Sunday, September 23, 2018

More on the founders and republics

Another of the benefits claimed by the founders for having a republic over a democracy is that republics are supposed to be free of factions. That is that partisan bickering that we see in US politics should not be happening.

Boy, were they WRONG on that one with the partisan bullshit beginning long before the ink dried on the Constitution (or they even began debating the thing).

So, this is further evidence that the founders had no fucking idea what they were doing and had basically buried themselves. That means the US has been in constitutional crisis from at least the first Continental Congress.

No wonder the place is a mess.

See also:
The Founding Fathers on Party Strife (Quotes)
The Founding Fathers & Political Parties The Origins of Today's Bitter Partisanship: The Founding Fathers

Friday, September 21, 2018

Don’t quote the Founders on republics

I have serious questions about anyone who venerated the founders, who had no fucking idea what they were doing. That’s pretty much of an understatement for anyone who has any idea of early American history. Patrick Henry had an inkling he was making a mistake when he said:
Whether this (Independence) will prove a blessing or a curse, will depend upon the use our people will make of the blessings which a gracious God hath bestowed on us. If they are wise, they will be great and happy. If they are of a contrary character, they will be miserable.Righteousness alone cannot exalt us as a nation. Reader! Whoever thou art, remember this; and in thy sphere practice virtue thyself, and encourage it in others.
Not sure how anyone who was paying off the cost of a war would think that having another one would solve any problems. Toss in all the other issues that were left unaddressed because a bunch of hotheads wanted another war.

Anyway, their love for republics was yet another aspect of their ignorance. The Roman republic may have lasted for nearly 500 years but
Unlike the Pax Romana of the Roman Empire, the Republic was in a state of quasi-perpetual war throughout its existence. Its first enemies were its Latin and Etruscan neighbours, as well as the Gauls, who even sacked the city in 387 BC. The Republic nonetheless demonstrated extreme resilience and always managed to overcome its losses, however catastrophic…At home, the Republic similarly experienced a long streak of social and political crises, which ended in several bloody civil wars.
Toss in the French revolution would demonstrate that republics were anything but stable.

So, for all their attempts at trying to show a difference between a republic and a democracy. there probably wasn’t that much of one even in classical times,. But it sounds nice if one is starting on shaky ground.

Tuesday, September 18, 2018

The accusations against Kavanaugh show he shouldn't be a justice, but not for the harassment aspect.

OK, there was a question using a similar scenario to what Kavanaugh is facing given on a test during my legal education, which means that the legal issues here the should be obvious to a first year law student let alone someone who wants to be a supreme court justice.

The fact that Kavanaugh was 17 when this happened should be sending out shitloads of objections to this, but that would only be the beginning. I am amazed that all the profs who blog on this topic aren't going on about them. Clarence Thomas was Anita Hill's supervisor at the Department of Education and the EEOC, not a teenager: major difference.

I am not going to say what they are, but at least one of them is a constitutional issue. The fact that Kavanaugh isn't talking about it makes me worry about how good of a justice he would be.

The fact that this line of questioning Kavanaugh's ability to be a justice was allowed to see the light of day has me worried about the legal fraternity in the US.

So, while these allegations are serious, I don't think this is a fair line of questioning even if they are true. In fact, it makes me wonder how much of a case Kavanaugh's opponents have against him (other than his not having a basic knowledge of the law).

I think Kavanaugh's inability to address this basic issue of the law along with his poor knowledge of the law would be more than enough to deny him the nomination. But dragging an incident that happened 36 years ago is questionable even if true (hint hint).

This incident makes me worry about how far back opponents might go to destroy someone's political career. No one is going to be without some taint, but there may be a dearth of qualified candidates if the nomination process goes over someone's record with an electron microscope.

But the legal aspects and the defences they afford Kavanaugh in this situation are far more troubling to me in this process. The fact that a supreme court justice is unable to articulate them is even more troubling.

Thursday, September 13, 2018

The pro-gun position is bullshit.

Sorry people, but the pro-gun position is based upon lies.

It's pretty much a given that the serious research that was done on this issue has this result:

In 1993, the New England Journal of Medicine (NEJM) published an article by Arthur Kellerman and colleagues, “Gun ownership as a risk factor for homicide in the home,” which presented the results of research funded by the Centers for Disease Control and Prevention (CDC). The study found that keeping a gun in the home was strongly and independently associated with an increased risk of homicide. The article concluded that rather than confer protection, guns kept in the home are associated with an increase in the risk of homicide by a family member or intimate acquaintance. Kellerman was affiliated at the time with the department of internal medicine at the University of Tennessee. He went on to positions at Emory University, and he currently holds the Paul O’Neill Alcoa Chair in Policy Analysis at the RAND Corporation.

The 1993 NEJM article received considerable media attention, and the National Rifle Association (NRA) responded by campaigning for the elimination of the center that had funded the study, the CDC’s National Center for Injury Prevention. The center itself survived, but Congress included language in the 1996 Omnibus Consolidated Appropriations Bill  for Fiscal Year 1997 that “none of the funds made available for injury prevention and control at the Centers for Disease Control and Prevention may be used to advocate or promote gun control.” Referred to as the Dickey amendment after its author, former U.S. House Representative Jay Dickey (R-AR), this language did not explicitly ban research on gun violence. However, Congress also took $2.6 million from the CDC’s budget — the amount the CDC had invested in firearm injury research the previous year — and earmarked the funds for prevention of traumatic brain injury. Dr. Kellerman stated in a December 2012 article in the Journal of the American Medical Association, “Precisely what was or was not permitted under the clause was unclear. But no federal employee was willing to risk his or her career or the agency's funding to find out. Extramural support for firearm injury prevention research quickly dried up.”
OK, that was probably too complicated for most of the gun nuts reading this, but the summary is that a peer-reviewed study was published that contradicted the belief that guns are good for self-defence. Immediately after, the gun lobby made sure no further studies like this would be published.

 Prob is that Scientific American is publishing articles with headlines like:

More Guns Do Not Stop More Crimes, Evidence Shows

Data Confirm Semiautomatic Rifles Linked to More Deaths, Injuries

But what do you expect when you have an item that causes death or serious bodily injury when used correctly? It's a tool for killing if you want to go down that silly argument.

Anyway, even the Truth About Guns has shown that the guns protect us thing is a lie, but they won't admit it.

Then we get to the revisionist bullshit of the Second Amendment. Hey, you don't need to go beyond the Constitution's text to see that that Amendment relates to the militia and the common defence.

So, sorry, but the facts are in and they are "anti-gun".  You don't have a right to have a deadly weapon unless you are using it for the common defence. Live with it.

Tuesday, September 11, 2018

The Originalist's Dilemma

Brett Kavanaugh is exposing a dangerous and silly pretense for Constitutional interpretation: especially after showing that the Second Amendment in no way addresses anything OTHER than the Militia by using this school of interpretation as described. Originalism is supposed to be:
"Constitutional interpretation should remain anchored in the original meaning of the Constitution’s text, which is the source of the Court’s authority and legitimacy."
By that definition, Judicial review is not constitutional as it is not found in the text of the Constitution. Instead, it comes from the case of Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). Which happens to be the same case that backs up my assertion that the Second Amendment applies to the militia by stating that
“It cannot be presumed that any clause in the constitution is intended to be without effect”.

Of course, if one is going to find clauses in the Constitution to not be with effect and ignore precedent, then Marbury should be up there for being ignored.

But, where does that leave us if one ignores Marbury and concedes that judicial review is not a constitutional power of the court?

Heller and McDonald were ultra vires for being judicial legislation. Now, we are on the level where those cases were also ultra vires for being an unconstitutional act of legislation by the bench. Perhaps we should look into why the founders neglected to give the power of judicial review to the courts? Some of the complaints in the Declaration of Independence related to laws being abrogated, which would mean these are tyrannical acts by being both outside the power of the court, but also well beyond the scope of its power.


The rule of law is suppose to keep the law beyond the caprices of a few people. Nine unelected officials should not be able to make or break the will of the majority of the people. Now, the court is becoming a creature of partisan politics, which is even more frightening in light of its inability to grasp its role as a referee, not a player.

Originalism and the Second Amendment

This is all very simple since according to people who claim to believe in Originalism, "Constitutional interpretation should remain anchored in the original meaning of the Constitution’s text, which is the source of the Court’s authority and legitimacy." Using that definition:

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.
The text of the Second Amendment begins with "A well regulated Militia" which is "necessary to the security of a free State". The language of the text does not mention Self-defence, hunting, target practise, or any other non-militia uses. It is a well established rule or statutory interpretation that inclusio unius est exclusio alterius  which means  that ‘including one excludes another’. The example given where I found this was the statement ‘no dogs allowed’ under this rule would mean that panthers were allowed.

Likewise, the fact that the Militia is specifically referenced would lead one to conclude that this text addresses the militia, but does not cover uses other than the militia.

Likewise, a search of the US Constitution shows that it addresses the militia, but personal defence is not addressed. Likewise, the preamble of the text makes it clear that one of the reasons for adopting the Constitution is to deal with matters of the common defence. However, there are people who claim to follow originalism who are willing to ignore the actual text of the Constitution to advance their beliefs.

The actual wording of the Constitution makes it clear that the Militia and Common defence are covered, but personal uses of weapons aren't.  I am not going to get into the grammar of the Second Amendment since that isn't really germane if one is going solely upon the text. Anyway, Dennis Baron addresses that issue in his amicus brief to the Heller decision and this essay where he demonstrates that the founders would indeed have seen this as only relating to the militia.

Reading the Second Amendment as a statement in which every word counts follows from the opinion articulated by Chief Justice John Marshall: “It cannot be presumed that any clause in the constitution is intended to be without effect” (Marbury v. Madison, 1803). But even without that landmark ruling, it would have been clear to 18 th -century readers that the first part of the Second Amendment was bound to the second part in a cause-and- effect relationship, that the right to bear arms was tied by the framers directly to the need for a well-regulated militia.

The Second Amendment was pretty much considered settled case law which was thrown into disarray by Heller and McDonald. US v. Cruikshank, 92 U.S. 542 (1875) wasn't very helpful since it addressed private action, but Presser v. Illinois, 116 U.S. 252 (1886) and US v. Miller, 307 U.S. 174 (1939) both made it clear that the Second Amendment related to the Militia. Miller is usually not properly represented in recent "Second Amendment Scholarship" and totally ignored in the Heller and McDonald decisions because it is "not helpful".

Indeed, it is not helpful to the recent decisions which were ultra vires because they amended the Constitution to add a new meaning to the Second Amendment, as this essay has demonstrated. I would also add that Justice William O. Douglas addressed Miller and glossed it in his dissent in Adams v. Williams, 407 U.S 143, 150 -51 (1972) , which somehow is omitted in lists of SCOTUS cases mentioning the Second Amendment. Which is too bad since Justice Douglas was a member of the Supreme Court when Miller was decided, which makes him a very good source for how that case should be read.

Justice Douglas pointed out that in Second Amendment jurisprudence:
The leading case is United States v. Miller, 307 U.S. 174, upholding a federal law making criminal the shipment in interstate commerce of a sawed-off shotgun. The law was upheld, there being no evidence that a sawed-off shotgun had “some reasonable relationship to the preservation or efficiency of a well regulated militia.” Id., at 178. The Second Amendment, it was held, “must be interpreted and applied” with the view of maintaining a “militia.”
“The Militia which the States were expected to maintain and train is set in contrast with Troops which they were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia – civilians primarily, soldiers on occasion.” Id., at 178-179.
The Heller and McDonald decisions are examples of Judges failing to follow the rule of law, precedent, and their claimed theory of judicial interpretation. As I pointed out, those two decisions are ultra vires and should be ignored, which is easy since they are incredibly limited in their scope. But even then, some daring justice should show that the emperor has no clothes in these decisions.

Anyway, one doesn't need to go far if you believe that the text of the Constitution is determining in how to interpret the Second Amendment that it only applies to the militia. It is quite obvious that the Second Amendment relates to the militia from the text. But the Heller and McDonald decisions made it clear that the text was optional, which means that Originalism is a nonsensical school of constitutional interpretation.