The Constitution Isn’t a Living Document — It Was Built to Resist You

They didn't want you to have arms to resist, or defend yourself. They wanted you to bear arms in a militia to preserve the system (Art I, Sec. 8, Clause 15 and article III, Sec. iii). 

You are the yahoos who would come later.

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.

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.

Sic semper proditores (Thus always to traitors)

OK, all you supposed "Constitutionalists" out there:

1. The Constitution makes it clear that waging war on the US is treason (Article III, Section iii--it's the only crime mentioned in the Constitution!). 18 USC Chapter 115 tells you what laws you are violating and it was passed in accordance with US Constitution Article VI.
2. The Second Amendment does not explicitly repeal any of the main Constitutional provisions relating to treason and insurrection.
3. Just because you don't like it doesn't mean it is unconstitutional.

Dennis v. United States, 341 U.S. 494 (1951) puts paid to the insurrectionist theory:

"The obvious purpose of the statute is to protect existing Government, not from change by peaceable, lawful and constitutional means, but from change by violence, revolution and terrorism. That it is within the power of the Congress to protect the Government of the United States from armed rebellion is a proposition which requires little discussion. Whatever theoretical merit there may be to the argument that there is a “right” to rebellion against dictatorial governments is without force where the existing structure of the government provides for peaceful and orderly change."

Verb sap.

Right to Rebellion?

I am totally amazed that no one vociferously refutes the assertion that there is somehow a right to rebellion in US law.

The United States Constitution makes it clear in Article III, Section iii that:

Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.
The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted.

US History shows that one of the main forces in creating a new Constitutional framework from the Articles of Confederation was Shays' Rebellion.  Shays Rebellion even had former rebels such as Samuel Adams saying:

in monarchies the crime of treason and rebellion may admit of being pardoned or lightly punished, but the man who dares rebel against the laws of a republic ought to suffer death.

Other former rebels were similarly appalled by what happened during Shays Rebellion.

US Constitution Article 1, Section 8, clause 15 states that the militia is supposed to suppress Insurrection.

Unless one can prove that the Second Amendment expressly invalidates the two aforementioned clauses of the Constitution, it is hard to say that it gives a right to rebellion.  In fact, any interpretation of the Second Amendment which purports that it allows for the ownership of arms in order to wage war on the government is obviously ludicrous given that it must be internally consistent:

It is presumed that a statute will be interpreted so as to be internally consistent. A particular section of the statute shall not be divorced from the rest of the act. The ejusdem generis (or eiusdem generis, Latin for "of the same kind") rule applies to resolve the problem of giving meaning to groups of words where one of the words is ambiguous or inherently unclear. The rule results that where "general words follow enumerations of particular classes or persons or things, the general words shall be construed as applicable only to persons or things of the same general nature or kind as those enumerated." 49 F. Supp. 846, 859. Thus, in a statute forbidding the concealment on one's person of "pistols, revolvers, derringers, or other dangerous weapons," the term "dangerous weapons" may be construed to comprehend only dangerous weapons of the kind enumerated; i.e., firearms, or perhaps more narrowly still, handguns. A hypothetical court may have to determine whether a sword, a Japanese throwing star, or a Taser fit into the "other" category of the statute. Here, the term "other dangerous weapons" must be given a meaning of the "same kind" as the word of established meaning.

 A statute shall not be interpreted so as to be inconsistent with other statutes. Where there is an inconsistency, the judiciary will attempt to provide a harmonious interpretation.

There is no way to harmonise a right to rebellion in the current structure of the United States Constitution.

Some people want to use the Declaration of Independence as a basis for this right, but that is also refuted by the US Constitution in Article VI, clause 2:

This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.

This means that the Declaration of Independence is a historic document without legal significance.  Also, there were other circumstances which the people who drafted the Declaration were addressing.  As I pointed out above, there were far more signers of the Declaration of Independence who thought Daniel Shays was wrong than there were the one who thought he was within his rights.

The Jefferson quote "I hold it that a little rebellion now and then is a good thing, and as necessary in the political world as storms in the physical" was written before the French Revolution occurred (30 Jan 1787).  The Terror would later make him reconsider still more, though he never entirely renounced the Revolution.

Still, one quote does not make law--especially if it contradicts the law.

What the Constitution was intended on preserving is a concept called the rule of law, which is the general concept that government as well as the governed are subject to the law and that all are to be equally protected by the law. Its roots can be found in classical antiquity. The vast difference between the rule of law as opposed to that of individual rulers and tyrants is a central theme in the writings of political philosophers from the beginning. In the works of Plato and as developed in Aristotle’s writings, it implies obedience to positive law as well as rudimentary checks on rulers and magistrates.

That said, one cannot claim to be a "Constitutionalist" if one does not believe in obeying the law, and working within the system to change the law if one disagrees with it.

The ultimate point is that the Constitution does not countenance violent overthrow of the government, but using the system to make any change.

Constitutionalists and the rule of law.

Most people who describe themselves as "Constitutionalists" need to understand EXACTLY what it is they claim to support: especially if they believe that have any form of "right" to insurrection.  Article III, Section iii makes it clear that position is bullshit (as does various other passages in the Constitution):

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

Section 3 of the Fourteenth Amendment also makes it clear that:

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

For a subset of this group of Constitutionalists which calls itself the "oathkeepers"  needs to be reminded that they are also subject to UCMJ if they are in the military.  The UCMJ  has sections which strictly prohibit many things done by the right. One is showing contempt toward the President (and other government officials):

10 U.S. Code § 888 - Art. 88. Contempt toward officials
 Any commissioned officer who uses contemptuous words against the President, the Vice President, Congress, the Secretary of Defense, the Secretary of a military department, the Secretary of Homeland Security, or the Governor or legislature of any State, Commonwealth, or possession in which he is on duty or present shall be punished as a court-martial may direct.

There is also 10 U.S. Code § 894 - Art. 94. Mutiny or sedition

(a) Any person subject to this chapter who—
(1) with intent to usurp or override lawful military authority, refuses, in concert with any other person, to obey orders or otherwise do his duty or creates any violence or disturbance is guilty of mutiny;
(2) with intent to cause the overthrow or destruction of lawful civil authority, creates, in concert with any other person, revolt, violence, or other disturbance against that authority is guilty of sedition;
(3) fails to do his utmost to prevent and suppress a mutiny or sedition being committed in his presence, or fails to take all reasonable means to inform his superior commissioned officer or commanding officer of a mutiny or sedition which he knows or has reason to believe is taking place, is guilty of a failure to suppress or report a mutiny or sedition.
(b) A person who is found guilty of attempted mutiny, mutiny, sedition, or failure to suppress or report a mutiny or sedition shall be punished by death or such other punishment as a court-martial may direct.

18 U.S. Code Chapter 115 addresses treason, sedition, and other subversive activities with 18 U.S. Code §2385 specifically prohibiting advocating the overthrow of the US Government.  These specific laws would be in line with Article III, Section iii of the Constitution.

And I have yet to see a "Constitutionalist" show me where exactly the Second Amendment happens to explicitly repeal Article III, Section iii.  We can also add that the Constitution was partially a reaction to Shays Rebellion.

The really big point that "constitutionalists" fail to understand is that they are bound by the laws which have been made in accordance to the Constitution. If they believe the laws were not lawfully enacted, then they are to use the proper constitutional framework, which is not rebellion, but the courts and legislature.

That what is meant by the rule of law:  The US is a nation of laws, not people. Article VI, Clause 2 of the Constitution states:

This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.

The problem is that we have seen people who claim to believe in the US Constitution who fail to understand basic concepts such as the Feds can regulate Interstate Trade (Article I, Section 8, Clause 3), yet we have seen silly and futile attempts to thwart this by the right.

In short, people who call themselves "Constitutionalists" need to bone up on what exactly they claim to believe in.

See also:

• No. Sorry. You're Not a 'Constitutional Conservative'