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Tuesday, February 09, 2016

Everybody Talks About The Weather, But Nobody Ever Legislates Anything About It

Nobody, except Congressman Halbert Paine, et al:

The Executive Documents and the Congressional Globe of the 41st Congress, 2d session, show that on December 14, 1869, Hon. Halbert E. Paine, Member of Congress from Wisconsin, introduced a bill to create a weather warning service under the Secretary of War. The Document accompanying this bill consisted of a Memorial of Prof. Increase A. Lapham of Milwaukee, Wis., entitled "Disasters on the Lakes," and comprised a record of the marine disasters on the Lakes for 1869.

The legislation finally enacted was the passage of a Joint Resolution, also introduced by Mr. Paine, which passed the House of Representatives February 2, 1870; the Senate on February 4, 1870; and was signed and approved by the President February 9, 1870. We may therefore conclude that the passage of the legislation establishing meteorological observations and reports in the United States was accomplished chiefly by the Hon. Halbert E. Paine upon the representations of Prof. I. A. Lapham.

No one has been more scrupulously careful than Abbe himself, as can be shown by documentary evidence, to give Professor Lapham the fullest measure of credit for the work done by him which practically ended with the enactment of the law which imposed upon the Secretary of War the task of organizing meteorological observations throughout the United States and the giving of notice on the northern Lakes and sea-board of the approach of storms.

When the Secretary of War sought to put these provisions of law into operation he endeavored to enlist the services and council of Lapham, Abbe, and others. Lapham declined but Abbe, whose work began with his Cincinnati Weather Bulletin, responded heartily and was appointed the assistant or meteorologist of General Albert J. Myer, chief signal officer of the Army, in charge of this work.

Thus, the National Weather Service was born.  And check out what Cleveland Abbe did, starting with his appointment as the first chief meteorologist, according to Popular Science Monthly (Jan 1888):

In this position, Professor Abbe, during 1871, organized the methods and work of the so-called 'probability' or study-room, in making weather maps, drawing isobars, ordering storm signals, etc., and dictated the published official tri-daily synopses and 'probabilities' of the weather. In the same year he began and urged the collection of lines of leveling, and in 1872, by laborious analysis, deduced the altitudes of the Signal-Service barometers above sea level.

He instituted in 1872, and reorganized in 1874, the work of publishing a monthly weather review, with its maps and studies of storms. He urged the extension of simultaneous observations throughout the world, as the only proper method of studying the weather; and, as General Myer distinctly avowed, the success of the negotiations of the Vienna Congress of 1874 was due to following his advice.

And he organized, in 1875, the work of preparing the material and publishing the 'Daily Bulletin of Simultaneous International Meteorological Observations.' Especially is the organization of the numerous state weather services of the country due to his advocacy, and to the letters sent by his advice by General Hazen to the governors of the states.

As chairman of the standard time committee of the American Metrological Society, and later delegate of the United States to the International Meridian and Time Conference, which met at Washington in October, 1884, Abbe took an active part in all those conferences, discussions and studies, which culminated in the adoption by the railroads of the United States of the present system of standard times.

The Bureau's legislative history is a little murky to me.  Rep Paine introduced two similar bills in December (HR579 on the 14th, HR602 on the 16th).  I can't find out what happened to them, but maybe they died in the Commerce Committee?  Perhaps they decided a joint resolution was more appropriate with such a modest authorization for an existing department.  Dunno.

Regardless, Paine asked for unanimous consent to introduce his resolution (H. Res. 143) on, appropriately enough, Groundhog Day, and it was quickly passed.  The Senate dealt with it in short order, and it was law by the 9th:

Be it resolved by the Senate and House of Representatives of the Unitted States of America in Congress assembled, That the Secretary of War be, and he hereby is, authorized and required to provide for taking meterological ohaervations at the military stations in the interior of the continent, and at other points in the States and Territories of the United States, and for giving notice on the northern lakes and on the sea-coast, by magnetic telegraph and marine signals, of the approach and force of storms.

We can see the motivation in the preamble to Paine's original bill:

Whereas the record of marine disasters on the northern lakes for the years eighteen hundred and sixty-eight and eighteen hundred and sixty-nine, shows that during the year eighteen hundred and sixty-eight one thousand one hundred and sixty-four casualties occurred, involving a loss of three hundred and twenty-one lives, and of property of the value of three million one hundred and fourteen thousand dollars, and that during the year eighteen hundred and sixty-nine one thousand nine hundred and fourteen casualties occurred, involving a loss of two hundred and nine lives, and of property of the value of four million one hundred and sixty thousand dollars;

and that in eighteen hundred and sixty-eight one hundred and five vessels, of the value of one million two hundred and seven thousand three hundred dollars were totally lost, and in eighteen hundred and sixty-nine, one hundred and twenty-six vessels of the value of one million four hundred and fourteen thousand two hundred dollars were totally lost;

and whereas scientific observations have already shown that the course of storms in the United States is generally from west to east, and made known their rate of progress, and the changes of the barometer which precede and accompany them;

and whereas a large proportion of the loss of life and property by marine disasters on the northern lakes might be avoided by timely notice to mariners of approaching storms;


Follows a similar development history to the UK's Met Office a little more than a decade earlier.  Makes a lot of sense, what with commerce, particularly maritime, being so important to both nations, with so many lives and dollars at risk.

Yet the Bureau was initially placed under the War Dept.  Apparently it was thought military discipline would be valuable to the service, though it was put in the Agriculture Dept in 1891, and finally moved to Commerce in 1940 (ordered by that tyrant, FDR, without any Congressional approval).

Anyway, the NWS is there for the benefit of all (one might say for the general Welfare).  Even if it's not mentioned in the Constitution...


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

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Sunday, February 07, 2016

Sovereignty, Schmovereignty

I don’t recognize the United States government as even existing.

 - Cliven Bundy

Today is the 221st birthday of the 11th Amendment.  PAR-TAY!!!eleven!!!!11!

I'm guessing it's not one most people are intimately familiar with, but it has quite a fascinating history:

Eleventh Amendment jurisprudence has become over the years esoteric and abstruse and the decisions inconsistent. At the same time, it is a vital element of federal jurisdiction that "go[es] to the very heart of [the] federal system and affect[s] the allocation of power between the United States and the several states." Because of the centrality of the Amendment at the intersection of federal judicial power and the accountability of the States and their officers to federal constitutional standards, it has occasioned considerable dispute within and without the Court.

The action of the Supreme Court in accepting jurisdiction of a suit against a State by a citizen of another State in 1793 provoked such angry reaction in Georgia and such anxieties in other States that at the first meeting of Congress following the decision the Eleventh Amendment was proposed by an overwhelming vote of both Houses and ratified with, what was for that day, "vehement speed."Chisholm had been brought under that part of the jurisdictional provision of Article III that authorized cognizance of "controversies ... between a State and Citizens of another State."

At the time of the ratification debates, opponents of the proposed Constitution had objected to the subjection of a State to suits in federal courts and had been met with conflicting responses—on the one hand, an admission that the accusation was true and that it was entirely proper so to provide, and, on the other hand, that the accusation was false and the clause applied only when a State was the party plaintiff. So matters stood when Congress, in enacting the Judiciary Act of 1789, without recorded controversy gave the Supreme Court original jurisdiction of suits between States and citizens of other States. Chisholm v. Georgia was brought under this jurisdictional provision to recover under a contract for supplies executed with the State during the Revolution. Four of the five Justices agreed that a State could be sued under this Article III jurisdictional provision and that under section the Supreme Court properly had original jurisdiction.

The Amendment proposed by Congress and ratified by the States was directed specifically toward overturning the result in Chisholmand preventing suits against States by citizens of other States or by citizens or subjects of foreign jurisdictions.

Speaking of inconsistent rulings, how about a little bit from Mr Tony Originalist Scalia?  First, Blatchford v. Native Village of Noatak (1991):

Despite the narrowness of its terms, since Hans v. Louisiana, 134 U. S. 1 (1890), we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms: that the States entered the federal system with their sovereignty intact...

Here Scalia continues playing his revisionist Eleventher trumpet to the tune of Rehnquist's revived hyper-federalism.  As noted by Mark Strasser in FSU Law Review:

The need for one effective federal law could not be satisfied if states were able to avoid suits in federal court by pleading sovereign immunity. As the Framers realized, there would be, at most, a confederation of states rather than one Union, if large portions of state sovereign immunity had not been surrendered when states ratified the Constitution; a confederation was exactly what the Framers sought to replace when arguing for the ratification of the Constitution.

The current sovereign immunity interpretation offered by the Court does not represent the intentions of the Framers, claims to the contrary notwithstanding. It may well be that at least some of the Framers did not believe that nonconsenting states should be subject to federal court jurisdiction on diversity grounds; however, a requirement that states must always give permission to be sued...federal court would have been too close to the bad experience under the Articles of Confederation ever to have been acceptable.

But then there's Scalia VOPA v Stewart (2011):

We do not doubt, of course, that there are limits on the Federal Government’s power to affect the internal operations of a State...But those limits must be found in some textual provision or structural premise of the Constitution. Additional limits cannot be smuggled in under the Eleventh Amendment by barring a suit in federal court that does not violate the State’s sovereign immunity.

Abstruse, indeed.  Tenthers and Eleventhers try to construe the plain text and history of the Constitution to grant way too much sovereignty to the several States.  Writes Aman Pradhan in NYU's Legislation and Policy Journal:

Sovereign immunity frustrates popular sovereignty—the principle that sovereignty resides in the people and that governments are subject to the rule of law—by forcing individuals to file often-ineffective suits against state officials rather than against the states themselves.

Second, it limits the state and federal governments’ attempts to legislate in concert in such areas as environmental law by reducing state accountability and undermining the reach of citizen suits. Reducing state accountability tends to create a disincentive for Congress to delegate regulatory authority to the states.

Third, these drawbacks cannot be justified in the name of the federalist concern for state autonomy. The Eleventh Amendment only grants states immunity from suit; it does nothing to protect their ability to govern. Finally, it may even be counterproductive, as inconsistent enforcement gives the federal government incentive to consolidate, rather than delegate, power.

Tell that to Patrick Henry, man!  Obviously, popular sovereignty carries its own risks to liberty, which is why we have republican government, not direct democracy.  As does state sovereignty, which is why we have a federal system, not a confederation.  

Yet one must remember that the People are, in fact, the ultimate sovereign.  Perhaps we can take inspiration from the vehement reaction to Chisolm and make another clarifying change to our Constitution in the wake of Citizens United.  Or maybe a couple Obama appointments will allow SCOTUS to apply a fix ala Ex parte Young.

Whatever.  Scalia might not believe in Holmes' living constitution, but we still have a living republic two centuries after the Framers first tinkered with their flawed document.  We'll get good at this stuff eventually...


February 7, 2016 in Constitution, Schmonstitution | Permalink | Comments (2)

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Friday, February 05, 2016

Happy Birthday, Crazy James Otis!

There's sort of Godwinian kind of law regarding taxes.  The longer a debate goes on, there's a probability approaching one that somebody will cry, "no taxation without representation!"

Uh, yeah, and do you not have Representatives and Senators in the Congress?  Were you prevented from voting in national, state and local elections in 2008, 2010, 2012 (despite the GOP's best efforts)?  It's certainly true that arbitrary authority extracting taxes without our consent is bad, as James Otis wrote in 1764:

The very act of taxing exercised over those who are not represented appears to me to be depriving them of one of their most essential rights as freemen, and if continued seems to be in effect an entire disfranchisement of every civil right.

But the whole point is that we do grant the authority to tax for our collective good, not that we rebelled over taxation per se.  Way back in the days of revolution, people recognized that shit had to be paid for, and that our primary beef was that we wanted to be able to direct and limit that responsiblity of government.

Same goes for all the insurrectionist fever going around.  If we lived in a nation with no popular sovereignty and no republican structure to mitigate the worst effects of government, then yeah, maybe we should rebel over Obama's drone war or healthcare mandates or whatever.

Yet we have free elections, representation and rights to demand action from our government (we even retain our natural rights to engage in acts of civil disobedience, so long as we're prepared to accept the consequences).  It ain't easy, but it's a far sight better than picking up our muskets every time we don't agree with policy.


February 5, 2016 in Constitution, Schmonstitution | Permalink | Comments (2)

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Wednesday, February 03, 2016

The Commotions Are A Proof That The People Have Liberty Enough

Let the lovers of peace add their efforts in increasing the energy of a federal government.

 - Harrington [Benjamin Rush]: To the Freemen of the United States, 30 May 1787

General Benjamin Lincoln wrote to George Washington on February 22, 1787:

The second of February I was induced to reconnoiter Shays' post on his right, left, and rear. I had received information by General Putnam before, that we could not approach him in front. I intended to have approached him on the third inst.

This reconnoitering gave him an alarm. At 3 o'clock in the morning of the third, I received an application from Wheeler, that he wished to confer with General Putnam. His request was granted. He seemed to have no object but his personal safety. No encouragement being given him on this head, he returned a little after noon.

In the evening of the same day, I was informed that Shays had left his ground, and had pointed his route towards Petersham in the county of Worcester, where he intended to make a stand as a number of towns in the vicinity had engaged to support him. Our troops were put in motion at 8 o'clock.

The first part of the night was pleasant, and the weather clement, but between two and three o'clock in the morning, the wind shifting to the westward, it became very cold and squally, with considerable snow. The wind immediately arose very high, and with the light snow which fell the day before and was falling, the paths were soon filled up, the men became fatigued, and they were in a part of the country where they could not be covered in the distance of eight miles, and the cold was so increased, that they could not halt in the road to refresh themselves. Under these circumstances they were obliged to continue their march.

We reached Petersham about 9 o'clock in the morning exceedingly fatigued with a march of thirty miles, part of it in a deep snow and in a most violent storm; when this abated, the cold increased and a great proportion of our men were frozen in some part or other, but none dangerously. We approached nearly the center of the town, where Shays had covered his men; and had we not been prevented from the steepness of a large hill at our entrance, and the depth of the snow, from throwing our men rapidly into it we should have arrested very probably one half this force; for they were so surprised as it was that they had not time to call in their out-parties, or even their guards. About 150 fell into our hands, and none escaped but by the most precipitate flight in different directions.

Thus that body of men who were a few days before offering the grossest insults to the best citizens of this commonwealth, and were menacing even government itself, were now nearly dispersed, without the shedding of blood but in an instance or two where the insurgents rushed on their own destruction.

Shays himself wrote to Lincoln the week before:

unwilling to be any way accessary to the Shedding of Blood and Greatly Desirous of Restoring
Peace and Harmony to this Convulsed Commonwealth We Propose that all the troops on the Part of
Government, be Disbanded immediately, and that all and Every Person who has been acting or any way
Aiding or Assisting in any of the Late Risings of the People May be Indemnified in their Persons and Properties...

So in all fairness to the Bundy Band of Bumbling Insurrectionists, they were engaged in an age-old American tradition of being whiny losers.


PS--Happy Birthday, Income Tax!

February 3, 2016 in Constitution, Schmonstitution | Permalink | Comments (0)

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Thursday, January 28, 2016

All Hat And No Grazing Fees

Papa Bundy:

This will be a wake-up call to America. … This whole battle is over a constitutional issue where the federal government has no rights within the state … You know, this is a total disaster to be happening in America, where we have, I’m a-guessin’ federal people killin’ innocent people. I’ll tell you one thing, my sons and those who were there were there to do good, no harm was intended, they would never threaten anybody, they was tryin’ to teach people about the Constitution …

Too be fair, that's not too far from what our Revolution was about: Colonials just wanted to protect their rights as Englishmen by educating the Tories, and the best way to do that is taking up arms.  That and, you know, winning.


January 28, 2016 in Constitution, Schmonstitution | Permalink | Comments (0)

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No Thing Of A Controvertible Nature Was Studiously Avoided

In light of the Bundy Rebellion's natural implosion, figured I should steal some old content on miltias.  Because these self-styled militiamen, defenders of liberty and the Constitution, seem to have missed quite a bit about the whole thing.

The evolution of militias is actually a pretty fascinating one, with their fortunes and support waxing and waning as societies and governments changed.  Certainly English history informed Colonial perspective, but so did the Founding generation's more immediate experience.

I'll repeat that these folks didn't explicitly intend militias be used to fight a tyrant's standing army, but rather as popular armed defense of their liberty that would obviate, as far as possible, the need for professional soldiery.  Consider that, after demanding liberty or death in 1775, Patrick Henry supported a resolution that began:

Resolved, that a well regulated militia, composed of gentlemen and freemen, is the natural strength and only security of a free government; that such a militia, in this colony, would forever render it unnecessary for the mother country to keep among us, for the purpose of our defence, any standing army of mercenary soldiers, always subversive of the quiet, and dangerous to the liberties of the people, and would alleviate the pretext of taxing us for their support.

Pretty straightforward.  Let us address the inevitable problem of security from foreign invaders and those nasty people whose land we're stealing by arming our citizenry so Parliament and the Crown don't feel obligated to station troops here and raise taxes on us.  Even with the clash of resounding arms ringing in his ears, Henry's motion to raise up a militia didn't call for fighting Red Coats, and his fellow Virginian's resolution to declare independence was still more than a year off.

As yet most Americans simply wanted to exercise their rights as free British subjects, entitled to liberties guaranteed by the English constitution.  One way to do that was by providing for their own collective defense.

Another revolutionary, who agitated more forcefully for armed resistance as his home of Massachusetts was already under the gun, was John Adams.  While he was overseas during the Constitutional Convention, he did know a little bit about constitutions, having written his state's.  As such, he was in good position to write about these things in A Defence of the Constitutions (1787)

[The militia] must all obey the sovereign majority, or divide, and part follow the majority, and part the minority. This last case is civil war; but, until it comes to this, the whole militia may be employed by the majority in any degree of tyranny and oppression over the minority. The constitution furnishes no resource or remedy; nothing affords a chance of relief but rebellion and civil war. If this terminates in favor of the minority, they will tyrannize in their turn, exasperated by revenge, in addition to ambition and avarice; if the majority prevail, their domination becomes more cruel, and soon ends in one despot. It must be made a sacred maxim, that the militia obey the executive power, which represents the whole people in the execution of laws.

To suppose arms in the hands of citizens, to be used at individual discretion, except in private self-defence, or by partial orders of towns, counties, or districts of a state, is to demolish every constitution, and lay the laws prostrate, so that liberty can be enjoyed by no man; it is a dissolution of the government. The fundamental law of the militia is, that it be created, directed, and commanded by the laws, and ever for the support of the laws.

He really hits on the biggest problem with the insurrectionist theory of militias: if they are given free rein to fight whatever they view as tyranny, then no political compact can ever last for long (just look at threats of rebellion and secession over healthcare, of all things) and we'd be almost constantly devolving into civil war as England had done.  We didn't overthrow British tyranny in favor of anarchy with armed warlords (hello, Somalia).  No, we exercised extra-constitutional rights to sever ties to an unrepresentative regime, then established a popular government whose republican structure and institutional stability would preserve our liberties.  A militia is there to uphold the law, not to rebel against it.

Now it's true that anti-Federalists were concerned about Congress' power to raise armies and control militias, so Federalists like James Madison had to do something to allay their fears so the Constitution would be ratified.  He wrote in Federalist 46 (1788)

Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of.

The bottom line was, yes, standing armies are dangerous and if you're really worried, you should know that our democratic institutions will make their employment for tyranny unlikely, and whatever, everybody will have guns and outnumber professional soldiers, so quit whining and pass this thing.  His argument, though not entirely convincing, won the day.

What's more, he really echoes the 17th century writings Englishman Henry Neville.  He doesn't appear to be a direct influence on the Framers, but he was a follower of Whig writer James Harrington and channeled Machiavelli, both of whom were.  Neville wrote in Plato Redivivus (1681):

[Democracy] is much more powerful than aristocracy; because the latter cannot arm the people, for fear they should seize upon the government; and therefore are fain to make use of none but strangers and mercenaries for soldiers.

Democracies don't fear arming the People because, of course, democracies and their militias ARE the People.  We thus only have to fear ourselves.  Or, apparently, our neighbors...


January 28, 2016 in Constitution, Schmonstitution | Permalink | Comments (0)

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Saturday, January 23, 2016

Lunching With Franklin

The Constitution only gives people the right to pursue happiness. You have to catch it yourself.

 - Not Benjamin Franklin

Saw that alleged Franklin quotation on Bruce "I'm Just A Neutral Guy Trying To Do What's Right For Vermont's Billionaires" Lisman's Facebook page the other day.  Before getting into any other analysis, it's pretty unlikely that the only Founder to have signed all of our major founding documents, including the Declaration (which he helped edit) and Constitution (which he helped craft), would've made the simple error of suggesting the right to pursue happiness is in the latter and not the former.

But he's a popular guy to be miquoted, misattributed, and misused.  So it's no surprise that this one is found nofuckingwhere in Poor Richard's works.  It's also no surprise that it is used to attack progressive policies since conservatives love to conflate the DoI and USC.

And now I shall luncheon...on some beef, not lamb.


January 23, 2016 in Constitution, Schmonstitution | Permalink | Comments (0)

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Saturday, January 16, 2016

Vermont Should Lead The Nation In Birtherism, Not Texas

I am extremely disappointed that my favorite birther, H Brooke Paige, has wasted time writing op-eds when he should've been the first to file suit against Ted Cruz's eligibility.


January 16, 2016 in Constitution, Schmonstitution | Permalink | Comments (1)

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Thursday, January 14, 2016

Birther Hackery

TPMCenturies-Old English Law May Hold The Answer To Ted Cruz's Birth Issue.

Ugh.  Everybody is in love with that WaPo piece.  She goes way back, but forgets to skip ahead even in Blackwell, who notes that Parliament at various times changed the rules to ensure that children "born out of the king's ligeance" were still considered natural-born.  And THAT is the law (common or otherwise) in force and understanding when we ratified the Constitution, even if Congress hadn't also passed similar legislation itself in the early days of our Republic (not to mention more recently).

The Legislative Branch has plenary power over naturalization, which means it also has the power to determine who requires it (aliens), and who does not (natural born citizens).  It's mere academic fluffery to say shit in 1350 Britain dictates eligibility in 2016 America when there's plenty of statutory development since.


January 14, 2016 in Constitution, Schmonstitution | Permalink | Comments (10)

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Tuesday, January 12, 2016

Fine, Let's Get Rid Of The SOTU Address

But it's still constitutionally mandated, and a Jeffersonian written message just doesn't lend itself to drinking games so easily...


January 12, 2016 in Constitution, Schmonstitution | Permalink | Comments (3)

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I Hate Cruz Birthers, Left And Right

People are approvingly posting this WaPo op-ed that asserts Ted Cruz ain't a natural born citizen. Poppycock and bullshit.


January 12, 2016 in Constitution, Schmonstitution | Permalink | Comments (0)

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Friday, January 08, 2016

Let's Call The Whole Union Off

Bless his heart:

Texas Gov. Greg Abbott (R) is sick of watching the federal government trample all over states' rights, with things like U.S. laws and Supreme Court decisions. So the former state attorney general is pushing a constitutional convention to weigh what he has labeled the "Texas Plan," made up of nine constitutional amendments he says will "reign [sic] in the federal government and restore the balance of power between the States and the United States."

"That constitutional problem calls for a constitutional solution, just as it did at our Nation’s founding," Abbot wrote in the 92 page proposal released Friday. He pointed to various plans offered by states that helped create the Constitution in the years after the Revolutionary War.

I have a plan, too, for introduction at Convention: let the South go.  Shouldn't be hard to ratify that shit.


January 8, 2016 in Constitution, Schmonstitution | Permalink | Comments (1)

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He Shall Recommend To Their Consideration That They Bite His Shiny Metal Ass

Washington's first SOTU address, January 8, 1790:

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 of others for essential, particularly military, supplies.

Various considerations also render it expedient that the terms on which foreigners may be admitted to the rights of citizens should be speedily ascertained by a uniform rule of naturalization.

Uniformity in the currency, weights, and measures of the United States is an object of great importance, and will, I am persuaded, be duly attended to.

[T]here is nothing which can better deserve your patronage than the promotion of science and literature. Knowledge is in every country the surest basis of public happiness. In one in which the measures of government receive their impressions so immediately from the sense of the community as in ours it is proportionably essential.

To the security of a free constitution it contributes in various ways - by convincing those who are intrusted with the public administration that every valuable end of government is best answered by the enlightened confidence of the people, and by teaching the people themselves to know and to value their own rights; to discern and provide against invasions of them; to distinguish between oppression and the necessary exercise of lawful authority; between burthens proceeding from a disregard to their convenience and those resulting from the inevitable exigencies of society; to discriminate the spirit of liberty from that of licentiousness - cherishing the first, avoiding the last - and uniting a speedy but temperate vigilance against encroachments, with an inviolable respect to the laws.

Naturally, certain people like to misquote and cherrypick the speech.  Anyway, trivia:

Although Federalists Washington and Adams had personally addressed the Congress, Jefferson was concerned that the practice of appearing before the representatives of the people was too similar to the British monarch's ritual of addressing the opening of each new Parliament with a list of policy mandates, rather than "recommendations."  This changed in 1913.  Wilson believed the presidency was more than a impersonal institution; that instead the presidency is dynamic, alive, and personal (see Tulis).  In articulating this philosophy, Wilson delivered an oral message to Congress.

This year I wanna see Obama just go up there, propose the Republican Congress go fuck itself, then literally drop the mic...


January 8, 2016 in Constitution, Schmonstitution | Permalink | Comments (0)

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Thursday, January 07, 2016

Only POWs Are Eligible To Be Preznit

Old Man charged with constitutional duties doesn't understand Constitution:

"I know it came up in my race because I was born in Panama, but I was born in the Canal Zone which is a territory. Barry Goldwater was born in Arizona when it was a territory when he ran in 1964," McCain said on Wednesday.

"That’s different from being born on foreign soil so I think there is a question. I am not a Constitutional scholar on that, but I think it’s worth looking into. I don’t think it’s illegitimate to look into it," the Arizona senator added.

1) He's stupid.

2) Would love to see Bernie sponsor a resolution affirming Cruz is eligible.


January 7, 2016 in Constitution, Schmonstitution | Permalink | Comments (1)

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Alabama Chief Justice Is An Anarchist, Pass It On!

Oh, Megyn:

Brian Brown, president of the National Organization for Marriage, was arguing on behalf of judges like Alabama Chief Justice Roy Moore, who on Wednesday ordered state probate judges to stop issuing same-sex marriage licenses.

When Brown argued that state governments shouldn’t “kowtow to the Court or else we don’t have a democracy anymore,” Kelly broke in to explain how the system works.

“Kowtow? The Supreme Court has the final say on what the law is, that was established long ago in Marbury versus Madison,” she said.

I believe that's oversimplifying, but the pushback is appreciated...


January 7, 2016 in Constitution, Schmonstitution | Permalink | Comments (4)

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Tuesday, January 05, 2016

The Oregon Question

Speaking of taking over land in Oregon:

Mr. Charles J. Ingersoll, from the Committee on Foreign Affairs, to which was referred so much of the annual message of the President of the United States as relates to Oregon, reported a joint resolution (No. 5.) of notice to Great Britain "to annul and abrogate" the convention between Great Britain and the United States of August 6, 1827, relative to the country "on the northwest coast of America, westward of the Stony mountains," commonly called Oregon: which was read a first and second time.

Congress finally agreed to the resolution in April, 1846.

So after we give the land back to the British, do they then give it back to the people they stole it from, or can we cut out the middle man?


January 5, 2016 in Constitution, Schmonstitution | Permalink | Comments (0)

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Sunday, January 03, 2016

Rebellion, Schmebellion

Might as well repost something from just a coupla years back:

 [In the wake of Shay's abortive rebellion,] Madison enumerated vices he saw in the existing weak system, including:

2. Encroachments by the States on the federal authority.
5. want of concert in matters where common interest requires it.
7. want of sanction to the laws, and of coercion in the Government of the Confederacy.

We have a long tradition of rebelling in this country.  And an equally long tradition of losing.  Here is a non-comprehensive list of revolts and other violent incidents after the Constitution was implemented:

Recommend nonviolent tactics and strategies--including using the electoral process--if you want to change things.  Lasting, meaningful rebellions don't require violence.  YMMV.

And I mean really nonviolent tactics.  Bringing guns kinda negates that.  Unless you're white, of course!


January 3, 2016 in Constitution, Schmonstitution, Pax Americana | Permalink | Comments (0)

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Saturday, January 02, 2016

At Least H Brooke Paige Is An Equal Opportunity Birther

And to think I was sad because it seemed my favorite local giver of LOLs was mooted in 2014:

Ted Cruz does not meet the “natural-born citizen” qualification, since he was born outside the country as noted in the story, but also because his father was not a “citizen of the United States” at the time of his son’s birth. Further, that Rubio and Jindal are not qualified since, while they were born on U.S. soil, their parents were not “citizens of the United States” at the time of their child’s birth. The article states: “Rubio and Jindal are discounted because their parents weren’t born in the U.S.” and this is not the requirement — the parents need only be citizens of the United States (natural born citizen or naturalized citizens) at the time of the child’s birth on U.S. soil.

The term “discounted” seems too pejorative; all of these candidates are intelligent, wise men of upstanding character and have served as leaders with distinction. They are all “citizens of the United States” and are constitutionally qualified to serve in each and every post and position within state and national government, except one — president of the United States and commander-in-chief of the military.

Time to dust off my Vattel posts...


January 2, 2016 in Constitution, Schmonstitution | Permalink | Comments (0)

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Wednesday, December 23, 2015

The Fed Is The Reason For The Season

Not a year goes by that my Paulista/Whateverista friends get upset about people like Bernie Sanders not agreeing to End the Fed.  And not a year goes by that I don't gleefully mark today's Holiness as a result.

So now here's a mostly repost of perhaps a top favorite thing of mine.  First, the Deceiver's assertions germane to this discussion from his old Quixotic campaign of a few years back:

Snuck through Congress on Christmas Eve in 1913, the Federal Reserve Act established the Fed as America’s central bank...Ultimately, [Paul] will lead the charge to end the dishonest, immoral, and unconstitutional Federal Reserve System...

Far be it from me to point out a trivial error, but unless Christmas Eve has moved in the last century (probably because of Puritans or Liberals), the Federal Reserve Act was signed into law by President Wilson on December 23th at 602pm.  So Paul certainly didn't start from a position of credibility.  But I guess it sounds more nefarious if you suggest everybody had visions of sugar plums dancing in their heads while the only thing stirring was a naughty Congress forcing fiat money down America's chimneys.

Regardless, it's not like the act was conceived, debated, passed by the House, passed by the Senate, and signed in secret all in one day. Indeed, the process was as ugly and complicated and drawn out as sausage making generally is.

Turns out, the Panic of 1907 spurred several years of studies on how to best to reform our rickety banking system.  Then the Republicans proposed a solution, which the Democratic platform of 1912 specifically opposed while calling for reform--the former was handily rejected as the latter was swept into office, taking the House, Senate and White House.  In short, the People had ample chance to examine the issue and provided an electoral mandate.

There were competing versions of bills discussed throughout the summer of 1913, with the eventual Act being introduced at the end of August.  The House passed it 287-85 in mid-September.  Like, well before the Christmas shopping season.

The Senate held hearings throughout September and October--including a good deal of talk about constitutionality--with a lot of committee wrangling in November.  Passage, with amendment, actually occurred on December 18th, 54-34.  But the House then rejected that version so the thing had to go to conference to work out the differences, as usually happens.

The House overwhelmingly passed the final version, 298-60, on December 22nd, with the Senate agreeing the next day, 43-25.  In all cases, a quorum was present, and all proceedings were public.  Hard to sneak this elephant into a party.

But that's just process-oriented wanking.  What about this whole bit about the Fed being unconstitutional (yeah, I'm skipping the "dishonest" and "immoral" charges right now)?

It will shock you to know that I have a teensy disagreement with that.

As is often the case, a significant part of the problem anti-Fed folks have is that the Constitution, of course, does not literally enumerate a specific power letting Congress create a central bank with words like "Congress has the power to create a central bank."  I understand the appeal of this simplistic argument, since the construction is supposed to be such that Congress can't just do anything it wants and is supposed to be limited to spelled-out functions.

However, that's a bit overly literal and ignorant, and not in keeping with the overall intent of framing our government, not to mention missing a few other important clauses in the document.

In 1791 there was a hot debate about the constitutionality of the (First) Bank of the United States.  James Madison, Father of the Constitution, was down on the idea because he held there was no enumerated power for Congress create such a thing, and Federalist Fisher Ames argued with him in the House:

[Mr Ames] had no desire to extend the powers granted by the Constitution beyond the limits prescribed by them. But in cases where there was doubt as to its meaning and intention, he thought it his duty to consult his conscience and judgment to solve them; and even if doubts did still remain on two different interpretations of it, he would constantly embrace that the least involved in doubt.

This was compelling enough that Madison stepped back a bit:

In the Constitution, the great ends of government were particularly enumerated; but all the means were not, nor could they all be, pointed out, without making the Constitution a complete code of laws: some discretionary power, and reasonable latitude, must be left to the judgment of the legislature.

Ultimately the Bank was established and operated unchallenged in the courts until its charter expired in 1811.  The Second Bank was charted in 1816 for another 20 year term, and it did run into some difficulties with President Jackson over corruption and such, but we'll set that aside for a moment.

How could the Bank be constitutional without any mention of it in the Constitution?  There's that niggling little detail of this clause at the end of Article I, Section 8: [Congress shall have the power to] make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Odd how often that gets missed.  And you really can't ignore it, as Marshall observed in Marbury v Madison:

It cannot be presumed that any clause in the Constitution is intended to be without effect...

Indeed, if this clause had no import, it would just be a garnish.  So even Madison recognized that something was required to allow Congress the means to achieve the ends of its enumerated powers.

Anyway, the N&P Clause was at the heart of the Second Bank's case before SCOTUS in 1819.  What's more, we read in McCulloch v Maryland:

The principle now contested was introduced at a very early period of our history, has been recognised by many successive legislatures, and has been acted upon by the Judicial Department, in cases of peculiar delicacy, as a law of undoubted obligation.

It will not be denied that a bold and daring usurpation might be resisted after an acquiescence still longer and more complete than this. But it is conceived that a doubtful question, one on which human reason may pause and the human judgment be suspended, in the decision of which the great principles of liberty are not concerned, but the respective powers of those who are equally the representatives of the people, are to be adjusted, if not put at rest by the practice of the Government, ought to receive a considerable impression from that practice. An exposition of the Constitution, deliberately established by legislative acts, on the faith of which an immense property has been advanced, ought not to be lightly disregarded.

The power now contested was exercised by the first Congress elected under the present Constitution.

The bill for incorporating the Bank of the United States did not steal upon an unsuspecting legislature and pass unobserved. Its principle was completely understood, and was opposed with equal zeal and ability. After being resisted first in the fair and open field of debate, and afterwards in the executive cabinet, with as much persevering talent as any measure has ever experienced, and being supported by arguments which convinced minds as pure and as intelligent as this country can boast, it became a law.

The original act was permitted to expire, but a short experience of the embarrassments to which the refusal to revive it exposed the Government convinced those who were most prejudiced against the measure of its necessity, and induced the passage of the present law. It would require no ordinary share of intrepidity to assert that a measure adopted under these circumstances was a bold and plain usurpation to which the Constitution gave no countenance. These observations belong to the cause; but they are not made under the impression that, were the question entirely new, the law would be found irreconcilable with the Constitution.

There's an allusion to Stuart v Laird in there (which was decided a couple weeks after Marbury in 1803):

[I]t is sufficient to observe, that practice, and acquiescence under it, for a period of several years...affords an irresistible answer, and has indeed fixed the construction. It is a contemporary interpretation of the most forcible nature. This practical exposition is too strong and obstinate to be shaken or controlled. Of course, the question is at rest, and ought not now to be disturbed.

Even a couple centuries later, Tony "Originalist" Scalia has made similar arguments.  McIntyre v Ohio Elections Commission:

But there is other indication, of the most weighty sort: the widespread and longstanding traditions of our people. Principles of liberty fundamental enough to have been embodied within constitutional guarantees are not readily erased from the Nation's consciousness. A governmental practice that has become general throughout the United States, and particularly one that has the validation of long, accepted usage, bears a strong presumption of constitutionality. 

Obviously such things can be abused.  N&P could be used to justify real overreaches, and the weight of history to justify evils such as slavery.  That's why we have a system wherein different levels and departments--and the People--can make corrections to our course.  Yet we cannot ignore clauses and previous experience glibly.  So from that perspective, since the FRA didn't just sneak up on us--it followed precedent, was debated, and saw myriad elections pass in almost a century--it's clearly constitutional.

One other more meaty objection, however, can be summed up thus: the Federal Reserve is "the poster child of unconstitutional private delegation."

Certainly nondelegation doctrine generally prohibits the Legislature from giving away its powers to somebody else.  However, in the United States it has been interpreted for quite some time that, much like N&P, Congress has some latitude in the means it can use to achieve its ends.  We don't expect Congressmembers to go out and actually build post offices and post roads (although, maybe we should).  We don't expect them to actually coin our money by turning cranks at the mint.  And so on.

So Congress can delegate some functions so long as it provides specific guidance to whomever is charged with a particular task.  The problem arises if that entity is private as opposed to a public agency.

Fortunately, the Fed is not a private entity.  Private banks are part of its organization, but they don't determine policy, the folks in charge of the Fed are duly appointed by the President and confirmed by the Senate, and the agency is subject to Congressional oversight and GAO audits.  One can certainly argue for more transparency and criticize the Fed for some pretty piss poor monetary policy of late, and I welcome discussion about proper reforms, but one cannot really back up any claim that it is an unconstitutionally delegated entity.


PS--Interesting difference between two articles in Bankers Magazine from the era: one written in October, 1913, and the other in January, 1915.  Apropos of nothing...

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

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Tuesday, December 15, 2015

They are little better than whipsyllabub, frothy and full of wind...

[T]hey are not those solid and substantial amendments which the people expect...they are like a tub thrown out to a whale, to secure the freight of the ship and its peaceable voyage.

 - Congressman Aedanus Burke (AF-SC) on the proposed Bill of Rights, August 15, 1789


On December 15, 1791, the requisite number of States approved what we've come to know as the Bill of Rights.  Despite calling for such amendments during ratification of the Constitution, Virginia was tail-end Charlie because of its rather interesting, complicated politics.

I thought it would be fun to go look at the debates and various original documents to see how it played out.  I won't go into huge detail, but some of the evolution and nuance is fascinating.

Soon after the Constitution was sent to the People, James Madison wrote to Thomas Jefferson about the factional landscape on December 9, 1787:

The body of the people in Virgina., particularly in the upper and lower Country, and in the Northern neck, are as far as I can gather, much disposed to adopt the New Constitution. The middle Country, and the South side of James River are principally in the opposition to it. As yet a large majority of the people are under the first description. As yet also are a majority of the Assembly. What change may be produced by the united influence and exertions of Mr. Henry, Mr. Mason, & the Governor, with some pretty able auxiliaries, is uncertain.

My information leads me to suppose there must be three parties in Virginia. The first for adopting without attempting amendments. This includes Genl. W and ye other deputies who signed the Constitution, Mr. Pendleton, (Mr. Marshall, I believe,) Mr. Nicholas, Mr. Corbin, Mr. Zachy. Johnson, Col. Innes, (Mr. B. Randolph as I understand) Mr. Harvey Mr. Gabriel Jones, Docr. Jones, &c., &c.

At the head of the 2d. party which urges amendments are the Govr. & Mr. Mason. These do not object to the substance of the Governt., but contend for a few additional guards in favor of the Rights of the States and of the people.

I am not able to enumerate the characters which fall in with their ideas, as distinguished from those of a third class, at the head of which is Mr. Henry. This class concurs ar present with the patrons of Amendments, but will probably contend for such as strike at the essence of the System, and must lead to an adherence to the principle of the existing confederation, which most thinking men are convinced is a visionary one, or to a partition of the Union into several Confederacies. 

Indeed, Patrick Henry was no fan of the proposed government frame (and was no democrat).  He spoke near the end of Virginia's Convention:

[A]fter observing that the proposal of ratification was premature, and that the importance of the subject required the most mature deliberation, proceeded thus: — The honorable member must forgive me for declaring my dissent from it; because, if I understand it rightly, it admits that the new system is defective, and most capitally; for, immediately after the proposed ratification, there comes a declaration that the paper before you is not intended to violate any of these three great rights — the liberty of religion, liberty of the press, and the trial by jury. What is the infercnce when you enumerate the rights which you are to enjoy? That those not enumerated are relinquished. There are only three things to he retained — religion, freedom of the press, and jury trial. Will not the ratification carry every thing, without excepting these three things? Will not all the world pronounce that we intended to give up all the rest? Every thing it speaks of, by way of rights, is comprised in these things. 
Is it not worth while to turn your eyes, for a moment, from subsequent amendments to the situation of your country? Can you have a lasting union in these circumstances? It will be in vain to expect it. But if you agree to previous amendments, you shall have union, firm and solid.

I cannot conclude without saying that I shall have nothing to do with it, if subsequent amendments be determined upon. Oppressions will be carried on as radically by the majority when adjustments and accommodations will be held up. I say, I conceive it my duty, if this government is adopted before it is amended, to go home. I shall act as I think my duty requires. Every other gentleman will do the same. Previous amendments, in my opinion, are necessary to procure peace and tranquillity. 1 fear, if they be not agreed to, every movement and operation of government will cease; and how long that baneful thing, civil discord, will stay from this country, God only knows. When men are free from restraint, how long will you suspend their fury? The interval between this and bloodshed is but a moment. The licentious and wicked of the community will seize with avidity every thing you hold. In this unhappy situation, what is to be done r It surpasses my stock of wisdom. If you will, in the language of freemen, stipulate that there are rights which no man under heaven can take from you, you shall have me going along with you; not otherwise.

[Here Mr. Henry informed the committee that he had a resolution prepared, to refer a declaration of rights, with certain amendments to the most exceptionable parts of the Constitution, to the other states in the confederacy, for their consideration, previous to its ratification. The clerk than read the resolution, the declaration of rights, and amendments...]

Madison, who really wanted a clean ratification, embraced the amendment proposals but as something to be pressed for AFTER ratification:

I am persuaded that the gentlemen who contend for previous amendments are not aware of the dangers which must result. Virginia, after having made opposition, will be obliged to recede from it. Might not the nine states say, with a great deal of propriety, "It is not proper, decent, or right, in you, to demand that we should reverse what we have done. Do as we have done; place confidence in us, as we have done in one another; and then we shall freely, fairly, and dispassionately consider and investigate your propositions, and endeavor to gratify your wishes. But if you do not do this, it is more reasonable that you should yield to us than we to you. You cannot exist without us; you must be a member of the Union."

The case of Maryland, instanced by the gentleman, does not hold. She would not agree to confederate, because the other states would not assent to her claims of the western lands. Was she gratified? No; she put herself like the rest. Nor has she since been gratified. The lands are in the common stock of the Union.

As far as his amendments are not objectionable, or unsafe, so far they may be subsequently recommended--not because they are necessary, but because they can produce no possible danger, and may gratify some gentlemen's wishes. But I never can consent to his previous amendments, because they are pregnant with dreadful dangers.

After a plea by Governor Edmund Randolph to vote for Union (depiste his having voted against the final Constitution in Philadelphia) so Virginia wouldn't be left behind, Henry stayed his course and introduced a resolution to delay of ratification until the States could also consider Virginia's proposed changes.  That was narrowly defeated, 88-80.  The main question on approving the Constitution passed by a similar margin, 89-79.

Now to the Bill of Rights.  First, I found an interesting little sideshow regarding what we now know as the First Amendment:

The next clause of the fourth proposition was taken into consideration, and was as follows: "The freedom of speech and of the press, and the right of the people peaceably to assemble and consult for their common good, and to apply to the Government for redress of grievances, shall not be infringed.

Mr. Tucker then moved to insert these words, "to instruct their Representatives."

James Madison didn't cotton to the idea:

The right of freedom of speech is secured; the liberty of the press is expressly declared to be beyond the reach of this government; the people may therefore publicly address their representatives; may privately advise them, or declare their sentiments by petition to the whole body; in all these ways they may communicate their will. If gentlemen mean to go further, and to say that the people have a right to instruct their representatives in such a sense as that the delegates were obliged to conform to those instructions, the declaration is not true.

Suppose they instruct a representative by his vote to violate the constitution, is he at liberty to obey such instructions? Suppose he is instructed to patronize certain measures, and from circumstances known to him, but not to his constituents, he is convinced that they will endanger the public good, is he obliged to sacrifice his own judgment to them? Is he absolutely bound to perform what he is instructed to do? Suppose he refuses, will his vote be the less valid, or the community be disengaged from that obedience which is due from the laws of the union?

If his vote must inevitably have the same effect, what sort of a right is this in the constitution to instruct a representative who has a right to disregard the order, if he pleases? In this sense the right does not exist, in the other sense it does exist, and is provided largely for.

The honorable gentleman from Massachusetts, asks if the sovereignty is not with the people at large; does he infer that the people can, in detached bodies, contravene an act established by the whole people? My idea of the sovereignty of the people is, that the people can change the constitution if they please, but while the constitution exists, they must conform themselves to its dictates: But I do not believe that the inhabitants of any district can speak the voice of the people; so far from it, their ideas may contradict the sense of the whole people; hence the consequence that instructions are binding on the representative is of a doubtful, if not of a dangerous nature.

I do not conceive, therefore, that it is necessary to agree to the proposition now made; so far as any real good is to arise from it, so far that real good is provided for; so far as it is of a doubtful nature, so far it obliges us to run the risk of losing the whole system.

I think it's clear that Madison understood only money talks.

Anyway, there were shenanigans in the Virginia Legislature and during various electoral campaigns.  But as Madison promised, a slate of amendments made its way through Congress.  Edward Carrington filled Madison in as to the workings in the Virginia Legislature on December 20, 1789 (including Henry's taking his ball and going home):

During the session, there has been much less intemperance than prevailed last year. Mr. H—— was disposed to do some antifederal business, but having felt the pulse of the House on several points and finding that it did not beat with certainty in unison with his own, he at length took his departure about the middle of the session without pushing any thing to its issue...

[He pushed] to refer the amendments sent forward by Congress, to the next session of Assembly, in order that the people might give their sentiments whether they were satisfactory, alledging that in his opinion they were not. To this purpose he proposed a resolution, but finding the disposition of the house to be otherwise, he moved that it might lie on the Table, and went away without ever calling it up again.

Somewhat later in the session the subject of the amendments was taken up—the ten first were, with the exception of perhaps not more than ten Members, unanimously agreed to—on the eleventh and twelfth some difficulty arose...

Through the whole course of the business in that house there was on the several questions equal divisions of the members, so, as to leave the decision to the chair. Notwithstanding the unequivocal decision in the house of delegates for adopting the amendments, yet in the course of the discussion some intemperance was generated—this led to propositions which in the earlier parts of the session none would have thought of, and it was with difficulty that a proposition for demanding a compliance with the amendments proposed by our convention, so far as they have not been agreed to, by Congress was prevented from passing.

This proposition was presented to the house as often as three times, at first it was rejected by a great majority, at the next attempt it was rejected by a less majority, and at the third by the vote of the Speaker. Had Mr. Henry conceived that such would have been the temper in the latter stages of the session, he would not have left us.

So the lower House had passed the BoR.  The Senate was expected to follow suit, but the Anti-Federalists took another stand and rejected the amendments:

We are satisfied that the people of Virginia would never have ratified the Constitution of the United States, but from a confident hope and firm persuasion of speedily seeing it much more materially altered and amended than it would be by ratifying the propositions lately submitted by Congress to the State Legislatures. That although we consider some of the amendments offered as similar, and others nearly equivalent, to a part of the amendments proposed by Virginia and other States, yet that some of them which seem analogous to other amendments so proposed, are not substantially the same and fall short of affording the same security to personal rights, or of so effectually guarding against the apprehended mischiefs of the government...

Ah well.  In the meantime, Vermont became a state and the overall political reality was such that the Constitution was here to stay.  Even Patrick Henry conceded on January 24, 1791:

[A]ltho' The Form of Governt into which my Countrymen determined to place themselves, had my Enmity, yet as we are one & all imbarked, it is natural to care for the crazy machine, at least so long as we are out of Sight of a Port to refit. I have therefore my Anxietys to hear & to know what is doing, & to what point the State pilots are steering, & to keep up the Metaphor, whether there is no Appearance of Storms in our Horizon?

Still took several months, but Virginia finally ratified the BoR on December 15, 1791, about which Congress was informed on December 30.  Oddly enough, Vermont had passed the amendments on November 3, but Congress didn't find out until January 18, 1792.

Thus, after yet another couple years of debate, Secretary of State Thomas Jefferson issued his anticlimactic certification.  Professor Lucas A Powe, Jr writes about it:

One would think that the document announcing ratification of the Bill of Rights would have a special prominence in bicentennial celebrations and would, perhaps, be a fit subject for public readings like Washington's Farewell Address. But then one reads the letter of the secretary of state to the state governors announcing the ratification of the Bill of Rights and such thoughts evaporate. "I have the honor to send you herein enclosed," the usually eloquent Thomas Jefferson wrote,

two copies duly authenticated, of an Act concerning certain fisheries of the United States, and for the regulation and government of the fisherman employed therein; also of an Act to establish the post office and post roads within the United States; also the ratification by three fourths of the Legislatures of the Several States, of certain articles in addition and amendment of the Constitution of the United States, proposed by Congress to the said Legislatures, and being with sentiments of the most perfect respect, your Excellency's &c.

The ordering in Jefferson's transmittal is quite consistent with the view that the Bill of Rights originated in a desire to kill the Constitution. The goal of the Antifederalists was to defeat, in any way possible, ratification. Pointing to the failure to include a declaration of rights was the most effective way of creating opposition to the Constitution. That it was a ploy is demonstrated by the fact that the Antifederalists were far less interested in the "necessity" of a Bill of Rights after the Constitution was ratified than they were when it might have been defeated. Thus Jefferson got it right: fish were more important, and the Bill of Rights ran a poor third.

As I've noted before, there was a parallel set of flip-flops on the BoR, with Federalists and Antis essentially adopted each other's positions, so it is not surprising that Jefferson's proclamation would be a bit muted.  Politics is shifting sand, and always has been...


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