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Sunday, June 26, 2016

Happy Big Gay Tony Day!

June 26 is always a good day to drink bigots' tears:

  • 2003: Lawrence.
  • 2013: Windsor.
  • 2015: Obergefell.

Let us toast Justice Vaffanculo in Hell!

So far, few people have followed my recommendation that on this date we dress up in black robes, wear a scowling Scalia mask, and set bonfires to commemorate the brightness of wingnut self-immolation which provided us such a beacon of hope and justice.  Sometimes I feel like John "Nobody Ever Listens To Me" Adams...

ntodd

June 26, 2016 in Constitution, Schmonstitution | Permalink | Comments (0)

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Saturday, June 25, 2016

We, The...

On this anniversary of Virginia's ratifying our Constitution (the tenth State to do so), I thought a few vignettes from their convention were worthy of some propagation.  First, I give you Super Patriot Patrick Henry:

[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?

He feared enslavement by government, and claimed to hate slavery, however

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 Super Patriot From A Slave State focused so much on states' and not individual rights.  Anyway, he was answered thus by Edmund Pendleton (who was unanimously elected president of the convention):

Personify government: apply to it as a friend to assist you, and it will grant your request. This is the only government founded in real compact. There is no quarrel between government and liberty; the former is the shield and protector of the latter. The war is between government and licentiousness, faction, turbulence, and other violations of the rules of society, to preserve liberty...

But an objection is made to the form: the expression, We, the people, is thought improper. Permit me to ask the gentleman who made this objection, who but the people can delegate powers? Who but the people have a right to form government? The expression is a common one, and a favorite one with me. The representatives of the people, by their authority, is a mode wholly inessential. If the objection be, that the Union ought to be not of the people, but of the state governments, then I think the choice of the former very happy and proper. What have the state governments to do with it? Were they to determine, the people would not, in that case, be the judges upon what terms it was adopted.

Henry was no democrat, and no fan of the proposed republican framework, either.  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.

Following a plea by Governor Edmund Randolph to vote for Union (despite 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.

At that point, the threat of disunion was greater than the danger posed to Liberty by a strong government.  Most likely that's still true even today..

ntodd

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June 25, 2016 in Constitution, Schmonstitution | Permalink | Comments (0)

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Friday, June 24, 2016

Texas Secesh: Still Crazy But Cute After All These Years

I needed a good chuckle today:

From the looks of it, the British people have chosen to take control of their political and economic destiny. The forces of fear have lost. It is now important for Texas to look to ‪#‎Brexit‬ as an inspiration and an example that Texans can also take control of our destiny. It is time for Texans to rally with us and fight for the right to become a self-governing nation.

Of course the Lisbon Treaty has an explicit stipulation about how to leave the Union.  The US Constitution? No. Such. Thing.

But I'm willing to accept the dicta in Texas v White that We the Rest of the Several States can consent to see you sorry ass go.

ntodd

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June 24, 2016 in Constitution, Schmonstitution | Permalink | Comments (0)

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Thursday, June 23, 2016

Adventures In Bad Legislating

This is a nation that developed the world's most destructive weapon, is the only one to have actually used one (two!) in war, and yet somehow since that time we also sent humans to the moon and ended up, so far, not causing a global nuclear holocaust.  This is a nation that finds new and inventive ways to prevent women from exercising their reproductive rights.  This is a nation that cleverly attacks non-existent problems like voter fraud to disenfranchise minority voters

All that, but we can't, among all the nations of the world, figure out how to mitigate the violence, particularly involving guns, in our society.  That's the backdrop to the frustration many Americans feel, and the desperate measures House Dems have taken during their remarkable sit-in.

Make no mistake: any solution that relies on the No Fly List is bad, bad, bad.  I'd also submit that outright bans probably aren't going to work, either.

That said, I'm completely sympathetic with John Lewis et al.  This Congress thought it was a great idea to vote on actively eroding the 4th Amendment (Senate) and gutting a rule that requires bankers to do their jobs with client interests in mind (House).  Then they throw up their hands and say nothing to do about all the shootings, sorry.

The Dems' stated goal of a (losing) vote on some bad law isn't necessarily bad itself, however.  Like many "stunts", the real object is to force a reaction.  At the very least, they put their differences with the Do Nothing/Know Nothing GOP in stark relief.  That's particularly good if the other side can't even come up with alternatives, and is left sputtering on Twitter.

I'd love to see a complete pivot away from this demand and toward something more constructive.  How about: "okay, you don't like this approach, so let's skip it.  While we're at it, let's kill the No Fly List.  Oh, also maybe let us create a Department of Peace, and end the ban on gun research by the CDC so we can at least start examining violence inherent in our society and why the fuck other countries don't go through the same shit every other goddamned day?"

It's not like sitting around has gotten us anywhere...

ntodd

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June 23, 2016 in Constitution, Schmonstitution, Pax Americana, RKBA | Permalink | Comments (3)

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Wednesday, June 22, 2016

"Calculated merely to amuse, or rather to deceive."

Due process is as due process does:

[The Senate] voted on legislation from Republican Arizona Sen. John McCain to chip just a little bit more of the Fourth Amendment away by allowing the FBI to skip that whole judicial review process when collecting electronic records of suspects. This is their answer to Orlando, even though it's not an answer at all. The FBI director, in fact, said it wouldn't have made a difference because the FBI had the shooter's electronic records, obtained with a judge's consent. Oh well.

And yes, this is the same Republican party that argued keeping people on the terrorist watch list from getting guns was a problem because there wasn't judicial process. No, it doesn't make any sense.

Sure it makes sense, just as it does for Democrats to push their legislation tied to a No Fly List that they decried during the Bush Interregnum.  It's always surprising to me when people are surprised that the political process involves politics.  Context matters, as do changing circumstances, which is completely consistent with how we've done shit since we first argued about the Bill of Rights.

ntodd

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

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Where Does My Nose Begin?

What, sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty.

 - Elbridge Gerry, debating the Second Amendment on 17 August, 1789

Not that I agree with Prohibition, nor total bans on any particular firearms, but John Finch, Chairman of the Prohibition National Committee, does offer some counsel from the 19th century that we might consider:

Unrestrained natural liberty is the enemy of civil liberty. Let me illustrate: It was personal liberty that enabled Guiteau to send the bullet through the back of President Garfield. It is civil liberty which will hang him on the 30th of June. Do you see the difference? It is personal liberty that would let me meet you on the street and knock your brains out with a club; it is civil liberty that would punish me for the crime...

Personal liberty means individual or brute liberty. Civil liberty means the restraint of personal liberty. I have a legal right to fill my mouth with tobacco, and chew, and chew and spit. I do not believe I have the physical and moral right.

I have a right to chew and spit that way, or chew and spit the other way—it is none of your business. You grant that right if I am alone on the prairie. I go into a crowd of men and exercise the right. I chew and spit in one man's facer and chew and spit in another man's ear. I would be knocked down in a minute. As a man hits me on the ear, I exclaim, "Is not this a free country?" "Yes." "Have not I a right to spit?" You would teach me that my right to spit ceased where your right not to be spit upon began.

This arm is my arm and my wife's; it is not yours. Up here I have a right to strike out with it as I please. I go over there with these gentlemen and swing my arm and exercise the natural right which you have granted;. I hit one man on the nose, another under the ear, and as I go down the stairs on my head, I cry out:

"Is not this a free country?"

"Yes, sir."

"Have not I a right to swing my arm?"

"Yes, but your right to swing your arm leaves off where my right not to have my nose struck begins."

Here civil government comes in to prevent bloodshed, adjust rights and settle disputes.

Natural rights have inherent limits because they inevitably come into conflict with other natural rights.  Constitutional rights have explicit and implicit limits, even the precious RKBA.  You might claim that you're protecting yourself, but the political process exists for all of of us to protect ourselves.  Trying to find a balance is not infringement: it's the way this shit is supposed to work.

ntodd

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June 22, 2016 in Conscience, Constitution, Schmonstitution, RKBA | Permalink | Comments (0)

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Tuesday, June 21, 2016

You Have So Many Mmmale Presidents In This Life

As I've noted a few times on this here blog, our new Constitution finally passed muster with the requisite 9 states on June 21, 1788, when New Hampshire weighed in:

Resolved, That the assent and ratification aforesaid be engrossed on parchment, together with the recommendation and injunction aforesaid, and with this resolution; and that John Sullivan, Esq., president of the Convention, and John Langdon, Esq., president of the state, transmit the same, countersigned by the secretary of Convention, and the secretary of state, under their hands and seals, to the United States in Congress assembled.

Of course, the Articles still governed, so Congress had to figure out how best to dissolve the old, perpetual confederation.  They appointed a committee upon learning of NH's ratification, aptly enough on July 2:

Ordered That the ratifications of the constitution of the United States transmitted to Congress be referred to a comee . to examine the same and report an Act to Congress for putting the said constitution into operation in pursuance of the resolutions of the late federal Convention.

The United States in Congress Assembled signed off on its creative destruction a few months later:

WHEREAS the Convention assembled in Philadelphia pursuant to the resolution of Congress of the 21st . of Feby . 1787 did on the 17th . of Sept of the same year report to the United States in Congress assembled a constitution for the people of the United States, whereupon Congress on the 28 of the same Sept did resolve unanimously "That the said report with the resolutions and letter accompanying the same be transmitted to the several legislatures in order to be submitted to a convention of Delegates chosen in each state by the people thereof in conformity to the resolves of the convention made and provided in that case:"
And whereas the constitution so reported by the Convention and by Congress transmitted to the several legislatures has been ratified in the manner therein declared to be sufficient for the establishment of the same and such ratifications duly authenticated have been received by Congress and are filed in the Office of the Secretary therefore
RESOLVED That the first Wednesday in Jany next be the day for appointing Electors in the several states, which before the said day shall have ratified the said constitution; that the first Wednesday in feby . next be the day for the electors to assemble in their respective states and vote for a president; and that the first Wednesday in March next be the time and the present seat of Congress the place for commencing proceedings under the said constitution.

This has always made me ponder: what date ought we mark as the birth of our tottering Republic?

You could take September 17th (Constitution Day) as the real birthday, since that's when it was approved in Philly to be submitted to the People.  Or you could say today because it was officially ratified under Article VII's stipulation.  But it didn't become the active law of the land until March 4, when our new government booted up.

It's an angels on the head of a pin question, but my 3.125 readers know I find it fun.  The real import to me, however, is that we should always be cognizant that all these dates fall on a continuum, and politics doesn't stop on any one of them.  So Independence might be approved, with dissent, on July 1st, passed unanimously on July 2nd, declared with a detailed list of grievances and first promulgated on July 4th.  We celebrate one of those (sorry, Mr Adams), but the others are a significant part of the narrative, showing just how hard it was to even agree on something we now take for granted.

Whatever.  Happy ratification day, US Constitution.  You were an imperfect document from the start, and imperfect people are still trying to figure it all out a couple centuries later, but you're still going strong despite Hillary Clinton's best efforts to undermine our God Given Patriarchy.

ntodd

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

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Worry Not, There's Only One Amendment Necessary

Where the hell did Sotomayor get a hold of an assault weapon?

Thomas’ holding stands the exclusionary rule on its head, creating incentives for the police to engage in illegal misconduct. If you illegally ask for someone’s ID and you don’t find anything wrong, you’re very unlikely to face a serious sanction. If you do find something, you might uncover evidence that leads to an arrest. This is precisely the kind of misconduct the exclusionary rule was intended to prevent, and, as Justice Elena Kagan explains in her own dissent, finding the outstanding warrant is constitutionally irrelevant.

Writing only for herself, Part IV of Justice Sotomayor’s is a powerful and devastating defense of the exclusionary rule and why gutting it matters. The arbitrary powers this opinion effectively gives to the police will not be applied equally — there is no chance that the police will start stopping people walking around Stephen Breyer’s neighborhood and asking to see their papers. These powers will overwhelmingly be used against the poor and people of color, who risk being treated “as second-class citizens.”

Citing (among others) W.E.B. Dubois, James Baldwin, Ta-Nehisi Coates, and Michelle Alexander, Sotomayor concisely explains how this arbitrary authority will be disproportionately applied to the most vulnerable citizens. “The white defendant in this case shows that anyone’s dignity can be violated in this manner,” wrote Sotomayor. “But it is no secret that people of color are disproportionate victims of this type of scrutiny. For generations, black and brown parents have given their children ‘the talk’ — instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger — all out of fear of how an officer with a gun will react to them.”

Fortunately, all any people of color have to do is resort immediately to Second Amendment Remedies to defend their liberty, so it's all good.

ntodd


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

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Monday, June 20, 2016

And I saw, and behold a white horse

June 20th gives us a United States History Twofer.  First off, we note that mere hours after adopting the Declaration of Independence, Congress got down to brass tacks:

Resolved, That Dr. [Benjamin] Franklin, Mr. J[ohn] Adams and Mr. [Thomas] Jefferson, be a committee, to bring in a device for a seal for the United States of America.

So on August 20, that august committee came up with a design:

The great Seal sh'd on one side have the Arms of the United States of America, which Arms should be as follows: The Shield has six Quarters, parti one, coupé two. The 1st. Or, a Rose enamelled gulps and argent for England: the 2d argent, a Thistle proper, for Scotland: the 3d. Verd, a Harp Or, for Ireland: the 4th Azure a Flower de Luce Or for France: the 5th Or, the Imperial Eagle Sable for Germany: and the 6th Or, the Belgic Lion gules for Holland, pointing out the Countries from which these States have been peopled. The Shield within a Border Gules entoire of thirteen Scutcheons argent linked together by a chain Or, each charged with initial Letters Sable as follows: 1st N. H. 2d M. B. 3d R. I. 4th C. 5th N. Y. 6th N. J. 7th P. 8th D. C. 9. M. 10th V. 11th N. C. 12th S. C. 13 G. for each of the thirteen independent States of America.

Supporters, dexter the Goddess Liberty in a corselet of armour alluding to the present Times, holding in her right Hand the Spear and Cap, and with her left supporting the Shield of the States; sinister, the Goddess Justice bearing a Sword in her right hand, and in her left a Balance.

Crest. The Eye of Providence in a radiant Triangle whose Glory extends over the Shield and beyond the Figures.

Motto. EPluribus Unum.

Legend, round the whole Atchievement. Seal of the United States of America MDCCLXXVI.

On the other side of the said Great Seal should be the following Device. Pharoah sitting in an open Chariot, a Crown on his head and a Sword in his hand passing through the divided Waters of the Red Sea in pursuit of the Israelites: Rays from a Pillow of Fire in the Cloud, expressive of the divine Presence and Command, beaming on Moses who stands on the Shore, and extending his hand over the Sea causes it to overwhelm Pharoah.

Motto. Rebellion to Tyrants is Obedience to God.

Ordered, To lie on the table.

Yeah, that complicated mess died on the table, so an official seal wasn't finally approved until June 20, 1782 (7 months into our True First President's term):

On the report of the secretary of the United States in Congress assembled, to whom were referred the several reports on the device for a great seal, to take order:

The device for an armorial atchievement and reverse of the great seal for the United States in Congress assembled, is as follows:

ARMS. Paleways of thirteen pieces, argent and gules; a chief, azure; the escutcheon on the breast of the American bald eagle displayed proper, holding in his dexter talon an olive branch, and in his sinister a bundle of thirteen arrows, all proper, and in his beak a scroll, inscribed with this motto, "E pluribus Unum."

For the CREST. Over the head of the eagle, which appears above the escutcheon, a glory, or, breaking through a cloud, proper, and surrounding thirteen stars, forming a constellation, argent, on an azure field.

REVERSE. A pyramid unfinished. In the zenith, an eye in a triangle, surrounded with a glory proper. Over the eye these words, "Annuit Coeptis." On the base of the pyramid the numerical letters MDCCLXXVI. And underneath the following motto, "Novus Ordo Seclorum."

Remarks and explanation:

The escutcheon is composed of the Chief and pale, the two most honorable ordinaries. The pieces, paly, represent the several States all joined in one solid compact entire, supporting a Chief which unites the whole and represents Congress. The motto alludes to this Union. The pales in the Arms are kept closely united by the Chief and the Chief depends on that union, and the strength resulting from it for its support, to denote the Confederacy of the United States of America, and the preservation of their Union through Congress. The colours of the pales are those used in the flag of the United States of America. White signifies purity and innocence. Red hardiness and valour and Blue the colour of the Chief signifies vigilance perseverance and justice. The Olive Branch and arrows denote the power of peace and war which is exclusively vested in Congress. The Constellation denotes a new State taking its place and rank among other sovereign powers. The escutcheon is borne on the breast of an American Eagle without any other supporters, to denote that the United States of America ought to rely on their own virtue.

Reverse: The Pyramid signifies strength and duration. The eye over it and the motto allude to the many signal interpositions of providence in favour of the American cause. The date underneath is that of the Declaration of Independence, and the words under it signify the beginning of the new American Era, which commences from that date

As you can see, they did keep one not messy component of the original '76 proposal.  With the important stuff finally out of the way, now the trivial work of not governing under the Articles could get done.  

Now let's fast forward to our Constitutional Convention in Philly on May 30, 1787, when Edmund Randolph proposed "that a national Government ought to be established."  This was recapitulated on June 19 with quite a number of additional proposed resolutions:

1. Resolved that it is the opinion of this Committee that a national government ought to be established consisting of a Supreme Legislative, Judiciary, and Executive.

2. Resolved. that the national Legislature ought to consist of Two Branches.

3 Resolved that the members of the first branch of the national Legislature ought...

4 Resolved. that the members of the second Branch of the national Legislature ought...

Yadayadayada, lots of "national" this and "national" that.  Which greatly concerned Oliver Ellsworth, who moved on June 20:

[T]o alter [the first proposal] so as to run "that the Government of the United States ought to consist of a supreme legislative, Executive and Judiciary." This alteration he said would drop the word national, and retain the proper title "the United States."

He could not admit the doctrine that a breach of any of the federal articles could dissolve the whole. It would be highly dangerous not to consider the Confederation as still subsisting. He wished also the plan of the Convention to go forth as an amendment to the articles of Confederation, since under this idea the authority of the Legislatures could ratify it. If they are unwilling, the people will be so too. If the plan goes forth to the people for ratification several succeeding Conventions within the States would be unavoidable. He did not like these conventions. They were better fitted to pull down than to build up Constitutions.

Thus the Government of the United States got its name, as well as its federal (as opposed to national) form.  So thanks, Activist Judge Ellsworth!

Oddly enough, the Good Judge was fairly involved in debates about what we would call judicial review today.  After Philadelphia, he was prominent in the Connecticut Ratification Convention, and observed:

If the general legislature should at any time overleap their limits, the judicial department is a constitutional check. If the United States go beyond their powers, if they make a law which the Constitution does not authorize, it is void; and the judicial power, the national judges, who to secure their impartiality, are to be made independent, will declare it to be void. On the other hand, if the states go beyond their limits, if they make a law which is a usurpation upon the federal government the law is void; and upright, independent judges will declare it to be so.

Naturally he was the principle author of the Judiciary Act of 1789, which further cemented the role of our Judiciary in reviewing the law (annoying conservatives of the day like Maclay).  And it was Chief Justice Ellsworth's SCOTUS that ruled in favor of Hamiltonian construction (sorry, Jemmy, no Tony-winning Lin-Manuel Miranda musical for you!) regarding our nation's first luxury tax (which the Roberts Court referenced when upholding Obamacare's mandate/penalty).

An interesting guy, who was instrumental in giving us an important component of constitutional law.

ntodd


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

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Friday, June 17, 2016

Even the meanest and lowest of the bloggers

Consider what John Adams said not long before Parliament repealed the hated Stamp Act:

The constitution is not grounded on "the enormous faith of millions made for one." It stands not on the supposition that kings are the favourites of heaven; that their power is more divine than the power of the people, and unlimited but by their own will and discretion. It is not built on the doctrine that a few nobles or rich commons have a right to inherit the earth, and all the blessings and pleasures of it: and that the multitude, the million, the populace, the vulgar, the mob, the herd and the rabble, as the great always delight to call them, have no rights at all, and were made only for their use, to be robbed and butchered at their pleasure.

No, it stands upon this principle, that the meanest and lowest of the people, are, by the unalterable indefeasible laws of God and nature, as well intitled to the benefit of the air to breathe, light to see, food to eat, and clothes to wear, as the nobles or the king. All men are born equal: and the drift of the British constitution is to preserve as much of this equality, as is compatible with the people's security against foreign invasions and domestic usurpation.

Wait, we can provide for the common Defence and general Welfare at the same time?  Somebody should've written that shit down somewhere...

ntodd

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June 17, 2016 in Constitution, Schmonstitution | Permalink | Comments (0)

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Thursday, June 16, 2016

Seriously, All Of You Are Wrong About Guns

Militias ain't what your favorite gun-humper says they were for, but gun-grabbing literalists ought not forget we can't deny or disparage rights without opening up a huge can of worms.  That said, keep exercising your First Freedom, although everybody really needs to stop misquoting the Framers, for fuck's sake.

ntodd

June 16, 2016 in Constitution, Schmonstitution, RKBA | Permalink | Comments (0)

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Thursday, June 02, 2016

Quarter? I Hardly...

One of those Intolerable Acts, a 1774 firmware update of the original Quartering Act, was enacted on this date.  Eventually it gave us my favorite part of the Bill of Rights: Amendment III.  I mean, really, who among us doesn't love a good penumbra?

ntodd

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

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Wednesday, June 01, 2016

Lose An Election? Start A Shooting War!

Ah yes, the South Carolina model of responsible republican virtue:

In a conversation on his “Gun Owners News Hour,” Larry Pratt, executive director emeritus of Gun Owners of America, interviewed Robert Knight, a fellow at the conservative American Civil Rights Union, who said a Democrat taking the White House and replacing the late Supreme Court Justice Antonin Scalia would pose “great peril” to gun rights.

“At that point, we would have to come to an understanding, which we’ve been sort of taught, it’s been taught out of us, that the courts do not have the last word on what the Constitution is,” Pratt said on the show, in remarks first flagged by RightWingWatch.

“And we may have to reassert that constitutional balance, and it may not be pretty," he continued. "So, I’d much rather have an election where we solve this matter at the ballot box than have to resort to the bullet box.”

Par for the course with Mr Insurrectionist, but what's funny to me is how the ignorant bastard used to think Scalia was anti-gun...

ntodd

June 1, 2016 in Constitution, Schmonstitution, RKBA | Permalink | Comments (0)

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Tuesday, May 31, 2016

An act for the encouragement of learning

The Congress shall have Power...To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

- Constitution of the United States

Happy birthday to our first Federal copyright law, which wasn't all that great!

Protection for both published and unpublished works was limited...to American citizens. This restriction severely harmed authors on both sides of the Atlantic, since the law allowed American printers to flood the market with cheap editions of leading British authors. The availability of these pirated foreign editions made the publishing of less well-known American authors economically unattractive to American publishers. The injustice caused by the lack of protection for foreign works would not be addressed until 1891.

The most unsatisfactory effects of the 1790 Act were felt, though, by American authors, whose works were routinely thrown into the public domain for failure to comply with the Act’s many formalities, adopted from the Statute of Anne. We should not be surprised, therefore, that despite the obvious advantage of having a single federal statute instead of 12 different state statutes, the Act of 1790 (as well as many of its successors) does not appear to have been much used by authors. Records assembled by the Library of Congress indicate that more than 15,000 works were published in the United States between 1790 and 1800, but that only 779 copyright registrations were made in this same period. In six states (Connecticut, Delaware, Georgia, Maryland, New Jersey, and Tennessee), no records have been preserved.

Even assuming registrations in these states were at a level equal to those in the states where records were kept – a very doubtful proposition given the intense concentration of printing in Philadelphia, Boston, and New York City – the number of registrations would still fall far short of the number of imprints. A number of explanations for this disparity are possible:

(1) there was a relatively small number of printing presses, making piracy uncommon;

(2) the distribution of books was primarily local;

(3) a substantial number of the works were of British origin for which no protection was available; and

(4) the burden of complying with the required formalities made protection undesirable.

Available evidence indicates that this final reason was an important one. In his annual report to Congress in 1897, Librarian of Congress Ainsworth Spofford stated that “[u]nder the old law the copyright was an annoyance at times, and not an advantage – incomplete in its provisions and awkward in administration. It was difficult for the owner of a title to protect his rights.”

And to this day, people still don't get how this shit is supposed to work.

ntodd

May 31, 2016 in Constitution, Schmonstitution | Permalink | Comments (0)

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Wednesday, May 25, 2016

Ryan Bundy Superstar

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

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

Ryan Bundy would like to complain some, please:

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

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

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

ntodd

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

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Saturday, May 21, 2016

We Should Require Loyalty Oaths, Too

Doctor Franklin, meet your proverbial jackass.

ntodd

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

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Friday, May 20, 2016

Kulturkampf Is Life And Death

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

 - Dead Tony


Happy Romer Day!

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

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

ntodd

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

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They're not shy, they get around

URGENT!

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

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

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

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

ntodd

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

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Stopped Oklahoman Clocks

A Constitutional Conservative speaks:

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

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

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

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

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

ntodd

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

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Wednesday, May 11, 2016

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

I prefer my Constitution living and my Scalia dead.

ntodd

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