Constitution Thursday

This often happens to me. I start down a thought road, planning to talk about one thing, and then I get off on a different road. As Sherlock Holmes described it, I follow the thread where it leads. I had planned to talk about this week's refusal by the Supreme Court to issue a writ of cert to hear Gee v Planned Parenthood, but I got interested in Justice Thomas’ dissent.

Understandably, he is upset at the refusal of the Court to hear the case. There are those who believe that his dissent is rooted in ideology, and it may be. Clearly, he hates abortion and would vote to overturn Roe v Wade faster than a Michael Cohen news story gets on the air. But he does make a valid point – the jurisdiction and duty of the Court, as intended by the Framers, was to resolve questions such as this case asks. Especially when there are differing opinions as to what is going on with a given law in the lower Courts.

So…

There once came a time when the economic situation was chaotic. A long war had drained national resources and there was an overabundance of land and property available for speculative deals. To that end, numerous banks began making speculative loans backed up by literally nothing. The overextension of easy credit along with declining prices of non-land goods was causing a great deal of concern. And when the crap hit the fan, all hell broke loose.

Banks panicked and began calling in loans and foreclosing on the properties.

And then the politicians got involved…

The Constitution guarantees each and every state a "republican form of government.” So is Florida’s rather hectic and confused use of multiple methods of amending its State Constitution actually "Constitutional” in the sense of being done by a "republican form of government” as guaranteed in Article IV, Section 4?

Once upon a time, 1633, to be exact, King Charles issued a Royal Charter for the Colony of Rhode Island and Providence Plantation. Oddly enough, by the time Rhode Island got around to ratifying the Constitution in May of 1790 (the final original State to do so), the charter was still in operation and was held to be in compliance with Article IV Section 4’s guarantee of "a republican form of government.”

By the time the 1840s rolled around, most of the people living in Rhode Island disagreed and decided to write their own State Constitution and elect their own Governor. This did not sit well with either the current government of the State, or with the President of the United States. So when the two sides tried to come to blows, it went about like you would expect it to have, since you’ve never heard about it or seen it in your high school history books.

But it did teach us quite a bit about what a "republican form of government” really is…

In the economic doldrums of the late 1970s, the State of Michigan hit on an idea to take over some land it liked and build a car plant which would create jobs and economic benefit. The people who owned the land weren't all that thrilled about the idea, nevertheless, the state persisted. Eventually, the Michigan Supreme Court decided that the taking was a legitimate use of eminent domain for economic benefit. Thirty-seven years later, it didn't turn out to be such a  great idea.

The State of Indiana argued yesterday that seizing a person's car for doing 5mph over the speed limit was not an "excessive fine." Seriously. That's not a joke. They really argued that. The Supreme Court didn't think that it was funny.

The American Legion v The American Humanist Association (a/k/a The Bladensburg Cross)

The Supreme Court will hear the Bladensburg Cross case after the 4th Circuit ruled that public expenditures used to maintain the monument violate the 1st Amendment prohibition against the establishment of religion by the Government. It is always a touchy subject, and the debates are always passionate. From Bladensburg to San Diego, the debate rages as to what exactly constitutes "establishment" and whether or not the long history of various monuments has any sway in the question of the status of the monument.

Like most things, it's not as simple as it seems. Nor is the hyperbole - on both sides - helping to sort through the real issues.

Every few years one side or the other complains that the President is over-reaching his authority. This almost naturally leads to the debate over "Implied Powers," and whether or not they (the implied powers) exist (they do) or not?

In 2014, the world faced the specter of ISIL (or ISIS or IS) as the Islamic State overran vast swaths of territory in Iraq and Syria (the "Levant") and begun to impose its version of Islamic Law on the local inhabitants who really just wanted to be left alone. When they (the locals) wouldn't go along with the insane Islamic nut jobs, they (ISIL) began to commit mass murder on an industrial scale. 

Reactions ranged from the idea that we - the United States - had a "moral" duty to step in, to the position that we should stay the heck out of yet another war in Asia. was the Islamic state an actual threat to the United States or its "national interests?" 

How do we define the "National interests" that guide our foreign policy? Most of all, what does the Constitution have to say about not just the powers involved, but what, if anything, about the process? 

Sausage making, as the process has been described, is not really pretty, and generally speaking not at all interesting. 

But if you want breakfast, you have to break a few eggs. And grind up some pigs...

This past week the Chief justice of the US Supreme Court ordered a stay at the beginning of the trial of the case, Juliana v US. this is the second time that there has been a stay in the famous case, which seeks to force the US Government to pursue policies that would "keep warming in check." Both the Obama Administration and the Trump administration (which submitted a 103-page argument to the Court asking for the stay) have argued that the case is problematic, in that it violates the separation of powers in the Constitution. 

The plaintiffs, supposedly a group of young people, claim that their civil rights have been violated and they have demanded policy changes that would "protect their civil rights" from the effects of global climate change in the future.

This raises a number of questions, one of which is, what exactly is a "civil right?"

The Congress shall have Power To ...regulate Commerce...with the Indian Tribes...

ARTICLE I, SECTION 8, CLAUSE 3

That's how it always begins. Very small.

A man living in Oklahoma has a girlfriend who has an ex-boyfriend who gets into it with the man. In a gruesome crime, the ex-boyfriend is murdered, his genitals left on his chest on the side of the road. Not being a criminal mastermind, the man, Murphy, is caught. As there is little doubt and much evidence that he did it, he is tried and convicted of capital murder. The sentenced is death. 

Not so fast...

The crime was committed by a member of the Creek nation. The victim was also a Creek. And it appears that the crime was committed on Creek land. That being the case, the State of Oklahoma would have no jurisdiction, it would be a Federal case, requiring a Federal (not State) prosecution. Because of the laws and agreements with the Tribes, such a crime cannot have a death penalty unless the tribe agrees to it, which they almost never do. 

Not so fast... was it on Creek land? The Treaty of 1831 says that it is, but subsequent treaties (1866) make it less than clear. Did Congress intend to take the land where the crime occurred away? Did they actually do it? Did somebody make a big mistake and forget a sentence in a document more than a century ago? 

And if it is Creek Land, what does that mean to the State of Oklahoma? What if the State of Oklahoma, as we've known and loved it since 1907, isn't the State of Oklahoma? What if it's only half the size it is today? 

Absurd, you say? That's not what the 10th Circuit Court says. And depending on how the Supreme Court rules, it might not be so crazy. By next June there might be a new old Territory and fifty percent less of the State of Oklahoma.

It's Constitution Thursday on The Dave Bowman Show...

The one thing that you can say about the federalists is that they were optimistic. They truly hoped that; truly believed that, Americans would see it for what it was and grasp their liberties firmly and protect them for generations yet to come. 

The Anti-Federalists weren't quite so rosy in their outlook. While some were firebrands and dedicated to the idea of State Sovereignty and Confederation, more of them were pragmatic and understood that things had to be changed. But was the proposed Constitution the best way to make that change?

Perhaps the most lucid and well-spoken of the Anti-federalist was an anonymous writer who went by the pen name "The Federal Farmer." his writings, which began this week in 1787, were a measured consideration of the proposed government. In fact, of the three possible forms of government that he saw for the nation, the proposed Constitution probably made the most sense. 

But that didn't mean that there weren't some potential problems that, whoever he was, could foresee...

Three weeks after the convention ends, the first of the many letters debating the proposed Constitution appears in published newspapers. The discussion will revolve around whether the Nation should remain as it is, a confederation of thirteen sovereign republics, or if it should move to a single central government. 

Already dividing lines are being drawn between those who favor the new Constitution and those who fear that it goes too far and takes too much away from the individual States.

By this point, virtually every newspaper in the country has printed a copy of the proposed Constitution, allowing every citizen to read it or at least hear it, and to discuss it among themselves. This is the moment when every man will have to decide for himself under what impressions he will act. 

For this first, and perhaps only time in all of history, the People are asked to decide their form of government, not just who will be the leaders. 

And the debates, are just beginning.

After recent school shootings, the proposal was made to raise the age for purchasing guns to twenty-one. in at least two cases, challenges were filed and in at least one of those, the challenge was upheld as the practice was seen as being in violation of equal protection and various State laws. 

So now we move to the state of Louisiana. The Legislature there, deeply concerned about the well-being of young and vulnerable women who dance with exposed breasts and/or buttocks for money from patrons who must remain at least three feet away, must be twenty-one years of age in order to do so. 

Naturally, the dancers who performed with exposed breasts and/or buttocks and who were under 21 sued in Federal Court. They are claiming that the law would violate their constitutional right to dance with breasts and/or buttocks exposed for money from patrons who must be at least three feet away. 

Now look, there are a whole lot of issues here that we could get into, and perhaps we will tomorrow. But for now, the question is simply this: does a law restricting the right to dance with breasts and/or buttocks exposed to twenty-one and older meet muster Constitutionally? It's not quite as clear cut as you might think, and it's what we talk about today on Constitution Thursday...