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Sunday, March 29, 2015

Democracy For DC

Ohio approved the Twenty-third Amendment on March 29, 1961, becoming the requisite 38th state for its ratification.  It was officially certified valid, to all intents and purposes, as part of the Constitution of the United States on April 3.  So residents in the District of Columbia could now vote for our chief executive.

I'll just note this came at the beginning of pretty aggressive expansion of the franchise over a mere decade.  It was followed by amendments banning poll taxes (1964) and allowing 18yos to vote (1971).  That's 3 amendments out of the last 5 dedicated to ensuring more people's right to cast ballots in presidential or other elections.

Of course, DC's vast African-American population has only voted Democratic since '64.  I'm a bit surprised the Republican Congress didn't propose repeal of the 23rd in a deal allowing Lynch to become AG.

ntodd

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

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Saturday, March 28, 2015

Bless Their Hearts

That...no person ought to, or of right can be compelled to attend any religious worship.

 - Article 3rd, Vermont Constitution

Yes, this did happen:

During a televised committee debate Tuesday on a proposed concealed weapons bill, State Sen. Sylvia Allen, R-Snowflake, explained her theory that American needs a "moral rebirth" in order to keep people from feeling the need to carry a weapon.

"I believe what's happening to our country is that there's a moral erosion of the soul of America," she said. She continued:

It's the soul that is corrupt. How we get back to a moral rebirth I don't know. Since we are slowly eroding religion at every opportunity that we have. Probably we should be debating a bill requiring every American to attend a church of their choice on Sunday to see if we can get back to having a moral rebirth." 

However, Michael J. Gerhardt, Samuel Ashe Distinguished Professor in Constitutional Law and the director of the Center for Law and Government at the University of North Carolina  says in an interview “It’s not a question that such a law would be immediately struck down by any court as absolutely unconstitutional, but a question of how this kind of proposal is even taking up legislative time. They [legislators] might try and get around it by saying that you could choose the mosque, synagogue, or church to attend. Still, when [legislators] attempt to connect compulsion to religion there’s no question such a law would be struck down."

I didn't post about this before because it really wasn't any sort of proposal in a legislative sense.  It still isn't such a thing, but now I'm seeing people suggesting it was a "proposal...taking up legislative time."  Consider it dictum and nothing more.  Stupid, yes, but mere musing and not any earnest policy proposal.

ntodd

March 28, 2015 in Constitution, Schmonstitution | Permalink | Comments (3) | TrackBack

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Friday, March 27, 2015

Moral Crisis

Nothing I like better than libertarians talking about moral crisis and discrimination:

In a video posted yesterday by the Christian Broadcasting Network, Rand Pauladdressed “a group of pastors and religious leaders at a private prayer breakfast” in Washington D.C. on Thursday about the need for “revival” in America complete with “tent revivals” full of people demanding reform.

He suggested during the event that the debate about legalizing same-sex marriage is the result of a “moral crisis” in the country: “Don’t always look to Washington to solve anything. In fact, the moral crisis we have in our country, there is a role for us trying to figure out things like marriage, there’s also a moral crisis that allows people to think that there would be some sort of other marriage.” 

I suggest that denial of rights under the 14th Amendment to human beings who love each other is a result of moral crisis.

ntodd

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

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You Only Give Me Your Funny Paper

Because Europeans use a lot of dollar coins, and we don't have any coins in the US:

Sen. David Vitter (R-LA) filed a budget amendment intended to keep American dollars printed as paper currency – instead of minting fancy, European-style coins.

The Louisiana Republican objected to a proposal by Senate Budget Committee Chairman Mike Enzi (R-WY), who wants to facilitate the move toward dollar coins as a potential budget-cutting measure.

Doesn't Vitter realize that paper currency is clearly unconstitutional per Article I, Section 8, Clause 5?  Congress only has the power to COIN money, duh.

ntodd

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

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Wednesday, March 25, 2015

Licensed Treason

Paul Campos on Treason Flag license plate:

There’s a perfectly constitutional way for Texas not to allow people to feature confederate flags on the state’s license plates, which is not to sell the right to advertise their political beliefs on those plates to anyone to begin with. But that would require ever-so slightly raising some tax rate or another to make up for the lost revenue, so the state would rather try to violate the First Amendment.

Didn't I say that?

TX can easily bypass this by not allowing 3rd party designs, methinks.  They're under no obligation to do that.

Why yes, yes I did.

ntodd

March 25, 2015 in Constitution, Schmonstitution | Permalink | Comments (2) | TrackBack

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Tuesday, March 24, 2015

Presidential Citizenship Trivia

In articles discussing Cruz's Article II, Section 1 eligibility I keep seeing "8 of the first 9 presidents" were born as British subjects.  Yes, Van Buren was born as an "American" in the sense we'd declared independence.  

Yet the first president born after the Constitution and the NBC clause was in operation, which I think is a more important dividing line, was #10, John Tyler (who was the first to have impeachment articles introduced in the House).  And the last to be born post-Independence but pre-Constitution was #12, Zachary Taylor.

The first to be assailed by Birthers?  #21, Chester A Arthur of Vermont.

And that's all I've got to say about that.

ntodd

March 24, 2015 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Monday, March 23, 2015

No Contraception Without Representation!

We all think ourselves happy under Great Britain. We love, esteem, and reverence our mother country, and adore our King.

 - James Otis, 1764

Otis, of course, went kinda crazy in the end:

While speaking today with American Family Radio host Kevin McCullough, who falsely claimed that “Obamacare makes abortion taxpayer funded,” Huckabee baselessly charged that the mandate covers “abortifacients.”

Huckabee said that the mandate represents such a threat to freedom that it is similar to the actions of the British government that sparked the American Revolution: “When I go back to American history, that’s why the American revolution started. You had a government that became a tyranny and that government began to tell people what limitations of their belief could be.”

I suppose it wouldn't help to observe the government Colonials complained about didn't allow them any representation--that was indeed central to Otis' point about taxation.  You know, in contrast to our current system that doesn't even ask anti-choicers to believe the same things Obama or I do.

Maybe the Huckster shouldn't tread on women's IUDs...

ntodd

March 23, 2015 in Constitution, Schmonstitution, Soaking In Patriarchy | Permalink | Comments (0) | TrackBack

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America's First Freedom?

Regular readers might recall that I'm a card-carrying member of the NRA as well as the ACLU (sometimes I even pay the dues to these orgs after the 17th renewal notice).  I also belong to a couple pro-RKBA groups online.  And I agree with the ruling in Heller, et al.

My NRA publication of choice is American Hunter.  No, I don't hunt, but when the kids are old enough the plan is we all will learn responsible hunting for a variety of reasons.  I do not read America's 1st Freedom.  I hate that formulation, and was reminded of it today by a post on FB.

Now, I won't be so glib as to suggest that bearing arms is actually our SECOND Freedom simply because of where it falls in the ratified BoR (it's all the way down at 16th in VT's Declaration of Rights).  But I will say that given our history, an individual right to arms seems less important than the amendment preceding.

Our first line of defense against tyranny is actually speech and all its attendant rights (assembly, petition for redress, etc).  Consider the beginning of the Revolutionary Era.  

Petitions and boycotts in response to the Stamp Act, which went into effect on March 22, 1765, and was repealed without resort to arms.  Even various Tea Parties were, while destructive protests, still effective in rousing the population without gun battles.  

Our Declaration of Independence contained a litany of abuses, including several about standing armies, but nothing about infringements on the RKBA, despite actual examples of confiscation (which actually was less worry to Colonials than emancipation of their slaves).  Lots more about corporate tax breaks, unrepresentative government, and intrusions into our home lives.  Regardless, one might say America's truly first freedom was 'life' according to Jefferson's quill.

All the while, even with clouds of gunpowder choking people in '75, Americans were engaging, with considerable success, in nonviolent protests for the most part to assert their rights as Englishment, not as rebels trying to overthrow their rightful government.  It was only after being branded rebel did they, after even more debate, finally cut their bonds with the Mother Country.  And they did that not through individual actions, but rather through concerted action by Militias and eventually an Army.

Even when you consider the destruction of slavery, it was exercise of the First Amendment that got everything started first.  Without Quakers and other abolitionists, people like Lincoln might never have come around, and the slaveholders never would have felt the sting of being on the wrong side of history and morality enough to engage in treason.

And, of course, people defending the Second Amendment today are using...their First Amendment rights to do so.  I'm not saying the RKBA isn't important, and sometimes even necessary from certain points of view (never in my mine, that's a separate issue), but it is generally a last resort, and most certainly not your First Freedom.

ntodd

March 23, 2015 in Constitution, Schmonstitution, RKBA | Permalink | Comments (0) | TrackBack

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Give My State Liberty

The cry, "to arms," seemed to quiver on every lip, and gleam from every eye!

 -  William Wirt, Sketches of the life and character of Patrick Henry (1817)

 

So Patrick Henry gave a famous speech about liberty and death on this date in 1775.  In all likelihood, what we know of the speech is not entirely accurate, but rather a reconstruction presented to us third-hand through Judge St George Tucker and William Wirt.

Here's the latter complaining about his project to write about the renowned orator 16 years after the man's death:

The incidents of Mr. Henry's life are extremely monotonous. It is all speaking, speaking, speaking. 'Tis true he could talk:—"Gods! how he could talk!" but there is no acting "the while." From the bar to the legislature, and from the legislature to the bar, his peregrinations resembled, a good deal, those of some one, I forget whom,—perhaps some of our friend Tristram's characters, "from the kitchen to the parlour, and from the parlour to the kitchen."

And then, to make the matter worse, from 1763 to 1789, covering all the bloom and pride of his life, not one of his speeches lives in print, writing or memory. All that is told me is, that, on such and such an occasion he made a distinguished speech. Now to keep saying this over, and over, and over again, without being able to give any account of what the speech was,—why, sir, what is it but a vast, open, sun-burnt field without one spot of shade or verdure?

My soul is weary of it, and the days have come in which I can say that I have no pleasure in them.

It seems the man gave good, fiery speech that made quite an impression, but nobody really remembered much detail.  Reportedly Henry's fellow Virginian, Thomas Jefferson, said of him:

His eloquence was peculiar, if indeed it should be called eloquence, for it was impressive and sublime beyond what can be imagined. Although it was difficult, when he had spoken, to tell what he had said, yet, while speaking, it always seemed directly to the point. When he had spoken in opposition to my opinion, had produced a great effect, and I myself had been highly delighted and moved, I have asked myself, when he ceased, 'What the devil has he said?' and could never answer the inquiry...

His pronunciation was vulgar and vicious, but it was forgotten while he was speaking. He was a man of very little knowledge of any sort. 

Such a contrast to contemporary politics where we have vapid pols who know nothing, say nothing meaningful or inspiring, and everything is captured on YouTube and elsewhere online for us to parse and argue about.  Anyway, for all his passionate speechifying about liberty during the Revolutionary Era, he lead the anti-federalist opposition to our proposed Constitution and weren't no democrat:

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

Henry feared enslavement by government, and claimed to hate slavery, but

Among ten thousand implied powers which they may assume, they may, if we be engaged in war, liberate every one of your slaves if they please...Have they not power to provide for the general defence and welfare? May they not think that these call for the abolition of slavery? May they not pronounce all slaves free, and will they not be warranted by that power?

This is no ambiguous implication or logical deduction. The paper speaks to the point: they have the power in clear, unequivocal terms, and will clearly and certainly exercise it. As much as I deplore slavery, I see that prudence forbids its abolition. I deny that the general government ought to set them free, because a decided majority of the states have not the ties of sympathy and fellow-feeling for those whose interest would be affected by their emancipation. The majority of Congress is to the north, and the slaves are to the south.

It's a puzzle that this Virginian focused so much on states' and not individual rights.  Whatever, he's the perfect hero for President Ted Cruz:

Speaking at Liberty University in Virginia, Cruz told students that the United States needed a president who would stand “unapologetically with Israel” and a president who would “honor the Constitution” by defeating radical Islamic terrorism.

Go back to the Republic of Texas, moran.

ntodd

March 23, 2015 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Treason In Defense Of Slavery Gets Its Day In Court

Them's fightin' words:

The U.S. Supreme Court on Monday takes up a free speech case on whether Texas was wrong in rejecting a specialty vehicle license plate displaying the Confederate flag - to some an emblem of Southern pride and to others a symbol of racism.

The nine justices will hear a one-hour oral argument in a case that raises the issue of how states can allow or reject politically divisive messages on license plates without violating free speech rights. States can generate revenue by allowing outside groups to propose specialty license plates that people then pay a fee to put on their vehicle.

The group Sons of Confederate Veterans says its aim is to preserve the "history and legacy" of soldiers who fought for the pro-slavery Confederacy in the U.S. Civil War. Its proposed design featured a Confederate battle flag surrounded by the words "Sons of Confederate Veterans 1896." The flag is a blue cross inlaid with white stars over a red background.

Been keeping an eye on this since last summer.  I'm still a bit puzzled by the whole thing, though I understand that Texas wants to make money and allow 3rd party designs.  I'm not convinced the state is obligated to allow all designs--even those so tasteful as the SCV's--but I don't care enough at the moment to examine the parties' arguments.

ntodd

March 23, 2015 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Sunday, March 22, 2015

Zombie Voting

Michigan is apparently once again pushing their congressional district plan for awarding electoral votes.  As I said before:

Yeah, I guess Michigan Republicans are proposing to "rig" the Electoral College results, but States can--and have--done lots of different things over the centuries to award votes.  It's their constitutional prerogative.

That said, it's a shitty thing to do and gets to the heart of Republican anti-democratic tendencies.  Suppress the vote by certain people, gerrymander to make your representation disproportionate, get your guy enough electoral votes by virtue of your district advantage to tip the balance, etc.  A whole lot has to change to prevent further erosion of our franchise.

Whether it's this approach or the National Popular Vote scheme, I'm generally down on the state-by-state tinkering.  That said, there is an interesting potential wrinkle:

[A congressional district plan] will be a boon to third parties - that now would be competitive for electoral votes. [A state adopting it] will be a magnet for third parties and special interests. Minor parties will be strengthened and the major parties weakened. The net effect will be the weakening of the two party system that now plays such a critical role in establishing consensus and stability in state politics.

I wonder what it would look like if a state like CA went the district route.  What if the Greens targeted, say...the 35th Congressional District.  Give up on the presidential race for now and just build infrastructure in the LA area, work hard to get a Green in Congress.  Push CA away from WTA, and ultimately win an Electoral Vote.  Then move on to another district, showing people disenchanted with Dems that they really wouldn't be "wasting" their votes.  Implement IRV...who knows, we might actually give non-duopoly candidates a chance to make a real difference.

Anyway, I'd still prefer something more uniform on a national--read constitutional--level so states can't "experiment" with other ways to disenfranchise people.

ntodd

March 22, 2015 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Friday, March 20, 2015

But The Card Says 'Mincoln'

Lemieux has made his ruling:

You may have seen Will Baude’s op-ed arguing that Obama could just ignore a Supreme Court ruling that providing subsidies on the federally established exchanges for everyone but the four plaintiffs. You may have thought that it sounded like a #slatepitch with a suspicious agenda. If so, I think you were right:

The most favorable historical analogy for Baude’s argument would be Abraham Lincoln’s response to Dred Scott. Lincoln argued that the court’s infamous 1857 ruling that Congress could not ban slavery in the territories, and that blacks were by definition not American citizens, was binding on the parties to the suit, but not as a constitutional rule. These weren’t just empty words, either. When he became president, Lincoln pointedly ignored Dred Scott, signing legislation banning slavery in the territories and ordering his attorney general to issue passports to free blacks.

But as a justification for Obama evading a bad ruling in King v. Burwell, Lincoln’s actions don’t get you very far. Everything about Dred Scott was unusual, and actions that are justified in fighting a moral evil on the scale of chattel slavery are not necessarily justified in other contexts...

True enough.  But then, there was a lot of disagreement not about Dred Scott itself, but rather the dicta  [I originally wrote this during the GOP primaries in 2011]:

Opines Gingrich: For Lincoln, it was not just slavery at stake but American self-government, for if the Court became the last word in American politics, then it would mean a surrender of self-government.

Yet he seems to miss the very next sentence:

Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink to decide cases properly brought before them, and it is no fault of theirs if others seek to turn their decisions to political purposes.

So Lincoln wasn't assailing the Court as an arbiter of constitutionality, and when considered along with his discussion of overruling, it doesn't strike me that he was sounding alarms about "activist judges" so much as noting that the political process never stops.  Indeed, that's completely consistent with Lincoln's expressed respect for the Constitution and the Judiciary's role therein.  As he said after the ruling:

We believe, as much as Judge Douglas, (perhaps more) in obedience to, and respect for the judicial department of government. We think its decisions on Constitutional questions, when fully settled, should control, not only the particular cases decided, but the general policy of the country, subject to be disturbed only by amendments of the Constitution as provided in that instrument itself. More than this would be revolution. But we think the Dred Scott decision is erroneous. We know the court that made it, has often over-ruled its own decisions, and we shall do what we can to have it to over-rule this. We offer no resistance to it.

One way to overcome a decision is for the Court rule differently in a subsequent case (I'm sure that's fine with Newt when the later ruling affirms his beliefs, as opposed to say...a Brown contrary to Plessy), as Lincoln reasonably observes.  But still, he's right that Lincoln and the Republican Congress did view the meat of Dred Scott as obiter dictum, in essence saying the Taney Court merely made a passing comment about the constitutionality of the MIssouri Compromise and did not lay down the law.  So during the Civil War Lincoln's State Department issued a passport to an African-American (1861) and Congress forbade slavery in Federal territories (1862).

Interestingly enough, in the latter case:

Opponents of the measure raised various objections...but no one mentioned the Dred Scott decision throughout the debate.

An odd omission if Dred Scott really were the law of the land. But no matter, Congress can always try to pass new legislation that it deems to meet constitutional muster, as it did. 

One big difference between Lincoln's opportunities and Obama's is the latter enjoyed Republican (super)majorities that were presumably more sympathetic to his agenda than the former has now.

ntodd

March 20, 2015 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Wednesday, March 18, 2015

As Long As FEMA Endures

BooMan and others think this will checkmate Deniers:

Rick Scott may have found a way of making climate denial state policy, but the Florida governor is going to have a hard time ignoring this. The Federal Emergency Management Agency (FEMA) just updated its guidelines for state disaster preparedness plans, and under the new policy, plans will only be approved — and federal funds appropriated —  if they address the threats of climate change.

“The challenges posed by climate change, such as more intense storms, frequent heavy precipitation, heat waves, drought, extreme flooding, and higher sea levels, could significantly alter the types and magnitudes of hazards impacting states in the future,” the guidelines explain. They direct states to”assess vulnerability, identify a strategy to guide decisions and investments, and implement actions that will reduce risk, including impacts from a changing climate.”

InsideClimateNews argues that the FEMA, intentionally are a not, has delivered a trump card for climate advocates frustrated with politicians’ refusal to acknowledge the reality of climate change. FEMA allocates an average of $1 billion per year to disaster preparedness programs, reporter Katherine Bagley explains — funds that states won’t be privy to if they refuse to comply with the guidelines.

Indeed, in the Golden Rehnquist Era, the Feds had a clear power to deny funds to states that didn't play ball, but now that's coercion tantamount to demanding John Roberts use his allowance to buy broccoli.  No it doesn't really make any logical sense, but I'm sure President Tom Cotton's SCOTUS appointees will find that disaster relief is a constitutional mandate.

ntodd

March 18, 2015 in Constitution, Schmonstitution | Permalink | Comments (1) | TrackBack

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Tuesday, March 17, 2015

Yes, Virginia, Cruz Is Eligible To Be President

I know mocking birthers is passe, but it's still a hobby of mine.  Since I'd mentioned that recent HLR analysis (Senator Joe Mc...er, Ted Cruz is the primary focus), figured I should share Celebrated Birther Attorney Mario Apuzzo's high-larious "rebuttal" (via OCT, natch):

The authors’ argument suffers from the fallacy of bald assertion.  They provide no convincing evidence for their position on who is included as an Article II natural born citizen.  They do not examine what was the source of the Framers' definition of an Article II natural born citizen, let alone what was the definition of a natural born citizen when the Framers drafted and adopted the Constitution and when it was eventually ratified.  They ignore so much of the historical and legal record in coming to their bald conclusions. 

He, of course, falls back on "the one and only common law definition" found in Minor.  Yeah, um...once again, nope.  Not surprisingly, the Vaunted Legal Scholar also can't read naturalization law and history.  So it's truly a puzzle as to why these guys can never, ever win a case.

I will never, ever tire of this.

ntodd

March 17, 2015 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Monday, March 16, 2015

Jemmy Day

The Father of the Constitution, 264 years young:

Don't go changing, man!

ntodd

March 16, 2015 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Sunday, March 15, 2015

Natural Lies

Via Obama Conspiracy Theories, I see there's an article over at Harvard Law Review about the meaning of "natural born citizen."  Yeah, I already said all that.

ntodd

March 15, 2015 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Thursday, March 12, 2015

Selma Who?

We need more marches (and more than marches):

After this weekend's gathering in Selma, Alabama, where former President George W. Bush stood and applauded a call for Congress to restore the Voting Rights Act with a bipartisan bill, it was hard not to wonder when the Republican majority would finally agree to tackle the issue.

According to Senate Majority Whip John Cornyn (R-Texas), the answer appears to be never.
Cornyn said that the push to fix the so-called "pre-clearance" provision, which was struck down by the Supreme Court in 2013, is an effort to "drive divisions and create phony narratives." Cornyn, who is responsible for scheduling floor votes, said he does not believe Congress should take up legislation to amend the act. He is the first top GOP Congressional leader to publicly say so.
When Yahoo News reminded the Republican leader about "places where people are having difficulty voting," Cornyn replied, "I think Eric Holder and this administration have trumped up and created an issue where there really isn't one."

Indeed, just a trumped up issue, not like voter fraud.

ntodd

March 12, 2015 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Wednesday, March 11, 2015

My First Act As Preznit Would Be To Nuke Congress

j/k:

Here are Graham's exact words:

And here's the first thing I would do if I were president of the United States. I wouldn't let Congress leave town until we fix this. I would literally use the military to keep them in if I had to. We're not leaving town until we restore these defense cuts. We are not leaving town until we restore the intel cuts.

Graham would use the military to force members of Congress to not just vote on the bill — but to pass it. Graham didn't say "until I get an up-or-down vote on restoring defense cuts." He said "until we restore these defense cuts."

In other words, Graham is proposing that his first act as president would be to use the military to force the legislative branch to pass his agenda.

Further:

If he was being remotely serious...this proposal is dramatically different from anything that is actually legal — such as, say, the Senate leadership using the Capitol police or sergeant-at-arms to ensure that the Senate has a quorum.

That happened in 1988, when Democratic leadership had the Capitol police carry Republican Senator Bob Packwood feet-first into the Senate chamber to ensure a quorum. Harry Reid threatened to use similar methods more recently when he was Senate majority leader.

But what the Senate did in 1988 was compel senators' presence, not compel them to vote a certain way. It was permitted by the Senate rules, which say that "a majority of the Senators present may direct the Sergeant at Arms to request, and, when necessary, to compel the attendance of the absent Senators" to reach a quorum. And it was the Senate policing itself, and thus did not violate the separation of powers.

Indeed.  And I'll just note that the Constitution itself says:

Each House...may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.

Fucking Federalists...

ntodd

March 11, 2015 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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The Final Act Of Ratification Is Not Delegated

Why yes, I did find a book about treaty making written in 1916.  I like the section on the Executive's ratification power, particularly the list of treaties that presidents did not ratify after the Senate's advice and consent.

ntodd

March 11, 2015 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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The Vaguely Unconstitutional Logan Act

I've seen lots of confident assertions online that the Barely-literate GOP Letter is clearly a Logan violation.  I'm much more confident that it is not, that the DoJ will never pursue charges, and that the Act itself is unconstitutional.

I find it instructive that there have been absolutely no convictions under the Act in it's 226-year history.  This, of course, means there is almost no case law.

One favorite ruling I've already alluded to is United States v. Curtiss-Wright (1936).  The problem with citing this one is that SCOTUS' decision doesn't address the Logan Act at all, and is fundamentally about whether the Executive has wide latitude in foreign affairs without Congressional delegation.

Beyond that, I found an interesting district court case from 1964 wherein DEFENDANTS tried to use the Act as a way of undermining the plaintiff's standing in a lawsuit:

One line of attack is that plaintiff procured the NIOC contract through the commission of federal criminal offenses. He is specifically charged by defendants with having violated five criminal statutes [including] the Logan Act...

The Logan Act makes it a crime for any citizen of the United States directly or indirectly to commence or carry on correspondence or intercourse with any foreign government or any officer or agent thereof "with intent * * * to defeat the measures of the United States."

Such evidence as there may be in this record of a violation of the Logan Act places in issue plaintiff's specific intent. That subjective circumstance would alone be sufficient to defeat this summary judgment motion, were the motion grounded only on a transgression of that statute.
...
Another infirmity in defendants' claim that plaintiff violated the Logan Act is the existence of a doubtful question with regard to the constitutionality of that statute under the Sixth Amendment. That doubt is engendered by the statute's use of the vague and indefinite terms, "defeat" and "measures." See United States v. Shackney, 333 F.2d 475, (2d Cir. 1964); Note, The Void-For-Vagueness Doctrine in the Supreme Court, 109 U.Pa.L.Rev. 67 (1960); E. Freund, The Use of Indefinite Terms in Statutes, 30 Yale L.J. 437 (1921). Neither of these words is an abstraction of common certainty or possesses a definite statutory or judicial definition.

Surely the GOP Doofuses had intent to defeat measures of the United States, right?  Correspondent inference aside, I'm not sure the letter in question really demonstrates it.  

Was there any sense of negotiation contained therein?  Not that I could see.  

It was ignorant, misguided, and politically unsound--no argument there.  Yet all I read was a not-unreasonable observation that if the Senate doesn't like the deal (unstated: and actually received it from the president for advice and consent), the Senate wouldn't approve it.  

The burden of proof in court is slightly higher than on social media.  I'm fairly certain that no prosecutor, however good, would be able to prove intent beyond a reasonable doubt.

Just the fact that we can debate the intent at all shows how shaky a case would be.  What's more, there have been myriad examples of both private citizens and legislators engaging in various forms of contact with foreign leaders in myriad contexts.  That includes Senators Sparkman and McGovern, Candidate Jesse Jackson, Congresswoman Nancy Pelosi, and Senator/Candidate Obama.  Sometimes the Logan Act was tossed around, but no indictments materialized, so why would there in this case?

It's precisely the ambiguity present in our current arguments that also make the law itself questionable.  Justice Sutherland wrote in Connally v. General Construction Co (1926):

[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law. International Harvester Co. v. Kentucky, 234 U. S. 216234 U. S. 221Collins v. Kentucky, 234 U. S. 634234 U. S. 638.

Leaving aside jokes about the GOP Furrin Affairs Jeanasses and common intelligence, I find the above citation possibly ironic because Sutherland also wrote that 1936 opinion everybody is quoting out of context.

Bottom-line: there's so much vagueness and ambiguity in all aspects of the Great Letter Brouhaha that I'm convinced this stupid fucking petition will definitely be the worst act of clicktivism ever perpetrated.  And that is criminal.

ntodd

PS--Lawfare has more (h/t Diane Sweet).

March 11, 2015 in And Fuck..., Constitution, Schmonstitution | Permalink | Comments (2) | TrackBack