Constitution Thursday

In recent days, we have watched the debate over the nomination of a Supreme Court Justice. While the debate rages around things such as abortion, gay rights, women's rights, and so forth, the single fact remains that these things are rarely the meat and potatoes of what the Supreme Court does. Almost never are those things noticed until after the fact. indeed, very few (if any) questions of any nominee relate to them or to the understanding of how those things might end up affecting our day to day lives.

In 1820, a Pennsylvania man was found guilty of violating a State Law that required him to report for duty as a part of the militia during the War of 1812. He had refused service in the Pennsylvania Militia, and now it was time for the state to lower the boom. But the Feds also wanted their pound of flesh, because they believed that the Congress has powers over the Militia, and this man has spurned those laws. The Court ruled that the 5th Amendment didn't apply because (a) there was no incorporation and (b) the Constitution had not limited states from passing laws to punish people for failing to show up for the Militia and (c) Congress had passed such laws.

Back in 1922, a man was found guilty in the State of Washington of violating the state's prohibition against the production and distribution of alcoholic beverages. Then the fed stepped in and after he was convicted charged him with violations of the Volstead Act, the national law against the production and distribution of alcoholic beverages. He protested, claiming that under the 5th Amendment this amounted to double jeopardy. The Court said that there were two systems of sovereignty, State and Federal. As a citizen, we voluntarily accept that we live under both sovereigns and therefore we can be punished by both for the same act, just not twice by either.

And in 2015, a man was stopped for having a headlamp out in his car. The officer who stopped him smelled marijuana and found the driver was a convicted felon, so he searched the car, finding drugs and a 9mm handgun. The man (Gamble) does not deny this. The state convicted him of being a felon in possession of a handgun, and then the Feds also charged him with the same crime. And the Supreme Court has been asked, once again, to consider whether or not the Dual Sovereignty Doctrine is Constitutional.

When the USS Caine, a fictional minesweeper in WWII, was in danger of foundering in a hurricane, the Executive Offer, with the encouragement of the Wardroom, relieved the CO and "saved" the ship. It was a clear cut case of mutiny, and as such a Court Martial would be required to resolve the matter. In the climactic moment, it becomes clear that though the Captain may be in trouble, the XO acted improperly and precipitously. He was not well advised and the Wardroom failed in its primary duty. 

The interesting thing is that the movie itself, and specifically was in the minds of the commission that gathered to consider the words of what would become the 25th Amendment to the US Constitution. 

Today you can buy a "25/45" T-shirt and you'll hear Talking Heads debating the whole idea of how the 25th Amendment could be used to rid the country of the hated Trump. What was once considered a ridiculous idea has gained enough steam that Vice President Pence had to specifically deny that he had conversations with the Cabinet regarding the implementation of the 25th. In fact, many people still believe that he wrote the infamous New York Times Op-Ed as the opening shot of a 25th coup d'état. 

The problem is that the 25th was never intended to get rid of a President because some part of the country doesn't like the way he parts his hair...

One of the myths about the Constitution is that The Federalist Papers are a commentary, like Matthew Henry's, on the Constitution. They are not. They are simply and only a passionate written argument in favor of the ratification of the Constitution. 

That doesn't mean that they are not without merit and not without lessons for us today. They do give us insight into the understanding of the document which the Framers - at least those in favor of ratification - held of the government plan which they had created.

To that end, they are not only important, but they are required study for anyone who seeks a serious understanding of the Constitution of The United States. 

Which is why my ears picked up when I heard questions directed to Judge Kavanaugh yesterday regarding not just his personal favorite Federalist Papers (which did not include my personal favorite), but also his explanation of how Federalist 51 has impacted his personal Judicial philosophy.

Federalist 51, famous for one particular phrase, reminds us of some very important ideas about the structure of our Government, many of which have been diluted and dissipated through the years. But Judge Kavanaugh has been very active during his time on the Federal bench in opposing that dilution. A fact that has not gone unnoticed by those paying close attention to the things that really matter rather than those protesting the things that really don't matter as much as they would want them to matter. 

The bigger question that should come out of Judge Kavanah's answer is why is it that we have gotten so far away from the ideas and constructs that were established? And why then is it such a problem for some that a Justice Kavanaugh looks like he would seek a return to the separation of powers and unbalanced system the Framers intended?

Ay, there's the rub...

James Madison once wrote that "A Government is instituted to protect property of every sort...This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own." 

So what happens when a government, other then the national government, that is, decides that it wants what you have, even if they claim it's for a "public benefit?"

In the Township of Scott, Pennsylvania, a nice old lady - she's even named Rose Mary Knick -  owns a cute place on the edge of town that has a bit of property around it that - this is important - she owns. 

(Commence menacing music here)

The Township loves its history and it wants to share it - all of it - with pretty much anybody who happens to saunter through the Township. And for reasons that will soon become the focal point of our discussion, it has decided that some of that history is on little old Rose Mary's property. 

So what's a Township to do?

You might think that they would sit down with Rose Mary and have a nice pleasant conversation - probably over tea and milk and homemade cookies that she would make for the occasion - about the importance of this particular piece (or pieces) of history that might be on her land and work out a way that would benefit the Township, Rose Mary Knick and all the history loving wanderers who go gallivanting through the Township of Scott. 

Yeah... you might think that. 

So of course, that isn't what the Township of Scott, Pennsylvania decided to do...

And it's our case for this week on Constitution Thursday, somewhat tongue in cheek titled: Grandma's Haunted History...

A few years ago there was a wonderful show on TV, "How the States Got Their Shapes." Host Brian Unger takes you around the country and looks at.... well... how the states got their shapes. It's all based on the book of the same name (HERE). For what it's worth, the show is better than the book, but the information is the same.

At any rate, why does any of that matter?

Yesterday, the California Supreme Court ruled that the much-heralded and discussed Prop 9, a vote by the people on whether or not to separate California into three States should be removed from the ballot because it "might" violate the States Constitution.

Now... whether it does or not we have to ask some questions about this whole deal.

Plausibly live, It's Constitution Thursday on The Dave Bowman Show!

On Constitution Thursday we delve into the statement by the current President to the effect that he could pardon himself, were such a pardon were actually needed.

It isn't as clear-cut as you might want it to be - from a Constitutional viewpoint. But I would think that from a political viewpoint, it would create immense problems. Great problems. The biggest and best problems we've ever seen in this country.

And that would be, of course, just the beginning...

Constitution Thursday looks at the "free exercise" or religion. From Jefferson's Danbury Letter to a ruling from the 6th Circuit, how far can the Government go to limit 'the free exercise" of belief?   

If a Church decides to open a cafeteria to serve the public, using members of the congregation as staff for the express purpose of proselytizing, can the government claim that it'a violation of labor laws?

In a ruling that surprised absolutely nobody - with the possible exception of the President himself - the Southern District of New York ruled that the President cannot block people on Twitter.

Shocker.

Let's spend Constitution Thursday digging into this and seeing what other things it might end up impacting...

It's Constitution Thursday, and we take a look at Federalism and its evolution in The United States under the Constitution. What seemed at first to be a pretty clear distinction between state and federal powers, has slowly morphed into a whole lot more Federal and less State. And the journey to get there started long before the Progressive era. In fact, it really started the day after the Constitution was ratified. 

We'll take a short look at two cases in the news this week. One of them went before the Court and the law passed by Congress was stuck down, allowing for sports Betting to be opened up across the nation. It's the opinion in that case that has Progressives excited and one of them even exclaiming that "Federalism can be good for liberals!"

The other deals with the laws being debated by Congress as we speak to make any attack on a Police Officer a Federal Crime. who would oppose that? After all, we "support" Law enforcement, right? 

Or do we support and defend the Constitution?

Constitution Thursday - The repeal of the 18th Amendment and the passing of the 21st