- Comment by on September 25, 2011 at 8:15amThe Constitution of 1787 provides spending limits. It authorizes Congress to spend money on - for the Country at Large:Salaries of revenue agents who collect taxes (excise taxes & import taxes)An engraver who coins money & people to operate the furnaces & such where they melt the gold & silver and shape it into coins. Perhaps the salaries of some guards.Some federal prosecutors to prosecute those very FEW crimes of federal cognizance.A patent and copyright office.Salaries of federal judges.Raise and support our military.Salaries of Representatives, Senators, federal judges, and those in the executive branch.Possibly the salaries of postmasters & mail carriers (haven't researched this to see how much was to be funded with the purchase of stamps)To pay for and maintain "post roads".I probably left out some things of authorized expenditure for the Country at Large, but you get the idea: Congress' spending power is limited by its enumerated powers.Amendments to the Constitution repeal everything in the existing Constitution which is inconsistent with the Amendment. It is not necessary that an Amendment expressly say so! E.g., the 17th Amendment did not say that it repealed Art. I, Sec. 3, clause 1. It just set forth the new method of electing Senators.Likewise, the BBA doesn't say it repeals the enumerated powers limitation on spending. It just sets forth a new "limitation" - i.e., spending will be "limited" by the amount of revenue the federal government brings in. Or by a percentage of the GDP.I give you a grocery list and say, Please get 2 # of carrots, 5# of apples, a head of cabbage, 2 # of brown rice, and a chicken. Don't get anything else! [the 10th Amendment]. Your spending powers are "enumerated" and restricted to the items listed.Or I say, we brought in $2,500 this month. You can spend that on groceries.Do you see?Don't ever be shy about asking Questions.
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- Comment by on September 27, 2011 at 11:03amI read somewhere recently of the distinctions between the ostensible purpose of proposals and the real purpose. The ostensible purpose is put out to deceive us. But the originators are well aware of the real purpose.I have no doubt that establishment Republicans like Sen. Mike Lee (R. Utah) know exactly what the real purpose of the BBA is. But they lie about it to deceive us. I expect that Sean Hannity & Glen Beck have NO IDEA what the real purpose of the BBA is. They are among the deceived.But I think it is impossible for any lawyer who has done litigation and read U.S. Supreme Court opinions to fail to understand the real purpose of the BBA! But perhaps I overestimate the thinking abilities of the members of my profession. Re the Mark Levin's and Eric Erickson's of our Country: Are they wolves in sheeps' clothing or are they stupid? I just don't know.
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- Comment by on September 29, 2011 at 8:01amDavid, your example of the theft of intellectual property bill is excellent. The real purpose is to empower the federal government to shut down web sites they don't like.In proposed bills and Amendments to the Constitution, there is no such thing as unintended consequences. There are only Manipulators and the Manipulated. The Manipulated get manipulated b/c they do not look under the names. In all proposed bills, ask, "What new power does this purport to grant to the federal government? Is that new power one of the enumerated powers?"Re Gov. Purdue (D. N. Carolina): What provisions of Our Constitution does her proposal violate?The people of N. Carolina should check their State recall laws!
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- Comment by on October 3, 2011 at 2:41pmSomeone asked me if martial law is constitutional. Here is my answer:No, it is not constitutional. Under martial law, the military takes over and replaces the civil governments (city, county, state, etc.). That is the key - the replacement of the civil governments. Martial law is unlawful & unconstitutional to the core.If you and I form a band with others and we go blow up some federal building, and are shooting federal employees, the federal government may properly send in the U. S. Marshals to stop us. But that is not martial law - that is a police action - and a lawful one on the part of the federal government. The local city police and the Sheriff's deputies for the Country in which the federal building is located are still in place and functioning and could properly intervene to stop us. The U.S. Marshals also would have jurisdiction b/c it is a federal building. [They would not have jurisdiction if we blew up a State building.]Habeas Corpus applies when someone is being unlawfully detained by the authorities. E.g., if you are being held by State or federal authorities and haven't been charged! They have to charge you or release you! That's what a petition for Writ of habeas corpus does - it requires the authorities holding you to show to the satisfaction of the Court WHY they are holding you. If they can't convince the judge, then the judge orders you released.Yes, Art. I, Sec. 8, clause 15, & Art. I, Sec. 9, clause 2, mention the federal government's power to "suppress Insurrections and repel Invasions" - but THAT DOES NOT AUTHORIZE THE FEDERAL GOVERNMENT TO USE THE MILITARY TO REPLACE CITY, COUNTY OR STATE GOVERNMENTS! If the Indonesian attempts to cancel elections or to impose martial law, then I trust that every he-man & she-woman in this Country knows where their duty lies.
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- Comment by on October 3, 2011 at 7:38pmIn Federalist No. 84 (end of 4th para), Hamilton says:A Writ of Habeas Corpus has reference to criminal law. The idea is just as Blackstone & Hamilton say - to prevent the civil authorities from imprisoning people without charging them, without trial, just keeping them locked away. So, if the government does that to you - holds you without charging you - your lawyer files a Petition for Writ of Habeas Corpus in court. The authorities must then prove to the court that they have a proper reason to hold you: You are looney tunes and a danger to yourself or others and they are waiting for the psychiatrist to examine you; or they are waiting for such & such evidence and for such & such a reason, they need to hold you. Then the judge decides. If the judge grants your lawyer's Petition, the judge issues a Writ Ordering the authorities to release you.When would it be proper to suspend it? The Federalist Papers don't give examples of when suspension would be proper, and former criminal defense lawyers are particularly leery of suspending it; but in cases of widespread "rebellion" or "invasion" with violence - mob action - invasion by those Mexicans who want the S.W. States turned over to Mexico (so the people there can enjoy the glories of the Mexican culture) - widespread invasion of Muslims talking about jihad, etc. - i.e., situations where it is not possible to handle the cases on an individual basis, but the "public Safety" requires that people be confined, then suspension of habeas corpus would be appropriate. In this connection, under the Hague & Geneva Conventions, prisoners of war may properly be held without charging them for the duration of hostilities. It is a recognition that it is barbaric to kill unarmed prisoners of war - but it is idiotic to release them as long as the war is on.I seem to recall that that tyrant Lincoln suspended habeas corpus, but don't know if others have since then. I haven't studied FDR's incarceration of the American citizens of Japanese descent during WWII. If he too suspended habeas corpus, then it was improper b/c those American citizens posed no threat and hence the "public Safety" did not require it. (Art. I, Sec. 9, cl. 2)
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- Comment by on October 4, 2011 at 10:52pm100% correct, Ronald! For the reasons you give, plus the involvement of 3 of the leading intellectuals of the time (Hamilton, Madison, & Jay), the Federalist Papers were recognized from the beginning as authoritative on the genuine meaning of Our Constitution.
And in 1825, at a meeting of the Board of Visitors of the University of Virginia, attended by James Madison & Thomas Jefferson, the following was resolved with respect to selecting the text books for the law school:
Here is the link: http://rotunda.upress.virginia.edu/founders/default.xqy?keys=FOEA-p...
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- Comment by on October 4, 2011 at 11:06pmMark, You bring up a perennial problem: The constant barrage of misinformation put out by people who think they are experts but don't know what they are talking about. The half who refuse to learn b/c they think they already know are the un-teachables.
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- PH (and by extension Mark): " ....misinformation...think they are experts and don't know..."'Tis a fault that nearly all of us are guilty of, at times! As Mark correctly points out, an erroneous conclusion often occurs by focusing on a clause, while ignoring modifiers. We often lack the time, knowledge and/or, frankly, the acuity to fully integrate the entirety of the concepts involved, quickly.We tend to run with what little info we have garnered, at best. We try.Much worse, of course, are those who run with NO References! Bald-faced opinion only!For example, I wove this document and the underlying resolution several times into a heated discussion about the al-Awlaki incident. Of the nearly 1,000 replies, only 1 used it, and none critiqued it!I am sometimes appalled by the lack of study, lack of depth. Reading is just too much work for many, I guess!
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- Comment by on October 5, 2011 at 8:00amNote the following "authorities" for the meaning of the Constitution (reference the President's war powers) cited by John C. Yoo in his Conclusion:I.e., the Constitution has no objective fixed meaning. Instead, we go by how past administrations have interpreted it, how the courts have interpreted it, what the executive branch has done in the past, and by what Congress has approved.I.e., the Constitution means whatever the people in power have said it means.John C. Yoo is a prime example of the moral & intellectual ROT which infects the "intelligentsia" of our Country. His method of "interpreting" the Constitution is the prevailing method of our time. 99.99999% of American lawyers (including Mark Levin) "interpret" the Constitution the same way. By what we have been doing.How convenient! The Standard of Conduct to which you must adhere is whatever you have been doing. Do you see?And then, at the other end of the spectrum, we have the untrained "experts" of whom Mark speaks.God help us. We are too stupid and filled with pride to help ourselves.Thank you, Vern. That was most informative.
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- Comment by on October 5, 2011 at 10:00amMy dear Lady, I learn something every day. And am never too proud to say I don't know. That's why I asked Morry Markovitz to address monetary theory. The key is to have a humble willingness to say, "I don't know". One can say that and the sky will NOT fall down.
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- Comment by on October 5, 2011 at 7:35pmGood question, Mark, and I see why you ask it. While 3 of the Federalist Papers discuss Art. V, I didn't see any discussion of the President's getting involved in the process.I am confident that the President has nothing to do with amendments to the Constitution. The 3 Federalist Papers make it clear that Amendments is primarily a decision to be made by the States. Remember, the States are the Sovereign Members of The Federation, who, thru the People of each State, ordained and established The Constitution in the first place. So the federal government is merely the "creature" of The People (Federalist No. 33, 5th para, Hamilton).The subject of Art. I, Sec. 7 is "bills". The last clause of Sec. 7 mentions "orders", "resolutions" and "votes", but I don't think that includes proposed amendments. Congress issues "orders" in connection with many things, e.g., the various hearings they conduct; and they issue "resolutions" about patriotic matters, etc. A proposed Amendment is not a "bill" or an "order" or a "resolution".Note that two thirds of each House can override a presidential veto of a bill (Art. I, Sec.7, cl. 3).Article V requires [when proposed amendments are initiated by Congress] that two thirds of each House propose the amendment. This is important: A proposed amendment can't get thru Congress w/o the requisite number of votes to override a presidential veto. So there would be no point in sending it to the President - he couldn't stop it no matter what.Consider impeachments: Art. I, Sec. 3, cl. 6 requires two thirds of the Senators present to convict. And we know impeachments don't go thru the executive branch! People in the executive branch are often proper objects of impeachment [especially now]. Impeachment is the sole and exclusive prerogative of Congress.Finally, Art. V doesn't mention presidential involvement.
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- Comment by on October 5, 2011 at 10:33pmI am not an expert in parliamentary procedure, but think "joint resolution" signifies that the same wording is introduced in both Houses as opposed to a House version and a Senate version which must later be reconciled if they each pass their respective Houses. For an amendment proposed by Congress, the wording would have to be the same in both Houses. If I were drafting an amendment to be proposed by Congress to the several States [which I would never do except to repeal at least some of the earlier ill-advised amendments], I would call it a "joint resolution" for that reason. Yes, the two thirds vote requirement (plus the example of impeachment) does make it conclusive.
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