NToddcast RSS Feed

Monday, November 23, 2015

Franklin Wept

Dr Rocket Twofer:

Republican presidential candidate Dr. Ben Carson said in an interview that aired Sunday that Thomas Jefferson wrote the Constitution. But in reality, the founding father was the lead author of the Declaration of Independence.

It's not the first time Carson has gotten United States history wrong. As The Wall Street Journal previously flagged, Carson erroneously said the founding fathers had "no elected office experience."

Yes, I've long been interested in separating Carson's conjoined twins of fact and fiction.  But he's not alone in conflating the Declaration with our Constitution, nor in suggesting our Founders lacked experience.


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

NToddcast RSS Feed

Freedom Of Speech Isn't Free

Oh, Dr Rocket Surgeon:

After a brief moment near the top of the Republican field, Ben Carson’s numbers have been on the decline. Clearly feeling the pressure to say something crazy enough to outdo professional lunatic Donald Trump, Carson just went full-fascist. And you never go full-fascist.

Having already admitted that he likes the idea of keeping American Muslims (and foreigners) in databases to be watched, Carson seems to be warming to expanding that surveillance to other groups he doesn’t like. At a rally in Columbia, South Carolina, Carson dropped the bombshell that he believes any “anti-American” group should be monitored.

“What I have said is that I would be in favor of monitoring a mosque or any church or any organization or any school or any press corps where there was a lot of radicalization and things that were anti-American.”

As recently as October, Carson was suggesting that there needs to be a ban on “liberal” speech on college campuses.

“I actually have something I would use the Department of Education to do,” Carson remarked. “It would be to monitor our institutions of higher education for extreme political bias and deny federal funding if it exists.”

His own supporters told him that was dangerously close to censorship, so he assured them that he didn’t mean right-wing speech, he was talking about liberalism.

Don't forget to monitor Quakers.  Those fucking Quakers.  Anyway, brings to mind Milton's Areopagitica, published on this date in 1644:

We can grow ignorant again, brutish, formal and slavish...Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties.

Free to know what Dr Carson thinks he knows...


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

NToddcast RSS Feed

Friday, November 20, 2015

Before Chris Christie Could Castigate Teachers For Not Open Carrying

November 20, 1789:

Be it enacted by the Council and General Assembly of this State, and it is hereby enacted by the authority of the same, That the following Articles, proposed by Congress, in addition to, and amendment of, the Constitution of the United States,

[Here follow, verbatim, the first, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, and twelfth Articles of the said Amendments proposed by Congress to the Legislatures of the several States.]

Be, and the same are hereby, ratified and adopted by the State of New Jersey.

And to think it only took two more years to codify the Right To Keep And Bear Arms, after which tyranny was finally held at bay forever and always...


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

NToddcast RSS Feed

Thursday, November 19, 2015

Jesus Would Hunt Syrian Refugees For Sport, Also, Too

Palin errs along with Boykin and Fischer on Jesus' love of open carry.


November 19, 2015 in Constitution, Schmonstitution | Permalink | Comments (1)

NToddcast RSS Feed

Sunday, November 15, 2015

We got to get ourselves back to the garden

We have at length finished the Confederation and shall send it to the different States in a few days with strong exortation to give it quick consideration and speedy return.

 - Richard Henry Lee to Samuel Adams, November 15, 1777

Speedy return?  Not so much: the Articles didn't go into effect until March 1, 1781 (Maryland was the last to ratify about a week earlier).  The framework was first reported a week after Congress resolved toward Independency, so it took them 16 months just to agree to the final proposal.

And as I observed a couple years ago, slavery figured pretty heavily in the debates.  The issue didn't go away after ratification, as the Confederation Congress tried vainly to amend the Articles, proposing a well-known "federal ratio" to count slaves for tax purposes.

The Framers in Philadelphia used the same math since it'd been approved by 11 of the states previously--NH and RI had rejected the amendment, so without unanimity it never was adopted, proving the Articles were pretty useless.  Why reinvent the wheel, amirite?


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

NToddcast RSS Feed

Tuesday, November 03, 2015

When Lenity And Cruelty Play For A Kingdom

The gentler Scalia is the soonest winner:

Lockhart is not a sympathetic plaintiff. In 2008, the government noticed he had transferred funds to a Russian money courier in pursuit of child pornography. In 2010, federal law enforcement set up a successful sting to catch him purchasing the materials. A search of his laptop and hard drive turned up nine videos and 15,000 images of child pornography. Lockhart was charged under a federal child pornography ban and pleaded guilty. Prosecutors then discovered that, in 2000, Lockhart had attempted to rape his adult girlfriend. They persuaded a judge to impose the mandatory minimum sentence required by the child pornography law, arguing that Lockhart qualified because he had engaged in “aggravated sexual abuse.” Lockhart appealed, asserting that, because he did not abuse “a minor or ward,” the mandatory minimum didn’t apply to him.

So there’s our puzzle. As arguments begin, those of us in the press gallery brace ourselves for a tedious day of technical debates about canons of construction—the buffet of rules with unpronounceable Latin names that judges use to interpret statutes. Lockhart v. United States pits two canons against each other: the “series qualifier” canon and the “last antecedent” canon. Under the series qualifier canon (which Lockhart favors), “a minor or ward” would apply to every crime listed before it. Under the last antecedent canon (which the government favors), the clause would apply only to the crime that directly precedes it.
After Ann O’Connell, counsel for the government, concedes that “the canons of interpretation don’t get anybody 100 percent of the way there,” Scalia pounces.

“I agree!” he says with a Yoda-like head tilt. “And what I worry about is the rule of lenity. You have these dueling canons, and you have a rule that when the government sends somebody to jail for 10 years, it has to cross sharp corners. It has to dot every i and cross every t. It has to be clear!”

Scalia pauses. From either end of the bench, Justices Sonia Sotomayor and Elena Kagan lean forward to watch him speak. Nino still has a few surprises left in him.

“We’ve been discussing dueling canons and so forth,” he continues. “My goodness! I have no assurance what the right answer is. But I think that somebody could read this and think that it means what the petitioner says it means. And if that’s the case, it seems to me the rule of lenity comes into play. That’s what concerns me most about this case—not the dueling canons.”

The figo for thee, then!


November 3, 2015 in Constitution, Schmonstitution | Permalink | Comments (0)

NToddcast RSS Feed

Monday, October 26, 2015

Congress Dissolves

The First Continental Congress ended on October 26, 1774, accomplishing a little bit more than nothing.  

Thomas Lynch wrote to future Member of Congress and Senator, Ralph Izard on the same date:

I saw a gentleman a few days ago, who was at Cambridge, when the men who had met to oblige the councillors and judges to resign their offices, received intelligence that Gage was marching his little army to attack them. He declares that this news occasioned not the least appearance of hurry or confusion. The men who were armed, prepared to receive their enemy; the unarmed, hasted home, and brought their arms. Their numbers being but little superior, shows they will not decline an equal combat. If so, where is England to find an army to encounter two hundred thousand of these same New Englanders, besides at least five hundred thousand others, in the rest of America, who have solemnly engaged in the same cause.

I think I mentioned a little speech, made by an Assemblyman, (it is said of Virginia.) [ed note: George Washington] "I will raise and support, one thousand men at my expense, as long as you shall want them, and march at their head, wherever you direct." There are many such men in America.

I remember to have heard, that Amherst had told the King, that he would undertake to march five thousand men, from one end of the continent to the other, notwithstanding the opposition of all the inhabitants. If the story is true, his successor seems quite of a contrary opinion. Indeed, if the former took up that idea from the provincials, he will consider an army, formed out of the dregs of the people, as a very different thing from the yeomen of the country, acting voluntarily in the immediate defence of their liberty and property.

John Adams recorded the day thusly:

Dined at Home. This Day the Congress finished. Spent the Evening together at the City Tavern--all the Congress and several Gentlemen of the Town.

He didn't think there was a chance of his returning, so he stuck around a while.  Silly little man.


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

NToddcast RSS Feed

Tuesday, October 13, 2015

Voting Rights, Schmoting Rights

There is no right of which the people are more jealous than that of suffrage.

 - Pierce Butler at a little Convention in Philadelphia, August 17, 1787

Bless his tiny, blackened heart:

“There’s a lot of debate, without getting too academic about what the right to vote is,” Napolitano said. “Is it a fundamental right that comes from our humanity like thought and speech and association and worship and self-defense? Or is it a privilege given by the government? In my view, the Supreme Court has wrongly said it’s a fundamental right.”

Naturally, he's wrong.  The Father of the Constitution said so on the same day Butler did:

The right of suffrage is certainly one of the fundamental articles of republican Government, and ought not to be left to be regulated by the Legislature. A gradual abridgment of this right has been the mode in which Aristocracies have been built on the ruins of popular forms.

He's also incensed that California will allow undocumented aliens vote.  The state won't, actually, but who care's about facts?  Besides, I'm not entirely convinced that would be bad...


PS--If a slaveholder like Butler, who introduced the Fugitive Slave Clause to our flawed founding document, can see voting as a fundamental right, any idiot should be able to.

October 13, 2015 in Constitution, Schmonstitution | Permalink | Comments (0)

NToddcast RSS Feed

Monday, October 12, 2015

Abolish The Filibuster If You Have The Votes


I hate the filibuster when the GOP controlled the Senate, kept hoping that Harry Reid nuke it, and was overjoyed when he did so for most confirmation votes. The argument against the filibuster that people like me made back then--that the constitution says it takes a majority vote for the Senate to pass something and the filibuster effectively changed that to a super-majority 60% threshold--still makes just as much sense when the Republicans are in control as it does when Democrats are. 

I love the filibuster, but have come to support its abolition.  However, I do not think the constitutional arguments made have any merit.


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

NToddcast RSS Feed

Wednesday, October 07, 2015


Naturally, I agree with this Jacobin article that old post offices (not just the USPS itself) matter a great deal.  Art is important to the Republic.


October 7, 2015 in Constitution, Schmonstitution | Permalink | Comments (0)

NToddcast RSS Feed

Tuesday, October 06, 2015

I Hate Ahistorical Analysis

No, Gaius Publius (at Digby), just no:

these state militias (state standing armies)

They were most assuredly NOT standing armies.  Militias were seen as a defense against standing armies because the former obviated reliance on the latter.  JFC.


October 6, 2015 in Constitution, Schmonstitution | Permalink | Comments (0)

NToddcast RSS Feed

Saturday, October 03, 2015


Religious controversies are always productive of more acrimony and irreconcilable hatreds than those which spring from any other cause...

 - Geo Washington to Edward Newenham, June 22, 1792

We officially beg G-d's pardon:

Whereas it is the duty of all Nations to acknowledge the providence of Almighty God, to obey his will, to be grateful for his benefits, and humbly to implore his protection and favor-- and whereas both Houses of Congress have by their joint Committee requested me to recommend to the People of the United States a day of public thanksgiving and prayer to be observed by acknowledging with grateful hearts the many signal favors of Almighty God especially by affording them an opportunity peaceably to establish a form of government for their safety and happiness.

Now therefore I do recommend and assign Thursday the 26th day of November next to be devoted by the People of these States to the service of that great and glorious Being, who is the beneficent Author of all the good that was, that is, or that will be-- That we may then all unite in rendering unto him our sincere and humble thanks...

and also that we may then unite in most humbly offering our prayers and supplications to the great Lord and Ruler of Nations and beseech him to pardon our national and other transgressions...To promote the knowledge and practice of true religion and virtue, and the encrease of science among them and us--and generally to grant unto all Mankind such a degree of temporal prosperity as he alone knows to be best.

But who can trust a deist, really?


October 3, 2015 in Constitution, Schmonstitution | Permalink | Comments (0)

NToddcast RSS Feed

Friday, October 02, 2015

Wait, There Was A Whole Bill Of Rights?

October 2nd 1789:

In pursuance of the enclosed resolution I have the honor to transmit to your Excellency a copy of the amendment proposed to be added to the Constitution of the United States.

I have the honor to be,

With due Consideration,

Your Excellency’s

Most Obedient Servant

George Washington

Wonder how he'd feel about our well regulated militia these days...


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

NToddcast RSS Feed

Saturday, September 26, 2015

Government Is As Government Does

As I have oft noted, I read old Congressional journals for fun:

And the following message was received from the President:
Gentlemen of the Senate:
    I nominate, for the district of New York, James Dunne, Judge; William S. Smith, Marshal; Richard Harrison, Attorney. For the district of New Jersey, David Brearly, Judge; Thomas Lowry, Marshal; Richard Stockton, Attorney.
    And I Iikewise nominate Thomas Jefferson, for Secretary of State; Edmund Randolph, for Attorney General; Samuel Osgood, for Postmaster General.
                                                        GEO. WASHINGTON.
    September 25, 1789.
And the appointments were immediately confirmed.

Jefferson had just returned from France, where he resided when this was going on three years prior:

Thus far, the demonstrations in Western Massachusetts had been made against the Inferior Courts...the next step was, of course, to stop the Supreme Judicial Courts, and, at this point, the rebellion changed its footing, and became plainly and unmistakably treasonable. The Supreme Judicial Court was to open at Springfield on Tuesday, Sept. 26th...The Court was opened at the appointed time, but the Grand Jury did not appear, and was, in fact, under arms, at the door, for the protection of the Court that could do no business without them.

During the day, the insurgents occupied ground about three quarters of a mile North of the Court House, in the vicinity of the present Ferry Street. Throughout the day, numbers flocked in from the towns around, and attached themselves to either standard, a company of militia not unfrequently marching in a body to join the insurgents, after they had been ordered from abroad to support the Government . The Government party wore a strip of white paper in their hats, to distinguish themselves from the hemlock bearers, and spies were traversing the space between the two bodies, alternately using the paper and hemlock badge, as they approached and mingled in the respective camps.

In the course of the day, the insurgents sent a message to the Court, proposing the conditions on which they would consent to disband and retire. These conditions were that the people should not be indicted for rising in arms to prevent the Courts from sitting at Northampton, or for appearing at that time to stop the proceedings of the Supreme Judicial Court; that no civil causes should be tried, except those in which both parties were ready and willing; that the militia embodied by the Government should not receive payment for their services, with several others of smaller moment. The Court refused these conditions, promptly and decidedly, and declared that they should execute the laws in accordance with their oaths.

As Abigail Adams wrote the following January:

With regard to the tumults in my Native State which you inquire about, I wish I could say that report had exagerated them, it is too true Sir that they have been carried to so allarming a Height as to stop the Courts of Justice in several Counties.

Jefferson replied:

The spirit of resistance to government is so valuable on certain occasions, that I wish it to be always kept alive. It will often be exercised when wrong, but better so than not to be exercised at all. I like a little rebellion now and then. It is like a storm in the atmosphere.

And a couple months after the Constitution was submitted to the People, most famously:

Let them take arms. The remedy is to set them right as to facts, pardon & pacify them. What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time with the blood of patriots & tyrants. It is it’s natural manure

While this is perhaps a little more extreme than I'm willing to be, it is actually one reason I don't find anti-government types running for office to be hypocritical.  Jefferson the revolutionary was consistent in believing the People had every right--even a duty--to rise up against government from time to time, and he worked within the government structure to keep it as honest (in his view) as he could.  Similarly, Tea Partiers--who I certainly don't think carry the same intellectual or ethical heft as the deeply-flawed Jefferson--ostensibly go into government to get rid of the parts they don't like.  It's not contradictory from where I sit.

Shay's Rebellion perhaps is best summed up by this petition from the town of Athol, MA:

[O]ur Property is torn from us & our Gaols filled & still our Debts are not discharged; but our Property daily diminishing greatly to the injury of Debtors and in many cases but little to the advantage of the Creditor.

Sounds very much like our situation today.  The differences, I think, are that we do have a better system of government than that under the Articles, and people actually responded with torches and pitchforks instead of just posting about doing so online (I'll also note that anti-Federalists did actually try to make government function).  Would that more would get engaged in some way, even if they're cynical about the effectiveness of government.

I'm not going to suggest that I've done things right, but I will say my experience of running for office as an independent in 2010 did show me a few things.  The biggest lesson I took away from it was that by actively campaigning, I made a great deal of contact with so many people, which ultimately enabled me to be elected to a leadership spot of a major party (despite my disillusionment and disengagement, I was once again sent to the county committee by our town caucus) and to a seat in local government (re-elected this year, in fact).  It ain't much, but none of this would have happened if I'd not tried in the first place.

Gandhi said, "be the change you wish to see."  So find a way to keep his and Jefferson's legacies alive, lest our property continue to be torn from us.


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

NToddcast RSS Feed

Friday, September 25, 2015

When The Father Of The Constitution Loves The Bill Of Rights Very Much...


The Senate proceeded to consider the message from the House of Representatives of the 24th, wth amendments to the amendments of the Senate to "Articles to be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States;" and, 

Resolved, That the Senate do concur in the amendments proposed by the Home of Representatives to the amendments of the Senate.

Yet this #SlatePitchEsque post ought remind even Kim Davis' lawyers that there are limits to our rights enumerated in those First Ten...


September 25, 2015 in Conscience, Constitution, Schmonstitution | Permalink | Comments (0)

NToddcast RSS Feed

But What If Denying Civil Rights Is A Compelling State (Or County) Interest?

I mean, 10th Amendment and all that.  Plus, Dred Scott, amirite?!


September 25, 2015 in Conscience, Constitution, Schmonstitution | Permalink | Comments (1)

NToddcast RSS Feed

Tuesday, September 22, 2015

Unforgiven Kim Davis

Bless Kim Davis' heart:

"What probably hurt me the worst is when someone tells me that my God does not love me..."

Unlike those icky gay people whom God hates?

“No, I’m forgiven — washed clean,” she said.

How convenient!

“I don’t think dignity is guaranteed in the Constitution,” Davis said. “I think dignity is something that you find within yourself.”

I happen to have constitutional precedent right here, and it says even you have dignity.

“I feel really sad,” she continued, “(that) someone could be so unhappy with themselves as a person that they did not feel dignified as a human being until they got a piece of paper. I mean, there’s just so much more to life than that.”

One might say that about being "forgiven" and "washed clean"...


September 22, 2015 in And Fuck..., Constitution, Schmonstitution | Permalink | Comments (2)

NToddcast RSS Feed

Monday, September 21, 2015

In Defense Of Dr Ben Carson, Rocket Surgeon

Much is being made of this comment:

I would not advocate that we put a Muslim in charge of this nation. I absolutely would not.

Is it bigoted?  Yes.  Is he making a constitutional claim?  No.

While the Constitution does contain a ban on religious tests for official qualification, it has no bearing on how the electorate makes its collective decision.  Nowhere in Carson's various Islamophobic statements has he said they should be barred from office in a legal sense.


September 21, 2015 in Constitution, Schmonstitution | Permalink | Comments (1)

NToddcast RSS Feed

Thursday, September 17, 2015

Happy Conception Day!

Today is notable:

On the question to agree to the Constitution enrolled in order to be signed. It was agreed to all the States answering ay.
The members then proceeded to sign the instrument.

Whilst the last members were signing it Doctr. FRANKLIN looking towards the Presidents Chair, at the back of which a rising sun happened to be painted, observed to a few members near him, that Painters had found it difficult to distinguish in their art a rising from a setting sun. I have said he, often and often in the course of the Session, and the vicisitudes of my hopes and fears as to its issue, looked at that behind the President without being able to tell whether it was rising or setting: But now at length I have the happiness to know that it is a rising and not a setting Sun.

The Constitution being signed by all the members except Mr. Randolph, Mr. Mason, and Mr. Gerry who declined giving it the sanction of their names, the Convention dissolved itself by an Adjournment sine die-

But of course, we still operated under the Articles of Confederation.  So to extend the metaphor, would ratification be when the Republic began to show (or in today's parlance, the sonogram was posted on Facebook)?  And the actual birthday be when Congress first met under the new framework?

Regardless, Happy Constitution Day.  May it be whatever you want it to be.


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

NToddcast RSS Feed

I Hear Pink Triangles Are Coming Back In Fashion

Jesus wept:

A mayoral candidate in a small Charlotte suburb wants to “eradicate” homosexuality and throw LGBT people in jail, the Kings Mountain Herald reports.

Eugene Holmes, who is running for mayor of Kings Mountain, says he doesn’t want to be mayor, but he’s running because of his anti-gay views. He views Kentucky clerk Kim Davis as something of a role model.

“In my administration I would do just like Mrs. Davis did in Kentucky,” Holmes said. “If you elect me, I’ll uphold the law of the state of North Carolina. I would get the D.A. to swear out a warrant on any man who says he’s gay. Sodomy is a crime, a felony in the state of North Carolina.”

Holmes said he’s a member of the Church of God and also the Promise Keepers, a men’s religious organization. 

“What’s wrong with eradicating homosexuals? We should jail them, throw them all in jail!” Holmes told the Herald.

Just another ignorant asshole who's never heard of Lawrence, or the Supremacy Clause.  Also goes to show that unconstitutional laws remaining on the books can be dangerous...


September 17, 2015 in Constitution, Schmonstitution | Permalink | Comments (2)