Readers, it would seem that the new trend in the House of Representatives is to attempt to create de facto consitutional amendments. A measure to amend the Constitution to ban gay marraige was defeated in the Senate by a coalition of Democrats and Republicans, so the Republicans in the House who had backed it wholeheartedly decided to get clever. They drafted H.R. 3133, the Marriage Protection Act, which is the spiritual forerunner of the Pledge Protection Act. It is, however, slightly more insidious in its unconstitutionality. It attacks one very specific area of the Constitution (one dealing with states recognizing each others' acts, records, and judicial proceedings) by ignoring it, then attacking another, somewhat weaker area discussing the jurisdiction of courts in order to produce a loophole diverting the potential of a legal battle regarding the area that it really wants to attack. Sound convoluted? It is, but let me try to explain.
The Marriage Protection Act is very simply designed to protect states from being forced to recognize a marriage license issued in another state. That's unconstitutional. And I quote: "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State." The bill limits the jurisdiction of the courts to hear cases which might question the constitutionality of a state not conforming to that particular clause with regard to marriage. This is tantamount to the House passing a bill that says "Criminals who violate federal law cannot be tried in federal court." Rep. Hostettler (R-IN), the bill's chief sponsor, has done an excellent job of citing constitutional sources for limiting the jurisdiction of courts, however, he exploits a potential reading of the Constitution to produce an intentional loophole. Art. III Sec. 2 reads:
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
The key words here are: "...with such Exceptions, and under such Regulations as the Congress shall make." Now, here's where things get tricky in my opinion. Hostettler is assuming that the phrase that I just quoted applies to the first sentence as well. (i.e. Congress can make Exceptions and Regulations in Cases to which a State is Party.) It seems to me that the Founders were trying to give Congress the right to create additional areas in which the Supreme Court would have original jurisdiction. The reason I say this is simple. If for whatever reason the state of Indiana sued the state of Virginia and Congress had passed one of these "Protection Acts" regarding the subject of the lawsuit, who would decide? The state courts? They can't. The federal courts? They couldn't either. Judge Judy? I don't think so. Again, blocking cases where specific issues are at stake threatens to create a logical error of the type that would cause a computer to crash.
If reading the constitution in one fashon produces a smooth flow of logic (even if you don't like the outcome) it must be more correct than a reading which produces potential unresolvable conflicts. Let's try to keep in mind that our Founders were the children of the Enlightenment, and Reason was the founding principle to which they subscribed, not religion. If you find yourself in doubt of that simply read virtually anything Thomas Jefferson or James Madison ever wrote.
Thomas Jefferson instructed us that when reading the constitution we should try to imagine the original intent of the founders. Given that the founders were all men of reason, I doubt very much that they intended for us to view the Constitution as a fortress which we are to besiege with crafty legal wrangling. That's all this is, readers, this is a legal and political attack laid according to Sun Tzu's Art of War. They are choosing which portion of the Constitution to engage and altering the battlefield so that they will never have to engage the portion which they cannot defeat. The document establishing our government was not meant to be attacked or defended in segments, divided so that it may be conquered. It was meant to face honorable men face to face. Perhaps our founders placed to much faith in their succeeding generations.
Monday, September 27, 2004
Weekend Observation
Well, my Orwellian fears of despotic plots to undermine the republic have yielded to a fairly benign weekend (at least in that arena). I did however stumble over a rather interesting quote from Thomas Jefferson from his Notes on Virginia. It's a quickie, just a little blurb, but it, in the style of Enlightenment politicians, is rather profound. "It is error alone which needs the support of government. Truth can stand by itself."
I'm not going to expound on it. A far wiser man than I said it, and I'll leave it to you, dear readers, to ponder his meaning. Personally, I choose to ponder it in relation to the war. It seems to me that for a just war fought on the honest pretenses of freedom and democracy there's an awful lot of spin control. Just a thought.
I'm not going to expound on it. A far wiser man than I said it, and I'll leave it to you, dear readers, to ponder his meaning. Personally, I choose to ponder it in relation to the war. It seems to me that for a just war fought on the honest pretenses of freedom and democracy there's an awful lot of spin control. Just a thought.
Saturday, September 25, 2004
Not That Simple?
It has been brought to my attention that my explanation of the unconstitutionality of the Pledge Protection Act was oversimplified, so I'll remedy that in brief. Here's the wording of the act:
`No court established by Act of Congress shall have jurisdiction to hear or determine any claim that the recitation of the Pledge of Allegiance, as set forth in section 4 of title 4, violates the first article of amendment to the Constitution of the United States.'
Here's the wording of Sec. 1 Art. 3 of the Constitution of the United States of America :
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.
According to the website of Rep. Todd Aikin (R Missouri) the Congress derives its power to regulate the jurisdiction of inferior courts from this article. Here's the problem:
It simply doesn't say that. It says that the Congress can "ordain and establish" them. The part of the US Code which the bill amends deals with instances in which jurisdiction is in question, and, well, that has nothing to do with this. According to Aikin's website this also only affects lower courts, however, the Supreme Court could be interpereted as having been established by "Act of Congress" since the Constitution was adopted by the Constitutional Congress. Additionally, since the Supreme Court is the highest level of appeals court, how are these cases supposed to arrive in their inboxes? Simple, if Aikin has his way, they won't. So, I'm saying to the Gentleman from Missouri, start writing your constitutional amendment because that's the only way this will ever be legitimate.
-BT
`No court established by Act of Congress shall have jurisdiction to hear or determine any claim that the recitation of the Pledge of Allegiance, as set forth in section 4 of title 4, violates the first article of amendment to the Constitution of the United States.'
Here's the wording of Sec. 1 Art. 3 of the Constitution of the United States of America :
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.
According to the website of Rep. Todd Aikin (R Missouri) the Congress derives its power to regulate the jurisdiction of inferior courts from this article. Here's the problem:
It simply doesn't say that. It says that the Congress can "ordain and establish" them. The part of the US Code which the bill amends deals with instances in which jurisdiction is in question, and, well, that has nothing to do with this. According to Aikin's website this also only affects lower courts, however, the Supreme Court could be interpereted as having been established by "Act of Congress" since the Constitution was adopted by the Constitutional Congress. Additionally, since the Supreme Court is the highest level of appeals court, how are these cases supposed to arrive in their inboxes? Simple, if Aikin has his way, they won't. So, I'm saying to the Gentleman from Missouri, start writing your constitutional amendment because that's the only way this will ever be legitimate.
-BT
Friday, September 24, 2004
Check the Imbalances
It would seem, dear readers, that it simply isn't enough for the GOP to push an agenda in Colorado which greatly undermines the rights of the people of that state (see previous blog entry). In fact, it would seem that the GOP has engineered (through some unholy alliance no doubt) the passage of a bill designed to upset the system of checks and balances laid out in our Constitution. The bill is with reference to one very specific, and, if you ask me, relatively ridiculous issue: the words "under God" in the Pledge of Allegiance.
If you think back, you may remember that a California man brought suit agianst his daughter's school system because he, an athiest, did not wish his daughter to recite the words "under God" when saying the pledge. One California senator stated that a federal appeals court's ruling that the pledge was "an unconstitutional endorsement of religion" was "political corretness run amok." In my personal opinion he is, at least in spirit, correct. He might, however, find a bit of resistance from the author of the Pledge were Mr. Bellamy alive today.
Bellamy was a Christian Socialist and the chairman of the comittee of state superintendants for the National Education Association. He wrote the Pledge as part of a flag raising ceremony for the quadricentinial Colombus Day celebration in 1892, and, notably, he did not include the words "of the United States of America," or "under God." The former was added, against Bellamy's protest, by the National Flag Conference after a campaign by the American Legion and the Daughters of the American Revolution, the latter, by Congress in 1954 following a campaign by, astonishingly, the Knights of Colombus, but I digress.
The real point of this article has virtually nothing to do with the Pledge. The point, friends, is that the United States House of Representatives, in an unprecedented move, has passed a bill which (should it pass the Senate and President) will prevent federal courts, including the Supreme Court, from hearing cases regarding the Pledge. It's called the Pledge Protection Act, and when it arrives at the Senate floor it will be, by far and away, the most unconstitutional piece of trash to ever disgrace both houses of Congress.
For those of you not already clear on why this is so absurd, I'll provide a brief tutorial of the system of checks and balances which is written into our Constitution. The three branches of government (Legislative, Executive, and Judicial) are responsible for keeping each other in check, thus preventing one branch from gaining too much power. Congress is the legislative branch. The word legislate derives from Latin roots meaning "to write laws." Thus the function of Congress is self explanatory. The executive branch, the President, is equally self explanatory. It is the job of the President to execute the laws laid forth by congrees. Where's the check and balance? Simple, laws have to pass the executive branch before they become laws, but, should the President veto them, a two-thirds majority vote of the entire congress will override the veto. The function of the judicial branch is a little less self explanatory than others. The nine justices of the Supreme Court function a little differently than other courts. They only hear cases in which the constitutionality of the law which has been violated is in question or a civil suit (as in this case) has raised a constitutionality issue. While they have no power whatsoever in the law making process, they can strike them right out of existence. Seem a little unbalanced? Well, it's not. The president appoints the justices who must then be ratified by congress. See, everybody gets a say. After they're sitting, though, they're there for life, and they determine what cases they hear. Now, if Congress and the President really didn't like a ruling the Supreme Court made they could make an amendment to the Constitution, thus making whatever was unconstitutional before, constitutional. However, this takes a pretty hefty number of votes in the House and Senate, and doesn't happen very often. So, you see, the system of checks and balances really does prevent any one branch from having too much power.
So there, three houses of government, all alike in dignity, in fair Washington, DC where we lay our scene. The play is a tragedy in the most Greek sense of the word, the kind of tragedy where things started off just fine and went downhill from there. The Pledge Protection Act is a direct assault on the Supreme Court's position in the system of checks and balances. It is nothing less than an attempt by GOP members in the House of Representatives to force the Supreme Court to dance to their tune. The good news is that, theoretically, the Supreme Court could strike a ratified (it hasn't even hit the Senate floor yet) Pledge Protection Act right off the books, but only after someone brings suit against and makes it through the lengthy appeals process to the Supreme Court. What does this mean for us? Imagine an act of the same nature to protect abortion cases. You're pro-life, you say? I didn't specify that this hypothetical act had to protect women who wanted to have abortions. Imagine an America where Congress could place protections on free speech cases. Imagine an America where you could be arrested for voicing an unpopular opinion and then, when you finally get a hearing, it's deemed illegal for the courts to hear your case. Well, the Pledge Protection Act is one of but a few steps into that deep chasm that is despotism, and once over the edge, readers, there is no turning back.
-BT
Related Links:
The Pledge of Allegiance - A Short History
House Votes to 'Protect' Pledge of Allegiance (Reuters)
If you think back, you may remember that a California man brought suit agianst his daughter's school system because he, an athiest, did not wish his daughter to recite the words "under God" when saying the pledge. One California senator stated that a federal appeals court's ruling that the pledge was "an unconstitutional endorsement of religion" was "political corretness run amok." In my personal opinion he is, at least in spirit, correct. He might, however, find a bit of resistance from the author of the Pledge were Mr. Bellamy alive today.
Bellamy was a Christian Socialist and the chairman of the comittee of state superintendants for the National Education Association. He wrote the Pledge as part of a flag raising ceremony for the quadricentinial Colombus Day celebration in 1892, and, notably, he did not include the words "of the United States of America," or "under God." The former was added, against Bellamy's protest, by the National Flag Conference after a campaign by the American Legion and the Daughters of the American Revolution, the latter, by Congress in 1954 following a campaign by, astonishingly, the Knights of Colombus, but I digress.
The real point of this article has virtually nothing to do with the Pledge. The point, friends, is that the United States House of Representatives, in an unprecedented move, has passed a bill which (should it pass the Senate and President) will prevent federal courts, including the Supreme Court, from hearing cases regarding the Pledge. It's called the Pledge Protection Act, and when it arrives at the Senate floor it will be, by far and away, the most unconstitutional piece of trash to ever disgrace both houses of Congress.
For those of you not already clear on why this is so absurd, I'll provide a brief tutorial of the system of checks and balances which is written into our Constitution. The three branches of government (Legislative, Executive, and Judicial) are responsible for keeping each other in check, thus preventing one branch from gaining too much power. Congress is the legislative branch. The word legislate derives from Latin roots meaning "to write laws." Thus the function of Congress is self explanatory. The executive branch, the President, is equally self explanatory. It is the job of the President to execute the laws laid forth by congrees. Where's the check and balance? Simple, laws have to pass the executive branch before they become laws, but, should the President veto them, a two-thirds majority vote of the entire congress will override the veto. The function of the judicial branch is a little less self explanatory than others. The nine justices of the Supreme Court function a little differently than other courts. They only hear cases in which the constitutionality of the law which has been violated is in question or a civil suit (as in this case) has raised a constitutionality issue. While they have no power whatsoever in the law making process, they can strike them right out of existence. Seem a little unbalanced? Well, it's not. The president appoints the justices who must then be ratified by congress. See, everybody gets a say. After they're sitting, though, they're there for life, and they determine what cases they hear. Now, if Congress and the President really didn't like a ruling the Supreme Court made they could make an amendment to the Constitution, thus making whatever was unconstitutional before, constitutional. However, this takes a pretty hefty number of votes in the House and Senate, and doesn't happen very often. So, you see, the system of checks and balances really does prevent any one branch from having too much power.
So there, three houses of government, all alike in dignity, in fair Washington, DC where we lay our scene. The play is a tragedy in the most Greek sense of the word, the kind of tragedy where things started off just fine and went downhill from there. The Pledge Protection Act is a direct assault on the Supreme Court's position in the system of checks and balances. It is nothing less than an attempt by GOP members in the House of Representatives to force the Supreme Court to dance to their tune. The good news is that, theoretically, the Supreme Court could strike a ratified (it hasn't even hit the Senate floor yet) Pledge Protection Act right off the books, but only after someone brings suit against and makes it through the lengthy appeals process to the Supreme Court. What does this mean for us? Imagine an act of the same nature to protect abortion cases. You're pro-life, you say? I didn't specify that this hypothetical act had to protect women who wanted to have abortions. Imagine an America where Congress could place protections on free speech cases. Imagine an America where you could be arrested for voicing an unpopular opinion and then, when you finally get a hearing, it's deemed illegal for the courts to hear your case. Well, the Pledge Protection Act is one of but a few steps into that deep chasm that is despotism, and once over the edge, readers, there is no turning back.
-BT
Related Links:
The Pledge of Allegiance - A Short History
House Votes to 'Protect' Pledge of Allegiance (Reuters)
Thursday, September 23, 2004
Going Political
Okay, I've already got a website dedicated to me, so I've decided that for now my blog is going to be dedicated to something more important: the state of our nation. There's a reason this website is named for the seminal work on the collapse of the Roman empire (The Decline and Fall of the Roman Empire, Edward Gibbon, First Vol. Pub. 1776). I think there is something more than coincidental, possibly even prophetic in the fact that Gibbon published the entirety of his 6 volume work between the years 1776 (the year of the Declaration of Independence) and 1788 (the year prior to the creation of the Bill of Rights and the start of the French Revolution). Gibbon, with unrivaled eloquence, scathing wit, and an artists eye for detail laid out the events leading to the collapse of the Roman Republic and Empire and, more importantly, the underlying causes. "There is," as Hans-Friedrich Mueller says, "much in Gibbon to offend." He lays bare the damaging consequences of religions fanaticism and the tendency of mankind to sacrifice freedom for luxury. Gibbon is offensive because he is honest. Historians are only offensive when they are either too truthful or blatantly deceitful. I doubt very much that anyone with even a vague understanding of history would attempt to discredit Gibbon on the factuality of his treatise.
In writing about the collapse of the first western civilization, Gibbon foreshadowed all that would come. The Romans (this time in the form of American colonists) would again throw off the shackles of their insane monarch, and they would rise to power first through a rugged might and dignity, then through economic and political influence. We would follow the template laid out by empires long dead. We would rise. We would reign, and now, says history, we will fall.
If that template is to be believed, having advanced to our present status with approximately four times the rapidity of the Romans, we should collapse at that same alarming rate. With advances in communication and technology, the deteriorating attention spans of our people, and a consumerist paradigm the likes of which the world has never even imagined we should expect to be reduced to a state of despotism within a generation or two. Or have we already arrived there? Are we, like the ancient Romans, so bloated with pride over our supposed republic, our military might, our economic power, and our social dominance of the globe that we simply do not see that our own political influence is being dismantled bit by bit.
In Colorado the state legislature has instituted a referendum to determine whether or not the winner-take-all system with regard to the electoral college should be abolished in favor of a percentile distribution. (e.g. Should 33% of the state vote Democrat this November and the other 67% Republican then 3 of the 9 electoral votes would go to to Kerry and 6 of the 9 to Bush. This would almost always result in a 4/5 split between the two parties.) The benefits of this type of vote to Democrats is questionable, in fact there are many good arguments both for and against this measure, however, that's not the issue that's really at stake here. Republican Party lawyers have threatened, or more appropriately declared their intent, to bring the constitutionality of the issue into federal court should the measure pass. The reason: a clause that states that the method of distribution of the electoral votes is to be determined by the state legislature.
While I believe that there is a great deal of legitimacy to the arguments against the abolition of the winner-take-all system, I find that that issue takes a back seat to two other issues raised by this referendum. The first is the never-ending issue of states' rights. With Republican party members contesting the legality of Colorado's decision-making process in federal court we may find that American voters, American citizens, will find themselves at the mercy of Washington-based lawyers. I find it to be a dangerous proposition that GOP lawyers would be more than willing to take the issue to court based simply on the fact that the decision will be based on a referendum rather than a vote of the state legislature?
The second issue that this raises is the fundamental flaw in a political system, claiming to be a republic, in which it is possible to view a legislature's decision to hold a referendum as potentially unconstitutional. For goodness sake, we're talking about elected officials seeking the guidance of their constituency. How does this seem any more wrong than congressmen being lobbied over thousand-dollar dinners in Washington? Why is it debatable that the citizens of this country can be allowed by their elected officials to make decisions regarding their own government? I understand that the wisdom of a republic is that it mitigates the influence of the mob, but what is the wisdom in allowing lawyers, motivated by financial interest, to question the authority of the people and the elected officials?
It seems to me that this is simply a calculated attack on the power of the average citizens of the United States, just an attempt by the political elite to weaken the ability of the people to determine their own fate in the political arena, giving more power to special interest groups and Washington insiders. In these crucial times we must, as a nation, take care in how we allow this to proceed. We must heed the warnings of our founders that true patriots question their government and not simply allow it to advance unchecked.
In writing about the collapse of the first western civilization, Gibbon foreshadowed all that would come. The Romans (this time in the form of American colonists) would again throw off the shackles of their insane monarch, and they would rise to power first through a rugged might and dignity, then through economic and political influence. We would follow the template laid out by empires long dead. We would rise. We would reign, and now, says history, we will fall.
If that template is to be believed, having advanced to our present status with approximately four times the rapidity of the Romans, we should collapse at that same alarming rate. With advances in communication and technology, the deteriorating attention spans of our people, and a consumerist paradigm the likes of which the world has never even imagined we should expect to be reduced to a state of despotism within a generation or two. Or have we already arrived there? Are we, like the ancient Romans, so bloated with pride over our supposed republic, our military might, our economic power, and our social dominance of the globe that we simply do not see that our own political influence is being dismantled bit by bit.
In Colorado the state legislature has instituted a referendum to determine whether or not the winner-take-all system with regard to the electoral college should be abolished in favor of a percentile distribution. (e.g. Should 33% of the state vote Democrat this November and the other 67% Republican then 3 of the 9 electoral votes would go to to Kerry and 6 of the 9 to Bush. This would almost always result in a 4/5 split between the two parties.) The benefits of this type of vote to Democrats is questionable, in fact there are many good arguments both for and against this measure, however, that's not the issue that's really at stake here. Republican Party lawyers have threatened, or more appropriately declared their intent, to bring the constitutionality of the issue into federal court should the measure pass. The reason: a clause that states that the method of distribution of the electoral votes is to be determined by the state legislature.
While I believe that there is a great deal of legitimacy to the arguments against the abolition of the winner-take-all system, I find that that issue takes a back seat to two other issues raised by this referendum. The first is the never-ending issue of states' rights. With Republican party members contesting the legality of Colorado's decision-making process in federal court we may find that American voters, American citizens, will find themselves at the mercy of Washington-based lawyers. I find it to be a dangerous proposition that GOP lawyers would be more than willing to take the issue to court based simply on the fact that the decision will be based on a referendum rather than a vote of the state legislature?
The second issue that this raises is the fundamental flaw in a political system, claiming to be a republic, in which it is possible to view a legislature's decision to hold a referendum as potentially unconstitutional. For goodness sake, we're talking about elected officials seeking the guidance of their constituency. How does this seem any more wrong than congressmen being lobbied over thousand-dollar dinners in Washington? Why is it debatable that the citizens of this country can be allowed by their elected officials to make decisions regarding their own government? I understand that the wisdom of a republic is that it mitigates the influence of the mob, but what is the wisdom in allowing lawyers, motivated by financial interest, to question the authority of the people and the elected officials?
It seems to me that this is simply a calculated attack on the power of the average citizens of the United States, just an attempt by the political elite to weaken the ability of the people to determine their own fate in the political arena, giving more power to special interest groups and Washington insiders. In these crucial times we must, as a nation, take care in how we allow this to proceed. We must heed the warnings of our founders that true patriots question their government and not simply allow it to advance unchecked.
Subscribe to:
Posts (Atom)