Issues in the American Creed (Constitutional Law and related matters) SCOTUS

[G M]

ACLU 2008 Membership Conference

Agenda
 

Sunday, June 8th 

2 PM  Registration Opens

3 PM  Youth reception

3:30 PM LGBT reception

            5 PM Opening Plenary: “Looking Ahead: Political Realities of a Post-Bush America” Glenn Greenwald, Arianna Huffington, Rachel Maddow

            6:30 PM Dinner 

            7:30 PM Comedy by Judy Gold

            8 PM “Rights, Camera, Action”    Alex Gibney, Ariel Dorfman, Johanna Blakley
             
             

            Monday, June 9th 

            8 AM “Reflections on a Post 9/11 World” Keynote address by Anthony Romero, ACLU Executive Director

            9:15 AM “Principled and Proud: Standing Up for Core Values”

            10:30 AM Workshops

            12:30 PM “The War on Terror: Protecting Rights and Liberties Beyond Our Border”

            Justice Arthur Chaskalson, John Hutson, reading by Ariel Dorfman

            2:30-4:30 Workshops

            6:30-9 PM ACLU Gala
             
             

            Tuesday, June 10th 

            8 AM Breakfast Plenary: “The Hero Next Door: Challenging Abuse of Power in the Neighborhood”   

            10:15 AM Workshops

            12:30 PM Closing Plenary Lunch: “Our Lady Liberty: Celebrating Nadine Strossen” 

            Supreme Court Justice Ruth Bader Ginsburg, Supreme Court Justice David Souter, Supreme Court Justice Antonin Scalia, Kathleen Sullivan, Rev. Barry Lynn, Aryeh Neier, Norman Dorsen – with a special performance by musician John Hiatt

            2-5 PM Hill Visits
             

Don’t miss exciting workshops on a wide variety of civil liberties issues including: racial justice and affirmative action, women’s rights, technology and liberty, LGBT issues, reproductive freedom, youth engagement, immigrants’ rights and government intrusion into private matters. Plus trainings for Hill Visits will be held throughout the conference.

[DougMacG]

I thought the ACLU conference opened with the Pledge of Allegiance ... to the U.N.
-----

I thought the organizing idea of the tea party, 1773 or 2010, was a return to founding principles.  Who better than Justice Antonin Scalia (or any of 8 other justices) to speak?  Just like the tea party, they have it in their job description (I thought) to return us to our founding principles.

Problem with Pravda / NY Times is that they were told the tea party meant something else - starve the poor, return blacks to slavery, make gays learn hetero, and kick Grannny off her meds - that kind of thing.

[Crafty_Dog]

GM:

Well that certainly makes for a pithy rejoinder to the POTH claptrap!

[Crafty_Dog]

"If Congress can do whatever in their discretion can be done by money, and will promote the General Welfare, the Government is no longer a limited one, possessing enumerated powers, but an indefinite one, subject to particular exceptions." --James Madison

Liberty
"

• ne reason the Founding Fathers decided to break with England was their dismay with England's mercantilist system, which generally required colonists to purchase manufactured goods from, or through, England rather than produce them in the colonies. Hatred for this system inspired a Virginia farmer named George Washington to try to convert his colonial farm into a self-sufficient unit -- where ... he could produce and consume what he wanted without trading with others, especially those in England. The Framers, who had not forgotten English mercantilism, wrote the Commerce Clause of the Constitution to create a free-trade zone among the American states. Their aim was to facilitate freedom, not restrict it. ... [Judge Henry] Hudson, while carefully staying within the Supreme Court precedent of Wickard v. Filburn, correctly understood that the issue raised by Obamacare's individual mandate ... is freedom itself. 'The unchecked expansion of congressional power to the limits suggested by the Minimum Essential Coverage Provision would invite unbridled exercise of federal police powers,' Hudson wrote in his opinion. ... And you thought liberals believed in freedom of choice?" --columnist Terence Jeffrey

[Crafty_Dog]

second post of the morning:

POTH:

The same people driving the lawsuits that seek to dismantle the Obama administration’s health care overhaul have set their sights on an even bigger target: a constitutional amendment that would allow a vote of the states to overturn any act of Congress.

Under the proposed “repeal amendment,” any federal law or regulation could be repealed if the legislatures of two-thirds of the states voted to do so.
The idea has been propelled by the wave of Republican victories in the midterm elections. First promoted by Virginia lawmakers and Tea Party groups, it has the support of legislative leaders in 12 states. It also won the backing of the incoming House majority leader, Representative Eric Cantor, when it was introduced this month in Congress.

Like any constitutional amendment, it faces enormous hurdles: it must be approved by both chambers of Congress — requiring them to agree, in this case, to check their own power — and then by three-quarters of, or 38, state legislatures.

Still, the idea that the health care legislation was unconstitutional was dismissed as a fringe argument just six months ago — but last week, a federal judge agreed with that argument. Now, legal scholars are handicapping which Supreme Court justices will do the same.

The repeal amendment reflects a larger, growing debate about federal power at a time when the public’s approval of Congress is at a historic low. In the last several years, many states have passed so-called sovereignty resolutions, largely symbolic, aimed at nullifying federal laws they do not agree with, mostly on health care or gun control.

Tea Party groups and candidates have pushed for a repeal of the 17th Amendment, which took the power to elect United States senators out of the hands of state legislatures. And potential presidential candidates like Mitt Romney and Sarah Palin have tried to appeal to anger at Washington by talking about the importance of the 10th Amendment, which reserves for states any powers not explicitly granted to the federal government in the Constitution.

“Washington has grown far too large and has become far too intrusive, reaching into nearly every aspect of our lives,” Mr. Cantor said this month. “Massive expenditures like the stimulus, unconstitutional mandates like the takeover of health care and intrusions into the private sector like the auto bailouts have threatened the very core of the American free market. The repeal amendment would provide a check on the ever-expanding federal government, protect against Congressional overreach and get the government working for the people again, not the other way around.”

Randy E. Barnett, a law professor at Georgetown who helped draft the amendment, argued that it stood a better chance than others that have failed to win ratification. “This is something state legislatures have an interest in pursuing,” he said, “because it helps them fend off federal encroachment and gives them a seat at the table when Congress is proposing what to do.”

Professor Barnett, considered by many scholars to be the intellectual godfather of the argument that the health law is unconstitutional, first proposed the repeal amendment in a column published by Forbes.com in 2009.

Tea Party groups in Virginia contacted him. Virginia’s governor, attorney general and speaker of the House, all Republicans, then expressed their support. The speaker, William J. Howell, joined Professor Barnett in an op-ed article proposing the amendment in The Wall Street Journal in September.

Virginia was a particularly ripe place to start the argument. The attorney general, Kenneth T. Cuccinelli II, was among the first attorneys general to try to overturn the federal health care law, filing a lawsuit minutes after President Obama signed the measure last spring.

Mr. Cuccinelli argued that the federal provision establishing a health insurance mandate was against a law the legislature had recently passed decreeing that no resident could be required to have health insurance. The judge who declared the mandate unconstitutional last week was ruling in that case.

This month, Mr. Cuccinelli wrote to the attorneys general of every state for their support of the repeal amendment.

The measure was introduced in the House by Representative Rob Bishop, Republican of Utah, who was a founder of the Western States Coalition, which advocates states’ rights.

Sanford V. Levinson, a professor of constitutional law at the University of Texas, called the proposal “a really terrible idea” because it would give the same weight to small states as it would to large ones, allowing those with a relatively small proportion of the national population to have outsize influence.

“There’s not the slightest chance it would get through Congress” or be ratified by the states, he said. “You can bet the ranch that there are enough state legislators in the large states who will not consider it a good idea to reinforce the power of small parochial rural states in which most Americans do not live.”

Even if it were approved, it would be extremely unlikely to have any practical effect, Professor Levinson said. “Any bill that can get through the byzantine, gridlocked process of being approved by two houses and the presidential signature is wildly unlikely to be opposed by two-thirds of the states,” he said.

Marianne Moran, a lawyer in Florida who runs RepealAmendment.org, said that legislative leaders in Florida, Georgia, Indiana, Iowa, Minnesota, Missouri, Montana, New Jersey, South Carolina, Texas and Utah, as well as Virginia, were backing the amendment.

“Considering we’ve had 12 states get on board in the last two or three months that we’ve been pushing this, I think we’re getting some speed,” she said. “No amendment has ever been ratified without a broad national consensus — it’s an uphill battle — but we’ve done it 27 times as a country, and I think we can get enough states to agree.”

Proponents say their effort is not directed at any one law or set of laws. “Our desire is to have it in place so we can repeal as things come up,” Ms. Moran said. “What we’re trying to do is to draw a line in the sand saying the federal government has gone too far.”

[G M]

"Sanford V. Levinson, a professor of constitutional law at the University of Texas, called the proposal “a really terrible idea” because it would give the same weight to small states as it would to large ones, allowing those with a relatively small proportion of the national population to have outsize influence."

Yes, we are much better off with a few large cities on either coast having disproportionate influence on the country. 

[JDN]

Those "few large cities on either coast having disproportionate influence on the country"   

Disproportionate?  What happened to one man/woman one vote concept?  Sounds "proportional" to me...

Or are cows now going to vote in TX?

If you are not happy with Congress, then vote them out.  There was a major cleaning this last election.
The system seems to work pretty well...

[bigdog]

Sandy Levinson is an extremely influential constitutional scholar.  Some of his more interesting work deals with what he calls "constitutional stupidities."  Here is one of his articles:

http://digitalarchive.gsu.edu/cgi/viewcontent.cgi?article=3252&context=colpub_review

[DougMacG]

I enjoyed the Levinson article though I see it differently.

The theme seems to be the disproportionality aka checks and balances(?).Every few election cycles there seems to be major talk (mostly out of New York and California) to end the electoral college and elect the President by direct popular vote.  There is a fear that the one who wins the popular vote (like Al Gore) may not win in the electoral college.  Like saying the football team with the best time of possession or total yards needs to win even though the rules say we only count points on the board.  Regardless of the merits I always laugh it off because all it will to take to change that is to ask more than half the states to voluntarily give up their 'disproportional' power.  Same argument would go for the senate.  Why abandon the electoral college when, until Levinson(?), I never hear a proposal to end the Senate and go to a strictly proportional (unicameral?) legislative branch.  I have never found the House to be a better governing body than the Senate and don't find the argument that a proportional body would not have confirmed to Clarence Thomas to the Supreme Court to be at all helpful.  

The details of the 12th amendment and the story of 1824 are both quite interesting.  Maybe electoral tiebreakers are quirky or unfair, but then it reinforces something I have come to know since Gore-Bush Florida and the crazy Al Franken recount here: margin of victory matters.  A party or potential coalition can't run 3 candidates or be still fighting amongst themselves on election day and expect their views to prevail.  The Gore Bush contest in Florida mattered because the country was also evenly divided across the other 49 states.  Even if that had ended in a tie to be decided in the House of Representatives with each state getting just one vote, that would only happen after each candidate had every opportunity to win outright in the conventional manner.  Because margin of victory matters, every vote really matters.  I didn't use to know that.  

Levinson alleges (if I read him correctly) one sign of the constitutional stupidity is that mountain states, sparsely populated but fully represented in the Senate, take in far more federal funding than they pay in.  I assume that includes Alaska with their majestic mountains and notoriety for bridges and spending to nowhere.  

I would reply emphatically that those spending bills originate in the fully proportional House of Representatives and end with the mostly proportional chief executive.  The remedy is easily available within the current framework: STOP DOING THAT. Like the cornhusker kickback to bring us healthcare, draw up a bill we honestly support instead of buying off small state Senators. We don't want coercion by the majority or from the east or west coast anymore than we wanted it from the King.  What we want is limited government and consent of the governed.

Ideas like life, liberty and pursuit of happiness were also Jeffersonian.

There is a longer story in these states in my opinion.  The federal government owns the beautiful forests at the Top of the Rockies and a majority of the land in many regions of the west.  Like the Clinton takeover of a coal region, Grand Staircase - Escalante in Utah, I don't think these federal ownerships were the choice of the state or the people in and around the land.  The federal government after the takeover chooses to leave resources in the ground, restricts what Utah or Alaska can do for revenues, operates its own land at a loss, while keeping industrious, private sector, taxpaying Americans from building and living there.  (Then complain about the loss.) That is a choice that comes out of places like New York, Washington, California etc. IMO, not so much from the states affected.  In the Boundary Waters of Minnesota - Superior National Forest , not just non-motorized and very limited access, it is illegal to operate a sailboat on a lake or construct a canoe rest on a portage for fear of ... damage to the environment?  Separate from the merits, these are not laws that are set by the locals nor are they laws that lead to bringing in revenues or covering the federal operating costs of a million acre park, as an example.

Life tenure of Federal judges is easily amended because it doesn't a have a state against state component to it.  Supreme Court Justices or any federal judgeship could be limited to one 20 year term or any other number as easy as passing the 22nd amendment limiting the President to two terms  - if that is what people want.  It is not a structural problem in the constitution, IMO.

The 3 examples of amendments failing, balanced budget, flag burning and equal gender rights were all (well intended, but) flawed proposals IMO. There are amendments now I would support that also lack the votes.  I noted recently that proponents of granting the federal government new powers never first seek to amend the constitution.  That is not because of no constitutional need IMO; it is because they know they lack the votes, and then proceed with the legislation anyway.

Constitutional conventions: beware, IMO.  These are for those like this author/scholar who want major changes and you cannot predict the result when you call one.  These are not for those of us who 'venerate' the original document.

[Crafty_Dog]

Finally I just finished the Levison article.  Good to re-examine one's precepts from time to time, but I come down on the particulars pretty much as Doug does.  I would add that we are averaging about one amendment every ten years which counters the notion that our C. is too hard to amend, and that we have the world's longest running constitutional republic.

[DougMacG]

Is there a constitutional right of having someone provide services to you?  If it is a good idea that everyone have a right to free this or affordable that, is that right already in the constitution or is that a change requiring amendment?  Does congress have the power to compel you to buy a private contract?  Is it an unenumerated power?
-------------------------------------------------------
Obamacare and the risk of ‘positive rights’
By E. THOMAS McCLANAHAN
The Kansas City Star

Last week’s court decision striking down the linchpin provision of the health care bill is a reminder that what’s at stake is larger than the future of Obamacare. If this law passes constitutional muster, the question is whether the federal government can be constrained by any limits at all.

At issue is the personal mandate, the part of the law that says everyone must buy health insurance or pay a penalty. The implications were aptly captured by U.S. District Judge Henry Hudson, ruling in Virginia vs. Sebelius — one of several lawsuits challenging Obamacare.

Two other federal judges have upheld the personal mandate, but Hudson saw the law differently. He pointed out that neither the Supreme Court nor any federal court of appeals has held that Congress’ power to regulate commerce means people can be compelled to buy a product from a private company.

If that provision is upheld, the implications are deeply troubling.

Up to now, defenders of the health care law have airily dismissed such concerns. House Speaker Nancy Pelosi, asked to name the constitutional provision on which the personal mandate was based, famously replied in an outraged tone: “Are you serious? Are you serious?”

During the health care debate, it was common to hear people piously assert that health care should be a right, perhaps unaware of the full implications. The ongoing strikes and riots in Europe, however, represent the long-term risks of the progressive vision, in which government-delivered social benefits are portrayed as personal rights.

No wonder they’re rioting in Europe. They believe their personal rights are being violated by budget cuts brought on by the sovereign debt crisis.

Government benefits expressed in this way are known to political scientists as positive rights, which differ from the negative rights with which we’re more familiar. Negative rights generally describe things the government cannot do — take your stuff without due process, stifle your right to express your point of view, lock you up without cause, etc.

Positive rights describe things the government says it will do for you. A good example was the Second Bill of Rights pushed by President Roosevelt. Everyone, he said, should have the right “to a useful and remunerative job … to earn enough to provide adequate food and clothing … to adequate medical care … to a good education” and more.

Worthy goals, all. Who’s against such things?

Certainly a highly developed economy should not be without social welfare programs — pensions and health care for seniors, aid to the indigent and the like. The problem is that elevating benefits to the level of rights confers an unlimited grant of power to the government. In the legislative process, laudable sentiments too often emerge as programs with unconstrained costs — or, in the case of the personal mandate in Obamacare, policies that rely on coercion.

As federal lawyers told Judge Hudson, the personal insurance requirement is the “vital kinetic link that animates Congress’s overall regulatory reform of interstate health care.”

From government’s point of view, positive rights are marching orders. Heaven and earth must be moved to deliver the promises. The state grows rapidly and ultimately it outruns the capacity of the tax base to pay for it all, endangering the financial security of everyone.

Thirty years ago, Portugal’s government cost its taxpayers about 20 percent of GDP. Then a new constitution was written, chock full of positive rights — the right to housing, education, health, social security. The size of government doubled. Portugal’s borrowing costs, like that of Greece and Ireland, have ballooned.

It’s no coincidence that those who believe health care is a “right” were, like Pelosi, initially flummoxed by the notion that a serious constitutional challenge was even possible. Who could worry about legal niceties when the noble goal of universal health care is within reach?

Once upon a time, Barack Obama seemed to understand the kind of opposition a personal mandate would generate. That’s why when he ran for president, he was against it — and criticized Hillary Clinton for proposing such a thing.

http://www.kansascity.com/2010/12/18/2529544/obamacare-and-the-risk-of-positive.html#ixzz1937oHwrO

[G M]

Can congress mandate you get a haircut, hippie?

[Crafty_Dog]

Uhhh , , , at whom is that directed GM?

[G M]

Just a joking reference to the federal healthcare mandate. Could congress pass a law requiring every male in the US to purchase a weekly haircut? Hey, good grooming is important!

[Crafty_Dog]

The historians will long be fighting over the legislative legacy of the 111th Congress. As to its legal legacy, the only real question is whether this just-finished Democratic Congress was the most unserious in decades, or the most unserious in history.

That much is clear from the recent ObamaCare court proceedings. Federal Judge Henry Hudson, responding to a lawsuit by the state of Virginia, last week struck down the core of the law, the individual mandate. His decision came the same week that a coalition of 20 states presented oral arguments against the health law in front of Florida federal Judge Roger Vinson. In October, Judge Vinson ruled against the Obama Justice Department's motion to dismiss the states' lawsuit.

The law professors and think-tankers and media folk who initially ridiculed these lawsuits have now had to dream up sinister reasons for why they are succeeding. Judges Hudson and Vinson, we are told, were both appointed by Republicans and obviously can't be trusted to fairly interpret the law. Some commentators have gone further, suggesting that we are witnessing a cabal of right-wing activists, lawyers and judges conspiring to kill not just ObamaCare, but the entire New Deal. If only.

What the observers seem not to have done is read the briefs, arguments or rulings. Had they done so, they'd see a far simpler explanation for what's going on: Congress earlier this year punched through audacious yet unvetted health legislation, a slapdash political product that is now proving to be an historic embarrassment in its legal shoddiness. The Justice Department is in fact having to play games to defend it, which has only further provoked the courts.

And really, is that such a surprise? The Patient Protection and Affordable Care Act is one of the bigger, more complex pieces of legislation in U.S. history. Yet Democrats never gave it the respect it deserved.

View Full Image

Chad Crowe
 .Look at any other consequential piece of legislation, and the record is brimming with sober congressional investigations into its legal merits and ramifications. ObamaCare? It was a largely unread, 2,700-page fiend—crafted in secret, fed on deal-making, birthed on late-night votes. The Senate and House judiciary committees didn't hold hearings. The record is bereft of letters from congressional chairmen requesting Justice Department legal analyses of the bill. Senate Finance Chairman Max Baucus actually ruled out of order an amendment that would have required expedited judicial review of the individual mandate. Asked about the bill's constitutionality, House Speaker Nancy Pelosi's only retort was: "Are you serious?"

The result is a bill that is "in its design, the most profoundly unconstitutional statute in American history; in its execution, one of the most incompetent ones," says David Rivkin, the lawyer who represents the 20 state plaintiffs in the Florida suit. The best example is the individual mandate, the requirement that all Americans buy insurance or pay a penalty.

Democrats' first drafts of ObamaCare all decisively called this penalty a "tax." Legally, that made sense; few dispute Congress's authority to tax. But as the unpopularity of the bill grew, fewer Democrats wanted to vote for a "tax," and President Obama didn't want to own one.

So Democrats went to plan B. That was to make up an entirely new legal theory—to wit, that the federal government is allowed, under the Commerce Clause, to penalize Americans who do not take part in a specific economic activity (buying insurance).

Put another way, in order to avoid the political inconvenience of a "tax," Democrats based the very core of their bill on a new and untested legal premise—one that is a far bigger affront to the Constitution than New Deal legislation. That's why Judge Hudson struck it down. And since Congress adopted this theory sloppily, in response to political pressure, it has left a record that is killing the Justice Department in court.

Knowing how audacious the commerce-clause theory is, Justice has been trying to argue that the penalty is, in fact . . . a tax. This has only annoyed Judge Vinson, who is well aware of the history, and in fact rapped the Justice Department for the bait-and-switch.

"Congress should not be permitted to secure and cast politically difficult votes on controversial legislation by deliberately calling something one thing," Judge Vinson wrote in October, "after which the defenders of that legislation take an 'Alice-in-Wonderland' tack and argue in court that Congress really meant something else entirely." Ouch.

And yet the Justice Department has continued to put forward wild theories in court—about the Commerce Clause, about the Necessary and Proper Clause—that have no basis in the statutory language of ObamaCare. And it is now playing games with the appeal of Judge Hudson's ruling, arguing against having it go straight to the Supreme Court, where the nation could get some quick clarity. The administration believes its best shot is to drag out the litigation, and hope that time pressures the courts to leave the law alone.

But what else can the Justice Department do? It's stuck defending a steaming pile of a statute. This is the 111th Congress's legacy, one that will last long after its 535 members finish their term.

[bigdog]

http://www.prospect.org/cs/articles?article=humanoid_rights

Humanoid Rights
 
The ACLU looks to science fiction to prepare for future threats to civil liberties

A few months ago I watched Moon, a 2009 indie science-fiction film, with a friend who works on public relations for the American Civil Liberties Union. The movie centers on Sam Bell, a solitary laborer who spends his days extracting helium from moon rocks and drawing comfort from correspondence with his pregnant wife on Earth. That is, until he discovers he's actually one of a series of short-lived and expendable human clones bred for the dangerous, repetitive work of moon mining. After Bell outsmarts the automated systems and escapes on a vessel bound for Earth, a tangle of audio broadcasts lets us know that the mining company's stock is crashing due to charges of crimes against humanity.

As the credits rolled, my friend said to me, "I'd like to think that when that guy got to Earth, the ACLU would have taken his case."

The idea of the ACLU battling a private corporation over whether clones are human beings or pieces of property may seem far-fetched. But almost a decade ago, the organization started thinking about how to do it.

[bigdog]

Scalia interview:

http://www.callawyer.com/story.cfm?eid=913358&evid=1

[G M]

http://www.prospect.org/cs/articles?article=humanoid_rights

Humanoid Rights
 
The ACLU looks to science fiction to prepare for future threats to civil liberties

A few months ago I watched Moon, a 2009 indie science-fiction film, with a friend who works on public relations for the American Civil Liberties Union. The movie centers on Sam Bell, a solitary laborer who spends his days extracting helium from moon rocks and drawing comfort from correspondence with his pregnant wife on Earth. That is, until he discovers he's actually one of a series of short-lived and expendable human clones bred for the dangerous, repetitive work of moon mining. After Bell outsmarts the automated systems and escapes on a vessel bound for Earth, a tangle of audio broadcasts lets us know that the mining company's stock is crashing due to charges of crimes against humanity.

As the credits rolled, my friend said to me, "I'd like to think that when that guy got to Earth, the ACLU would have taken his case."

The idea of the ACLU battling a private corporation over whether clones are human beings or pieces of property may seem far-fetched. But almost a decade ago, the organization started thinking about how to do it.

So, does the ACLU think a human fetus has more or less rights than a clone?

[bigdog]

That is a good question, GM.  I don't claim to have any information on the ACLU decision making process, but seemingly the answer is yes.

[bigdog]

I guess this goes here:

This a link to National Center for State Courts.  I haven't delved too deeply, but it looks interesting.

http://www.ncsconline.org/D_Research/gaveltogavel/

[Crafty_Dog]

Alexander's Essay – January 6, 2011

Mr. Boehner, et al., Honor Your Oath!
"If congress can do whatever in their discretion can be done by money, and will promote the General Welfare, the Government is no longer a limited one, possessing enumerated powers, but an indefinite one, subject to particular exceptions." --James Madison

The U.S. ConstitutionThe new Speaker of the House, John Boehner, took charge of a Republican majority (242-193) Wednesday, proclaiming, "I stand today in awe of our great nation, humbled by the opportunity to defend the Constitution and serve the American people as Speaker of the House. We must restore the House as an open institution that listens to the people and does their will. We must end D.C. rituals that have made it easy to dodge tough decisions, then make the choices necessary to return our economy to prosperity."

For the record, Mr. Boehner, the first obligation of every member of Congress is to defend the Constitution, which authorizes the House to do the will of the people only to the extent that it comports with the plain language of our Constitution. The current state of the central government, bloated to the point of implosion, is the direct result of political machinations doing the bidding of special interest groups, to the great detriment of our Constitution and the Rule of Law it enshrines.

Our Constitution specifies, "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..."

Speaker Boehner and the other 434 Members of the House took this oath in accordance with Article VI, clause 3 of our Constitution: "I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God."

While every member of the House and Senate should be bound by their sacred honor to "support and defend" our Constitution, most returning members have dishonored their oath willfully and repeatedly.

There is good news, however. The once dwindling ranks of steadfast conservatives in Congress -- those who have honored their oaths in years prior -- have been greatly bolstered in the most recent election cycle by dozens of newly elected representatives and senators, who, I assure you, will abide by their oaths, and do so vociferously.

While it will certainly take many more election cycles to restore constitutional Rule of Law, the grassroots "Tea Party" movement has changed, and will continue to change, the political composition of the Executive, Legislative and Judicial branches of our government. It will do so by encroachment, the steady replacement of those who have forsaken their oath with those who will honor their oath to support our Constitution.

Mr. Boehner's first order was to require the 112th Congress to open its proceedings with a full reading of our Constitution. While all leftists and most centrists take this as symbolic only, no member of the House of Representatives can now say that they have not, at the least, heard every word of the Constitution of the United States of America. Gloriously, it also sets a firm foundation for the upcoming session and a yardstick by which we can measure Republican leadership.

Of course, Democrats have strenuously objected to the notion that constitutional authority limits the role of the central government, and have done so with great resolve.

When asked by a reporter in 2009 about constitutional authority for the central government's takeover of the U.S. health care system, former House Speaker Nancy Pelosi responded, "Are you serious? Are you serious?" When the reporter persisted, Pelosi moved on to another question while her press spokesman said, "You can put this on the record: That is not a serious question. That is not a serious question."

Democrat Patrick Leahy, then-Chairman of the Senate Judiciary Committee (where Rule of Law should prevail), added, "We have plenty of authority. ... I mean, there's no question there's authority. Nobody questions that."

Pelosi and Leahy believe they have unbridled authority because they subscribe to the so-called "living constitution" which, as Thomas Jefferson warned, has become "a mere thing of wax in the hands of the judiciary which they may twist and shape into any form they please."

Some ranking Democrats were a bit more brazen. Former Majority Whip James Clyburn (D-SC) proclaimed, "There's nothing in the Constitution that says that the federal government has anything to do with most of the stuff we do." California Rep. Pete Stark added, "The federal government can, yes, do most anything in this country."

Well, folks, there's a new sheriff in town, and his posse is prepared to ask a lot of questions about constitutional authority for congressional legislation, and hold the line.

By opening the 112th Congress with the Constitution reading, perhaps those members who shun constitutional constraints will now pay more special attention to Article I, Section 2, which specifies, "All legislative powers herein granted [emphasis added] shall be vested in a congress of the United States, which shall consist of a Senate and House of Representatives."

They should then pay close attention to Article I, Section 8, which specifically enumerates those powers, and recall the words of its principal scribe, James Madison: "The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite."
Jefferson added, "I consider the foundation of the Constitution as laid on this ground that 'all powers not delegated to the United States, by the Constitution, nor prohibited by it to the states, are reserved to the states or to the people.' To take a single step beyond the boundaries thus specially drawn around the powers of congress is to take possession of a boundless field of power, not longer susceptible of any definition. ... [The Constitution] was intended to lace them up straightly within the enumerated powers. ... In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution."

Though this has received scant attention, Mr. Boehner also pledged to pass legislation requiring the enumeration of constitutional authority for every bill considered by the House.

If the Republican House will pass an enumerated powers act requiring all legislation to stipulate its specific constitutional authority (as first and subsequently proposed by just-retired Rep. John Shadegg in every Congress since the 104th), that will elevate the national discourse about what the Constitution does and does not authorize. Enhancing that discourse, which is a primary driver of the Tea Party's momentum, will put the restoration of constitutional authority on a faster track.

Enumerating authority for legislation has been a primary Patriot Post objective since our inception. Indeed, it was the basis for our petition of the Bush administration for an Enumerated Powers Amendment. This proposed amendment is also a primary component of the Patriot Declaration, which stipulates "that all legislation explicitly cite its compliance with the Tenth Amendment to our Bill of Rights, 'The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people,' thus prohibiting the central government from usurping the powers reserved to the States or the People."

If the Speaker succeeds with enumerated powers enactment, the next step should be an amendment as this would make the enumeration of constitutional authority binding on both the House and Senate, and not be subject to legislative revocation.

In 1776, a great insurrection was mounted against the throne of tyranny, and from that revolution was birthed our Constitution. We face the prospect of such tyranny again, and the solution now, as then, is government constrained by the Rule of Law as enshrined in our Constitution.

Moving forward, those politicos of any stripe who forsake their solemn oath to support and defend our Constitution, and abide by its constraints, should be subject to censure and removal from office. The momentum of the Tea Party movement will increase, despite efforts by the Leftmedia to undermine its grassroots drive, and we will further expand the ranks of constitutional conservatives in 2012. Barack Hussein Obama, the days of your regime are numbered, as are those of every elected official who fails to honor their oath.

Semper Vigilo, Fortis, Paratus et Fidelis!

Mark Alexander
Publisher, The Patriot Post

[bigdog]

http://www.aolnews.com/2011/01/04/opinion-will-the-new-congress-target-judges/

Opinion: Will the New Congress Target Judges?

[Crafty_Dog]

Maybe judges should not be ruling that gay marriage is consitutionally compelled just like they should not have ruled that abortion is constitutionally compelled?

[Crafty_Dog]

Dennis Prager
For the Left, There Are No Sacred Texts

 
A number of well-known spokesmen on the left have voiced reservations not only about the Republican decision to have members of Congress -- both Republicans and Democrats -- read the Constitution aloud at the opening of the latest session of Congress. They have also voiced reservations about the American veneration of the Constitution.

Three examples:

In a recent appearance on MSNBC, Washington Post staff writer Ezra Klein said: "The issue with the Constitution is that the text is confusing because it was written more than a hundred years ago and what people believe it says differs from person to person."

Joy Behar asked her guests on CNN's Headline News, "Do you think this Constitution-loving is getting out of hand?"

Congressman Jerrold Nadler, D-N.Y., complained that "They are reading it (the Constitution) like a sacred text."

What troubles Klein, Behar and Nadler?

The answer is that for leftism -- though not necessarily for every individual who considers himself a leftist -- there are no sacred texts. The two major examples are the Constitution and the Bible.

One cannot understand the left without understanding this. The demotion of the sacred in general and of sacred texts specifically is at the center of leftist thinking.

The reason is that elevating any standard, any religion, any text to the level of the sacred means that that it is above any individual. Therefore, what any one individual or even society believes is of secondary importance to that which is deemed sacred. If, to cite the most obvious example, the Bible is sacred, then I have to revere it more than I revere my own feelings in assessing what is right and wrong.

But for the left, what is right and wrong is determined by every individual's feelings, not by anything above the individual.

This is a major reason why the left, since Karl Marx, has been so opposed to Judeo-Christian religion. For Judaism and Christianity, God and the Bible are above the self. Indeed, Western civilization was built on the idea that the individual and society are morally accountable to God and to the moral demands of that book. That was the view, incidentally, of every one of the Founders including deists such as Thomas Jefferson and Benjamin Franklin.

This is entirely unacceptable to the left. As Marx and Engels said, "Man is God, and God is man." Therefore, society must rid itself of the sacred, i.e., God and the Bible. Then each of us (or the society, party or judiciary) takes the place of God and the Bible.

Morality is then no longer a God-given objective fact; it becomes a human-created subjective opinion. And one no longer needs to consult an external source to know right and wrong, only one's heart. We are then no longer accountable to God for transgressions, only to ourselves.

That is why when there is God-talk on the left, it is usually about "the God that is within each of us," not a God external to, let alone above, us, as Judaism and Christianity have always taught.

This explains the belief that is universally held on the left that the Constitution is an "evolving text," meaning that it says what anyone (on the left) wants it to say.

Conservatives, on the other hand, do not share this view. They do not believe the Constitution has something to say about everything they believe in. While the left sees the right to abortion in the Constitution (because the left believes in the right to abortion), those who oppose abortion do not believe that the Constitution prohibits abortion. They believe that the Constitution is silent on the issue. Precisely because the right does believe the Constitution is to be treated as sacred, it does not claim that whatever it supports is in the Constitution or that whatever it opposes is unconstitutional.

There are humble individuals and arrogant individuals on the right and on the left. But there is no arrogance like leftist arrogance. If you hold a Leftist position, you know that you are smarter, wiser and more moral not only than conservatives, but more so than the Bible, more so than the Constitution, indeed often more so than everyone who lived before you.

Same-sex marriage is a perfect example. The fact that neither Moses nor the Hebrew prophets, nor Jesus nor the Buddha nor any great secular humanist thinker ever advocated defining marriage as between members of the same sex does not cause the left to rethink its advocacy of same-sex marriage; it only proves to them how morally superior they are to Moses, Jesus, the prophets and everyone else who lived before them.

That is why we must to treat the Constitution as sacred text. Because the bottom line is this: If it is not regarded as sacred, it is nothing more than what anyone believes about any social issue. Which is precisely what the left wants it to be -- providing, of course, that the "anyone" is a liberal.

For the left, there are no sacred texts. There are only sacred (liberal) feelings.

[Boyo]

Here is something by Walter Williams I found interesting...

A MINORITY VIEW

BY WALTER WILLIAMS

RELEASE: WEDNESDAY, JANUARY 12, 2011

 

What Our Constitution Permits

 

            Here's the House of Representatives new rule: "A bill or joint resolution may not be introduced unless the sponsor has submitted for printing in the Congressional Record a statement citing as specifically as practicable the power or powers granted to Congress in the Constitution to enact the bill or joint resolution." Unless a congressional bill or resolution meets this requirement, it cannot be introduced.

            If the House of Representatives had the courage to follow through on this rule, their ability to spend and confer legislative favors would be virtually eliminated. Also, if the rule were to be applied to existing law, they'd wind up repealing at least two-thirds to three-quarters of congressional spending.

            You might think, for example, that there's constitutional authority for Congress to spend for highway construction and bridges. President James Madison on March 3, 1817 vetoed a public works bill saying: "Having considered the bill this day presented to me entitled 'An act to set apart and pledge certain funds for internal improvements,' and which sets apart and pledges funds 'for constructing roads and canals, and improving the navigation of water courses, in order to facilitate, promote, and give security to internal commerce among the several States, and to render more easy and less expensive the means and provisions for the common defense,' I am constrained by the insuperable difficulty I feel in reconciling the bill with the Constitution of the United States and to return it with that objection to the House of Representatives, in which it originated."

            Madison, who is sometimes referred to as the father of our Constitution, added to his veto statement, "The legislative powers vested in Congress are specified and enumerated in the eighth section of the first article of the Constitution, and it does not appear that the power proposed to be exercised by the bill is among the enumerated powers."

            Here's my question to any member of the House who might vote for funds for "constructing roads and canals, and improving the navigation of water courses": Was Madison just plain constitutionally ignorant or has the Constitution been amended to permit such spending?

            What about handouts to poor people, businesses, senior citizens and foreigners?

            Madison said, "Charity is no part of the legislative duty of the government."

            In 1854, President Franklin Piece vetoed a bill to help the mentally ill, saying, "I cannot find any authority in the Constitution for public charity. (To approve the measure) would be contrary to the letter and spirit of the Constitution and subversive to the whole theory upon which the Union of these States is founded."

            President Grover Cleveland vetoed a bill for charity relief, saying, "I can find no warrant for such an appropriation in the Constitution, and I do not believe that the power and duty of the General Government ought to be extended to the relief of individual suffering which is in no manner properly related to the public service or benefit."

            Again, my question to House members who'd vote for handouts is: Were these leaders just plain constitutionally ignorant or mean-spirited, or has our Constitution been amended to authorize charity?

            Suppose a congressman attempts to comply with the new rule by asserting that his measure is authorized by the Constitution's general welfare clause. Here's what Thomas Jefferson said: "Congress has not unlimited powers to provide for the general welfare, but only those specifically enumerated."

            Madison added, "With respect to the two words 'general welfare,' I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators."

            John Adams warned, "A Constitution of Government once changed from Freedom, can never be restored. Liberty, once lost, is lost forever." I am all too afraid that's where our nation stands today and the blame lies with the American people.

            Walter E. Williams is a professor of economics at George Mason University. To find out more about Walter E. Williams and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate Web page at www.creators.com.

COPYRIGHT 2011 CREATORS.COM

Boyo

[Crafty_Dog]

Important questions raised here. 

I confess to being surprised at Madison's comments about no roads, bridges, waterway improvements etc.  I was aware of various examples of "no charity power to be found in the Constitution".

Perhaps BD would be so kind as to set the stage for this conversation?

[bigdog]

What I will write here likely will lead to backlash and consternation from at least some of you.

Williams sets up the article in a sort of straw man.  Asking the the question of whether the the father of the Constitution was constitutionally ignorant is silly.  And you and I both know it, and so does he.  However, as I often say, Madison was not the only person attending the convention, not the only person writing the Constitution, not the only person voting on the document in convention, and most certainly not the only person voting to ratify the document.  While I want to give Madison his due, it is important to note that even Madison is not solely, or even mostly (despite Williams' set up) responsible for the Constitution.  By the way, Constitution signer Rufus King was in the Senate at the time of Madison's veto.  I can't quickly find if he voted to support the bill, but pretending that he did, he would not be constitutionally ignorant.

Also, it is worth noting that the president, by design, is intended to check congressional power, and no where is this seen more than in the veto.  (Quick note: I like this.  I think the veto is incredibly important and worthwhile.)  Just because Madison SAID he vetoed for a particular reason does not mean that this is the real reason.  Perhaps the House had managed to upset him, and he vetoed for a personal or politcal reason. 

Another important innovation, by President Andrew Jackson, is the veto for strictly political reasons.  He, unlike his predecessors, did not feel the need to even try to justify some of his vetoes with a nod to the Constitution.  While I realize that Jackson postdates Madison, that cannot be said for the other two presidents that Williams uses to support his argument.  Pierce and Cleveland certainly may have felt that a veto was required by constitutional standards, or they could just have used constitutional language to support their politics.  I am not sure why either Pierce or Cleveland would be considered any more constitutionally literate than any other particular president.  Moreover,  it is worth noting that Cleveland hardly met a bill he didn't want to veto, and that over half of Pierce's were overridden: http://www.infoplease.com/ipa/A0801767.html. 

Finally, the Constitution has changed.  Not always in a formal way, and I realize that that it the only way that many of you see it as legitimate.  However, states, in many instances, have asked the national government to step in many different instances, many of which involve "charity."  Moreover, whether Madison likes it or not, we have an interstate highway system, and railroads, and planes. A far higher percentage of the commerce of today is interstate.  If I drink a Coke, based out of Georgia at a McDonald's, based out of Illinois, out of a cup made in , on my way to Maine, it is interstate commerce.  If I order a Dog Brothers DVD and it is shipped to my home, it is interstate. 

Things are different now, politically, environmentally, etc. 

[bigdog]

http://www.latimes.com/news/nationworld/nation/sc-dc-0121-court-conflict-20110120,0,2463815.story

http://www.nytimes.com/2011/01/20/us/politics/20koch.html?_r=1

[Crafty_Dog]

I saw that BD.  I could be wrong but my initial reaction is typical liberal/progressive hypocrisy.  Where are they when the libs meet with the ACLU et al?

Returning to whether the C. grants the Federal Govt the right to build roads, etc. this passage from "A Patriot's History of the United States" by Schweikart and Allen (recommended by Glenn Beck ) on page 233 says

"Like Calhoun and other disaffected Jacksonians, Harrison had once stood with the Democrats, and shared their states' rights sentiments.  Also like Calhoun, he thought the federal government well within its constitutional rights to improve harbors, build roads, and otherwise fund internal improvements."

[bigdog]

I mostly agree with you Guro.  I read these articles about 4 hours after talking about the politics of recusal in class.  I am often struck at the sheer dumb luck of what I teach and what goes in politics.  At any rate, I found them interesting, but mostly due to timing. 

[Crafty_Dog]

By DAVID B. RIVKIN JR.
AND LEE A. CASEY
Last week, liberal activists at Common Cause called on the United States Justice Department to investigate Supreme Court Justices Antonin Scalia and Clarence Thomas for a supposed ethical lapse.

The case at issue is Citizens United v. Federal Election Commission (2010), involving an unflattering film about then-presidential candidate Hillary Clinton distributed by a conservative nonprofit corporation in 2008. The Supreme Court ruled that limits on corporate spending unconnected to any candidate's campaign were unconstitutional.

Common Cause took exception and is now seeking to overturn the decision. In a letter to the Justice Department, the group claims that Justices Scalia and Thomas, who voted with the majority of the Court to strike down the challenged spending limits, violated ethical rules requiring a judge to "disqualify himself in any proceeding in which his impartiality might reasonably be questioned."

The reason: Both justices purportedly attended (Mr. Scalia in 2007 and Mr. Thomas in 2008) "invitation-only" programs sponsored at least in part by the Koch family, owners of Koch Industries and frequent supporters of free-market and libertarian causes. Neither justice, the letter claimed, had disclosed any travel reimbursements by the Kochs.

Common Cause got its facts wrong. The Justices did not disclose reimbursements by the Kochs because they were actually the guests of the nonpartisan Federalist Society (a regular sponsor of public debates and speeches on legal and policy issues), which they did report.

Neither justice attended the conference. Both spoke at a dinner hosted separately from the conference. And neither spoke about the First Amendment, let alone restrictions on corporate spending. Mr. Scalia discussed international law, while Mr. Thomas delivered a speech on his recent memoir and life story.

Mr. Scalia's speech took place in January 2007, nearly a year before Citizens United was filed in the federal courts. Mr. Thomas spoke in January 2008, a few weeks after the case was filed but well before it reached the Supreme Court in 2009.

 
UCommon Cause's letter to the Justice Department is just the latest salvo in a long campaign by left-wing groups to intimidate conservative judges, academics and activists. For years, groups like Common Cause have assailed nonprofits that provide judges, lawyers and students with education in economics, law and American history. They have pushed for onerous disclosure regulations and even proscriptions against judges attending conferences sponsored by groups with corporate donors. The goal, of course, is to restore the monopoly on such educational forums to the law schools and the more reliably left-leaning American Bar Association.

Just this month, liberals sought to manufacture a controversy over Justice Scalia's speech to the House Tea Party Caucus. His topic: the constitutional limits of Congress's powers and those of the court. Although it is difficult to think of a more appropriate topic on which a justice might speak, the New York Times called it "outlandish" and "dismaying."

Of course, conservative judges aren't the only ones who give speeches. Justice Stephen Breyer, for instance, spoke recently at a private retreat for members of the House Judiciary Committee.

Such engagements are appropriate and healthy. Judges are not, and should not behave as, members of a cloistered religious order. They are citizens and voters as well as powerful public officials, and they should participate in the greater society on which their decisions often have a profound impact.

This would be impossible if the rule championed by Common Cause were adopted. Attendance of educational and professional events by members of the federal judiciary is common and has never been held as a basis for recusal. Judicial decisions, especially those of the Supreme Court, may have any number of effects on any number of groups. Recusal ordinarily is required only when a judge has a direct and personal economic interest in one of the parties to a case.

Common Cause's letter isn't only an unfair attack on two Supreme Court justices. It is an assault on the judiciary and an effort to silence conservative voices.

Messrs. Rivkin and Casey served in the Department of Justice during the Ronald Reagan and George H.W. Bush administrations.

[bigdog]

Further evidence that the independent judiciary should remain as such.  And, even if Justices Scalia and Thomas "should" have recused themselves, it would hardly have been the most egregious examples of a justice sitting on a decision in a case where he had obvious ties. 

[ccp]

The Declaration guarantees the *pursuit* of happiness not happiness.  If we listened to the Democrats one would think everyone is guaranteed a home, health care, retirement, easy work, equal income, and every protection from every bad thing anyone could imagine is wrong with the world.  It is like a relative of mine said, everyone should be guaranteed equal chance in life not equal outcome.


***IN CONGRESS, JULY 4, 1776
The unanimous Declaration of the thirteen united States of America
hen in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. — Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

He has refused his Assent to Laws, the most wholesome and necessary for the public good.

He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.

He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.

He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their Public Records, for the sole purpose of fatiguing them into compliance with his measures.

He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.

He has refused for a long time, after such dissolutions, to cause others to be elected, whereby the Legislative Powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.

He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.

He has obstructed the Administration of Justice by refusing his Assent to Laws for establishing Judiciary Powers.

He has made Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries.

He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.

He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.

He has affected to render the Military independent of and superior to the Civil Power.

He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:

For quartering large bodies of armed troops among us:

For protecting them, by a mock Trial from punishment for any Murders which they should commit on the Inhabitants of these States:

For cutting off our Trade with all parts of the world:

For imposing Taxes on us without our Consent:

For depriving us in many cases, of the benefit of Trial by Jury:

For transporting us beyond Seas to be tried for pretended offences:

For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies

For taking away our Charters, abolishing our most valuable Laws and altering fundamentally the Forms of our Governments:

For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.

He has abdicated Government here, by declaring us out of his Protection and waging War against us.

He has plundered our seas, ravaged our coasts, burnt our towns, and destroyed the lives of our people.

He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation, and tyranny, already begun with circumstances of Cruelty & Perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.

He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.

He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.

Nor have We been wanting in attentions to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these united Colonies are, and of Right ought to be Free and Independent States, that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. — And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.

— John Hancock

New Hampshire:
Josiah Bartlett, William Whipple, Matthew Thornton

Massachusetts:
John Hancock, Samuel Adams, John Adams, Robert Treat Paine, Elbridge Gerry

Rhode Island:
Stephen Hopkins, William Ellery

Connecticut:
Roger Sherman, Samuel Huntington, William Williams, Oliver Wolcott

New York:
William Floyd, Philip Livingston, Francis Lewis, Lewis Morris

New Jersey:
Richard Stockton, John Witherspoon, Francis Hopkinson, John Hart, Abraham Clark

Pennsylvania:
Robert Morris, Benjamin Rush, Benjamin Franklin, John Morton, George Clymer, James Smith, George Taylor, James Wilson, George Ross

Delaware:
Caesar Rodney, George Read, Thomas McKean

Maryland:
Samuel Chase, William Paca, Thomas Stone, Charles Carroll of Carrollton

Virginia:
George Wythe, Richard Henry Lee, Thomas Jefferson, Benjamin Harrison, Thomas Nelson, Jr., Francis Lightfoot Lee, Carter Braxton

North Carolina:
William Hooper, Joseph Hewes, John Penn

South Carolina:
Edward Rutledge, Thomas Heyward, Jr., Thomas Lynch, Jr., Arthur Middleton

Georgia:
Button Gwinnett, Lyman Hall, George Walton***

[ccp]

"Common Cause's letter isn't only an unfair attack on two Supreme Court justices. It is an assault on the judiciary and an effort to silence conservative voices."

Yesterday, Rachal Madcow was manic with glee discussing Thomas's apparant failure in not disclosing some tax issue with his wife. 
I almost wanted to prescribe her depakote to get her to stop drooling over the non issue.

The liberals are going after the conservative court in a big way lately.  They must be quite fearful of the possibility of a HC strike down.

[G M]

http://www.argusleader.com/article/20110131/UPDATES/110131031/Bill-would-require-all-S-D-citizens-buy-gun?odyssey=mod|mostview

Bill would require all S.D. citizens to buy a gun

[bigdog]

http://www.washingtonpost.com/wp-dyn/content/article/2011/02/07/AR2011020706032.html?hpid=topnews

[Crafty_Dog]

It would have been nice if the article had bothered to mention the history of the politicization (sp?) of all this which IMHO the Dems deserve the substantial majority of the credit.  Also it would have been nice if the article had bothered to delve into what kind of people Obama, who IMO is a genuine radical when it comes to Constitutional Law (see his Chicago Public Radio interview of 2003 or so for a hair-raising glimpse at just how radical he is) is nominating.  Oh well, tis Pravda on the Potomac reporting, so no surprise.

[Crafty_Dog]

"Recognizing the vulnerability of relying on the Commerce Clause alone [to justify ObamaCare], the Obama administration in the Florida case shifted its emphasis to the Necessary and Proper Clause of the Constitution. That clause empowers Congress to enact 'all Laws which shall be necessary and proper for carrying into Execution' its enumerated powers. As the Supreme Court has repeatedly explained, the Necessary and Proper Clause does not expand the scope of Congress's enumerated powers. Instead, it gives Congress the ability to select among various means of exercising them. ... The Obama administration claimed that the individual mandate is a necessary and proper means of carrying out its reforms in the health-insurance market. These reforms include requiring insurers to offer coverage to those with pre-existing conditions, to extend coverage to dependents up to age 26, and to eliminate lifetime coverage caps. Because these reforms make health insurance more expensive, the government's lawyers claim that unless everyone is forced to buy health insurance, too many healthy people will sit on the market sidelines as 'free riders' until they become ill. So in order to make the 'reformed' health-insurance market work, it's necessary and proper to force everyone to buy insurance. Judge [Roger] Vinson flatly rejected the administration's attempt.... His decision acknowledges that, while reforming an insurance market is a regulation of commerce, Congress cannot artificially create its own 'free rider' crisis in the insurance market and then use that crisis to justify an otherwise unconstitutional mandate as 'necessary and proper' to save the market from collapse. This novel use of the Necessary and Proper Clause, if allowed to stand, would fundamentally transform our constitutional scheme from limited to unlimited federal power, narrowing the scope of individual liberty." --law professors Randy Barnett and Elizabeth Price Foley

[Crafty_Dog]

The motivation here is, as previously noted, unprincipled and political.  However, has Common Cause found a chink in Thomas's armor?

===========Common Cause Asks Court About Thomas Speech
POTH
By ERIC LICHTBLAU
Published: February 14, 2011
 
WASHINGTON — Discrepancies in reports about an appearance by Justice Clarence Thomas at a political retreat for wealthy conservatives three years ago have prompted new questions to the Supreme Court from a group that advocates changing campaign finance laws.

When questions were first raised about the retreat last month, a court spokeswoman said Justice Thomas had made a “brief drop-by” at the event in Palm Springs, Calif., in January 2008 and had given a talk.
In his financial disclosure report for that year, however, Justice Thomas reported that the Federalist Society, a prominent conservative legal group, had reimbursed him an undisclosed amount for four days of “transportation, meals and accommodations” over the weekend of the retreat. The event is organized by Charles and David Koch, brothers who have used millions of dollars from the energy conglomerate they run in Wichita, Kan., to finance conservative causes.

Arn Pearson, a vice president at the advocacy group Common Cause, said the two statements appeared at odds. His group sent a letter to the Supreme Court on Monday asking for “further clarification” as to whether the justice spent four days at the retreat for the entire event or was there only briefly.

“I don’t think the explanation they’ve given is credible,” Mr. Pearson said in an interview. He said that if Justice Thomas’s visit was a “four-day, all-expenses paid trip in sunny Palm Springs,” it should have been reported as a gift under federal law.

The Supreme Court had no comment on the issue Monday. Nor did officials at the Federalist Society or at Koch Industries.

Common Cause maintains that Justice Thomas should have disqualified himself from last year’s landmark campaign finance ruling in the Citizens United case, partly because of his ties to the Koch brothers.

In a petition filed with the Justice Department last month, the advocacy group said past appearances at the Koch brothers’ retreat by Justice Thomas and Justice Antonin Scalia, along with the conservative political work of Justice Thomas’s wife, had created a possible perception of bias in hearing the case.

The Citizens United decision, with Justice Thomas’s support, freed corporations to engage in direct political spending with little public disclosure. The Koch brothers have been among the main beneficiaries, political analysts say.

[G M]

A high tech lynching? We know how Common Cause members feel about that.

[Crafty_Dog]

Nonetheless, if the accusation is true then Justice Thomas acted inappropriately by failing to disclose.

[DougMacG]

"Common Cause maintains that Justice Thomas should have disqualified himself from last year’s landmark campaign finance ruling in the Citizens United case, partly because of his ties to the Koch brothers."

Maybe bigdog can elaborate but I think recusal on the highest court is largely a personal decision. The way to put pressure on Thomas would be for Elena Kagan to recuse herself from review of all policies she helped advise, write and enact, like healthcare, which is not likely to happen.  If Thomas took expense money or money for a speech, I still don't think his is a vote that can be bought.  I doubt Common Cause thinks so either. 

I wonder if this public interest group will push NASA's Hansen for disclosure of monies he received for his work on 'An Inconvenient Truth' or is just selectively offended.  Common Cause: "Nonprofit, nonpartisan citizen's lobbying organization promoting open, honest and accountable government."

[G M]

The left is trying to prepare the battlefield before Obamacare comes before the court.

[G M]

http://oceanaris.wordpress.com/2011/02/15/the-lefts-attempt-to-delegitimize-the-supreme-court/

The Left’s attempt to Delegitimize the Supreme Court
Posted on February 15, 2011 by Matt Holzmann

On February 4, the New York Times fired the first salvo in the Left’s quest to delegitimize Justices of the Supreme Court in the runup to what is to be expected to be one of the premier cases of the early century; that of the health care bill.  In an editorial they slanted the story on Justices Antonin Scalia and Clarence Thomas so blatantly and dishonestly that they stepped over the line into base propaganda.

Late last week, seventy-four Democratic Members of Congress led by noted moderate (yes, I’m kidding) Anthony Weiner sent a letter to Justice Thomas demanding that he recuse himself from any case before the Court related to the  bill. This follows a more muted comment by Senator Orrin Hatch suggesting the recusal of Justice Kagan on the grounds that she was Solicitor General of the United States until her appointment on August 10 last year to the Court.

In the case of Justice Thomas, the demand has been made because of his wife’s outspoken opposition to the bill and her involvement in Tea Party activities. The pretext being used is that Justice Thomas did not disclose her employment at the conservative Heritage Foundation from 1998 to 2003 until recently, even though she is well-known in Washington. In the case of Justice Kagan, it is because her role as Solicitor General would have involved discussions on the legal aspects and perhaps strategy, of the bill. One the one hand, the Democrats are demanding, on the other a Senator suggested. Therein lies the issue.

This morning, Eric Lichtblau of the Times continues the hit job with a sweetheart interview with Arn Pearson, a vice president of Common Cause, who have been fanning the flames of this nontroversy in their effort to boot both Justices off the Health Care case. This time, Common Cause is challenging Justice Thomas’ travel expenses when he spoke to a conservative legal foundation 3 years ago.

Justices Thomas and Scalia are well-known to be conservative, just as Justice Kagan is known to be more liberal. While Senator Hatch may have a point that Justice Kagan was a major party to the process of forming and passing the health care bill, the case against Justice Thomas first involves his wife, and second, is a pretext to delegitimize his participation in the decision. The case against Justice Scalia is even more specious, as the event where he was supposed to have violated his judicial ethics was attended by two of the most liberal members of Congress, who gave him a clean bill of health.

As an American, I have reasonable faith in the objectivity of our judges. While I expect their political and world views to be reflected in their decisions, I also trust that we are a nation of laws.

But as demonstrated by the unprecedented manner in which the health care was passed I most certainly do not have faith in the good intentions of 74 of the legislators who tied up the rules of Congress like a pretzel and rammed a deeply flawed bill through Congress in the dark of night. Even Speaker Pelosi, one of the architects, admitted she had not read the bill before the vote. The bill was written behind closed doors in an insult to our democratic process. Now the usual suspects wish to pursue their aims through extralegal means.

I know they will hate the term, but this is a “Hail Mary” play as they watch as 26 states have filed suit and two Federal judges have struck down the bill. Popular opposition to the bill is over 60%, and the bill just cost the Democrats their Congressional majority. There has rarely been such a divisive issue.

And now the gloves are well and truly off. The Left has made the Supreme Court a battlefield since the Thomas nomination. In 2000, they further damaged the credibility of the Court by claiming bias in the most convoluted and partisan case in American political history.They have done their best to demonize and belittle the credentials and opinions of the more conservative justices on the court. We can expect the vitriol to fly faster than ever before in this case. Health care is the centerpiece of the Left’s political agenda whether achieved legally and legitimately or not.

And that is the heart of the matter. The Left is doing its best to destroy those institutions which it opposes. This is not about the rule of law. It is about power and privilege. Intimidation, threats, deception and blackmail are the order of the day. We saw that with the passage of the health care bill on a scale that will keep the historians busy for decades. The Left wants tame courts and the ability to venue shop for them in order to pass any old thing they want. The use of executive orders and the regulation process are part and parcel of this process.

The system has been abused almost to the breaking point. Now one of the last unquestioned institutions has come under assault. Where do we go from here?

[Crafty_Dog]

"I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that is not the guide in expounding it, there may be no security for a consistent and stable, more than for a faithful exercise of its powers. If the meaning of the text be sought in the changeable meaning of the words composing it, it is evident that the shape and attributes of the Government must partake of the changes to which the words and phrases of all living languages are constantly subject. What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense. And that the language of our Constitution is already undergoing interpretations unknown to its founder, will I believe appear to all unbiassed Enquirers into the history of its origin and adoption." --James Madison, letter to Henry Lee, 1824



Associated Press
WASHINGTON—In a major policy reversal, the Obama administration said Wednesday that it will no longer defend the constitutionality of a federal law banning recognition of same-sex marriage.

Attorney General Eric Holder said President Barack Obama has concluded that the administration cannot defend the federal law that defines marriage as only between a man and a woman.


View Document

See the letter that Attorney General Eric Holder sent to Speaker of the House John Boehner (R., Ohio) regarding the Defense of Marriage Act.
..
Previously
Wash Wire: Biden: U.S. Is Warming to Gay Marriage
Battles Remain for Gay-Rights Proponents
Gay-Marriage Ban Goes Back on Trial
.Mr. Holder noted that the congressional debate during passage of the Defense of Marriage Act "contains numerous expressions reflecting moral disapproval of gays and lesbians and their intimate and family relationships—precisely the kind of stereotype-based thinking and animus the [Constitution's] Equal Protection Clause is designed to guard against."

The Justice Department had defended the act in court until now.

"Much of the legal landscape has changed in the 15 years since Congress passed" the Defense of Marriage Act, Mr. Holder said in a statement. He noted that the Supreme Court has ruled that laws criminalizing homosexual conduct are unconstitutional and that Congress has repealed the military's "don't ask, don't tell" policy.

Mr. Holder wrote to House Speaker John Boehner (R., Ohio) that Mr. Obama has concluded the Defense of Marriage Act fails to meet a rigorous standard under which courts view with suspicion any laws targeting minority groups who have suffered a history of discrimination.

The attorney general said the Justice Department had defended the law in court until now because the government was able to advance reasonable arguments for the law based on a less strict standard.

At a December news conference, in response to a reporters' question, Mr. Obama revealed that his position on gay marriage is "constantly evolving." He has opposed such marriages and supported instead civil unions for gay and lesbian couples. The president said such civil unions are his baseline—at this point, as he put it.

"This is something that we're going to continue to debate, and I personally am going to continue to wrestle with going forward," he said.

[bigdog]

http://opinionator.blogs.nytimes.com/2011/02/23/is-anyone-watching/?emc=eta1

[bigdog]

http://online.wsj.com/article/SB10001424052748704071304576160763576641114.html?mod=djem_jiewr_PS_domainid

The Supreme Court seemed ready Tuesday to hand criminal defendants a new weapon against federal prosecutors, allowing them to contend they were charged under laws that usurp authority the Constitution reserves for state governments.

[ccp]

"President Obama says DOMA is unconstitutional, and yet the “law professor” says he will continue to enforce it. In a properly ordered constitutional republic, this would be a scandal. But in America today, it’s cause for eye-rolling, shrugs, and platitudes about the demands of politics."

I think it is likely a political move.  He needs the gay hordes led by MSNBC as his poll numbers are falling again.  I think he is holding back on support for gay marriage for the political opportune time not for their benefit but for his.   Just IMHO.

***Jonah Goldberg

February 25, 2011 12:00 A.M.

Throwing in the Towel on the Constitution
Obama violates his oath of office

Article 2 of the U.S. Constitution requires that each new president take the following oath:

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.

President Obama announced this week that he will violate that oath.
In a decision hailed by gay-rights activists, the White House announced that it will no longer defend the Defense of Marriage Act (DOMA) on the grounds that it has suddenly dawned on the president and attorney general that the law is unconstitutional.

DOMA, signed into law by President Clinton, bars the federal government from recognizing same-sex marriages. Obama has always opposed the law, but as president his administration has enforced it and defended it in court. Although it should be noted that Obama’s Justice Department has not defended DOMA vigorously, as Justice Department guidelines require.

As Ed Whelan, a legal scholar and president of the Ethics and Public Policy Center, has detailed at some length, the DOJ has been, in effect, tanking the fight in court for the last two years by tailoring its arguments in ways beneficial to gay-marriage activists. Now Obama’s lawyers are simply taking a dive by flatly declaring the unconstitutionality of the law.

Obama, who fancies himself a scholar of the Constitution, never said a peep about the law being unconstitutional until this week.

Why the public change of heart?

There’s good reason to believe that Obama has always been lying — yes, lying — about opposing gay marriage. For example, in 1996, he told the Windy City Times, “I favor legalizing same-sex marriages, and would fight efforts to prohibit such marriages.” But by 2004, Obama very much wanted to be president, and he understood that supporting gay marriage would be a political liability. So he opted for something other than honesty. And in a 2004 interview with a gay publication, Obama strongly hinted his opposition was strategic, not philosophical.

“Everything we know and admire about President Obama makes the claim that he doesn’t support the freedom to marry very unconvincing,” Evan Wolfson, the director of the gay-rights group Freedom to Marry, told the Huffington Post last August.

White House Press Secretary Jay Carney insists that the president still opposes same-sex marriage. But Carney was quick to note that the president has said his views on the matter are “evolving.” Translation: He could completely change his mind at any moment.

And you know what? That’s fine. Lots of people change their minds about issues like these. Support for gay marriage and gay rights generally has been on the rise for years. My own views have been evolving as well.

But that is all irrelevant. The politics are irrelevant too. I don’t know if this is a politically smart move on Obama’s part or a dumb one, though I have my theories.

Either way, what Obama is doing is flatly outrageous. Carney says that “the president is constitutionally bound to enforce the laws and enforcement of the DOMA will continue.”

No, he is not.

There’s a myth out there that only the Supreme Court determines what is, or is not, constitutional. It’s a bipartisan myth. “We can’t have presidents deciding what laws are constitutional and what laws are not,” Sen. Scott Brown (R., Mass.) said in a statement. “That is a function of the judicial branch, not the executive.”

President Bush made a similar, indefensible error when he signed the McCain-Feingold campaign-finance bill, even though he believed portions of it were unconstitutional (and he was right; the Supreme Court overturned it in Citizens United v. Federal Election Commission last year).

The problem is that the Constitution doesn’t say any such thing (and, no, it’s not in Marbury v. Madison either). The president doesn’t take an oath to “preserve, protect and defend” the Supreme Court. He takes an oath to defend the Constitution.

Imagine if Congress passed — hopefully over a presidential veto — a law that brought back slavery. Such a law would be plainly unconstitutional, and no president worthy of the job would wait for the Supreme Court to tell him as much. More to the point, once the president concluded that the law was unconstitutional, he would be bound by his oath to ignore it, and challenge it in every way possible.

President Obama says DOMA is unconstitutional, and yet the “law professor” says he will continue to enforce it.

In a properly ordered constitutional republic, this would be a scandal. But in America today, it’s cause for eye-rolling, shrugs, and platitudes about the demands of politics.

—Jonah Goldberg is editor-at-large of National Review Online and a visiting fellow at the American Enterprise Institute. © 2011 Tribune Media Services, Inc.***
 

[Crafty_Dog]

BD:

Interesting question presented there , , ,

[Crafty_Dog]

"Without liberty, law loses its nature and its name, and becomes oppression. Without law, liberty also loses its nature and its name, and becomes licentiousness." --James Wilson

Opinion in Brief

Obama's next plan for America?"Attorney General Eric Holder announced that President Obama had concluded that the administration would no longer defend Section 3 of DOMA [Defense of Marriage Act]. ... As he has in so many other areas (EPA, the offshore drilling ban, IMF), Obama has usurped the authority of the other two coequal branches of government to make himself, in effect, not just chief executive but super-legislator and a supreme judicial authority. Holder admitted in his statement that the Justice Department 'has a longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense,' but not otherwise. But it is preposterous to suggest there are no reasonable arguments to defend the statute when 5,000 years of human history and the express act of Congress fly in the face of that statement. According to professor John Yoo, 'in the few cases that the Supreme Court has heard gay rights cases, it has never adopted (the standard Obama is applying).' In announcing a new standard, Obama claims that the legal landscape has changed in the 15 years since DOMA was passed. You know the drill: Society has 'evolved.' ... t is not Obama's place to make this determination, especially when the people have already done so in such emphatic terms through their duly elected congressmen. ... [W]e have an imperial president who is refusing to enforce a law passed by powerful congressional majorities while persisting in enforcing a law (Obamacare) that two federal courts have already invalidated. The only common denominator is that Obama believes he is the law." --columnist David Limbaugh

Culture
"One of the most insidious practices of the insidious Obama Justice Department is the sabotaging of litigation -- i.e., DOJ purports to defend some statute or government policy so that it can appear to be moderate, but uses its resulting control over how the case gets litigated to forfeit some of the best legal arguments supporting the statute/policy. This way, DOJ can steer the case toward the radical outcome the Obama base desires rather than the outcome DOJ is ostensibly pursuing. On balance, I far prefer that Obama's Justice Department openly advocates for the outcome desired by Obama's base, as it is finally doing with DOMA [Defense of Marriage Act]. This way, the court can appoint lawyers who will truly defend the statute with the best legal arguments available. ... Regardless of where the DOMA litigation goes from here, what's interesting is the administration's political calculation as the president gears up for the 2012 campaign. Obama has clearly decided that it's more important to be publicly aligned with his base -- which he desperately needs to drum up enthusiasm for his reelection -- than to pursue the more subtle (and effective, albeit unethical) strategy of masquerading as DOMA's defender while actually undermining the statute." --columnist Andrew C. McCarthy