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Monday, July 25, 2016

Hard To Compromise With People Who Refuse To Compromise

Somehow it seems germane today that mere days after the disastrous Battle of Bull Run in 1861, the US Senate voted 30-5 in favor of this statement of war principles:

Resolved, That the present deplorable civil war has been forced upon the country by the disunionists of the southern States now in revolt against the constitutional government and in arms around the capital; that in this national emergency Congress, banishing all feeling of mere passion or resentment, will recollect only its duty to the whole country; that this war is not prosecuted upon our part in any spirit of oppression, nor for any purpose of conquest or subjugation, nor purpose of overthrowing or interfering with the rights or established institutions of these States, but to defend and maintain the supremacy of the Constitution and all laws made in pursuance thereof, and to preserve the Union, with all the dignity, equality, and rights of the several States unimpaired; that as soon as these objects are accomplished the war ought to cease.

The House had overwhelmingly passed a very similar resolution on July 22.  Not exact, but close enough for gummint work.  President Andrew Johnson referred to both versions in his proclamation of April 2, 1866:

[W]hereas these resolutions, though not joint or concurrent in form, are substantially identical, and as such may be regarded as having expressed the sense of Congress upon the subject to which they relate;

And whereas, by my proclamation of the thirteenth day of June last, the insurrection in the State of Tennessee was declared to have been suppressed, the authority of the United States therein to bo undisputed, and such United States officers as had been duly commissioned to be in the undisputed exercise of their official functions;And whereas there now exists no organized armed resistance of misguided citizens or others

to the authority of the United States in the States of Georgia, South Carolina, Virginia, North Carolina, Tennessee, Alabama, Louisiana, Arkansas, Mississippi, and Florida, and the laws can be sustained and enforced therein by the proper civil authority, State or Federal, and the people of the said States are well and loyally disposed, and have conformed or will conform in their legislation to the condition of affairs growing out of the amendment to the Constitution of the United States, prohibiting slavery within the limits and jurisdiction of the United States...

Now, therefore, I, Andrew Johnson, President of the United States, do hereby proclaim and declare that the insurrection which heretofore existed in the States of Georgia, South Carolina, Virginia, North Carolina, Tennessee, Alabama, Louisiana, Arkansas, Mississippi and Florida is at an end, and is henceforth to be so regarded. 

Well, good ole King Andy elided a couple of things.  The resolutions were passed in large part out of fear in the war's early days when the Union wasn't faring well and needed to make sure border states didn't bolt for the CSA.  But attitudes can change over time:

[The resolutions] voiced at the time the public opinion of the country, and almost the unanimous opinion of the Republican party. President Lincoln represented this opinion, and in a conservative spirit he attempted at first to conduct the war without inter- fering with slavery, on the assumption that the status of the states and their relation to the Union had not changed. 

But the war made all the difference in the world. The events of but a few short months of war wrought a decided change in the purpose and temper of Congress and the country. It was seen that slavery was a source of strength to the Rebellion. Conservative Union men were being rapidly and radically convinced that if the national government did not interfere with slavery, slavery would seriously interfere with the national government and the success of its arms. This change in policy and purpose is indicated by the fact that when the Thirty-seventh Congress came together again in its regular session in December, 1861, and an attempt was made to reaffirm the Crittenden resolution which had received such universal approval but a few months before, it was decisively rejected.

Indeed, the House laid the resolution to reaffirm said principles upon the table by Stevens' motion on December 4, and another in the same vein was similarly dealt with the following day through a motion made by Owen Lovejoy, brother of martyred abolitionist Elijah Lovejoy.

I bring that up only to show that the position of the Congress and the President had evolved fairly quickly once it was clear the war wasn't going to be quick and the prodigal South wouldn't be coming back to the family any time soon.  Certainly Lincoln saw that undermining slavery would undermine the rebellion, and when the House had a chance to reaffirm that the destruction of slavery wasn't a goal of the war--a purely political move--it failed to do so.

While Johnson made a nod to the 13th Amendment, he was still a white supremacist and a lot of stuff was going down in April that he and the South didn't like.  Congress was repassing the Civil Rights Act that the President had rejected in '65, and overriding his subsequent veto, plus a compromise was introduced that ultimately would become the 14th Amendment.  And that, of course, the Rebs weren't going to support--Johnson discouraged them to, not that they needed his advice--so Congress was spurred to pass the Reconstruction Acts and implement a Radical Republican vision of how to readmit Southern States.

Southern Unionist/War Democrat Johnson was just as counterproductive as the traitors themselves.  In an alternate history, he might've signed the Civil Rights Act first time around, and the Radical Reconstruction would not have come to fruition and the 14th Amendment never would have been deemed necessary.

Anyway, from the North's perspective (not the South's, natch), the war wasn't about slavery at the beginning.  But every time they tried to meet the pro-slavery folks halfway, or 3/5s of the way, their opponents weren't satisfied, so fairly quickly the war did become a fight against slavery.  

The Union couldn't be a house divided, and the Rebels forced the question.  Then lost.

I think some people need a reminder.


July 25, 2016 in Constitution, Schmonstitution | Permalink | Comments (0)

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Friday, July 15, 2016

The Senate: How Does It Work?

Read harder, Senator:

The senators pushing for the Senate to confirm judges were perplexed by Tillis' argument.

"I’m not sure what version of the Constitution you’re reading that doesn’t say confirming judges is part of your job in the United States Senate," Sen. Elizabeth Warren (D-MA) said, according to the Huffington Post.

He must have read Article 12 that said the President can appoint judges without advice or consent, so congrats Justice Merrick Garland!


July 15, 2016 in Constitution, Schmonstitution | Permalink | Comments (0)

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Monday, July 11, 2016

No Rights Which The White Man Was Bound To Respect

Well, it's the antithesis to something, Mrs Hegel:

Former Alaska Gov. Sarah Palin (R) over the weekend demanded that media outlets begin referring to Black Lives Matter activists as “thugs” instead of calling them “protesters” or “people.”
“You know, it’s the antithesis of Martin Luther King Jr.’s message. It’s the antithesis of our Constitution, of the Bill of Rights, our charters of liberty that says all men are created equal.”

Ah yes, our charters that say all men are created equal, which Justice Taney so revered...


July 11, 2016 in Constitution, Schmonstitution | Permalink | Comments (1)

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Sunday, July 10, 2016

Bye, Felicia!

President Andrew Jackson vetoed the Second Bank of the United States on this date in 1832.  At the time, Mr Soon To Be On The Back Of The Twenty noted:

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

I'd argue that the Bank, just like the Fed, is constitutional, but I can't take issue with his essential logic.  Everybody in government--that includes voters--must interpret the Constitution and act accordingly.

It's true that the constitutionality of the National Bank was challenged and upheld in McCulloch v. Maryland (1819):

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

Yet this did not prevent Jackson from vetoing the early renewal bill and letting the old charter expire.  SCOTUS might have found the Bank to be allowed, but that opinion placed no obligation on the Executive, who can veto whatever he wants for whatever reasons.  What's permissible doesn't necessarily translate into policy (wise or otherwise).

As an aside, Jackson provided fodder for Lincoln in debate with Stephen Douglas.  He called out the latter for inconsistency regarding Dred Scott.

Anyway, Old Hickory was hardly alone in his resistance to a national bank.  Thomas Jefferson wrote to John Taylor of Caroline in 1816, about a month after President Madison signed legislation chartering the Second Bank:

The system of banking we have both equally and ever reprobated. I contemplate it as a blot left in all our constitutions, which, if not covered, will end in their destruction, which is already hit by the gamblers in corruption, and is sweeping away in its progress the fortunes and morals of our citizens. 
And I sincerely believe, with you, that banking establishments are more dangerous than standing armies... 

Taylor later wrote a response to McCulloch that boiled down to this: if Congress can incorporate a bank, it can end slavery.  And we can't have that!

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

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

Interestingly, Virginia's House members split on the final vote, 8-10 (it passed 80-71), whilst both Senators voted in favor (it passed 22-12).  A more interesting development, however, is that James Madison supported the Second Bank whilst leading opposition to the First.

Turns out that the War of 1812 created a great deal of chaos in our nation's financial state.

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

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

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

So in President Madison's 7th Annual Message to Congress on December 5th, 1816:

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

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

In response, the Senate created a select committee on finance and a uniform national currency (predecessor to the standing Finance Committee created the following year).  The House did, as well, and John C Calhoun (a Democratic-Republican) reported out a bill that eventually made it through the sausage grinder.

Oddly enough, Calhoun would later resign as Vice President under Jackson so he could run for Senate to defend nullification.  THAT was definitely unconstitutional.  Anyway, here we are now, getting the last laugh on all those white dudes with bad hair...


July 10, 2016 in Constitution, Schmonstitution | Permalink | Comments (0)

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Monday, July 04, 2016

"Humility and benevolence must take place of pride and overweening selfishness."

There have always been divisions in the American body politic, and for a long, long time it was slavery.  Happy Fourth!


July 4, 2016 in Constitution, Schmonstitution | Permalink | Comments (0)

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Saturday, July 02, 2016

Then an ambitious citizen may arise, seize the reins of power, and annihilate liberty forever…

July 1, 1776:

Resolved, That this Congress will resolve itself into a committee of the whole, to take into consideration the resolution respecting independency:

Resolved, That the Declaration be referred to said committee.

The Congress resolved itself into a committee of the whole, ∥After some time,∥ the president resumed the chair. Mr. [Benjamin] Harrison reported, that the committee have had under consideration the matters referred to them, and have agreed to the resolution, which they ordered him to report, and desired him to move for leave to sit again.

The resolution agreed to by committee of the whole being read, the determination thereof was postponed, at the request of a colony, till to morrow.

Always gotta send shit to committee.  And John Dickinson spoke against it:

Independence, I am aware, has attractions for all mankind but I am maintaining that, in the present quarrel, the friends of independence are the promoters of slavery, and those who desire to separate would but render us more dependent...the democratic power may carry all before it and involve the whole state in confusion and ruin.

But efficiently, they adopted the Lee Resolution the following day:

The Congress resumed the consideration of the resolution agreed to by and reported from the committee of the whole; and the same being read, was agreed to as follows:

Resolved, That these United Colonies are, and, of right, ought to be, Free and Independent States; that they are absolved from all allegiance to the British crown, and that all political connexion between them, and the state of Great Britain, is, and ought to be, totally dissolved

John Adams wrote his dearest friend, Abigail, about today's momentous occassion:

The Second Day of July 1776, will be the most memorable Epocha, in the History of America. I am apt to believe that it will be celebrated, by succeeding Generations, as the great anniversary Festival. . It ought to be commemorated as the day of deliverance, by solemn acts of devotion to God Almighty. It ought to be solemnized with pomp and parade, with shows, games, sports, guns, bells, bonfires, and illuminations, from one end of this continent to the other, from this time forward forever more.

We did indeed light some shit on fire this evening to celebrate.


July 2, 2016 in Constitution, Schmonstitution | Permalink | Comments (0)

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Thursday, June 30, 2016

Creative Accounting

The Donald's Math explains a lot:

Radio host Mike Gallagher noted during an interview with the candidate that the Supreme Court “handed the pro-life movement a disappointing decision” by striking down a Texas law that made it more difficult for women to get abortions.

Trump suggested that the 5-3 decision would have been flipped to a 5-4 decision upholding the law if he had been able to fill the vacancy left by the death of Scalia with a pro-life judge.

“Now if we had Scalia was living or is Scalia was replaced by me,” Trump said, “you wouldn’t have had that. Okay? It would have been the opposite.”

To be fair, Scalia/Donald's Scalia Replacement would've likely used the Bully Pulpit/literally bullied Kennedy into the proper vote, making it 5-4 the other way...


June 30, 2016 in Constitution, Schmonstitution | Permalink | Comments (0)

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Wednesday, June 29, 2016

The First Amendment Was Written By White Men For White Men


Tyler, who also set up a billboard quoting Martin Luther King Jr. alongside a Confederate flag, said he didn’t mind if the second campaign rejected his message.

“I think it’s great what they’re doing,” Tyler said. “They’re stoking the fire of the story.”

Two of Tyler’s signs were taken down last week by the billboard rental companies, and the candidate said he was disappointed.

“I’m all about freedom,” said Tyler, whose campaign website contains lengthy “conspiracy science” posts about chemtrails and communist plots. “It’s great that they are able to say what they want to say. What’s tragic is that I’m not able to. I’m not allowed to. My First Amendment right is being nailed to the cross.”

It is truly sad that Black Obama signed that executive order banning this White Man's simple message of White Love, literally nailing him to the cross.  But hey, at least his message wasn't lynched, amirite?


June 29, 2016 in Constitution, Schmonstitution | Permalink | Comments (0)

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No, The Conservative Movement Left Kennedy

Booman writing not at Booman:

It appears that Kennedy was about to gut affirmative action in college admissions back in 2012 but was dissuaded when he read Sotomayor’s blistering draft dissent. He decided to punt by sending the case back down to the lower court and asking them to be more hard-ass in their assessment of universities’ diversity admission programs. And then something odd happened.

The lower court looked again—and upheld the affirmative-action program again.

When the case came back, there was little reason to expect anything but a brisk reversal. Yet during the intervening terms, Kennedy may have begun to move on race questions…

…The opinion Kennedy wrote was really not a narrow one. It strongly endorses the Lewis Powell-Sandra Day O’Connor view of affirmative action as a quest for racial diversity, and it goes out of its way to say that courts must defer to educational authorities when assessing race-conscious admissions plans.

As Epps explains in detail, this is a fundamental reversal of Kennedy’s thinking, and it amounts to apostasy in conservative circles.

I don’t know if Sotomayor deserves most of the credit or if it’s more a matter of Kennedy just getting disgusted by the extremism of the Conservative Movement, or some combination. But taken together with his support of gay marriage and his joining the majority in the Whole Woman’s Health v. Hellerstedt abortion case, Kennedy has recently presided over a scorched earth decimation of the core of the Conservative Movement’s judicial order of battle.

Which is probably why we need somebody who will appoint Justices with some amount of empathy...


June 29, 2016 in Constitution, Schmonstitution | Permalink | Comments (0)

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Tuesday, June 28, 2016

Religious Accommodations For Plan B, But Not For Peyote

Conservatives legitimately ask Why Can't I Discriminate If I Really, Really Hate Something?

[I]n 2007, the Washington State Board of Pharmacy issued new regulations declaring that a pharmacy may not “refuse to deliver a drug or device to a patient because its owner objects to delivery on religious, moral, or other personal grounds.” Quite reasonably, the board felt Washington pharmacies should not be permitted to deny patients safe, legal drugs—which was a growing problem within the state: In addition to Plan B, religious pharmacists had refused to give patients diabetic syringes, insulin, HIV-related medications, and Valium. That, the board decided, was unacceptable. Pharmacists have every right to believe whatever they wish, but when those beliefs are manifested in the form of brazen discrimination against customers, they cannot be sanctioned by the law. In 2015, the 9th U.S. Circuit Court of Appeals affirmed the constitutionality of Washington’s regulation.

Alito, along with Thomas and Roberts, seesStormans differently. “There are strong reasons to doubt,” Alito writes, “whether the regulations … actually serve … any legitimate purpose.”

There are strong reasons to doubt whether Justice Alito serves any legitimate purpose.


June 28, 2016 in Constitution, Schmonstitution, Soaking In Patriarchy | Permalink | Comments (1)

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Monday, June 27, 2016

It's A Trap!

And Dead Tony couldn't have stopped it:

In a huge victory for the pro-choice movement, the Supreme Court voted 5-3 Monday to strike down two major anti-abortion provisions that were part of an omnibus anti-abortion law Texas passed in 2013.

The court's ruling in Whole Woman's Health v. Hellerstedt also strikes a blow to a strategy by the pro-life movement to limit abortion access incrementally, through state laws.

To provide abortions at any stage of pregnancy, the provisions forced doctors to have"admitting privileges" with a nearby hospital (which are difficult to get for abortion providers specifically), and forced clinics to undergo often expensive renovations to become "ambulatory surgical centers," which haven't been demonstrated to make abortion safer (though abortion is already quite a safe medical procedure.)

While pro-life advocates said these laws made abortion safer for women, their most significant effect was forcing roughly half of the state's abortion clinics to close. The overwhelming consensus from doctors is that the laws had no medical benefit, and actually made abortion less safe because they forced quality clinics to close for no compelling medical reason.

The central constitutional question was: Did the policies put an "undue burden" on women when they are forced to drive hundreds of miles because their nearest clinic has closed due to regulatory hurdles?

The Court found that it did.

"Both the admitting-privileges and the surgical-center requirements place a substantial obstacle in the path of women seeking a previability abortion, constitute an undue burden on abortion access, and thus violate the Constitution," read the decision.

No fucking shit.  I mean, TRAP laws are no threat to liberty like background checks and smaller magazines and/or clips, of course, but this is still pretty good news, if you're into that sort of thing.


June 27, 2016 in Constitution, Schmonstitution, Soaking In Patriarchy | Permalink | Comments (0)

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Sunday, June 26, 2016

Happy Big Gay Tony Day!

June 26 is always a good day to drink bigots' tears:

  • 2003: Lawrence.
  • 2013: Windsor.
  • 2015: Obergefell.

Let us toast Justice Vaffanculo in Hell!

So far, few people have followed my recommendation that on this date we dress up in black robes, wear a scowling Scalia mask, and set bonfires to commemorate the brightness of wingnut self-immolation which provided us such a beacon of hope and justice.  Sometimes I feel like John "Nobody Ever Listens To Me" Adams...


June 26, 2016 in Constitution, Schmonstitution | Permalink | Comments (0)

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Saturday, June 25, 2016

We, The...

On this anniversary of Virginia's ratifying our Constitution (the tenth State to do so), I thought a few vignettes from their convention were worthy of some propagation.  First, I give you Super Patriot Patrick Henry:

[S]ir, give me leave to demand, What right had they to say, We, the people? My political curiosity, exclusive of my anxious solicitude for the public welfare, leads me to ask, Who authorized them to speak the language of, We, the people, instead of, We, the states?

He feared enslavement by government, and claimed to hate slavery, however

Among ten thousand implied powers which they may assume, they may, if we be engaged in war, liberate every one of your slaves if they please...Have they not power to provide for the general defence and welfare? May they not think that these call for the abolition of slavery? May they not pronounce all slaves free, and will they not be warranted by that power? This is no ambiguous implication or logical deduction. The paper speaks to the point: they have the power in clear, unequivocal terms, and will clearly and certainly exercise it. As much as I deplore slavery, I see that prudence forbids its abolition. I deny that the general government ought to set them free, because a decided majority of the states have not the ties of sympathy and fellow-feeling for those whose interest would be affected by their emancipation. The majority of Congress is to the north, and the slaves are to the south.

It's a puzzle that Super Patriot From A Slave State focused so much on states' and not individual rights.  Anyway, he was answered thus by Edmund Pendleton (who was unanimously elected president of the convention):

Personify government: apply to it as a friend to assist you, and it will grant your request. This is the only government founded in real compact. There is no quarrel between government and liberty; the former is the shield and protector of the latter. The war is between government and licentiousness, faction, turbulence, and other violations of the rules of society, to preserve liberty...

But an objection is made to the form: the expression, We, the people, is thought improper. Permit me to ask the gentleman who made this objection, who but the people can delegate powers? Who but the people have a right to form government? The expression is a common one, and a favorite one with me. The representatives of the people, by their authority, is a mode wholly inessential. If the objection be, that the Union ought to be not of the people, but of the state governments, then I think the choice of the former very happy and proper. What have the state governments to do with it? Were they to determine, the people would not, in that case, be the judges upon what terms it was adopted.

Henry was no democrat, and no fan of the proposed republican framework, either.  He spoke near the end of Virginia's Convention:

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

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

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

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

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

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

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

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

At that point, the threat of disunion was greater than the danger posed to Liberty by a strong government.  Most likely that's still true even today..


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June 25, 2016 in Constitution, Schmonstitution | Permalink | Comments (0)

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Friday, June 24, 2016

Texas Secesh: Still Crazy But Cute After All These Years

I needed a good chuckle today:

From the looks of it, the British people have chosen to take control of their political and economic destiny. The forces of fear have lost. It is now important for Texas to look to ‪#‎Brexit‬ as an inspiration and an example that Texans can also take control of our destiny. It is time for Texans to rally with us and fight for the right to become a self-governing nation.

Of course the Lisbon Treaty has an explicit stipulation about how to leave the Union.  The US Constitution? No. Such. Thing.

But I'm willing to accept the dicta in Texas v White that We the Rest of the Several States can consent to see you sorry ass go.


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June 24, 2016 in Constitution, Schmonstitution | Permalink | Comments (0)

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Thursday, June 23, 2016

Adventures In Bad Legislating

This is a nation that developed the world's most destructive weapon, is the only one to have actually used one (two!) in war, and yet somehow since that time we also sent humans to the moon and ended up, so far, not causing a global nuclear holocaust.  This is a nation that finds new and inventive ways to prevent women from exercising their reproductive rights.  This is a nation that cleverly attacks non-existent problems like voter fraud to disenfranchise minority voters

All that, but we can't, among all the nations of the world, figure out how to mitigate the violence, particularly involving guns, in our society.  That's the backdrop to the frustration many Americans feel, and the desperate measures House Dems have taken during their remarkable sit-in.

Make no mistake: any solution that relies on the No Fly List is bad, bad, bad.  I'd also submit that outright bans probably aren't going to work, either.

That said, I'm completely sympathetic with John Lewis et al.  This Congress thought it was a great idea to vote on actively eroding the 4th Amendment (Senate) and gutting a rule that requires bankers to do their jobs with client interests in mind (House).  Then they throw up their hands and say nothing to do about all the shootings, sorry.

The Dems' stated goal of a (losing) vote on some bad law isn't necessarily bad itself, however.  Like many "stunts", the real object is to force a reaction.  At the very least, they put their differences with the Do Nothing/Know Nothing GOP in stark relief.  That's particularly good if the other side can't even come up with alternatives, and is left sputtering on Twitter.

I'd love to see a complete pivot away from this demand and toward something more constructive.  How about: "okay, you don't like this approach, so let's skip it.  While we're at it, let's kill the No Fly List.  Oh, also maybe let us create a Department of Peace, and end the ban on gun research by the CDC so we can at least start examining violence inherent in our society and why the fuck other countries don't go through the same shit every other goddamned day?"

It's not like sitting around has gotten us anywhere...


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June 23, 2016 in Constitution, Schmonstitution, Pax Americana, RKBA | Permalink | Comments (3)

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Wednesday, June 22, 2016

"Calculated merely to amuse, or rather to deceive."

Due process is as due process does:

[The Senate] voted on legislation from Republican Arizona Sen. John McCain to chip just a little bit more of the Fourth Amendment away by allowing the FBI to skip that whole judicial review process when collecting electronic records of suspects. This is their answer to Orlando, even though it's not an answer at all. The FBI director, in fact, said it wouldn't have made a difference because the FBI had the shooter's electronic records, obtained with a judge's consent. Oh well.

And yes, this is the same Republican party that argued keeping people on the terrorist watch list from getting guns was a problem because there wasn't judicial process. No, it doesn't make any sense.

Sure it makes sense, just as it does for Democrats to push their legislation tied to a No Fly List that they decried during the Bush Interregnum.  It's always surprising to me when people are surprised that the political process involves politics.  Context matters, as do changing circumstances, which is completely consistent with how we've done shit since we first argued about the Bill of Rights.


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June 22, 2016 in Constitution, Schmonstitution, RKBA | Permalink | Comments (0)

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Where Does My Nose Begin?

What, sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty.

 - Elbridge Gerry, debating the Second Amendment on 17 August, 1789

Not that I agree with Prohibition, nor total bans on any particular firearms, but John Finch, Chairman of the Prohibition National Committee, does offer some counsel from the 19th century that we might consider:

Unrestrained natural liberty is the enemy of civil liberty. Let me illustrate: It was personal liberty that enabled Guiteau to send the bullet through the back of President Garfield. It is civil liberty which will hang him on the 30th of June. Do you see the difference? It is personal liberty that would let me meet you on the street and knock your brains out with a club; it is civil liberty that would punish me for the crime...

Personal liberty means individual or brute liberty. Civil liberty means the restraint of personal liberty. I have a legal right to fill my mouth with tobacco, and chew, and chew and spit. I do not believe I have the physical and moral right.

I have a right to chew and spit that way, or chew and spit the other way—it is none of your business. You grant that right if I am alone on the prairie. I go into a crowd of men and exercise the right. I chew and spit in one man's facer and chew and spit in another man's ear. I would be knocked down in a minute. As a man hits me on the ear, I exclaim, "Is not this a free country?" "Yes." "Have not I a right to spit?" You would teach me that my right to spit ceased where your right not to be spit upon began.

This arm is my arm and my wife's; it is not yours. Up here I have a right to strike out with it as I please. I go over there with these gentlemen and swing my arm and exercise the natural right which you have granted;. I hit one man on the nose, another under the ear, and as I go down the stairs on my head, I cry out:

"Is not this a free country?"

"Yes, sir."

"Have not I a right to swing my arm?"

"Yes, but your right to swing your arm leaves off where my right not to have my nose struck begins."

Here civil government comes in to prevent bloodshed, adjust rights and settle disputes.

Natural rights have inherent limits because they inevitably come into conflict with other natural rights.  Constitutional rights have explicit and implicit limits, even the precious RKBA.  You might claim that you're protecting yourself, but the political process exists for all of of us to protect ourselves.  Trying to find a balance is not infringement: it's the way this shit is supposed to work.


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June 22, 2016 in Conscience, Constitution, Schmonstitution, RKBA | Permalink | Comments (0)

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Tuesday, June 21, 2016

You Have So Many Mmmale Presidents In This Life

As I've noted a few times on this here blog, our new Constitution finally passed muster with the requisite 9 states on June 21, 1788, when New Hampshire weighed in:

Resolved, That the assent and ratification aforesaid be engrossed on parchment, together with the recommendation and injunction aforesaid, and with this resolution; and that John Sullivan, Esq., president of the Convention, and John Langdon, Esq., president of the state, transmit the same, countersigned by the secretary of Convention, and the secretary of state, under their hands and seals, to the United States in Congress assembled.

Of course, the Articles still governed, so Congress had to figure out how best to dissolve the old, perpetual confederation.  They appointed a committee upon learning of NH's ratification, aptly enough on July 2:

Ordered That the ratifications of the constitution of the United States transmitted to Congress be referred to a comee . to examine the same and report an Act to Congress for putting the said constitution into operation in pursuance of the resolutions of the late federal Convention.

The United States in Congress Assembled signed off on its creative destruction a few months later:

WHEREAS the Convention assembled in Philadelphia pursuant to the resolution of Congress of the 21st . of Feby . 1787 did on the 17th . of Sept of the same year report to the United States in Congress assembled a constitution for the people of the United States, whereupon Congress on the 28 of the same Sept did resolve unanimously "That the said report with the resolutions and letter accompanying the same be transmitted to the several legislatures in order to be submitted to a convention of Delegates chosen in each state by the people thereof in conformity to the resolves of the convention made and provided in that case:"
And whereas the constitution so reported by the Convention and by Congress transmitted to the several legislatures has been ratified in the manner therein declared to be sufficient for the establishment of the same and such ratifications duly authenticated have been received by Congress and are filed in the Office of the Secretary therefore
RESOLVED That the first Wednesday in Jany next be the day for appointing Electors in the several states, which before the said day shall have ratified the said constitution; that the first Wednesday in feby . next be the day for the electors to assemble in their respective states and vote for a president; and that the first Wednesday in March next be the time and the present seat of Congress the place for commencing proceedings under the said constitution.

This has always made me ponder: what date ought we mark as the birth of our tottering Republic?

You could take September 17th (Constitution Day) as the real birthday, since that's when it was approved in Philly to be submitted to the People.  Or you could say today because it was officially ratified under Article VII's stipulation.  But it didn't become the active law of the land until March 4, when our new government booted up.

It's an angels on the head of a pin question, but my 3.125 readers know I find it fun.  The real import to me, however, is that we should always be cognizant that all these dates fall on a continuum, and politics doesn't stop on any one of them.  So Independence might be approved, with dissent, on July 1st, passed unanimously on July 2nd, declared with a detailed list of grievances and first promulgated on July 4th.  We celebrate one of those (sorry, Mr Adams), but the others are a significant part of the narrative, showing just how hard it was to even agree on something we now take for granted.

Whatever.  Happy ratification day, US Constitution.  You were an imperfect document from the start, and imperfect people are still trying to figure it all out a couple centuries later, but you're still going strong despite Hillary Clinton's best efforts to undermine our God Given Patriarchy.


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June 21, 2016 in Constitution, Schmonstitution | Permalink | Comments (0)

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Worry Not, There's Only One Amendment Necessary

Where the hell did Sotomayor get a hold of an assault weapon?

Thomas’ holding stands the exclusionary rule on its head, creating incentives for the police to engage in illegal misconduct. If you illegally ask for someone’s ID and you don’t find anything wrong, you’re very unlikely to face a serious sanction. If you do find something, you might uncover evidence that leads to an arrest. This is precisely the kind of misconduct the exclusionary rule was intended to prevent, and, as Justice Elena Kagan explains in her own dissent, finding the outstanding warrant is constitutionally irrelevant.

Writing only for herself, Part IV of Justice Sotomayor’s is a powerful and devastating defense of the exclusionary rule and why gutting it matters. The arbitrary powers this opinion effectively gives to the police will not be applied equally — there is no chance that the police will start stopping people walking around Stephen Breyer’s neighborhood and asking to see their papers. These powers will overwhelmingly be used against the poor and people of color, who risk being treated “as second-class citizens.”

Citing (among others) W.E.B. Dubois, James Baldwin, Ta-Nehisi Coates, and Michelle Alexander, Sotomayor concisely explains how this arbitrary authority will be disproportionately applied to the most vulnerable citizens. “The white defendant in this case shows that anyone’s dignity can be violated in this manner,” wrote Sotomayor. “But it is no secret that people of color are disproportionate victims of this type of scrutiny. For generations, black and brown parents have given their children ‘the talk’ — instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger — all out of fear of how an officer with a gun will react to them.”

Fortunately, all any people of color have to do is resort immediately to Second Amendment Remedies to defend their liberty, so it's all good.


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June 21, 2016 in Constitution, Schmonstitution | Permalink | Comments (0)

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Monday, June 20, 2016

And I saw, and behold a white horse

June 20th gives us a United States History Twofer.  First off, we note that mere hours after adopting the Declaration of Independence, Congress got down to brass tacks:

Resolved, That Dr. [Benjamin] Franklin, Mr. J[ohn] Adams and Mr. [Thomas] Jefferson, be a committee, to bring in a device for a seal for the United States of America.

So on August 20, that august committee came up with a design:

The great Seal sh'd on one side have the Arms of the United States of America, which Arms should be as follows: The Shield has six Quarters, parti one, coupé two. The 1st. Or, a Rose enamelled gulps and argent for England: the 2d argent, a Thistle proper, for Scotland: the 3d. Verd, a Harp Or, for Ireland: the 4th Azure a Flower de Luce Or for France: the 5th Or, the Imperial Eagle Sable for Germany: and the 6th Or, the Belgic Lion gules for Holland, pointing out the Countries from which these States have been peopled. The Shield within a Border Gules entoire of thirteen Scutcheons argent linked together by a chain Or, each charged with initial Letters Sable as follows: 1st N. H. 2d M. B. 3d R. I. 4th C. 5th N. Y. 6th N. J. 7th P. 8th D. C. 9. M. 10th V. 11th N. C. 12th S. C. 13 G. for each of the thirteen independent States of America.

Supporters, dexter the Goddess Liberty in a corselet of armour alluding to the present Times, holding in her right Hand the Spear and Cap, and with her left supporting the Shield of the States; sinister, the Goddess Justice bearing a Sword in her right hand, and in her left a Balance.

Crest. The Eye of Providence in a radiant Triangle whose Glory extends over the Shield and beyond the Figures.

Motto. EPluribus Unum.

Legend, round the whole Atchievement. Seal of the United States of America MDCCLXXVI.

On the other side of the said Great Seal should be the following Device. Pharoah sitting in an open Chariot, a Crown on his head and a Sword in his hand passing through the divided Waters of the Red Sea in pursuit of the Israelites: Rays from a Pillow of Fire in the Cloud, expressive of the divine Presence and Command, beaming on Moses who stands on the Shore, and extending his hand over the Sea causes it to overwhelm Pharoah.

Motto. Rebellion to Tyrants is Obedience to God.

Ordered, To lie on the table.

Yeah, that complicated mess died on the table, so an official seal wasn't finally approved until June 20, 1782 (7 months into our True First President's term):

On the report of the secretary of the United States in Congress assembled, to whom were referred the several reports on the device for a great seal, to take order:

The device for an armorial atchievement and reverse of the great seal for the United States in Congress assembled, is as follows:

ARMS. Paleways of thirteen pieces, argent and gules; a chief, azure; the escutcheon on the breast of the American bald eagle displayed proper, holding in his dexter talon an olive branch, and in his sinister a bundle of thirteen arrows, all proper, and in his beak a scroll, inscribed with this motto, "E pluribus Unum."

For the CREST. Over the head of the eagle, which appears above the escutcheon, a glory, or, breaking through a cloud, proper, and surrounding thirteen stars, forming a constellation, argent, on an azure field.

REVERSE. A pyramid unfinished. In the zenith, an eye in a triangle, surrounded with a glory proper. Over the eye these words, "Annuit Coeptis." On the base of the pyramid the numerical letters MDCCLXXVI. And underneath the following motto, "Novus Ordo Seclorum."

Remarks and explanation:

The escutcheon is composed of the Chief and pale, the two most honorable ordinaries. The pieces, paly, represent the several States all joined in one solid compact entire, supporting a Chief which unites the whole and represents Congress. The motto alludes to this Union. The pales in the Arms are kept closely united by the Chief and the Chief depends on that union, and the strength resulting from it for its support, to denote the Confederacy of the United States of America, and the preservation of their Union through Congress. The colours of the pales are those used in the flag of the United States of America. White signifies purity and innocence. Red hardiness and valour and Blue the colour of the Chief signifies vigilance perseverance and justice. The Olive Branch and arrows denote the power of peace and war which is exclusively vested in Congress. The Constellation denotes a new State taking its place and rank among other sovereign powers. The escutcheon is borne on the breast of an American Eagle without any other supporters, to denote that the United States of America ought to rely on their own virtue.

Reverse: The Pyramid signifies strength and duration. The eye over it and the motto allude to the many signal interpositions of providence in favour of the American cause. The date underneath is that of the Declaration of Independence, and the words under it signify the beginning of the new American Era, which commences from that date

As you can see, they did keep one not messy component of the original '76 proposal.  With the important stuff finally out of the way, now the trivial work of not governing under the Articles could get done.  

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

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

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

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

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

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

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

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

Thus the Government of the United States got its name, as well as its federal (as opposed to national) form.  So thanks, Activist Judge Ellsworth!

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

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

Naturally he was the principle author of the Judiciary Act of 1789, which further cemented the role of our Judiciary in reviewing the law (annoying conservatives of the day like Maclay).  And it was Chief Justice Ellsworth's SCOTUS that ruled in favor of Hamiltonian construction (sorry, Jemmy, no Tony-winning Lin-Manuel Miranda musical for you!) regarding our nation's first luxury tax (which the Roberts Court referenced when upholding Obamacare's mandate/penalty).

An interesting guy, who was instrumental in giving us an important component of constitutional law.


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June 20, 2016 in Constitution, Schmonstitution | Permalink | Comments (0)