The Constitution Wasn’t Sacred—It Was a Battle of Revolution. And It’s Failing again.

I've always thought "We the people" was propaganda: especially since the Constitution was pretty much drafted in secret. This is an interesting take on the document.

Supreme Court Can’t Hear Case Because Majority Had To Be Recused

People are upset about the mention of "court packing", but the founders didn't put judicial review into the Constitution. Toss in that the Supreme Court didn't have ethics rules until 2023!

And when they did adopt ethics rules (from NPR):

The U.S. Supreme Court Monday adopted its first-ever ethics code, bowing to pressure from Congress and the public. All nine justices signed onto the new code, which was instantly criticized for lack of an enforcement mechanism.

In an unsigned statement, the justices said though there has been no formal code, they have long abided by certain standards.

"The absence of a Code, however, has led in recent years to the misunderstanding that the Justices of this Court, unlike all other jurists in this country, regard themselves as unrestricted by any ethics rules," they wrote. "To dispel this misunderstanding, we are issuing this Code, which largely represents a codification of principles that we have long regarded as governing our conduct."

Public trust in the court has fallen amid revelations that Justice Clarence Thomas received gifts and travel from Harlan Crow, a Republican donor. Justice Samuel Alito has also been criticized for failing to disclose a fishing trip with Paul Singer, a big Republican donor with cases before the Supreme Court.

This gets better

With the release of the code Monday, the court is trying to be somewhat specific about what justices can and cannot do. But, there is a lot they can do and no enforcement mechanism as to what they are supposed not to do.

For example, the code is quite specific about financial transactions: Justices can make a real estate transaction, as long as it's not before the court. But the code simply reaffirms the commitment to the disclosure provisions that are in the existing code for all federal judges.

The code is also specific about recusal if family members, such as spouses, children or grandchildren, have a case before the court or is a lawyer before the court.

But the code also makes exceptions for justices that may not apply to lower court judges. For instance, a justice doesn't have to recuse if his or her relative files a friend of the court brief because the court receives so many of these briefs, sometimes over 100 in a single case, and it has loosened the rules on these briefs being filed.

In recent months, critics have raised concerns about Justice Thomas' wife, Virginia Thomas, and her activities to promote political causes that end up before the court. The code says that if a spouse or child living with the justice has a substantial interest in the outcome of a case — financial or any other interest — the justice is supposed to recuse. That would have meant, for example, that Justice Thomas would have to recuse in cases in which his wife has played a major role. Last year, Thomas did not recuse, and was the sole dissenter, in a case about whether former President Trump's White House records had to be turned over to the House committee investigating the Jan. 6 riot at the U.S. Capitol, despite Ginni Thomas' texts to then-White House Chief of Staff Mark Meadows urging him to take steps to overturn the 2020 presidential election results.

 I'm sorry, but I have not had respect for the US Supreme Court for a long time. Serious ethics rules would be a start.

Trump has found Gödel's Loophole in the US Constitution which allows the US to become a dictatorship.

Kurt Gödel was an Austrian-American logician, mathematician, and analytic philosopher. He was born in Austria and emmigrated to the United States

When Gödel was studying to take his American citizenship test in 1947, he came across what he called an "inner contradiction" in the U.S. Constitution. At the time, he was at the Institute for Advanced Study in Princeton, New Jersey, where he was good friends with Albert Einstein and Oskar Morgenstern. Gödel told Morgenstern about the flaw in the constitution, which, he said, would allow the U.S. to legally become a fascist state. Morgenstern tried to convince Gödel that this was very unlikely, but Gödel remained very concerned about it. He was an Austrian by birth and, having lived through the 1933 coup d'état and escaped from Nazi Germany after the Anschluss, had reason to be concerned about living in a fascist dictatorship. Morgenstern had secret discussions with Gödel about his concerns and told Einstein about them.

Since the exact nature of Gödel's Loophole has never been published, what it is, precisely, is not known. In his 2012 paper "Gödel's Loophole" F. E. Guerra-Pujol speculates that the problem involves Article V, which describes the process by which the Constitution can be amended. The loophole is that Article V's procedures can be applied to Article V itself. It can therefore be altered in a "downward" direction, making it easier to alter the article again in the future. So even if, as is now the case, amending the Constitution is difficult to bring about, once Article V is downwardly amended, the next attempt to do so will be easier, and the one after that easier still.  Other writers have speculated that Gödel may have had other aspects of the Constitution in mind as well, including the abuse of gerrymandering, prorogation of Congress, the Electoral College, and the presidential pardon.

In any case, the Gödel story is at least plausible. He spent a great deal of time thinking about systems of rules (axiom systems in mathematics), and looking for their limits and what such systems can say about themselves.

It should come as no surprise that when encouraged to look at the US constitution (which is, after all, just a set of rules), Gödel was enthusiastic and his thoughts turned immediately to what the system said about itself – and its limitations. It should also come as no surprise then that when he looked, he found some.

So, maybe the loophole isn't what is written in the US Constitution, but is something which has come about through tradition?  Although, I have come to realise the US Constitution is basically poorly written bumpf. A piece of shit written by a committee. Which is why he couldn't put his finger on one thing. Since as the speculation has pointed out, there are more than enough problems with it.

But Donald Trump pushed the envelope with his attack on birthright citizenship. Which is something I agree about and there is a simple solution which requires an amendment to the Constitution that at least one parent needs to have some legal connection to the United States (Ireland uses this). But instead of following tradition and protocol, Trump has chosen to use the nuclear option.

He's challenging the Supreme Court and its power.

So much for checks and balances.

So, I am going to quote myself on the biggest problem, which is one which custom has allowed to stand.

In fact, those decisions (Supreme Court decisions on the Second Amendment) should be laughed at. And any academic or practising lawyer who is shit for brains enough to give them the slightest credence should be barred from the practise of law since they ignore a fundamental basis of US Constitutional law.

Marbury v. Madison, 5 U.S. 137 (1803).

It's one of the first cases any constitutional law class covers, which is why anyone who gives Heller and McDonald a shred of legitimacy should be barred from the practise of law. Why? First off.

Marbury v. Madison, 5 U.S. 137, was a U.S. Supreme Court case that established the principle of judicial review in the United States, meaning that American courts have the power to strike down laws, statutes, and some government actions that contravene the U.S. Constitution.

Judicial review for constitutionality is not a power granted by the US Constitution: it comes from this case.

More importantly it centred around a clause in the US Constitution (hint, hint, for those shit for brains who want to call themselves "Constitutional Scholars").

My question when Heller came down was how does the system handle an out of control Judiciary? The obvious answer is that it defers to tradition. On the other hand, Trump is pointing out that the emperor is naked. Does the Supreme Court, or the Judiciary, have any real power to enforce its decisions? 

So, maybe the reason Gödel didn't tell anyone what this loophole happened to be was because it is that the entire constitution is a house of cards. Gödel could see this since English wasn't his first language and he was a logician. The loophole isn't something which is written into the constitution, it is something which was attributed to the constitution.

And as I have pointed out, proper legal method requires that something needs to be explicitly mentioned in the Constitution for it to be constitutional. Gödel's loophole is the deference given to concepts which are not explicitly written into the Constitution. Assumptions made by the founders which can be exploited by those with malicious intent. And the fact that language changes meaning.

The Second Amendment was the perfect example of this.

So, two people whose mother tongue is not English can agree on this. It's not what is written, it is what ISN'T written. Or is subject to misinterpretation.

Scalia was very wrong when he said: "Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct."

That is precisely what he needed to do before he set in motion the destruction of the United States.

And the "scholars", politicians, and lawyers who allowed this should resign their positions for someone who is competent.

'We the People' - the three most misunderstood words in US history | Mar...

Like it or not, the US Constitution, and the Declaration of Independence, are anything BUT popular documents. It was written in secret by a select group of people. Sure, there were debates, but they were anything open and above board until after the document was written. People forget that some people, the anti-Federalists, were against ratification of the constitution.

I don't totally agree with his analysis (the pronouns bit is anachronistic as heck), but he does make some very good points.

It wasn't written for the benefit of my ancestors who fought for independence and revolted at Morristown. It was written for the elite who said "We the people".

Marbury v Madison or why the Heller and McDonald decisions are wrong

Scalia fucked it.

I'll say it again. Scalia fucked it as does anyone who buys into the bullshit which is comprised by the Heller and McDonald decisions.

In fact, those decisions should be laughed at and any academic who is shit for brains enough to give them the slightest credence should be barred from the practise of law since they ignore a fundamental basis of US Constitutional law.

Marbury v. Madison, 5 U.S. 137 (1803).

It's one of the first cases any constitutional law class covers, which is why anyone who gives Heller and McDonald a shred of legitimacy should be barred from the practise of law. Why? First off.

Marbury v. Madison, 5 U.S. 137, was a U.S. Supreme Court case that established the principle of judicial review in the United States, meaning that American courts have the power to strike down laws, statutes, and some government actions that contravene the U.S. Constitution.

Judicial review for constitutionality is not a power granted by the US Constitution: it comes from this case.

More importantly it centred around a clause in the US Constitution (hint, hint, for those shit for brains who want to call themselves "Constitutional Scholars").

 Facts of the case

Thomas Jefferson defeated John Adams in the 1800 presidential election. Before Jefferson took office on March 4, 1801, Adams and Congress passed the Judiciary Act 1801, which created new courts, added judges, and gave the president more control over appointment of judges. The Act was essentially an attempt by Adams and his party to frustrate his successor, as he used the act to appoint 16 new circuit judges and 42 new justices of the peace. The appointees were approved by the Senate, but they were not valid until their commissions were delivered by Secretary of State James Madison.

The whole thing hinged on the interpretation of the US Constitution: in particular the clauses in it: 

"These are the clauses of the Constitution and laws of the United States which affect this part of the case." 

"Although that clause of the Constitution which requires the President to commission all the officers of the United States may never have been applied to officers appointed otherwise than by himself, yet it would be difficult to deny the legislative power to apply it to such cases. Of consequence, the constitutional distinction between the appointment to an office and the commission of an officer who has been appointed remains the same as if in practice the President had commissioned officers appointed by an authority other than his own." 

"It has been insisted at the bar, that, as the original grant of jurisdiction to the Supreme and inferior courts is general, and the clause assigning original jurisdiction to the Supreme Court contains no negative or restrictive words, the power remains to the Legislature to assign original jurisdiction to that Court in other cases than those specified in the article which has been recited, provided those cases belong to the judicial power of the United States." 

The most important passages:

"f it had been intended to leave it in the discretion of the Legislature to apportion the judicial power between the Supreme and inferior courts according to the will of that body, it would certainly have been useless to have proceeded further than to have defined the judicial power and the tribunals in which it should be vested. The subsequent part of the section is mere surplusage -- is entirely without meaning -- if such is to be the construction."

"It cannot be presumed that any clause in the Constitution is intended to be without effect, and therefore such construction is inadmissible unless the words require it. " 

So, Heller and McDonald got it wrong. McDonald doubly so since the historic record shows that the Second Amendment is tied to congress' power under Article I, Section 8, clause 16: to arm the militia. That relates to power granted to the Federal government, not the states.

The bottom line: Marbury v Madison found that no clause in the constitution is without effect. It also found that the courts had the power to review cases.

That poses two dilemmas if the court wishes to ignore this case.  This is especially true if one is an originalist who believes that "the judicial interpretation of the constitution which aims to follow closely the original intentions of those who drafted it." The people who drafted the Constitution were around when this case was decided. the Madison in question was James Madison: the person who drafted the Constitution.

John Marshall, who wrote this decision, was also involved in the creation of the US Constitution.

So, the founders believed that no clause in the constitution was to be without effect. 

To put it plainly: the people who wrote the constitution said that no clause was to be without effect.

That means what Scalia and similar ignorant shits for brains called "preferatory"  is indeed significant. This points to the ablative absolute construction being the more likely explanation.

That means that the "preferatory" clause of a "well-regulated militia being necessary for the Security of the Free State" is indeed the reason "for the right of the people to keep and bear arms not being infringed." That also fits in to the Constitutional frame work mentioned in the preamble: in particular the common defence.

I would also add that neither Heller nor McDonald were cases of first impression. Heller and McDonald are egregious in their failure to properly address the case law prior to their ultra vires act of amending the contsitution. Any proper decision would have to take into account Presser v. Illinois, 116 U.S. 252 (1886) as well as  US v. Miller, 307 U.S. 174 (1939). US v. Cruikshank, 92 U.S. 542 (1876) is short and only points out the connection to Article I, Section 8, clause 16. But all those cases point out that the right is related to the active militia and Article I, Section 8, clause 16.

So, Scalia was right: US v Miller wasn't helpful since it contradicted the result he wanted to achieve.[1] Which is the case for all the case law and the text of the US Constitution. That means the Heller and McDonald decisions are ultra vires in addition to failing to adhere to the rule of law.

I would be highly embarrassed to be associated with these decisions. Justice Roberts should figure out some serious damage control unless he wants his reputation marred by these harmful decisions.

That is because of the harm caused to the public by ripping the Second Amendment from the constitutional framework.

So, yes, I do hold you in contempt for your failure to follow the document you swore to uphold. You should be laughed off the bench for this serious error of judgement.

One that anyone who has seriously studied constitutional law should not make.

see also:

• Guns and Grammar: the Linguistics of the Second Amendment.
• Judicial Review or Judicial Activism? Marbury v. Madison (1803) 
• C-SPAN Landmark Cases | Marbury V Madison  
• Against Judicial Supremacy: The Founders and the Limits on the Courts
• The Court and Constitutional Interpretation

Footnotes:

[1]  US v Miller said:

With obvious purpose to assure the continuation and render possible the effectiveness of such forces, the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.

Justice McReynolds used different terminology than calling it "preferatory" and "operative", but that is EXACTLY what he is talking about.

Imagine this actually happening at the US Constitutional Convention.

The Good News: Catherine the Great has promised to give us a Donkey Show if we create an Electoral College.
The Bad News: It won't be for another 230 years or so.

Next, Let's ensure that we will have gun mayhem and mass shootings in the future.

Oh, cake!

The Death of Originalism

I have to comment about Brett Kavanaugh and his judicial philosophy, which he calls "originalist" I understand this approach is to interpret the Constitution's meaning as stable from the time of enactment, which can be changed only by the steps set out in Article Five.  That means altering the Constitution requires an amendment or amendments and subsequent ratification.

Well, if he really wants to be an originalist and follow the US Constitution AS WRITTEN, then he can't rule on the constitutionality of legislation: as that is not an enumerated role for the Supreme Court.

Instead, that comes from the case of Marbury v Madison, 5 U.S. (1 Cranch) 137 (1803). Marbury also says that no clause in the Constitution is without meaning, which means that Heller and McDonald are BS since they ignore a clause in the Second Amendment. I would add for good measure that the previous SCOTUS Second Amendment cases (Presser v. Illinois, 116 U. S. 252, and US v. Miller, 307 U.S. 174) Made it clear that the Second Amendment applied to the Militia, or current National Guard.

Miller contradicts the findings of the Heller and McDonald decisions saying:

"With obvious purpose to assure the continuation and render possible the effectiveness of such forces, the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view."  

Justice William O Douglas, who was on the court when Miller was decided, gave a summary of that case in his dissent to Adams v. Williams, 407 U.S 143, 150 -51 (1972):

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 307 U. S. 178. The Second Amendment, it was held, "must be interpreted and applied" with the view of maintaining a "militia."

According how the originalists claim their method of interpreting the constitution, a change from the Second Amendment applying to the Militia to allow for personal possession of firearms in the home would require and amendment: not occur through judicial fiat.

I would also add that the Constitution makes clear that it deals with matters of the common defence in the preamble and is silent on self-defence. Any first year law student knows that when a legal document is silent on an issue that that issue is not covered. There are a few other accepted rules of statutory interpretation which pretty much rule out that self-defence is addressed in the US Constitution and that the Second Amendment should be extended to allow for deadly weapons to be used for that purpose.

This adds in that the concept of self-defence in traditional common law is a mitigation, not an excuse. The black letter common law for this is:

Self-defence is a legal doctrine which says that a person may use reasonable force in the defence of themself or another.

Reasonable force is not in the mind of the person claiming self-defence, but in the finder of fact's (jury or judge) opinion. But the rule is pretty much that deadly force is NOT allowed unless there are extreme circumstances.


This might be the time to push this issue. No matter what, I would like an answer on the matter of how an "originalist" can somehow rule on constitutionality since that is not found in the text of the Constitution.

Even more importantly, an Originalist should not go against precedent and the Constitution as written. I am not sure how one would handle overturning a law for unconstitutionality since that is not a role given to the Supreme Court in the Constitution. Instead, it is found in custom.

On the other hand, now might be the time to find out how exactly a justice would handle this dilemma if they claim that they obey the constitution as written and any real change requires an amendment.

Sorry, but Laci is no longer taking new cases.

From the Washington Post:

A suspect in an interrogation told detectives to “just give me a lawyer dog,” the Louisiana Supreme Court ruled that the suspect was, in fact, asking for a “lawyer dog,” and not invoking his constitutional right to counsel. It’s not clear how many lawyer dogs there are in Louisiana, and whether any would have been available to represent the human suspect in this case, other than to give the standard admonition in such circumstances to simply stop talking.

While Laci strongly believes in the Constitutional Right to Counsel, she is no longer taking cases.  Even if she were willing to take this case on, she is not licensed to practise in Louisiana.

Too bad the PD was unaware of Laci, since he could have used her as a quite willing Canine counsel for his client in cases of judges with acute robeitis.

Conservatives LOVE LOVE LOVE our Constitution, except when they don't - especially the 1 A

If you follow right wing propaganda sources, like the World Nut(Net) Daily or the right wing Townhall, or the speeches by many conservatives, especially those who seek to be conservative presidential candidates, or the right wing nut megachurch preachers, there is a war on Christianity in this country.

Perennial candidates for president on the right, like Santorum, and Huckabee, want to put their extreme and highly controversial version Christian religion into public schools, on the taxpayer dime.

That is not true. The true threat to Liberty and religious freedom is not against Christianity, but from it,, against anyone and everyone who dares to refuse to conform to the religious right's bigotry and intolerance.

Amendment I

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.

from Conrell University Law School's Legal Information Institute:
The First Amendment's Establishment Clause prohibits the government from making any law “respecting an establishment of religion.” This clause not only forbids the government from establishing an official religion, but also prohibits government actions that unduly favor one religion over another. It also prohibits the government from unduly preferring religion over non-religion, or non-religion over religion.

It is consistently conservatives, who give loud but meaningless and empty lip service to loving and supporting our Constitution (hypocrites that they are) who persist in attempting to foist Christianity on the nation, attempting to turn us into a theocracy.

So for example, not only do we have a push for theocracy, we have a push to dumb down education -- PUBLIC education -- by not only a push to repeal testing and standards, but by removing qualified teachers from classrooms and then replacing them with unqualified cheaper babysitters, who could be expected to push garbage, like creationism.

from PoiticusUSA:
Republican anti-education efforts don’t get much worse than the Tea Party’s own Michigan State Rep. Gary Glenn’s (R-Larkin Township) House Bill 4394.

As Michigan-based Electablog explains,

If Glenn’s bill – House Bill 4394 – becomes law, schools can hire anyone they want. The criteria currently used would be tossed out the window. The bill literally strikes out all of the criteria. In addition, it removes the words grades “9 through 12″ meaning that schools could hire anyone they wish, with or without a teaching certificate, for any grade level. No training as an educator required.

And continuing from the same piece in Politicus:

Here is the thing, students who get a quality education -- which should include civics classes, which should include the 1A establishment (of no public religion) DOES create BOTH good citizens AND EMPLOYABLE CITIZENS, who can then support themselves, support their families, pay taxes, and be qualified if we need them to do so to serve in our armed forces. Lack of adequate education is actually a problem for armed forces recruiting -- and serving in the military, which is very much NOT a corporation, is a real and legitimate job choice/ career choice.

Further the notion that one can only be a good citizen if one is indoctrinated in and a current believer in religion -- and let's be candid here, by religion these nutjobs ONLY mean Christianity, they make a fundamentl error. People recognize and understand moral and ethical behavior WITHOUT RELIGION. Further, there are plenty of people who are believers in religion who do bad things, both as private individuals, and in their roles as citizens in the public sphere. So having religion is no guarantee of being a good citizen and not having religious beliefs does not present a risk that someone will be a bad citizen.

That is a right wing fantasy, part of their 'Us vs Them' orientation where they are dishonest about the faults of the 'us' and dishonest and unfair, and just plain bigoted about the 'them' of that equation. So apparently Todd Courser, like his buddy in the MI legislature, Gary Glenn (what is with the redundant consonants?) BOTh fail to grasp the appropriate role of government (which includes providing functional, not religious public education), but which also utterly fails to understand and loyally support the Constitution, notably the 1st Amendment.

This is appallingly unique to conservatives, who present an actual danger by these beliefs to our representative form of secular democratic government and who threaten our very real liberties.

More than that we have the Arizona legislator who would like (but at least does not expect) to coerce everyone in the USA to go to church (again, CHRISTIAN church, none of the Jewish, Muslim, or pagan religions like Hinduism or Buddhism) and again the presumption is this is essential for the success of the nation, and for proper soul-saved citizens. Never mind what the practical results on institutions of religion would be if citizens were actually coerced by the law to attend against their will.

From KREM2:

Arizona senator wants to make church mandatory

Allen, as You know, is a Republican from Snowflake, a Tea Party favorite who wants to pretend Arizona is an independent country rather than a state, and who believes government should stay completely out of people lives -- unless she can use her position to help out a son-in-law who got into some hot water over behavior with some of the inmates he was guarding at a women's prison.
But that's another story.
Anyway, Big Guy, they were debating a gun bill at a legislative committee meeting at the State Capitol this week so, naturally, Allen brought up religion.
(In Arizona, complete lack of logic is natural. But, you know that, too)
This was one of those crazy bills in which lawmakers want people to be able to bring concealed weapons into public buildings. Allen got upset because a few people expressed common sense opposition to the idea. Lawmakers here cannot abide common sense.
Allen said, "Probably we should be debating a bill requiring every American to attend a church of their choice on Sunday to see if we can get back to having a moral rebirth," adding "that would never be allowed."

The problem is that even when these right wing FASCISTS know that what they want is not allowed, as we see in Michigan and other states, they try it anyway. Because they do NOT love the Constitution and they do NOT love religious freedom.  They love coercion, they love religious conformity, so long as it is strictly to whatever shots they see fit to call in their ignorance, bigotry, and intolerance.

Louisiana, Tennessee and Mississippi (again with the redundant consonants) want to make the Bible their state book.

Mississippi conservatives want to make Christianity their state religion.  So do conservatives in North Carolina.  Both states have had actual legislation to do so, other red states have had discussions about doing so, or at least desiring to do so.

A poll by the HuffPo and Yougov back in April 2013 found that 1 in 3 Americans want to make Christianity the official NATIONAL religion.  Let us be clear, overwhelmingly, regardless of declared party affiliation, this is hugely more a problem from conservatives, attacking actual religious freedom.

From the Huff Po:

Although a large percentage of Americans said they would favor establishing a state religion, only 11 percent said they thought the U.S. Constitution allowed states to do so. Fifty-eight percent said they didn't think it was constitutional, and 31 percent said they were not sure.
...Republicans were more likely than Democrats or independents to say that they would favor establishing Christianity as an official state religion, with 55 percent favoring it in their own state and 46 percent favoring a national constitutional amendment.

We are not a theocracy.  Theocracies created second class citizens, and it has wisely been observed that the pernicious state religious promotion is the new Jim Crow.

Disclaimer, I've written in the past for both IVN and PoliticusUSA.

Now that you've tried the Second amendment--let's see how you do on the rest of the Constitution.

And how would YOU do on this test?

A Quiz on the U.S. Constitution

Given that our recent discussions have touched on Constitutionally guaranteed rights as determined by the Supreme Court of the United States, I thought it would be appropriate, and fun, to offer up this entertaining and informative quiz: Inside the Constitution, Your Government IQ.
Of course, they also are the two groups who want to most dramatically and drastically alter the foundation document of our Constitution.........which I think begs, utterly, the question of following, or honoring, that Constitution.

"The Tea Party and new Republican majority in the House want to more literally follow the Constitution."

A More Perfect Union - Part I

"We, the people of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of liberty to ourselves and our Posterity, do ordain and establish this Constitution of the United States of America." - Preamble to the US Constitution.

The Preamble to the Constitution grants no special powers either to the states, to the federal government, or to the people. Rather, it establishes the general purpose for the establishing a new form of government on the North American continent and gives some of the essential goals in establishing this brilliant plan of government. The Constitution itself is divided into various articles. Each of the articles deals with a particular area. There are seven articles and 27 amendments to the Constitution. This article discusses Article I - The Legislative Branch.

"All legislative powers shall be vested in a Congress of the United States, which consist of a Senate and a House of Representatives" Article I, Section 1. Congress has the sole power to legislate or to create new laws, although Congress has, over the years, increasingly allowed executive departments to create regulations which have the force of law. The courts have generally been tolerant of this, and in fact, in only three cases have they invalidated laws based on delegation of congressional authority. Congress, while having been given the authority to legislate, also has the authority to investigate what it can regulate. Congress has evolved the authority to subpoena witnesses and documents to assist it in its investigations. While many of these investigations seem to be political grandstanding, the courts have generally paid great deference to Congress' authority in this area and have rarely intervened. See: Barenblatt vs. US 360 US 109 (1959) "The power of inquiry has been employed by Congress throughout our history, over the whole range of the national interests concerning which Congress might legislate or decide upon due investigation not to legislate; it has similarly been utilized in determining what to appropriate from the national purse, or whether to appropriate"

Congress is composed of two houses: the Senate and the House of Representatives. The Senate is composed of two senators from every state, elected at large. (Note: Direct election of senators did not occur until the adoption of Amendment XVII in 1912.) The senate was set up to give a balancing to the larger states, whose members would otherwise overshadow the smaller states in the House of Representatives. Each house has the authority to determine its own rules and procedures, and they differ quite distinctly from each other. Debate in the House is much more regimented, with a rule being established prior to every debate that specifies the length of the debate, etc. Debate in the Senate has no time limit, and in fact, the practice of a filibuster is a way for the minority party to stall a bill in the hopes of defeating it, even if they don't have the votes to defeat it outright. While the Senate has two senators from every state, the Constitution directs that the House of Representatives be apportioned based on population, with each state guaranteed at least one member of the House of Representatives. This is especially important as the upcoming census approaches and each party will be trying to affect census data so to allow them to draw the districts for the House and therefore increase election chances for their party members.

Congress is granted certain exclusive powers. These include the power to declare war and make peace, to approve all treaties, to maintain an army and navy, to establish inferior courts to the Supreme Court, to levy taxes, to regulate commerce between the states and between foreign nations, and others. One important clause states that "To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof". Article I, Section 8. This is often called the expansion clause, because it is used as legal justification for doing almost anything.

The commerce clause is often used by Congress to enact a variety of legislation. However, a couple of recent cases indicate that the Supreme Court's willingness to allow Congress do as it pleases under the stretch of the commerce clause may be coming to an end. Specifically, the Court held in United States vs. Lopez 519 US 549 (1995) that Congress could not use the commerce clause to expand federal police powers over areas traditionally governed by the states. The Court, however, in Gonzales vs. Raich 545 US 1(2005) did not continue along this line, and while not expressly overruling its holding in Lopez supra, it did indicate that the Court's opinion on this clause is in flux.

Congress also has some limits. Congress may not pass a bill of attainter, nor may it suspend the writ of habeus corpus (with a few exceptions), and Congress may not grant titles of nobility. It also must only enact a direct tax by doing so based on proportionate taxation of the states. In practice, the income tax amendment of 1916 has superseded this section.

States are also limited in Article I. States may not enter into agreements with each other without the consent of congress, they may not keep armies or troops during times of peace, and they may not go to war unless actually invaded. More importantly, they must tax the imports of each state equally, and may not tax exports except to the point needed to carry out inspection laws. States may not impede the operation of a contract. States may forbid certain clauses in a contract, but not one that is currently operative.

Article I of the Constitution establishes considerable power for Congress, if Congress decides to exercise that power. In Part II of this series, I will discuss the Executive branch, and along with that discussion, the unique relationship that has evolved with Congress, including the limits and expansion of Executive power.