Showing posts with label Constitution. Show all posts
Showing posts with label Constitution. Show all posts

Sunday, September 08, 2013

The Nullity behind the modern day nullification movement - Touching on Tyranny pt3

The Nullity behind the modern day nullification movement
June... it was June that I last had a chance to really put two thoughts together, beyond a scribbled note or email... but now that my project deadline has passed (successfully, yay), I've been doing just that, and... there are a lot of scribbled notes.

Are they about current headlines? Syria? Obamacare? Budget battles? Nope, afraid not - just the stuff that allowed those issues to become issues in the first place. Yep, tyranny, the constitution, its abuse, the false cures presented for curing it (such as Nullification), and those cures which I think hold real promise. So if you're looking for current events, you'll need to come back in a week after I've had a chance to free the timeless issues that have been breeding like rabbits in my head & notes.

Back in June, we left off with "Setting Tyranny Free", looking at Tyranny and what it really was, and wasn't, and where that left off brings us back around to those misguided few who are seeking to defend liberty and the constitution by destroying it, via the modern interpretation of 'Nullification' (my own Missouri has an example in the news). Because this false cure holds so much in common with so much else that ails us, I'm going to use the next few posts to dig into it from a few different perspectives.

The Nullity behind the modern day nullification movement
A month or so ago, while I was in deep denial over my not having any time at all, I got involved in an online discussion over the libertarian darling tyrannical cure all of Nullification, and my position that Nullification is at best a destructive nullity, prompted a frustrated supporter of it to ask me:
"If you lived in the 1700s, would you have sided with Sam Adams and Company or with King George?"
My immediate sleep deprived reaction was to take offense (where none was intended), but not just to the idea that I would not have stood with Samuel Adams, but to the idea that we are in a situation today that is similar to what Adams faced all those years ago. That idea pains me because it makes it painfully clear that too few people actually understand the nature of the threat that our Founders faced back in their day, or the even greater threat that we ourselves are facing today. And please, don't recite to me the charges of the Declaration of Independence as proof that we are in the same position, unless you simply want to prove to me that you don't understand the first thing about either the charges made by the Declaration of Independence, or the very basis for the Declaration itself - Yes, the charges are similar, but no, the context is not similar, and context always rules the roost.

To be clear, the ideas and positions that Sam Adams supported then, I wholeheartedly support and stand with today, including the thesis he argued for in earning his masters degree from Harvard (!), In 1743 - note that date, more than three decades before the Declaration of Independence - and that was:
"Whether it be lawful to resist the supreme magistrate, if the commonwealth cannot be otherwise preserved?"
But we are most definitely not in the same situation today, in regards to our government, as they faced then, and there is one passage from the Declaration which points towards the key difference between then and now,
"He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation"[emphasis mine]
There is though, most definitely, at least one similarity between ourselves today, and the colonists which Adams found himself surrounded with in his day, a situation which the rest of the Founders realized only after Adams efforts over decades woke them up to it. But before we can consider what the similarities and differences were and are, between then and now, we need to get a bit clearer on what it is that we face here and now, today; only then can we benefit from considering what it was which they understood the purpose and requirements of Law to be, and understand why the words "pretended Legislation" are key to both of these times - it was the violation inherent in that, which they considered the basis for their rebellion, and is key to the very different actions we must take in our time, if we want to enjoy the liberty that they secured for us in their time.

Here and Now
As I pointed out in that last post, the actual mechanism of tyranny operating in our world today is not the tyrannical tendency of power mad politicians, or even their disregard for the Constitution of our laws, but We The People's ignorance of what our Rights are, and the understanding of them that is required, in order for liberty to be upheld and maintained. Jefferson summed it up well in this line::
"If a nation expects to be ignorant and free, in a state of civilization, it expects what never was and never will be. The functionaries of every government have propensities to command at will the liberty and property of their constituents. There is no safe deposit for these but with the people themselves; nor can they be safe with them without information. Where the press is free, and every man able to read, all is safe."
Note: In what would no doubt be a shocker to Common Core proponents, Reading is more than, and a very different thing from, 'decoding 'informational texts'', or reciting words from a teleprompter. See Richard Mitchell's excellent riff on this thought of Jefferson's)
That critical ignorance casts a shadow over our ability to identify the real threats arrayed against us here and now, and in such a state we're easily misled into chasing after false cures which only intensify the tyrannical disease sapping our defenses, transforming our reasonable desires for safety and security into ever tastier morsels for the tyrants gullet.

True, the current scandals of the NSA, IRS, TSA and other typical 1984-ish fears are what grab the headlines, but probably only because our media is every bit as ignorant of our Rights, and probably more so, as most of We The People are. Of course these threats shouldn't be discounted, as I pointed out in the first post, but the veiled hand of ignorance is what should concern us most, that unseen hand of tyranny is progressively at work consuming our privileges, property and Rights by means of laws turned against the rights they were originally meant to uphold and defend.

And all with rarely even a mention in any of those attention grabbing headlines.

The awful reality is that in such a situation as ours, there's no need for an invading army, or even the threat of one, to strip us of what is ours by virtue of being human - it is a true and present danger to liberty, which, concealed by our ignorance of it, is advancing upon us every moment of every day. Examples are everywhere, from the IRS to the FDA, usually in the guise of laudable aspirations, politically correct feel good issues, such as the Dept. of Interior's recent "National Blueway designation" effort; as good an example of this as any. This boondoggle offered the lure of 'saving the environment!' through preservation and conservation, while what went out of sight and unmentioned, was that it would consume nearly 2/3's of Missouri's & Arkansas's property - most of which was owned by private individuals - by means of the those regulations which such do-goodery requires.

On the bright side, proving what an effective disinfectant that sunshine can be to the darkness of ignorance, an email campaign by concerned citizens derailed that particular plan (for now): "Feds Rescind White River's Blueway Designation"
"Seeking to quell a public backlash, the U.S. Department of the Interior dropped the White River on Wednesday from a new federal program that recognizes conservation and recreation efforts along waterways."
But you cannot ever take your eyes off the other hand, not even for a moment. The administrative state is a new breed of hydra, it doesn't wait for you to cut its head off to grow two others, it preemptively grows three heads in darkness before you ever see the first one, plus two for every one you do manage to catch sight of, and even then you've got to actively look for them to find them,
"Another federal agency MOU (Memorandum of Understanding) has been uncovered that involves the National Blueways, and it names the White River/Cache River Watershed as a watershed demonstration pilot!

Please take a few minutes to read this newly-found MOU . Give it time to upload, and pay attention to the terminology and language used. We are VERY concerned about what this entails. "
And while you're feeling good about having caught that particular threat, there are others such as this one from Alabama, where the state school board is working on passing regulations that will effectively outlaw home and private school educations - not to mention the several other items I did not mention, and who knows what else I never even knew of to mention.

Get the picture?

That is the nature of the ProRegressive's Administrative State; its motive power is the very real urge of smart (though critically ignorant) people to 'do good' (without ever defining what Good is), and their talisman of Regulatory Law, operates unseen, never sleeps and most insidious of all, what it consumes can remain visible and seemingly intact, so that you won't even know it's gone until you try to exercise your right to it. Regulatory Laws don't have to physically take property from you, to effectively take it from you - to think they do is to mistake their nature - this beast feeds more upon your rights, than your possessions, and under cover of our perverted modern understanding of law, it does so right out in the open, while claiming to have taken nothing from you at all.

Tyrannical Tidbits
That little morsel is perfectly expressed in Justice Kagan's recent dissent against a rare Property Rights victory, in "Koontz v. St. Johns River Water Management District"
"a requirement that a person pay money to repair public wetlands is not a taking. Such an order does not affect a “specific and identified propert[y] or propertyright[]”; it simply “imposes an obligation to perform an act”
So... 'simply “imposes an obligation to perform an act” merely imposes an obligation, and if that obligation should impose a financial or practical hardship... well.. that's 'simply' a bummer? It's simply a matter of 'you lose', and bears no relation to your lessening or loss of property due to the govt imposed obligation? Really?

For example, there's very little in the Dept. of Interior 'memorandum of understanding' would even mean taking the current property owners title to their land - it would only take their right to exercise their right to it, under the cover of various regulations covering the use - and forbidden use - of watershed designations... and their ability to maintain it to the govt's expectations. And should the owner lose that property due to their inability to measure up?... well... that's not taking, that's merely losing.

How's that possible?

Here's a test for you: can you identify the principle separating the EPA's imposing an obligation of obtaining environmental impact reports and other fees before construction can begin upon your property, from that which might require getting something such as a 'toleration impact' report from an HCA (Hate Crime Agency...what? You think that seems far-fetched? Why?), before writing an article? No, I didn't ask how outlandish that (might) still sound, I said can you identify the principle which makes one acceptable, and the other not?

That's how that's possible.

There is no difference in principle between the two, both are an infringement upon your fundamental Rights, and it is only what is still fashionable at the moment, which makes the later one seem as far fetched as the former one once seemed.

Regulatory Law accomplishes this not by the outright seizure of property, as your typically unimaginative old school communist thug might have done, but by the more nuanced approach of our modern intellectuals, not by taking it from you, but by denying you some part of your ability to exercise your right to use it (Progress, right?). In principle, to forcibly deny you even the least bit of what is rightfully yours, is a full denial of the principle of ownership... but in a people who have been educated away from Principle, and into Pragmatism, it's just 'a little thing'... right? And so little by little regulatory laws deny us our ability to do this or that - for the greater good of course - either outright, or maybe without a permit (to start), but the end result is the same - the Right of an Individual to their private property is eliminated in favor of the public interests in it... and those interests determined by a handful of powerful and well intentioned self styled elites.

And it is genius.

Over and over again, knowingly or not, Regulatory Laws have shown themselves to be the practical and progressive means of achieving Karl Marx's otherwise fanciful communist dream, which he himself summarized as:
"In this sense, the theory of the Communists may be summed up in the single sentence: Abolition of private property."
What gave such tyranny an inroad into American governance, and the means which justified it, is what I focused upon in the last post, the error in John Locke's description of what tyranny is, from his The Two Treatises of Civil Government (Hollis ed.) > CHAP. XVIII. Of TYRANNY,
"...And this is making use of the power any one has in his hands, not for the good of those who are under it, but for his own private separate advantage ..."[emphasis mine]
, that supposed escape clause from tyranny; that as long as your actions are performed for the 'Greater Good' your use of power over others is not tyrannical. That was perhaps an understandable oversight in the 16th, 17th and perhaps even 18th centuries, certainly a forgivable error on Locke's part in his time, from one of the greatest defenders and definers of Liberty, he after-all lacked the historical evidence and undeniably bloody effects which such an error produced. But we, who possess the entirety of the 20th century, and more, possess no such excuse, and our ignorance of it and its implications, is typical of how tyranny has gained a foothold in America, through Americans' best intentions' - and that is neither understandable nor forgivable.

Once again, it is our ignorance of what our Rights are and what they require, that serves as the magical means of transforming the Rule of Law into laws written to carry out the rule of the Rulers.

Being Realistic
I cannot emphasize this enough - we cannot fight the Administrative State through measures directed at its laws and regulations.

We Cannot.

We will never be able to encompass all of its strategies and modes of attack, not on the Federal level of legislative or the regulatory law, not on the State, County or Township levels, and certainly not in the educational system or the culture at large. Cannot.. Its motive power is ignorance, and that is a boundless source of power for those who are guided by it, and/or of those who are in pursuit of exploiting it.

People accuse me of not being realistic enough when I insist that Education must be a core focus of our efforts... and then they turn around and propose one or two, or sometimes even three new laws or measures (or IDEAL Candidates (!) - hey, how's that Rubio working out for ya?) which they seriously expect to be able to counter what are, not simply one or two opposing laws, measures, or candidates, but a nearly numberless array of laws, agencies, regulations, NGO's, foundations, educational systems, media and culture... all of which are stridently arrayed against us... and they are serious... and it's all I can do not to laugh in their faces.... I'M being unrealistic?!

Please. The only way, and I mean the only practical way, to effectively fight the ProRegressive Leviathan arrayed against us on all sides, and to do so with a view to victory, is through dispelling the darkness it thrives and feeds upon. Only through an understanding of what Rights are, and of what the purpose of Government and Law are in relation to them, and to the nature of Man, can anything resembling victory ever even hope to be achieved.

That should not be a surprise - that was what was required to inspire the idea of America in the first place, nothing less is required for continuing or reviving it.

Anything less, will only further the aims of our common enemy. Which finally brings us around to what modern day 'Nullification' actually is... tomorrow.

Wednesday, January 16, 2013

Jay Carney's vicious, blood thirsty comment: "If even one child’s life is saved..."

A quick rant in reply to this ass of a Press Secretary, Jay Carney, speaking on gun control:
"JAY CARNEY: If these things were easy, they would have been achieved already. If renewal of the assault weapons ban were easily accomplished, it would not need renewing because it would have happened already. The fact of the matter is the president is committed to pushing these proposals. He is not naive about the challenges that exist, but he believes that, as he said yesterday, if even one child's life can be saved by the actions we take here in Washington, we must take those actions."
What an unbelievably vicious, blood thirsty thing to say.
"...if even one child's life can be saved by the actions we take here in Washington, we must take those actions..."
Really. Why? Because one child’s life is saved? THAT calculus is what you propose to drive the laws that will govern your lives, America?

So you're going to get into a pissing match of tallying children's corpses? U.S. Grant's "terrible arithmetic"  as the basis of law?!

What do I mean?

What if someone proposes a law that promises to save two children’s lives? Must you take those actions as well? What if it conflicts with the plan you proposed? What if they can show more dead bodies would result from your plan than theirs? Do you then get into a counting match, counting children's bodies... what then, the one that produces fewer corpses, wins?

What if I propose the immediate slaughter of everyone who has ever shown a tendency towards improper behavior towards children... anyone who has ever spanked, beaten or leered at a child... that would undoubtedly save more than one child’s life... must we put that action into law as well?

Is that the sort of life you want for your child?

You cannot make decisions regarding people's right to live their own lives, based upon some utilitarian calculus - such a life would not be worthy even of rising to the level of being nasty, brutish and short.

To be civilized, to live a life worth living, requires that you live your life under the rule of law, but not just any set of laws will do. The Rule of Law must be comprised of laws whose foundations and purposes are derived from the need to uphold and defend the Individual Rights of its citizens, and among those rights they must uphold and defend, are the rights to life, liberty and the pursuit of happiness - and the Right to defend that life, from all threats, foreign and domestic, is a requirement of all the rest, or they must become meaningless whims and nothing more.

Anything less than that will soon be reduced to one of counting corpses to justify any evil imaginable... though for the greater good, of course.

Monday, September 17, 2012

Constitution Day - Considering the greatest of all reflections on human nature

What is it that we celebrate today, Constitution Day, but the efforts of our Founding Fathers, 225 years ago, to harness the pursuit of power, and force it to serve the pursuit of happiness?

It is simply the greatest achievement in history, to date, to enable men to live in liberty, with one another, while disagreeing with each other, under the protection of the Rule of Law.
"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquillity, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."
It's worth noting that our Founding Generation found the efforts of the Framers of the Constitution... wanting. They very nearly refused to ratify the document, not because it wasn't an elegant solution to harnessing power, but because they felt it didn't go far enough in securing our Individual Rights. But, in the end, they took a risk, that politicians could be trusted to provide the lacking Bill of Rights afterwards, and though they almost reneged, James Madison insisted that their word be kept, and though he disliked the idea of a Bill of Rights, he submitted a series of amendments which, after vigorous debate, became the original Ten Amendments to the Constitution that we know of as the Bill of Rights, amended to the Constitution for the purpose of restraining the power which the Constitution harnessed into the hands of men:
"Begun and held at the City of New York, on Wednesday, the 4th of March, 1789.
The conventions of a number of the states having, at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added; and as extending the ground of public confidence in the government will best insure the beneficent ends of its institution;--"
Madison didn't dislike the idea of a Bill of Rights because he didn't want to secure our Rights, but because he feared that any list of Rights, in the hands of politicians, would serve as snares and loopholes to all our Rights, limiting them to only those words written upon parchment. But in the process of writing his amendments, he hit upon the ideas that would become our 9th and 10th Amendments, reserving all those Rights and Powers not listed, to the people and those powers not listed, to the states.

And now we are engaged in an elections, an election, "testing whether that nation, or any nation so conceived and so dedicated, can long endure." If you have not considered what rests at the core of our Constitution, the balancing of powers against powers, forcing ambition to serve liberty... not an easy task. As Madison put it in Federalist #51:
"But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack..Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions."
Coming into this election, forget about the personalities of Obama & Romney, and look at what they propose... look especially hard at what Obama's administration and his Regulatory Czars are proposing. Consider whether or not a federal agency that can arbitrarily decree that Americans must purchase no less than four gallons of gasoline; consider whether or not that power is balanced against anything at all, so as to serve your liberty - or to extinguish it.

Our Constitution was devised so as to put Government at the service of your ability to live your own life. Is it still serving that function, or imperiling it? That's a question you'd better consider, and  cast your vote upon, because it will determine the direction of this government turns towards, or forever away from, enabling you, your children and your children's children, to live their own lives - or not.

Tuesday, June 26, 2012

You have No 'Constitutional Rights'. None. Nada.

You have No 'Constitutional Rights'. That's right. That's what I said. As an American citizen, you have no 'Constitutional Rights', none, zero, nada.

You do, however, have Rights by virtue of being a rational human being, and some of those Rights have been singled out for protection within the borders of the United States of America by the Constitution with which its government was formed and which it takes its jurisdiction from, and by way of that same Constitution, and some of the amendments to it, which include, but are not limited to, the first ten amendments known as the Bill of Rights, Individuals are able to become citizens of the United States of America, and enjoy having their Individual Rights protected by those laws which derive their power from that same Constitution, of the United States of America.

Why do I bother to say it that way? Because it is important to. Why? Because if you think that you have 'constitutional rights', rights granted to you by the Constitution, then you have NO Rights at all. None, zero, nada.

Why? Because if you think that your Rights were granted to you by the law, then legislators who write the laws, can revoke or gut those rights, by passing still other laws. If the legislator's pen is where you got your Rights from, then you in fact have no 'rights' at all, but only such allowances which your friendly neighborhood legislator is pleased to extend to you. Such things, which may go by the name of 'Rights', are in actuality, nothing of the sort, they are simply privileges.

Nothing more.

Not Rights.

Why say this now, and in this way?

Because in a couple days time the Supreme Court of the United States is going to announce the result of their deliberations upon the constitutionality of ObamaoCare, and I am saying this in this way, because it is being reported that the SCOTUS is deciding whether or not Americans have a Right to Healthcare.

Which is a ridiculous idea.

Of course you have a Right to Healthcare. You absolutely have a Right to receive healthcare, should someone agree to provide it to you, either for free, or for a fee - you have a right to receive quality healthcare, just as those who are able to provide it to you, have a right to do so. What you do not have, and no one else does either, is a right to force others to provide that healthcare to you, against their will, either physically, or financially.

No law can change that, because no law and no constitution ever granted you any of your Rights in the first place. The SCOTUS might very well approve ObamaoCare as a law, but that will neither make a Right, or make the law right.

They have the power to call it a law - just as Justice Taney's SCOTUS had the power to declare Dred Scott to be only 'property' and not a man - there is little doubting their power to do that, but they do not have the Right to. No one does, and declaring it to be so does not make it so, anymore than declaring Dred Scott to be less than a man, made him any less of a man.

No man can grant a Right to another; no lawgiver, no philosopher, no prophet, no majority of men, have a right to take away a Right, or to make a right either. They may acquire the power to impose such a law upon us (should We The People be careless enough to allow it), in the same way that any robber who is bold and brutish enough can impose his will upon you, taking what they desire by force, in violation of your Rights.

But such a demonstration of power will never create a Right, or make it right, even if they pass a law that says so.

Our Laws do not give us our Rights. They protect them. Or violate them.

Nothing more.

The Founding Fathers gave us no Rights
In fact it wasn't even the Framers of the Constitution who singled out those few particular Rights we normally think of as 'our Rights', it was instead We The People who demanded that the legislature draft a Bill of Rights to protect our Rights, as a condition of the Constitution being ratified, and the Government of the United States of America, as we know it, being formed at all.

In framing the constitution, the majority of the Founders felt that they needed only refer to a few Rights, and those only in passing as needed in framing the Constitution - that of Contract, Representation, to live in a Republic, protection of our Intellectual Property Rights (patents) and other particulars of law, thinking that the rest of the Rights of We The People would be secure by virtue of the fact that they gave no explicit power to the government through the constitution, to abridge them, and so, they thought, our individual rights would in effect remain secure by being absent from the powers they gave the Constitution.

We The People, disagreed.

In debating the merits of ratifying the constitution (see the Federalist, and anti-Federalist papers) it became apparent that We The People were not very well assured that enough of our Rights were secured by the constitution as it stood, and as a condition of ratification, a promise was made that the incoming legislature would see to it that a number of our Individual Rights would be specifically recognized and amended to the Constitution, as the law of the land, and some, Patrick Henry for instance, were not very satisfied with even that.
"Does it not insult your judgments to tell you, Adopt first, and then amend! Is your rage for novelty so great, that you are first to sign and seal, and then to retract? Is it possible to conceive a greater solecism? I am at a loss what to say. You agree to bind yourselves hand and foot — for the sake of what? Of being unbound. You go into a dungeon — for what? To get out. Is there no danger, when you go in, that the bolts of federal authority shall shut you in? Human nature never will part from power. Look for an example of a voluntary relinquishment of power, from one end of the globe to another: you will find none. Nine tenths of our fellowmen have been, and are now, depressed by the most intolerable slavery, in the different parts of the world, because the strong hand of power has bolted them in the dungeon of despotism." - Patrick Henry (Speech to the Virginia ratifying assembly 1788)
, and Henry was very nearly right - the legislature delayed and balked at the idea of producing a Bill of Rights. It was James Madison, then a member of the House of Representatives, who insisted that they fulfill their obligation, and wrote the rough draft for the Bill of Rights himself and insisted that they be debated, even though Madison, the father of the Constitution, was leery of a Bill of Rights as well.

Most of the states already had their own bills, and he was concerned that in naming a few critical Rights, it would have the effect of reducing our rights to those few that were specifically noted. There is much in Madison's argument that is worth your consideration, it certainly consumed much of his consideration, for he wasn't worried about 'granting' too many Rights, but with losing more than could be written down,
"..., the rights in question are reserved by the manner in which the federal powers are granted. 2 because there is great reason to fear that a positive declaration of some of the most essential rights could not be obtained in the requisite latitude. I am sure that the rights of Conscience in particular, if submitted to public definition would be narrowed much more than they are likely ever to be by an assumed power. One of the objections in New England was that the Constitution by prohibiting religious tests opened a door for Jews Turks & infidels. 3. because the limited powers of the federal Government and the jealousy of the subordinate Governments, afford a security which has not existed in the case of the State Governments, and exists in no other. 4 because experience proves the inefficacy of a bill of rights on those occasions when its controul is most needed. Repeated violations of these parchment barriers have been committed by overbearing majorities in every State. In Virginia I have seen the bill of rights violated in every instance where it has been opposed to a popular current."
IOW, what he understood, was that we have many, many Rights, too many to be noted and defined and protected - and the attempt to do so, no matter how voluminous they might be, would still come up short (for instance, if you say 'you have a right to free speech' a slick lawyer can say 'you were granted the right to speak, but not a right to write'), in ways that might not yet even be realized in his time.

Madison, however, in giving the matter careful consideration, felt that he came upon a way in which he might be able to secure the unlimited nature of our rights, without naming and reducing them to only those few ones named. His brilliant innovaitons were what formed the core of what eventually became the 9th and 10th amendments:
Article IX - The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Article X - The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Does that sound like the Rights and Powers of We The People are something which comes from the Legislator's pen?... or something which the legislator needs to take careful pains not to abbrogate?

It's also worth noting what usually is never taken note of, the Preamble to the Bill of Rights, because it makes it clear that our Rights were not privileges granted to us by our govt as if they were simply conveniences cited in order to 'provide for the general welfare', as the 'living(dead) document' proponents would have it, no, the Preamble makes it clear that they were meant as restrictions upon government which were imposed upon it by We The People; the same We The People who created that government, through its constitution. And that is likely the chief reason why this Preamble is rarely, if ever, mentioned in any textbook, school or seat of government - for as Patrick Henry noted above, power seeks to preserve and increase its power, it doesn't like having to admit to any limitations of its power.

Preamble to the Bill of Rights :
"Begun and held at the City of New York, on Wednesday, the 4th of March, 1789.

The conventions of a number of the states having, at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added; and as extending the ground of public confidence in the government will best insure the beneficent ends of its institution;--

Resolved, by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both houses concurring, that the following articles be proposed to the legislatures of the several states, as amendments to the Constitution of the United States, all or any of which articles, when ratified by three fourths of the said legislatures, to be valid, to all intents and purposes, as part of the said Constitution, namely,--

Articles in Addition to, and Amendment of, the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the Fifth Article of the original Constitution.
IOW We The People, in order to prevent our government from abusing its powers and infringing upon our Rights, insisted that some of our essential political rights, essential to thwarting the rise of tyranny, be recognized and defended by law, at the source of our laws - the Constitution.

Our Govt did not grant us our Rights. In fact that first legislature, one of the finest ever, did not want to follow through on its promise of  legislating a Bill of Rights. Govt, power, always feels itself above obligations to those it 'serves', it trusts itself; it is up to us, We The People, to continually remind our Govt that it serves us, not the other way around.

So we have our Rights protected in the foundations of our laws, because We The People demanded that they be recognized by law, but... that doesn't really tell us what is being recognized, does it? The fact that we demanded that our Rights be recognized doesn't tell us the nature of what Rights are, does it, it simply lets you know that you have a bunch of something being protected for you... but a bunch of what? Why? Where from do they come?

One thing we can say unequivocally about our Rights at this point, is that we are not given them by legislators, philosophers or prophets, they come from a much more unimpeachable source than that.

What they are and where they come from, tomorrow.

Friday, December 16, 2011

Wiener Roust for the National Defense Authorization Act

Ok, well as far as illustrating absurdity by being absurd... this might take the cake... or the wiener, as the case may be.

You've probably heard about the fears of indefinite detention by the military in the new NDAA bill. Depending on who you talk to, it is clearly in there, not in there at all, or seems like it could be included in it through some language sprinkled throughout the clauses.

I don't know.

Tea Party favorite Rep. Alan West says it's ok. Tea Party favorite Sen. Mike Lee says it's uber-bad news. Do you have time to read a 600 page bill? I'm sad to say that I don't. I gave my effort on the TARP bills. And on the Obamacare Bill. And on the BBA bill. I'm tapped out at the moment. What does it matter anyway? As the boys in The Federalist Papers noted in #62,

"The internal effects of a mutable policy are still more calamitous. It poisons the blessing of liberty itself. It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?"
When the laws are too many, too long, and too frequently changed... no one can know what anything really means... even if you tried to. And past the beginning of this latest fiasco... I haven't. And that might be my undoing, since, by some of the interpretations of the term 'terrorist' by our very own DHS - I do after all have a copy of the Constitution and occasionally display the flag - I could find myself on that list. Hey, look on the bright side, maybe they'd send my oldest Son, or his best friend to pick me up.

So sure the wiener roust is funny.

But the law isn't.

Even if the language has been cleared up, as my Rep. Akin assures me it has,
"There has been a lot of confusion over what this provision will mean, and many people have been concerned that it will allow American citizens to be arrested and detained for indefinite periods of time, simply based on suspicion and no real evidence. I agree that this would be a serious violation of Constitutional rights and the due process of law. Earlier versions of the bill were unclear on this point; however, the conference report on H.R. 1540 was the final version that passed the House on December 14, and it renders all previous versions void."
, it's only language... and any set of legislators and justices who can interpret with a straight face, the wording of the single clearl line of the Commerce Clause, to mean that a farmer growing food for his own use could be considered to be violating laws based upon the constitution (oh yeah, I'll get to that in a minute), then... your confidence in your language might be... misplaced. For now I'm betting that no matter how satisfied 'common sense conservatives' are with this bill's 600+ pages of statements and exceptions, and retractions and restatements... if those in power want to read into it whatever powers they'd like to - they will.

When clear meaning is called a fancy... why bother questioning anything at all?
If you read this bill as plainly meaning what its language plainly states it should... you are living in the real world. Unfortunately, our government is not living in that same real world. Our government is living in a world where it can take language like this,

"To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;"
, even when the possibility that it could be used in any other way, would be understood by any responsible person as to make the entire structure of the Constitution pointless; as Justice Joseph Story put it in his commentaries on the Constitution,
"Neither is it disputed, that the laying of duties is, or may be an appropriate means of regulating commerce. But the question is a very different one, whether, under pretence of an exercise of the power to regulate commerce, congress may in fact impose duties for objects wholly distinct from commerce. The question comes to this, whether a power, exclusively for the regulation of commerce, is a power for the regulation of manufactures? The statement of such a question would seem to involve its own answer. Can a power, granted for one purpose, be transferred to another? If it can, where is the limitation in the constitution? Are not commerce and manufactures as distinct, as commerce and agriculture? If they are, how can a power to regulate one arise from a power to regulate the other? It is true, that commerce and manufactures are, or may be, intimately connected with each other. A regulation of one may injuriously or beneficially affect the other. But that is not the point in controversy. It is, whether congress has a right to regulate that, which is not committed to it, under a power, which is committed to it, simply because there is, or may be an intimate connexion between the powers. If this were admitted, the enumeration of the powers of congress would be wholly unnecessary and nugatory. Agriculture, colonies, capital, machinery, the wages of labour, the profits of stock, the rents of land, the punctual performance of contracts, and the diffusion of knowledge would all be within the scope of the power; for all of them bear an intimate relation to commerce. The result would be, that the powers of congress would embrace the widest extent of legislative functions, to the utter demolition of all constitutional boundaries between the state and national governments. "
Even given all that, our government was still able to take that, twist it, and do so in front of the Supreme Court court, and in a manner that is very much in line with the wildest dreams of our legislatures of the last couple years. They did that and still do so publicly, without causing any concern to many of our citizens, professors and media types beyond number. None of the smarter set even blink today at the notion of twisting the Commerce Clause into a statist tool of justification for jailing a small, family farmer, for the economic crime of growing his own crops, for his own use - not to sell, but to feed his own livestock. That was done with FDR's New Deal case, Wickard v. Filburn, and it is held up as a respectable precedent today - they simply said 'oh sure he's doing on his own land, for his own use, but hey, because he isn't buying it from someone else, that affects national markets and interstate commerce,

"...But even if appellee's activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce and this irrespective of whether such effect is what might at some earlier time have been defined as 'direct' or 'indirect.'"
Sooo... because he didn't do something... that makes it legal cause for you to be fined, even jailed, because you didn't commit a crime that might have been a crime if you did... WTF?!. And that was in a time when the world still seemed sensible. What chance have you possibly got in a world like today, a legal world, mind you, such as that - it taxes the mind, so to speak, that you could possibly count on common sense understanding of anything.

Our government lives in a dream world of their own design, and they use their dreams of what they'd like the world to be like, as 'constitutional' excuses for doing anything and everything they want to do - if they even feel the need to cite anything at all. And of such dreams, my nightmares are made of.

So enjoy your hotdogs while you can. Before you're rousted that is.

Thursday, December 15, 2011

Happy 220th Bill of Rights Birthday!

220 years ago today the states ratified the first ten amendments to the Constitution of the United States of America!

Although it wasn't planned, I'm kinda pleased that the first two weren't ratified at the time (though one of them was ratified in the 1990's... do you know which one?)... Freedom of Speech just should be a 1st Amendment issue!

And while you're at it, pay especially close attention to the preamble that I've put in bold for you... just in case your eyes are getting as bad as mine (IOW They didn't trust govt with the Founding Fathers themselves... are you really going to trust the bunch we've got today? Pay Attention!).

Proposed Amendments and Ratification
1789 Elliot 1:338--40

Congress of the United States;
Begun and held at the City of New York, on Wednesday, the 4th of March, 1789.

The conventions of a number of the states having, at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added; and as extending the ground of public confidence in the government will best insure the beneficent ends of its institution;--

Resolved, by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both houses concurring, that the following articles be proposed to the legislatures of the several states, as amendments to the Constitution of the United States, all or any of which articles, when ratified by three fourths of the said legislatures, to be valid, to all intents and purposes, as part of the said Constitution, namely,--

Articles in Addition to, and Amendment of, the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the Fifth Article of the original Constitution.

Art. I. [Not Ratified] After the first enumeration required by the first article of the Constitution, there shall be one representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall not be less than one hundred representatives, nor less than one representative for every forty thousand persons, until the number of representatives shall amount to two hundred, after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred representatives, nor more than one representative for every fifty thousand.

Art. II. [Not ratified... for two centuries] No law varying the compensation for services of the senators and representatives shall take effect, until an election of representatives shall have intervened.

Art. III. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Art. IV. A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

Art. V. No soldier shall, in time of peace, be quartered in any house without the consent of the owner, nor in time of war, but in a manner prescribed by law.

Art. VI. The right of the people to be secure in their persons, houses, papers, effects, against unreasonable searches and seizures, shall not be violated; and no warrants shall issue, but upon principal cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Art. VII. No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia when in actual service, in time of war or public danger; nor shall any person be subject, for the same offence, to be twice put in jeopardy of life or limb; nor shall be compelled, in any criminal case, to be a witness against himself; nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.

Art. VIII. In all criminal prosecutions, the accused shall enjoy the right of a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law; and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defence.

Art. IX. In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise reëxamined, in any court of the United States, than according to the rules in common law.

Art. X. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Art. XI. The enumeration, in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Art. XII. The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states, respectively, or to the people.

Speaker of the House of Representatives.
JOHN ADAMS, Vice-President of the United States,

and President of the Senate. 
Attest. John Beckley
Clerk of the House of Representatives.
Samuel A. Otis, Secretary of the Senate.
Which, being transmitted to the several state legislatures, were decided upon by them, according to the following returns:--

By the State of New Hampshire.--Agreed to the whole of the said amendments, except the 2d article.
By the State of New York.--Agreed to the whole of the said amendments, except the 2d article.
By the State of Pennsylvania.--Agreed to the 3d, 4th, 5th, 6th, 7th, 8th, 9th, 10th, 11th, and 12th articles of the said amendments.
By the State of Delaware.--Agreed to the whole of the said amendments, except the 1st article.
By the State of Maryland.--Agreed to the whole of the said twelve amendments.
By the State of South Carolina.--Agreed to the whole said twelve amendments.
By the State of North Carolina.--Agreed to the whole of the said twelve amendments.
By the State of Rhode Island and Providence Plantations.--Agreed to the whole of the said twelve articles.
By the State of New Jersey.--Agreed to the whole of the said amendments, except the second article.
By the State of Virginia.--Agreed to the whole of the said twelve articles.
No returns were made by the states of Massachusetts, Connecticut, Georgia, and Kentucky.

The amendments thus proposed became a part of the Constitution, the first and second of them excepted, which were not ratified by a sufficient number of the state legislatures.

The Founders' Constitution
Volume 5, Bill of Rights, Document 12
The University of Chicago Press
Elliot, Jonathan, ed. The Debates in the Several State Conventions on the Adoption of the Federal Constitution as Recommended by the General Convention at Philadelphia in 1787. . . . 5 vols. 2d ed. 1888. Reprint. New York: Burt Franklin, n.d.

Friday, September 16, 2011

Happy 224th Birthday to the U.S. Constitution... eh... what's the point of it again?

For the Constitution's 224th Birthday, I'm going to repost an old post that seems well suited for today; what with our President reminding us again how much he wished the Constitution wasn't there to keep him from using his power as he'd like,
“"As I mentioned when I was at La Raza a few weeks back, I wish I had a magic wand and could make this all happen on my own," Obama told a meeting of the Congressional Hispanic Caucus. "There are times where -- until Nancy Pelosi is speaker again -- I'd like to work my way around Congress.”
, this post from a year and a half ago seems especially appropriate.
I was talking to someone the other day about the problems in the country today, and as I mentioned the Constitution, I noticed a familiar tick that passed across his face at the word… you might have seen it before too… a quick flick downwards of the eyes, a fleeting grin-twitch across the lips… almost as if I’d slipped in a “ya’ll aint” to a grammarian.

When I asked what the matter was, there was the ‘Oh… you’re not really going to ask me about this are you?’ look, as if I was forcing them to embarrass me… and with a sort of “Yes, the world really is round” patronizing look, he said ,
“Well… it’s just… the whole ‘Constitution’ thing… I mean… we don’t wear wigs and leg hose anymore either, why should we be bound by something written centuries ago by people who know nothing of us?”
Ah. Well… in that case… do you mean we should just ignore the Constitution?
“Well… we can’t ignore it, it’s just that it means today what we need it to, not what they meant it to mean back then... kinda like the Queen of England... quaint but not especially relevant... we shouldn't let ourselves be bound by what guys in wigs said two centuries ago.”
"We shouldn't be bound by it" that's an interesting way of putting it... it certainly goes well with the world upside down nature of the news these days. Does that same sort of bigotry of The Now apply to other things too? Math for instance?"

"Oh... come on..."

"Ok... how about resisting tyranny? Is that old fashioned too?"

"Well... no... but...."

"Was 'Freedom of speech a bad idea too... or is it that it was useful then, but is just outdated today?"

All I got with that was a sigh. Of course, being a flogger, I didn't let that slow me down, and while I couldn't remember the full quote, I tried the gist of this one from Jefferson,,"
""It would be a dangerous delusion were a confidence in the men of our choice to silence our fears for the safety of our rights... Confidence is everywhere the parent of despotism. Free government is founded in jealousy, and not in confidence. It is jealousy and not confidence which prescribes limited constitutions, to bind down those whom we are obliged to trust with power... Our Constitution has accordingly fixed the limits to which, and no further, our confidence may go... In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution." --Thomas Jefferson: Draft Kentucky Resolutions, 1798. ME 17:388 "
Got the blank stare for that. "Just not too big on Jefferson, eh?"

Only got an impatient 'Nope'. Just disagree with him and the other wig wearer's?


"So you've read them and disagree with them?" I think he was about to answer 'Yep', but worried that I'd quiz him further (and I would've), but he just said "It's just not as relevant to our world today." I answered that this 'oh so modern' notion of his, is well over a hundred years old now, as many years old as the Constitution was when Woodrow Wilson first mouthed his 'new idea' against it, but that didn't help either, he knocked it down with another eye-roll - apparently some centuries old stuff is 'modern'... and some is 'outmoded'... depending on what the speaker want's it to mean, I suppose - I mean, it's not like words mean anything, right?

Well... I couldn't do much against magic incantations like those modern educated eye-rolls and mutterings, spells which have the power to banish the accumulated wisdom of ages with a simple set of shamanic motions and mutterings. So after a moment I thought maybe I'd try out the meaning of Jefferson's quote on him...rather than just the words,

"Well in that case, it might as well be irrelevant, but if so, then what is the use of the Constitution?

If you're left leaning like yourself, I can see that you probably might be mostly happy with how things are proregressing at the moment... but if you know even only a smattering of political history, even just recent history, you know that following a President Carter, there was a President Reagan, right?; and from the other side of the aisle, the conservatives should know that following such a conservative even as that, there will likely be a President Clinton soon afterwards, or maybe just a mixed message like President Bush (I or II), who might lead into someone like an Obamao.

What that should bring to mind, is that while you may very well be happy with the current bunch in the White house, you may not like the next one, or maybe the one following that, right?

(A sigh and a nod)

So to prevent a future ‘bad’ administration from doing more to you than you’d like, and vice versa for the other sides point of view, don't you think that there should be limits on those in power to limit whatever it is that they want to do?

"Well... sure"

Well... handily enough, we do have just such a set of restrictions on the limits of power. Not only do we have such a set, but it is what our representatives and our judges - and even a President such as Obamao - all solemnly swear, pledge and affirm to uphold and preserve it - and in the case of our military personnel, it is what they pledge their very lives to defending against all enemies, foreign and domestic – it is what they are sworn to die for, if need be.

Given that... got any friends or relatives in the military? 'Yep' Given that they, and others, like my son, have their lives sworn to uphold it, doesn't that seem like something they - and we - should take at least a little bit seriously?

Uncomfortable silence.

At the very least that should give someone pause who might otherwise be tempted to snicker at the mere mention of our constitution, shouldn't it? Nothing else in this land receives such official recognition and is held in such importance and given such legal protection,
...not the President,
...not the Judges,
...not the Flag,
...nor anything else, only this short piece of paper – why?

This Constitution which our government, from its inception in 1787, to now in 2010, finds within this scrap of paper written by old dead white guys, not only every source of every one of its powers to act, but also lays out the key Rights of our fellow citizens that are to be protected, and far more importantly, there are to be found within it those restraints upon what the government can do to We The People and to the country.

If you don’t trust politicians, or you don’t trust the other side’s politicians, then you should want to know, protect and promote this short outmoded piece of paper, because if you don’t, if you allow your politicians, while they are in power, to act beyond what is constitutional – and the ONLY thing which prevents them is the public’s awareness of their going too far (and believe me, it isn’t the Judges or Congress, it is YOU - if the Law ceases to live in We The People, it will cease to live - and cease to protect you) – then you can be assured that there will be even less restraint upon the other guys when They come to power, and they will be even more able to do whatever they want to do because they Too will feel that what they want to do will be the Right thing to do! And your feeble yelps of ‘not fair’ or even funnier (by that time) ‘that’s not constitutional!’ will fall on deaf ears.

And in that time you will find yourself at the mercy of the political power of the other side of the aisle... so ask yourself now, how will you feel then, and what you wouldn’t then give if you could just go back in time to our time, to today, and say – (or in other words vote) - Stop!

If you don’t do that today, then when some seemingly distant tomorrow becomes today – and in the blink of an eye it will - the opportunity may very well be gone.

The Constitution – use it – or lose it!

And that was of course the end of the argument. He couldn't answer... but with another magic incantation of eye-rolls, and muttered '... just can't talk to you luddites', his spell was cast, absolving him from all need to think any further on this uncomfortable topic, and from the need of making his thoughts conform to reality... with the magic spell weaved... his contradictions were safe and secure, locked up within his super smart and cool leftist brain.

It is baffling... the contradictions the leftist requires that they live by. And while it's good to see that it's not just baffling to me, it isn't only Obama that's always contradicting himself, you simply cannot be a leftist, without blatantly contradicting yourself. Leftist thought requires arbitrary, contradictory positions - it fundamentally means opposition to reality.

It. Is. Unavoidable.

And your only defense against it, is a piece of paper completed by a bunch of guys in Philadelphia, 224 years ago today.

Happy Birthday to the U.S. Constitution... take a deep breath America, it's a lot of candles... be sure to make a good wish!

Sunday, July 04, 2010

A Defence of Liberty for the Fourth of July

I’m only half way through Justice Clarence Thomas’s concuring opinion in the recent 2nd amendment case "M c DONALD et al. v . CITY OF CHICAGO, ILLINOIS", but from what I’ve read so far, it’s an excellent defense of the Constitution itself, and our ability to understand and apply it. I thought that since it formulates a defense of our 2nd Amendments rights, it’s particularly well suited for consideration on this day, the Fourth of July, when the people of the United States of America first declared their independence from the control of tyrants.

Truth be told, I also didn't mind that he makes mention of he importance of the Slaughter-Houses cases, and Lochner v New York, which I cited here, regarding their importance in diminishing the understanding of our rights and distancing us from being able to count on a sound constitutional defense for our liberties.

Once again Thomas shows himself to be a far better judicial mind than either of the more renowned (and timid) 'originalists' Scalia, Roberts or Alito, are.

Justice Thomas is the only one who ventures to state what it seems that the other conservative Justices suspect to be true, but aren't willing or able to support, that the sleight of hand that has with over a hundred years of creaking precedent, attached to the magical 'due process' clause, along with willfully anemic interpretations of the 'Privileges and Immunities' clause of the 14th amendment, are simply excuses for rationalizing desired pet results out of the constitution, while it is the full understanding of the Privileges and Immunities clause, that is the only proper conduit for the Federal Bill of Rights to be applied down to and within the individual states, and is the only method which won't also lead to an erosion of the powers of the states.

With his practice of reviewing and citing actual historical understanding (rather than just statements and actions) and the facts as they were known at the time, he slams home over and over again, that the proper basis for someone to gain an understanding of the Constitution, is through an understanding of the philosophy of Natural Law, as the Classical Liberal Founding Fathers did, and it is folly to presume that someone will be able to properly defend it and apply its timeless principles, without such an understanding. For instance,

“...It cannot be presumed that any clause in the constitution is intended to be without effect.” Marbury v. Madison , 1 Cranch 137, 174 (1803) (Marshall, C. J.). Because the Court’s Privileges or Immunities Clause precedents have presumed just that, I set them aside for the moment and begin with the text.

The Privileges or Immunities Clause of the Fourteenth Amendment declares that “[n]o State . . . shall abridge the privileges or immunities of citizens of the United States.” In interpreting this language, it is important to recall that constitutional provisions are “ ‘written to be understood by the voters.’ ” Heller , 554 U. S., at ___ (slip op., at 3) (quoting United States v. Sprague , 282 U. S. 716, 731 (1931) ). Thus, the objective of this inquiry is to discern what “ordinary citizens” at the time of ratification would have understood the Privileges or Immunities Clause to mean. 554 U. S., at ___ (slip op., at 3).



At the time of Reconstruction, the terms “privileges” and “immunities” had an established meaning as synonyms for “rights.” The two words, standing alone or paired together, were used interchangeably with the words “rights,” “liberties,” and “freedoms,” and had been since the time of Blackstone. See 1 W. Blackstone, Commentaries *129 (describing the “rights and liberties” of Englishmen as “private immunities” and “civil privileges”). A number of antebellum judicial decisions used the terms in this manner.

See, e.g. , Magill v. Brown , 16 F. Cas. 408, 428 (No. 8,952) (CC ED Pa. 1833) (Baldwin, J.) (“The words ‘privileges and immunities’ relate to the rights of persons, place or property; a privilege is a peculiar right, a private law, conceded to particular persons or places”). In addition, dictionary definitions confirm that the public shared this understanding. See, e.g. , N. Webster, An American Dictionary of the English Language 1039 (C. Goodrich & N. Porter rev. 1865) (defining “privilege” as “a right or immunity not enjoyed by others or by all” and listing among its synonyms the words “immunity,” “franchise,” “right,” and “liberty”); id. , at 661 (defining “immunity” as “[f]reedom from an obligation” or “particular privilege”); id. , at 1140 (defining “right” as “[p]rivilege or immunity granted by authority”). 2

The fact that a particular interest was designated as a “privilege” or “immunity,” rather than a “right,” “liberty,” or “freedom,” revealed little about its substance. Blackstone, for example, used the terms “privileges” and “immunities” to describe both the inalienable rights of individuals and the positive-law rights of corporations. See 1 Commentaries, at *129 (describing “private immunities” as a “ residuum of natural liberty,” and “civil privileges” as those “which society has engaged to provide, in lieu of the natural liberties so given up by individuals” (footnote omitted)); id. , at *468 (stating that a corporate charter enables a corporation to “establish rules and orders” that serve as “the privileges and immunities . . . of the corporation”). Writers in this country at the time of Reconstruction followed a similar practice. See, e.g. , Racine & Mississippi R. Co. v. Farmers’ Loan & Trust Co. , 49 Ill. 331, 334 (1868) (describing agreement between two railroad companies in which they agreed “ ‘to fully merge and consolidate the[ir] capital stock, powers, privileges, immunities and franchises’ ”); Hathorn v. Calef , 53 Me. 471, 483–484 (1866) (concluding that a statute did not “modify any power, privileges, or immunity, pertaining to the franchise of any corporation”). The nature of a privilege or immunity thus varied depending on the person, group, or entity to whom those rights were assigned. See Lash, The Origins of the Privileges or Immunities Clause, Part I: “Privileges and Immunities” as an Antebellum Term of Art, 98 Geo. L. J. 1241, 1256–1257 (2010) (surveying antebellum usages of these terms).

The group of rights-bearers to whom the Privileges or Immunities Clause applies is, of course, “citizens.” By the time of Reconstruction, it had long been established that both the States and the Federal Government existed to preserve their citizens’ inalienable rights, and that these rights were considered “privileges” or “immunities” of citizenship.

This tradition begins with our country’s English roots. Parliament declared the basic liberties of English citizens in a series of documents ranging from the Magna Carta to the Petition of Right and the English Bill of Rights. See 1 B. Schwartz, The Bill of Rights: A Documentary History 8–16, 19–21, 41–46 (1971) (hereinafter Schwartz). ”

That fact is on clear display by the more doctrinaire 'originalists' who are continually left flatfooted and still trying to prime their time machine of original intent asking WWFD (What Would the Founders Do?!), instead of ‘What does this concept mean?’. Thomas doesn't bother with transparent claims of having divined the Founding Father's 'original intent', and he isn't diverted by narrowly selected phrases whose meanings are then used as tools of equivocation - by both sides of the aisle - instead he goes back to original sources, not to show how they had felt about similar situations, but to show what concepts were understood to apply to the phrases, and the context they were used within, which also shows the patently empty nature of the commonly 'understood' meanings of those phrases. Here's a good example of that in action, picking up where he's looking at the earlier meaning of the Bill of Rights applying to Federal legislation, and not to the states (in this case also a 2nd amendment issue),

"... As the Court explains, if this case were litigated before the Fourteenth Amendment ’s adoption in 1868, the answer to that question would be simple. In Barron ex rel. Tiernan v. Mayor of Baltimore , 7 Pet. 243 (1833), this Court held that the Bill of Rights applied only to the Federal Government. Writing for the Court, Chief Justice Marshall recalled that the founding generation added the first eight Amendments to the Constitution in response to Antifederalist concerns regarding the extent of federal—not state—power, and held that if “the framers of these amendments [had] intended them to be limitations on the powers of the state governments,” “they would have declared this purpose in plain and intelligible language.” Id. , at 250. Finding no such language in the Bill, Chief Justice Marshall held that it did not in any way restrict state authority. Id. , at 248–250; see Lessee of Livingston v. Moore , 7 Pet. 469, 551–552 (1833) (reaffirming Barron ’s holding); Permoli v. Municipality No. 1 of New Orleans , 3 How. 589, 609–610 (1845) (same).

Nearly three decades after Barron , the Nation was splintered by a civil war fought principally over the question of slavery. As was evident to many throughout our Nation’s early history, slavery, and the measures designed to protect it, were irreconcilable with the principles of equality, government by consent, and inalienable rights proclaimed by the Declaration of Independence and embedded in our constitutional structure. See, e.g. , 3 Records of the Federal Convention of 1787, p. 212 (M. Farrand ed. 1911) (remarks of Luther Martin) (“[S]lavery is inconsistent with the genius of republicanism, and has a tendency to destroy those principles on which it is supported, as it lessens the sense of the equal rights of mankind” (emphasis deleted)); A. Lincoln, Speech at Peoria, Ill. (Oct. 16, 1854), reprinted in 2 The Collected Works of Abraham Lincoln 266 (R. Basler ed. 1953) (“[N]o man is good enough to govern another man, without that other’s consent . I say this is the leading principle—the sheet anchor of American republicanism. . . . Now the relation of masters and slaves is, pro tanto , a total violation of this principle”).

After the war, a series of constitutional amendments were adopted to repair the Nation from the damage slavery had caused. The provision at issue here, §1 of the Fourteenth Amendment , significantly altered our system of government. The first sentence of that section provides that “[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” This unambiguously overruled this Court’s contrary holding in Dred Scott v. Sandford , 19 How. 393 (1857), that the Constitution did not recognize black Americans as citizens of the United States or their own State. Id. , at 405–406.

The meaning of §1’s next sentence has divided this Court for many years. That sentence begins with the command that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” On its face, this appears to grant the persons just made United States citizens a certain collection of rights— i.e. , privileges or immunities—attributable to that status.

This Court’s precedents accept that point, but define the relevant collection of rights quite narrowly. In the Slaughter-House Cases , 16 Wall. 36 (1873), decided just five years after the Fourteenth Amendment ’s adoption, the Court interpreted this text, now known as the Privileges or Immunities Clause, for the first time. In a closely divided decision, the Court drew a sharp distinction between the privileges and immunities of state citizenship and those of federal citizenship, and held that the Privileges or Immunities Clause protected only the latter category of rights from state abridgment. Id. , at 78. The Court defined that category to include only those rights “which owe their existence to the Federal government, its National character, its Constitution, or its laws.” Id. , at 79. This arguably left open the possibility that certain individual rights enumerated in the Constitution could be considered privileges or immunities of federal citizenship. See ibid. (listing “[t]he right to peaceably assemble” and “the privilege of the writ of habeas corpus ” as rights potentially protected by the Privileges or Immunities Clause). But the Court soon rejected that proposition, interpreting the Privileges or Immunities Clause even more narrowly in its later cases.

Chief among those cases is United States v. Cruikshank , 92 U. S. 542 (1876) . There, the Court held that members of a white militia who had brutally murdered as many as 165 black Louisianians congregating outside a courthouse had not deprived the victims of their privileges as American citizens to peaceably assemble or to keep and bear arms. Ibid.; see L. Keith, The Colfax Massacre 109 (2008). According to the Court, the right to peaceably assemble codified in the First Amendment was not a privilege of United States citizenship because “[t]he right . . . existed long before the adoption of the Constitution.” 92 U. S., at 551 (emphasis added). Similarly, the Court held that the right to keep and bear arms was not a privilege of United States citizenship because it was not “in any manner dependent upon that instrument for its existence.” Id. , at 553. In other words, the reason the Framers codified the right to bear arms in the Second Amendment —its nature as an inalienable right that pre-existed the Constitution’s adoption—was the very reason citizens could not enforce it against States through the Fourteenth.

That circular reasoning effectively has been the Court’s last word on the Privileges or Immunities Clause. 1 In the intervening years, the Court has held that the Clause prevents state abridgment of only a handful of rights, such as the right to travel, see Saenz v. Roe , 526 U. S. 489, 503 (1999) , that are not readily described as essential to liberty.

As a consequence of this Court’s marginalization of the Clause, litigants seeking federal protection of fundamental rights turned to the remainder of §1 in search of an alternative fount of such rights. They found one in a most curious place—that section’s command that every State guarantee “due process” to any person before depriving him of “life, liberty, or property.” At first, litigants argued that this Due Process Clause “incorporated” certain procedural rights codified in the Bill of Rights against the States. The Court generally rejected those claims, however, on the theory that the rights in question were not sufficiently “fundamental” to warrant such treatment. See, e.g. , Hurtado v. California , 110 U. S. 516 (1884) (grand jury indictment requirement); Maxwell v. Dow , 176 U. S. 581 (1900) (12-person jury requirement); Twining v. New Jersey , 211 U. S. 78 (1908) (privilege against self-incrimination).

That changed with time. The Court came to conclude that certain Bill of Rights guarantees were sufficiently fundamental to fall within §1’s guarantee of “due process.” These included not only procedural protections listed in the first eight Amendments, see, e.g. , Benton v. Maryland , 395 U. S. 784 (1969) (protection against double jeopardy), but substantive rights as well, see, e.g. , Gitlow v. New York , 268 U. S. 652, 666 (1925) (right to free speech); Near v. Minnesota ex rel. Olson , 283 U. S. 697, 707 (1931) (same). In the process of incorporating these rights against the States, the Court often applied them differently against the States than against the Federal Government on the theory that only those “fundamental” aspects of the right required Due Process Clause protection. See, e.g. , Betts v. Brady , 316 U. S. 455, 473 (1942) (holding that the Sixth Amendment required the appointment of counsel in all federal criminal cases in which the defendant was unable to retain an attorney, but that the Due Process Clause required appointment of counsel in state criminal cases only where “want of counsel . . . result[ed] in a conviction lacking in . . . fundamental fairness”). In more recent years, this Court has “abandoned the notion” that the guarantees in the Bill of Rights apply differently when incorporated against the States than they do when applied to the Federal Government. Ante , at 17–18 (opinion of the Court) (internal quotation marks omitted). But our cases continue to adhere to the view that a right is incorporated through the Due Process Clause only if it is sufficiently “fundamental,” ante , at 37, 42–44 (plurality opinion)—a term the Court has long struggled to define.

While this Court has at times concluded that a right gains “fundamental” status only if it is essential to the American “scheme of ordered liberty” or “ ‘deeply rooted in this Nation’s history and tradition,’ ” ante , at 19 (plurality opinion) (quoting Glucksberg , 521 U. S., at 721), the Court has just as often held that a right warrants Due Process Clause protection if it satisfies a far less measurable range of criteria, see Lawrence v. Texas , 539 U. S. 558, 562 (2003) (concluding that the Due Process Clause protects “liberty of the person both in its spatial and in its more transcendent dimensions”). Using the latter approach, the Court has determined that the Due Process Clause applies rights against the States that are not mentioned in the Constitution at all, even without seriously arguing that the Clause was originally understood to protect such rights. See, e.g. , Lochner v. New York , 198 U. S. 45 (1905) ; Roe v. Wade , 410 U. S. 113 (1973) ; Lawrence , supra .

All of this is a legal fiction. The notion that a constitutional provision that guarantees only “process” before a person is deprived of life, liberty, or property could define the substance of those rights strains credulity for even the most casual user of words. Moreover, this fiction is a particularly dangerous one. The one theme that links the Court’s substantive due process precedents together is their lack of a guiding principle to distinguish “fundamental” rights that warrant protection from nonfundamental rights that do not. Today’s decision illustrates the point. Replaying a debate that has endured from the inception of the Court’s substantive due process jurisprudence, the dissents laud the “flexibility” in this Court’s substantive due process doctrine, post , at 14 ( STEVENS, J., dissenting); see post , at 6–8 ( BREYER, J., dissenting), while the plurality makes yet another effort to impose principled restraints on its exercise, see ante , at 33–41. But neither side argues that the meaning they attribute to the Due Process Clause was consistent with public understanding at the time of its ratification.

To be sure, the plurality’s effort to cabin the exercise of judicial discretion under the Due Process Clause by focusing its inquiry on those rights deeply rooted in American history and tradition invites less opportunity for abuse than the alternatives. See post , at 7 ( BREYER, J., dissenting) (arguing that rights should be incorporated against the States through the Due Process Clause if they are “well-suited to the carrying out of . . . constitutional promises”); post , at 22 (STEVENS, J., dissenting) (warning that there is no “all-purpose, top-down, totalizing theory of ‘liberty’ ” protected by the Due Process Clause). But any serious argument over the scope of the Due Process Clause must acknowledge that neither its text nor its history suggests that it protects the many substantive rights this Court’s cases now claim it does.

I cannot accept a theory of constitutional interpretation that rests on such tenuous footing. This Court’s substantive due process framework fails to account for both the text of the Fourteenth Amendment and the history that led to its adoption, filling that gap with a jurisprudence devoid of a guiding principle. I believe the original meaning of the Fourteenth Amendment offers a superior alternative, and that a return to that meaning would allow this Court to enforce the rights the Fourteenth Amendment is designed to protect with greater clarity and predictability than the substantive due process framework has so far managed.

I acknowledge the volume of precedents that have been built upon the substantive due process framework, and I further acknowledge the importance of stare decisis to the stability of our Nation’s legal system. But stare decisis is only an “adjunct” of our duty as judges to decide by our best lights what the Constitution means. Planned Parenthood of Southeastern Pa. v. Casey , 505 U. S. 833, 963 (1992) (Rehnquist, C. J., concurring in judgment in part and dissenting in part). It is not “an inexorable command.” Lawrence , supra , at 577. Moreover, as judges, we interpret the Constitution one case or controversy at a time. The question presented in this case is not whether our entire Fourteenth Amendment jurisprudence must be preserved or revised, but only whether, and to what extent, a particular clause in the Constitution protects the particular right at issue here. With the inquiry appropriately narrowed, I believe this case presents an opportunity to reexamine, and begin the process of restoring, the meaning of the Fourteenth Amendment agreed upon by those who ratified it.
If you are concerned with the status of the Constitution, and of how to defend it and our rights, Justice Thomas's opinion is one that is well worth your time to read.

Hope you all enjoyed a Happy Fourth of July!

Friday, June 04, 2010

First Amendment On Fire

Doesn’t look like I’m going to have time to finish the post I’m working on before the weekend, but I wanted to pass on something I was tipped off to this morning by Susannah, and it is one the more ominous events of the last few years, certainly one of the most depressing ones for the future of Freedom and Liberty.

To all of you leftists out there, please, if there’s even a shred of liberal understanding left within you, please tell me that even just the name of this program fills you with dread,
“The Federal Trade Commission just released what it called “Potential Policy Recommendations to Support the Reinvention of Journalism,”
... and hopefully anger?! Hello... First Amendment?! Seriously?

If it doesn’t.. look at it this way (as I asked you to in a previous post), when the party in the Whitehouse changes, as it eventually will, do you really want those you consider to be evil, nasty, tyrants – Conservatives (maybe even religious Conservatives!)– to be in control of a ‘reinvented’ journalism? And how about when you add Net Neutrality on top of that (my posts on it from last year here..., here ...and here)?

Please, everyone out there - STOP looking at the Constitution as a document favoring the Right or Left, it is what makes a Right AND Left possible - without it, there will be only One... and Freedom and Liberty will be only those things which they decree to be 'good'.

Stop looking for evil politicians of either party to fear and rail at; start looking closely at those in yours who want only to 'do good' without restraint... if you know anything of the history of Washington D.C., that should strike fear into your heart.