Constitution Thursday

It's hard to believe that we are coming up on ten years of Constitution Thursday... September 17th is, of course, Constitution Day, the day that the framers signed the proposed Constitution of the United States. 

It is also the birthday of one John Rutledge, a member of the Convention that proposed the new Constitution. He would go on to be one of the original Associate Justices of the Supreme Court but left to become the Chief Justice of the South Carolina Court. A few years later, after Jay returned to become Governor of New York, President Washington used the Recess Appointment Claus of the new Constitution to appoint Justice Rutledge back to the Court, this time as the Chief Justice. 

As the Senate would not be back in session until December, the new Chief Justice took his oath and then did something that virtually no other Chief Justice has ever done - he gave a very public speech in which he suggested something that in today's Social Media world would have gotten him instantly fired. After, of course, numerous apologetic tweets and the de rigueur screaming from chat Radio talking heads, like myself, who would alternately explain what he did or did not mean by what he said.  T

he Senate, which finally came back in December, was not impressed. And the first Recess Appointment to the Supreme Court discovered that the People of the United States will always have the final say, even over George Washington...

In 1835 the US Government managed to negotiate a treaty with the Cherokee Tribe that replaced the previous treaty that was supposed to be in perpetuity. This time, the Cherokee “agreed” to leave their ancestral lands in exchange for a lot of money and never come back. 

There were, of course, some issues with the treaty, like it was never really completely clear that it was actually with the Cherokee nation, but hey, why let that stand in the way of progress?  

This week, the Cherokee Tribe announced that it intended to nominate a person to fill a seat in Congress promised to them in 1835, but hitherto has remained unfulfilled.

Down in Florida, the State ordered a Diet Coach to cease and desist from giving - and charging for - advice to clients on how to lose weight.  

On the one hand, the idea that people can't talk to each other and provide a service for which they are in return paid for that service - in this case, advice about what to eat to lose weight - should be a basic cornerstone of libertarian idealism.  

On the other hand, the State of Florida disagrees and claims it has a compelling interest in making sure that people who dispense such advice - for money - are up to its standards because 36% of the people who live there are classified as obese. 

That puts Florida in the middle percentile of the national obesity rankings. So they passed a law to make it a requirement for anybody who gets paid for nutritional advise must have a degree (which you can get from their State-run Universities for the price of a Masters Program! Get a Student loan to cover it!), nine-hundred hours of supervised training and fork over some money for a license.  

All of this is to, as they put it, make sure that the people of the State of Florida, who are not capable of making informed choices about nutritional advise on their own, don't get taken to the cleaners by paying people who have not earned their Masters Degree, taken the training and paid the fee, for their nutritional advice.  

Now, the argument being made by the diet coach told to cease and desist is simply that everything she is telling her clients is freely available on the interwebs. Which... is true.  But is that really the argument she should have made?

I was asked the other day about comparing the study of Torah to the study of the Constitution. 

Most of you know that I once went to Seminary. It was a huge mistake, but I did learn a few things when I was there. One of which was how NOT to study scripture.  

Unfortunately, in the ensuing years what I have noted is that most people tend to study the Constitution the way that I learned NOT to study Torah. 

The biggest difference between Torah and Constitution is the sheer volume of material available – if you know where to look – to anybody who is willing to accept things at face value and not simply ignore an idea because it doesn’t fit your inducted idea.  

That really is the hardest part – dropping all of your preconceived ideas, all of your already decided beliefs, and approaching things with an open mind. You will find that you are right about some things, and you will find that you were wildly wrong about some others.  

That said, these are my ideas for how to study Torah… I mean the Constitution…

In the wake of the elections of 1788, the 1st Congress of The United States began to gather in New York.  

To say that absolutely nobody had any clue what to do would be the understatement of the last two centuries. Sure, they had the rules laid out in Article I and plenty of experience in State Legislatures, but nobody had any idea if this would actually work or not. Two States had not yet ratified the Constitution and consequently had not even held elections for the new Congress. Travel times were much different than today, as horses or walking were the only ways to get from there to here. Things were slow.  

From March 4th, when the Congress convened,  it would take a month before a quorum could be achieved. And before a single piece of legislation could be presented, debated, or passed, the first order of business in the House was to elect the 1st Speaker of the House. In the Congress of a nation that was as yet strongly divided, the new Speaker was elected on the very first ballot. It was pretty much the only thing that went easy.  

The hurdles faced by the 1st Congress were things that we take for granted in today’s Country. At least half of the Congressmen in New York believed that the new Constitution was not sustainable and that New Yorkers – and by extension Northerners – were conspiring to keep the Nations new capital in New York. As James Madison said, “We are in a wilderness with not a single footstep to guide us.”  

And so with the Constitution as their guide and the son of a German Immigrant Luthern Pastor, Frederick Muhlenberg, at the gavel, things got underway…

As the 2018-19 Supreme Court Session winds down, three rulings have recently been released that have the attention of talking heads everywhere.  Joining Dave to chat about then is Pat the Lawyer from Constitution Thursday - The Saturday Podcast. 

First up, the Bladensburg Cross has passions running high, but the Court reached a 7-2 decision that this specific cross is NOT unconstitutional.

Next up, the Gundy case has Progressives apoplectic over Justice Alito's concurrence to uphold the law which allows Congress to delegate to the Attorney General the control of rules constraining sexual offenders. In an unusual 5-3 ruling, Justice Alito made it clear that he would be happy to overturn the non-delegation doctrine, just not today... 

Last up is the much-ballyhooed Gamble case, in which the Court upheld the Dual Sovereignty Doctrine. This isn't just bad news for Mr. Gamble, but is a clear loss for the Administration and specifically President Trump. A bigger question, though, is why did the Prosecutors in Alabama feel the need to hammer Mr. Gamble?

In 1974, Richard Nixon resigned from the Presidency, the only person to ever do so. The primary evidence against him was a set of tapes that he had made in the Oval Office, which purported to contain direct evidence of the Watergate Conspiracy, or at least a lot of buzzing that replaced sections that might have proved the Watergate Conspiracy if they hadn’t been so obviously erased.  

After he resigned President Ford pardoned Mr. Nixon on September 8, 1974.  

Prior to that day, Presidential papers were not considered “public documents.” They were private papers which belonged to the President. In fact, until Franklin Roosevelt donated his papers to the National Archives through his Presidential Library and Museum in 1939, they had never been available to the public except in the form of books and articles written by researchers who had been granted access.  

Until December 19, 1974. On that day, President Ford signed a bill passed by Congress, The Presidential Recordings and Materials Act.” This law, which by definition applied ONLY to the records and Materials of Richard Nixon, made it clear that these were now the property of the United States, to be overseen by the National Archivist, who was charged with determining which records and documents the United States would keep – for potential use in judicial proceedings – and which would be returned as the property of Richard Nixon.  

Naturally, the former President sued, claiming that this law was clearly unconstitutional as it violated the ban on Bills of Attainder.   

It would take until 1998 to fully resolves Nixon’s role in this. Today, the Federal Courts are preparing to take up two cases that both Defenses are arguing are Bills of Attainder. Will history repeat or will the Courts find that no bills of attainder shall be passed?

The ultimate reason for the Constitution was to preserve the blessings of liberty, to ourselves and our posterity. What was once blindingly obvious to us, has been lost in the fog of the past.  And that is why the recent raising of a Liberty Pole caused some questions...

Most of us have long ago said that we believe that Facebook and Twitter (and other Social Media platforms) have the “right” to ban whomever they please, because, “it’s not a First Amendment issue.” In fact, even Trump’s legal team seems to agree with this position.  

But solely for the purpose of careful consideration of the ENTIRE issue, let us consider a few things that haven’t gotten much discussion, at least as far as I can find.  

Social Media platforms, along with media websites and other types of socially interactive online sites are exempt under section 230 of USC §47 from being held liable for comments (speech) which is shared on the sites in the form of comments and/or posts. The platforms cannot be held legally or financially liable for the users’ inputs, including, by the by, “Main Stream Media” sites such as newspaper comment sections.  

Now, again, let us be clear, the Platforms themselves are not the government. I believe that we all agree that given that circumstance, they are free to allow or disallow participation as they see fit. So, banning Alex Jones or Louis Farrakhan or shadow banning Devin’s Cow might be a bad business plan and result in customer blowback, but it is allowable. whether or not they should do it is another matter.  

But… let us consider some things here...

The Rogue State of Rhode Island and Providence Plantations is eventually compelled by the Governor and the Congress of the United States to ratify the Constitution...