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Wednesday, May 25, 2016

Ryan Bundy Superstar

Even Jesus Christ Himself never had to deal with such tyranny:

In their complaint (which is different from daddy Cliven Bundy’s lawsuit, which you can read about here), Ammon and Ryan Bundy share that jail is SO the pits. Did you know that, at the Multnomah County Detention Center (MCDC) where they’re being held, they have to stay in single cells, and only get to walk around freely during quote-unquote “walk time,” which the jailers schedule, as if they are in jail? 

Ryan Bundy would like to complain some, please:

All of my First Amendment rights are being violated. My right to freedom of religion is being violated. I cannot participate in religious activities and temple covenants, and wear religious garments. […] My right to freedom of speech is being hampered by monitoring and recording. My right to freedom of assembly is being violated; I am not allowed to see my brother and move about. Yesterday, I attempted to discuss these issues with the U.S. Marshals, and they said that these were simply the jail rules. […] My Second Amendment rights are being violated. I never waived that right.

That’s right, he’s pissed off he can’t have his fucking guns. IN JAIL. And they won’t even let him sit around with his bro and make plans to fight government tyranny, unfair! He also says his right to “freedom from search and seizure” is being violated, in jail, and that he still has his right to life, but the feds shot at him during the standoff that left him in this unfortunate predicament (IN JAIL), so that right has at least been abridged.

Also, the snacks are terrible.  But as Jesus sermonized on the Mount: if you can't do the time, don't do the crime based on your imaginary reading of the Constitution.


May 25, 2016 in Constitution, Schmonstitution | Permalink | Comments (2)

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Saturday, May 21, 2016

We Should Require Loyalty Oaths, Too

Doctor Franklin, meet your proverbial jackass.


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

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Friday, May 20, 2016

Kulturkampf Is Life And Death

I'm dead, and I still hate this decision.

 - Dead Tony

Happy Romer Day!

[L]aws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected. "[I]f the constitutional conception of `equal protection of the laws' means anything, it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest."

Then came Lawrence, WindsorObergefell, and justice.  And finally Scalia died from a mortal wound to his dark soul he received during the Great Kulturkampf.  Ding dong.


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

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They're not shy, they get around


The bill, introduced by Senate Pro Tem Brian Bingman (R) and House Speaker Jeff Hickman (R), also declares that the situation is an "emergency."

"It being immediately necessary for the preservation of the public space, health and safety, an emergency is hereby declared to exist, by reason whereof this act shall take effect and be in full force from and after its passage and approval," the text of the legislation reads.

Oklahoma state senators also introduced a resolution that calls on Congress to impeach President Obama, as well as the attorney general and secretary of education, who authored the letter directing schools to allow transgender students to use the bathroom that aligns with their gender identity.

Given that Federal legislation is behind Obama, I'm not sure that impeaching officials for exercising statutory authority really, you know, makes any more sense than trying to nail a president for vetoing bills.  Yeah, I know...


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

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Stopped Oklahoman Clocks

A Constitutional Conservative speaks:

Oklahoma’s Republican Governor Mary Fallin on Friday vetoed a bill that called for prison terms of up the three years for doctors who performed abortions, saying the legislation “would not withstand a criminal constitutional legal challenge.”

The bill, which was approved a day earlier in the Republican-dominated legislature, would have made performing an abortion a felony and also called for revoking the licenses of any doctor who conducted one.

The bill allowed an exemption for an abortion necessary to save the life of the mother.

“The bill is so ambiguous and so vague that doctors cannot be certain what medical circumstances would be considered ‘necessary to preserve the life of the mother,’” Fallin said, in a statement from her office, where she was described as “the most pro-life governor in the nation.”

If Trump's SCOTUS nominees change the constitutional landscape, Gov Fallin would be able to sign the next iteration and set the clock back on reproductive rights.  Think on that, Busters...


May 20, 2016 in Constitution, Schmonstitution, Soaking In Patriarchy | Permalink | Comments (1)

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Wednesday, May 11, 2016

Everybody's comin', leave your textualism at the door

I prefer my Constitution living and my Scalia dead.


May 11, 2016 in Constitution, Schmonstitution | Permalink | Comments (0)

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Monday, May 09, 2016

Vermont To US: You're Welcome For Winning The War

Ethan Allen wrote to the Albany Committee of Safety in May, 1775:

I have the inexpressible satisfaction to acquaint you, that, at daybreak of the tenth instant, pursuant to my directions from sundry leading 110 gentlemen of Massachusetts Bay and Connecticut, I took the fortress of Ticonderoga, with about one hundred and thirty Green Mountain Boys...

Colonel Arnold entered the fortress with me, side by side. The guard was so surprised, that contrary to expectation, they did not fire on us, but retreated with precipitancy. We immediately entered the fortress, and took the garrison prisoners, without bloodshed or any opposition. They consisted of one captain and a lieutenant, and forty-two men.

Little more need be said. You know Governour Carlton, of Canada, will exert himself to retake it ; and, as your county is nearer than any other part of the Colonies, and as your inhabitants have thoroughly manifested their zeal in the cause of the country, I expect immediate assistance from you, both in men and provisions.

You cannot exert yourself too much in so glorious a cause. The number of men need be more at first, till the other Colonies can have time to master. I am apprehensive of a sudden and quick attack. Pray be quick to our relief, and send us five hundred men immediately ; fail not.

The Second Continental Congress (begun the same day as Allen's assault) heard about the Green Mountain Boys' victory a week later:

The president laid before the Congress, some important intelligence he receivd. last night, by express from New York, relative to the surprising and taking of Ticonderogo, by a detachment from Massachusetts bay and Connecticut, which was read as follows...

Upon motion, Agreed, That Mr. Brown, who brought the express, be called in to give an accot. of the disposition of the Canadians, the taking of Ticonderogo and the importance of that post. Whereupon he was called in--and having given the necessary information he withdrew. 

Congress resolved that cannons and such be removed from the fort to be used against the British in places like Boston.  Then America won the war and liberty reigned supreme over all the land.  The end.


May 9, 2016 in Constitution, Schmonstitution | Permalink | Comments (0)

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Tuesday, May 03, 2016

Corporatism Is In America's DNA

Indeed: An act to incorporate the inhabitants of the city of Washington, in the District of Columbia.  Bernie hates corporations, so he hates America!


May 3, 2016 in Constitution, Schmonstitution | Permalink | Comments (1)

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Saturday, April 30, 2016

"I’m going to be really good for America."

President George Washington, April 30, 1789:

Among the vicissitudes incident to life, no event could have filled me with greater anxieties than that of which the notification was transmitted by your order, and received on the fourteenth day of the present month. On the one hand, I was summoned by my Country, whose voice I can never hear but with veneration and love, from a retreat which I had chosen with the fondest predilection, and, in my flattering hopes, with an immutable decision, as the asylum of my declining years: a retreat which was rendered every day more necessary as well as more dear to me, by the addition of habit to inclination, and of frequent interruptions in my health to the gradual waste committed on it by time. On the other hand, the magnitude and difficulty of the trust to which the voice of my Country called me, being sufficient to awaken in the wisest and most experienced of her citizens, a distrustful scrutiny into his qualifications, could not but overwhelm with dispondence, one, who, inheriting inferior endowments from nature and unpractised in the duties of civil administration, ought to be peculiarly conscious of his own deficiencies.

President Donald Trump, please take note.


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

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Monday, April 25, 2016

Next, We'll Question The Legitimacy Of This Very Court

They keep on entertaining:

"Once statehood occurred for Oregon, Congress lost the right to own the land inside the state," the defense argued in the brief.

Bundy's defense is expected to argue in court that Malheur was not federal land because it had been doled out to homesteaders and was "relinquished." It is also expected to "provide evidence about foundational documents from the Federal Convention of 1787."

This is not the first time that there has been a battle over whether Malheur is federal land in court. The Supreme Court has actually ruled twice on the matter. They ruled once in 1902 and once again in 1935.

They certainly do have an interesting view of the Enclave Clause, and the Constitution as a whole...


April 25, 2016 in Constitution, Schmonstitution | Permalink | Comments (2)

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Friday, April 22, 2016

But I Know The First Amendment When I See It

Being forced to read this Utah lawmaker's constitutional analysis is a violation of my First Amendment rights.


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

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Constitutional Coinage

So Congress passed the Coinage Act of 1864 on April 22.

The legislation authorized a new 2-cent coin and changed the composition of the penny.  It also allowed the Director of the Mint and Treasury Secretary to design them, which was important because an act of 1837 mandated that LIBERTY be inscribed on coins, preventing anybody from putting IN GOD WE TRUST on them.  Which apparently everybody wanted to do:

Ridleyville, Pa., November 13,1861.

Dear Sir [Sec'y of Treasury, Salmon P Chase]: You are about to submit your annual report to Congress respecting the affairs of the national finances.

One fact touching our currency has hitherto been seriously overlooked. I mean the recognition of the Almighty God in some form in our coins.

You are probably a Christian. What if our Republic were now shattered beyond reconstruction! Would not tbe antiquaries of succeeding centuries rightly reason from our past that we were a heathen nation? What I propose is that instead of the goddess of liberty we shall have next inside the 13 stars a ring inscribed with the words "perpetual union;" within this ring the all-seeing eye, crowned with a halo; beneath this eye the American flag, bearing in its field stars equal to the number of the States united; in the folds of the bars the words "God, liberty, law."

This would make a beautiful coin, to which no possible citizen could object. This would relieve us from the ignominy of heathenism. This would place us openly under the Divine protection we have personally claimed. From my heart I have felt our national shame in disowning God as not the least of our present national disasters.

To you first I address a subject that must be agitated.

Minister of the Gospel.

Indeed, no possible citizen could object, unlike, say...when Harriet Tubman is put on the twenty.


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

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Tuesday, April 19, 2016

I Hate Closed Primaries

Always have--caucuses, too--which is why I'm glad we live in Enlightened Vermont.  I find the free association arguments to be paper thin, so Justice RBG speaks for me.  I also find it interesting that everybody ignores Washington State Grange v. Washington State Republican Party.

Oh yeah, and please spare the poor, young/new voters, et al, your privileged sneering when you suggest they just shoulda known da rules.  Hardly the most democratic attitude...


April 19, 2016 in Constitution, Schmonstitution | Permalink | Comments (0)

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Friday, April 15, 2016

Proclamation 80

Abe Lincoln, a few years before he was murdered:

Whereas the laws of the United States have been for some time past and now are opposed and the execution thereof obstructed in the States of South Carolina, Georgia, Alabama, Florida, Mississippi, Louisiana, and Texas by combinations too powerful to be suppressed by the ordinary course of judicial proceedings or by the powers vested in the marshals by law:

Now, therefore, I, Abraham Lincoln, President of the United States, in virtue of the power in me vested by the Constitution and the laws, have thought fit to call forth, and hereby do call forth, the militia of the several States of the Union to the aggregate number of 75,000 in order to suppress said combinations and to cause the laws to be duly executed.

The details for this object will be immediately communicated to the State authorities through the War Department.

I appeal to all loyal citizens to favor, facilitate, and aid this effort to maintain the honor, the integrity, and the existence of our National Union and the perpetuity of popular government and to redress wrongs already long enough endured.

This inspired no small number of men of Union in Massachusetts and Vermont to answer their Republic's call to arms.


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

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Thursday, April 14, 2016

Speaking Of Poor And Despised Negroes

Well before the Great Emancipator, some people yearned to breathe free:

Slaves wanted freedom from the moment they were enslaved. Whether committing suicide on the slave ships by jumping into the ocean, engaging in open rebellions like Nat Turner or the Stono Rebellion, running away, or just dreaming of a free life, slaves always wanted freedom from the hell of their lives. They took any change to get it. During the American Revolution and the War of 1812, thousands of slaves fled to British lines because of the promise of freedom. Many thousands more would have fled if they could have reached the British.

It's puzzling slaves would do such things when they got food and housing...FOR FREE!


April 14, 2016 in Constitution, Schmonstitution | Permalink | Comments (0)

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Poor And Despised Negroes

The first abolition society in North America, founded on this date in 1775 by Doctors Rush and Franklin, but poorly named The Society for the Relief of Free Negroes Unlawfully Held in Bondage:

The first notice we find upon record of associated action [on behalf of the coloured people], was a meeting of a few individuals at the Sun Tavern, in Second street, in Philadelphia, April 14, 1775, at which time they adopted a Constitution, the Preamble of which Sets forth the objects for which the Society was formed...

The Society proceeded to the election of officers, and chose John Baldwin, President; Samuel Davis, Treasurer; and Thomas Harrison, Secretary. They also appointed at the first meeting a Standing Committee of Inspection, consisting of six members, who had forthwith a number of cases committed to their care. Their Reports from time to time manifest a lively interest in the concern, and a good degree of success in rescuing many of the unfortunate objects of their care from the avaricious grasp of their claimants.

The Society met four times in the course of the year, the last of which meetings was held in the 11th month, 1775. After transacting the usual business, they adjourned to meet at the same place in the 2d month of the following year, 1776. About that time, however, the difficulties between this country and Great Britain, which preceded the Revolution, had resulted in the war, in consequence of which no further meetings of the Society took place until it was over. The next meeting occurred in the 2d month, 1784. The opening minute explains the occasion of the interregnum, by stating, "The national commotions that have prevailed for several years, are the only reasons why the company have not met according to the rules."

Our sect's peculiarity might have been a component of the interruption to regular meetings:

Perhaps a more explicit reason for this suspension of the public labours of the Society, may be derived from the fact, that the members of that little association were also mostly, or perhaps all of them, members of the religious Society of Friends, who, from their peculiar tenets, particularly their testimony against War, could not participate in the forcible opposition of their fellow-citizens to the Government of England, under which they were then living; on which account they were, in many instances, closely tried with persecution, and much individual suffering was endured.

A number of very valuable Friends, who were amongst the most respectable and influential members of the community, were suddenly arrested, and without being permitted to see their wives or families, or make any preparation for leaving their business, banished from the city, and carried away into the interior of Virginia, where they were confined for some time—and one or more died there. On account of the obloquy thus cast upon them, Friends were necessarily obliged to avoid as much as possible mixing in public affairs.

This may also serve to account for their not appearing to have been ostensibly engaged in promoting the passage of the Act of Assembly, for the gradual abolition of slavery in this State, which took place in 1780, at which time their enemies were numerous, and many of them slaveholders, who hated the Quakers because they were abolitionists.

Anyway, after the War this group reformed a couple times and rebranded itself as Pennsylvania Abolition Society, which was formally incorporated by the Commonwealth in 1789.  Among the myraid luminaries in the membership were Benjamin Franklin, who became president.  They signed a petition on February 3, 1790, which was submitted to the House on February 15:

A memorial of the Pennsylvania Society for Promoting the Abolition of Slavery was presented to the House and read, praying that Congress may take such measures in their wisdom, as the powers with which they are invested will authorize, for promoting the abolition of slavery, and discouraging every species of traffic in slaves.

On motion,

The memorial of the People called Quakers, at their annual meeting, held at Philadelphia, in the year one thousand seven hundred and eighty-nine, presented yesterday, was read the second time: Whereupon,

A motion being made and seconded, that the said memorial be refered to the consideration of a committee,

  • It was resolved in the affirmative,
  • Ayes ... 43,
  • Noes ... 11.

Ordered, That the said memorial be referred to Mr. Foster, Mr. Huntington, Mr. Gerry, Mr. Lawrance, Mr. Sinnickson, Mr. Hartley, and Mr. Parker; that they do examine the matter thereof, and report the same, with their opinion thereupon, to the House.

Ordered, That the memorial of the People called Quakers, at their annual meeting held at New York, in the year one thousand seven hundred and eighty nine, as also the memorial of the Pennsylvania Society for Promoting the Abolition of Slavery, presented to-day, be referred to the committee last appointed; that they do examine the matter thereof, and report the same, with their opinion thereupon, to the House

Ah yes, those very pesky Quakers, always bugging Congress.  So annoying to the sensibilities of certain Members that a Gag Rule was imposed upon the House, against which John Quincy Adams railed for quite a long time, to little effect...


April 14, 2016 in Constitution, Schmonstitution | Permalink | Comments (0)

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Monday, April 11, 2016

Future Leaders for Democracy

I must study Politicks and War that my sons may have liberty to study...Mathematicks and Philosophy, Geography, natural History, Naval Architecture, navigation, Commerce and Agriculture, in order to give their Children a right to study Painting, Poetry, Musick, Architecture, Statuary, Tapestry and Porcelaine.

- John Adams

I'd like to think Sam and Sadie have a right to a livable future:

A group of youngsters just won a major decision in their efforts to sue the federal government over climate change. An Oregon judge ruled Friday that their lawsuit, which alleges the government violated the constitutional rights of the next generation by allowing the pollution that has caused climate change, can go forward.
The federal lawsuit is part of a broad effort led by Oregon-based nonprofit Our Children’s Trust. The group and its allies have filed lawsuits and petitions in every state in the country. Filed in August, the complaint alleges that the U.S. government has known for half a century that greenhouse gases from fossil fuels cause global warming and climate change.
The suit is based in part on the idea of the public trust — the same doctrine that guides the Clean Water Act. Under the idea of public trust, governments must protect commonly held elements, such as waterways and the seashore, for public use. Under this lawsuit, the plaintiffs allege that the climate and atmosphere must be likewise protected.

I fully support getting young people engaged in running for office and voting (maybe even in middle school), but I'm guessing this will go nowhere.  Perhaps that's just my aged cynicism showing...


April 11, 2016 in Constitution, Schmonstitution | Permalink | Comments (0)

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Saturday, April 09, 2016

Too Clever By Half

It's a clever argument; it may not produce the end you desire:

It is altogether proper to view a decision by the Senate not to act as a waiver of its right to provide advice and consent. A waiver is an intentional relinquishment or abandonment of a known right or privilege. As the Supreme Court has said, “ ‘No procedural principle is more familiar to this Court than that a constitutional right,’ or a right of any other sort, ‘may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.’ ”

It is in full accord with traditional notions of waiver to say that the Senate, having been given a reasonable opportunity to provide advice and consent to the president with respect to the nomination of Garland, and having failed to do so, can fairly be deemed to have waived its right.

The Senate has, in fact, made an assertion of its right.  Democrats have said there should be hearings and an up-or-down vote.  Republicans have said they are withholding their advice and consent until after the next election.

What's more, a President deciding that another branch isn't moving fast enough or doing its duty the way he thinks it should is an even more dangerous precedent than this current obstruction from where I sit.


April 9, 2016 in Constitution, Schmonstitution | Permalink | Comments (0)

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Take This Right To Work And Shove It

It has given me great pleasure to sustain the Constitutionality of laws that I believe to be as bad as possible, because I thereby helped to mark the difference between what I would forbid and what the Constitution permits.

 - Justice Holmes

Sadly, I'm pretty sure Scott's right:

Right-to-work laws are terrible, so I’d like to tell you that yesterday’s decision holding Scott Walker’s version unconsitutional was sound and likely to stand up on appeal. Judge Foust is correct as a policy matter that the free-rider problem created by such laws is undesirable, and quoting Justice Scalia to make this point is a nice touch. Nonetheless, the question is not whether the law is bad policy but whether it’s constitutional, and here things are pretty problematic. Foust rules that Walker’s anti-union bill represents an unconstitutional “taking,” and that the state cannot require unions to represent non-dues payers without compensation. The law was held unconstitutional under the state, not federal, takings clause, but he still cites the federal Penn Central case as controlling what determines a regulatory taking and uses its balancing test. This is…just not a good argument...

The way to change bad, constitutional law is to elect better people.


April 9, 2016 in Constitution, Schmonstitution | Permalink | Comments (0)

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Thursday, April 07, 2016

Speaking Of Conspiracies, There Is No 17th Amendment

I think the 17th Amendment is just ducky, and not just because it's a perennial target for repeal by dishonest schmucks who claim a deep and abiding love for federalism.  I bring it up because of this hinky situation:

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

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

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

Okay, that might not be significant at first blush, but such things fuel conspiracy theories.  I mean, we've got some folks claiming there are "missing" amendments.  Others who assert the 14th Amendment was never ratified (I've covered a couple favorite arguments).  And let's not forget the despised 16th Amendment!

Even the 17th has its nutjob haters.  For example:

The amendment was declared ratified on April 8, 1913

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

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

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

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

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

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

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

Hardly something to hang a conspiracy on, yet these are the same people who see smudge marks, typos, etc, as indicative of something other than simple errors.  Kinda like election campaigns in the social media epocha.  So, you know, whatever.


April 7, 2016 in Constitution, Schmonstitution | Permalink | Comments (0)