‘My right NOT to know, and your right to duck my bullets’

I like Morgan Freeberg — he’s entertaining.

Politically, he’s rarely right, and he’s definitely afflicted with that virus that strikes conservatives and makes them feel that if they can cover a topic with enough words, and if there is enough snark in those words, they must be right, and everyone else is a fool for not seeing that and making them king.  Or at least a local lord.  You can see this on display at his blog, The House of Eratosthenes.

Morgan waded into the discussion on some of our less thoughtful U.S. Senators, who think a good reason to filibuster a bill is they can’t find their own ass with both hands a copy of the bill they just know they will oppose, before they know what’s in the bill (no bias here).

Specifically, Morgan’s defending Sen. Marc Rubio’s right not to know what’s in the compromise reached by Sen. Pat Toomey of Pennsylvania and Sen. Joe Manchin of West Virginia, because Morgan just knows that those two libruls from those two gun-hating states have put in language on ammunition magazines that will deprive crazy shooters of their sport in shooting babies somehow might “infringe” on the actual ownership of the gun.

I answered in a previous thread — but this really should get more discussion, and perhaps if I make a post out of it, someone will discuss.

This is the post — I won’t put all of it in quotes, to make it a bit easier to read (and I may add a link here and there):

Morgan said:

Alright. First, if you’re trying to make this look like “reasonable” or “common sense” gun “safety” legislation as they call it, it’s a good idea to stay away from this capacity-limitation stuff. To swap out a magazine — not clip — I don’t need eleven seconds, I don’t need half that. I’m not anywhere close to James Bond, or Barney in The Expendables…I merely maintain familiarity and confidence/competence with my sidearm. If I can do it in two seconds, a lot of other people can as well. So you’re counting on a payoff there that you’re not getting. The whole magazine-capacity thing is not only a distraction, it actually highlights for the benefit of the knowledgeable public which loudmouth legislators ought not to have anything to do with gun legislation, or guns either.

Helluva distraction. There’s no such proposal, but you’re so bugged about it you can’t argue straight.

Pennsylvania U.S. Senate Candidate Pat Toomey addresses protestors at the Philadelphia Tea Party on April 18, 2009. (He won) Wikipedia image

Maybe we’re being sneaky. Maybe we’re getting you all worked up over something not in the bill so you’ll have a heart attack and be unable to lobby your senators to go easy on baby killers.

Or maybe you guys can’t read. Can’t, won’t, doesn’t make much difference — you’re so sure of your position you not only damn the facts, you damn the existence of the facts and the non-existence of the hoodoos you fear.

Here, tell this guy he got it wrong; you’re barking up a tree on the wrong side of the ocean here: http://timpanogos.wordpress.com/2013/03/17/powerful-argument-for-limiting-bullets-in-a-clip-colorado-sen-mike-johnston-pleads-to-give-victims-a-chance-to-escape/

[Here's the video at that post:]

Morgan wrote:

It comes down to this: A gun has a certain number of bullets with which it can be loaded, before it becomes an instrument of death — that number is one. Whoever isn’t familiar with that, should be escorted off the range.

Think of all the gun ranges put out of business if we did that!

Of course, that is a comment on the mechanics; as far as process goes, the number is zero, since one of the basic rules of guns safety is “the gun is always loaded.”

I don’t think a crazy guy should be allowed to pump out 150 soldier-killer bullets in 5 minutes, with most of them going into the heads and faces of more than a score of 6-year-old kids. You seem to think that is such a sacred right that we . . . well, I don’t know what you propose.

You seem to think that forcing crazy men to reload is unfair. I think you’re not being fair to those six-year-old kids.

The evidence in Newtown is that the one reload he did took 11 seconds, and a teacher got 11 kids out of the school, to safety, in that time.

It took him five shots to blast through the safety lock on the door — had he been limited to five-round clips, he’d have been out of ammo in one gun just getting through the door.

I cannot imagine why you think we can’t be fair to six year old kids, but we must give crazy men more than a sporting chance to murder 20 unarmed people. I think my rights would be safer if I didn’t go with your defense of the crazy man’s rights.

Now, is it technically impossible to limit the rounds and reduce the carnage? Not according to the record.

Facts are stubborn things. That old John Adams sure got that right.

If I were Sen. Rubio, considering for the moment supporting this gun “safety” bill, and decided to read it all the way through, I’d change my mind and oppose it the first time I saw something about magazine capacity limits, because that would tell me someone wrote it without knowing anything about how guns are supposed to be treated around a public that we don’t want to be hurt by them. Which is the subject of the bill.

We know you’re not going to read the bill, just like Rubio hasn’t. He has a sort of duty to read it — but you’re so cock sure that you’re smarter than every other guy in the country and that you can see the future before God, you can’t be bothered to read even the quick summary of the bill.

It pains me when you reinforce all the stereotypes of the right-wing, can’t-tell-me-nuthin’ nuts, Morgan. If you’re going to pretend to be thoughtful, at least read the stuff, will you?

Gustave Doré drawing: Don Quijote de La Mancha and Sancho Panza, 1863 Wikipedia image

You’re so cock-sure that there would be a crazy proposal of the type you fear that you can’t be bothered to read the bill and see that there’s nothing at all like it. Worse than Don Quixote tilting at windmills, you’re shooting at windmills that are not dragons, but behind which children were playing a few minutes ago. See, Quixote was harmless with his lance. Facts again: Guns are not lances.

Sometimes it’s not the things we don’t know that gets us into trouble, but the things we know, that are wrong. It’s not the target practice of the safe and sane occasional hunter that gets gun ownership questioned, it’s the crazy shooting at dragons that don’t exist, in schools and theaters and workplaces, where real people do exist.

Second. The Constitution guarantees me certain God-given rights, which supposedly nobody can take away from me, and I wouldn’t be able to discard even if I wanted to. Conservatives and liberals would agree — with different examples in mind — that We The People have lately encountered considerable difficulty electing representatives who will truly protect these rights.

Quite to the contrary, we’ve succeeded in electing nuts who are so dedicated to protecting those rights, they’ll go overboard to be sure that anything even close to resembling a right of a white male with a gun cannot be regulated rationally. Rex Tillerson‘s right to pour oil in every backyard in Arkansas is defended, Rep. Joe Barton apologizes to the white guys who run BP for all those Cajuns’ having put their Gulf of Mexico where BP could pollute the hell out of it. A white guy wants sex, well, some women “rape easy,” “they’re just good-time-lovin’ football players and football is an American game,” and if he’s an Army or Air Force officer, his superior will dismiss the rape charges. Jeremy Dimon gets to keep his freedom, and all the money banks stole from black families put out of their homes in New Orleans, Detroit, Chicago and Los Angeles because his bank and his cronies’ banks screwed up the mortgages.

And if you want to shoot up a theater, or a school, and kill a bunch of unarmed people — well, you know, that’s a right, right?

I cannot imagine what rights you think are not defended, for white males.

Right to life, liberty and pursuit of happiness? Right to quiet enjoyment? Right to be free from assault and battery? Right not get life-saving and cheap medical care for your kid? Right not to have to bury your kid as child? Not all rights are enumerated rights. You seem to miss some of the more important ones, when we get right down to it.

Now, if one worries about rights for anyone of color, or rights of children to health care or education, or rights of women to fair pay — well, none of those people are mentioned in the Constitution, are they? They all look like Dred Scott, to a Congress of white males.

In view of that, I like the idea of a Senator who made up his mind to oppose a gun bill before reading all of it (your headline would imply that he hasn’t read any of it, which is not substantiated by your story).

I see no evidence Rubio wasn’t telling the truth — and Cruz is probably too stupid to understand it, so I believe him when he says he can’t even find the bill that was placed in the middle of his desk on March 22. I swear that guy puts an icepick over his left eyeball every night he can.

This would be in keeping with his oath to uphold the Constitution: If the bill has something that cannot be reconciled with the Constitution, out it goes.

There is nothing in the Constitution which says anyone has to be an inadequate anal orifice. You’re reading it wrong.

Or have you even read it? You haven’t read the gun control bill. Why should you read the Constitution?

In reality, there is nothing in the Constitution that says any Member of Congress must be a roadblock, or should be a roadblock, nor that there should be any roadblocks at all. Filibustering is not a Constitutional right — not mentioned in any way.

After all, there is a period-end-of-sentence after the word “infringed.” It doesn’t say “shall not be infringed, unless something really spiffy is written that makes the infringing seem like a swell idea.”

Funny how you can completely miss the first 13 words of the Amendment, “A well regulated Militia, being necessary to the security of a free State.” There are only 27 words in the amendment; you worry about punctuation while completely missing 48% of the text. That rounds to 50%.

But, you don’t read. I forgot. As with most conservatives, you think you know what is in a text without reading it, predudging it from . . . well, prejudging it, anyway.

“Prejudge” isn’t related to “prejudice” in the conservative dictionary, anyway.

This is the way I want ALL guarantees to me, or to anybody else, to be enforced. I want my renter’s insurance to be enforced this way. I want my employment contracts to be enforced this way. It’s only fair.

Can you do what no other gun rights advocate has done, Morgan?

Tell us what infringement there would be if you had to limit your automatics, semi-automatics, or single shots, to a five-bullet magazine. How would that, in any way, infringe on your right to keep arms, or bear them?

After you stumble over that one, tell us how it affects your right at all to fill out a form that lets a gun seller figure out whether you’re being straight about not being a felon, and not being a crazy shooter, and not fronting for a crazy shooter or felon.

How does filling out a form to make sure you’re legal, infringe on your right to keep and bear arms? There’s nothing in that amendment that says you can keep your gun ownership or bearing secret — in fact, in many states, keeping a gun concealed is a crime (without a permit).

Tell us how anyone’s rights are infringed by those common sense proposals, one of which isn’t even being proposed.

If I submit a form to the Social Security Administration, or to the IRS, or to some state agency like the DMV, and the form has 88 blocks in it and I botched something somewhere around the 8th or 9th block, it would be patently absurd for me to stand there and berate the DMV clerk who rejected it with “Why didn’t you read blocks ten through eighty-eight?? What am I paying you to do with your time??”

So you won’t do that anymore? That’s good news. I hope it’s a movement, and it catches on.

Aggravating as the situation would be, such a reaction would be very silly…because once the 8th or 9th block is screwed up, it’s an invalid form, and even though blocks 10 through 88 may be loaded with wonderfully accurate information, in context it’s still a bunch of nonsense until they’re copied on to another form that has been filled out PROPERLY. So reading them would actually be an inappropriate use of that time that I bought through my tax money by paying the clerk’s salary. Well, if that’s true of clerks, it’s certainly true of Senators, who swear an oath to uphold the Constitution.

I don’t think that’s a good analogy. Your paying your taxes is not similar in any way your elected representatives’ lying to you about whether they read bills or not, and using the pretense that they’ve not seen what they know is in the bill, to block the majority from even debating what is the best thing for the nation.

In their constitutional duty to represent you, they don’t have the right to boldly lie about what they’re doing for demagogue points.

It’s not illegal, but it’s dishonest, disgusting, and unpatriotic. It doesn’t represent you well — at least, I don’t think that you’re so corrupt that you can only get by by lying through your teeth and making phony excuses.

Sorta like enforcement of a lease — lying through your teeth about the rent isn’t a good idea, regardless you’re the tenant or the landlord.

Why am I having to explain the above?

Because you’re trying to defend ugly skullduggery on a bill you don’t know much about?

Because you sank all of your retirement funds into a gun manufacturer, and you just realized that rational gun laws might take that gold mine away? Because you’re a conservative, and these days that means “so congenitally unable to tell the truth that, when a conservative shoots a hole-in-one on the golf course, he writes ’0′ on the score card?”

I don’t know.

You’re doing a great job of supporting one of my pet theories, that liberals are people who haven’t actually had to deal with the bureaucracies their ideas create.

And you’re providing ample support for a couple of hypotheses I’ve wished didn’t need to be tested: One, that conservatives really DON’T know what a theory is, especially contrasted to hypotheses; two, that conservatives can’t be bothered to read the book, or the law, or the proposal, or anything else that might inform their arguments, probably out of fear they’ll realize their prejudices are wrong; three, that conservatives really like rules, out of their defense of “traditional” life and “order” — but they think the rules never apply to themselves or their supporters; and four, that the fact that the conservative position is correct should be so self-evident, no matter how half-wit or knuckleheaded the idea, that conservatives will never stoop to actually arguing the issues — keep John Walsh and Candy Lightner far away from conservatives, because they have no real defense for why we treat automobiles as more valuable than children or why we never stick to our guns about criminalizing drunk drivers who kill, especially repeatedly — and so, keep the parents of the Newtown victims far away from Washington, and demonize them as soft-on-crime, anti-patriotic, anti-Constitution liberal fuzzy heads, so we don’t have to look them in the eye and explain why we’re voting to defend the right of the idiot to shoot their children without cause, justification, warning, remorse or chance for retribution.

What’s more important, overarming people (the better to reduce the population), or keeping kids alive? (“We secretly hate children, which is why everyone of our policies is designed to make childhood difficult, cripple children educationally, mentally or physically, or kill them.”)

I do have to say though, I can see an upside to having it work the way you want…it would give me great pleasure, when I fill out a form wrong, to throw a hissy fit about “why didn’t you read the rest of my form?” But realistically, of course there’s no way it can work like that.

I thought you just had a mental burp — but now I see you’re on some tear about filling in forms incorrectly.

What difference could that possibly make?

Apparently there’s another trait of conservatives: The tendency to dissolve into irrelevant rants, instead of facing up to real problems, and making hard decisions about real solutions.

They weren’t your kids anyway, right?

More:

• Salon:  “Joe Manchin:  God help us if Congress doesn’t act to stop gun violence”
• Senators Reach Deal on Universal Background Checks: ‘It’s not gun control’ (VIDEO) (guns.com)
• Background Checks – A Starting Point for Sensible Gun Laws (bobcornwall.com)
• Senate bill to attract gun manufacturers to Texas one step closer to being law (trailblazersblog.dallasnews.com)
• Feinstein: I won’t ‘play dead’ on ban (politico.com)
• Children Duck For Cover When Shots Fired At Memphis Head Start Center (wreg.com)
• “Gun nuts at Fox pull a bait-and-switch; Obama outflanks ‘em,” Millard Fillmore’s Bathtub
• Text of the pre-sale gun-owner background check as proposed in the Toomey-Manchin agreement
• Sen. Pat Toomey says gun background checks ‘do help’ keep guns from criminals, mentally ill (pennlive.com)

 

I get email (sorta): How long could U.S. survive without a president?

A brilliant and vexing former student, Bryan Sabillon, asked a question — on Facebook:

Remember how you said America can’t go two hours without a president? What’s the worst that can happen if it just so happens to take three-four hours? Or is it uneventful?

Interesting question — to me, at least, and maybe even to Bryan.  Here’s my response, with a few links added:

Did I say that? (Some context would be nice. No I don’t remember saying that.)

Technically, can’t happen now with the 25th Amendment and succession laws; if a president dies, another is there, probably without regard to swearing in.

A few historical examples suggest no big problem; these are nullified if missiles are in the air at that moment, though:

1. When Tyler succeeded Harrison 1 (first death of president in office), John Tyler was more than 24 hours out of Washington. Worse, many people thought that while the duties of the president fell to the VP under the Constitution, that should be a temporary condition settled by a special election. Despite all this uncertainty, nothing bad happened in the interim.

U.S. Sen. David Rice Atchison, from Missouri; photo taken by photographer Mathew Brady at the United States Capitol at Washington, D.C., March 1849. Courtesy of the Beinecke Rare Book & Manuscript Library, Yale University, via Wikipedia. Photo taken the same month some say Atchison was acting President, for one day.

2. On March 4, 1849, [James K.] Polk’s term expired. But it was Sunday, and incoming Pres. Zachary Taylor refused to be inaugurated on Sunday. So did incoming VP Millard Fillmore. Some argue that David Rice Atchison, the President Pro Tempore of the Senate and then-third in line for the presidency under the laws then existing, was president for one day. He didn’t claim that, but in any case, spent most of the day sleeping, as the outgoing Senate had been working late for several previous nights. Some argue that because the Senate had adjourned sine die on its last session, not even Atchison was president. In any case, nothing happened.

Official Senate bust, President of the Senate, Vice President Chester A. Arthur (it’s a bust; he was not really that pallid) Photo from Wikipedia

3. When [James] Garfield was shot, he did not die immediately, but hung on for more than a month before infection took him. Vice President Chester A. Arthur did not assume duties of president, nor did anyone else, in that period. A lot of stuff got delayed, but no big deal. Government continued during the long dying process, and until Arthur was sworn in.

4. Similarly, when [William] McKinley was shot, they thought he’d survive. VP Teddy Roosevelt took off to hunt in the Adirondacks. When McKinley took a turn for the worse, guides had to be dispatched to find Teddy climbing a mountain (Mt. Marcy); by the time he got to Buffalo, McKinley had been dead for several hours. Nothing of consequence happened as a result of there being no president on hand (and they were in Buffalo, New York, not Washington, anyway).

5. Woodrow Wilson suffered a stroke on October 2, 1919, that left him blind in one eye and unable to walk. He was kept out of the presence of the VP and cabinet for months; when he finally returned to cabinet meetings in 1920, he was clearly unable to function as president. It’s an interesting case with his second wife essentially taking over the office under the guise of intermediary and care giver to the president. This one may have had some consequences – the Senate never did ratify the Treaty of Versailles, for which Wilson was campaigning when he was stricken, and so the U.S. never joined the League of Nations, dooming it to failure years later as World War II erupted. But perhaps Wilson couldn’t have gotten it ratified had he been fully active, anyway. Perhaps Wilson could have influenced the election of 1920, which Warren G. Harding won (who would die of a heart attack in San Francisco, making Calvin Coolidge president). But all of that is pure conjecture.

6. The funniest (in retrospect) was when Ronald Reagan was shot. At a press conference at the White House as Reagan was being prepped for surgery, a reporter asked some cabinet officials “who is in charge?” Perhaps reacting too much to the question as a challenge to whether the government was leaderless and vulnerable, Secretary of State Al Haig grabbed the microphone and said “I’m in charge here!” In reality, Vice President George H. W. Bush was in full communication mode of the modern presidency; control of the “football,” the nuclear strike code case which accompanies the president at all times, could have been an issue, but was not.

President Obama at an airport; the Marine in the background looks to be carrying the “nuclear football.” Photo from Cryptome (Is this an AP photo? Anyone know?)

Under the 25th Amendment and the Succession Act, it’s difficult to imagine how the U.S. could be without a president at any time; the confusion around the death or disability of a president offers a window of a de facto gap, but that should last only minutes under the procedures and precautions now in effect (some of which we saw on 9/11).

Worst that could happen now? If missiles were incoming, and confusion over who has control of the football went on for more than 10 minutes, a retaliatory strike could be late in getting launched. It takes about 15 minutes for intercontinental ballistic missiles to get to their downward path, or to register on known radar, so a ten minute delay might be encouraging to a Russia that hoped to knock out the U.S. before a retaliatory strike could occur; but that’s probably not realistic. And, even that would be of no great consequence if the secret “missile net” many people think the U.S. has, actually exists.

Is this a class question, or are you involved in some odd drinking game again?

(Update:  Sheesh.  Turns out he just saw “Olympus Has Fallen,” and wondered.

Everyone knows we’re really safe, so long as Morgan Freeman is anywhere near the presidency, even Speaker of the House.)

(Anyone else seen the movie?  Is it a scenario not already contemplated under the 25th Amendment?)

More:

• The Presidential Library that isn’t a Presidential Library (timpanogos.wordpress.com)
• McKinley Library Packed on Presidents Day (fox8.com)
• Other potentially relevant posts at Millard Fillmore’s Bathtub:
  • “September 14, 1901: McKinley died”
  • “Last Photos of President McKinley:  Who are those people?“
  • “Does this photograph show Teddy Roosevelt at Lincoln’s Funeral procession?”
  • “Misrepresenting Christians in history” (actually, about a graphic biography of Ronald Reagan)
  • “Quote of the moment:  Teddy Roosevelt”
• 5 Other Americans Who Were Kinda, Sorta President (mentalfloss.com)
• Presidential Succession Act, at the site of the Historian of the U.S. Senate
• 2005 USA Today profile of the military aides who carry the “nuclear football,” the case with the codes to trigger a nuclear weapons response to a nuclear attack

Voice of America video on Al Haig’s life, featuring the famous quote:

“Return to Madison,” urges James Madison U president on the great man’s birthday

What would Madison do?

James Madison’s work, not only on the Constitution, but on making the Constitution and new government work, and on creating the foundation pilings for that Constitution and society, should make his words and ideas key points of study for us, and his principles should be our guiding principles much more than they are today.

Madison is the forgotten founder, I’ve argued.

JMU press release caption: JMU President Jon Alger, second from left, presents a wreath at the tomb of President James Madison in honor of his 262nd birthday.

James Madison University President Jon Alger spoke at the ceremonies honoring Madison’s birthday last Saturday, March 16, at Madison’s mountain home, Montpelier, Virginia (a few miles from Jefferson’s Monticello).  In his speech, Alger urged a return to civility in discussion of politics, a return to focus on important ideas and the processes by which we discuss them, and make decisions in our national government.

Alger’s remarks deserve a much wider audience, I think.  I asked JMU for a copy, and they pointed to the university’s website where the entire speech is posted.  I repost it here.  Please spread the word.

Jon Alger’s Montpelier remarks

President Jonathan R. Alger
James Madison University
Remarks on the Occasion of James Madison’s 262^nd Birthday
March 16, 2013
at James Madison’s Gravesite, Montpelier
Orange, Virginia
(Remarks interrupted by rain)

Good afternoon.  Honored guests, members of the Montpelier Board of Directors, President Imhoff and Montpelier staff, members of the James Madison University Board of Visitors, faculty, students and alumni, family, friends and fellow Madison enthusiasts, it is my great honor to speak at this hallowed place.  On this day 262 years ago, James Madison was born.  Perhaps more so than any other president or founder, James Madison is responsible for the creation and miraculous endurance of our republic.  Known as the Father of the U.S. Constitution, James Madison’s contributions to our nation should be remembered by every American.  The sacred fire of liberty lit by Madison’s ideas burns to this day and draws us here to honor him.

I came to Montpelier for the first time only a few months ago.  As a great admirer of James Madison, to me the trip here felt like a pilgrimage.  When the mansion first came into view as we made our way up the long sweeping drive, I was struck by the majesty of the moment—as we feel when in the presence of greatness.  During that visit, Montpelier board president Greg May invited me to speak at this annual event as we strode down a pathway that Madison himself must have walked many times.  I could not have been more honored.

Indeed, this is a dream come true for me.  As a political science major and history minor in college, I read many of the same texts Madison himself studied—as well as some of Madison’s own work.  Even as a young child, I admired the creative genius of our forefathers.  While other kids had stuffed animals or model airplanes displayed in their bedrooms, on my dresser I proudly exhibited a set of small ceramic statues of the American presidents.  I like to root for underdogs and was always partial to Madison, because his was the shortest statue.  Today his picture hangs proudly in my office.

As many of you know, Montpelier and James Madison University have long had a special bond.  It began when Dr. Clarence Geier, an archaeologist at Madison, arranged an archaeology field school here at Montpelier more than 25 years ago.  Our students and faculty have been coming to Montpelier ever since and have participated in digs all across the grounds. (Except for right here, of course.  They are not allowed to dig in this particular area.  You never know with undergraduates!)

From then the relationship between our two institutions has blossomed.  This past November a bus containing JMU faculty, staff and me – as well as my wife Mary Ann and daughter Eleanor – came here to spend a day brainstorming with the Montpelier leadership and staff on ways to deepen our relationship even further. The primary objective of this deeper relationship is to bring more attention to James Madison and his ideas.  This objective reflects the missions of our two great institutions, but it must go beyond those gathered here today.  As a nation, we are in great need of what I will call a Return to Madison.

It is true that, during the past few years, more and more American citizens are professing respect for the U.S. Constitution.  The document was read on the floor of the U.S. House of Representatives for only the second time in history this past January.  In fact, Representative Bob Goodlatte of Virginia’s Sixth District – JMU’s district – opened the reading with a delivery of the document’s Preamble.  That’s a good start, but as a nation we must go much further.  For this newfound reverence toward the U.S. Constitution to elevate us as a nation, we must explore and gain a deeper understanding of the principles on which the U.S. Constitution is based.  We must Return to Madison.

Now, by suggesting this return, I don’t mean that we become a nation of history buffs (although that would be OK with me).  Rather, a Return to Madison would provide us with very real and practical insights into how we as a society should confront issues facing us all.

Starting with a realistic view of human nature, Madison believed that politics was driven by “interest,” not by “virtue.”  In his excellent work, The Sacred Fire of Liberty, Madison scholar Lance Banning captured this core principle.  He wrote, “Madison did not assume that a republic could depend upon a superhuman readiness to sacrifice self-interest to the common good. Taking humans for the interested, opinionated creatures they are, Madison asserted that in a pluralistic, large republic, partial interests would be counterbalanced by competing interests.”

This was not new political thinking, of course.  During the 16^th century in Florence, Machiavelli (whose work was more nuanced than is often remembered today) explored what he called the “effectual truth” of politics.  In other words, as Paul Rahe writes in his book, Machiavelli’s Liberal Republican Legacy, “[I]n order to avoid their ruin and achieve their preservation, men should govern themselves in accordance with how they do behave rather than in the distorting light of how they ought to.”

So Madison’s great innovation was to devise a system of government that sought to create political and civic conditions allowing the interests of individual citizens, groups, regions and other entities to balance one another so that no one of them could overtake the rest.  He recognized that we would be a society with diverse perspectives and experiences, and that we needed a structure to allow that diversity to flourish.

Today – while publicly professing faith in the Constitution as a document – we seem to have forgotten this essential element.  Far too often, our public discourse on the important challenges of our time degenerates into shallow shouting matches and name-calling in which we cry for the elimination of opposing views on political, social, economic and cultural issues. The people we despise across the political aisle, the fools on the television spouting their ridiculously wrongheaded opinions, the heathens who believe in a different god than we do – we not only hold them in utter contempt, we behave as if we want their ideas extinguished.  And if they were extinguished – oh, if only they were extinguished – we believe the world would be a better place.  If only we all agreed on everything – wouldn’t that be great!  Yet we must be careful what we wish for.  If that kind of wish were to come true, not only would our lives be much more boring—but our society would stop progressing and stagnate.

A Return to Madison would shine a light on the fact that the strength of our republic relies on the existence of opposing ideas and perspectives.  Voices who advocate for Wall Street and others who focus on Main Street?  They need each other.  Republicans and Democrats need each other.  Without the diversity of ideas and opinions, our civic balance would tilt and our system eventually would topple.  The great man we honor today knew this was true.  We as a society need to embrace this notion and continue debating the important issues of the day, but with reason and civility—not with hatred and hopes for total domination.  We need each other.  And I believe that spreading the understanding that our great Constitution is based squarely on this principle could lead to greater social harmony.  Boy, do we need a Return to Madison.

Madison’s Federalist 10 is recognized the world over as one of the great examples of political thought in history.  You might remember that Madison published the Federalist with Alexander Hamilton and John Jay in newspapers while the states were considering whether to ratify the proposed Constitution.  Of these 85 essays, Madison’s 10^th is widely considered to be one of the best, and it’s about balancing competing interests.  I love it for the philosophy it expresses, but also because it contains one of his most elegant turns of a phrase.  If you’ve read much Madison, you know that his writing can be (to be honest) dense and elliptical.  He is not often quoted in today’s sound-bite culture.  But in the Federalist 10 he wrote, “liberty is to faction what air is to fire…”  Think about that for a moment.  “Liberty is to faction, what air is to fire…”  Madison was making the point that liberty creates a nourishing environment for faction.  At the time, great fear existed that too much liberty could lead to dangerous factions emerging.  Madison was resolute, however, and he completes the idea by writing, “But it could not be a less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency.”

Madison is saying that even though liberty allows faction to thrive, it should not be curtailed.  He goes on to observe, “As long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed.”

Thus even as Madison advocated for liberty despite its dangers, he was sure to remind his Federalist readers that man’s passionately held views are imperfect.  Therefore, if we claim to respect our Constitution and if we understand this fundamental premise, we have a responsibility to change the tone of much of our civic dialogue.  Now, to be clear, I am not arguing that we should hold our views any less dear.  Passion leads great people to act. And I am not suggesting that we all adopt a relativist perspective – right and wrong do exist.  As enlightened as Madison and his colleagues were for their time on so many issues, for example, even they were unable to come to grips with the tragic injustice of slavery

If Madison were here today, however, I believe he would remind us of our human limitations when we encounter and react to opinions that differ from our own.  We can all benefit from trying to listen to and understand the views of others with civility and respect, even as we hold and espouse our own cherished points of view.  As the president of the university named for James Madison, I feel strongly that our institution of higher education can best honor his legacy by embracing the diversity of perspectives and backgrounds in our society, while fostering and modeling civil and respectful discourse on the great issues of our time.  That is part of the reason why I began my own presidency with a “Listening Tour” to hear, and learn from, the richly diverse voices and opinions of our university community.

In my inaugural address yesterday at the university, I called for James Madison University to be the national model for the engaged university—an institution that combines a commitment to teaching and learning with a conviction that all humans are interconnected.  This combination embodies James Madison’s ideals.  If we enlighten ourselves through education and believe that we all are connected – even with those with whom we might passionately disagree – we honor Madison.  I intend for this idea to be a hallmark of my administration at JMU.

Another hallmark will be to continue deepening the relationship between the university and Montpelier.  Some of the ideas generated during our visit here in November already are taking shape.  For instance, staff in our department of History and our Adult Degree Program are working with faculty here in the Center for the Constitution to create a course about James Madison and his ideas that includes online and in-person instruction, as well as visits here. The course will be available to JMU students and the general public.  As we celebrated Madison Week on our campus these past few days, Montpelier has honored our university by loaning us several artifacts from its own collection.  These exchanges are reminders of the man to whom we owe so much.  Our educational initiatives can go a long way to motivate those who profess their faith in the U.S. Constitution to deepen their understanding of its underlying principles, and thus inspire a Return to Madison.

Let me share with you a personal story of my own heightened sense of Madison’s, and Montpelier’s, significance.  While inside the house, I was surprised by how moved I was when I sat in the modest room that is believed to be Madison’s study.  The thought that I was in the very room where James Madison read Machiavelli and Locke and Montesquieu and all the others; the room where he synthesized thousands of years of thinking into a framework for our most important founding document; the room looking west toward unsettled lands of great promise; the room in which James Madison addressed civilization’s most intractable problem – how to govern ourselves – I was filled with a sense of wonder and awe.

Yet another way in which the university will connect with Montpelier and its legacy will be to honor the memory of Dolley Madison, the great woman buried beside our 4^th President.  Dolley was herself an intellectual and social force who played a profound leadership role by convening people of different backgrounds for civil discourse.  In fact, Yale University historian Catherine Allgor wrote, “Dolley’s assumption that compromise would be the salvation of the system marks her as one of the most sophisticated politicians of her time.”  Through a new initiative called Women for Madison, our university will celebrate the vital role women play in leadership and cultivating a culture of philanthropy.

Finally, as an advocate of education and an ardent student himself, I believe Madison would have enjoyed meeting today’s students who benefit from his legacy in this free and civil society.  I wonder how he would have felt meeting students attending the university named for him. We have several with us today – can you come and join me here?

As many of you know, JMU has a robust study abroad program. I will tour several of our study abroad programs this summer for the first time as president, and my second stop will be Florence, the great city where republican thought reemerged during the 16^th century.  Machiavelli was the most influential Florentine political thinker of that time, and his work influenced Madison greatly.  In fact, Machiavelli appears in one of James Madison’s adolescent “commonplace” books.  A commonplace book was like an academic diary.  Students during the era when Madison grew up dutifully filled their commonplace books with notes, quotations and poetry.

Students of our era – such as these fine students – and I will visit Machiavelli’s gravesite at the Basilica di Santa Croce in central Florence this summer. We will take with us the moving experience of being here at James Madison’s gravesite, and reflect on the republican ideal with which both men—and so many other people throughout history—have grappled.  It is quite fitting that students attending a university named for James Madison make this journey, connect these two places and contemplate their meaning.

With this symbolic gesture, we hope to inspire all the students of James Madison University, the visitors to James Madison’s Montpelier and all who bear witness, to Return to Madison.  Let’s go from this ceremony with a renewed sense of our roles as citizens, and of the power we have to live the ideals James Madison handed down to us through the ages.  Thank you

Who in Congress listens?  Who in media and commentary listens?  Who in the academic life listens?

More:

• JMU’s press release on the speech
• Earlier at Millard Fillmore’s Bathtub:
  • Madison’s birthday celebration at Montpelier (timpanogos.wordpress.com)
  • Fireworks for James Madison’s birthday! Aurora borealis in Alaska, March 16, 2013 (timpanogos.wordpress.com)
  • March 16, Freedoms Day – How to celebrate James Madison? (timpanogos.wordpress.com)
• March 16 – Happy birthday James Madison, “Father of the Constitution” (molinahistory.wordpress.com)
• A presidential chat (jmubethechange.wordpress.com)
• Sitting Down with the Madisons (virginiaplantation.wordpress.com)
• Madison’s 262nd Birthday Marked in Va. (newsplex.com)
• 10 interesting facts about James Madison (constitutioncenter.org)

Fireworks over James Madison University, on the inauguration of new University President Jonathan R. Alger, in early March 2013. Despite the somewhat tenuous links to this post, I like the photograph. Image from JMU’s UBeTheChange blog.

March 16, Freedoms Day – How to celebrate James Madison?

March 16 falls on Saturday this year, so celebrations of James Madison, who was born on March 16, 1751, will get lumped into the “something else to do” during Saturday errands, category.

March 16 is not a holiday.  It’s not even a Flag Flying Day (though, if you left your flag up for March 15th’s anniversary of Maine’s statehood . . . no one would notice).

Secretary of State James Madison, who won Marbury v. Madison, but lost Judicial review. Photo: Wikipedia

Should we leave James Madison out of our celebrations of history with such vengeance?

Madison left a great legacy.  The question is, how to honor it, and him?

• Madison is known popularly, especially for elementary school history studies (the few that are done anymore), as the Father of the Constitution.  It’s fitting:  Madison engaged in a great, good conspiracy with George Washington and Alexander Hamilton to get the convention to “amend” the Articles of Confederation and create a better, probably stronger, national government.  But Washington stayed behind the scenes, and pulled very few strings Madison didn’t tell him to pull. Hamilton’s support from New York was weak; while Hamilton played a hugely important role in getting the convention called, and in getting New York to ratify the Constitution with the creation of the Federalist Papers project, the day-to-day operation of the convention and direction of the political forces to make it work, fell to Madison.
• Madison’s notes on the Philadelphia convention give us the best record of the then-secret proceedings. 
  

  Notice the error in this caption:  “James Madison, fourth president of the United States wrote the Constitution at his estate near Orange Virginia, called Montpelier. Pictured here after an extensive renovation.” Photo from Wikipedia.  (James Madison didn’t write the Constitution; it was hammered out in Philadelphia, not Montpelier; the patriot and rake Gouverneur Morris wrote out the final draft.)

• Madison devised the scheme of getting conventions to ratify the Constitution, instead of colonial/state legislatures.  He had Patrick Henry in mind.  Henry opposed any centralized government for the colonies, to the point that he refused to attend the Philadelphia convention when he was appointed a delegate; by the end of the convention, Henry was off to another term as governor where he hoped to orchestrate the defeat of ratification of the constitution in the Virginia legislature.  Madison circumvented that path, but Henry still threw up every hurdle he could.  (Henry organized the anti-federalist forces in the Virginia Convention, and hoping to kill the Constitution, called it fatally flawed for having no bill of rights; when Madison’s organizing outflanked him, especially with a promised to get a bill of rights in the First Congress, Henry blocked Madison’s election to the U.S. Senate, and organized forces to stop his popular election to the U.S. House.  That failed, ultimately, and Madison pushed the legislative package that became the Bill of Rights).
• Andrew Hamilton started writing a series of newspaper columns, with John Jay, to urge New York to ratify of the Constitution; but after Jay was beaten nearly to death by an anti-federalist mob, Hamilton invited Madison to step in and help.  Madison ended up writing more than Hamilton and Jay put together, in that collection now known as The Federalist Papers.
• Madison backed down George Mason, and got the great defender of citizens’ rights to add religious freedom to the Virginia Bill of Rights, in 1776.  Religious freedom and freedom of conscience became a life-long crusade for Madison, perhaps moreso than for Thomas Jefferson.
• A sort of protege of Thomas Jefferson, Madison pushed much of Jefferson’s democratic and bureaucratic reforms through the Virginia legislature, into law.  Especially, it was Madison who stoppped Patrick Henry’s plan to have Virginia put preachers on the payroll, and instead pass Jefferson’s Statute for Religious Freedom into law in 1786.
• Madison wrote the best defense of American religious freedom in the Memorial and Remonstrance, a petition to the Virginia legislature to get Jefferson’s bill passed.
• Madison sponsored and passed more Constitutional Amendments than anyone else in history.  We have 27 amendments to our Constitution.  Madison pushed through the first 10, now known as the Bill of Rights.  In the original package proposed out of Congress were a dozen amendments.  One of those became salient again in the late 20th century, and was finally ratified in 1992 — the 27th Amendment.  Madison is the author of 11 of the 27 amendments, including the first ten and the last one.
• Yeah, James Madison was the defendant in Marbury v. Madison; he made history even when he didn’t do anything
• Madison is the only president to face enemy gunfire while president, commanding troops on the frontlines during the British invasion of Washington in 1814.
• Madison took over the creation of the University of Virginia when Jefferson’s death prevented his following through.
• Madison’s record as an effective, law-passing legislator is rivaled only by Lyndon Johnson among the 43 people we’ve had as president.  Both were masters at get stuff done.
• Madison is the ultimate go-to-guy for a partner.  In his lifetime, to the great benefit of his partners, he collaborated with George Washington to get the convention in Philadelphia; he collaborated with Ben Franklin to get Washington to be president of the Philadelphia convention, without which it could not have succeeded; he collaborated with Hamilton on the Constitution and again on the Federalist papers; he collaborated with Jefferson to secure religious freedom in 1776, 1786, and 1789; Madison collaborated with Jefferson to establish our party political system (perhaps somewhat unintentionally), and to get Jefferson elected president; Madison collaborated with Jefferson and Jay to make the Louisiana Purchase; Madison took James Monroe out of the Patrick Henry camp, and brought Monroe along to be a great federalist democrat, appointing Monroe Secretary of State in Madison’s administration, and then pushing Monroe to succeed him as president.  Also, Madison was a prize student of the great John Witherspoon at what is now Princeton; Witherspoon took Madison, studying for the clergy, and convinced him God had a greater calling for him than merely to a pulpit.

As the ultimate Second Man — when he wasn’t the First Man — Madison’s role in history should not be downplayed, not forgotten.

March 16 is Madison’s birthday (“new style”).

What would be fitting ways to celebrate Madison’s life and accomplishments, on his birthday?  Nothing done so far in the history of the Republic adequately honors this man and his accomplishments, nor begins to acknowledge the great debt every free person owes to his work.

(Dolley Madison?  There are two topics for other, lengthy discussions — one on their marriage, and how they worked together; one on Dolley, a power in her own right.)

Previously, at Millard Fillmore’s Bathtub:

• James Madison, “go-to” guy — text of a presentation I made to the North Texas Church of Freethought
• James Madison, Father of the Constitution, March 16 (2009)
• James Madison’s birthday, 2008
• “Tagged by Myers to do history – Meet James Madison,” from 2008
• Happy Madison’s Birthday!  Nation expresses revulsion at Texas education follies, Part I
• How will you celebrate James Madison’s Birthday? What happened to Madison Week at JMU?

More:

• James Madison’s 262nd birthday celebration (today at James Madison University)
• James Madison on Facebook
• March 16 – Happy birthday James Madison, “Father of the Constitution” (molinahistory.wordpress.com)
• “Why I’m Celebrating Madison’s Birthday,” Steve Walman on religious freedom, in The Wall Street Journal, March 16, 2009
• History for Kids – Today is James Madison’s birthday (marabird.wordpress.com)
• ALA Will Posthumously Award Aaron Swartz With James Madison Award (infodocket.com)
• Happy Birthday Jemmy! (virginiaplantation.wordpress.com)
• Federalists and Anti-Federalists – What is the Difference? (hankeringforhistory.com)
• Today in Legal History: Constitution Goes into Effect (lawlibraryblog.seattleu.edu)
• The American Library Association Has Given Aaron Swartz Its First Ever Posthumous Award (businessinsider.com)
• Culpepper, Virginia, Chamber of Commerce note on celebrating at Montpelier in 2013
• “Happy Birthday, James Madison,” Alex Gary in the Rockford (Illinois) Register-Star (business section)
• Washington Post notes the Montpelier celebration for 2013, with an AP story based on a story in the Culpepper (Virginia) Star-Exponent
• Can anyone find a text of the speech James Madison University President Jonathan Alger gave, “Return to Madison?”
• James Madison Museum in Orange, Virginia
• “Celebrating James Madison’s Birthday,” by James Best, at What Would the Founders Think?
• “Iowa City makes the grade on Transparency,” Iowa City Press-Citizen.com:  “This weekend marks the end of Sunshine Week, an annual initiative meant to bring attention to public information issues. The observance was started by the National Society of News Editors in 2005 and coincides with former U.S. President James Madison’s birthday each year.”
• “Partying for Madison,” the Sunlight Foundation; Sunshine Week events (going for a couple of months after March 16) (See especially the list of blog posts for Sunshine Week at the end); slideshow of cocktail reception, with a really bad picture of Madison on a chocolate cake

Gun nuts at Fox pull a bait and switch; Obama already outflanks them

President Obama visits with survivors of the shooting in Aurora, Colorado. July 22, 2012 – White House photo. Click image to go to White House site, with more information on reducing gun violence.

Yeah, I know: Someone has sent you a post on Facebook claiming there are more murders from hammers than guns, and they quote Fox.

If they’re not complete nuts, they were careful and noted it was rifles being compared, and not all guns.

Here’s the Fox headline:

January 03, 2013

FBI: More People Killed with Hammers, Clubs Each Year Than Rifles

Then, just to rub it in, that person who sent you the link said something like, ‘so you propose hammer control, too?’

The best debaters in college learn to listen to what their opponents say, and not what they think their opponents should have said.  Good lawyers listen like that, too, in court, and in depositions.

See that last word in the headline?  “Rifles.”

Yeah, it’s a limited part of the total population of guns.

Total gun deaths in 2011 were 8,583 — continuing a five-year trend downward, thanks for small blessings.  Homicides only, not counting suicides — according to figures compiled by the FBI.

Did more than 8,500 people die from hammer assaults in 2011?

No, the same tally shows 496 people were murdered by use of  “Blunt objects (clubs, hammers, etc.).”

496 is 8,087 fewer than the 8,583 gun deaths.  But rifles?  Oh, yeah.

323 people died from rifle fire.  356 died from shotgun wounds.  6,220 died from handguns, 97 from “other guns,” and 1,587 died from gunshots where the type of gun was not recorded on the report to the FBI.  Add them up, you get 8,583 dead, murdered by gunfire.

Now, the gun advocates nuts say that it’s fair to compare rifle deaths only, since only the AR-15 is being questioned, and is the target for “taking guns away.”

That’s inaccurate.  President Obama laid out a plan of more than a score of actions, but only two refer to assault rifles, and only one refers to assault rifles directly:

Reinstate and strengthen the ban on assault weapons:  The shooters in Aurora and Newtown used the type of semiautomatic rifles that were the target of the assault weapons ban that was in place from 1994 to 2004. That ban was an important step, but manufacturers were able to circumvent the prohibition with cosmetic modifications to their weapons. Congress must reinstate and strengthen the prohibition on assault weapons.

And:

Limit ammunition magazines to 10 rounds:  The case for prohibiting high-capacity magazines has been proven over and over; the shooters at Virginia Tech, Tucson, Aurora, Oak Creek, and Newtown all used magazines holding more than 10 rounds, which would have been prohibited under the 1994 law. These magazines enable any semiautomatic weapon to be used as an instrument of mass violence, yet they are once again legal and now come standard with many handguns and rifles. Congress needs to reinstate the prohibition on magazines holding more than 10 rounds.

President Obama laid out a plan that will make it substantially more difficult for people who shouldn’t have guns suitable for mass killings, to have them.  More important, however, the President’s plan steps up the non-gun means available to stop mass shootings before a shooter gets to a campus armed and ready to kill.

The “discussion” will get more ugly, I predict, before it gets better.

More:

• Gun Nut Claims that Hammers Are More Deadly Than Guns (slog.thestranger.com)
• Good Question: How Many People Are Killed By Assault Rifles? (minnesota.cbslocal.com)
• ‘Assault’ rifles are not involved in many U.S. murders: A look at the data (blogs.marketwatch.com)
• Conservatives demand hammer control (salon.com)
• Judiciary to consider assault weapons ban (politico.com)
• The Caucus: Senate Judiciary Committee Set to Consider Gun Legislation (thecaucus.blogs.nytimes.com)

January 9 – fly your flag today for Connecticut statehood

There were not states at all, yet.  But on January 9, 1788, Connecticut became the fifth of the 13 colonies to ratify the proposed Constitution for the United States of America.  Within 12 months, four more colonies ratified the document, making it effective.  When the government of the new nation started functioning in 1789, Connecticut was counted as the fifth state.

Capitol building for Connecticut in Hartford; this photo is from the rear of the building, so the U.S. flag is flying correctly on its own right. The building was completed in 1878. The dome is covered in gold. Image from Wikimedia Commons

To avoid political scheming by anti-federalist colony governors, especially Patrick Henry in Virginia, in September 1787 James Madison proposed that the draft constitution be ratified not by legislatures in the colonies, but instead by a specially-called convention of the people of the colony.  Connecticut’s convention met first on January 3, 1788, and with six days of discussion and debate, passed a resolution of ratification on January 9.

So by tradition, January 9 is Connecticut’s statehood anniversary.  According to U.S. law, citizens and residents of a state should fly their flags on statehood anniversaries.

More:

• Connecticut’s Hall of Flags in the state capitol in Hartford (ConnecticutHistory.org)
• Recreating the Connecticut ratifying convention for history classrooms, background, teachers guide and supporting materials
• Delaware, Pennsylvania, New Jersey, and Georgia had already ratified; since Connecticut had been the sole dissenter in the call for the Philadelphia convention, some have expressed surprise that Connecticut ratified so quickly and easily — some historians attribute this to the efforts of Oliver Ellsworth, a too-much unsung hero of early American history
• Connecticut’s listing at Our Poetry Corner
• January 4 – Fly your flag for Utah statehood (timpanogos.wordpress.com)
• Iowa Statehood, December 28, 1846 – Iowans, fly your flags today (timpanogos.wordpress.com)
• Texas Statehood, December 29, 1845 – 167years ago (timpanogos.wordpress.com)
• Utah statehood: A coda, and a flag code violation (timpanogos.wordpress.com)
• Connecticut witness describes blimp-sized UFO as ‘glowing’ (examiner.com)

Hall of Flags in the Connecticut State Capitol Building; photo by the great photo-historian Carol Highsmith, from the Library of Congress collection; the statue is Connecticut’s Civil War Governor, William A. Buckingham (1804-1875), honored for his personal contributions to the equipping of Connecticut’s men fighting in the Civil War;.

225 years ago today, in this room

Caption from Department of Interior’s Tumblr site: 225 years ago today, the Constitution of the United States was signed in Independence Hall. Today, you can tour the Hall and see where the Declaration of Independence and Constitution were both signed, and you can also view the Liberty Bell [close by]. This is a site not to miss while visiting Philadelphia.
Photo: National Park Service

Does this room look a little familiar?  You’ve probably seen Howard Chandler Christy’s paintingof the event we celebrate today.

Howard Chandler Christy’s “Signing of the Constitution,” 1940; Architect of the Capitol image. This massive, 20′ x 30′ painting hangs in the House Wing of the U.S. Capitol, in the east stairway — a location where, alas, most people cannot get to without a guide anymore.

Click to the Architect of the Capitol’s sitefor the story of the painting, intended by Congress to fill a gap in the story of America told by art in the Rotunda and throughout the halls of the building.

Dr. Gordon Lloyd, Pepperdine University’s School of Public Policy and expert in the Constitution and its history. I met Lloyd almost a decade ago, in programs for history teachers, sponsored by the Bill of Rights Institute, and by the Liberty Fund.

My old friend Dr. Gordon Lloyd of Pepperdine University, working with the Ashbrook Center for Public Affairs, created a study tool from the Christy painting which should be used a lot more in classrooms.  Click over to the Edsitement site, and see for yourself.

Every year there are a few more tools on the internet to study the Constitution with, for teachers to use in the classroom on Constitution Day and every day.  I wonder what will be the effects in another decade.

How important is it that students learn the Constitution, what it says, and how it affects our daily lives?  How important is it that students learn the history of the creation of the Constitution, and does that history reverberate for those students as they venture out into their roles as citizens in the republic created by the document?

More:

• “It’s Constitution Day! Time to Teach Obedience or History?” (larryferlazzo.edublogs.org)
• Focus on Education: Patriot Day, Constitution Day, District Meetings (modbee.com)
• COMMUNITY COMMENT: Constitution a vital, living document (courierpress.com)
• The Bill Of Rights Institute Celebrates Constitution Day With Free Education Resources (paramuspost.com)
• Governor Walker Declares “Read the Constitution Day”?!? (progressive.org)

Fly your flag today, Constitution Day 2012

 

Did you remember to put your flag up today?  September 17 is Constitution, one of the score of dates on which Congress recommends everyone to fly their U.S. flag.

U.S. flag flying at Fort McHenry in Baltimore, with fireworks – National Park Service image. Fort McHenry is one of the sites Congress designated to fly the flag 24 hours a day, lighted or not.

 

Constitution Day, September 17, 2012

Happy Constitution day!  (Remember to fly your flag today.)

Have you read the U.S. Constitution lately?

First page of the U.S. Constitution, National Archives and Records Administration photo

Okay, maybe that’s a little tough to read.  Check out the on-line display of the National Archives and Records Administration in the Charters of Freedom section:

• A much-easier-to-read transcript of the Constitution (so you don’t have to strain at the image above)
• “A More Perfect Union,” an essay on the creation of the Constitution
• Questions and answers on the 1787 Convention in Philadelphia, and on the Constitution
• The Bill of Rights, the first ten amendments to the Constitution
• Amendments 11 through 27 — notice that, although not ratified until 1991, the 27th Amendment was in the package of amendments proposed by James Madison in 1789, a package of twelve proposed amendments, of which ten were ratified within a few months to become the Bill of Rights
• Stories about the delegates to the Philadelphia Convention in 1787
• Faulkner murals in the Archives Rotunda, on the presentation of the Constitution (and Declaration of Independence)
• Information on visiting the actual documents, at the National Archives in Washington, D.C.

More:

• Constitution’s extra page shown in public for first time (news.yahoo.com)
• Sepetember 17th is Constitution Day! (rulibrary.typepad.com)
• OUR VIEW: The U.S. Constitution at 225 (tauntongazette.com)
• Baker Center celebrates Constitution Day (knoxnews.com)
• The Bill Of Rights Institute Celebrates Constitution Day With Free Education Resources (paramuspost.com)
• U.S. Day, March 4 — anniversary of the Constitution’s enactment
• Constitution Day 2008 – featuring links to interactive Howard Chandler Christy painting of the signing of the document
• Oh, heck — go directly there!  Prof. Gordon Lloyd created an interactive version of Christy’s painting, linking to information about each of the delegates pictured – it’s fun
• Celebrating Constitution Day All Week Long! (teacherlingo.com)
• The Bill of Rights Institute Celebrates Constitution Day With Free Education Resources (educationviews.org)

 

Rotunda for the charters of Freedom at National Archives (NARA) building in Washington, D.C. Here displayed are the Declaration of Independence, the Bill of Rights, and the U.S. Constitution. (Photo credit: Wikipedia)

 

First Amendment: Still engraved in stone

In a discussion about teaching evolution in biology classes a few years ago, I had carefully explained how and why the First Amendment does not require creationism to be taught in biology classes, and in fact is the reason that creationism isn’t taught, in the Establishment Clause. My explanation irritated the tarnation out of a creationist woman who exclaimed, “Well, it’s not like the First Amendment is engraved in stone!”

Heh. Guess what I found at Southern Methodist University. There, outside the main door of the Umphrey Lee Center, which houses the Department of Economics and the Division of Journalism of the Meadows School for the Arts:

This is an encore post from April 2008.

More:

• Kentucky Lawmakers Shocked To Find Evolution In Biology Tests (science.slashdot.org)
• Missouri screws up (freethoughtblogs.com)
• Missouri’s Constitutional Creationism Amendment (sensuouscurmudgeon.wordpress.com)
• Florida to Strike the Establishment Clause from its Constitution? (breakingspells.net)

If it’s an election year, it must be Bogus Quote Time! Patrick Henry on the Constitution

Keep your collections of Jefferson, Madison, Lincoln, and “the founders” close to you, and right next to your Bartlett’s or Yale.  It’s an election year, and that means people are pulling out all the stops to get you to act against your interests and common sense, including making up stuff that they claim famous people said.

This quote attributed to Patrick Henry piqued my interest last night:

“The Constitution is not an instrument for the government to restrain the people, it is an instrument for the people to restrain the government.”  ~ Patrick Henry

As the painter imagined it, Patrick Henry before the House of Burgesses, by Peter F. Rothermel. The painting was done in 1851, 52 years after Henry’s death. It commemorates his famous speech against the Stamp Act of 1775, “If this be treason, make the most of it.”  Henry was both fiery in oration and stubborn in policy; it is unlikely that he would have abandoned his staunch opposition to the U.S. Constitution, to praise its defenses of individual rights, the very thing he criticized it for failing to do.

Recall, you students of history, that Patrick Henry bitterly opposed the Constitution and its ratification.  He considered it too much government, too much intrusions of a centralized, federal government over the states and the citizens of Virginia in particular.  Henry refused to serve when elected delegate to the convention in Philadelphia in 1787.  Henry made it clear that he opposed any new charter of government that set up a real, workable, national government. Henry held considerable sway in Virginia — he was serving one of his six terms as governor, and he had the legislature wrapped around his finger, doing his bidding.  Because of that, James Madison devised a plan for ratification that excluded governors and state legislatures, but instead asked for ratification by the people of each state, in specially-called conventions.

Henry tried to stack the Virginia convention against ratification.  He did his best scuttle Madison’s attending.  Henry thundered against the Constitution from the floor of the convention, claiming that it would forever trample the rights of citizens.  Partly as a result, and partly to get the document approved, Madison pledged that he would create a bill of rights to clarify protections of citizens.  Madison thought that rights were already protected, but he conceded for political reasons.

Madison won in the convention, and Virginia voted to ratify the Constitution.  Henry was livid.

To prevent Madison from creating a bill of rights, Henry fixed the election of the new senators in the state legislature, excluding Madison.  If Madison were to carry out his promise, he’d have to get elected to the House of Representatives — but as a popular man in his home county, that should not have been a problem.  Henry persuaded the only man in the county more popular than Madison, James Monroe, to run against Madison.  It’s a great story, but for another time — Madison eked out the win.

Henry opposed ratification of any of the twelve amendments Madison proposed, which Congress approved.  Eventually ten of the amendments won ratification; we call those ten our Bill of Rights.

President-elect George Washington asked Henry to serve in the new government, perhaps in the president’s cabinet as Secretary of State.  Henry refused.  Supreme Court?  Henry refused.

Get the picture yet?  Patrick Henry was not a fan of the U.S. Constitution.  He complained that it fettered citizens of the states, and that it fettered the states.

How likely is it that he would then turn around and praise the document as a tool for restraining the state against the citizen?  Henry was a stubborn man.  It is not likely.

On history alone, then, we should regard that quote attributed to Henry as bogus.  It’s a fake, a sham, a blot on Henry’s legacy and a warping of history.  Heck, it covers up great stories about Henry fighting the Constitution — it’s not much fun, either.

The words offered most likely never crossed Patrick Henry’s mind, let alone his lips.  Of course, this quote shows up at many so-called patriotic sites — none with good attribution.  I was interested to find this very statement at Wikiquotes, listed under quotes misattributed to Henry:

The Constitution is not an instrument for the government to restrain the people, it is an instrument for the people to restrain the government — lest it come to dominate our lives and interests.

• As quoted in The Best Liberal Quotes Ever : Why the Left is Right (2004) by William P. Martin. Though widely attributed to Henry, this statement has not been sourced to any document before the 1990s and appears to be at odds with his beliefs as a strong opponent of the adoption of the US Constitution.

More and Related Material:

• “I Smelt a Rat” (apologus.wordpress.com)
• Patrick Henry: First Among Patriots (apologus.wordpress.com)
• Sheesh!  It rolled around again in 2013, from “For America”

Go to the original source: Supreme Court’s decision on Obamacare

You can read the entire decision here:  http://www.supremecourt.gov/opinions/11pdf/11-393c3a2.pdf

5-4 decision, Chief Justice Roberts voting to uphold the bill, Kennedy voting against and leading the dissent.

Official 2005 photo of Chief Justice John G. Roberts (Photo credit: Wikipedia)

Syllabus from the case (links added for your convenience, not in the original):

NATIONAL FEDERATION OF INDEPENDENT BUSINESS ET AL. v. SEBELIUS, SECRETARY OF
HEALTH AND HUMAN SERVICES, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
No. 11–393. Argued March 26, 27, 28, 2012—Decided June 28, 2012*

*Together with No. 11–398, Department of Health and Human Services et al. v. Florida et al., and No. 11–400, Florida et al. v. Department of Health and Human Services et al., also on certiorari to the same court.

In 2010, Congress enacted the Patient Protection and Affordable Care Act in order to increase the number of Americans covered by health insurance and decrease the cost of health care. One key provision is the individual mandate, which requires most Americans to maintain“minimum essential” health insurance coverage. 26 U. S. C. §5000A.For individuals who are not exempt, and who do not receive health insurance through an employer or government program, the means of satisfying the requirement is to purchase insurance from a private company. Beginning in 2014, those who do not comply with the mandate must make a “[s]hared responsibility payment” to the Federal Government. §5000A(b)(1). The Act provides that this “penalty”will be paid to the Internal Revenue Service with an individual’s taxes, and “shall be assessed and collected in the same manner” as tax penalties. §§5000A(c), (g)(1). Another key provision of the Act is the Medicaid expansion. The current Medicaid program offers federal funding to States to assist pregnant women, children, needy families, the blind, the elderly, and the disabled in obtaining medical care. 42 U. S. C. §1396d(a). The Affordable Care Act expands the scope of the Medicaid program and increases the number of individuals the States must cover. For example, the Act requires state programs to provide Medicaid coverage by 2014 to adults with incomes up to 133 percent of the federal poverty level, whereas many States now cover adults with children only if their income is considerably lower, and do not cover childless adults at all. §1396a(a)(10)(A)(i)(VIII). The Act increases federal funding to cover the States’ costs in expanding Medicaid coverage. §1396d(y)(1). But if a State does not comply with the Act’s new coverage requirements, it may lose not only the federal funding for those requirements, but all of its federal Medicaid funds. §1396c.

Twenty-six States, several individuals, and the National Federation of Independent Business brought suit in Federal District Court,challenging the constitutionality of the individual mandate and the Medicaid expansion. The Court of Appeals for the Eleventh Circuit upheld the Medicaid expansion as a valid exercise of Congress’s spending power, but concluded that Congress lacked authority to enact the individual mandate. Finding the mandate severable from the Act’s other provisions, the Eleventh Circuit left the rest of the Act intact.

Held: The judgment is affirmed in part and reversed in part.
648 F. 3d 1235, affirmed in part and reversed in part.

1. CHIEF JUSTICE ROBERTS delivered the opinion of the Court with respect to Part II, concluding that the Anti-Injunction Act does not bar this suit.
The Anti-Injunction Act provides that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person,” 26 U. S. C. §7421(a), so that those subject to a tax must first pay it and then sue for a refund. The present challenge seeks to restrain the collection of the shared responsibility payment from those who do not comply with the individual mandate. But Congress did not intend the payment to be treated as a “tax” for purposes of the Anti-Injunction Act. The Affordable Care Act describes the payment as a “penalty,” not a “tax.” That label cannot control whether the payment is a tax for purposes of the Constitution, but it does determine the application of the Anti-Injunction Act. The Anti-Injunction Act therefore does not bar this suit. Pp. 11–15.

2. CHIEF JUSTICE ROBERTS concluded in Part III–A that the individual mandate is not a valid exercise of Congress’s power under the Commerce Clause and the Necessary and Proper Clause. Pp. 16–30.

(a) The Constitution grants Congress the power to “regulate Commerce.” Art. I, §8, cl. 3 (emphasis added). The power to regulate commerce presupposes the existence of commercial activity to be regulated. This Court’s precedent reflects this understanding: As expansive as this Court’s cases construing the scope of the commerce power have been, they uniformly describe the power as reaching “activity.” E.g., United States v. Lopez, 514 U. S. 549, 560. The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so  affects commerce.

Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Congress already possesses expansive power to regulate what people do. Upholding the Affordable Care Act under the Commerce Clause would give Congress the same license to regulate what people do not do. The Framers knew the difference between doing something and doing nothing. They gave Congress the power to regulate commerce, not to compel it. Ignoring that distinction would undermine the principle that the Federal Government is a government of limited and enumerated powers. The individual mandate thus cannot be sustained under Congress’s power to “regulate Commerce.” Pp. 16–27.

(b) Nor can the individual mandate be sustained under the Necessary and Proper Clause as an integral part of the Affordable Care Act’s other reforms. Each of this Court’s prior cases upholding laws under that Clause involved exercises of authority derivative of, and in service to, a granted power. E.g., United States v. Comstock, 560 U.S. ___. The individual mandate, by contrast, vests Congress with the extraordinary ability to create the necessary predicate to the exercise of an enumerated power and draw within its regulatory scope those who would otherwise be outside of it. Even if the individual mandate is “necessary” to the Affordable Care Act’s other reforms, such an expansion of federal power is not a “proper” means for making those reforms effective. Pp. 27–30.

3. CHIEF JUSTICE ROBERTS concluded in Part III–B that the individual mandate must be construed as imposing a tax on those who do not have health insurance, if such a construction is reasonable.

The most straightforward reading of the individual mandate is that it commands individuals to purchase insurance. But, for the reasons explained, the Commerce Clause does not give Congress that power.It is therefore necessary to turn to the Government’s alternative argument: that the mandate may be upheld as within Congress’s power to “lay and collect Taxes.” Art. I, §8, cl. 1. In pressing its taxing power argument, the Government asks the Court to view the mandate as imposing a tax on those who do not buy that product. Because “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality,” Hooper v. California, 155 U. S. 648, 657, the question is whether it is “fairly possible” to interpret the mandate as imposing such a tax, Crowell v. Benson, 285 U. S. 22, 62. Pp. 31–32.

4. CHIEF JUSTICE ROBERTS delivered the opinion of the Court with respect to Part III–C, concluding that the individual mandate may be upheld as within Congress’s power under the Taxing Clause. Pp. 33–44.

(a) The Affordable Care Act describes the “[s]hared responsibility payment” as a “penalty,” not a “tax.” That label is fatal to the application of the Anti-Injunction Act. It does not, however, control whether an exaction is within Congress’s power to tax. In answering that constitutional question, this Court follows a functional approach,“[d]isregarding the designation of the exaction, and viewing its substance and application.” United States v. Constantine, 296 U. S. 287,
294. Pp. 33–35.

(b) Such an analysis suggests that the shared responsibility payment may for constitutional purposes be considered a tax. The payment is not so high that there is really no choice but to buy health insurance; the payment is not limited to willful violations, as penalties for unlawful acts often are; and the payment is collected solely by the IRS through the normal means of taxation. Cf. Bailey v. Drexel Furniture Co., 259 U. S. 20, 36–37. None of this is to say that payment is not intended to induce the purchase of health insurance. But the mandate need not be read to declare that failing to do so is unlawful. Neither the Affordable Care Act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS. And Congress’s choice of language—stating that individuals “shall” obtain insurance or pay a “penalty”—does not require reading §5000A as punishing unlawful conduct. It may also be read as imposing a tax on those who go without insurance. See New York v. United States, 505 U. S. 144, 169–174. Pp. 35–40.

(c) Even if the mandate may reasonably be characterized as a tax, it must still comply with the Direct Tax Clause, which provides:“No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.” Art. I, §9, cl. 4. A tax on going without health insurance is not like a capitation or other direct tax under this Court’s precedents. It therefore need not be apportioned so that each State pays in proportion to its population. Pp. 40–41.

5. CHIEF JUSTICE ROBERTS, joined by JUSTICE BREYER and JUSTICE KAGAN, concluded in Part IV that the Medicaid expansion violates the Constitution by threatening States with the loss of their existing Medicaid funding if they decline to comply with the expansion. Pp. 45–58.

(a) The Spending Clause grants Congress the power “to pay the Debts and provide for the . . . general Welfare of the United States.” Art. I, §8, cl. 1. Congress may use this power to establish cooperative state-federal Spending Clause programs. The legitimacy of Spending Clause legislation, however, depends on whether a State voluntarily and knowingly accepts the terms of such programs. Pennhurst State School and Hospital v. Halderman, 451 U. S. 1, 17. “[T]he Constitution simply does not give Congress the authority to require the States to regulate.” New York v. United States, 505 U. S. 144, 178. When Congress threatens to terminate other grants as a means of pressuring the States to accept a Spending Clause program, the legislation runs counter to this Nation’s system of federalism. Cf. South Dakota v. Dole, 483 U. S. 203, 211. Pp. 45–51.

(b) Section 1396c gives the Secretary of Health and Human Services the authority to penalize States that choose not to participate in the Medicaid expansion by taking away their existing Medicaid funding. 42 U. S. C. §1396c. The threatened loss of over 10 percent of a State’s overall budget is economic dragooning that leaves the States with no real option but to acquiesce in the Medicaid expansion. The Government claims that the expansion is properly viewed as only a modification of the existing program, and that this modification is permissible because Congress reserved the “right to alter, amend, or repeal any provision” of Medicaid. §1304. But the expansion accomplishes a shift in kind, not merely degree. The original program was designed to cover medical services for particular categories of vulnerable individuals. Under the Affordable Care Act, Medicaid is transformed into a program to meet the health care needs of the entire nonelderly population with income below 133 percent of the poverty level. A State could hardly anticipate that Congress’s reservation of the right to “alter” or “amend” the Medicaid program included the power to transform it so dramatically. The Medicaid expansion thus violates the Constitution by threatening States with the loss of their existing Medicaid funding if they decline to comply with the expansion. Pp. 51–55.

(c) The constitutional violation is fully remedied by precluding the Secretary from applying §1396c to withdraw existing Medicaid funds for failure to comply with the requirements set out in the expansion. See §1303. The other provisions of the Affordable Care Act are not affected. Congress would have wanted the rest of the Act to stand, had it known that States would have a genuine choice whether to participate in the Medicaid expansion. Pp. 55–58.

6. JUSTICE GINSBURG, joined by JUSTICE SOTOMAYOR, is of the view that the Spending Clause does not preclude the Secretary from withholding Medicaid funds based on a State’s refusal to comply with the expanded Medicaid program. But given the majority view, she agrees with THE CHIEF JUSTICE’s conclusion in Part IV–B that the Medicaid Act’s severability clause, 42 U. S. C. §1303, determines the appropriate remedy. Because THE CHIEF JUSTICE finds the withholding—not the granting—of federal funds incompatible with the Spending Clause, Congress’ extension of Medicaid remains available to any State that affirms its willingness to participate. Even absent §1303’scommand, the Court would have no warrant to invalidate the funding offered by the Medicaid expansion, and surely no basis to tear down the ACA in its entirety. When a court confronts an unconstitutional statute, its endeavor must be to conserve, not destroy, the legislation. See, e.g., Ayotte v. Planned Parenthood of Northern New Eng., 546 U. S. 320, 328–330. Pp. 60–61.

Read the entire decision, and its dissents, for the authoritative view . . .

Earlier related articles:

• Health care: Time to sum up (scotusblog.com)
• Paul Abrams: Clues From Arizona Immigration Ruling on Individual Mandate Fate (huffingtonpost.com)
• Supreme Court Hears Arguments on Health Care Law (blogs.lawyers.com)

“Fighting to prevent this,” still – World War II poster

Think American Institute. “We’re Fighting to Prevent This.” Rochester, New York: Kelly Read, 1943. Prints and Photographs Division, Library of Congress

Both Republicans and Democrats might make a claim on this poster, today.

Propaganda for patriots, from World War II, from collections now held by the Library of Congress.

More, Related articles:

• 19 Incredible British Propaganda Posters From World War Two (businessinsider.com)
• National Archives publishes World War II poster and art collection on Wikimedia (girlinthearchive.wordpress.com)
• WWIII propaganda posters (holykaw.alltop.com)

Still looking? Again, here’s how to find “separation of church and state” in the Constitution

It’s an election year. People get crazy. I’ve already heard from a dozen wacko candidates that “separation of church and state isn’t in the Constitution.”

Yes it is. Separation of church and state resides in the Constitution.  Here’s a post from 2010 to help them find it.

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It’s been at least 20 years since I first heard the old canard of an argument that “there’s no separation of church and state in the Constitution.” I think I first heard it attributed to David Barton, which would make sense, since he doesn’t understand the Constitution, but neither does he fear sharing his misunderstandings.

It was an incorrect statement then, and it’s been incorrect since September 1787. Separation of state and church is woven throughout the Constitution, part of the warp and woof.

Recently, latter-day Constitution ignorami repeat the old canard.

Toles cartoon on dangers of marrying church and state

I was surprised to discover I’ve not posted this before on this blog. So here’s a slightly-edited version of a response I gave many months ago to someone who made that silly claim, a basic description that I developed years ago to explain the issue, in speeches by members of the Senate Subcommittee on the Constitution:

Separation of church and state: It’s in the Constitution.

I don’t play a constitutional lawyer on television, I am one*, but it seems to me anyone can read the Constitution and see. Especially if one understands that the Constitution sets up a limited government, that is, as Madison described, one that can do only what is delegated to it. The Constitution is a short document.

Where should you look to find separation of church and state in the Constitution?

First, look in the Preamble. It is made clear that the document is a compact between citizens: “We the people . . . do ordain and establish this Constitution . . .” The usual role of God ordaining (in some western nations) is altered, intentionally. It is not God who establishes this government, but you and I, together. From the first words of the Constitution, there is separation of church and state. The power of our government grows out of a secular compact between you and me, and 308 million other residents of the nation. We have a government created by consent of the governed, as the Declaration of Independence said a just government should be. It is not a government created by the will of God directly (though some, including the Mormons, argue it is divinely inspired). We have no divine right kings or other monarchs. The government is not the grantor of rights from God, but is instead the protector of the rights of citizens, whatever the source of the rights.

Second, look in the key parts of the document itself. Start with Article 1. The legislative branch is given no role in religion; neither is any religion given any role in the legislature. In Article 2, the executive branch gets no role in religion, and religion gets no role in the executive branch. In Article 3, the judicial branch gets no role in religion, and religion gets no role in the judicial branch. In Article 4, the people get a guarantee of a republican form of government in the states, but the states get no role in religion, and religion gets no role in state government. This is, by design of the founders, a perfect separation of church and state.

Third, in Article 6, the convention wrote the hard and fast rule that no religious test can be used for any office in government, federal, state or local, means that no official will have a formal, governmental role in religion, and no religion can insist on a role in any official’s duties.

Fourth, Amendment 1 closes the door to weasling around it: Congress is prohibited from even considering any legislation that might grant a new bureaucracy or a new power to get around the other bans on state and church marriage, plus the peoples’ rights in religion are enumerated.

Fifth: In 1801 the Baptists (!) in Danbury, Connecticut, grew concerned that Connecticut would act to infringe on their church services, or teachings, or right to exist. So they wrote to President Jefferson. Jefferson responded with an official declaration of government policy on what the First Amendment and Constitution mean in such cases. Jefferson carefully constructed the form of the device as well as the content with his Attorney General, Levi Lincoln, to be sure that it would state what the law was. This “letter” is the proclamation. It’s an official statement of the U.S. government, collected in the president’s official papers and not in his personal papers. Make no mistake: Jefferson’s letter to the Danbury Baptists was an official act, an official statement of the law of the United States. Jefferson intended it to assuage the Baptists in Danbury, to inform and warn the Connecticut legislatures, and to be a touchstone to which future Americans could turn for information. It was only fitting and proper for the Supreme Court to use the letter in this capacity as it has done several times.

Sixth: The phrase, “separation of church and state” dates back another 100 years and more, to the founding of Rhode Island. It is the religion/state facet of the idea of government by consent of the governed without interference from religious entities, expressed so well in the Mayflower Compact, in the first paragraphs of the Declaration of Independence, and carried through in the Constitution (see especially the Preamble, above).

No, the phrase “separation of church and state” never appears in the Constitution. The principles of separation of church and state are part of the warp and woof, and history, of the document, however. The law is clear, the law was clear, the law has always been clear, and denying the Constitution says what it says won’t change it or make it go away. You could just as easily point out that the word “democracy” or “democratic” never appears in the document, though we rely on democratic mechanisms and institutions to make it work. You could point out that nowhere does it say that our national government is a republic, though it is. The Constitution doesn’t say “checks and balances,” nor does it say “federalism.” The Constitution doesn’t mention political parties. The Constitution was written before the advent of broadcasting, and makes no mention of radio nor television, nor of the internet — but the First Amendment freedoms apply there anyway. The Constitution doesn’t say “privacy,” though it protects your right to privacy.

You won’t find “separation of church and state” as a phrase in the Constitution. If you read it, you’ll find that the concept of the separation of state and church can’t be taken out of the document, either — it’s a fundamental principle of our government.

More, and Resources:

• U.S. Constitution.net, on stuff not in the Constitution
• U.S. Constitution, at the Bill of Rights Institute (downloadable .pdfs, too)
• While you’re at it, “friend” the Bill of Rights Institute on Facebook — goal is 500 more before January 1, 2011; pass the word around

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* A non-practicing one. We have way more than 50,000 lawyers in Texas. That’s enough trouble for one lifetime. Someone has to look out for the welfare of the world.

Birthers: Lacking the sense God gave chickens

Birthers are still claiming the Earth is flat, still looking for a missing link, still claiming Judge Crater didn’t go missing, and still embarrassing America?

Yep.

Barack Obama’s Long Form Birth Certificate – image from Snopes.com (available many places)

Orly Taitz was in court in Georgia, losing another case because she lacks even a whiff of a scintilla of an iota of evidence to back any of her claims that President Barack Obama was not born in Honolulu, Hawaii, as his now-released long-form birth certificate, short-form birth certificate, contemporary newspapers, eyewitnesses and all other evidence indicate.  They have no evidence, and they have clowns for lawyers:

In court filings, Obama’s legal team has called the “birther” allegations baseless and the criticisms of his birth records “patently unfounded.” The filings also noted 68 similar challenges filed have been dismissed and, during a 2009 challenge, a federal judge in Columbus fined Taitz $20,000 for “frivolous” litigation.

But I stumbled onto a wildly misnamed blog, The Constitution Club*, where the issue is given credence and way too many electrons.

(Are lobotomies legal, again?  Can people perform self-lobotomies?  Just wondering.)

I added some references to sites in the real world, so that anyone not totally insane might find an anchor in reality and follow the threads back to the light.

The post’s author, Daniella Nicole, tried to make a defense of the birthers insane, destructive antics.

I responded, but you never can tell when the birthers will plug their ears, cover their eyes and start singing “Born in the U.S.A.” at the top of their lungs to avoid information that would require them to appear sober.  My comment went straight to “moderation.”  Probably too many links, or too many high-quality links (thank you, Cornell University Law Library’s Legal Information Institute).   For the record, here’s my last reply to Daniella Nicole:

[Daniella Nicole wrote:]

I daresay any of the GOP contenders, or to use your reference, SNL’s the Church Lady, Frankie and Willie or one of the Coneheads, would all be better than the clown (or Homey D. Clown from In Living Color, if you will) currently in office.

Excuse me. I had mistaken you for an American, a patriot, and someone who bears no ill will to the American people.

Unless Obama has lied about who his father is and the birth certificate is a fraud (which would raise other legal issues), Obama is NOT a natural born citizen. Period.

“Born on American soil” means “natural born American citizen.” Obama was born on American soil. End of your argument.

BUT, had he been born on foreign soil, with one American citizen parent, he would still be a natural born citizens — as is John McCain, born in Panama (and not on a military base, but in the local Panama hospital).

Remind me never to refer any of my clients or friends to you for immigration advice.

The Supreme Court actually set the precedent of defining natural born as born of two American citizen parents in the 1875 case Minor v. Happersett. Note it was not a dicta, which is an authoritative statement by a court that is not legally binding, but an actual precedent, which is a rule of law established for the first time by a court and is referred to by other courts afterwards.

The holding in Minor was that women are not voting citizens. The case dealt with Mrs. Minor’s attempt to register to vote. Obama is not a woman, and the issue you’re talking about has nothing to do with registering to vote. So, if the case says what you claim, it MUST be in obiter dicta. [Obiter dicta means those parts of the decision in which the court explains how and why it ruled as it did, but NOT the key ruling itself.]  No offense, but you really could use some legal training. At least get a Black’s Law dictionary, will you?

Here, read excerpts from the opinion:

The question is presented in this case, whether, since the adoption of the fourteenth amendment, a woman, who is a citizen of the United States and of the State of Missouri, is a voter in that State, notwithstanding the provision of the constitution and laws of the State, which confine the right of suffrage to men alone. We might, perhaps, decide the case upon other grounds, but this question is fairly made. From the opinion we find that it was the only one decided in the court below, and it is the only one which has been argued here. The case was undoubtedly brought to this court for the sole purpose of having that question decided by us, and in view of the evident propriety there is of having it settled, so far as it can be by such a decision, we have concluded to waive all other considerations and proceed at once to its determination.

So it would be error to claim the case got to the issue of who is a “natural born citizen” at all. It did not.

And, had you read the case, you’d know that. In fact, the case says the opposite of what you claim. It says:

Additions might always be made to the citizenship of the United States in two ways: first, by birth, and second, by naturalization. This is apparent from the Constitution itself, for it provides [n6] that “no person except a natural-born citizen, or a citizen of the United States at the time of the adoption of the Constitution, shall be eligible to the office of President,” [n7] and that Congress shall have power “to establish a uniform rule of naturalization.” Thus new citizens may be born or they may be created by naturalization.

The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their [p168] parents. As to this class there have been doubts, but never as to the first. For the purposes of this case it is not necessary to solve these doubts. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens. The words “all children” are certainly as comprehensive, when used in this connection, as “all persons,” and if females are included in the last they must be in the first. That they are included in the last is not denied. In fact the whole argument of the plaintiffs proceeds upon that idea.

Under the power to adopt a uniform system of naturalization Congress, as early as 1790, provided “that any alien, being a free white person,” might be admitted as a citizen of the United States, and that the children of such persons so naturalized, dwelling within the United States, being under twenty-one years of age at the time of such naturalization, should also be considered citizens of the United States, and that the children of citizens of the United States that might be born beyond the sea, or out of the limits of the United States, should be considered as natural-born citizens. [n8] These provisions thus enacted have, in substance, been retained in all the naturalization laws adopted since. In 1855, however, the last provision was somewhat extended, and all persons theretofore born or thereafter to be born out of the limits of the jurisdiction of the United States, whose fathers were, or should be at the time of their birth, citizens of the United States, were declared to be citizens also. [n9]

If you’re going to opine on citizenship, you would do well to read a summary of actual citizenship law, and don’t take the odd rantings of anti-Obama people on the internet.

Dani said:

Interestingly, many refer to Vattel’s definition of natural born (which is essentially the same thing and may have influenced the founders in their work on the Constitution), but it is not Vattel that sets legal precedent. The Supreme Court can and did set the precedent in the matter in 1875.

Minor v. Happersett, 88 U.S. 162 (1875) most assuredly did not rule that a child must have two U.S. citizen parents to be a citizen, nor to be a “natural born” citizen. Read the case’s key sections above.

The precedent that is important here is the presidency of Chester Alan Arthur, a man who, like Obama, had a father born in a foreign country, and who was not a citizen of the U.S. at the time of Arthur’s birth. While opponents tried to make an issue of this in the campaign of 1880, it was a non-starter. You know the rest — Arthur was elected vice president under James Garfield, and ascended to the presidency upon Garfield’s death after being shot (no, Orly Taitz was not the shooter). So, had Hapersett had anything to do with presidential eligibility, it would have applied to Arthur. Since Arthur served out his term as president, it’s pretty clear that the actual precedent supports Obama’s eligibility 100%.

Somebody told you a tall tale about the case — it’s about whether a woman may vote, not about what is a natural born citizen. Seriously, how could anyone confuse those issues?

Congress in 2008 (including Hillary Clinton and Barack Obama) also defined natural born as having been born to two American citizen parents when a challenge to John McCain’s eligibility was issued.So, even by the standard and definition of Congress, including Obama himself, he is not legally qualified or eligible.

1. That was a non-binding resolution, stating the opinion of the U.S. Senate.
2. The resolution, S. Res. 511 in the 110th Congress, ( does NOT say “two American citizen parents,” but instead refers to children born to “Americans.” Obama’s mother was an American.
3. Obama was born on American soil, and so the resolution, covering kids born outside the U.S., is inapplicable, and off the mark.

Obama was not born to two American citizen parents, by his own admission and via the birth certificate which he has provided to America. Ergo, he is not a natural born American citizen and does not meet the Constitutional requirement for the office of President of the United States of America. As such, not only is he not legally qualified to be in the office he currently holds, but he is not legally eligible to be on any ballot in the U.S. for the upcoming election. Period.

Except, none of the laws you cite says what you’d need it to say. Obama is natural born because he was born in the U.S. He is also natural born having been a child of a U.S. citizen. He is fully legally qualified — at least, to people who know the law, and who appreciate that it’s necessary to follow the laws.

If wishes were horses, beggars would ride. Your wishes do not change the law. Your misstatements of the cases and the laws do not change the laws. Your wish to find something bad against Obama, a good man and a good president, does not give you a leg to stand on, nor a horse to ride.

And how, pray tell, is using legal means to resolve serious legal matters “polluting the courts”? That is what they are there for.

Junk lawsuits. Nuisance suits. Orly Taitz has already been fined for making these nuisance claims. The evidence needed to challenge Obama’s eligibility simply does not exist, except in the fevered and overactive imaginations of those crazies. The stuff in Georgia this last week is a supreme embarrassment to America — but thank God, the courts got it right.

But by all means, continue to stamp your foot and blather on about this. Your work on this insane and hopeless issue keeps you off the streets, and out of real politics. You can’t do damage to a school board race while you’re lost in the ozone on citizenship and Obama.

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* Maybe by “Constitution Club” they mean “a club with which to beat the Constitution,” and not a group of people joining together in a noble cause, you think?

More, Resources, and Related Articles

• Always a good source on birtherism, Oh, For Goodness Sake
• We Got Mail from a Birther (littlegreenfootballs.com)
• What Really Happened in a Georgia Courtroom on January 26, 2012? | Western Journalism.com (gunnyg.wordpress.com)
• The Birthers Go Down To Georgia (outsidethebeltway.com)

Earlier at Millard Fillmore’s Bathtub

• Constitutional right to be stupid:  Birthers at it again
• Goldie Taylor at The Grio:  Why Obama shouldn’t have to “show his papers”
• Birthers claim Obama born in Millard Fillmore’s bathtub in 1853
• Stubborn birthers soldier on
• Obama’s eligibility:  California court tossed the case out
• Birther karma:  Hoaxsters get hoaxed on Kenya birth document
• Crazies never think they are
• Birther control
• Birthers:  “We choose to wallow in the gutter”
• NBC on the Obama birth certificate issue
• Anti-Obama blogger indicted for threatening Secret Service agent
• FAIL repeated:  Challenges to Obama’s eligibility
• Without hysterics, the Obama eligibility issue
• Obama’s birth certificate:  Astrologers bring sound reason (!)
• 6 ways challenges to Obama’s eligibility fail