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| Let's Give Up on the Constitution |
| 2013-01-01 |
| Rolled over to the New Year by request. ...As someone who has taught constitutional law for almost 40 years, I am ashamed it took me so long to see how bizarre all this is. Imagine that after careful study a government official -- say, the president or one of the party leaders in Congress -- reaches a considered judgment that a particular course of action is best for the country. Suddenly, someone bursts into the room with new information: a group of white propertied men who have been dead for two centuries, knew nothing of our present situation, acted illegally under existing law and thought it was fine to own slaves might have disagreed with this course of action. Is it even remotely rational that the official should change his or her mind because of this divination? Louis Michael Seidman, a professor of constitutional law at Georgetown University, is the author of the forthcoming book "On Constitutional Disobedience." We're getting used to being ruled, rather than governed. And we're getting real used to rule by decree. The obsessing on the fact that those who wrote the Constitution were white -- usually by white liberals like the writer -- kind of turns my stomach. So was Julius Caesar white. So was Aristotle. So was Sir Walter Raleigh. So was Al Capone and Wyatt Earp and Horatio Nelson and Eddie Rickenbacker. And, with special significance for an argument on the Constitution, John Locke. Somehow in the process of attempting to overcome the racial animus that prevailed up until the early 1960s, we've (or some of us have) become hyper-race conscious, and being white has become a point against a person. These are the seeds that in our grandchildren's or great-grandchildren' time will grow into some nasty ethnic conflict. Since they'll be busy paying off an enormous national debt at the time in eentsy-weentsy dollars they're going to be pretty irritable and the conflict won't be pretty. Mr. Constitutional Law Perfessor doesn't appear to realize that the Constitution is a framework of government and that it has been adjusted to meet changing conditions over the years -- that's why we inaugurate the president in January, rather than in March. It's also how we ended up with the income tax despite the provision in the body of the Constitution against a head tax, and how we ended up with women's sufferage and with the Volstead Act and no beer. It's intentionally designed to be hard to amend -- just about everybody has to support the change, rather than just a bare majority of congressmen. But the House still maintains control of the public purse and there's still a requirement to come up with a budget every now and then, whether they want to or not. The bitch often centers on the Bill of Rights, which are safeguards against dictatorial rule. They are restrictions on government, so naturally as government grows more rapacious and dictatorial it will attempt to remove or overcome those restrictions. There's probably a reason for that. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.That means you can take Sunday off -- it's the Lord's Day, when it's forbidden to do any work. It means that you can belong to a church of ludicrous doctrine, worship Baal if you please, or believe in nothing at all. You can be a complete solipsist if it pleases you. It says -- remember it starts "Congress shall make no law..." -- you can be a member of the Tea Party or Occupy Wall Street or both if you're a contortionist and government shall not say thee nay. And if you want your taxes reduced you have a perfect right to turn up in front of the Capitol and holler about it, even though a few thousand letters would do more good. And you can make fun of Mohammad or the Pope or Chairman Mao all you want. What's complicated about all that? A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringedThe militia in 1776 was the army. It was called out in the case of Injun attacks or to fight the Redcoats. Its members brought their own weapons. We don't have many Injun attacks nowadays and the Redcoats are friends and allies. But if you read the Declaration of Independence, another legal document forming the government, you read We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Governmentto whit, that the citizenry has the right to abolish or modify a government that becomes, let us say, rapacious and arrogant. Requiring that tea sold bear a stamp from the government, or that everybody has to buy health insurance, want it or not, for instance. The right to bear arms is the right to keep government honest, and the higher capacity the magazines the more honest they'll tend to be. No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.Troops used to be put up in citizens' houses. The citizen got to feed them and take care of them until they moved on. "Quartering" often looked more like "looting." It's not a problem we have at the moment, but there's nothing to say it won't come back fifty or a hundred years from now. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.A certain amount of search and seizure is required to maintain a civil society -- otherwise crooks could just step inside their doors and remain undisturbed. The key word, I'd think, not being a hotshot Constitutional scholar, is "unreasonable." For instance, crashing through a citizen's front door at 2:30 in the morning, hollering and waving guns, doesn't seem all that reasonable. Maybe six or seven a.m. if the guy's a bail jumper or an escapee. And when the cops leave, possibly with their prisoner cuffed and on his way to jug, they should have to clean up when they leave, or at least leave the place like they found it. And the sight of an armed and armored SWAT cop holding a gun on a screaming six-year-old boy should be a sight that would have the citizenry up in arms. Even Alexander Hamilton would choke on that one. He and Aaron Burr would show up arm in arm, leading the charge to be out in front of the Capitol, demanding the dissolution of whatever agency the Storm Trooper belonged to. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.We now live in an age where a Grand Jury "will indict a ham sandwich." The purpose of the Grand Jury is to look at the evidence and determine whether the case against the accused looks reasonable. If not, the prisoner should be released, possibly until the Feds can come up with better evidence, probably for good. There's an exception for wartime, since (oh, dear!) military tribunals might be operating in different circumstances. And there's a provision against double jeopardy to keep the Feds from bringing the same charge based on the same evidence over and over, impoverishing the accused while they rely on a crap against the wall technique. He can't be made to testify against himself, either, and he's entitled to due process of law, which means the cops can't be judge, jury and executioner. Nor can his property can be grabbed for some Congressman's project, to be paid nothing or a pittance. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.Now we're getting into the "Due Process of Law" part of it. The Constitution that this guy's in favor of discarding, has a provision in it that would look to any normal person like it forbids indicting a guy in May and starting his trial not even the next September but the one after that. I'm not too sure how you'd define sixteen months as "speedy." Go to your local federal prison and pick a case at random and count the number of months, not days, between arrest and verdict, then add another six months for sentencing. The jury has to come from the same area that the alleged crime took place, even if there's a change of venue to Caliphornia so they can maybe get the Ninth Circuit. The jurors would have to be transported from Minnesota or wherever. I'm not even sure if it's within the bounds of the Sixth Amendment for a person to face 120 separate counts of mopery or something. One thing at a time would seem less overwhelming and wouldn't allow that crap against the wall approach by a bloodthirsty prosecutor. In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any court of the United States, than according to the rules of the common law.Seventh amendment establishes English common law, which stretches at least as far back as King Alfred, for use in civil trials concerning values greater than twenty bucks. You get a trial by jury, not "if you want one" but a trial by jury. You can't kneel before the local satrap and describe your complaint or have some party hack alderman decide it. And that last bit means that if a jury comes up with an outlandish interpretation of the facts in a case they'll have to be examined in an appeals court in accordance with that same common law. Of course, King Alfred was white, and so was King John, and so were each and every one of the King Henrys. And all the King Georges. And common law recognizes corporations as persons in a limited manner -- GM can't vote, for instance, but it can and does own lots of property. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.The Feds are forbidden to impoverish an accused. The definition of "cruel and unusual punishment" can change over the years, so I guess in this respect the Constitution's a "living document." Those Dead White Guys were thinking of the rack and the bastinado and drawing and quartering. Nowadays we think how cruel and unusual a ball and chain would be. Or hanging. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.Anything else that we, the people, decide are rights are our rights, not the government's to give or take away. Those old white guys are saying here that if they left out any positive rights on a par with protection against unreasonable search and seizure, that's forbidden to government, too. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.The tenth amendment is a second whack at the rights protected by the ninth. The ninth says that any rights not enumerated belong to the people upon discovery. The tenth says that anything the Constitution doesn't say the government can do, it can't do. To whit, education or environmental protection, or health and human services or housing or urban development. And public television and radio. As far as I know, and I've read the whole document two or three times, maybe more, there's no provision in there for executive orders, either. And no tsars. The Dead White Guys really didn't like tsars. The real gripe we're seeing here is that the Constitution establishes a republic and we've evolved into a democracy, with all the faults that inevitably accrue -- most strikingly the majority voting themselves the minority's money. There's no Constitutional provision for that, and the Lockean provisions for protection of life, liberty, and property loudly argue against it. The stop at democracy, I believe, is always a short one. It inevitably devolves into oligarchy. Explain to me, please, the differences between the Kennedies, the Dalys, the Cuomos, the Bhuttos, the Ghandis, and the Sharifs? And the al-Thanis and the Sauds. Oligarchies can last for years and years but eventually they decay is into dictatorship or anarchy. |
| Posted by:Beavis |
| #33 The oath of office of the President of the United States is an oath or affirmation required by the United States Constitution before the President begins the execution of the office. The wording is specified in Article Two, Section One, Clause Eight: Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:--"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States." President Franklin D. Roosevelt was administered the oath of office four times, more than any other president. However, since President Barack Obama's second inaugural is to fall on a Sunday, he is likely to be sworn in twice for his second inauguration with the second falling on Monday. If this occurs as expected, Obama will also have been sworn in four times counting the two from his first inauguration, due to Chief Justice John Roberts misstating the wording of the oath on his first attempt, thereby causing a request for a re-administration of the oath shortly after in private quarters. So in taking the Oath of Office and then advocating the dismisal of the very document by which he holds office presents the American People with what ? The big "T" word....Treason ? No, the Constitution having been dismissed, invalidated, holds that the "T" is the impeachable offense; no Constitution, no offense. Sweet. Herzlich Willkommen Sie auf der neuen America |
| Posted by: Au Auric 2013-01-01 11:55 |
| #32 Anybody know what the statute of limitations is for treason? Posted by Rambler in Virginia For the Champ, it's the moment he steps away from the lectern. |
| Posted by: Besoeker 2013-01-01 11:42 |
| #31 Besoeker, the aid and comfort happened after he shot a wounded teenage VC to death. He did the aid and comfort to atone for the shooting. Anybody know what the statute of limitations is for treason? |
| Posted by: Rambler in Virginia 2013-01-01 11:37 |
| #30 That "aid and comfort" bit was cancelled out by the shooting of a wounded VC with his .45 auto. |
| Posted by: Besoeker 2013-01-01 11:20 |
| #29 While we are on the subject of the Constitution can someone tell me how John Kerry was able to circumvent Article 3 of the 14th Amendment? Did he not give both verbal and visual "aid and comfort" to the enemy? |
| Posted by: Jack is Back! 2013-01-01 11:14 |
| #28 No Constitution. Okay. Then the Federal Government loses whatever pretense of legitimacy it had left and it is lock and load time. |
| Posted by: Secret Asian Man 2013-01-01 11:13 |
| #27 Let's give up on the Constitution NFW! |
| Posted by: JohnQC 2013-01-01 10:01 |
| #26 "and FTFY, Glenmore. (No charge, us being friends and all...) |
| Posted by: Barbara 2013-01-01 09:41 |
| #25 It HAS been given up on, to a large degree. I can read, and lots of stuff government does is unconstitutional, but even the Supreme Court lets it go on. |
| Posted by: Glenmore 2013-01-01 09:01 |
| #24 Injecting the language of slavery always validates the argument and provides cover for progressives. Thanks for the guilt booster shot professor, but I'm allergic to the serum. Please forgive me for my involvement as a horse holder at Wounded Knee. I still have nightmares by the way. |
| Posted by: Besoeker 2013-01-01 06:55 |
| #23 I'll restart by wishing all Rantburgers and those serving our country a very Happy New Year. Mr. Seidman has squandered his 40 years. He should know that the Constitution as adopted by those slave holding white men was pretty well eviscerated by the 16th and 17th amendments adopted 100 years ago that fundamentally altered the balance of power among the people, the states, and the federal government, and the unauthorized amendments adopted by the Supreme Court since 1937. It is unfortunate, because those white men understood our present situation better than those governing us today, for there is nothing new under the Sun. 1913 was a very bad year, leading to many worse. 2012 looks to have produced an evil as bad. Our chance to reverse the evils of 1913 may have disappeared. We shall see. |
| Posted by: Nimble Spemble 2013-01-01 05:28 |
| #22 A shame to loose this at Midnight. :( |
| Posted by: newc 2012-12-31 22:03 |
| #21 The US Constitution will have to be formally amended to accomodate the Globalists' desired OWG + OWG GFUS e.g. NAU, etc. To just bypass = "give up" on the Constitution, aka the "Law of the Land", is to basically admit that mainstream America has grown soft or is too lazy to stand up for its own Freedoms + Rights. IMO the sooner the US goes over the "fiscal cliff" + Moodys, Fitch, etc. seriously degrade the US credit ratings, andor China MilPol publicly humiliates the US in East Asia [ECS + SCS, Taiwan, Himalayas] the better for Americans' + America's soul. |
| Posted by: JosephMendiola 2012-12-31 19:30 |
| #20 Yeah--he was always aiming for that. The pattern is clear. I used to run around with the Commies in college, and O is wiping the Republic off the board--all according the playbook, with some help from Alynski and the NWO handlers. Adherence to the Constitution is one of the cornerstones of American national identity, which is what must be eliminated according to the Big Money guys. I used to think that stuff was nonsense, but the more I find out and analyze....oh boy. NOT good. |
| Posted by: ex-lib 2012-12-31 18:54 |
| #19 Either a push for dictatorship or a push for Federalism will be our path for the next century. The tug-of-war is already on. The question is, which one will prevail? |
| Posted by: RandomJD 2012-12-31 17:17 |
| #18 Damn, classic work FredMan. |
| Posted by: Shipman 2012-12-31 16:54 |
| #17 Between all the liberal calls for the dismantling of the constitution, and the execution and imprisonment of NRA and gun owners, can we see a major push for a dictatorship in 2013? Either way, I believe the Republic is finished. Either a push for dictatorship or a push for Federalism will be our path for the next century. |
| Posted by: DarthVader 2012-12-31 16:14 |
| #16 Excellent. |
| Posted by: JohnQC 2012-12-31 15:27 |
| #15 My reply now is on line at the Sun. Apparently the Sun doesn't have the readership the Times has, which is a shame. I would have posted my reply at the Times but as a non-subscriber one only gets to view and comment on 10 free articles a month and I am over my limit. |
| Posted by: Steve White 2012-12-31 14:53 |
| #14 Boy! After reading all the comentary, do I need to read the original Fred and Steve - my compliments. You guys ought to be in another line of work! The rest of you -- well, you're just way above average. Have a Happy New Year! |
| Posted by: Bobby 2012-12-31 14:48 |
| #13 The 16th amendment authorized Congress to levy income taxes, without limit. The 17th amendment changed Senators from appointed to elected. Sorry to nitpick. Both were huge mistakes. |
| Posted by: RandomJD 2012-12-31 14:15 |
| #12 It does address tax slavery in the prohibition against a head tax. The 17th amendment scuttled that, to give us the IRS. |
| Posted by: Fred 2012-12-31 13:37 |
| #11 Our Constitution does address some forms of slavery but not others. It does not address tax slavery. Every year, the tax anniversary date keeps getting pushed further and further into the year; essentially creating a kind of economic servitude. If an amendment were proposed to our Constitution which would basically aim at controlling fiscal messes that our government gets us into and taxes, I wonder if 3/4th of the states would ratify such an amendment? Presently, such an amendment would never get out of Congress the way things are going. |
| Posted by: JohnQC 2012-12-31 12:43 |
| #10 Very well saiD, Dr. White! |
| Posted by: Barbara 2012-12-31 12:11 |
| #9 Agreed, P2k. |
| Posted by: Barbara 2012-12-31 12:10 |
| #8 So, that means we default back to the Articles of Confederation or simply become the Disunited States, each of individual sovereignty. Otherwise, power comes from the barrel of a gun. Don't count on the military to back you up professor, the mid-ranks are relieved of their oaths and the bulk will not break for your |
| Posted by: P2kontheroad 2012-12-31 12:02 |
| #7 That already happened in the 30's. |
| Posted by: Iblis 2012-12-31 12:00 |
| #6 A Man for All Seasons. Something's wrong with my fingers this morning. |
| Posted by: Matt 2012-12-31 11:55 |
| #5 Oops, the quote is from the movie version of |
| Posted by: Matt 2012-12-31 11:54 |
| #3 A conversation by a learned man against himself and the fireplace, third bottle down. I would demand my money back, even if I supported this position. And for the record, I believe those founders would see quite clearly our current situation. If even this change is impossible, perhaps the dream of a country ruled by “We the people” is impossibly utopian. If so, we have to give up on the claim that we are a self-governing people who can settle our disagreements through mature and tolerant debate. Hey professor, your ass is showing. |
| Posted by: swksvolFF 2012-12-31 11:48 |
| #2 Here's my response as sent to the New York Sun editorial that in turn commented on this piece -- The editorial by the Sun, well-written as it is, spends a little too much time apologizing for the great sin of slavery and not enough time responding to what is Professor Louis Seidman's central point in his piece in the New York Times. To be clear, slavery was indeed a horrible wrong, and all Americans today rightly condemn it, and work for the day when the lasting effects of slavery are finally expunged from our society. But just as importantly, Professor Seidman complains about the Constitution today. He apparently is of the belief (as best I can tell from his op-ed piece) that the Constitution should be respected only if it is a 'living' document; which is to say that it should mean what society (and particularly, people of his beliefs) say it should mean. In this belief the good Professor misses two key points: the first is that a charter, which is what the Constitution is, deliberately binds a people to history. Be the charter a generation or a millenium old, the whole point is to condition our behavior today on a proper respect for the past, warts and all. There are plenty of specific terms and items in the Magna Carta that certainly would be out of place in the modern world, but we (and the British) still give it reverence for what it did at that time to make us what we are today. So too the Constitution provides an enduring framework that made us the republic we are today, and channels our work, our energy and even our protests in ways that benefit our society. The second point is even simpler: our elected leaders take an oath to defend the Constitution as their first act of office. Even if Professor Seidman believes the Constitution to be a dead piece of parchment, does he not understand and respect what an oath is, and what it is supposed to do to those who swear one? Like a written charter, an oath conditions and channels us by providing a framework for our subsequent acts. That is precisely why our Constitution, for example, requires our President to take an oath. If Professor Seidman believes the Constitution to be fatally flawed for today's world, then he should propose a replacement. He and like-minded citizens could then try to persuade the rest of us as to the wisdom of a new charter. To ignore the Constitution and the oaths taken to defend it, however, rapidly leads to anarchy. In the end, such a society would be based on the very simple, brutish charter of human nature: might makes right. I shall bet that Professor Seidman does not want that sort of replacement charter in the modern world. |
| Posted by: Steve White 2012-12-31 11:30 |
| #1 NYT article; color me surprised. /sarc |
| Posted by: Raj 2012-12-31 10:46 |