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Monday, July 06, 2015

Whosoever Therefore Resisteth The Power

It remains a puzzle as to how protecting the rights to Life, Liberty, and Puruist of Happiness is anathema to the Creator who supposedly endowed upon us said rights.

Right-wing pundit Alan Keyes told WorldNetDaily readers this weekend that the Supreme Court’s ruling on same-sex marriage was one of the most “treasonous” acts in American history, warning that if “the Obergefell decision stands, America’s constitutional government of, by, and for the people, falls.”

Calling on readers to ask God to reverse “this Court’s supremely treasonous act,” Keyes wrote that “Americans still loyal to the premises of right and justice must emphatically reject this decision.”

He added that it represented an even greater injustice than British colonial rule in the U.S., the Fugitive Slave Acts and the Dred Scott ruling.asd

Indeed, guaranteeing Equal Protection under the law is by definition 'treason'--apparently we're giving aid and comfor to homo-loving ISIL--according to the US Constitution.  Oh, and way worse than taxation without representation, not to mention laws executed to deny freedom to certain human beings (counting fractionally for representation but not taxation).


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

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Sunday, July 05, 2015

Cruel War Against Human Nature Itself

Because I have an abiding interest in the Declaration and its excised sections, amongst other things, I recommend reading Ben Railton's piece at TPM on the subject.


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

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On Dexter Talons And Olive Branches

Yeah, yeah, I've used this clip from John Adams (and much of the verbiage below) before:

It's supposed to be a debate about the Olive Branch Petition during the Second Continental Congress.  Alas, the filmmakers got at least a couple things wrong.  Notice what Dickinson says about halfway through.

Turns out the key part of that speech was actually by Joseph Galloway (who doesn't appear in the miniseries that I can tell):

I never could find the Rights of Americans, in the Distinctions between Taxation and Legislation, nor in the Distinction between Laws for Revenue and for the Regulation of Trade. I have looked for our Rights in the Laws of Nature—but could not find them in a State of Nature, but always in a State of political Society.
I have looked for them in the Constitution of the English Government, and there found them. 

What's more, these statements were made during the First Congress, just a few days after convening.  Dickinson wasn't present in 1774, not being a member of the Pennsylvania Assembly and thus not elected a delegate.  And in a bit of irony, he and Galloway were not on friendly terms:

Mr. Galloway, the Speaker of the House and the head of the delegation, was looked upon at that time as the great champion of popular rights. He had acquired this reputation from the active part he had taken in 1764 in the controversy with the Proprietaries, having drawn up the twenty-six resolutions in which the Assembly asserted that the Proprietary government had outlived its usefulness and prayed the king to resume his direct government over the Province.

His activity at that time had endeared him to the country members, most of whom were under his control. The speech which he claimed to have delivered in the Assembly in support of this petition was said by Mr. Dickinson not to have been the one really made by him, and thus a quarrel was excited between him and Galloway which produced a permanent estrangement at a time when their co-operation would have been of great importance to the public service.

That noted, however, both men were still as yet hopeful that reconciliation would take place between Colonials and the Mother Country:

I have intimated to several of the Delegates the Necessity of sending Commissioners over, fully authorized, to the British Court, as a Mode pursued by the Roman, Grecian & Macedonian Colonies on every Occasion of the like Nature--that thro' them we may be enabled, in case our first Plan for accommodating our unhappy Differences should not be acceptable, to know the better what to propose next--that having these Gentlemen at the Scene of Action we shall be no longer misled by Newspaper Accounts and private Letters, but shall proceed on solid Information and Principles of Safety-

That without this, any Petitions or Plans, not having any Persons to explain and support them, will have very little Effect--That in all Probability the Measures of the present Congress will be deemed illegal & unconstitutional, and that upon this Point only the Necessity of sending Persons Home to insist upon the Right in the Colonies of being heard, and to prove that the Illegality of the Congress arises from the Measures of Power in not suffering the Assemblies to meet;

and if, after all, those Reasons should not procure due Attention to the Propositions of the Congress, to pray that the Governors may have Orders to permit such Meetings, and to give Assurances that their Conduct will be decent, respectful & dutiful to the Mother State --That a conduct of this kind cannot fail to give Strength to our Cause, and, if not immediately, in the End bring the Government to attend to Reason and redress our Aggrievances.

Indeed, Galloway proposed a Plan of Union and said:

Upon the meeting of Congress, two parties were immediately formed, with different views, and determined to act upon different principles. One intended candidly and clearly to define American rights, and explicitly and dutifully to petition for the remedy which would redress the grievances justly complained of--to form a more solid and constitutional union between the two countries, and to avoid every measure which tended to sedition, or acts of violent opposition.

The other consisted of persons, whose design, from the beginning of their opposition to the Stamp Act, was to throw off all subordination and connexion with Great-Britain; who meant by every fiction, false hood and fraud, to delude the people from their due allegiance, to throw the subsisting Governments into anarchy, to incite the ignorant and vulgar to arms, and with those arms to establish American Independence. 

Showing a bit of his Loyalist hand already.  Congress rejected his accommodationist proposal, which he published himself the following year, complaining:

The plan read, and warmly seconded by several. gentlemen of the firs! abilities, after a long debate, was so far approved as to be thought worthy of further confederation, and referred under a rule for that purpose, by a majority of the colonies. Under this promising aipect of things, and an expectation that the rule would have been regarded, or at least that something rational would take place to reconcile our unhappy differences, the member proposing it was weakly led to sign the non-importation agreement, although he had uniformly opposed it; but in this he was disappointed.

The measures of independence and sedition, were soon after preferred to those of harmony and liberty; and no arguments, however reasonable and just, could prevail on a majority of the colonies to desert them. The resolve, plan, and rule referring them to further consideration, so inconsistent with the measures now resolved on, were expunged from the minutes...

And that was pretty much that:

From the summer of 1775 until December, 1776, Mr. Galloway remained at his country home, subjected to continually increasing insults and attempted violences. It was during this time that Benjamin Franklin tried in vain to induce his loyalist friend to join the cause of independence, even offering to give security for his personal safety. And there is reason to believe that Mr. Galloway at one time during this period did outwardly espouse the patriot side, possibly as a measure of personal safety; but when the British forces began to arrive in America and occupied New York, and the cauge of the Colonies seemed hopeless, he again conformed his actions to his convictions.

He was, during the latter part of his stay at Trevose, a virtual prisoner in his own house. Mobs visited him and threatened to tar and feather him, and were deterred only by the efforts of his friends. One of these mobs, composed of drunken Dutchmen, planned to hang him. The innkeeper warned him, and he escaped from his house and did not again venture to sleep there.

With affairs in this condition, and an order for his arrest having been made, news of the approach of General Howe through New Jersey was not unwelcome to Mr. Galloway. Hastily loading some valuables into a wagon, in company with several other prominent loyalists, in December, 1776, he quitted his home and made his way to the British camp at New Brunswick, New Jersey.

Galloway eventually left the Colonies and spent the rest of his days in England.  Whilst his friend Franklin and enemies Dickinson and Adams won independence for America.

But it's important to reiterate that John Dickinson and a number of other delegates did not want to declare independence.  So a year before that went down, he Olive Branch Petition was approved on July 5, 1775, dryly recorded thus:

The Congress resumed the consideration of the petition to the King, which being debated by paragraph, was agreed to, and ordered to be engrossed.

Historian Weldon Amzy Brown describes the situation:

Despite [Dickinson's] gloomy apprehensions from the failure of the first petition, he did not despair of effecting a peaceful solution of the troubles and advocated a second petition to the King. A majority of the delegates again sanctioned his policy of conciliation. Dickinson and his friends supposed that the King and ministers had learned their lesson from Lexington and Bunker Hill, but John Adams thought that the dignity and pride of Great Britain would not tolerate another vacillation toward reconciliation. Thus a second petition would be a useless gesture, evidence of colonial fear and weakness.

[T]he fact that Dickinson was the chief spokesman of reunion and that he wrote the second petition, approved by the Congress, reveals his importance as a peace advocate. No other delegate so consistently pleaded for a peaceful solution and no other delegate received greater consideration when speaking for reunion than he did. Dickinson protested against Jefferson's original draft of the petition, because he thought it was filled with too many offensive statements. Jefferson wrote of Dickinson:

He was so honest a man, and so able a one, that he was greatly indulged even by those who could not feel his scruples. We therefore requested him to take the paper, and to put it into a form he could approve. He did so, preparing an entire new statement, and preserving of the former only the last four paragraphs and the half of the preceding one. We approved and reported it to Congress.

However, the second petition enraged New England and brought on a debate which showed all the bitterness of sectional jealousies.
The second petition widened the gulf between the party of Dickinson and reconciliation and that of John Adams and independence.  Thenceforth Adams found nothing favorable to say of Dickinson.

Indeed, Adams called him "a certain great Fortune and piddling Genius" in an unfortunate letter which, along with another to his wife, was intercepted by the British.  For some reason, they found this a tad inflammatory:

We ought to have had in our Hands a Month ago, the whole Legislative, Executive and Judicial of the whole Continent, and have compleatly moddelled a Constitution, to have raised a Naval Power and opened all our Ports wide, to have arrested every Friend to Government on the Continent and held them as Hostages for the poor Victims in Boston. And then opened the Door as wide as possible for Peace and Reconcilliation: After this they might have petitioned and negotiated and addressed, &c. if they would.—Is all this extravagant?—Is it wild?—Is it not the soundest Policy? 

One Piece of News—Seven Thousand Weight of Powder arrived here last Night—We shall send along some as soon as we can.

But anyway, they didn't get around to actually signing for a few more days:

The Petition to the King being engrossed, was compared, and signed by the several members.1

[Note 1: 1 "Congress gave a signal proof of their indulgence to Mr. Dickinson, and of their great desire not to go too fast for any respectable part of our body, in permitting him to draw their second petition to the King according to his own ideas, and passing it with scarcely any amendment." Jefferson, Autobiography, in his Writings (Ford), I, 17.]

Meanthile, on July 6 they approved A Declaration of Taking Up Arms:

The Congress met according to adjournment, and resumed the consideration of the address to the Inhabitants of G-B, which after some debate, was re-committed.

The committee, to whom the declaration was re-committed, brot in the same, which being read, was taken into consideration, and being debated by paragraphs, was approved and is as follows:

Declaration on Taking Arms.1

[Note 1: 1 The Committee appointed to draw up a Declaration to be published by General Washington, upon his arrival at the Camp before Boston, reported a draft on June 24th, which occasioned long and warm debate, and was finally re-committed. No copy of this first draft said, by Jefferson, to have been drawn by John Rutledge, is known to exist. Dickinson had taken a distinguished part in this debate, and with Jefferson was added to the Committee.

Jefferson was desired to prepare a draft, but the result was not satisfactory either to Dickinson or to William Livingston. The former criticised it for its harshness, and the latter for of its "much fault-finding and declamation, with little sense or dignity. They seem to think a reiteration of tyranny, despotism, bloody, &c &c. all that is needed to unite us at home and convince the bribed voters of North of the justice of our cause." (Letter to Lord Stirling, July 4, 1775.)

Jefferson's own account was: "It was too strong for Mr. Dickinson. He still retained the hope of reconciliation with the mother country, and was unwilling it should be lessened by offensive statements. He was so honest a man, and so able a one, that he was greatly indulged even by those who could not feel his scruples. We therefore requested him to take the paper, and put it into a form he could approve. He did so, preparing an entire new statement, and preserving of the former only the last four paragraphs and the half of the preceding one. We approved and reported it to Congress." Autobiography, in Writings (Ford) I, 16.]

Parliament took up the petition in November.  The House of Lords interviewed Richard Penn about the general state of affairs and attitudes in America, including how many people might be willing to take arms against the Crown.  The Duke of Richmond then laid out a case for making peace:

[H]e would shew the necessity of an immediate reconciliation between Great Britain and her colonies. His Grace observed, that the colonists were disposed to an amicable adjustment of differences, was evident from the very last petition which had been presented from the congress to the King. The prayer of that petition was, "for a restoration of peace," and it was pressed home on the consideration of Parliament by the language it was cloathed in, which was that of dutiful submission to the sovereignty of Great Britain, as far as the sovereignty was compatible with those rights secured to freemen by the constitution of the empire. This, and infinitely more might be said in behalf of the restoration of peace...

If the conquest of America was the measure proposed, in his apprehension, the difficulties resulting from the attempt, were of such a magnitude as hardly to be surmounted in the given state of things.

But between Congress' sending a declaration of taking up arms and Adams' intercepted letters, this really wasn't an effective way to get the Mother Country to listen:

Dartmouth received a copy of the petition on August 21 and, urged to reply, answered September 1, "That as his Majesty did not receive it on the throne, no answer would be given," Lord Dartmouth was too timid to allow the King to see the petition until he studied it to see if it were acceptable.

His wish for, rather than expectation of, a reconciliation was apparent in his statement: "tho' both sides will have a great way to go before they will be within the sound of each other's voice, it is not impossible that they may come near enough to shake hands at last."

This reply ended the official attempts of the colonies to reconcile their differences with the mother country. It now appeared to them that the sword was the only choice left and the radicals began more openly to advocate independence. Had not the King refused the "Olive Branch"? What more could Congress do?

Though the letter of Adams weakened the chances of the final petition, the war now being waged against the colonies was a strong argument for the revolutionary party. Thus the rejection of the second petition was a definite turning point in the movement for independence. It defined the issue for America as unconditional submission or independence, had a desired effect in that it encouraged definite preparation for war, and cleared the suspense.

Men could now fight for their rights. No time for argument remained; opponents of reconciliation quickly won political ascendancy; and those unwilling to support the cause of independence had little time left to leave the radical strong-holds.

Certainly after this, the King and Congress sounded far from shaking hands (temperate voices like Dickinson's notwithstanding).


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

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Friday, July 03, 2015

Promising Bitcoins His Campaign Can't Cash

Ah, the Constitutional Scholar Candidate panders:

Scofflaw rancher Cliven Bundy said he met with Sen. Rand Paul (R-KY) for nearly an hour this week and found he sees eye to eye with the GOP presidential candidate.

Bundy, whose ongoing dispute over grazing rights on federally owned land sparked an armed militia standoff last year with the Bureau of Land Management, said Paul assured him he would grant the rancher’s demands and make Nevada a sovereign state if elected next year to the White House.

“He said, ‘One of your biggest problems is getting Nevada to recognize its sovereignty and to stand up for its sovereignty,” Bundy told KNPR-FM. “He said he would turn over the jurisdiction authority and allow the state of Nevada to act like a sovereign state. He said it would be up to we the people to govern ourselves.”

That word salad sounds like Bush, but with even less legal meaning.  Regardless, I'll bet the hard currency he's saved paying his fair share will allow him to send a nice bundle of Libertarian Dollies to fund Paulie's Libertarian Follies.


July 3, 2015 in Constitution, Schmonstitution | Permalink | Comments (2)

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Goddamned Editors

Editing the Declaration in John Adams:

Adams wrote years later to Timothy Pickering:

Mr. Jefferson came into Congress, in June, 1775, and brought with him a reputation for literature, science, and a happy talent of composition. Writings of his were handed about, remarkable for the peculiar felicity of expression. Though a silent member in Congress, he was so prompt, frank, explicit, and decisive upon committees and in conversation, not even Samuel Adams was more so, that he soon seized upon my heart; and upon this occasion I gave him my vote, and did all in my power to procure the votes of others. I think he had one more vote than any other, and that placed him at the head of the committee. I had the next highest number, and that placed me the second. The committee met, discussed the subject, and then appointed Mr. Jefferson and me to make the draught, I suppose because we were the two first on the list.

The sub-committee met. Jefferson proposed to me to make the draught I said, "l will not." "You should do it." "Oh! no." "Why will you not? You ought do it." "I will not." "Why?" "Reasons enough." "What can be your reasons?" "Reason first--You are a Virginian, and a Virginian ought to appear at the head of this business. Reason second--I am obnoxious, suspected, and unpopular.  You are much otherwise. Reason third--You can write ten times better than I can." "WelI," said Jefferson, "if you are decided, I will do as well as I can." "Very well.  When you have drawn it up, we will have a meeting."

A meeting we accordingly had, and conned the paper over. I was delighted with its high tone and the flights of oratory with which it abounded, especially that concerning negro slavery, which, though I knew his Southern brethren would never suffer to pass in Congress, I certainly never would oppose. There were other expressions which I would not have inserted, if I had drawn it, particularly that which called the King a tyrant. I thought this too personal. I never believed George to be a tyrant in disposition and in nature; I always believed him to be deceived by his courtiers on both sides of the Atlantic, and in his official capacity only, cruel. I thought the expression too passionate, and too much like scolding, for so grave and solemn a document; but as Franklin and Sherman were to inspect it afterwards, I thought it would not become me to strike it out. I consented to report it, and do not now remember that I made or suggested a single alteration.

We reported it the committee of five. It was read, and I do not remember that Franklin or Sherman criticized any thing. We were all in haste. Congress was impatient, and the instrument was reported, as I believe, in Jefferson's handwriting as he first drew it. Congress cut off about a quarter of it, as I expected the would; but they obliterated some of the best of it, and left all that was exceptionable, if any thing in it was. 

Walter Isaacson, in his biography of Franklin, writes:

The most important of his edits was small but resounding. He crossed out, using the heavy backslashes that he often employed, the last three words of Jefferson's phrase “We hold these truths to be sacred and undeniable” and changed them to the words now enshrined in history: “We hold these truths to be self-evident.”"
The idea of “self-evident” truths was one that drew less on John Locke, who was Jefferson's favored philosopher, than on the scientific determinism espoused by Isaac Newton and on the analytic empiricism of Franklin’s close friend David Hume. In what became known as “Hume's fork,” the great Scottish philosopher, along with Leibniz and others, had developed a theory that distinguished between synthetic truths that describe matters of fact (such as “London is bigger than Philadelphia”) and analytic truths that are self-evident by virtue of reason and definition (“The angles of a triangle equal 180 degrees”; “All bachelors are unmarried”). By using the word “sacred,” Jefferson had asserted, intentionally or not, that the principle in question—the equality of men and their endowment by their creator with inalienable rights—was an assertion of religion. Franklin's edit turned it instead into an assertion of rationality.

That scientific rationality still kept humans in bondage for several score years, but it was still a pretty nice start...


July 3, 2015 in Constitution, Schmonstitution | Permalink | Comments (4)

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Thursday, July 02, 2015

Slavery? What's That?

Wikipedia's On This Date Thingy1777 – Vermont becomes the first American territory to abolish slavery.

Yeah, well, nope.  

Delegates put forth a draft constitution that abolished involuntary servitude of sorts on July 2nd (not the 4th, as recorded by Ira Allen), which was approved (but never ratified by the People) on the 8th.  And there's still some controversy/confusion about whether there were any humans bound to service in our fair state in those early years...


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

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Scalia's Words Have No Meaning

But I'm pretty sure we already knew that.  Come for the applesauce, stay for the argle bargle.


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

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Happy Independence (For Some) Day, Mr Adams!

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, the next day:

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.

Proving that the Framers were not entirely right about everything.  Hell, they might not even have been right about rebelling--I've seriously considered that notion since high school--because, you know, we kept slavery around longer than pretty much everybody else so the One Percenters would be happy.


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

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Jindal Stands In The Schoolhouse Door

Homophobia now, homophobia tomorrow, homophobia forever:

The Supreme Court has already said that state bans on same-sex marriage are unconstitutional, a decision that a federal appeals court reiterated Wednesday applies to Louisiana's anti-gay marriage measures. But Republican Gov. Bobby Jindal is holding out for yet another ruling before he allows the state to recognize marriages between gay couples.

Wednesday evening U.S. Fifth Circuit Court of Appeals reversed an earlier district court's decision in favor of Louisiana's same-sex bans, citing last week's Supreme Court decision. The appeals court sent the case back to the district court to issue a new order. A Jindal spokesman told The Times-Picayune that the state will wait for that district court to speak again before it falls in line.

"Our agencies will follow the Louisiana Constitution until the District Court orders us otherwise," Mike Reed, a spokesman in the governor's office, said.
Jindal's office had previously said that the state would wait for the appeals court order before recognizing the marriages. Now it appears the state will wait for yet a another procedural step.

Childish buffoons.  Next procedural step: Obama Federalizes the Guard and has them do the paperwork.


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

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Wednesday, July 01, 2015

My Great Great Grandpappy Didn't Fight For No Queers

Certainly there is no contending against the Will of God; but still there is some difficulty in ascertaining, and applying it, to particular cases.

 - A Lincoln (October 1, 1858)

Oh yes, of course:

“In the Civil War, some 600,000 people died in a country that was much less populated than that today, and it was a much more religious country,” [Rep. Glenn Grothman (R-WI)] said. “I think a lot of people who died fighting in that war felt they died fighting for a religious cause — you know, ‘Battle Hymn of the Republic’ and all that.”
“I think it would shock those people who died in that war to find out the constitutional amendment which was ratified kind of as a culmination of their great efforts and their great deaths would be, 150 years later, a little less than 150 years later, used by these five robed, arrogant, robed people to take this constitutional amendment and say that that constitutional amendment that was drafted after the Civil War was in fact an amendment designed to say that same-sex marriage had to be legal,” Grothman said.

The war fought over Federal Supremacy and resulted in the 14th Amendment's guarantee of equal protection was all a waste now that everybody can get married.


July 1, 2015 in Constitution, Schmonstitution | Permalink | Comments (1)

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Deflating Cruz

Oh, Megyn:

Cruz argued that the Constitution’s framers had intended to limit the court’s power through the threat of impeachment, but he said that hasn’t even been a “scarecrow” for justices for two centuries.

“Even 200 years ago, the Supreme Court wasn’t afraid of it,” he said, but he conceded that impeachment would be nearly impossible in today’s divided U.S. Senate.

“We can’t even muster 50 votes to defeat Loretta Lynch, the attorney general who tells us she’s not going to follow the law or the Constitution, (so) there’s no universe in which there are 67 votes to remove Anthony Kennedy from the Supreme Court,” Cruz said, revealing the target of his wrath.

Kelly reminded Cruz that American voters had twice elected President Barack Obama, so she wondered how the Tea Party senator could be sure he would like the results of his plan to put Supreme Court justices before voters.

“Let’s be clear,” Cruz said, momentarily losing his footing. “What I’m talking about are judicial retention elections, which means you could have the same appointment, the same senate confirmation, but every eight years the people would have an up-or-down vote with the option to remove a justice.”

“But what if the people bounced out Scalia and Alito and Thomas and we had a President Obama in the White House?” Kelly said.

I see absolutely nothing wrong with Cruz's brilliant plan.  It's like a Swiss fucking watch.


July 1, 2015 in Constitution, Schmonstitution | Permalink | Comments (1)

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Tuesday, June 30, 2015

His Red Right Hand To Plague Us


If I had to choose to live under the words of Madison, Mason, Adams, Jefferson and Washington or to live under the words of Jesus, I'd never hesitate but to choose the later.   It would produce egalitarian democracy and, in accordance with the economic laws of Moses, a radically level and economically just society.  As the often misrepresented mentions of slavery by Paul,  slave owners were to treat those they legally held in slavery, not as slaves but as equals, as if they were members of their own families.   Under the teachings of Jesus, slavery as the Founders practiced and supported and embedded in their Constitution could not have been maintained. 

It's a fair cop.  But we work with what we have.


June 30, 2015 in Constitution, Schmonstitution | Permalink | Comments (0)

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Monday, June 29, 2015

I Happen To Have Mr. Marbury Right Here

Alabama Chief Justice Roy Moore asks about SCOTUS in the wake of their marriage ruling:

Just who do they think they are...?

Here, let me help:

The judicial Power of the United States, shall be vested in one supreme Court...

Holler if you have any other questions.


June 29, 2015 in Constitution, Schmonstitution | Permalink | Comments (0)

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Sunday, June 28, 2015


Oh Alan West, I wanna gay marry you:

YEEhaw! This side-effect of the gay marriage ruling will make liberals EXPLODE

Prediction: it won't.

The Court used Section 1 of the Fourteen Amendment to justify its argument, which reads: Amendment XIV Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law, which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Now here is the kicker, as the writer articulately brings to light: “By using the Constitution in such a manner, the Court argues that the Due Process Clause extends “certain personal choices central to individual dignity and autonomy” accepted in a majority of states across the state lines of a handful of states that still banned the practice. The vast majority of states are “shall issue” on the matter of issuing concealed carry permits, and enjoy reciprocity with a large number of other states. My North Carolina concealed carry permit, for example, was recognized yesterday as being valid in 36 states, which just so happened to be the number of states in which gay marriage was legal yesterday. But 14 states did not recognize my concealed carry permit yesterday. Today they must.

Here is the kicker: that's not how SCOTUS decisions work.  IANAL, but it seems clear they rule on very specific issues within a case, which are applied to similar cases, not generally without further controversy.  Situations often differ even if similar logic can be applied to settle matters.

Anyway, there's already been a case based on the 14th Amendment regarding the RKBA.  Might've heard of McDonald v Chicago, which (selectively) incorporated the 2nd Amendment against the states.  The majority also reaffirmed Heller's observations that some gun restrictions are still permissible.  

While I wouldn't be surprised--nor upset--if a challenge against non-reciprocity were successful, up to this point I am unaware of any, and last week's ruling doesn't change that.  So have fun stormin' da castle!

But this is my favorite section, natch:

Perhaps I should probably remind folks of some of the quotes of the Founding Fathers on the Second Amendment:

  • “Democracy is two wolves and a lamb voting on what to have for lunch. Liberty is a well-armed lamb contesting the vote!” — Benjamin Franklin  


  • “I ask, Sir, what is the militia? It is the whole people. To disarm the people is the best and most effectual way to enslave them.” — George Mason

    [Nope again.  See above link.]

  • “No free government was ever founded, or ever preserved its liberty, without uniting the characters of the citizen and soldier in those destined for the defense of the state…such area well-regulated militia, composed of the freeholders, citizen and husbandman, who take up arms to preserve their property, as individuals, and their rights as freemen.” — Richard Henry Lee

    [Status unclear.  See below.]

  • “[W]hat country can preserve its liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms.” — Thomas Jefferson

    [Yeah, well, West must've learned his lesson...]

  • “A free people ought not only to be armed, but disciplined; to which end a uniform and well-digested plan is requisite; and their safety and interest require that they should promote such manufactories as tend to render them independent on others for essential, particularly for military, supplies.” — George Washington

    [Yeah, well...]

That Richard Henry Lee one has to be spurious.  I see the same exact quotation, including ellipses, all over the place, always with the same alleged citation of "State Gazette (Charleston), September 8, 1788."

Whenever I find a quotation everywhere with something elided, and never any larger context, my alarm bells go off.  What's more, it appears in his contemporaneous letters, including his famous rebuttal to Dickinson, that he rarely used 'freeholders' in any context, amongst other terms.  And does "such area well-regulated militia" even make grammatical sense?  Also, I suppose it's not a big deal, but the truncated name of the paper (State Gazette of South Carolina) doesn't ring true.

If anybody has a link to an original source document, they're mum out there.  Imma say this is fake.  Which would be unsurprising in the context.

Maybe I should ask West for help.  It could just make him EXPLODE!


June 28, 2015 in Constitution, Schmonstitution, RKBA | Permalink | Comments (5)

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Saturday, June 27, 2015

Loving The Loving

Praise be:

In Obergefell v. Hodges, Kennedy and the four liberal justices who joined his opinion went all in on the idea of a living Constitution.

"The nature of injustice is that we may not always see it in our own times," Kennedy wrote. "The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.…The Court, like many institutions, has made assumptions defined by the world and time of which it is a part."

Adam Winkler, a constitutional law expert at the UCLA School of Law, calls Kennedy's opinion "an ode to living constitutionalism." With Kennedy's ruling, he says, the court makes clear that "the due process clause protects an evolving notion of liberty."

Justice Holmes approves.  As do I.


June 27, 2015 in Constitution, Schmonstitution | Permalink | Comments (0)

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Someone's Got To Be Oppressed!

RMJ on Roberts' deep concern that tax exempt status could be threatened if bigots aren't free to discriminate:

[T]he reference to the candid acknowledgement of the Solicitor General was to whether an institution like Bob Jones University could lose its tax exempt status.  It was not a reference to taking away the tax exempt status of the Roman Catholic Church or the Southern Baptist Convention, either wholesale or one congregation at a time. 

But the almost dog-whistle code in the Chief Justice's comment (or am I just hearing things because of the reaction in Texas?) is to Hobby Lobby v. Burwell, especially about the "exercise" of religion.  Because while the rest of us have always held with the doctrine that your freedom stops at the end of my nose (although threatening gestures can be an assault, or just knocking a tray with a plate of food out of someone's hand, which is a long way from the end of one's nose; so the aphorism is, like most, more apophatic than true), the Supreme Court dissent (and others) seem to think Hobby Lobby weighed in on the side of "exercising" religion against someone else.  In matters of religion, the Chief Justice seems to imply, you don't have a nose at all; at least, not one the Court need consider.
But people of faith are not free to discriminate against mixed-race marriages in college campus housing, and haven't been since 1967, if not since 1964.  The arguments now really aren't any different than they were then.  So, again, I fail to see the relevance of the argument here; except for the handle Hobby Lobby v. Burwell gives to a club that is sure to soon be wielded; and at that point someone will have to learn the difference between a Constitutional right, and one granted by statute.

If you can't afford to lose your tax status, don't be a hateful ass.  Besides, when you get to Heaven you'll be blessed!  So it's probably all for the best...


June 27, 2015 in Constitution, Schmonstitution | Permalink | Comments (0)

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The Constitution Itself Is Unconstitutional

Clearly it's not unconstitutional on its face, asshat:

Huckabee issued a statement evoking the Revolution in the wake of the ruling vowing: “I will not acquiesce to an imperial court...We must resist and reject judicial tyranny.”

“What does that mean?” Kelly asked Huckabee. “You have to accept this ruling, right? I mean, are you planning on not accepting this ruling in a way?”

“How do we accept something that is – on it’s face – unconstitutional? Has the Congress yet acted?” Huckabee responded.

But Kelly was undeterred, laying into the GOPer: “It’s the Supreme Court’s job to interpret the Constitution and tell us what it means. And like it or not, they get the final say unless the people decide to pass a Constitutional amendment.”

“Glad you brought that up, that’s the whole point, the people do have a right to say, and in over thirty states they did say, and they said very clearly that they want to affirm the laws of nature, and the laws of nature’s god, words from the Declaration of Independence, and keep marriage what it’s always been,” Huckabee said.

The candidate then compared the decision to the Supreme Court’s 1857 Dred Scott ruling, which ruled African Americans were not citizens, to the same-sex marriage decision.

How nice it must be to be an unappointed pundit who can wave a hand to dismiss Article III, Article VI, and Amendment XIV.  Oh yeah, and making sure people who are citizens are equal under the law is precisely the same as a ruling that protected the propertied class whilst denying a black person could even be a citizen, free or not.


June 27, 2015 in And Fuck..., Constitution, Schmonstitution | Permalink | Comments (1)

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The Framers Never Had Constitutional Confrontations

If the gentleman was the Pythia in the temple, ought he not to explain the ambiguous language of the oracle?

 - William Vans Murray on the House floor (March 23, 1796)

So a few days ago I'd mentioned Jay's Treaty, but my cold and other more exciting SCOTUS developments pushed it down the priority list.  I've been chomping at the bit, however, because it brought up some constitutional disagreements early in our Republic's infancy.

After some kinda secret negotiations (it wasn't published until Jay brought it back to America), President Washington submitted it for advice and consent on June 8, 1795.  The Senate, after various motions, gave it the nod (20-10) on June 24.

I'll make a brief aside that my least favorite scene in HBO's John Adams series portrays the vote.  It's a complete fabrication of what happened, wholly ignorant of what the Constitution says about such matters.

Anyway, that's not really what interests me.  The real fun is just how puzzled The Father of The Constitution is about the Senate's power to advise and consent to treaties.  No, really.

James Madison was concerned, very concerned, on October 12, 1795, about how the House didn't get to have a say on ratification:

The President and Senate by ratifying this Treaty, usurp the powers of regulating commerce, of making rules with respect to aliens, of establishing tribunals of justice, and of defining piracy. A formal demonstration of every part of this complex proposition is not requisite. We will prove that this Treaty is dangerous to liberty, and that the constituted authorities who have given it their sanction, have flagrantly violated their duty by an appeal to the constitution itself, to that explicit instrument which we formed as the unerring guide of our representatives, but which some of them have dared to violate.

He brought his concerns to the House floor on March 10, 1795, after Congress was asked to appropriate funds to implement the treaty: 

On comparing the several passages in the Constitution, which had been already cited to the Committee, it appeared, that if taken literally and without limit, they must necessarily clash with each other Certain powers to regulate commerce, to declare war, to raise armies, to borrow money &c &c, are first specifically vested in Congress. The power of making Treaties, which may relate to the same subjects, is afterwards vested in the President and two thirds of the Senate. And it is declared in another place that the Constitution, and the laws of the U States made in pursuance thereof, and Treaties made or to be made under the authority of the U States shall be the supreme law of the land and the judges, in every State, shall be bound thereby, any thing in the Constitution or laws of any State, to the contrary notwithstanding.

The term supreme, as applied to Treaties, evidently meant a supremacy over the State Constitutions and laws, and not over the Constitution & laws of the U States And it was observable that the Judicial authority & the existing laws, alone of the States, fell within the supremacy expressly enjoined. The injunction was not extended to the Legislative authority of the States or to laws requisite to be passed by the States, for giving effect to Treaties, and it might be a problem worthy of the consideration, though not needing the decision of the Committee, in what manner the requisite provisions were to be obtained from the States.

It was to be regretted, he observed, that on a question of such magnitude as the present, there should be any apparent inconsistency or inexplicitness in the Constitution, that could leave room for different constructions. As the case however had happened, all that could be done was to examine the different constructions with accuracy & fairness, according to the rules established therefor, and to adhere to that which should be found most rational, consistent, and satisfactory.

This speechifying came in the midst of debate over the House's demand that Washington hand over documentation pertaining to the treaty, allegedly so they could determine if monies were truly warranted.  Federalists objected.  For example, Vermont's Daniel Buck on March 7:

I am opposed to the resolution now under consideration ; not from an apprehension that the papers referred to will not bear the public scrutiny, or from a belief that there would be the least reluctance on the part of the executive to deliver them, on account of any such apprehensions of his ; but I am opposed to the resolution in point of principle, because I conceive those papers can be of no use to us gratify feelings of resentment, or a vain curiosity...

The treaty is negociated, assented to by the Senate, ratified by the President [ahem], the ratifications exchanged. It is now promulgated, communicated to us, and the President has made solemn proclamation enjoining it upon all persons bearing office civil or military, within the United States, and all other citizens or inhabitants thereof, to execute and observe the same.

Was this the proclamation of George WASHINGON considered as a man, detached from the powers vested in him by the people, it would excite ridicule : Was it the proclamation of a king or despot who arrogated to himself the right of dictating laws to men without their confent, it would excite contempt; and if it is in fact the proclamation of the President of the United States, who under colour of his office has asumed powers not delegated to him, it must excite indignation ; but if it be neither of these, but is indeed the voice of United Ainerica, founding through the President as the only organ of the nation in this particular case, this gives it a different stamp, and in this sense to me the found is heavy as thunder, majestic as heaven, and the height of treason to disobey it

This is the tenor of debate for a couple weeks until the Executive came back with an answer to their requests: I'd prefer not to, thank you.  Madison took the floor again on April 6:

If there were any question which could make a serious appeal to the dispassionate judgement, it must be one which respected the meaning of the constitution; and if any constitutional question could, make the appeal with peculiar solemnity, it must be in a case like the present, where two of the constituted authorities interpreted differently the extent of their respective powers.

It was a consolation however, of which every member would be sensible, to reflect on the happy difference of our situation, on such occurrences, from that of governments, in which the constituent members possessed independent and hereditary prerogatives. In such governments, the parties having a personal interest in their public stations, and being not amenable to the national will, disputes concerning the limits of their respective authorities, might be productive of the most fatal consequences. With us, on the contrary, although disputes of that kind are always to be regretted, there were three most precious resources, against the evil tendency of them. In the first place, the responsibility which every department feels to the public will, under the forms of the constitution, may be expected to prevent the excesses incident to conflicts between rival and unresponsible authorities. In the next place, if the difference cannot be adjusted by friendly conference and mutual concession, the sense of the constituent body, brought into the government through the ordinary elective channels, may supply a remedy. And if this resource should fail, there remains in the third and last place, that provident article in the constitution itself, by which an avenue is always open to the sovereignty of the People for explanations or amendments as they might be found indispensable.

If, in the present instance, it was to be particularly regretted, that the existing difference of opinion had arisen; every motive to the regret, was a motive to calmness, to candor, and the most respectful delicacy towards the other constituted authority. On the other hand, the duty which the House of Representatives must feel to themselves and to their constituents, required that they should examine the subject with accuracy, as well as with candor, and decide on it with firmness, as well as with moderation.
On the whole, it appeared that the rights of the House on two great constitutional points, had been denied by a high authority in the message before the committee. This message was entered on the journals of the House. If nothing was entered in opposition thereto; it would be inferred that the reasons in the message had changed the opinion of the House, and that their claims on those great points were relinquished. It was proper therefore that the questions, brought fairly before the committee in the propositions of the gentleman (Mr. Blount) from North Carolina, should be examined and formally decided. If the reasoning of the message should be deemed satisfactory, it would be the duty of this branch of the government to reject the propositions, and thus accede to the doctrines asserted by the Executive: If on the other hand this reasoning should not be satisfactory, it would be equally the duty of the House, in some such firm, but very decent terms, as are proposed, to enter their opinions on record. In either way, the meaning of the constitution would be established, as far as depends on a vote of the House of Representatives.

Agree to disagree, then.  They moved on to the resolution for carrying Jay's Treaty into effect.  More disagreement.  In the end, opponents narrowly lost on April 30 (51-49), and Washington signed the appropriations into law on May 6.  Jemmy came up short (heh) again.  

These guys argued just the way we do today.  So who should you cite when making a point about separation of powers and constitutional prerogative?  The losers or the winners?


PS--For more context, one could add Madison's Political Observations of 1795 from which that misused quotation about continual warfare comes.

PPS--There was also significant debate in 1794 when Jay was first appointed to negotiate in the first place.

June 27, 2015 in Constitution, Schmonstitution | Permalink | Comments (0)

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The Greater Light To Rule The Day, And The Lesser Light To Rule The Night

Dear Clarence:

Since well before 1787, liberty has been understood as freedom from government action...Yet the majority invokes our Constitution in the name of a “liberty” that the Framers would not have recognized, to the detriment of the liberty they sought to protect. Along the way, it rejects the idea—captured in our Declaration of Independence—that human dignity is innate and suggests instead that it comes from the Government.


[A]mong these [rights] are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted...

Brown v Board:

The words of the [14th] amendment...contain a necessary implication of...exemption from legal discriminations, implying inferiority in civil society...

Who needs dignity when God ordained separation of the inferior from the superior, amirite?

The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.

I suspect Thomas prefers this ruling:

[T]he language used in the Declaration of Independence, show that neither the class of persons who had been imported as slaves nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument.

Would that he remembered this:

[I]f there be any other commandment, it is briefly comprehended in this saying, namely, Thou shalt love thy neighbour as thyself...Love worketh no ill to his neighbour: therefore love is the fulfilling of the law.

But he's not much of a Loving guy.  The self-loathing tool does appear to love his neighbor as himself, which would explain his dissent.


June 27, 2015 in Constitution, Schmonstitution | Permalink | Comments (2)

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Friday, June 26, 2015

Makes You Wonder Why The Framers Included A Third Branch

Fox asks: the Judiciary, what is it for?

JULIE ROGINSKY: I'm dying. Look, we've had this before, Loving V. Virginia, which allowed and legalized marriage between a black man and a white woman, or vice versa, I don't remember who was who in that situation. That came from the courts. And there was a religious furor about it and people used religion back then, as ridiculous as it sounds, to say that we shouldn't have mixed races, we shouldn't promulgate biracial families. And the reality is it was done by the courts. Can you explain to me how this is any different? Love is love and people should marry whom they want and I don't understand how that's not --

AIDALA : That's not the argument I'm making. The argument I'm making is the court is not the proper branch --

ROGINSKY: But, they've done it before.

AIDALA: So they've made mistakes before, that doesn't mean you should make mistakes again.


ROGINSKY: But then why go to a courthouse and have a judge marry you if it's not a legal issue? And I'll leave it at that, because I know --

AIDALA: Because Congress is supposed to be the one who decides whether they can do it or they can't do it. Congress empowers the judiciary. So it should be Congress' job along with the executive.

ROGINSKY: So Brown V. Board of Education was the same thing, that Congress should have done it?

ARTHUR: Probably, yes.

Which is totes consistent with how Congress passed campaign finance reform then the non-activist Justices said Congress should do the stuff that Congress should do because rich people should be able to buy elections as the Framers intended.


June 26, 2015 in Constitution, Schmonstitution | Permalink | Comments (0)