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.

Rafael 'Ted' Cruz, Clown, and Scum Bucket: pandering to the lowest common denominator aong foolish conservatives

Via Juanita Jeans

At the end of the most recent Supreme Court session, we again have Senator Cruz making wild statements about the latest SCOTUS decisions on gay marriage and the ACA.

Some are ironic, some are just bubbling buckets of pus designed to deceive and mislead his electorate base.

From Today News:

Cruz, a Harvard grad, criticized the Supreme Court justices as a group of "elites" from Harvard or Yale who lack religious diversity.

"They think that our views are simply parochial and don't deserve to be respected," he said. He said it was a point amplified by Justice Antonin Scalia, who dissented in both cases: "What a crazy system to have the most important issues of our day decided by unelected lawyers."

Let us Fisk these statements.

(To Fisk: verb 1.(slang) to refute or criticize (a journalistic article or blog) point by point
Word Origin
C21: after the use of this technique by Robert Fisk (born 1946), British journalist, to criticize articles - dictionary.com)

First of all we have the grotesque hypocrisy of Cruz being a Harvard Law graduate com laude, and much like President Obama, a few years ahead of him, Cruz was an editor of the Law Review. So for Cruz to criticize ANY justice of the SCOTUS as an 'elite' for having high qualifications for the bench is ridiculous. It is precisely people with legal training who should be sitting on the Supreme Court Bench. A lack of such credentials should be a deterrent, not a qualification to serve on the SCOTUS.

This is the rankest kind of pandering to the anti-intellectual crowd of the willfully ignorant conservative extremists.

Then Cruz goes on to complain about what the Today article refers to as a lack of religious diversity because none of the SCOTUS justices were Evangelicals.

THERE IS NO REQUIREMENT OR EVEN DESIRABILITY THAT EVANGELICALS HAVE A SEAT ON THE SCOTUS BENCH. Cruz is not concerned about an ACTUAL diversity of religion on the court -- he does not seek the court adding more Jews, Muslims, Eastern Orthodox, Buddhists, Sikhs or Hindus. THAT would be genuine religious diversity, as would having an atheist or agnostic. The reason we do NOT have that provision is that we are NOT A THEOCRACY.  It is INTENTIONAL that there be no preference for Evangelicals - OR ANY OTHER BELIEF OR FAITH.

But this is not a failing of the court, this is a feature not a bug of our Constitution, and it has a name: the No Religious Test Clause, Article VI, paragraph 3.

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.

So for Cruz, who is in his own right knowledgeable about the Constitution, to complain about this is to conservatives as some kind of religious SLIGHT to them, or quality of unfairness, is a crock of manure too toxic to be used as organic fertilizer.  It is intended only to foment distrust of the government and to promote ignorance about our Constitution.

This is just the crassest ploy to extract conservative mouth breathers and knuckle draggers from their hard earned cash.

Likewise, the emotional appeal to the exclusion of reason and logic, and facts, that the SCOTUS decision is one of the 'darkest days' of our nation is propaganda, designed to manipulate the weak-minded who vote for candidates like Cruz.

Like the No Religious Test clause, it is a feature, a deliberate choice, that the SCOTUS Justices are not elected and have no term limits, a choice made by the Founding Fathers in writing the Constitution, which they created to solve the obvious problems and failures of the original government post-American Revolution, the Articles of Confederation and Perpetual Unity.  This Constitution was established by those august Founding Fathers, who were well aware of the need to avoid political pressures on that entity.  It was not an oversight, it was not a mistake, and it was ratified by the people of the United States after it was created through a carefully negotiated approval process.

The approval of those Justices by the Senate, by our  directly elected Senators courtesy of the 17th amendment to the Constitution, which superseded Article I, §3, Clauses 1 and 2 of the Constitution.  Ironically, hypocritically, and in direct contradiction of trusting the electorate to vote on important positions directly, Cruz (along with other teabaggers) wants to REMOVE the right to direct vote our choice of Senators, by repealing the 17th amendment:

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.
When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.
This amendment shall not be so construed as to affect that the election or term of any Senator chosen before it becomes valid as part of the Constitution.

It makes no sense and has no chance of successful repeal to delete the 17th amendment from the Constitution but then to further alter it for direct election of the SCOTUS.  Either you trust the electorate - and your elected representatives - or you don't.

Specifically, Article II, Section 2, paragraph 2 of the U.S. Constitution provides:

[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

We elect or senators to approve Justices appointed to the SCOTUS on our behalf.  Specifically the Senate holds the power to advise and consent to nominations from the President, which confers legitimacy on the SCOTUS by an approval  process that includes both the Executive branch and the senior /more prestigious  house of the Legislative branch.  Direct election would not confer greater legitimacy on the SCOTUS Justices, particularly when we have been faced with such an epidemic of conservative enacted voter suppression and resulting decline in voter participation.

All Cruz is angling for is to offer the illusion of a means of control for the minority fringe to hijack the Constitution and to gin up dissatisfaction with the fact that everyone sometimes has to contend with a decision they do not like.

We saw no such objections to the SCOTUS over Hobby Lobby, an ENTIRELY PAROCHIAL decision.  If Cruz was making a valid criticism, that criticism would have been appropriate to the legitimacy of that decision as well, yet no such criticism was offered.  The minority extremist right wing evangelical fringe won on that one.

This kind of invalid criticism from Cruz ONLY appeals to those who claim to LOVE the Constitution, but who have no functional working knowledge of it.

These dishonest and unconstitutional opinions of Senator Rafael Cruz should disqualify him with the electorate of the United States from being a presidential candidate.  Cruz is genuinely demonstrating that he is a danger to the nation, a threat to the Constitution, and that he is a profoundly dishonest man.

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?

The U.S. Post Office Crisis: It Is Neither Broke nor Broken

"It is said that as many days as there are in the whole journey, so many are the men and horses that stand along the road, each horse and man at the interval of a day’s journey; and these are stayed neither by snow nor rain nor heat nor darkness from accomplishing their appointed course with all speed."
re the Persian Postal System / Courier System,  
Histories c. 450 BC
- Herodotus, ancient greek historian
                                                              which inspired

"Neither snow nor rain nor heat nor gloom of night stays these couriers from the swift completion of their appointed rounds", inscription, James A. Farley Post Office, New York City, NY circa 1912 (no, it is not the official motto of the U.S. Postal Service - they don't have one; however it could very well be considered an unofficial motto, considering how widely it is known)

I'm sick of hearing about the tea partiers and other right wingers who claim to LOVE the U.S. Constitution; most of them either know very little about it, and/or what they know is inaccurate.  Rather, these people would like to end our government, would like to privatize our government services so as to loot the resources of this country, and to exploit our citizens.  An example of that is the efforts to promote the privatization of the United States postal service.

The U.S. Constitution, Article 1, Section 8, the Enumerated Powers states

The Congress shall have power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;


To establish Post Offices and post Roads;


To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;—And

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.

It was always, from the beginning, the intention of our founding fathers, that we have a national post office servicing this country, as a function of government.  They were clear in their understanding of the importance of doing so, and especially the importance of this NOT being exploited by private business which could exercise a kind of control, restriction and limitation on our freedom of communication.

It is a project of the political right to destroy that historic, and essential postal service.  They wish to privatize it, to sabotage it, to destroy it.  This is an effort which is profoundly UN-American, which is potentially terribly dangerous to real freedom of communication, of commerce.  It is potentially destructive to the function and stability of our nation.  It is about greed, it is about a deliberate effort to restrict our national and individual liberty.  It is a dishonest action, and we should all be pushing back, hard, against it.  If there was ever a clear indication that the conservative political machine is against the citizens of this country, that it is corrupt and in the sole service of those who have money, to give them more money, at the expense of the rest of us, by exploiting all of us, this is the clearest example I could provide.

This is the occasion where we are commemorating the events of September 11, 2001, when we were attacked by terrorists from outside the United States.  Ten years later, this is a deliberate, calculated effort to attack us from within, to stage a private take over of essential public assets and services.  It is a maneuver by conservatives, people who are anything but the kind of patriotic Americans they claim in their lip service to our founding fathers and core values.  This is in the service of greed, and nothing but greed, and a blatant, shameful grab for power.

Don't be a low-information voter.  Don't be misled or disinformed, don't allow yourself to be manipulated or exploited, or to have your lawful government bought and sold to benefit a few at the expense of the many. 
 

The Post Office does not operate at a loss to the government; they pay their own way.  More than that, the Post Office is a major employer of veterans past and present.  We need to oppose this utterly corrupt and completely partisan war on Americans. 

The right will lie to you about what is at the center of the crisis, courtesy of the dishonest right wing media like Fox Fraudcast, but they are not telling the truth, they are not factually accurate at all:

So.........WHY is it that the right accepts, even embraces and praises their dishonest media? Why would anyone in their RIGHT mind abolish the post office? Do you REALLY believe that a corporation that is buying off the members of Congress is going to be competitive or more efficient, or give a damn about serving YOU?  Do you sincerely believe that a company that is operating for one purpose, their profit on the bottom line, is going to serve you BETTER, OR CHEAPER?  Do you genuinely believe that rural areas of the country will be served as well as urban areas, for example?

 If you think that, think again, and then think about how many different ways you could be screwed over by a company that successfully paid off the right wing members of Congress to shut down the Post Office, after 226 years.  The Founding Fathers thought enough of the project to entrust it to our first postmaster in 1775, Benjamin Franklin.  Yes, that's right! in 1775, not 1776; it was formed during the Second Continental Congress, in Philadelphia.  Before that, postal service dated back to 1692, under a grant establishing a government run Post Office, from William and Mary, King and Queen of England, Ireland and Scotland, not a private commercial operation.  (A little piece of trivia, up until 1971, the Postmaster General was the last person in the line of succession to the Presidency, should something happen to the person we elected.  Everyone should know the two next in line; bonus points if you can name the next four after the Vice President.)

Push back against this.  Push back against the legislation being introduced by that corrupt hack, Congressman Issa.  Contact your members of Congress, both the House and the Senate, and support the PRO-Post Office legislation that will undo the bastardization of their finances that occurred under the despicable administration of George W. Bush.

For further reading, here is the link to the New York Times coverage of the Post Office; and here is perhaps the best in depth coverage of this, courtesy of Truthout.org (see our blog roll's most recent addition).

Right Wing Irony: Prayer Protest Arrests in the Halls of Congress

I'm sick of the right claiming to support the United States Constitution, while they misrepresent what it says, and while they try fundamentally to change it.  If anything highlights that hypocrisy in claiming to love and support the constitution, it was the arrests which occurred when there was a lawful, peaceful, religious protest this week in the halls of Congress. 

That protest has received far too little news attention, so I am addressing it here.

A brief review of our Constitution - the preamble:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, 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.

and the text of the First Amendment:

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.

For the small amount of news coverage of this event, I found it at KX.net.com, a North Dakota news source.  I'd like to know why we didn't have similar coverage here, in Minnesota, and at every news station in every state in this country.  Here is that coverage, from the AP:

Washington (AP) Some clergy have been arrested for staging a prayer protest in the U.S. Capitol.


With the House and Senate focused on debt-limit legislation at opposite ends of the Capitol, eleven religious leaders praying against budget cuts that would hurt the poor were arrested Thursday in the Rotunda midway between the two chambers.

Those arrested included a rabbi and leaders of the United Methodist Church, Church of the Brethren, the Presbyterian Church (U.S.A.) and the United Church of Christ.

The Rev. C. Welton Gaddy, president of the Interfaith Alliance, told protesters outside the Capitol that his colleagues had grown frustrated with the debt impasse and felt they weren't being heard.

Gaddy said, "It is time for people of faith and good will to speak up, and it is time for some politicians in Washington to grow up."

If it violates our U.S. Constitution for Congress to pass a law prohibiting freedom of speech, freedom of religion, freedom of assembly, and petition for redress of grievances,  I'd like to know under what statute these clergy were arrested for praying in the halls of Congress.  Because only Congress controls the legislation governing Washington D.C., and that includes the halls of Congress.  The laws which should supersede any other statute is the U.S. Constitution.

I'd like to know who these clergy were harming, what damage they are alleged to have done, other than possibly discomfitting the right wing who were promoting redistribution of wealth upwards, to the already wealthy few at the expense of middle class and the poor. 

If they were doing THAT, these clergy should be commended, not arrested. 

Support and defend the United States Constitution, and the rights it defines; protest these arrests to your local news media, and ask them why they haven't covered this.  Protest it to your representative in Congress, and demand an explanation for this, demand accountability.

It's not like these clergy, engaged in simple, humble prayer, were in any way a threat, other than to the consciences of the members of Congress.  It's not like they were armed and dangerous, carrying guns..... oh, wait, the right, especially the right wing extreme would probably be up in arms (pun intended) over an arrest in the halls of Congress for THAT.  They like the idea of arms in churches, and armed clergy.  The right seems to selectively defend the 2nd Amendment rights, just not all the other rights, or at best defends them selectively.  Free speech?  Freedom of Assembly.....yeah, those the right supports not so much.

UNCONSTITUTIONAL: Tim Pawlenty's Presidential Campaign Proposals

Look at this video, aproximatley 13 minutes in (slide the button forward to skip the rest - it isn't any better):

Tim Pawlenty and other conservatives give a lot of insincere lip service to honoring and supporting the U.S. Constitution and the intent of the Founding Fathers. 

Except, they don't.  Not really.

If you don't know the U.S. Constitution well, read about it here.

I do know the Constitution, not as a constitutional scholor or a constitutional lawyer, but as an ordinary person who has had a good education in history, including U.S. history.  So my ears perked up when I heard Tim Pawlenty, who I consider an embarrassment to Minnesota, claiming he would privatize the Post Office.

Because our Constitution is very clear on the Unites States Post Office, Article 1 Section 8, the 'enumerated powers':

The Congress shall have power To

lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;  To borrow Money on the credit of the United States; To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; To establish a uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States; To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures; To provide for the Punishment of counterfeiting the Securities and current coin of the United States;
To establish Post Offices and post Roads;
 To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries; To constitute Tribunals inferior to the supreme Court; To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations; To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; To provide and maintain a Navy; To make Rules for the Government and Regulation of the land and naval Forces; To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress; To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;—And 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.

And TPaw either doesn't know or doesn't care about the Presidential Oath of Office, from Article 2, Section 1, which states:

"I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."

No, Tim Pawlenty wants to abandon the enumerated powers, and simply sell off the government of the United States as defined in the U.S. Constitution, and as decided by the citizens of the states and counties and local communities as well for that matter, to the benefit and control of rich individuals and big corporations, in the futile name of specious economic growth (in other words, not progress, but just plain greed).

Here is a marvelous video from youtube that shows you just what the reality of Pawlenty's ideas (stolen from Steve Goldsmith, not really his own) would look like:

Right Winger, Wrong Again - Rep. Peter King Versus the Statistics

Republican Rep. Peter King is playing to his Islamophobic base with made-up information AGAIN. 

A former terrorist sympathizer and supporter, King is proud of helping send guns and money to the highly terroristic IRA to aid them in blowing up civilians in the UK.  Apparently, so long as it is not on U.S. soil, King doesn't give a rip if he helps blow up our closest allies, on THEIR soil, or American tourists in the UK for that matter.  Mike Huckster-bee was just complaining that he didn't think Obama looked at the British the way that white, middle class, more real Americans did, because of the Mau Mau rebellion some 10 years before Obama was born... how well does Rep. King do in that regard? 

It is Rep. Peter King AND Mike Huckster-bee who are out of touch with how Americans - us REAL Americans - feel about terrorists, including those who blow up British department stores.  I would hope as we approach St. Patrick's Day, both the right, the center, and the left REMIND these men how out of step they are with the great parade of American thinking.