Constitution Thursday

I have long held that he Anti-Federalist of 1788 is the ideological grandfather of today’s libertarian*. Many of the same issues of today find a distant echo in the complaints of the Anti-Federalists.

In those distant echo’s of the past are many ideas and knowledge points which both the Federalist and Anti-Federalist not only knew, but understood. Many of the things that would have stood out to the readers and listeners of 1788 were familiar to them, but to our modern ears and eyes, either make no sense or we simply do not even recognize them as meaningful.

Let’s start with the names.

The Federalists papers, written by James Madison, Alexander Hamilton and John Jay, signed their papers with the nom de plume “Publius.” There were, of course, multiple reasons for this. The the use of a fictitious name removed the built in prejudice from the reader, either for or against the actual author. The name “Publius” was partially chosen to represent the idea, specifically “of the people,” reflecting the Federalist position that “We the People” had created and would operate the Constitution were it ratified. The name would have been seen as a bold claim that the people themselves were sharing this opinion of things. But there is actually a deeper meaning to the name.

For the same reasons, the Anti-Federalists adopted a variety of names and identities: Cato, John DeWitt, the Pennsylvania Minority, the Federal Farmer, and of course, our focus, Brutus. Unlike the Federalist Papers, some of the authors we now know, but many of them at which we are still, more than two centuries later, simply guessing.

Today we read these many names and arguments and we have lost the understanding that readers of both sides would have had in 1788. To gain back some of that understanding, we have to travel back in time to the Rome and the foundation of the Republic. It is here that we find two men, Publius Valerius Policola and Lucius Junius Brutus. More than two thousand years later these two men would inspire the writers on both sides of the ratification debate to proclaim their positions and beliefs.

In 1788, both sides and their audiences knew this history and what was being said…

*When I use the term “libertarian,” I absolutely 100% do not refer to the Libertarian Party. While the party, as such, has some positions in which I am full agreement, the basic philosophy of the party is not compatible with my own beliefs. So to be clear, I will often use the term “libertarian,” but in no way, shape or form, will I be referring to the LP, which does not have sole possession of the term.

A couple of weeks ago, the administration issued its long-expected Executive Order which purports to "protect free speech” on social media.

Now, for many of us, the idea of forcing a private business to allow a takeover by political speech which it either does not support or doesn’t like, to be something of an anathema.

Oddly enough, buried deep in the EO is a citation to a Supreme Court case that Conservatives have long hated because it seems to eviscerate private property rights and allow the taking of private property as banned by the 5th Amendment.

So why is a President who Conservatives and say they like, pushing a ruling that they hate in order to get what he wants, which is to be allowed to Tweet without any limits or restraints on a platform owned by a private business?

A recent Supreme Court decision (Bostock) has many on the Political right proclaiming the death of the conservative movement. Their reasoning is rooted in a combination of dismay and what has to be some COVID inflicted loss of perspective, but in either case, there is a great deal of anger and gnashing of teeth at Justice Neil Gorsuch, who not that long ago was the darling of the Conservative Right.

This ruling by the Supreme Court has resulted in a number of Facebook posts, one of which caught my eye because it came from a friend who I regard as wise, educated, and having a good understanding of how things work. which brings me back to the same COVID inflicted loss of perspective, and reminded me that it might be time to talk about Article V and how Congress, at least used to, regularly "overrules” the Supreme Court.

One of the life lessons that pretty much everybody learns, sooner or later, is that there is a difference between what you can do and what you should do. In the words of the illustrious Dr. Malcolm, "You were so busy thinking about whether you could that you didn’t stop to think about whether or not you should.”

In the time of COVID, the Constitution has become a focal point for debates and argument which have now spilled over into other areas of civil action and protest. But the question remains about whether or not things that are permissible are in fact, beneficial?

The President, tweeting fiercely, announces that he wants something done. In this case, he is threatening to deploy the military to stop the riots.

Can he do that? Well… the answer is yes, he can.

Should he do that? That is an answer that is not quite as clear, is it?

Barely a week has passed since religious conservatives on the Atlantic Coast were celebrating their victory in the North Carolina District Court, overturning the Governors Executive Order’s ban on religious gatherings, calling it a violating of the free exercise clause of the 1st Amendment. Within hours of that ruling, the 9th Circuit Court met to decide whether a San Diego District Judges denial of an almost identical request for a TRO in California should be reconsidered.

By a two to one margin, the panel upheld the District Judges denial for a TRO and let stand Governor Newsome’s order that banned gatherings for religious services by large numbers that violate social distancing rules. The Church has appealed to the Supreme Court, which sets up an interesting set of potential circumstances.

To understand the potential arguments, we have to go back in time, first to 1949, when a Catholic Priest gave a speech to some eight hundred members of the Christians Veterans of America. Another sixteen-hundred people were also there, and they did not like what he was saying. This led to what many described as a riot, and led to a fierce discussion of what exactly is free speech and – more importantly – a full-on debate about the limits on the 1st Amendments protections.

Then we move to Hialeah, FL in 1993. There, the City Council heard testimony from various officials, including the Police Department Chaplain, calling a specific religious belief "offensive” and "un-American.” They then passed a city ordinance essentially banning the religious practice, which was subsequently upheld by the State Courts and the US District Courts. The Supreme Court, on the other hand, saw things differently.

And it was here that the 9th Circuit Panel looked when they considered whether or not to hear the appeal from Sough Bay United Pentecostal church vs Gavin Newsome. All of this leaves us with more questions than answers…

On May 21, 1702, Daniel Defoe, yes, *that* Daniel Dafoe, was arrested and imprisoned for his recently published pamphlet which, in keeping with Poe’s Law, failed to please the new Queen of England. This was not ancient history to the Framers of the Constitution, and they made sure that no one person could wield so much power that free expression of religion would become a punishable offense.

Over the years the idea of free expression was tested. Before incorporation, the Courts were content to allow laws that limited the idea. After incorporation, it became much more difficult for governments to limit the practice.

Now, in the time of the Constitution and the COVID, new stress is being placed on the 1st Amendments interpretation of free expression. Multiple States have found themselves embroiled in arguments over whether or not religious services can be held in person and in violation of Governor’s Executive Orders? Even here in the PACNORWEST, the Governor (and failed Presidential Candidate with 0% of the Polls) canceled a scheduled presser to announce some Phase II reopening plans because of recent Court cases over the issue of religious services.

We will focus on one in North Carolina, where a District Court Judge has given many people a rallying cry with his ruling in favor of a temporary restraining order on that Governor’s order about religious gatherings. And we ask the question: if incorporation came about because of the abuses of the States once before, will it happen again?

In the 17th Century, one man had to make a choice. Should he stick to his religious dogma and ignore his own observations and computation, or accept a new reality. As a scientist, he realized that he could not ignore reality. Because of his discoveries, because he was willing to accept that his precious dogma was incorrect, the world changed.

As we begin a new voyage into the universe of the US Constitution, we would be wise to keep in mind that much like Scripture, and two people can look at the identical words on a page and come to a polar opposite understanding. We must steel ourselves to study with a willingness to understand that a different point of view does not mean that another person is our enemy. it means that they have a different experience in life, a different culture or environment. It means that we have an opportunity to learn something new.

And, like Kepler, we must use that new data to see if our dogmas are in line with what we observe. If they are, we strengthen our understanding. if they are not, then we have the opportunity to make a change. One based not on passions or emotions, but on truths.

I have noticed two odd things about the whole COVID-19. Neither of them bode well for liberty in the future.   First, Republicans have become Keynesian economic believers. That's bad enough, but the other thing is even worse.  There are some Constitutional arguments against the response, but some of the states seem to have found the ironclad Constitutional authorization to impose a State of Emergency which comes with some rather remarkable powers and dangers.   

But there is a very big potential downside to the expansion of those powers...

Regardless of how you look at it, impeachment is a political act. The punishment for impeachment is not jail, or a fine or even having to wear an ankle monitor. It is simply the removal of a person from the position or office of trust which they held. They could be charged criminally for their acts after removal, but until 1987, no person who held office or trust under the United States who had been impeached was ever charged criminally let alone convicted of an actual criminal offense.  

The Constitution seems clear as to what justifies impeachment: “treason, bribery, or other high crimes and misdemeanors,” is the actual verbiage, although most Americans seem to only know about the last two. Frankly, that is the main reason that the language has shifted from “quid pro quo” to “bribery.” 

 At the end of the day, impeachment has always been about politics, because politics is power.

I know that most people find it odd, but I did spend a good portion of my life in the theological field. At the end of the day, what drove me out was the seminal change from people who sought knowledge and discussed things into people who depended upon inductive reasoning to determine their beliefs and refused to learn anything outside of what they had already decided was their “truth.” In the case of my own denomination of birth, we went from a doctrinal text that delved into the depths of theology to a comic book style “What We Believe.” The dumbing down of theology and teaching is what – in my opinion (and others) has led to the decline of faith in our country. It’s too easy to learn and so little effort is put into it. It was a major factor in my own path to Judaism.  

Socrates said that the beginning of wisdom is realizing what you don’t know. When I started on this voyage of Constitution Thursday, it was eye-opening how much I simply did not know. It’s surprising to me that even ten years later, I feel like I am still in Constitution 101.  

So when a “Professor of Government” at a large state-funded university in a “Conservative” State writes a major article claiming that the Constitution “is the problem,” I am left to wonder if it really is, or if this is just a continued dumb down of knowledge and dependence upon inductive reasoning?

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...

While Virginia and New York debate and eventually ratify, the issue is in doubt in North Carolina. The Federalists there have an unusual idea. But they also know that they are very badly outnumbered. Realizing that they are most likely going to lose the vote, they decide to take a longer view of things.

New York Pt 2

While Virginia and New York debate and eventually ratify, the issue is in doubt in North Carolina. The Federalists there have an unusual idea. But they also know that they are very badly outnumbered. Realizing that they are most likely going to lose the vote, they decide to take a longer view of things.

Benjamin Harrison barely moves the needle on famous Presidents. What most people know of him are two things. First, his Grandfather was a President. Second, he caused one of the greatest jokes on Archer of all time. But even today, his actions vis-a-vis the Constitution continue to resonate. What else is new, am I right?

By June of 1788, ten States have ratified the proposed Constitution. While the technicalities of Article IX have been met, most people understand that the reality is that for the Union to survive, it must be unanimous. Or at least everybody except Rhode Island, which we will deal with separately. 

New York is next up on the clock, and already the sniping between the Federalists, led by Alexander Hamilton, and the longtime Governor of the State, George Clinton (a Revolutionary War General and close friend of Washington's) has become both intense and deeply personal. Hamilton, unlike the musical, is deeply connected to the wealthy landowning elites, while Clinton is much more of an introspective "man of the people." His policies have endeared him to the Middle Class, while the wealthy landowners (Hamilton) have been cut out of New York's spoils.  

Of all of the States, New York is virtually the only one that has - because of Clinton's economic policies - emerged from the depression of 1780 in good shape. In fact, the State Treasury has over $3 Million (in 1788 dollars) in surplus. Clinton is wisely using this to improve New York's economy and - of course - keep the votes of the middle and lower classes. Hamilton, who married the daughter of the man Clinton upset in the 1777 Gubernatorial election, opposes the policies that keep New York's money in New York and not allowing Congress to take over the impost (tax) money that New York is collecting. In fact, at one point New York agrees, but petulant Rhode Island torpedoes the deal by refusing to agree. Of course.  

More than anyone, it is these two men, Hamilton, and Clinton, who will face off over the Constitution. Clinton will become the very embodiment - in fact, he is the man for whom the term is coined - of Anti-Federalist. He is not an anti-nationalist. He believes strongly in the Union and in liberty. But he opposes ratification. Hamilton is co-writing the Federalist Papers.  When everything is said and done, One of them will become a two time Vice-President. The other will become a controversial figure and the centerpiece of rewritten history...

Virginia Pt 2

Jay Leno recently said that he doesn’t miss Late Night TV because “everybody has to know your politics.” In 1788 Virginia, everybody knew Patrick Henry’s politics. Everybody knew James Madison’s politics, and Edmund Randolph and George Mason’s even Judge Edmund Pendelton’s.  I guess it’s what happened after everybody knew that really makes the difference.

In Maryland, a High school student in a Social Studies Class has a major issue with one of the class assignments. Her father tells her to refuse to complete it and then sues the school for establishing a religion. After all, goes the reasoning, schools cannot force a student to learn about another religion, right?

When a fellow named gamble, who was a convicted felon, was pulled over for a bad headlight, nobody was thinking to themselves, “Hey, would this have any effect on the Paul Manafort case?” Now they are, but the general feeling is that it won’t have any effect. Why not? Because no matter how hard you try, English Common Law prior to 1868 is not US Law after 1868. What else is new, am I right?

The City of Los Angeles passed an ordinance that requires all contractors to "disclose" all of their contacts and sponsorships (whatever that means) with the National Rifle Association. In Delaware, a man wants to apply to be a Judge on the State Bench. But, Delaware has a law that says that he is not qualified to be a Judge. Why not? Because he chooses to not associate with certain groups.  

At the end of the day, the real question is why do governments continue to pass laws that they KNOW are not Constitutional. These Governments pay (with tax dollars) for legal advice, so it's not at all possible that they don't know this.  

But even were we to be charitable and assume (yes, I know what it means) that they don't know, why do they keep proposing and passing laws that restrict liberty?

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. – ARTICLE I, SECTION 9, CLAUSE 2

In Alabama, a man with a long record of violent criminal activity found himself on trial for armed robbery. The trial lasted two days and seemed pretty much slam dunk for the government. Then the jury began to deliberate. And deliberate.

After three hours, they sent a note to the Judge letting him know that they were deadlocked and unlikely to reach a unanimous verdict. after some extensive back and forth, there was one holdout. The Judge decided to take action. eighteen minutes later the Jury returned a unanimous guilty verdict.

And on appeal, the 11th Circuit, led by the brilliant Judge Ed Crane, overturned the conviction and granted the man’s habeas corpus demand.

Why?

To answer that you have to go back to Article 1 Section 9 and then back to 1670. A man named William Penn (yes, *that* William Penn) decided to push the limits of English law and defy the Crown. Of course, he was arrested and put on "tryal” in the Old Bailey.

What happened next is why Judge Ed Crane granted the motion for habeas relief in an Alabama Armed robbery case in 2019…

In Washington, D.C., the shutdown has paralyzed parts of the government. Meanwhile, business and life go on for commercial enterprises, including the making and selling of Beer.

But (insert ominous music here) the government is closed and cannot be bothered to regulate the commercial free speech that it has decreed is required in order for the Beer Brewers to label and sell their product.

So… if the government is required to approve speech, is it really free speech?

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...

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...

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.