Tuesday, March 11, 2014
Confederate Is As Confederate Does
Adopted unanimously by the Congress of the Confederate States on the eleventh day of March, in the year eighteen hundred and Sixty-one:
- No bill of attainder, ex post facto law, or law denying or impairing the right of property in negro slaves shall be passed.
- The citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States; and shall have the right of transit and sojourn in any State of this Confederacy, with their slaves and other property; and the right of property in said slaves shall not be thereby impaired.
- No slave or other person held to service or labor in any State or Territory of the Confederate States, under the laws thereof, escaping or lawfully carried into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor; but shall be delivered up on claim of the party to whom such slave belongs,. or to whom such service or labor may be due.
- The Confederate States may acquire new territory...In all such territory the institution of negro slavery, as it now exists in the Confederate States, shall be recognized and protected be Congress and by the Territorial government; and the inhabitants of the several Confederate States and Territories shall have the right to take to such Territory any slaves lawfully held by them in any of the States or Territories of the Confederate States.
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Sunday, March 09, 2014
To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations; To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
- Powers of Congress, US Constitution, Article I, Section 8
With all the bellicose stuff floating around, I've been thinking about myrmidons. Debate in Philadelphia about just who should be invested with war powers was wide ranging, but what's more interesting to me is later practical application of the Framers' ideas.
Fast forward twelve years to the Quasi War during Adams' administration. At the end of the Fifth Congress on March 3, 1799, he signed "An Act vesting the power of retaliation, in certain cases, in the President of the United States":
Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That on information being given to the President of the United States, proving satisfactorily to him that any citizen of the United States, who shall have been or may be sound on board any vessel of war of either of the powers at war with the French Republic, and who shall have been impressed or forced by violence or threats to enter on board such vessel, hath suffered death, or hath received other corporal punishment, or shall be imprisoned with unusual severity by order of the Executive Directory of the French Republic, or of any officer or agent acting under their authority in pursuance of any decree of the said Directory, or law of the French Republic ; it shall be lawful for the President of the United States, and he is hereby empowered and required to cause the most rigorous retaliation to be executed on any such citizens of the French Republic, as have been or hereafter may be captured in pursuance of any of the laws of the United States.
Not a declaration of war, but something occupying that nether region between war and peace, not unlike a lot of post-WWII conflicts--it smells like Gulf of Tonkin Resolutions and AUMFs to me. It was obsoleted by a very similar act passed exactly fourteen years later during our first declared war (over a year before Washington burned).
Anyway, as the Supreme Court noted in 1800, there existed a state of war "of the imperfect kind." Congress had passed a good bit of legislation strengthening American defenses, which by the time of Adams signed the retaliatory act included commissioning 365 private armed vessels (BTW, following that linked tally submitted to Congress there is an account of how the USS Constellation fell in with La Vengeance a year later). Millions for defense, indeed.
I won't bother excerpting anything, but the House debate on the bill was rather lively and thoughtful. And I found a Harvard Journal of Law & Public Policy article about what the Quasi War and related SCOTUS decisions might mean in our modern context that's worth a read. Bottom line is that military conflict has always been a political mess with Congress and the Executive feeling their way through the morass and opposition parties all up in arms over everything. Today's crap with Republicans, Obama and Ukraine ain't nothing new.
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Saturday, March 08, 2014
And Cheez Wiz At Its Core Is Real Cheese
In her remarks to the 2014 Conservative Political Action Conference, Rep. Michele Bachmann (R-MN) told the assembled crowd that the Tea Party and conservative movements will triumph over progressivism because of the right’s unstoppable intellectual firepower.
“You see our movement at its core is an intellectual movement,” she said from the CPAC podium. “We are based on the greatest ideas ever conceived in the mind of man. And I would put those magnificent ideas up against any other idea for freedom in the world.”
Right Wing Watch reported that she continued by saying, “Because the Constitution, limited government and free enterprise and strong families, these are the principles that have passed the test of time.”
She went on to say that “nothing in our Constitution says that government is supposed to be a charity. Government is not the family, it is not the church and certainly it should never be our doctor’s office.”
Indeed, it isn't any of those things. But it can still do things, Congresswoman Cheez Whiz For Brains.
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Obama Cannot Be President Because Horace Greeley Died
Remember that the Electoral College in 1872 found that the death of a candidate
did not disqualify him from being elected to the office of President, although it probably would have interfered with his ability to serve – (Horace Greeley received numerous votes and was awarded electors in the 1872 election, Horace died in late November shortly after the election – during the proceedings of the Electoral College several Georgia electors chose to cast ballots for Greeley – there was a qualification challenge and while the House found that he was not qualified BECAUSE HE WAS DEAD, the Senate found that he was still qualified, in cases of a incongruity between the two the decision was to find him qualified!
Thankfully, Mr Paige is engaged in his usual flights of fancy, so I can milk more fun out of his suit:
- The Electoral College isn't, you know, a body that gets together making any findings about qualifications since the point is for Electors simply to cast votes
- Most Greeley Electors, making their own individual decisions, cast their votes for one of four other candidates, while three (not several) of Georgia's votes were cast for Greeley
- Greeley's votes were, in fact, NOT counted
How'd we arrive at that result? Congressman Hoar (R-MA) objected, then:
Resolved, That the votes reported by the tellers as having been cast by the electors of the State of Georgia for Horace Greeley, of New York, for President of the United States, ought not to be counted, the said Horace Greeley having died before said votes were cast;
And the question being put, Will the House agree thereto?
- It was decided in the affirmative,
- Yeas ... 102
- Nays ... 98
- Not voting ... 40
The Senate, having retired to its chamber, also voted on the question per the rules, but amended the resolution, so:
Resolved, That the electoral vote of Georgia east for Horace Greeley be counted.
On the question to agree thereto,
- It was determined in the affirmative,
- Yeas ... 44
- Nays ... 19
Points to Mr Paige for noting the House and Senate disagreed. But why did Congress not count Greeley's votes? Because rules [emph mine]:
The gentleman from Massachusetts [Mr. Hoar] having made the point which has been stated by him, the Chair will read from the twenty-second joint rale of the two Houses.
"If, upon the reading of any such certificate by the tellers, any question shall arise in regard to counting the votes therein certified, the same having been stated by the Presiding Officer, the Senate shall thereupon withdraw, and said question shall be submitted to that body for its decision; and the Speaker of the House of Representatives shall in like manner submit said question to the House of Representatives for its decision; and no question shall be decided affirmatively, and no vote objected to shall be counted, except by the concurrent votes of the two Houses, which being obtained, the two Houses shall immediately reassemble, and the Presiding Officer shall then announce the decision of the question submitted; and upon any such question there shall be no debate in either House. And any other question pertinent to the object for which the two Houses are assembled may be submitted and determined in like manner."
By rule there could be no debate on whether to count Greeley's votes, nor on anything else, which is why the Senate rejected motions like this:
Mr. SCOTT. I have drawn what I propose as an amendment to the amendment:
That the votes for Horace Greeley are entitled to be counted, postponing the question of the legal effect of votes cast for a man who shall appear to have been dead when they were cast, until the whole vote shall come to be counted.
The VICE PRESIDENT. That would be a substitute
Mr. EDMUNDS. I make the point of order that that does not comply with the joint rule, which requires us to decide whether the vote shall be counted or not.
Thus one can see that the question of legal qualification per se was never voted on, let alone discussed. One can also see Greeley's votes were omitted from the vote totals. So it's a puzzle as to how Paige can claim anybody determined that a dead guy was eligible for office. The relationship between Greeley's case and Obama's is also a bit opaque to me.
Anyway, Paige concludes:
I mention this to remind everyone that all outcomes are possible and to emphasize how productive it would be to have the issue settled by the Supreme Court of the United States – once and for all!
I'm sure when SCOTUS denies cert, Paige will finally accept reality. Because if I've learned anything about Birthers, they're really good at taking 'no' for an answer.
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Friday, March 07, 2014
My Favorite Vermont Birther Does Not Disappoint
Former Vermont Republican U.S. Senate hopeful H. Brooke Paige has appealed his “natural born citizen” case claiming Barack Obama is unqualified to be president to the U.S. Supreme Court.
“Obama is not a ‘natural born citizen’ because he was not born to two U.S. citizen parents,” Paige alleged in his appeal, filed Thursday. “Hence, he is not eligible to be president.”
The state Supreme Court based its decision on the fact that Obama had won re-election the year before and by law was prevented from seeking a third term.
Paige, in the filing with the nation’s highest court said it was important for the justices to intervene in the case because the same issue could come up in a future presidential election.
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Thursday, March 06, 2014
Speaking Of Racist Injustice
Missouri was admitted to the Union as a slave state on March 6, 1820 (Maine, the other side of the Compromise coin became a free state three days earlier). Unfortunately, in the wisdom of Robert Taney, Congress' ban on slavery above latitude 36°30′ was found unconstitutional exactly 37 years later:
[T]he rights of property are united with the rights of person, and placed on the same ground by the fifth amendment to the Constitution, which provides that no person shall be deprived of life, liberty, and property, without due process of law. And an act of Congress which deprives a citizen of the United States of his liberty or property merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law.
Taney also shamelessly quoted the Declaration of Independence to make his point:
"We hold these truths to be self-evident: that all men are created equal; that they are endowed by their Creator with certain unalienable rights..."
[I]t is too clear for dispute that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this declaration, for if the language, as understood in that day, would embrace them, the conduct of the distinguished men who framed the Declaration of Independence would have been utterly and flagrantly inconsistent with the principles they asserted, and instead of the sympathy of mankind to which they so confidently appealed, they would have deserved and received universal rebuke and reprobation.
As dictum I'll just note that the decision is a boon to birthers, but they prefer Justice Wayne's concurrence because VATTEL! Anyway, the political process never stops. As Lincoln said after the ruling:
We believe, as much as Judge Douglas, (perhaps more) in obedience to, and respect for the judicial department of government. We think its decisions on Constitutional questions, when fully settled, should control, not only the particular cases decided, but the general policy of the country, subject to be disturbed only by amendments of the Constitution as provided in that instrument itself. More than this would be revolution. But we think the Dred Scott decision is erroneous. We know the court that made it, has often over-ruled its own decisions, and we shall do what we can to have it to over-rule this. We offer no resistance to it.
One way to overcome a decision is for the Court rule differently in a subsequent case, as the future president reasonably observed. But Republicans viewed the meat of Dred Scott as mere obiter dictum, in essence saying the Taney Court merely made a passing comment about the constitutionality of the MIssouri Compromise and did not lay down the law. For example, Congressman Perry of Maine said on March 7, 1860:
The obiter dictum of the court in the Dred Scott case, relative to congressional sovereignty over the Territories, has been caught up by the South, and an attempt made by Democratic politicians to give it the authority of law. This is an assumption against right; a demand set up against the people of the North without authority. The people of the North were neither parties nor privies in the Dred Scott case, and hence they are not estopped from contesting the usurpations set up against them by the court.
The sequence growing out of these premises cannot be misunderstood. This attempt to plant slavery upon free soil, and spread it over every foot of territory outside of State lines, merely because five men have undertaken to say so, in a matter not legally before them, is a most unwarrantable aggression against the people of the free Stales.
It is such an unjustifiable encroachment upon the rights of the free laboring millions of this country as they never will submit to. It is a narrow-minded sectional policy, which can never be made national in the Union or out of it. It is a demand made by less than half a million slaveholders to monopolize more than one million square miles of territory, to the exclusion of twenty-six million freemen, who have no interest in slave property.
It is a monstrous aggression, and one that should be met and repelled at every hazard, and without regard to consequences.
So during the Civil War, Lincoln's State Department issued a passport to an African-American (1861) and Congress forbade slavery in Federal territories (1862) in "defiance" of the ruling. But it still took years or bloodshed and the Reconstruction Amendments to undo the damage Dred Scott caused to justice in America.
And now here we are, punishing somebody who worked for justice and civil rights precisely because he worked for justice and civil rights, thus making it more difficult for anybody to work for justice and civil rights. Robert Taney would be proud.
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The Senate's Shame Is Racist Injustice
[L]awyers, more than most, take the principle that anyone who faces conviction deserves a competent defense very seriously. If representing someone who did terrible things becomes a professional liability, that principle becomes endangered.
That’s why the current chief justice of the Supreme Court was confirmed overwhelmingly in 2005 despite having defended a man who was recently executed for murdering several people. If this ad hominem principle didn’t exist, Americans Fore Prosperitee would’ve run misleading 30-second ads in 1860 attacking Abraham Lincoln for getting Duff Armstrong acquitted of murder just two years earlier.
But that all changed on Wednesday when a handful of Senate Democrats joined the entire Republican Party and rejected Debo Adegbile’s nomination to run the Justice Department’s Civil Rights Division. Not because his policy views are troubling or because he lacks qualification, but because he participated in the legal defense of convicted cop killer Mumia Abu-Jamal. Specifically, he headed an NAACP Legal Defense Fund team that successfully kept Abu-Jamal off death row, and, along with other LDF lawyers, filed an amicus brief with the Supreme Court alleging bias and racial discrimination in Abu-Jamal’s jury selection process.
If you’re a talented young lawyer with lofty public-service ambitions the lesson here is don’t affiliate yourself with advocacy groups, don’t take pro bono cases, keep your nose buried in corporate work. If you honor your juridical duty to ensure that even monstrous criminals deserve fair hearings you will be accused of coddling them.
[A]n inescapable difference between the Adegbile and Roberts confirmation battles is that Adegbile, like his former client, is black, and Roberts is not. Legal conservatives (whose true objections to Adegbile are probably a bit more nuanced) advanced the cause of denying Adegbile confirmation by stoking white racial panic. The stories they planted in the conservative press were often infused with paranoid assertions and innuendo. Adegbile, we were told, “would bring a radical record on racial issues to his new job, which is responsible for enforcing federal discrimination statutes.”
Adegbile was not himself a cop-killer. He didn’t help a cop-killer get off and roam free with false claims of innocence. What he did do—which fits pretty readily within the historic mandate of the NAACP’s Legal Defense Fund—was to help ensure that the American criminal justice system, and especially the death penalty, is administered fairly and constitutionally. As a representative of anorganization that is institutionally dedicated to ensuring that justice is administered fairly, he fought for fairness and (totally unfair!) judges agreed that unfairness occurred.
Once upon a time in America this was called advocating for justice. But in today’s America, it’s deemed a miscarriage of justice. And so the fact that Adegbile has long been one of the most skilled and principled civil rights attorneys in the country is cast by Senate Republicans as a kind of catastrophic public scam.
It’s not hard to imagine the scorching Fox News headlines, under the new standards set forth by the Judiciary Committee today: “John Adams Frees Vicious Patriot-Killer in Boston Massacre.” “John Roberts Unsuccessfully Defends Serial Killer in Florida!” “Anarchist-Loving Felix Frankfurter Advocates for Sacco and Vanzetti!” Clarence Darrow! Lover of Killers, Monkeys, and Commies; Disgrace to Legal Profession!.” “Murderer-Coddler John Paul Stevens disqualified from Supreme Court at 80!”
Remember a few years ago there was a brief and disgraceful campaign to boycott law firms engaged in pro bono representation of Guantanamo detainees? Remember the bipartisan outcry from lawyers across the spectrum who understood what it means to defend unpopular defendants and ideas, even when—especially when—they are guilty and unpopular? That notion died today in the U.S. Senate. Forget the presumption of innocence for criminals. It doesn’t even exist for their lawyers.
The Shameful Seven are guilty of aiding and abetting the Republicans in undermining American justice.
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Wednesday, March 05, 2014
Let Us Avail Ourselves Of Our Reason And Experience
Since I've seen lots of folks talking about constitution this and constitution that about guns and such...here's Jefferson writing to Samuel Kercheval on July 12, 1816:
Some men look at constitutions with sanctimonious reverence, and deem them like the ark of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment.
I knew that age well; I belonged to it, and labored with it. It deserved well of its country. It was very like the present, but without the experience of the present; and forty years of experience in government is worth a century of book-reading; and this they would say themselves, were they to rise from the dead.
I am certainly not an advocate for frequent and untried changes in laws and constitutions. I think moderate imperfections had better be borne with; because, when once known, we accommodate ourselves to them, and find practical means of correcting their ill effects. But I know also, that laws and institutions must go hand in hand with the progress of the human mind.
As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors.
Oh, that Tommy and his dead hand. Whatever, I have no larger point than to quote a dead Founder. Carry on.
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Burlington's Full Of Gun Grabbing Sheeple!
The language of Article 16 does not suggest that the right to bear arms is unlimited and undefinable.
Yeah, and people have differing views of the limits and definitions. Freep:
The gun-related charter-change proposals — which still must win approval by the Legislature to become law, no sure thing — would allow police officers to confiscate guns or other weapons in the immediate control or possession of suspected domestic abusers; prohibit guns at Burlington bars and other establishments with a liquor license; and require guns to be stored in locked containers or with locks.
All three measures passed by significant margins: The domestic-abuse-related item passed 5,579 to 2,066, and the prohibition on guns in bars and other restaurants with a liquor license was approved 5,194 to 2,517. The gun-storage item passed by the narrowest margin but still was strongly endorsed, with a 4,351 to 2,971 tally.
“Those were pretty substantial majorities in general, particularly for a controversial issue,” Mayor Miro Weinberger said Tuesday night at a party hosted by his political action committee, Partnership for Burlington’s Future, at the ECHO Lake Aquarium and Science Center. “I take them as a sign that Burlingtonians think that there needs to be some common-sense reforms. And that’s where the council and the administration has been for some time. I appreciate seeing that we were in line with the feelings of the people of Burlington.”
All seven city wards approved the ballot items about guns in establishments with a liquor license and police confiscation of weapons in suspected domestic-abuse situations. The item about gun storage passed everywhere except the two wards of the New North End.
I understand some of my friends who are a bit more passionate about gun ownership and resisting all regulatory limits (that's not a strawman, BTW) are dismayed and their resolve to fight in Mount Peculiar is stiffened. I naturally wasn't invested in the BTV charter changes since I'm not a resident or voter (though does Ericka work in town and friends live there), and while I am a firm supporter of an individual's right to keep and bear arms, I also acknowledge that reasonable people can disagree on the boundaries of that right without being jackbooted thugs, helpless sheeple, child killers or gun fetishists.
The approved regs do not appear to be repugnant to the US or VT constitutions from where I sit, though one must tread lightly even in these rather modest measures. I tend to support removing guns from domestic abuse situations--for the sake of all involved and even on the periphery--though I am sympathetic to due process concerns. Banning guns where there's liquor just strikes me as a no-brainer, but only because I think the usual "armed society is a polite society" trope is bullshit and becomes more bullshitter when you add booze to the mix.
Now, safe storage might also seem like a no-brainer--don't want kids playing or unauthorized people obtaining weapons--but you also have to balance the right to self-defense, since it doesn't do me much good to have a gun if I can't readily use it (see Heller). That said, I hear from responsible gun owners that they always store their guns safely, so I'm not sure this is a huge burden on the right to self-defense. If I have guns at home to protect my kids, I necessarily have to limit their access, which means limiting mine, so the requirement doesn't bother me, but there are some people more absolutist than I. It's interesting that this reg had the smallest margin, though it was still significant.
Anyway, the anti-regulation folks are mobilizing to massively resist the decisions made by Burlingtonians. These are changes to the municipal charter, so you can expect hundreds if not a couple thousand passionate Vermonters from all over the state to descend upon the Leg in hopes of preventing their approval.
I find it a little irritating that some people who don't live and work in the City will take it upon themselves to override popular measures. Yet I understand that this does have an impact on everybody who might visit the city and feel like their rights will be violated, and it also sets a precedent they view as dangerous.
Anyway, the gun battles continue.
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Tuesday, March 04, 2014
Slavery Is As Slavery Does
Terrible reactionary arguments never die; they just get recycled to justify different forms of illegitimate privilege.
Yeah, pretty much. The impetus for his remark:
[A]rguments against Title II were framed in terms of the Thirteenth Amendment. The argument was not the one we might have expected from the Civil Rights Cases—that discrimination in public accommodations was not a badge and incident of slavery that Congress had Thirteenth Amendment power to target. Instead, it was the rather stunning argument that prohibiting businesses from discriminating on the basis of race conscripted the business owners into involuntary servitude.
Strom Thurmond made this argument in his separate views attached to the Senate Report on the proposed Civil Rights Act. Senator Thurmond described the Thirteenth Amendment as “an insurmountable constitutional barrier” to Title II, because, by forcing businesses to serve customers their owners desired not to, the bill would impose “involuntary servitude” on them. As Christopher Schmidt explains, “in the early 1960s, this unusual Thirteenth Amendment argument figured prominently in the debate over the appropriate line between antidiscrimination policy and personal liberties.”
Everybody making those horrible arguments today needs to be reminded what SCOTUS said:
It is doubtful if in the long run appellant will suffer economic loss as a result of the Act. Experience is to the contrary where discrimination is completely obliterated as to all public accommodations. But whether this be true or not is of no consequence since this Court has specifically held that the fact that a "member of the class which is regulated may suffer economic losses not shared by others . . . has never been a barrier" to such legislation...Likewise in a long line of cases this Court has rejected the claim that the prohibition of racial discrimination in public accommodations interferes with personal liberty...Neither do we find any merit in the claim that the Act is a taking of property without just compensation. The cases are to the contrary...
We find no merit in the remainder of appellant's contentions, including that of "involuntary servitude." As we have seen, 32 States prohibit racial discrimination in public accommodations. These laws but codify the common-law innkeeper rule which long predated the Thirteenth Amendment. It is difficult to believe that the Amendment was intended to abrogate this principle. Indeed, the opinion of the Court in the Civil Rights Cases is to the contrary as we have seen, it having noted with approval the laws of "all the States" prohibiting discrimination. We could not say that the requirements of the Act in this regard are in any way "akin to African slavery."
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Monday, March 03, 2014
Against The Australian Ballot
This year we’ll be voting on whether to employ Australian ballot in our town of Calais.
I recognize that some people think the Australian ballot would encourage more and fairer participation in town governance. But there is no promise that the Australian ballot will encourage more participation over the long run, and we’d be giving up one of the longest-standing, most pragmatic traditions we hold in this state. Town meeting is the very last opportunity we have to come together, in person, and make decisions about our town.
Sometimes it’s uncomfortable. There are disputes. In fact, there are a lot of disputes. It is also unfailingly civilized. Everyone is invited to talk, and sometimes we change each other’s minds. In an Australian ballot, you vote yes or no. At town meeting, you can say, “Yes, but …” or “No, but maybe.” Proposals can be amended in a detailed way, in the moment. In Australian ballot, there’s no hope for consensus. There are no compromises, no creative solutions. No discussion occurs.
A more cynical view? Losing the details is losing the fight. Every organization or entity, like it or not, serves the people who run it, despite best intentions. Why would we give up the ability to go over all the little details of the budget and ask questions and weigh the facts together?
Back in 2011, our town had a lively debate about the same thing, opting in the end to retain the Town Meeting status quo, which I am thankful for. There are certainly merits of Australian ballot, but not enough to my mind for us to toss out direct, participatory democracy at the local level.
I'm looking forward to our community gathering tomorrow. It'll be my second time sitting in the hot seat with the Selectboard! My primary task will be remind taxpayers why we're changing our fiscal year, as approved last year (thanks to my stellar presentation that bludgeoned them into submission late in the day when everybody wanted to go home).
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Sunday, March 02, 2014
From Now On, Your Slaves Have To Be Homegrown
The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight...
- US Constitution, Article I, Section 9
On this date in 1807, Thomas Jefferson signed into law:
An Act to Prohibit the Importation of Slaves into any Port or Place Within the Jurisdiction of the United States, From and After the First Day of January, in the Year of our Lord One Thousand Eight Hundred and Eight.
Our slave-holding president had admonished Congress in his annual message the previous December:
I congratulate you, fellow-citizens, on the approach of the period at which you may interpose your authority constitutionally, to withdraw the citizens of the United States from all further participation in those violations of human rights which have been so long continued on the unoffending inhabitants of Africa, and which the morality, the reputation, and the best interests of our country, have long been eager to proscribe. Although no law you may pass can take prohibitory effect till the first day of the year one thousand eight hundred and eight, yet the intervening period is not too long to prevent, by timely notice, expeditions which cannot be completed before that day.
- Introduced in the Senate by Stephen Bradley of Vermont on December 12, 1805.
- Passed the House by a vote of 113-5 on February 13, 1807, with the lone Federalist of VT's delegation, Martin Chittenden (son of our 1st governor), joining a Federalist from NH, and Jeffersonians from SC and VA.
It's a bit opaque as to why Chittenden voted against the measure. Perhaps it was just politics, being an anti-Jeffersonian (in 1808 he made a motion to repeal the Embargo Act). Or maybe he didn't like the provisions regarding how to deal with illegally imported "cargoes", which was a significant issue during debate. I've dropped a line to our State Archivist, who has been very helpful in the past, to see if she could shed some light on the subject.
I suspect the lopsided vote tally, chock full of members from slave states, suggests that the law wasn't seen as much of a threat to slavery itself. By that time there were somewhere around 1M slaves in the US who could become the foundation of a self-sustaining institution. Who needed to go through all the fuss of going abroad for "cargo" when you can breed and sell stock at home? Ghastly.
PS--This wasn't the first act to start chipping away at the slave trade. That started in 1794 with a ban essentially on slave exports from the US, followed by several others.NToddcast RSS Feed
Saturday, March 01, 2014
Crowdsourcing A Visit From The Secret Service
Thus far there are 22 fine, upstanding, Christian constitutional scholars who:
[H]ereby acknowledge that Obama is NOT the President of the United States, but a foreign and domestic enemy who has usurped the Office of President during a time of war, that this makes him a spy and that he is levying war on the United States. I therefore pledge the amount I have put next to my name as a REWARD FOR THE CAPTURE OF OBAMA, DEAD OR ALIVE. My pledge will be given to the person or persons who capture Barack Hussein Obama II and permanently remove him from the White House and Washington DC.
I am not entirely convinced by their analysis of the situation or the law, nor am I so sure they've really thought all this through. Insurrectionism fetishists are so cute.
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The Actual Enumeration
Second to my beloved Post Office, I really love the constitutionl provision that provides for our decennial census. President Washington signed the first act enabling enumeration of Americans on March 1, 1790. Naturally there was debate about how best to go about the mandate, whether there'd be enough time to complete everything, etc.
James Madison observed on January 25:
[T]hey had now an opportunity of obtaining the most useful information for those who should hereafter be called upon to legislate for their country if this bill was extended so as to embrace some other objects besides the bare enumeration of the inhabitants; it would enable them to adapt the public measures to the particular circumstances of the community. In order to know the various interests of the United States, it was necessary that the description of the several classes into which the community was divided, should be accurately known; on this knowledge the legislature might proceed to make a proper provision for the agricultural, commercial and manufacturing interests, but without it they could never make their provisions in due proportion.
This kind of information, he observed, all legislatures had wished for; but this kind of information had never been obtained in any country. He wished, therefore, to avail himself of the present opportunity of accomplishing so valuable a purpose. If the plan was pursued in taking every future census, it would give them an opportunity of marking the progress of the society, and distinguishing the growth of every interest. This would furnish ground for many useful calculations, and at the same time answer the purpose of a check on the officers who were employed to make the enumeration, forasmuch as the aggregate number was divided into parts, any imposition might be discovered with proportionable ease. If these ideas met the approbation of the house, he hoped they would pass over the schedule in the second clause of the bill, and he would endeavor to prepare something to accomplish this object.
The following day he presented a plan:
...which he moved should be inserted in lieu of that annexed to the bill, viz.
Free white males, under 16; free white males, above 16; white females, free blacks, and slaves, the heads of families, &c.
And he likewise proposed that a particular schedule should be included in the bill, specifying the number of persons employed in different professions and arts, carried on within the United States; such as merchants, mechanics, manufacturers, &c. &c.
There was debate on Groundhog Day:
Mr. Livermore apprehended this plan was too extensive to be carried into operation, and divided the people into classes too minute to be readily ascertained.
For example, many inhabitants of New Hampshire pursued two, three, or four occupations, but which was the principal one depended upon the season of the year, or some other adventitious circumstance; some followed weaving in the spring and summer, but the making of shoes was the most predominant in the fair and winter; under what class are these people to be thrown, especially if they joined husbandry and carpenter's work to the rest? He was confident the distinction which the gentleman wished to make could not be performed; he was therefore against adding additional labor, and consequently, incurring additional expense, whether the work was executed or not.
Besides this, he apprehended it would excite the jealousy of the people; they would suspect that Government was so particular, in order to learn their ability to bear the burthen of direct or other taxes, and under this idea, they may refuse to give the officer such a particular account as the law requires, by which means you expose him to great inconvenience and delay in the performance of his duty.
Mr. Sedgwick understood, when the bill was recommitted, it was intended to specify every class of citizens, into which the community was divided, in order to ascertain the actual state of the society. Now, he had to ask, why it was not extended further? He thought the learned professions should be returned, as well as the others, and would furnish as grateful information as the return of any other. The state of society could be ascertained, perhaps, in some decree, from observing these proportions.
Mr. Madison.—If the object to bp attained by this particular enumeration be as important in the judgment of this House, as it appears to my mind, they will not sutler a small defect in the plan to defeat the whole. And I am very sensible, Mr. Speaker, that there will be more difficulty attendant on the taking the census,in the way required by the constitution, and which we are obliged to perform, than there will be in the additional trouble of making all the distinctions contemplated in the bill. The classes of people most troublesome to enumerate, in this schedule, are happily those resident in large towns, as the greatest number of artisans live in populous cities and compact settlements, where distinctions are made with great ease.
I take it, sir, that in order to accommodate our laws to the real situation of our constituents, we ought to be acquainted with that situation. It may be impossible to ascertain it as far as I wish; but we may ascertain it so far as to be extremely useful, when we come to pass laws, affecting any particular description of people.
If gentlemen have any doubts with respect to its utility, I cannot satisfy them in a better manner, than by referring them to the debates which took place upon the bills intended collaterally to benefit the agricultural, commercial, and manufacturing parts of the community. Did they not wish then to know the relative proportion of each, and the exact number of every division, in order that they might rest their arguments on facts, instead of assertions and conjectures?
Will any gentleman pretend to doubt but our regulations would have been better accommodated to the real state of the society than they are? If our decisions had been influenced by actual returns would they not have been varied, according as the one ude or the other was more or less numerous? We should have given less encouragement in some instances, and more in others; but in everv instance, we should have proceeded with more light and satisfaction.
The gentleman from Massachusetts, (Mr. Sedgwick) has asked, why the learned professions were not included: I have no objection to giving a column to the general body. I think the work would be rendered more complete by the addition, and if the decision of such a motion turned upon my voice, they shall beadded. But it may nevertheless be o&served, that in such a character they can never be objects of legislative attention or cognizance.
As to those who are employed in teaching and inculcating the duties of religion there may be some indelicacy in singling them out, as the General Government is proscribed from interfering, in any manner whatever, in matters respecting religion; and it may be thought to do this; in ascertaining who, and who are not ministers of the Gospel. Conceiving the extension of the plan to be useful, and not difficult, I hope it may meet the ready concurrence of this House.
Mr. Page thought this particular method of describing the people, would occasion an alarm among them: they would suppose the Government intended something, by putting the Union to this additional expense, beside gratifying an idle curiosity; their purposes cannot be supposed the same as the historian's or philosopher's —they are statesmen, and all their measures are suspected of policy. If he had not heard the object so well explained on this floor, as one of the people he might have been jealous of the attempt, and as it could serve no real purpose,for he contended, if they were now acquainted with the minutia, they would not be benefited by it. He hoped the business would be accomplished in gome other way.
Mr. Madison thought it was more likely, that the people would suppose the information was required for its true object, namely to know in what proportion to distribute the benefits resulting from an efficient General Government.
Ultimately between the House and Senate, the more specific enumerations were dropped, but they did provide for greater distinction between classes of persons than merely opting for a raw count of Americans. And over the years different kinds of data were gathered to better understand our growing and changing nation so as to be more effective, as James Madison thought we should.
Something for the Ron Pauls of the world to remember.
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Speaking Of The Springfield Arsenal
Having recently blogged about Shay's Rebellion and Frost's poem about the Springfield Arsenal, naturally I must wish the Articles of Confederation a happy 233rd birthday to those silly Articles of Confederation!
As a frame of effective government, they sucked. Let's just face up to that. As an expedience during the Revolution, they provided a bit more organization than the ad hoc Continental Congress and saw us through the early days as an independent nation. Great, so far as that goes.
Yet Madison laid out a dozen problems with the Articles, including some faves of mine:
2. Encroachments by the States on the federal authority.
5. want of concert in matters where common interest requires it.
6. want of Guaranty to the States of their Constitutions & laws against internal violence.
7. want of sanction to the laws, and of coercion in the Government of the Confederacy.
11. Injustice of the laws of States.
#11 presaged Federalist 10 with a dash of Federalist 44, detailing the threats to liberty States pose. #6 is pretty awesome as well:
According to Republican Theory, Right and power being both vested in the majority, are held to be synonimous. According to fact and experience a minority may in an appeal to force, be an overmatch for the majority.
1. If the minority happen to include all such as possess the skill and habits of military life, & such as possess the great pecuniary resources, one third only may conquer the remaining two thirds.
2. One third of those who participate in the choice of the rulers, may be rendered a majority by the accession of those whose poverty excludes them from a right of suffrage, and who for obvious reasons will be more likely to join the standard of sedition than that of the established Government.
3. Where slavery exists the republican Theory becomes still more fallacious.
It is left as an exercise for the reader to apply this to our contemporary political environment.
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Friday, February 28, 2014
C-students Sometimes Make Good
I've blogged about the importance of the 27th Amendment before, and have noted that a legislative aide named Gary Watson was responsible for reviving the ratification process. I did not, however, realize, that it Watson was inspired by a bad grade:
In 1982, a college undergraduate student, Gregory Watson, discovered that the proposed amendment could still be ratified and started a grassroots campaign. Watson was also an aide to Texas state senator Ric Williamson.
Shortly after the amendment was ratified a decade later, New York University law professor Richard B. Bernstein traced the journey from 1789 to 1992 in a Fordham Law Review article.
Bernstein called Watson the “step-father” of the 27th Amendment. Watson was a sophomore at the University of Texas-Austin in 1982 and he needed a topic for a government course. Watson researched the 27th Amendment and found that six states had ratified it by 1792, and then there was little activity about it.
Watson concluded that the amendment could still be ratified, because Congress had never stipulated a time limit for states to consider it for ratification. Watson’s professor gave him a C for the paper, calling the whole idea a “dead letter” issue and saying it would never become part of the Constitution.
“The professor gave me a C on the paper. When I protested she said I had not convinced her the amendment was still pending,” Watson told USA Today back in 1992.
Undeterred, Watson started a self-financed campaign to get the amendment ratified. He wrote letters to state officials, and the amendment was ratified in Maine in 1983 and Colorado in 1984. The story appeared a magazine called State Legislatures, and an official from Wyoming, reading the magazine, confirmed his state had ratified the amendment, too, six years earlier.
The proposed amendment and its supporters tapped into general public anger about Congressional pay raises. Five more states ratified it in 1985, as legal experts pondered if the entire process was valid.
One issue was a Supreme Court case from 1921 called Dillon v. Gloss. In that case, the Court in a unanimous decision said that when “amendments are to be proposed, the reasonable implication being that when proposed they are to be considered and disposed of presently.” However, the Court didn’t require Congress to put an expiration date on amendments to be ratified by the states; it only confirmed the power of Congress to do so.
In 1992, two states raced to be the 38th state to sign off on the 27th Amendment, making it a law. Alabama beat New Jersey to the punch on May 7, 1992, but New Jersey quickly voted for ratification, too.
The ratification, said Bernstein, caught Congress by surprise, with some key leaders questioning the legality of the ratification approach. However, the Archivist of the United States certified the amendment as ratified under Article V of the Constitution, and published it in the federal register. And Congress voiced its support of the amendment in a near unanimous vote.
Thus, the constitutional principle of No Takebacksies was conclusively demonstrated...
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Thursday, February 27, 2014
By All Means, Let's Put More Layers Between The People And Their Government
Slate discusses more rumblings about repealing the 17th Amendment. Let's set aside conspiracy theories about the ratification process and assume it was passed legitimately, and for good purpose at the time. We should probably also assume that the Senate is pretty fucked up now, but that doesn't convince me to get rid of direct elections. From where I sit, any attempt to disenfranchise the People is immediately suspect.
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The Framers Always Intended That Chicks Shouldn't Vote
Plagiarizing myself yet again, I note that the Nineteenth Amendment was upheld by SCOTUS on this date in Leser v Garnett (1922). The objections:
- For some strange reason, the Framers forgot to tell us in Article V that certain things other than equal state suffrage in the Senate were not subject to the amendment process.
- Article VI makes Federal law and the US Constitution supreme, so logically states cannot possibly ratify amendments contrary to their own constitutions.
- Somehow, the legislatures of WV and TN didn't actually ratify the amendment because somebody's fingers were crossed.
After dispensing with the first two items, Brandeis breezily concluded for the unanimous Court:
The remaining contention is that the ratifying resolutions of Tennessee and of West Virginia are inoperative, because adopted in violation of the rules of legislative procedure prevailing in the respective states. The question raised may have been rendered immaterial by the fact that since the proclamation the Legislatures of two other states-Connecticut and Vermont-have adopted resolutions of ratification.
But a broader answer should be given to the contention. The proclamation by the Secretary certified that from official documents on file in the Department of State it appeared that the proposed amendment was ratified by the Legislatures of 36 states, and that it 'has become valid to all intents and purposes as a part of the Constitution of the United States.' As the Legislatures of Tennessee and of West Virginia had power to adopt the resolutions of ratification, official notice to the Secretary, duly authenticated, that they had done so, was conclusive upon him, and, being certified to by his proclamation, is conclusive upon the courts.
And the Republic went downhill immediately after...
PS--I also couldn't help but chuckle, as I am wont to do when reading about amendments, at "intents and purposes." I'm surprised nobody's tried to attack that phrase to invalidate the 19th as some have done with the 14th.NToddcast RSS Feed
Wednesday, February 26, 2014
Demeaning Their Dignity
Garcia, a Bill Clinton appointee, wrote in his decision that Texas' constitutional ban on same-sex marriage violates equal protection rights under the Fourteenth Amendment.
“Texas’ current marriage laws deny homosexual couples the right to marry, and in doing so, demean their dignity for no legitimate reason," he wrote. "Accordingly, the Court finds these laws are unconstitutional and hereby grants a preliminary injunction enjoining Defendants from enforcing Texas’ bans on same-sex marriage.”
Good. And as I've observed before, there have been a number of SCOTUS cases that rely on 'dignity' as a key concept, so this decision has an excellent pedigree. Justice Scalia, please take note.
PS--Ruling cites Lawrence quite a bit in addressing the issue of human dignity, as well as Vermont's Baker decision that launched us on our way to equality way back in 1999.NToddcast RSS Feed
Bye Bye, Kelo!
The House on Wednesday easily approved legislation to overrule a Supreme Court decision that many members of Congress say improperly gives the government too much authority to seize private property.
Members passed the Private Property Rights Protection Act, H.R. 1944, in a 353-65 vote that saw 127 Democrats vote for the measure. House passage sends the bill to the Senate, which has not indicated whether it will consider it.
The bill goes after the Court's 2005 decision in Kelo v. City of New London. The controversial 5-4 ruling said officials in that Connecticut city correctly used their power of eminent domain to take private property and give it to another private entity for economic development purposes.
Under the court's reasoning, the government can now use the eminent domain power to take the property of any individual for nearly any reason," Rep. Bob Goodlatte (R-Va.) said during Tuesday's debate on the bill.
Goodlatte quoted from the dissenting opinion of Supreme Court Justice Sandra Day O'Connor, who said the ruling lets the government pick and choose which entities are allowed to own property.
"The specter of condemnation hangs over all property," she wrote in her dissent. "Nothing is to prevent the state from replacing any Motel 6 with a Ritz Carlton, any home with a shopping mall, or any farm with a factory."
"It is time for Congress finally to step in and do its part to rein in eminent domain abuse," Goodlatte said. "No one should have to live in fear of the government snatching up their home, farm, church or small business."
Finally, the House does something useful. I hope the Senate follows suit and this baby's signed into law.
Great example of Congress' power to override SCOTUS, not to mention the Federal government acting to prevent tyranny at the State level. So it's surprising that the Republican House would pass anything like this.