though it was extremely unlikely that the President would be convicted, one anonymous essayist wrote, there were "important purposes to be gained by even a vote of impeachment. It would convince the world that we are free and that we are determine d to remain so. It would be a solemn and awful lesson to future Presidents: it would exact a scrupulous administration . . of the Constitution; it would give confidence to the people in the government; it would exact a respect for the laws, and it would impress the strongest conviction of the virtue of our representatives and the justice of our country. Lessons like these would not be useless; for when even a Washington would not be permitted to sport with our rights, and trifle with things sacred, we might calculate upon transmitting our inheritance to posterity . . ."
Despite these efforts, the impeachment issue was short-lived, was not supported by the Republican Party leadership and never reached the House of Representatives. House members did, however, in an effort to block implementation of the hated Jay's Treaty, pass a resolution directing the. President to furnish them with all documents and papers relating to the treaty. Washington refused to comply, citing the importance of the national defense and the need for secrecy.
Anyway, bring it on!
PS--Check out this hilarious petition to the WH (yeah, real firm grasp of civics) requesting Obama's impeachment mere days after his re-election. The response is way more measured than mine would've been.NToddcast RSS Feed
Federalists Were The Real Racists
Conservatives can transport themselves for two hours into the hellish antebellum world of 12 Years a Slave and experience the same horror and grief that liberals feel. What they cannot do, almost uniformly, is walk out of the theater and detect the still-extant residue of that world all around them.
She also links to Edroso:
[H]ow can conservatives be racist when they also smear white people? ("Conservatives were happy to accuse Bill Clinton off all sorts of things — of dodging the draft and [for some, at least] of having Vince Foster murdered. Was race the cause of all of that?")
Naturally, this reminded me of Garry Wills' Negro president : Jefferson and the slave power:
If real votes alone had been counted, Adams would have been returned to office. But, of course, the "vote" did not depend solely on voters. Though Jefferson, admittedly, received eight more votes than Adams in the Electoral College, at least twelve of his votes were not based on the citizenry that could express its will but on the blacks owned by southern masters. A bargain had been struck at the Constitutional Convention — one of the famous compromises on which the document was formed, this one intended to secure ratification in the South. The negotiated agreement decreed that each slave held in the United States would count as three-fifths of a person — the so-called federal ratio — for establishing the representation of a state in the House of Representatives (and consequently in the Electoral College, which was based on the House and Senate numbers for each state in Congress).
It galled the Federalists that Jefferson hailed his 1800 victory as a triumph of democracy and majority rule when, as the Mercury and New- England Palladium of Boston said (January 20, 1801), he had made his "ride into the temple of Liberty on the shoulders of slaves." He was president only because of "somber" or "sable" non-votes, and the Columbian Centinel noted (December 24, 1800) that the half-million slaves affecting the outcome had no more will in the matter than "New England horses, cows, and oxen." Timothy Pickering, the former secretary of state under Washington and Adams, coined the term "Negro President" and made it current among his Federalist allies — along with references to Negro electors, Negro voters, and Negro congressmen. Senator William Plumer of New Hampshire wrote that "the Negro votes made Mr. Jefferson president." He felt that "Negro electors exceed those of four states, and their representatives are equal to those of six states".
Even four years before the 1800 election, New Englanders had feared that Jefferson might win on his first try for the presidency, but only because of the "Negro electors." Connecticut governor Oliver Wolcott said then that the country would not submit to election "by a Negro representation only," and papers in his state predicted that such an event might prompt the North to secede from the Union. When their fears were confirmed by the outcome in 1800, Pickering faced the 1804 contest with a dread premonition:
Without a separation, can those [New England] states ever rid themselves of Negro Presidents and Negro Congresses, and regain their just weight in the political balance? At this moment, the slaves of the middle and southern states have fifteen representatives in Congress, and they will appoint that number of electors of the next president and vice president; and the number of slaves is continuously increasing.
I suspect this history is invisible to certain people, too...
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Sunday, December 08, 2013
Jefferson Was Complex
[T]he king of England beleives the mass of our people to be tired of their independance, and desirous of returning under his government: and that the same opinion prevails in the ministry and nation. They have hired their news-writers to repeat this lie in their gazettes so long that they have become the dupes of it themselves.
- Thomas Jefferson to John Jay (November 3, 1787)
As regular readers know, I hate it when people like Palin cherrypick the Founders. Not only is it offensive to try co-opting their ideas and use them as a cudgel a couple centuries later, but you miss a lot of instructive nuance to boot.
For example, Thomas Jefferson was a slaveholder, but also dedicated to emancipation (ineffective as he was). He did want government to get out of the way in general (he called Hamiltonians 'Monocrats'), but he understood the value of a strong central government.
Jefferson's often made out as a Super States' Rights guy, and that's not entirely an unfair characterization (he hated the Alien & Sedition Acts and campaigned against them, but wasn't necessarily against state-based suppression). Yet he was a politician, and practical.
The man was extremely concerned about any American disunity--perceived or real--that could hinder our success in the community of nations. Particularly his worries related to international relations, but they also included our ability to raise money for the general government. As he wrote to James Monroe on August 11, 1786:
There never will be money in the treasury till the confederacy shows it’s teeth. The states must see the rod; perhaps it must be felt by some one of them. I am persuaded all of them would rejoice to see every one obliged to furnish it’s contributions. It is not the difficulty of furnishing them which beggars the treasury, but the fear that others will not furnish as much. Every rational citizen must wish to see an effective instrument of coercion...
Huh. Even though he would go on to describe Shay's Rebellion as "commotions" and "nothing threatening," Jefferson recognized that the states, at least, could and should be forced into cooperation and providing revenue for national purposes.
Societies exist under three forms sufficiently distinguishable.
- Without government, as among our Indians.
- Under governments wherein the will of every one has a just influence, as is the case in England in a slight degree, and in our states, in a great one.
- Under governments of force: as is the case in all other monarchies and in most of the other republics.
To have an idea of the curse of existence under these last, they must be seen. It is a government of wolves over sheep. It is a problem, not clear in my mind, that the 1st condition is not the best. But I believe it to be inconsistent with any great degree of population. The second state has a great deal of good in it. The mass of mankind under that enjoys a precious degree of liberty & happiness. It has it's evils too: the principal of which is the turbulence to which it is subject.
Jefferson is often misattributed regarding "that which governs least," though he did think that the Confederation, despite its flaws, was "without comparison the best existing or that ever did exist." Yet he also didn't believe we need no govenment, and even saw the utility of a real, separate Executive, as he told Edward Carrington on August 4, 1787:
I think it very material to separate in the hands of Congress the Executive & Legislative powers, as the Judiciary already are in some degree. This I hope will be done. The want of it has been the source of more evil than we have experienced from any other cause.
Nothing is so embarrassing nor so mischievous in a great assembly as the details of execution. The smallest trifle of that kind occupies as long as the most important act of legislation, & takes place of everything else. Let any man recollect, or look over, the files of Congress, he will observe the most important propositions hanging over from week to week & month to month, till the occasions have past them, & the thing never done. I have ever viewed the executive details as the greatest cause of evil to us, because they in fact place us as if we had no federal head, by diverting the attention of that head from great to small objects...
So he was generally supportive of the proposed successor to the Articles when he wrote to James Madison on December 20, 1787:
I like much the general idea of framing a government which should go on of itself peaceably, without needing continual recurrence to the state legislatures. I like the organization of the government into Legislative, Judiciary & Executive. I like the power given the Legislature to levy taxes, and for that reason solely approve of the greater house being chosen by the people directly. For tho' I think a house chosen by them will be very illy qualified to legislate for the Union, for foreign nations &c. yet this evil does not weigh against the good of preserving inviolate the fundamental principle that the people are not to be taxed but by representatives chosen immediately by themselves.
I am captivated by the compromise of the opposite claims of the great & little states, of the latter to equal, and the former to proportional influence. I am much pleased too with the substitution of the method of voting by persons, instead of that of voting by states: and I like the negative given to the Executive with a third of either house, though I should have liked it better had the Judiciary been associated for that purpose, or invested with a similar and separate power.
There are other good things of less moment. I will now add what I do not like. First the omission of a bill of rights...The second feature I dislike, and greatly dislike, is the abandonment in every instance of the necessity of rotation in office, and most particularly in the case of the President.
Yup, still in favor of taxation (with representation) and Executive power (though with term limits), but would've liked a Bill of Rights (which lots of people wanted and got almost immediately). And, ever the democrat (whilst dimissing Shay once again as having "given more alarm than I think it should have done"):
[I]t is my principle that the will of the majority should always prevail. If they approve the proposed Convention in all it's parts, I shall concur in it chearfully, in hopes that they will amend it whenever they shall find it work wrong. I think our governments will remain virtuous for many centuries...Above all things I hope the education of the common people will be attended to; convinced that on their good sense we may rely with the most security for the preservation of a due degree of liberty.
While ratification progressed, he wrote Edward Carrington on May 27, 1788:
I learn with great pleasure the progress of the new Constitution. Indeed I have presumed it would gain on the public mind, as I confess it has on my own. At first, tho I saw that the great mass and groundwork was good, I disliked many appendages. Reflection and discussion have cleared off most of these. You have satisfied me as to the query I had put to you about the right of direct taxation [from Edward Carrington, April 24, 1788].
Thus, as the People debated and approved a new Constitution, Jefferson became more comfortable with it. What's more, he joined the very first Administration and made pragmatic decisions to sign onto policies he didn't entirely agree with, like Hamilton's excise tax which gave rise to the Whiskey Rebellion (see letters to George Washington, September 18, 1792, and James Madison, May 19, 1793). And he made compromises.
So what single lesson can you derive from this complex and varied public record? That Jefferson hated the Federal government and taxes? That he loved rebellion? That his natural heirs are Palin and the Tea Party Anarchy Caucus?
PS--In his letter to our first President, the SecState also writes: "If the situation of my daughter (who is in the straw) admits it, I purpose to set out about a week hence..."
Presumably referring to the recent birth of Thomas Jefferson Randolph. Just, you know, a little slice of life.NToddcast RSS Feed
Friday, December 06, 2013
Happy Birthday, Thirteenth Amendment!
No, not that "missing" one, the real one. To celebrate:
- Reconstructing Lincoln - a little background on House passage in early '65.
- Civil Rights Are The Real Slavery - remember, anything you don't like is slavery.
- Ironically Unconstitutional - it's surprising nobody has attacked the constitutionality of the 13th.
That's all I got...
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Thursday, December 05, 2013
On occassion of the 21st Amendment's becoming Supreme Law, I'm sitting here with a glass of Malbec and reading about how the various Conventions worked. Since we'd never amended the Constitution is such fashion before, and the states being what they are regardless, procedure was all over the map.
Some dealt with the process as a one-off. Other states passed general statutes to be ready the next time Congress decided on the convention method. Vermont was in the latter category.
Of the conventions, an article in the December 1935 edition of The American Political Science Review notes:
In nearly all of the state laws, provision was made for separate lists of delegates known to be in favor of or opposed to the ratiﬁcation of the proposed amendment. This was true in the case of the states passing general laws to cover any proposal in the future as well as in the case of those states providing only for action on the proposed repeal of the Eighteenth Amendment. Some states made provision for the selection also of unpledged delegates...
The separate listing of nominees for the oﬁce of delegate to the convention indicates that it was the intention in most of the states to conﬁne the activities of the delegates principally to casting votes in corroboration of the expressed will of the people. However, although this was what actually happened, few of the laws speciﬁcally bound the delegates to vote in accordance with the result of the ballot.
The available ofﬁcial records of the state conventions conﬁrm the conclusion that the conventions were not truly deliberative bodies, but merely registered the will of the voters who elected the delegates to them.
Sentiment in Vermont was clearly anti-Prohibition, with all 14 "wet" delegates winning about 40k statewide votes, compared to the 14 defeated "dry" nominees' 20k. One of the delegates, Republican former State Rep Walter Fenton, addressed the convention:
I hardly think that action of such important effect should be taken without at least some discussion of the subject matter, and for want of someone else to start it, I will be the victim. Some of us can remember back fourteen or ﬁfteen years when there seemed to be a great hue and cry for the adoption of the eighteenth amendment. Some of us can remember back fourteen or ﬁfteen years when the body sitting in this chamber, the Senate of that session, undertook action to adopt the eighteenth amend- ment before the proposal was ever transmitted, as a result of which, in due course of time and in proper orderly manner, they subsequently had the matter brought before them and did adopt it.
It was my great privilege at that time to be a part of the official family of a great citizen of Vermont, Percival W. Clement, who had been nominated by the Republican party for the office of Governor upon a platform the ﬁrst plank of which was opposition to the eighteenth amendment. I recall very vividly an occasion when that gentleman, with the courage which he always possessed, appeared before the committee on federal relations in the hall of the House of Representatives with the room as crowded with people as I had ever seen it, and in a very strong speech pointed out to the persons assembled there and to the people of Vermont, what would probably result if the eighteenth amendment was adopted.
Somehow or other every one of the prophecies which he uttered at that time came true just as he said they would come true, but they went even further and conditions developed that no one thought possible or dreamed of under the operation of the eighteenth amendment, until the people of this country, disregarding the loud voice of the organized minority who too frequently mistook the echo of their own voice for the voice of the people, rose up in their might in protest against the continuance of such conditions and are now taking out of the Constitution of the United States an article which never should have been put there in the ﬁrst place.
It is a very great privilege to be a member of this convention representing the people of the State of Vermont and to vote in favor of this resolution and the only regret which I have on this auspicious and historic occasion is that the Honorable Percival W. Clement is not here to witness and participate in the repeal of the eighteenth amendment which he so vigorously opposed in his lifetime.
I'll drink to that. And it appears the convention lasted about 15 minutes--hardly enough time to crack open a coupla beers and shoot the shit about amending the Constitution.
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Wednesday, December 04, 2013
The Livery Of Heaven
Could a man charged with burglary or rape find privilege and excuse before any of our courts on a plea that it was an act done in accordance with the religion of the prophet Mercury or the prohet Priapus, and that our Constitution permits the free exercise of religion?
- Mr Morrill of Vermont, speech in House of Representatives on Utah Territory and polygamy (February 24, 1857)
The legal history of polygamy in the US is really quite fascinating from where I sit. And since it oft comes up in the context of marriage equality, I thought I'd delve into it.
First off all, I must note that Mormonism's founder, Joseph Smith, was born in Vermont, and the architect of the first Federal law against polygamy was introduced by Justin Smith Morrill, a Representative of the very same little state. History, it would seem, is not without a sense of ironic symmetry.
It took several years of abortive efforts and debate to finally ban polygamy in the Territories, and Morrill started on the task almost immediately after the LDS church publicly came out in support of multiple marriages. But there really wasn't much will to pass legislation until after the Civil War began because...
The two issues were intertwined such that the controversy about polygamy was similar to things like Popular Sovereignty. When secesh fired the first shots the Union was concerned about putting anybody, including Mormons, into the rebels's camp. And slavery as an institution was quickly mooted, so polygamy's fate was sealed as well.
As Mr Branch, Democrat of North Carolina, noted in 1860:
The question as to whether we shall pass a general law rendering criminal this practice in all the Territories of the Union brings up a different class of considerations altogether. I will suggest to my friends in this Democratic side of the House, Sir, that if we can render polygamy criminal, then we can also render criminal that other "twin relic of barbarism" -- Slavery, as it is called in the Black Republican Platform of 1856. I therefore cannot vote for any provision that shall make a general law in regard to polygamy, applicable to all the Territories of the Union...
The nascent Republican Party certainly made explicit use of the connection. Their 1856 platorm included this plank that Branch alluded to:
Resolved: That the Constitution confers upon Congress sovereign powers over the Territories of the United States for their government; and that in the exercise of this power, it is both the right and the imperative duty of Congress to prohibit in the Territories those twin relics of barbarism--Polygamy, and Slavery.
But it wasn't just the GOP making hay. Free Soil Whig from Ohio, Joshua Giddings, attacked Democratic inconsistency on the issue in 1856
[F]or weeks and months, I have sat here and heard gentlemen denounce all attempts to interfere with the domestic institutions of our Territories. From the commencement of the discussion upon the Nebraska question to this day, scarcely a southern man has spoken who has not sneered at, condemned, and repudiated all attempts "to interfere with the domestic institutionsof mar Territories," They are now in favor of interfering with the domestic institution of marriage in Utah, among the Mormons.
I would deal out to the Mormon the same measure of justice and freedom that I would give to the citizens of Nebraska, with their hundreds of concubines. I will permit the Mormon to enjoy his dozen wives, and I believe I could do it with a great deal Better conscience than 1 could give the slaveholder the privilege of an unlimited number of concubines.
Now, sir, when the Mormon marries, he does it openly before the public. The act is lawfully registered; and, when it has taken place, the woman assumes and takes the same standing in society and in the community as her huaband. He recognizes her as his lawful partner. His children are legitimate. They are educated; they are taught to understand the laws of the country, and its Constitution. They become enlightened and intelligent, and may become useful members of the community.
Sir, the Mormon does not sell his wife, nor does he sell his children. No, sir. God forbid. The Mormon recognizes his child as entitled to his care, to his attention, to his protection, to the privileges of education. He does not sell his own offspring to a slave dealer. No, sir; no, sir.
The gentleman over the way, from Virginia, [Mr. Smith,] says that negroes in the South are entitled to marriage. Why, sir, am I to stand here at this day and proclaim that there is no such institution as legal marriage among three millions of slaves in the United States ? A fact of which we all are conscious. Is it not true that the gentleman who has made the declaration, would sell the wife of his slave to-morrow, if he could get his price for her? Or, that he would do worse, perhaps ? That there is no law in Virginia to protect that female from the outrages of a brutal owner.
Are we to sit here, month after month, and hear discussions in favor of promiscuous, unlimited concubinage in the South, and then turn round and pass laws limiting the Mormons in Utah in respect to marriage?
These gentlemen...were less than half the democratic members of the house---southern democrats voting for the anti-polygamy bill, because it favored the doctrine that congress could control the subject of slavery in the territories. But the Illinois democrats, although as much opposed to polygamy as any body else, dare not vote for the bill, because it was opposed to Mr. Douglas.
Mr. McClernand, of Illinois, had proposed to suppress the evil of polygamy by dividing up the territory, and attaching the different portions to other territories...how much better was it to divide up the territory and attach its parts to others? It was effecting indirectly that which Mr. McClernand denied could be done directly. This inconsistency [is] illustrated by a classic example of a similar inconsistency: "If I cannot rightfully murder a man, I may tie him to the tail of a kicking horse, and let him kick the man to death!''
But why divide up the territory at all?...Something must be wrong there, or it would not be necessary to act at all. And if one mode of interference is wrong, why not the other? Why is not an act dividing the territory as much against popular sovereignty as one for prohibiting polygamy? If you can put down polygamy in that way, why may you not thus put down slavery?
[I suppose] that the friends of popular sovereignty would say---if they dared speak out---that polygamy was wrong and slavery right; and therefore one might thus be put down and the other not...
But even after the ban was passed, President Lincoln wasn't entirely invested in enforcing the measure. He had a war on, you know. He is reported to have told TBH Stenhouse, editor of the Deseret Tribune, in an interview:
When I was a boy on the farm in Illinois there was a great deal of timber on the farm which we had to clear away. Occasionally we would come to a log which had fallen down. It was too hard to split, too wet to burn, and too heavy to move, so we plowed around it. You go back and tell Brigham Young that if he will let me alone I will let him alone.
Stenhouse, BTW, became a dissident Mormon, and his wife Fanny Stenhouse wrote a book about the evils of polygamy.
Anyway, the law was strengthened through later amendments, and withstood a Supreme Court challenge. Other attempts to defend polygamist activity have also failed through the years. But hey, I guess that could change just like bans on other forms of marriage.
I'm not entirely sure I would be opposed to that, though I don't see legalizing polygamy to be anywhere near the same league as marriage equality in terms of race, orientation, etc. Still a few too many sticking points for me right now to be wholly supportive, particularly given how the Mormons fought so hard for PropH8.
PS--I'm also a bit tired of people today trying to lay claim to religious protection against generally-applicable laws.NToddcast RSS Feed
A Blow At Marriage Bigotry
[W]hether Mormonism will be seriously affected by the destruction of polygamy or not, this degrading practice cannot be very long-lived.
- New York Times, January 8, 1879
Salt Lake Tribune today:
A federal judge will hear arguments Wednesday in a lawsuit challenging Utah’s ban on same-sex marriage brought by three couples who contend the prohibition is unconstitutional.
Each side has asked U.S. District Court Judge Robert J. Shelby for summary judgment — that is, to find their arguments so compelling there is no need for what would likely be a protracted legal fight over Utah’s Amendment 3, the ban approved by voters in 2004.
Attorneys for Utah say Windsor makes clear that states, not the federal government, have sovereign authority to define and regulate marriage. The Windsor ruling is "replete with deferential references" to the state of New York’s power and authority to regulate marriage, state attorneys argue, and criticizes the federal government’s effort to interfere with such decisions.
Windsor "overturned an act of Congress considered an ‘unusual’ federal intrusion" into state authority. Given that, Utah’s own power, decision-making and "exercise of its sovereign authority within our federal system to not include same-sex marriage is entitled to the same respect and deference," the state argues.
Attorneys for the three couples say that under the "binding analysis" of Windsor, their arguments prevail because "Utah’s Marriage Discrimination Laws ... single out same-sex couples to impose a disability on them, and to treat them unequally." Under Windsor, such laws are "irrational, and no legitimate purpose overcomes their purpose and effect to disparage and injure."
"In arguing that regulation of marriage is the exclusive province of the state, the state defendants rely on antiquated opinions and case law, and ignore the patent statements in Windsor to the contrary," the couples argue. Moreover, the state defendants "gloss over" statements in the decision that highlight the need to "respect the constitutional rights of persons" in marriage laws and misinterpret the basis for striking down DOMA, which was equal protection and due process — not federalism.
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Sunday, December 01, 2013
Speaking Of President John Quincy Adams
Per statute, the Presidential Electors met on December 1, 1824, to cast their ballots (the 1st Weds of December, which was the law until the 1880s). While there was no CNN back then, and election dates and mechanisms were all over the map, the results were fundamentally known.
Officially the votes weren't counted until February 9, but there was no mystery that Andrew Jackson had 99 and John Quincy Adams had 84, with nobody getting the required majority. So the House would, under the Twelfth Amendment, ultimately elect Adams over the other Top 3 candidates (the other being Crawford), 13-7-4.
Jackson decried a "corrupt bargain" that allegedly involved Henry Clay (who was disqualified for the contingent election coming in 4th) throwing his support behind Adams for an appointment to Secretary of State (the best path to the presidency in those days). The sore loser quit his Senate seat in a huff, and 4 years later kicked his rival's butt.
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Wednesday, November 27, 2013
25th Amendment, Bitches!
The Senate approved today, 92 to 3, the nomination of Gerald Rudolph Ford of Michigan as the 40th Vice President of the United States.
The nomination is expected to win approval by the House Judiciary Committee on Thursday and gain final confirmation by the House on Dec. 6 [they did, 387 to 35].
The Senate vote marked a historic moment for the nation--the first time that either House of Congress had acted in place of the voters in passing on a Vice-Presidential nominee under the 25th Amendment to the Constitution, which provides for filling any vacancy in the post.
Less than a year later, Jerry became the only American to serve both as Veep and Prez without ever having been elected by our vaunted Electoral College!
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Tuesday, November 26, 2013
Then There's That Infidel, Jefferson
When the Reverend Samuel Miller asked Thomas Jefferson to declare a day of thanksgiving, the president responded:
I consider the government of the US. as interdicted by the Constitution from intermeddling with religious institutions, their doctrines, discipline, or exercises...It must then rest with the states, as far as it can be in any human authority.
But it is only proposed that I should recommend, not prescribe a day of fasting & prayer. That is, that I should indirectly assume to the U. S. an authority over religious exercises which the Constitution has directly precluded them from. It must be meant too that this recommendation is to carry some authority, and to be sanctioned by some penalty on those who disregard it; not indeed of fine and imprisonment, but of some degree of proscription perhaps in public opinion. And does the change in the nature of the penalty make the recommendation the less a law of conduct for those to whom it is directed? I do not believe it is for the interest of religion to invite the civil magistrate to direct it’s exercises, it’s discipline, or it’s doctrines; nor of the religious societies that the general government should be invested with the power of effecting any uniformity of time or matter among them....
I am aware that the practice of my predecessors may be quoted. But I have ever believed that the example of state executives led to the assumption of that authority by the general government, without due examination, which would have discovered that what might be a right in a state government, was a violation of that right when assumed by another. Be this as it may, every one must act according to the dictates of his own reason, & mine tells me that civil powers alone have been given to the President of the US. and no authority to direct the religious exercises of his constituents.
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Thank God For The Science!
I've noted before that right from the beginning, our government has often invoked religion in its official capacity. Indeed, on the penultimate day of Congress' very first session, the House received a message:
Mr. Speaker: The Senate have agreed to the resolution desiring the President of the United States to recommend a day of general thanksgiving also, to the resolution desiring the President of the United States to transmit to the Executives of the several States in the Union, and also to the Executives of the States of Rhode Island and North Carolina, copies of the amendments agreed to by the Congress to the Constitution of the United States: they have also come to a resolution appointing a committee, to join with such committee as this House shall appoint, to wait upon the President of the United States and notify him of the proposed recess of congress. And then he withdrew.
So a few days later, President Washington issued a proclamation (emphasis mine):
I do recommend and assign Thursday the 26th day of November next to be devoted by the People of these States to the service of that great and glorious Being, who is the beneficent Author of all the good that was, that is, or that will be-- That we may then all unite in rendering unto him our sincere and humble thanks--for...the civil and religious liberty with which we are blessed; and the means we have of acquiring and diffusing useful knowledge; and in general for all the great and various favors which he hath been pleased to confer upon us.
And also that we may then unite in most humbly offering our prayers and supplications to the great Lord and Ruler of Nations and beseech him to pardon our national and other transgressions-- to...protect and guide all Sovereigns and Nations (especially such as have shewn kindness unto us) and to bless them with good government, peace, and concord--To promote the knowledge and practice of true religion and virtue, and the encrease of science among them and us--and generally to grant unto all Mankind such a degree of temporal prosperity as he alone knows to be best.
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Thursday, November 21, 2013
The Senate have accordingly formed some rules for its own government: but these going only to few cases, they have referred to the decision of their President, without debate and without appeal, all questions of order arising either under their own rules, or where they have provided none...The President must feel weightily and seriously this confidence in his discretion...
Following a historic rules change in the Senate, Sen. Rand Paul says that what the higher chamber needs now is an anti-bullying policy.
“What we really need is an anti-bullying ordinance in the Senate,” Paul told CNN’s Wolf Blitzer on Thursday, referring to Senate Majority Leader Harry Reid (D-Nev.). “I mean, now we’ve got a big bully. Harry Reid says he’s just gonna break the rules and make new rules.”
Breaking the rules? Let's go to the tape:
- Oct 31: Motion to Invoke Cloture on the Nomination of Patricia Ann Millett, of Virginia, to be U.S. Circuit Judge for the District of Columbia Circuit - rejected, 55-38.
- Harry Reid voted nay. Why?
- Because Rule XIII: When a question has been decided by the Senate, any Senator voting with the prevailing side or who has not voted may, on the same day or on either of the next two days of actual session thereafter, move a reconsideration...Every motion to reconsider shall be decided by a majority vote...
- And so:
Mr. REID. Madam President, I enter a motion to reconsider the vote by which cloture was not invoked on the nomination of Ms. Millet.
The PRESIDING OFFICER. The motion is entered.
- Today: a series of procedural votes on motion to reconsider - motion to proceed passed, 57-40; motion to reconsider passed, 57-43.
- Then the magic began with Rule XX: A question of order may be raised at any stage of the proceedings [and] shall be decided by the Presiding Officer without debate, subject to an appeal to the Senate. When an appeal is taken, any subsequent question of order which may arise before the decision of such appeal shall be decided by the Presiding Officer without debate; and every appeal therefrom shall be decided at once, and without debate; and any appeal may be laid on the table without prejudice to the pending proposition, and thereupon shall be held as affirming the decision of the Presiding Officer.
- And thus: Senator Reid raised a point of order that the vote on cloture for all nominations other than for the Supreme Court is by majority vote. The point of order was not sustained by the Chair. Senator Reid then appealed the ruling of the Chair and asked for the yeas and nays. The decision was not sustained, 48-52.
- Chair: UNDER THE PRECEDENT SET BY THE SENATE TODAY, NOVEMBER 21, 2013, THE THRESHOLD FOR CLOTURE ON NOMINATIONS, NOT INCLUDING THOSE OF THE SUPREME COURT OF UNITED STATES, IS NOW A MAJORITY. THAT IS THE RULING OF THE CHAIR.
- McConnell appeals because reasons, loses 52-48.
- Cloture is invoked by simple majority, 55-43. Game over.
This is not unprecedented:
[T]he historical record demonstrates that the use of the constitutional option is not limited to formal amendments of the Senate Standing Rules. Periodically, a majority has exercised the Senate’s constitutional rulemaking power to establish new precedents altering Senate procedure. For example, a majority has established precedents to limit members’ capacity to offer dilatory amendments, to propose legislative amendments to appropriations bills, to debate motions to proceed to nominations, and to use dilatory tactics to disrupt roll call votes.
Likewise, a current majority could exercise the constitutional option to set a precedent altering the Senate’s procedures governing debate. A Senator could allow debate to proceed for an extended period of time and then raise a point of order that debate had continued long enough, that any further debate would be dilatory, and that a vote must be taken within a designated time frame.
The Presiding Officer could rule in favor of the point of order, and a majority could table any appeal from his ruling. This would establish a precedent limiting the length of time for debate that would bind all future Senates (until the precedent were overturned by majority vote or unanimous consent).
So...rules, you say? Reid followed the rules exactly as written down. And a majority of Senators (55%) representing a majority of the nation (58% by my reckoning) made the chamber's rules, per the Constitution. Now a majority of Senators can, per the Constitution, consent to appointments made by a president who was re-elected by a majority (51%).
Because the majority rules.
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Tuesday, November 19, 2013
History Through An Ideological Lens
When Madison drafted the original version of what became the Bill of Rights and introduced it to Congress, it read:
“The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.”
The House drops the “well armed.” The Senate apparently attempts to go further: There seems to be a move in the Senate to prohibit the federal government from arming the militia, because they don’t want the federal treasury getting hit for this.
The Federalists were throwing some rhetorical bones to the Anti-Federalists. The Anti-Federalists wanted another convention to rewrite the Constitution, and they had been sort of bought off by promises that there would be amendments. There are certain rights in those first amendments—no excessive bail, trial by jury—you can trace back to the Magna Carta. But the Second Amendment, let alone the Ninth and 10th Amendments—God knows what they mean. They were just rhetorical, to quiet the Anti-Federalist critics. But I do think it’s clear that it’s about the militia. The Second Amendment is about self-defense? I just think that barely passes the laugh test.
I'm a bit disturbed that an historian would dismiss two Amendments so glibly. But I guess that's necessary if you want to focus solely on the language of the Second so you can ignore the existence of other private rights via penumbral emanations.
I'll reserve judgement on the vague statement that the Senate "seems" to have not wanted to foot the bill for militias. Certainly that flies in the face of the rest of the Constitution, which gives Congress explicit power to organize and arm them. I don't see anything in the Senate Journal suggesting this was a motivation, but it's sparse as usual, so without some citations I just don't know what the author is referring to.
Thus I remain...skeptical.
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Monday, November 18, 2013
In an interview published on Saturday, Newsmax’s Steve Malzberg asked Cruz what could be done about the “abuse of power” by the Obama administration.
“One of the most troubling aspects of the Obama administration is, aside from their radical policies, the way they’ve implemented it has sadly been lawless,” Cruz explained. “Over and over again, this president has said, ‘I don’t care what the law is, I’m going to refuse to enforce it.’”
The Texas senator cited the administration’s decision to grant work permits to young immigrants who were brought to the United States as children and tweaks to implementing the health care reform law.
“Is it impeachable?” Malzberg wondered.
“We have never seen a president behave like President Obama, who believes he can just pick and choose: He’ll enforce this law, not enforce another law,” Cruz opined. “That’s a question for the House ultimately. The House, under the Constitution, makes the decision whether to impeach and then the Senate is charged with trying. So, that’s a question for the House to assess.”
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Sunday, November 17, 2013
Uncommon Embarrassments And Delay
Congress having agreed upon a plan of confederacy for securing the freedom, sovereignty, and independence of the United States, authentie copies are now transmitted for the consideration of the respective legislatures.
This business, equally intricate and important, has, in its progress, been attended with uncommon embarrassments and delay, which the most anxious solicitude and persevering diligence could not prevent. To form a permanent union, accommodated to the opinion and wishes of the delegates of so many states, differing in habits, produce, commerce, and internal police, was found to be a work which nothing but time and reflection, conspiring with a disposition to conciliate, could mature and accomplish.
Hardly is it to be expected that any plan, in the variety of provisions essential to our union, should exactly correspond with the maxims and political views of every particular State. Let it be remarked, that, after the most, careful enquiry and the fullest information, this is proposed as the best which could be adapted to the circumstances of all; and as that alone which affords any tolerable prospect of a general ratification.
As I said the other day, it took 16 months to hammer this thing out, and another 3.5 years to ratify. In the meantime, Congress muddled through running a war, negotiating the peace, and unifying their new nation. It was a bumpy road, with military failures and political fights through the whole process.
Now imagine what would've happened had everybody just thrown up their hands and said, "fuck it, I told you this shit would never work!"
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Friday, November 15, 2013
One Big Happy Family Under The Articles
We have at length finished the Confederation and shall send it to the different States in a few days with strong exortation to give it quick consideration and speedy return.
- Richard Henry Lee to Samuel Adams, November 15, 1777
Yup, Congress dotted all the t's, crossed all the i's, and made all the goofy esses that look like f's on the Articles of Confederation. Speedy return? Not so much: didn't go into effect until March 1, 1781 (Maryland was the last to ratify about a week earlier). Heck, it was first reported a week after the Declaration, so it took them 16 months just to agree to the final proposal. Cut 'em slack, tho, because there was a little war on.
And as I observed a couple months back, slavery figured pretty heavily in the debates. The issue didn't go away after ratification, as the Confederation Congress tried vainly to amend the Articles, proposing a well-known "federal ratio" to count slaves for tax purposes.
The Framers in Philadelphia used the same math since it'd been approved by 11 of the states previously--NH and RI had rejected the amendment, so without unanimity it never was adopted, proving the Articles were pretty useless. Why reinvent the wheel, right?
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Wednesday, November 13, 2013
Keep Your Dead Hands Off Our Body Politic
[N]o society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation.
- Thomas Jefferson to James Madison, September 6, 1789
I guess Jefferson was right so far as he went, but I wouldn't put too much stock in his constitutional ideas any more than I would James Madison's or Alexander Hamilton's or Patrick Henry's. You know, my usual caveats on all that.
Still, I find it an interesting thing to consider and debate, particularly when the whole Dead Hand problem is raised by folks in the libertarian/anarchist/voluntaryist camp ("I never signed the social contract!"). Should we ever be bound by the past, and can we bind future generations to what we decide?
Short answer: of course, happens all the time whether we like it or not.
Certainly we have, or at lease ought, to be cognizant of our place in the timestream. Yet I cannot live completely thinking about the future--if I chop down these trees to build/heat my home, that necessarily changes the world for my kids, but I need to survive in the here and now. And I cannot live without dealing with what came before--somebody planted birches and pines instead of maples on my land, so if I want syrup I have to buy from the farm down the road or chop down my trees and replant with maple. Life's a drag that way.
Similarly, we have to deal with the political realities of the time and system we've been born into. And yet in our Republic we have ostensibly enjoy popular sovereignty and always have a chance to re-ratify our form of governance. Each generation--if I might glibly oversimplify--makes a collective decision to accept the Constitution, precedent, statute, etc.
We can take it all completely as is. We can amend it. We can call a convention to change it outright. We can work within the system electorally to tweak the statutory regime. We can interpret law through the modern lens of practical experience and understanding of the letter and spirit of our framing document. We can rebel against the entire machine in myriad ways.
Looking at our founding generation, we see plenty of examples of the living overcoming that dead hand:
- within the British parliamentary system, asserting their rights and resisting unjust laws until they were repealed (even without representation);
- exercising the right to rebellion (most people recall that part);
- forming not one, not two, but really three different frames of government (a de facto Congress, then Articles of Confederation, and finally the Constitution);
- fixing structural issues through amendment (the Bill of Rights and a couple other amendments);
- electorally overthrowing a regime within a generation (the Revolution of 1800);
- evolving constitutional interpretation (like Madison and the Second Bank).
But if all those methods are unsatisfactory, one could go the route Jefferson mused about to Madison:
Every constitution then, and every law, naturally expires at the end of 19 years. If it be enforced longer, it is an act of force, and not of right.--It may be said that the succeeding generation exercising in fact the power of repeal, this leaves them as free as if the constitution or law has been expressly limited to 19 years only.
In the first place, this objection admits the right, in proposing an equivalent. But the power of repeal is not an equivalent. It might be indeed if every form of government were so perfectly contrived that the will of the majority could always be obtained fairly and without impediment. But this is true of no form.
The people cannot assemble themselves. Their representation is unequal and vicious. Various checks are opposed to every legislative proposition. Factions get possession of the public councils. Bribery corrupts them. Personal interests lead them astray from the general interests of their constituents: and other impediments arise so as to prove to every practical man that a law of limited duration is much more manageable than one which needs a repeal.
Those objections to the right of repeal are not to be dismissed out of hand, but it seems that Jefferson then suggests there is no possibility ever of popular sovereignty or development of a Constitution. I think that was disproved by Philadelphia in the first place, so I tend to agree Thomas Paine over his fanciful view of constitutionalism:
It requires but a very small glance of thought to perceive that although laws made in one generation often continue in force through succeeding generations, yet they continue to derive their force from the consent of the living. A law not repealed continues in force, not because it cannot be repealed, but because it is not repealed; and the non-repealing passes for consent.
And while Madison had a certain investment in such charters and the Framers' understanding, I think he was more on track than Jefferson on the longevity--and need for it--of constitutions. If I might extrapolate a bit from something he wrote during the controversy over Washington's neutrality proclamation:
The attempt to shuffle off the Treaty altogether by quibbling on Vattel is equally contemptible for the meanness & folly of it. If a change of Govt is an absolution from public engagements, why not from those of a domestic as well as of a foreign nature; and what then becomes of public debts &c &c. In fact, the doctrine would perpetuate every existing Despotism, by involving in a reform of the Govt a destruction of the social pact, an annihilation of property, and a compleat establishment of the state of Nature. What most surprises me is, that such a proposition shd. have been discussed.
As an aside, I love the Vattel reference, for obvious reasons. Anyway, the larger point is that if we can just discard agreements--whether they be treaties or constitutions--just because they were made in the past between different governments or people, really all liberty is destroyed.
And even if we are in a "state of Nature", you'd still have people around you, unless you can go to the far side of the Moon or some place where you have no impact on others and they have none on you. Otherwise, everything will involve interaction at some point and naturally is going to be a collective issue, whether it be in a family, small hunter-gather unit, or larger society.
But yeah, one option is, certainly, for the current generation(s) to abolish our extant laws or entire system of government, either automagically every so often or by explicit act of repeal. Still, do we need to reinvent the wheel? In science and technology, we're always building on previous work and updating our understanding of things, so why not in society and government? Heck, even our human brains are made up of multiple evolutionary layers--we didn't get rid of our most primitive components but added new features over time (which could, arguably, be the problem?).
If the anti-statists could marshal compelling arguments to sway enough people, we'd get rid of government and all live in Utopia. But no matter what, society is a collective thing, and it's a darn shame that you're absolutely right but nobody else believes you. Don't have to like it, but now you have to figure out what to do practically. I think the constitution is extremely imperfect myself. I also wish I could go to Jupiter.
So, it's true that no constitution or law will last forever. They all rely on the living to continue, and they will be changed or repealed or what have you at some point. I don't think Jefferson was really offering a prescription or a desire to prohibit a constitution's binding future generations, but rather a simple philosophical observation and prediction that at some point people will tired of brushing off the cobwebs and create something new and different when they find the old regime inappropriate. The Dead Hand doesn't so much lock us into something as saving us a bit of work by giving us the starting point.
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Tuesday, November 12, 2013
Sarah Palin Hates The Constitution
PALIN: There is another definition of slavery and that is being beholden to some kind of master that is not of your choosing. And, yes, the national debt will be like slavery when the note comes due.
Sarah Palin brings up the Dead Hand issue: slavery is being beholden to something like the Constitution, which our children didn't choose. And, of course, she hates the constitutional power to tax and take on debt. So that means, in short, that she hates the United States Constitution.
Spread the word.
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House GOP Repeating The Experiment
Forty House Republicans filed a brief last week in support of a legal challenge against ObamaCare that argues the law imposes billions of dollars in new taxes but did not originate in the House, as tax bills must under the Constitution.
Rep. Trent Franks (R-Ariz.) spearheaded the effort by filing a "friend of the court" brief on Friday with the U.S. Court of Appeals for the D.C. Circuit. That brief argued that ObamaCare violated the Origination Clause of the Constitution, which holds that all bills for raising revenue "shall originate in the House."
The Court...holds that the individual mandate was not a “Bill for raising Revenue,” and thus the plaintiff’s Origination Clause challenge...fails to state a claim upon which relief may be granted. In any event, even if the individual mandate were a “Bill for raising Revenue,” the Court holds that it was nevertheless an amendment to a bill that “originated in the House of Representatives” and thus was enacted in compliance with the Origination Clause.