By January 19, 2013 2 Comments Read More →

Constitutionally Crazy

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In addition to all the problems the country and its political process face now, there is one little discussed, but pervasive problem that underlies and aggravates them all. This problem is similar to and a variation of “Obama Derangement Syndrome.” It is a fanatical obsession with a fictitious constitution that energizes an evasion and subversion of the actual constitution. Because this mainly infects Republican politicians, the House of Representatives is like a plague infested city from the Dark Ages. Something deadly and virulent breeds there and it is sickening our political culture and imperiling the well-being of the nation.

This is most strikingly illustrated by a Texas legislator who says: “At some point there needs to be a showdown between the states and the federal government over the Supremacy Clause.” GOP Rep. Steve Toth said he plans to introduce the “Firearms Protection Act,” which calls for felony criminal charges to be filed against any federal official who tries to enforce new gun-restricting regulations in the Lone Star State. In American history, such action was described as either nullification or interposition. Although these terms have been used interchangeably there are subtle differences between them.

Curiously, interposition was first asserted by James Madison, Father of the Constitution. Essentially, Madison argued that states could join together to challenge the constitutionality of a law through various means. He did not believe any single state had the right to interpose, and he rejected nullification, the idea that a state could declare a federal invalid and void and thus nullify it. Both interposition and nullification rely on the “compact theory” of the constitution. This is the idea that the states entered into a contract with one another to establish the constitution. In essence the states are regarded as separate nations in a contractual relationship which they can modify or end when they so choose.

Despite its persistence in American political thought, the compact theory has never been triumphant and it has never been accepted in any fashion by relevant courts. The second Confederacy in the mid-nineteenth century espoused the compact theory. That is why Confederate leaders believed their states could leave the leave the union. Prevailing constitutional theory holds that the people not the states are the sovereigns who “ordained and established” the Union. Consequently, the states cannot end the union and the states cannot practice interposition or nullification. American courts have repeatedly and consistently rejected the compact theory of the constitution. No serious authority believes today that the Constitution is a contract among the states. Rather, the Constitution is a charter established directly by the people, as stated in the preamble: “We the people of the United States. . . .”

Under the Supremacy Clause of Article VI, “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” This means that any federal law–even a regulation of a federal agency–trumps any conflicting state law. Federal laws therefore cannot be negated by the states. Rather, federal laws are valid and are supreme, so long as those laws were adopted in pursuance of—that is, consistent with—the Constitution. There is not serious dispute on this point. The only people who contend otherwise are literally still fighting the Civil War. 152 years after the deadliest American conflict, it is time for every American to acknowledge and accept that the Civil War is over. Furthermore, it is an act of willful irrationally to overlook the clear and unambiguous wording of the Constitution itself. The Supremacy Clause is written in English and is transparently intelligible to contemporary Americans. If any living adult American misconstrues the Supremacy Clause, they must deliberately do so.

The determination of consistency with the Constitution requires interpretation of the law. Interpretation is inherently a judicial function. Article III of the Constitution gives the federal courts authority over all cases “arising under this Constitution [or] the laws of the United States.” The federal courts therefore have the power to determine whether federal laws are consistent with the Constitution. The Supreme Court has the final authority on these matters, not the states individually or collectively.

Another feature of conservative constitutional craziness is their Second Amendment absolutism. To hear what conservatives say and read what they write one would think the Second Amendment simply states: “The right of the people to keep and bear arms shall not be infringed.” Of course, this is not the case. This last portion of the Second Amendment is instrumental. Keeping and bearing arms is a means, not an end. The goal of the Second Amendment is “the security of a free state.” Due to their understandable suspicion of standing armies, the Framers sought to solve the problem of military power by providing for a citizen army. Despite years, if not decades of misleading publicity and poor historical commentary, the Second Amendment was not written to plant a seed of insurrection in the Constitution. It was written to provide for a source of military power capable of defending the Republic from foreign invasion and domestic rebellion. Article I, Section 8 of the Constitution, states: Congress may call up “the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.” The well-regulated militia referenced in the Second Amendment is a means to suppress insurrections, not wage them.

“The National Rifle Association has long encouraged the insurrectionist view. In 1995, shortly before the Oklahoma City bombing, Wayne LaPierre of the N.R.A. said the Clinton administration’s “semiauto ban gives jack-booted government thugs more power to take away our Constitutional rights, break in our doors, seize our guns, destroy our property, and even injure or kill us.” Such rhetoric encouraged Timothy McVeigh to choose the federal building in Oklahoma City as his target due to the presence of an ATF office in that building. In addition, LaPierre’s remark exhibits the Second Amendment absolutism that is a recurrent strain of constitutional craziness. The insurrectionist perspective is factually and historically erroneous. No number of repetitions and no amount of propaganda publication can make it anything but lunacy.

Furthermore, the Bill of Rights contains many other stipulations which unregulated firearm ownership and use may jeopardize. For example, the right to not “be deprived of life, liberty, or property, without due process of law;” is clearly violated when a monster with an assault rifle takes your life in a movie theater, a school, or a house of worship. It has long been acknowledged that the First Amendment rights are not absolute. One cannot cry fire in a crowded theater for example. The same is true for the so-called Second Amendment rights to keep and bear arms. It is relevant in this context that in its initial draft, the Second Amendment contained both well-regulated and well-armed as modifiers of militia. In the ratified version, well-regulated was retained, but well-armed was dropped. Therefore, the Framers clearly neither dismissed nor discounted regulation of firearms.

Another strain of constitutional craziness is the emerging notion that Electoral College votes should be awarded by congressional district rather than by state. This is a bad idea for many reasons beginning with the fact that the Constitution provides that electors are awarded to states. Article II, Section 1 specifies: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.” The Twenty-Third Amendment provides: “A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State.” The clear language of the Constitution conveys the strong connection between Electors and states. Furthermore, it should be remembered that districts are not even mentioned in the Constitution, only enumeration of the populace providing for how many representatives a state is awarded. Districts are transitory things and subject to manipulation. The method of manipulation employed is gerrymandering during reapportionment due to a census. If Electors had been awarded by congressional districts in 2012, Mitt Romney would have been victorious despite securing 5 million few votes for president than Barack Obama. In 224 years only four presidents have been elected while losing the popular vote. George W. Bush is the most recent example and he lost by 540,000 votes. Awarding Electors based on gerrymandered congressional districts would have given the presidency to a candidate who lost by almost ten times as many votes as G. W. Bush did. Furthermore, awarding Electors by congressional district would probably ensure the winning candidate almost always lost the popular vote. In 2012, House Republicans received 1.4 million less votes than House Democrats, but the Republicans hold a thirty-three seat majority. Changing the way Electors are awarded as some Republicans propose seems like a direct threat to government of the people, by the people, for the people. This is not a mistake; it is intentional.

A recent and virulent strain of constitutional craziness is exemplified by a petition circulating on the Internet to “keep obama from signing the pledge with the u.n. to take away our second amendment right.” Note the lack of title and proper capitalization which is consistent with the pervasive discourtesy toward President Obama. In addition, the premise and particulars of the petition are completely erroneous and quite ludicrous. There is no U. N. action that threatens Second Amendment rights. The Obama Administration has established redlines that fully assert and protect U. S. sovereignty and the Second Amendment. Key redlines stipulated by the Obama Administration are presented below. Please note the insistence on upholding the Second Amendment to the Constitution.

Key U.S. Redlines

• The Second Amendment to the Constitution must be upheld.
• There will be no restrictions on civilian possession or trade of firearms otherwise permitted by law or protected by the U.S. Constitution.
• There will be no dilution or diminishing of sovereign control over issues involving the private acquisition, ownership, or possession of firearms, which must remain matters of domestic law.
• The U.S. will oppose provisions inconsistent with existing U.S. law or that would unduly interfere with our ability to import, export, or transfer arms in support of our national security and foreign policy interests.
• The international arms trade is a legitimate commercial activity, and otherwise lawful commercial trade in arms must not be unduly hindered.
• There will be no requirement for reporting on or marking and tracing of ammunition or explosives.
• There will be no lowering of current international standards.
• Existing nonproliferation and export control regimes must not be undermined.
• The ATT negotiations must have consensus decision making to allow us to protect U.S. equities.
• There will be no mandate for an international body to enforce an ATT.

For 55 years since the case of Reid v. Covert, the Supreme Court has held that international treaties ratified by the U S Senate DO NOT supersede the Constitution. The Constitution is SUPREME and laws and treaties pursuant there to do not take precedence over the Constitution and its Amendments. The only way to repeal or nullify the Second Amendment is through the normal process for amending the constitution. Treaties like laws are pursuant to the constitution and never superior to it.

All members of congress take a solemn oath to preserve, protect, and defend the Constitution of the United States and to bear true faith and allegiance to the same. This is almost impossible for Republicans to honor because so many of them are willfully ignorant of what the document they swear to uphold says and means.Instead of spending any of their limited time in session reading the constitution in the House chamber, Republicans would be better served and would serve the Republic better by carefully studying and fairly considering what the constitution actually says. When one adds to this flamboyant ignorance the flagrant irrationally of the Republicans in their ideological fixations, they can only be judged – Constitutionally Crazy.

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Posted in: Larry Conley, Politics, USA
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  • Anya Pham

    I’ve read/heard a lot of people’s opinions on the differences between Texas and Oregon as far as lifestyle, cost of living and friendliness of people. But the one reason I’m eager to leave the Great State of Texas is how mortified I am at the state legislature. It’s no longer about common sense for the greater good -- it’s about who can inflate their rhetoric to absurdist proportions first/best.

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  • An ya,

    You are so right. Texas is the Lone Star state officially, but perhaps it should be the Looney Stars state.

    Thanks,

    Larry

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