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Thursday, September 11, 2014

Expensive Speech For Billionaires And Not For We

Bernie:

I am extremely disappointed that not one Republican voted today to stop billionaires from buying elections and undermining American democracy. While the Senate vote was a victory for Republicans, it was a defeat for American democracy. The Koch brothers and other billionaires should not be allowed to spend hundreds of millions of dollars electing candidates who represent the wealthy and the powerful. The fight to overturn Citizens United must continue at the grassroots level in every state in this country

Not that it's a surprise, but we still can be disappointed.  And redouble our efforts.

ntodd

September 11, 2014 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Friday, September 05, 2014

No Fair!

Using the political process to undermine Obamacare is as American as apple pie, but using the political process to protect it is political and antithetical to our political process:

Is Cannon shameless enough to resort to last year’s idiotic “Obama was ‘packing the court’ by nominating judges to existing vacancies and having Senate majorities confirm them” Republican talking point? You’ll have to click the link to find out!

*giggle*

ntodd

September 5, 2014 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Speaking Of Posner

Yeah, man, he's right on in yesterday's marriage equality opinion.  Just loverly.

ntodd

September 5, 2014 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Thursday, September 04, 2014

The Best Vacation Anywhere

File under Neener Neener and No Duh: D.C. Circuit Vacates Embarrassing Opinion.  But using the rules is just unfair judicial activism!

ntodd

September 4, 2014 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Tuesday, September 02, 2014

Posner? I Hardly...

Busy.  First day of school for Sam tomorrow.  Read about Judge Posner, the anti-Scalia and be ready for a pop quiz on potted plants.

ntodd

September 2, 2014 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Monday, September 01, 2014

Factesque Friends Of The Court

Shocking:

“The court is inundated with 11th-hour, untested, advocacy-motivated claims of factual expertise,” she wrote in an article to be published in The Virginia Law Review.

Some of the factual assertions in recent amicus briefs would not pass muster in a high school research paper. But that has not stopped the Supreme Court from relying on them. Recent opinions have cited “facts” from amicus briefs that were backed up by blog posts, emails or nothing at all.

Some amicus briefs are careful and valuable, of course, citing peer-reviewed studies and noting contrary evidence. Others cite more questionable materials.

Some “studies” presented in amicus briefs were paid for or conducted by the group that submitted the brief and published only on the Internet. Some studies seem to have been created for the purpose of influencing the Supreme Court.

Yet the justices are quite receptive to this dodgy data. Over the five terms from 2008 to 2013, the court’s opinions cited factual assertions from amicus briefs 124 times, Professor Larsen found.

The phenomenon is novel. “The U.S. Supreme Court is the only American judicial entity that depends so heavily on amicus briefs to educate itself on factual matters,” Professor Larsen wrote.

Doesn't really matter since Scalia knows original intent anyway.

ntodd

September 1, 2014 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Sunday, August 31, 2014

At Least I Know I'm Free To Stand

I like this one a lot:

Mayor John Rees asked meeting attendees to stand for an invocation, and specifically waited for Joseph Richardson to rise, according to video published by the Orlando Sentinel.

"I don't have to," Richardson said, refusing to get up from his seat.

Commissioner Bobby Olszewski proceeded to recite the invocation.

"We thank you for allowing us to be in a country where we're free to believe and think and pray," he said.

Rees asked Richardson to stand during the Pledge of Allegiance, and he again refused. The mayor then asked police to remove Richardson from the meeting during the pledge, according to the video.

Rees told the Orlando Sentinel that he felt Richardson's refusal to stand during the pledge was disrespectful to American troops.

It's shitty and oxymoronic when people try to make kids do it, and it's shittier and more oxymoronicer when trying to make voting adults do it in a public meeting.

ntodd

August 31, 2014 in Constitution, Schmonstitution | Permalink | Comments (2) | TrackBack

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Friday, August 29, 2014

Constitutional Conspiracy!

Pennsylvania and New York approved completely different versions of the Constitution!  I blame the Dutch!

ntodd

August 29, 2014 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Thursday, August 28, 2014

Fauxriginialism

[O]f the cases in this Court in which the Fourteenth Amendment was applied during the first fifty years after its adoption, less than one-half of 1 per cent. invoked it in protection of the negro race, and more than 50 per cent. asked that its benefits be extended to corporations. 

 - Justice BlackConnecticut Gen. Life Ins. Co. v. Johnson (1938)


Lemieux has a nice, long post on a "leftist Hamilton" and the annoying problems created by our Cult of the Founders:

Scalia’s originalism, patent fraud that it is, has roots in his version of the Constitution. Of course, he, like most Americans, sees the Constitution as a living document despite his protestations. So the 2nd Amendment is deified and the 4th Amendment flushed down the toilet. There’s a long history of this sort of thing, including Gilded Age courts finding an expansive interpretation of the 14th Amendment for corporations while not applying it to African-Americans at all, even though it was written for the latter.

I highlight that part only because it brought to mind Hugo Black, in addition to Tony's fauxriginalism, the 14th amendment, and our living constitution in general.  Anyway, read the whole thing.

ntodd

August 28, 2014 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Friday, August 22, 2014

Constitutional Authority, Schmonstitutional Authority

Not sure if it counts as ironic, but the House bill passed in June to give Boner authority to sue Obama over his lack of authority to exercise executive authority still doesn't have a Constitutional Authority Statement as mandated by House rules.  Maybe because there's no provision in the Constitution to violate separation of powers?

ntodd

August 22, 2014 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Thursday, August 21, 2014

Trolling Scalia

This is probably my favorite thing in the whole wide world right now:

The difficulty for the defendants is that the Supreme Court has made clear that moral disapproval, standing alone, cannot sustain a provision of this kind. Windsor so indicates. Further, in Bowers v. Hardwick, 478 U.S. 186 (1986), the Court upheld a state law prohibiting sodomy, basing the decision on the state’s prerogative to make moral choices of this kind. But later, in Lawrence v. Texas, 539 U.S. 558 (2003), the Court revisited the issue, struck down a statute prohibiting gay sex, and expressly overruled Bowers. In his Lawrence dissent, Justice Scalia made precisely the point set out above—that a ban on same-sex marriage must stand or fall on the proposition that the state can enforce moral disapproval of the practice without violating the Fourteenth Amendment. Justice Scalia put it this way: “State laws against . . . same-sex marriage . . . are likewise sustainable only in light of Bowers’ validation of laws based on moral choices.” Lawrence, 539 U.S. at 590 (Scalia, J., dissenting).

I should create a new blog category just for this sort of entertainment.

ntodd

PS--More from The Atlantic.

August 21, 2014 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Anybody Got A Copy Of The Constitution In Ferguson?

What First?  Fourth?  Fifth?  Eighth?  Fourteenth?  At least the cops have the right to kill if they get scared of a black person, while no black person who feels threatened by a white cop can stand their ground...

ntodd

August 21, 2014 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Friday, August 15, 2014

Free To Associate With Me But Not With Thee On State Sanctioned Ballots

This is awesome:

[Defeated Mississippi Senate candidate Chris McDaniel] essentially argues that open primaries — in Mississippi’s case, there’s no party registration so anyone can vote in any party’s primary — are unconstitutional. Therefore Thad Cochran’s strategy of reaching out to Democratic and African-American voters was a violation of Mississippi Republicans’ constitutional rights. Hoo boy:

The First Amendment protects the freedom to join together in furtherance of common political beliefs, which necessarily presupposes the freedom to identify the people who constitution the association, and to limit the association to those people. The right to association includes the right not to associate. In no area is the political association’s First Amendment right to not associate more important than in the process of selecting its nominee.

Because free association clearly means denying people the right to participate in any stage of the electoral process.  Pure.  Genius.

ntodd

PS--Wonder what McDaniel's opinion is of NAACP v Alabama.

August 15, 2014 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Wednesday, August 13, 2014

Self Defense

That the people have a right to bear arms for the defence of themselves...

 - Vermont Constitution, Article 16th

I was reading a nice compendium of historical stuff that a friend posted on FB, and was surprised to see this come from none other than Larry Pratt:

The Second Amendment is not for hunting, it’s not even for self-defense.

I guess I shouldn't have been, given Pratt's insurrectionist fetishism, but I usually see such pronouncements come from the likes of Michael Waldman:

MJ: Based on the history you've uncovered, do you think the founders understood there to be an unwritten individual right to arms that they didn't include in the Constitution?

MW: Yes. And that might be noteworthy for some. There were plenty of guns. There was the right to defend yourself, which was part of English common law handed down from England. But there were also gun restrictions at the same time. There were many. There were limits, for example, on where you could store gunpowder. You couldn't have a loaded gun in your house in Boston. There were lots of limits on who could own guns for all different kinds of reasons. There was an expectation that you should be able to own a gun. But they didn't think they were writing that expectation into the Constitution with the Second Amendment.

Nice of him to acknowledge common law and general expectations of the right to self-defense by using arms--ignoring which would probably be news to people like John Adams.  And yeah, I guess both Waldman and Pratt are right that the Second Amendment doesn't explicitly say anything so particular as certain state constitutions, but I'm not sure that means a whole lot when you consider the essential structure of the Federal Constitution and the Bill of Rights.

That's kind of why I don't quite understand the obsession over that specific Amendment.  So what if it really is only related to the Militia?  Then everybody is still missing the point: the Militia is for defense of the State, not to overthrow it (sorry, Larry); there's plenty of support for an individual RKBA in the rest of the Constitution (sorry, Michael).

ntodd

August 13, 2014 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Thursday, August 07, 2014

Rebellion! Whiskey! Sexy!

Speaking of rebels without a clue, President Washington requested Congress pass a Militia Act in 1790, observing:

That every man of the proper age [originally 18-60, ultimately 18-45], and ability of body, is firmly bound, by social compact, to perform, personally, his proportion of military duty for the defence of the state.

Took a while to get their act together, but the First Militia Act of 1792 (in force until 1903) said, in part:

Sec. 2. And be it further enacted, That whenever the laws of the United States shall be opposed, or the execution thereof obstructed, in any state, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals by this act...it shall be lawful for the President of the United States to call forth the militia of such state to suppress such combinations, and to cause the laws to be duly executed...

This section was hotly debated in the House, which naturally I find fascinating (P = Pro-Administration, A = Anti):

Mr. Livermore [P-NH] objected to the general terms used in this section...

Mr. Benson [P-NY] was in favor of introducing the express words of the Constitution, and moved to strike to strike out certain expressions for the purpose of substitution those words.
...
Mr. Baldwin [A-GA] said he considered the objection of the gentleman from New York as involving a dangerous principle.  It seems to supposed that the General Government only possesses the power to suppress insurrections;  whereas the States individually certainly possess this power...their interest is involved in supporting the laws, and they are fully competent to do it.

Mr. Kittera [P-PA] said the gentleman from New Hampshire objects to the clause because it is not particular enough; while the gentleman from New York thinks it not general enough; he thought that the clause...adopts that medium which in such cases is perhaps always safest.

Mr. Page [A-VA] - I move to strike out the clause...I hope there is no occassion for such a clause; it holds out an idea of resistance which I will not suppose can exist.  Mild and equitable laws will not be resisted; and if Congress should be so infatuated as to enact those of a contrary nature, I hope they will be repealed, and not enforced by martial law.

We have seen no occassion for three years past of such a law as is supposed necessary.  If the resistance be small...the magistrates will be competent to the business; if great, it would not be prudent to attempt to crush it.  It is not necessary to make laws merely because the Constitution authorizes a dangerous power.

The back and forth quibbling about general vs specific verbiage, even amongst people ostensibly on the same side (I wouldn't call them members of the same party), shows just how we've always had differences of opinion about the best policies to accomplish the objects we might agree upon.  

More interesting to me is that Anti-Administration Representatives from the South found it unlikely anybody would object to Federal laws, at least so long as they were "reasonable".  And besides, the States could totally handle any problems, but there won't be any, so no big deal and we totally don't have to exercise powers granted in the Constitution to execute the laws!  Shay's Rebellion, of course, showed ust how inadequate to the task separate States were (helping spur the formation of a more perfect Union), and even expressly granted powers of taxation (on whiskey, the horror!) were resisted just a couple years later, so I'm thinking the Anti-Federalist hangover was still clouding their judgement.

Continuing just a little more:

Mr. Murray [P-MD]...offered several remarks to show the necessity of providing for an energetic execution of the laws, while at the same time he was fully impressed with the importance of having the power defined and guarded as much as possible...

Mr. Clark [P-NJ] was in favor of striking out.  He said the motion...went to call forth the militia in case of any opposition to the excise law; so that if and old woman was to strike an excise officer with a broomstick, forsooth the military is to be called out to suppress an insurrection.  The Government, he observed, was in its infancy, and he saw no necessity for supposing the people would at this early stage oppose the laws.
...
Mr. Mercer [A-MD] said...he liked the section as it stood better than any [other proposition]...he had no idea that this Government was to depend on the several State Governments for carrying its laws into execution...

Mr. Page...Treason has existed in every country, and has been punished with the approbation of good men...It should be remembered that the doctrine now contended for is that very doctrine which dismembered the British Empire...

But do the virtuous, patient, submissive, and truly patriotic citizens of the United States deserve the suspicion which is excited against them, and stigmatizes them in the clause which I move to strike out?

Such bills in a free State, where the people have been taught to look upon the right of refusing submission to unconstitutional acts, may excite insurrections much easier than quell them. 

So here we have the tension between the General Government, the States and the People laid bare.  People are no angels, and government is made up of people, so there will inevitably be conflict.  The spirit and meaning of the Revolution and the new Constitution was still being teased out in the early Congresses.

The Anti-Federalists lost the question, of course.  And just before the authority expired, President Washington wielded it, invoking his powers (supported by Secretary of War Knox, certified by Associate Justice Wilson, and opposed by Attorney General Randolph) on this date in 1794 to suppress it:

[W]hereas, by a law of the United States entitled "An act to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions," it is enacted that whenever the laws of the United States shall be opposed or the execution thereof obstructed in any state by combinations too powerful to be suppressed by the ordinary course of judicial proceedings or by the powers vested in the marshals by that act, the same being notified by an associate justice or the district judge, it shall be lawful for the President of the United States to call forth the militia of such state to suppress such combinations and to cause the laws to be duly executed.
...
[I]t is in my judgment necessary under the circumstances of the case to take measures for calling forth the militia in order to suppress the combinations aforesaid, and to cause the laws to be duly executed; and I have accordingly determined so to do, feeling the deepest regret for the occasion, but withal the most solemn conviction that the essential interests of the Union demand it, that the very existence of government and the fundamental principles of social order are materially involved in the issue, and that the patriotism and firmness of all good citizens are seriously called upon, as occasions may require, to aid in the effectual suppression of so fatal a spirit; 

Interestingly enough, the whole thing fundamentally was about taxation by the young Federal government to finance national war debt.  That's in stark contrast to the Boston Tea Party, which of course was not so much about taxation as it was preferential treatment that created unfair corporate advantage.

Anyway, over 150 years later, President Eisenhower also called upon the militia to enforce Federal law:

In that city, under the leadership of demagogic extremists, disorderly mobs have deliberately prevented the carrying out of proper orders from a Federal Court. Local authorities have not eliminated that violent opposition and, under the law, I yesterday issued a Proclamation calling upon the mob to disperse.

This morning the mob again gathered in front of the Central High School of Little Rock, obviously for the purpose of again preventing the carrying out of the Court’s order relating to the admission of Negro children to that school.

Whenever normal agencies prove inadequate to the task and it becomes necessary for the Executive Branch of the Federal Government to use its powers and authority to uphold Federal Courts, the President’s responsibility is inescapable. In accordance with that responsibility, I have today issued an Executive Order directing the use of troops under Federal authority to aid in the execution of Federal law at Little Rock, Arkansas. This became necessary when my Proclamation of yesterday was not observed, and the obstruction of justice still continues.

He, of course, did this after the Governor tried to use the Guard to defy Federal law.  So much for the militia being used to fight tyranny in defense of "states' rights".  Nope, it's there to prevent rebellion, which, returning to Henry's ratification opponent, Madison, could mean "our liberties might be destroyed by domestic faction, and domestic tyranny be established."

So whenever this shit comes up, our government rightly mobilizes, and has enjoyed almost universal success.  Thanks a lot, George Washington!

ntodd

August 7, 2014 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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A Creation Of The People

Lyle Denniston at the National Constitution Center:

From time to time in American constitutional history, a revival of states’ rights sentiment has led to efforts to place state governments between citizens and the federal government, to thwart excessive use of national power. The idea, never accepted by the Supreme Court as valid, is based on the theory that the Constitution was actually a creature of the states, joining together in a compact to give some – but not all – power to a central government. The states, the theory goes, are the ultimate arbiters of how governing power should be distributed and exercised.

Sometimes, these efforts are called “nullification,” because they would simply declare national actions unconstitutional and thus void. At other times, they have been called “interposition,” which describes the state as standing up against federal power.   The theory does have some respectable pedigree: It had the endorsement of James Madison and Thomas Jefferson in what are known as the “Kentucky and Virginia Resolutions.”

Yeah, Patrick Henry was pissed that the Constitution was explicitly a creature of the People.  Too bad, states can't nullify or interpose, and these days cannot sway Congress through appointing Senators thanks to democratization trends throughout our history.

And as Hamilton said in Federalist 33:

If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify.

Thus have we ever been responsible for the Republic.  States are part of our toolkit, but the ultimate repository of sovereign power is The People.

ntodd

August 7, 2014 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Saturday, August 02, 2014

States Are Laboratories Of Anti-Madisonian, Anti-Republican Virtue

Via LGM, I see another women's health clinic in Texas has closed its doors thanks to draconian laws that create an undue burden on female reproductive rights.  This is the time when a certain blogger is compelled to remind his 3.33 readers that James Madison warned tyranny was more efficient at the state level.

I also must note that Tenthers are a bunch of unprincipled gobshites who have no idea what disdain Madison would have for them:

The 9th proposition, in the words following, was considered, "The powers not delegated by the constitution, nor prohibited by it to the States, are reserved to the States respectively."

Mr. Tucker proposed to amend the proposition, by prefixing to it "all powers being derived from the people." He thought this a better place to make this assertion than the introductory clause of the Constitution, where a similar sentiment was proposed by the committee. He extended his motion also, to add the word "expressly," so as to read "the powers not expressly delegated by this Constitution."

Mr. Madison objected to this amendment, because it was impossible to confine a Government to the exercise of express powers; there must necessarily be admitted powers by implication, unless the Constitution descended to recount every minutia. He remembered the word "expressly" had been moved in the convention of Virginia, by the opponents to the ratification, and, after full and fair discussion, was given up by them, and the system allowed to retain its present form.

Mr. Sherman coincided with Mr. Madison in opinion, observing that corporate bodies are supposed to possess all powers incident to a corporate capacity, without being absolutely expressed.

Mr. Tucker did not view the word "expressly" in the same light with the gentleman who opposed him; he thought every power to be expressly given that could be clearly comprehended within any accurate definition of the general power.

Mr. Tucker's motion being negatived,

Mr. Carroll proposed to add to the end of the proposition, "or to the people;" this was agreed to.

The Father of the Constitution and Bill of Rights distrusted the Several States and wanted a stronger central government.  We're seeing why in places like Texas that are stomping on women's control over their own bodies, marriage equality, and voting rights.

ntodd

August 2, 2014 in Constitution, Schmonstitution | Permalink | Comments (1) | TrackBack

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Constitutional Counting

As I've noted before, one of the few actual mandates in our Constitution is the Census.  The first legislation enabling it was passed on February 19, 1790 and signed by President Washington on March 1.  It stated:

The enumeration shall commence on the first Monday in August next, and shall close within nine calendar months thereafter. The several assistants shall, within the said nine months, transmit to the marshals by whom they shall be respectively appointed, accurate returns of all persons, except Indians not taxed, within their respective divisions, which returns shall be made in a schedule, distinguishing the several families by the names of their master, mistress, steward, overseer, or other principal person therein, in manner following, that is to say:

The number of persons within my division, consisting of appears in a schedule hereto annexed, subscribed by me this _____ day of _____ 179_

A. B. assistant to the marshal of _______

Ron Paul should read the debates.  They're lively and quite illuminating.

ntodd

August 2, 2014 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Friday, August 01, 2014

A Reluctant Paternity

No, not about me and the kids.  Just read a nice little article from 1990 by Paul Finkelman that I'd never seen before about Madison and the BoR.  Sign up for JSTOR's free account and you can read it online (and 2 other articles every 14 days, which I've found very useful).  Pay particular attention to how disappointed the Father of the Constitution was with the end result, believing it did not produce a strong enough central government.

ntodd

PS--I should also note that Madison believed our geographic and social diversity would promote liberty.

August 1, 2014 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Wednesday, July 30, 2014

The House Is Funny

So they passed this (HRes694), 227-196:

Rules Committee Resolution...provides for consideration of both H. Res. 676 and H.R. 935 in the House. Both measures are debatable for one hour.

Then they passed this (HRes676), 225-201:

Providing for authority to initiate litigation for actions by the President or other executive branch officials inconsistent with their duties under the Constitution of the United States.

Yet there is still no Constitutional Authority Statement.  Such bullshit.

ntodd

July 30, 2014 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack