Constitution Thursday

As the debates rolled on, the nation considered many elements of the proposed Constitution. In Rhode Island, there was grave concern over the idea that the State would not be able to print its own paper currency. In Virginia, the Kentucky Counties worried about the navigational rights on the Mississippi River. But nearly everyone agreed on one issue - the idea that if the nation went to war, it would be stronger united than not.

On April 6, 1917, Congress gathered to vote on whether or not the United States should declare war on Imperial Germany. Four days earlier President Woodrow Wilson had made it clear that the United States was needed and ready for the fight against an evil and depraved monarchy that chose war over peace and threatened the entire world. But, he also made he it clear, that it would not be, could not be, his decision alone to send the US into World War I.

Despite the changes in the world since 1787, one thing remained the same. It was that one thing that the Framers had in their prescience foreseen: that no one person should ever be allowed to take the US to war.

Imagine for the moment that you are living in Small Town, USA. Your life is pretty normal and while there are things about your life that you wouldn't want people to know, you aren't a pervert or a criminal. You're just an average person when it comes to your private life and your online activities.

Maybe you have a friend, his name is... oh let's just call him John. John Q. Public. He lives in your town and runs his own contracting business. Heck, maybe you've even hired him once or twice. Like you, he has a bank account and a line of credit for his business. He also likes to travel, having gone to Europe last year. It's something you'd like to do, but you're just too busy.

One afternoon, there is a knock at your door. It's the local Police and they have a search warrant.

A search warrant for your computer. Signed by a local Judge, they want your search engine history. All of it. They have no reason to believe that you did what they are investigating, but they have convinced the Judge that if they can just look at everybody's computer and search engine history, they can find out who did do whatever it is that they are investigating.

Now again, you've done nothing wrong. Well... maybe you're a little weird and all, but what you search for is your business after all and not my place to judge. But you've committed no crime and there is no reason whatsoever to suspect that might have. But here at your door stands a police officer with a warrant for your search engine history.

By the by, as you're standing there, you notice that across the street, another Officer with another warrant is knocking on that sweet old lady's door. And a couple of doors down the Pastors house has yet another Cop with a warrant. In fact, you notice that every house has a police officer with a warrant knocking on the door.

Never happen, Dave, you might be saying. First off the Cops got better things to do and nobody would be that silly and no Judge would ever approve such a warrant in the first place.

That's what you would tell me, right? Right?????

In 44bce, following the death of Julius Cæsar, Mark Anthony wasn't really impressing people in Rome with his leadership and management. Despite his inspiring speech at Cæsars funeral pyre, he was basically making a pigs breakfast of things.

Opposing him was Cicero. Here was a Constitutionalist, a leader, and a man of words. And it was to words which Cicero turned in his very public condemnation and criticism of Anthony. He delivered a series of fourteen speeches, known as the Philippics, in which he rips Anthony for everything from his management to his dalliances with women (even one beneath his station) and even implies that Anthony might be, just possibly, at least once or maybe twice, homosexual. 

For his impertinence and speeches, Cicero will be killed by Anthony. Well... not Anthony himself, he was busy. But some of his men took Cicero's head and hands, and nailed them to a wall in Rome. 

There Anthony's current wife (#3 of at least 4, maybe 5), pulled out his tongue and drove a needle through it.

It seems that free speech criticizing the government was a risky business in the ancient Roman Republic. Anthony himself would also learn that lesson the hard way in a decade or so.

Which brings us to today, in a place about as different from Cicero's Rome as you can get, the halls of the State Capitol of Utah, located in downtown Salt Lake City. Utah, by the by, is a place with which I was once very familiar, having attended Ogden High School from where I graduated in May of 1981. It (Utah) was deeply influential on me and my views of religious freedoms and tolerance. You may ask how, but that is a discussion for another day, except to simply say that I was not a member of the primary religion in the State.

Here in the State Capitol of Utah, the Legislature has voted unanimously, to ban and to punish speech which it has said is "intended to harass" or even "frighten" or perhaps just "annoy" another person. But going a step further, Utah's lawmakers have decreed that such speech ONLINE is hereafter, henceforth, and forever banned. Don't even try it. Or else.

The Legislature says that this is to protect "the people" from being "harassed" online, but the interesting thing about the bill is that the "people" most likely to be involved in being talked about online are who exactly? Oh yeah... the Legislators themselves.

By the by, Utah is not the first State to try such a law. And while some protections are obvious, there is a further test which the Courts have already designed and applied, which - it appears - Utah hasn't heard about.

The first one is, of course, that pesky 1st Amendment thingee...

One of the things that I believe we (corporately, not you specifically) have lost connection with our history, is that our Framers and Founders were people, not demigods (Thomas Jefferson notwithstanding). In 1865, George Washington will be featured in a painting that is hung in the dome of the US Capitol, visible through the oculus of the dome. The painting portrays Washington being elevated to the status of a deity. The idea of portraying Washington as a god really does not offend most Americans. 

On occasion, it's worth our time to talk about and recall the realities of these men and women. They lived, they loved, they got mad, they had joys. They traveled and they discussed. They argued and they liked and disliked each other. They wrote copious letters to each other in flowery language that both complemented and occasionally berated each other. They saw things differently. Some favored one way, others favored another.

On March 30, 1788, six of the necessary nine States have ratified the Constitution. The debate is leaning towards Ratification in Maryland, and in South Carolina, the resistance of the country folk is being dealt with. In New Hampshire, the efforts to manipulate things by the Federalists are being indefatigably resisted by the anti-Federalists in Convention. New York has not gathered in convention as yet, but already more than seventy letters have been published as "The Federalist Papers" arguing for the ratification. Likewise, dozens of anti-ratification letters have been published. The debate, while hopeful, is still in doubt. There are many who believe that there will be a new United States that will not have all of the original States as a part.

In Bath, England, Abigail Adams begins her trip home to The United States after three years in Paris and London. 

Over the past six months, a couple from Alexandria, John and Elizabeth O'Conner, have been corresponding and even in early February, visiting the Washington's. Mr. O'Conner is a "barrister," from Ireland, who plans to write a topographical and geographical description of The United States. Elizabeth has opened a small school for girls in Alexandria.

At Mt. Vernon, George Washington sends a letter to Mr. O'Conner, thanking him for his kind words and invitation to a speech. A presentation on eloquence by Mr. O'Conner which Washington clearly had no intention of attending. Probably because he knows what the O'Conner's are really (probably) up to...

When we hear the term "muckraking," we almost automatically go in our heads to politicos and specifically those who "report" on politicians and their antics. There's a good reason why we associate the phrase that way. And much of it goes back to the 1st decade of the 20th Century when calls in earnest were coming from the media to chance how Senators would be elected.

In the early 1900s, President Theodore Roosevelt began to label those in the press who attacked him or the government as "muckrakers," a term he has borrowed from a book written in 1678 and well known to Christians even today, Pilgrim's Progress.

But it was over the US Senate that the muck-rakers, as they even began to call themselves, really began to strike a blow against what they perceived as government corruption and the failure of the US Senate. When William Randolph Hearst began to promote the attacks against the Senators such as Nelson Aldrich of Rhode Island, it became increasingly clear that facts were no longer relevant to the discussion.  Whether there was or was not any truth in the accusations or the stories of gridlock and failure by the States no longer matters. When one Senator was exposed as a corrupt and evil man, it reflected upon the entire body.

When what would become the 17th Amendment was first introduced, it faced an uphill battle. As time went by, and as more and more of the muck-rakers "uncovered" scandals and perceived injustices, it gained traction. In 1912 it would be adopted by Congress and in 1913 it would be ratified by the requisite number of States.

And in that lies the story of how the press can change the vision of the Framers and the US Constitution...

In 1788, Fishkill, New York, was a well known and important city, having once served as the Capitol of New York State. It was also the home of the largest supply depot of the Continental Army. And Fishkill had its own newspaper, The New York Packet, later known as Louden's New York Packet.

It was this newspaper, on Tuesday, February 19, 1788, that published another in a series of essays that were rapidly taking the country by storm. The essays were anonymous and while there was much speculation as to the authorship, only four or five people (not counting the writers themselves) in the entire nation could say with any certainty that they knew who the author - or authors - was. Even George Washington pretended to not know as he praised the essays and proclaimed, "Who is the author?" In fact, he had been directly told by the authors that they were in fact, the authors.

The Federalist Papers, as the essays had become known, were "the best argument" in favor of ratification for the new Constitution. They were directed at the people of New York, as the debate swirled about the State, but in fact, they reached the entire country. Published in bound volumes almost as soon as the ink dried, they became a prized possession of Americans from Maine to Georgia. Indeed they were a hit internationally as well. The French offered "honorary citizenship" to the authors, one of whom would later accept the honor.

For all their grandeur and importance in their day, they have lost a certain appeal to modern Americans. They are dismissed as "old ideas," and even in the 1860s some of the essays were... if not ignored, certainly given less priority because of who the author was. And it might surprise you which ones were relegated, given the state of things today.

That Tuesday morning, readers of the New York Packet found two of the letters, numbers 56 and 57. Addressing the concerns over the House of Representatives, the author outlined his beliefs and argued that the House would be something very special and dear to the people as the primary defense of their liberties.

For myself, it is Federalist #57 that speaks loudest. It is written, as we now know, by James Madison. And it is here that we find the answer to the questions so often asked today as to where things "went wrong." Madison and Hamilton knew and understood the dangers of politics and power against the liberty of the people. The argument of Federalist #57 is how to defend liberty against such incursions.

It remains my personal favorite of the Federalist Papers, and in it, I find a renewed belief that We the People choose our destiny.

Which is, after all, the very meaning of the word, Liberty.

On Monday, Judge Leonie Brinckema, a Federal Appeals Judge in Virginia, issued an injunction against President Trumps Immigration Executive Orders on the basis that they are in fact, a Muslim Ban.

The Government has argued that the doctrine of Plenary Powers over National Security and Immigration should make the Orders unreviewable. But can such power be given under the Constitution? If the answer is no, then can a statement made outside of the Orders by the President and his advisers be taken into account as to the intent of the orders?

If the answer is yes, are we prepared to accept a country where he sitting President has unchecked power which neither the Courts nor Congress can counterbalance?

It's a Valentine's Day Tuesday episode of Constitution Thursday!

Excessive bail shall not be required, nor excessive fines imposed... 8th Amendment

In recent days, members of the California State Senate and Assembly have made the reformation of the Bail system a "Legislative Priority" in the State. Their reasoning is that on any given day, 63% of the people held in the States Jails have not been convicted of any crime. They are simply awaiting trial and cannot - for a variety of reasons - make bail.

The Legislative argument goes that the main reason that people cannot make bail is twofold. First, that bail levels are set far too high in the State. Second is that the Bail system discriminates against those who are "poor," in favor of those who have money. So the solution that at least two other States have elected to employ is to eliminate Bail requirements for some "low level" crimes.

The history of Bail in The United States traces its origins to 1689 and the Glorious Revolution. And, with just a single word change since, has been a cornerstone of those rights which we have held dear, both as Englishmen and as Americans.

So is Bail really discriminatory? Or is there a bigger problem? Or any problem at all? And why hasn't the Supreme Court addressed it?

Today we look at Bail on Constitution Thursday.

July 4, 1788 - In Providence, the local Federalists have set up a giant barbecue to celebrate both the Independence Day holiday and to read aloud the proposed Constitution. There is little hope that Rhode Island will quickly ratify the Constitution, in fact, as of today, there hasn't been any move to even call for a convention to consider the document.

The anti-Federalists in Rhode Island aren't just opposed to the Constitution. They oppose virtually every idea to strengthen the Union. For the past few years, they have intentionally/unintentionally sabotaged the Articles of Confederation by using the power of the veto to stop any forward progress. It is in Rhode Island where the rampant use of State issued paper money has resulted in chaos and financial ruin to States and individuals trying to do business with Rhode Islanders

Now, as the few Federalists in Rhode Island gather to celebrate, William West, leader of the Country Party, decides to take action and make sure that the Providence Federalists understand that Rhode Island has no intention of ratifying the Constitution. He means to shut down their celebration and end once and for all the consideration of the Constitution in Rhode Island...

In the summer of 2016, the idea that an election could be "rigged" didn't really surprise anybody. At the same time, it also allowed Americans of all political stripes to act like Captain Renault and feign shock at the idea that American democracy could be so callously and easily manipulated.

New Hampshire was the first of the Colonies to establish a government independent of the Crown and to establish its own state Constitution.

In the Spring and Summer of 1788, New Hampshire has a unique opportunity. If she ratifies, she will become the Ninth Pillar, thus establishing the Constitution as the new government of The United States. But she also faces the same problem that South Carolina, Massachusetts, and other States have seen. That is, that the seaboard cities with their heavy mercantile class population support ratification, while the interior country folks are less enamored with the Constitution.

New Hampshire's problem is that her seaboard is tiny and heavily outnumbered by the country folk. So... if you happen to be an ardent Federalist in New Hampshire in the Spring of 1788, what do you do?

What do you do? Hmmm.....