An interesting Web Page

Things That Are Not In the U.S. Constitution:

* The Air Force
* Congressional Districts
* The Electoral College
* Executive Order
* Executive Privilege
* Freedom of Expression
* (Absolute) Freedom of Speech and Press
* "From each according to his ability..."
* God
* Immigration
* Impeachment means removal from office
* Innocent until proven guilty
* It's a free country
* Judicial Review
* Jury of Peers
* "Life, Liberty and the Pursuit of Happiness"
* Marriage
* Martial Law
* No taxation without representation
* Number of Justices in the Supreme Court
* "Of the people, by the people, for the people"
* Paper Money
* Political Parties
* Primary Elections
* Qualifications for Judges
* The right to privacy
* The right to travel
* The right to vote
* The separation of church and state
* The Separation of Powers Clause
* Slavery
* "We hold these truths to be self-evident"

I was looking up material on another topic, but these were particularly interesting to me.

Freedom of Expression

It is often said that one of the rights protected by the 1st Amendment is the freedom of expression. This site, in fact, uses that term in its quick description of the amendment: "Freedom of Religion, Press, Expression." But "expression" is not used in the amendment at all. This term has come to be used as a shorthand, a term of art, for three of the freedoms that are explicitly protected: speech, petition, and assembly. While the use of "freedom of expression" is ubiquitous in this area of 1st Amendment study, it is important to note exactly what "freedom of expression" refers to - let this be such a note.

(Absolute) Freedom of Speech and Press

The Constitution does protect the freedom of speech of every citizen, and even of non-citizens — but only from restriction by the Congress (and, by virtue of the 14th Amendment, by state legislatures, too). There are plenty of other places where you could speak but where speech can and is suppressed. For example, freedom of speech can be and often is restricted in a work place, for example: employers can restrict your right to speak in the work place about politics, about religion, about legal issues, even about Desperate Housewives. The same restrictions that apply to the government do not apply to private persons, employers, or establishments. For another example, the government could not prohibit the sale of any newspaper lest it breech the freedom of the press. No newsstand, however, must carry every paper against its owners' wishes.

See also the concept of compelled or coerced speech:

The guarantees of civil liberty are but guarantees of freedom of the human mind and spirit and of reasonable freedom and opportunity to express them...The very essence of the liberty which they guarantee is the freedom of the individual from compulsion as to what he shall think and what he shall say...

Harlan Stone's dissent in Minersville School District v. Gobitis, 310 U.S. 586 (1940)

American Independence: A blessing or a curse?

The person who asked this question was none other than Patrick Henry.  To be quite honest, I am of the opinion that if the founders were to return to modern day American, they would be extremely disappointed in how their experiment turned out, which was the basis of my A Message from the Founders post. Additionally, the quote from Patrick Henry scholar, Henry Mayer, I mention in this post informed my comment:

The first man to speak identified himself as Patrick Henry. He explained that the group had been transported from 1774 to see what would become of their notion of Independence from Britain. Henry was extremely upset at misquotations made by "organisations such as The National Rifle Association and its ilk" regarding the ratification of the Constitution. "These remarks were in regard to the Militia and not private ownership of firearms".

I have been thinking about the following quote from Patrick Henry and how it might relate to his opinion of the current state of the Union.

After Patrick Henry died, his family found among his papers one sealed envelope with this written on it: " Enclosed are the resolutions of the Virginia Assembly, in 1765, concerning the Stamp Act. Let my executors open this paper." There was a copy of the resolutions in his handwriting inside. On the back of the paper containing the resolutions was written in Henry's handwriting:

"The within resolutions passed the House of Burgesses in May, 1765. They formed the first opposition to the Stamp Act, and the scheme of taxing America by the British Parliament. All the colonies, either through fear, or want of opportunity to form an opposition, or from influence of some kind or other, had remained silent. I had been for the first time elected a burgess a few days before, was young, inexperienced, unacquainted with the forms of the house, and the members that composed it. Finding the men of weight averse to opposition, and the commencement of the tax at hand, and that no person was likely to step forth, I determined to venture, and alone, unadvised, and unassisted, on the blank leaf of an old law-book, wrote the within. Upon offering them to the house, violent debates ensued. Many threats were uttered, and much abuse cast on me, by the party for submission. After a long and warm contest, the resolutions passed by a very small majority, perhaps of one or two only. The alarm spread throughout America with astonishing quickness, and the ministerial party were overwhelmed. The great point of resistance to British taxation was universally established in the colonies. This brought on the war which finally separated the two countries, and gave independence to ours. Whether this will prove a blessing or a curse, will depend upon the use our people make of the blessings which a gracious God had bestowed upon us. If they are wise, they will be great and happy. If they are of a contrary character, they will be miserable. Righteousness alone can exalt them as a nation. Reader, whoever thou art, remember this; and in thy sphere, practice virtue thyself, and encourage it in others."

What does he mean by virtue?  Is he talking about characteristics that promote individual and collective well being? Does he mean it in the Aristotlean sense of being a mean between two extremes (For example, courage is the mean between cowardice and foolhardiness, confidence the mean between self-deprecation and vanity, and generosity the mean between miserliness and extravagance)?  Or is he talking about the Sainted personality which Americans desire, but human nature falls far short of being?

Also, there is a thin distinction between righteousness and self-righteousness. If he means righteousness as acting in accord with divine or moral law, was he truly righteous in engaging in his actions that caused the US to move into the mess it currently is in? Self-righteousness is a feeling of smug moral superiority derived from a sense that one's beliefs, actions, or affiliations are of greater virtue than those of the average person. It can give one conviction that their actions are correct when they are very wrong.

But the most important piece of this is "If they are of a contrary character, they will be miserable."

We see a lot of self-righteous persons of contrary character in modern US politics.  US Politics is that of  division, which is most certainly contrary.  It seeks to promote various interests above others, often (as in the case of "gun rights") that interest runs contrary to public interest.  The Right exploits single issues and manipulates religious faith to direct workers into voting for candidates who are a threat to their economic interests.

To Quote the Wisconsin AFL-CIO:

Union members have been fighting attacks on worker rights and protections on many fronts. These are not random, unconnected attacks. They are the result of a coordinated strategy by a corporate-funded ideological movement that aims to eventually destroy the labor movement. Other progressive movements have seen hard won gains attacked and eroded as well.

Think of fascism as an infection of the body politic that can occur when there isn't a strong leftist working class identified party. Neither US party works toward the interest of the workers. Chris Hedges wrote a great piece called Ralph Nader Was Right About Barack Obama about how he is just as much of a tool of big business as was Dubious Bush. But Liberal are to blame for failing to provide an alternative to the reactionary politics which is the norm in the United States.

Given the current state of affairs in the US, I am certain that Patrick Henry would have been a Tory.  But hindsight is 20-20 and he didn't realise the mess he was creating for future generations when he acted so ill-advisedly in demanding independence before the nation was ready for it.

Shays' Rebellion

I am amazed that there isn't more interest in this little bit of US History. I tend to blog about it since it is actually a very important event in US Constitutional history. In fact, it is a good point to mention when people discuss the insurrection theory.

How original is Scalia?

Since Scalia bases a good portion of his Second Amendment analysis in DC v. Heller on the first clause being "prefatory"--

Nelson Lund, for example, helped shift the focus of Second Amendment interpretation by characterizing its first clause as “prefatory” and its second clause as “operative” — and received a Second Amendment chair funded by the NRA for his work. A Hein Online search for the terms “operative,” “prefatory,” and “second amendment” suggests that Nelson Lund was the first academic to introduce this terminology into the Second Amendment literature. See Nelson Lund, The Past and Future of the Individual’s Right to Arms, 31 GA. L. REV. 1 (1996). Nelson Lund is the Patrick Henry Professor of Constitutional Law and the Second Amendment at the George Mason University School of Law. This position was created thanks to a one million dollar commitment to GMU School of Law by the National Rifle Association Foundation announced in 2003. Press Release, $1 Million Endows Professorship at George Mason University (Jan. 28, 2003). Justice Scalia relies on the distinction between “prefatory” and “operative” in describing the relationship of the amendment’s first and second clause. See, e.g., Heller, 128 S.Ct. at 2789 (“The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause.”).

The problems is that, as has been pointed out, Scalia also uses Blackstone's commentaries on the Laws of England and is bound by the language of Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803):

The subsequent part of the section is mere surplusage, is entirely without meaning, if such is to be the construction...It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such construction is inadmissible, unless the words require it.

Blackstone would look to the proeme (the "prefatory clause") for guidance in interpreting the language (see previous post and this).

So, the idea of "prefatory" and "operative" came about over 200 years after the drafting of the Bill of Rights (1996).

Hardly original.

Roe and Heller

Very little of the criticism this page receives addresses the most valid point of criticism which is how can I be upset about DC v. Heller, but not Roe v. Wade, 410 U.S. 113 (1973)?

There is a simple non-legal answer which is that the most blatant form of tyranny is when a government interferes with a woman's personal choice to have a child. This is a matter between a woman, her doctor, and her significant other with no place for government interference.

I am amazed at how many people want "gun rights" and freedom from government interference, yet balk at abortion. Also, it is amazing that people can call themselves "pro-life", yet have no problem with shooting and killing someone. Or even capital punishment.

I mentioned use-benefit analysis in another post and personally, I find abortion to be far more of a right to be protected than some illusory "gun right".

That said, I have several legal grounds to dislike Heller.

The first is that it is poorly written and does not stand scrutiny. Anyone who has read my posts can see that there are multiple lines of attack of this POS written by a committee.

Secondly, Scalia has had to violate everything he claims to believe in regarding judicial practise. The most egregious of these being that Scalia's dissent in Planned Parenthood v. Casey, 505 U.S. 833 (1992) acknowledged that abortion rights are of "great importance to many women", but asserted that it is not a liberty protected by the Constitution, because the Constitution does not mention it!

In fact, reading Planned Parenthood v. Casey makes me even more curious as to how Scalia could deign to find a right of self-defence in the Second Amendment.

Scalia does everything that he expresses disgust in in his Planned Parenthood dissent.

The issue is whether it is a liberty protected by the Constitution of the United States. I am sure it is not. I reach that conclusion not because of anything so exalted as my views concerning the "concept of existence, of meaning, of the universe, and of the mystery of human life." Ibid. Rather, I reach it for the same reason I reach the conclusion that bigamy is not constitutionally protected--because of two simple facts: (1) the Constitution says absolutely nothing about it, and (2) the longstanding traditions of American society have permitted it to be legally proscribed.

Roe v. Wade on the other hand, has some legal basis to support it. The Supreme Court rested its conclusions in Roe on a previously recognized constitutional right to privacy emanating from the Due Process Clause of the Fourteenth Amendment. Justice Blackmun said that the "right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy."

I am of the school that the decision is correct, but for the wrong reason. The First Amendment States that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof".

I extend this right to include exercising personal beliefs concerning the beginning of life. The morality of abortion is grounded in the precise belief of the nature of the fetus in Christianity, Judaism, Humanism as well as other religions and ethical systems,. There is a general consensus that when the foetus becomes a human person, then abortions should be severely limited. The question is when does life begin? But that is an ethical decision. Most would confine abortions at the stage when the foetus is viable to situations that threaten the life of the pregnant woman; a very few would eliminate access to abortions totally. The problem that generates so much controversy is that no consensus exists in society over the point, between conception and birth, when personhood begins.

Jewish beliefs and practice concerning abortion do not neatly match either the "pro-life" nor the "pro-choice" points of view. The general principles of modern-day Judaism are that:
--The fetus has great value because it is potentially a human life. It gains "full human status at birth only."
--Abortions are not permitted on the grounds of genetic imperfections of the fetus.
--Abortions are permitted to save the mother's life or health.
--With the exception of some Orthodox authorities, Judaism supports abortion access for women.
--"...each case must be decided individually by a rabbi well-versed in Jewish law."

Islam allows for abortion in cases where the mother's life is threatened.

Additionally, while the "right to an abortion" may not be specifically mentioned in the Constitution, it is a personal choice relating to health, personal finances, beliefs and other issues that government has no right to intrude upon.

As I said in my use-benefit analysis post, there are some things which are beneficial to society, of which prevention of unwanted children is one.

At this point, I have to reiterate another point I have made in my posts, that the Heller decision did not invalidate gun control laws. The problem is that Scalia did not give any idea of the scope of his new right.

The problem is that there are loads of knee-jerk RKBA people out there who follow rather than think. They are told that there is an individual right enshrined in this decision and then say this is about time. They do not analyse what has been written or think about the implications.

Next post in this series, Wedge issues.

Words to ponder

One major theme of this site is that the US Constitution is dying, as is the United States itself, if not actually dead. Here we see a first-tier legal scholar support this theory. “The Constitution that I interpret and apply is not living, but dead.” has become Justice Scalia’s best known saying, perhaps his signature line. I recommend attention to his warnings.

Antonin Scalia, Vigilante Justices: The Dying Constitution

If the courts are free to write the Constitution anew, they will write it the way the majority wants; the appointment and confirmation process will see to that. This, of course, is the end of the Bill of Rights, whose meaning will be committed to the very body it was meant to protect against: the majority.

He should listen to what he says.

Scalia’s logic used in Heller would lead him to endorse the outcome of Roe, a decision which he condemns on the grounds that the “Constitution says nothing about abortion.” Well, it also says nothing about a right to keeping handguns for self defense– so which is it? Indeed, the partisanship of Justices can sometimes be quite appalling, and just as Scalia is willing to violate his own principles as a means to a right-wing end in the Heller case, so too might a majority left-leaning court be willing to adopt an “textualist” position for the purpose of overthrowing Heller.

A Blackstone timeline

--Commentaries were first published between 1765 and 1769 in Oxford, England.

1765
March 22 The Stamp Act
March 24 The Quartering Act of 1765
May 29 Patrick Henry's "If This Be Treason" speech
May 30 The Virginia Stamp Act Resolutions
Oct. 7-25 The Stamp Act Congress
1766
March 18 The Declaratory Act
1767
June 29 The Townshend Revenue Act
1768
August 1 Boston Non-Importation Agreement
1770
March 5 The Boston Massacre

1771
--Commentaries on the Laws of England first issued in an American edition.

1773
May 10 The Tea Act
Dec. 16 The Boston Tea Party
1774
March 31 Boston Port Act, one of the "Intolerable Acts"
May 20 Administration of Justice Act, one of the "Intolerable Acts"
May 20 Massachusetts Government Act, one of the "Intolerable Acts"
June 2 Quartering Act of 1774, one of the "Intolerable Acts"
June 22 Quebec Act, one of the "Intolerable Acts"
Sept. 5-Oct. 26 The First Continental Congress meets in Philadelphia and issues Declaration and Resolves
Oct. 10 Battle of Point Pleasant, Virginia (disputed as to whether it was a battle of the American Revolution or the culmination of Lord Dunmore's War)
Oct. 20 The Association (prohibition of trade with Great Britain)

1775
Apr. 18 The Rides of Paul Revere and William Dawes
Apr. 19 Minutemen and redcoats clash at Lexington and Concord "The shot heard 'round the world."
May 10 Ethan Allen and the Green Mountain Boys seize Fort Ticonderoga
May 10 The Second Continental Congress meets in Philadelphia
June 15 George Washington named Commander in Chief
June 17 Battle of Bunker Hill: The British drive the Americans from Breed's Hill
July 3 Washington assumes command of the Continental Army
1776
Jan. 15 Paine's "Common Sense" published
March 17 The British evacuate Boston; British Navy moves to Halifax, Canada
June 12 The Virginia Declaration of Rights
June 29 The First Virginia Constitution
June 28 Patriots decisively defeat the British Navy at Fort Moultrie, South Carolina
July 1-4 Congress debates and revises the Declaration of Independence. See Chronology of the Declaration
July 4 Congress adopts the Declaration of Independence; it's sent to the printer
July 8 The Declaration of Independence is read publicly

The Articles of Confederation and Perpetual Union, commonly referred to as the Articles of Confederation, was the first constitution of the thirteen United States of America. The Second Continental Congress appointed a committee to draft the 'Articles' in June 1776 and proposed the draft to the States for ratification in November 1777. The ratification process was completed in March 1781, legally federating the sovereign and independent states, allied under the Articles of Association, into a new federation styled the "United States of America". Under the Articles the states retained sovereignty over all governmental functions not specifically relinquished to the central government.

1780
--Sir William Blackstone dies on 14 February 1780

1781
Jan. 1 Mutiny of unpaid Pennsylvania soldiers
Sept. 15 French fleet drives British naval force from Chesapeake Bay
Oct. 19 Cornwallis surrounded on land and sea by Americans and French and surrenders at Yorktown, VA

1782
Nov. 30 British and Americans sign preliminary Articles of Peace

1783
April 19 Congress ratifies preliminary peace treaty

The Treaty of Paris (1783), which ended hostilities with Great Britain, languished in Congress for months because state representatives failed to attend sessions of the national legislature. Yet Congress had no power to enforce attendance under the Articles of Confederation.

Sept. 3 The United States and Great Britain sign the Treaty of Paris officially ending the War of American Independence (AKA American Revolution)
Nov. 25 British troops leave New York City
Dec. 23 Washington resigns as Commander

1786
September--Commissioners from five states met in the Annapolis Convention to discuss adjustments to the Articles of Confederation that would improve commerce.

1787
May 25 to September 17, 1787: delegates from 12 states met in Philadelphia, Pennsylvania, to address problems in governing the United States of America, which had been operating under the Articles of Confederation following independence from Great Britain. Although the Convention was purportedly intended only to revise the Articles of Confederation, the intention of many of its proponents, chief among them James Madison and Alexander Hamilton, was from the outset to create a new government rather than "fix" the existing one. The delegates elected George Washington to preside over the convention. The result of the Convention was the United States Constitution.
September 20, 1787 The proposed Constitution is read in Congress
September 26, 1787 Congress takes up debate on the proposed Constitution
September 28, 1787 Congress refers the proposed Constitution to the states
December 7, 1787 Constitution is ratified by the first state – Delaware

1788
August 2, 1788 First North Carolina convention refuses to ratify Constitution without amendments

1789
March 4, 1789 First United States Congress is seated
September 26, 1789 Congress sends twelve amendments to the Constitution to the states for ratification. The last ten were eventually enacted as the Bill of Rights.

1791
December 15, 1791 Bill of Rights comes into force on ratification by Virginia

Get my point?

No?

Then to clarify it for you. When Blackstone died, the Colonies were still colonies with the War for Independence raging on, The Treaty of Paris was 3 years in the future, there were the Articles of Confederation, but no US Constitution. Wouldn't be for another 7 years. The Bill of Rights was 9 years in the future and wasn't in effect for another 11 years. How could he have known about the Second Amendment, let alone the Constitution unless he was psychic.

For all Blackstone knew, the Colonies could repent their ways and become good little colonies again (there's still hope).

BUT BLACKSTONE KNEW DICK ABOUT THE US CONSTITUION OR BILL OF RIGHTS