NOT ABOUT SLAVERY!

It was recently argued in the Richmond (Va.) Times-Dispatch that, though the federal government should be highly restricted (no argument from me there), states' powers are presumably unlimited!  It makes no sense at all that the "Founders" would have highly restricted the federal government (for good reason) then give the states a "blank check" of power!  If true, then there would be no need for state constitutions!  If the state legislatures could do whatever an electoral majority wanted, why bother with a constitution delineating the various powers and functions?

Contrary to the beliefs of a lot of people hereabouts, the states are as individually restrained in their powers by their own constitutions as is the federal government by its own Constitution.  Most of those state constitutions were adopted after the Revolution!  Some of the 13 original colonies had adopted their own constitutions (like Va.) before the Revolution, but the necessity of "state" ratification of the federal Constitution was a considered political decision, not an inherent legal decision.  The states had no legal standing at all after the Revolution relative to the then-weak national Confederation government but by whatever the Articles of Confederation had recognized.  They were basically just "colonies in rebellion."  In the subsequently adopted and ratified US Constitution there is no "savings" clause for the Articles of Confederation, which have now expired, so any previous status conveyed thereby has been supplanted by and merged into the existing Constitution.  There is also no constitutional clause at all declaring nor even acknowledging the "sovereignty" of the states themselves!  One should also note that the references therein to the US are as "THE United States" (singular), not "THESE United States" (plural).  The Preamble establishes the US is in the name of "we the PEOPLE," not the "we, the STATES."

It is true that the 10th Amendment "reserves" federally nonallocated powers (not "rights") to the States, etc., but there is no way that anyone can argue that the delegates to the Constitutional Convention were authorized to affirmatively allocate specific powers that the states were supposed to have.  "States' rightists" seem to believe that the 10th Amendment is a "blank check" of otherwise unlimited power to the states.  That is simply not so, since it refers only generically to "powers" and does not elaborate.  All the 10th Amendment can do is to say what the federal government cannot do.  One may never logically infer a "positive" from the "negative."

George Washington lobbied vigorously for a strong federal government that would allow the raising of an army and navy (as Article I specifically does) because the Articles of Confederation did not do so, and he was inadequately served by the colonial/state governments during the Revolution who would not and did not furnish adequate numbers of militia under his command!  Washington was very lucky to have defeated the British, who were probably more likely defeated by their own arrogance and hubris than by the might of US resistance.  That is in all the biographies of Washington that I have read.

The states have been coming up short ever since before Yorktown.  They often simply don't do "right," and it is foolish and short-sighted to base one's expectations of justice and competence on the efficacy of the states' governments.  As far as I am concerned, that has been the political reality ever since 1776.

As for our Supreme Court, we should note that each "state" has ratified the US Constitution AND thereby subordinated itself to that Constitution as to whatever is contained therein.  (Consider the "Supremacy Clause" in Article VI.)  In the American system of government, there are three distinct, separate and equal branches: legislative, executive and judicial.  In an ideal world they are supposed to exert "checks and balances" on each other.  For better or worse, the US Constitution provides that the federal judiciary are not to be chosen democratically like elected officials but by the process of nomination by the Executive Branch (President), then "advice and consent" by the US Senate.  Presidents and Senators ARE chosen democratically, but they are specifically delegated with the power to select and install judges in the name of the majority.  Thereafter, the federal judiciary are not directly subject to whatever the majority wants.  I think the Founders did that on purpose.  The "majority" directly controls 2 out of 3 branches of government, but not the US judiciary.

As John Marshall said, it is the business of the Congress to make the laws, but it is the business of the courts to say what the law "is."  The legislatures cannot possibly address every variable by the statutes, so the judiciary must resolve the differences that arise.  And, it is also the job of the judiciary to tell the majority when they are wrong, to speak truth to power.  If the majority had unlimited power, that certainly would not be the case, but our Constitution wisely puts limits on the majority, so somebody else has to say "when."  That is exactly the function of the courts--to say "when."  We cannot trust the President nor the Congress to be the sole judges of their own compliance.  The voters clearly have the power to remove those who step out of line (rarely used) at election time, but that is in no way negated by the courts having their own powers of review.

Judges are not supposed to kiss the asses of the majority and just suck up to whatever the majority apparently wants to happen.  Those are the notions of "hyper-democrats" who would have everything (including our rights to be free from majority tyranny) put up for a vote.  They seem to think that the judiciary should always subordinate itself to whatever the legislature does or whatever a current majority seems to want.  For example, a lot of idiot "states' rightists" incredibly still believe the US Supremes' decision to desegregate the schools in 1954 exceeded its inherent powers via "activist judges" and, therefore, was a violation of "federalism."  They would argue that if a state majority (as manifest by the legislature &/or the governor) wants something to be so, then it has the inherent power to make it so, and we individuals and the courts can just go pound sand.  By that pathetic (il)logic, if a state still wanted to enforce Negro slavery it would be thus.  Fortunately, the states no longer (if ever) have the constitutional power to re-establish slavery or to re-segregate the schools or lunch counters.  They are impotent--as intended.

So, that is what the "Civil War" was about--slavery.  My authority for that assertion is the Confederate Constitution itself which, I daresay, most "states' rightists" have never read.  Like most other half-wits around us, they just cluelessly blather their uninformed opinions:

FROM THE CONFEDERATE CONSTITUTION (my copy, which I have read SEVERAL times, stays right beside this computer next to my copy of the US Constitution):

Article I, Section 9.  Limits on [Confederate] Congress, Bill of Rights 

1.  Prohibits "importation" of "negroes of the African race" from anywhere OTHER THAN other slaveholding states in the US;

2.  The Confederate Congress may also prohibit the "introduction" of slaves from any State or territory NOT already a member of the Confederacy;

Now, these two provisions may seem somewhat humanitarian at first glance, but they also have the effect of preserving the VALUE of slaves already held since more imports (& the resultant increase in numbers) might drive down the value of existing slaves;

4.  "No ... law denying or impairing the right of property [my emphasis] in negro slaves shall be passed."  Indeed.

Article IV, Section 2.  State Citizens,  Extradition

3.  "No slave ... escaping ... into another [free Confederate State] shall ... be discharged from such service or labor; but shall be delivered up...."  [My emphasis.]

Section 3.  New States

3.  The Confederate States may acquire new territory....  In all such territory the institution of negro slavery, as it now exists in the Confederate States, shall be recognized and protected...."  [My emphasis.]

For a movement supposedly not about slavery, that's an awful lot of constitutional verbiage about "the right of property in negro slaves."  I have yet to find any reference to the economic predations of the Northern states, to the tyranny of the US government, or to the imperial machinations of Abraham Lincoln, as the usual arguments go.

I must point out yet again as I have many times already that the Southern Confederacy, much like the national confederacy that existed prior to the adoption of the US Constitution, was a pathetic pretend government whose currency wound up worthless that also got soundly defeated, despite the loser generals in charge of the US Army, in a Civil War that the idiots in South Carolina started and the idiots in the other Southern states were too dumb to stay out of.

The US government is certainly a threat to our liberties from time to time but many states, especially in the South, have been controlled by a bunch of inbred cowards who readily sink to the level of the lowest common denominators.  I, for one, am glad that there has been a majority on the US Supreme Court willing, from time to time, to kick the states hard whenever they get too big for their own britches.  As Americans, our constitutional rights are NOT subject to denial or revocation or limitation by a bunch of half-wits in state legislatures.  All the States have subordinated their "sovereignty" to our individual rights when they ratified the US Constitution or their own constitutions.  In an ideal world, the courts should always protect the rights of the minority from the tyranny of the majority.

After all, the purest form of "democracy" is a lynch mob, where everyone in attendance agrees on the outcome except for the victim!

THE "COMMITTEE"

Ah, yes!  Finally, the chickens come home to roost!

Well, the "neo-Confederates" are up in arms over the "Committee's" protest of Confederate symbols and activities on the campus of Washington & Lee University in Lexington, Virginia, thus reported in the Richmond Times-Dispatch this April 17, 2014.

As a direct and collateral descendant of several Confederate veterans and lifelong Southerner and committed "traditionalist," as well as being a proud graduate of the W&L Law School, I feel I am privileged to comment on this turn of events.  At W&L and later, I have had a premonition that this issue was, sooner or later, going to rear its ugly little head; and so it has.

It appears that the "Committee," a small interracial group of law students at W&L, are bothered by the overt display of Confederate memorabilia in the "Lee Chapel" and elsewhere on campus, and they are also exercised about overt neo-Confederate activities on "Lee-Jackson Day" on the campus.  I assume that involves a lot of display not only of the formal Confederacy "Stars & Bars" flag but also the more widely-known Confederate battle flag with white stars embedded in the blue Cross of St. Andrew (the "X") on a red ground.  This is the flag usually associated with the Confederacy but it is not the "Stars and Bars," contrary to most folks' beliefs.  The Sons of Confederate Veterans are apparently leading the charge to counter the efforts of the "Committee" to ban such pro-Confederate stuff from the W&L campus.  The Committee has argued that those Confederate things are offensive to the black and other minority students on campus and also to some of the white students as well.  The "Sons" argue that preservation of important traditions requires that W&L, the final resting place of Robert E. Lee (the patron saint of all things Southern), be the fountainhead of Confederate remembrance.  Oh, my.

While I was at W&L, It was obvious to me that, sooner or later, this issue would come to a head.  I did not say nor do much about it at the time because I simply was not sensitized to the issue.  It was not important to me, but the offensiveness of it was not readily apparent, either.  Contrary to what most of my friends would say, I am proud to consider myself a "traditionalist."  I understand the power of the "old ways."  "If it ain't broke, don't fix it!" goes the saying.  Needless meddling is wrong.  I still believe all that.  When in the Boy Scouts in North Carolina, I was the proud displayer of the Confederate battle flag which was also emblazoned on our "East Carolina Council" shoulder patch.  When I went to the 50th Anniversary Boy Scout Jamboree in Colorado Springs in 1960, I took a fistful of small Confederate battle flags to trade for stuff; Scouts from the north and west would eagerly give up seriously valuable stuff to get them!  I was a solid Dixie guy, even if I venally profited from my Confederate heritage!

In my last year at W&L, I was present at the interment of "Traveller," Robert E. Lee's horse, the skeleton of which had been on display in the basement of Lee Chapel for many years.  The powers that were had finally decided to give the skeleton a decent burial beside the Chapel, complete with an engraved stone slab on top.  So, one day, I was strolling across campus in my T-shirt, shorts and sandals, with rather long hair.  I meandered over to a crowd of somberly-dressed people clustered around the grave of Traveller.  An Episcopal priest in full vestments from the nearby church was conducting a burial service for Traveller, and the assembled crowd of respectful mourners eyed my slovenly appearance suspiciously and with unconcealed disdain.  What surprised me most about that whole affair, however, was that I had never realized that Traveller was an Episcopalian!

The past 42+ years have had a profound effect on me.  Regardless of my past, I am now sensitized to many things in ways I was not before.  For example, I now favor gay marriage though I did not before.  My ex-wife also favored gay marriage; she would say that she did not see why gays should not experience the pain and heartbreak of matrimony, same as straights, and I thought she was joking!  I finally had a breakthrough in my understanding about the Confederacy that opened my eyes to what had been going on and what I had been doing: I came to realize that the proof of white Southern inbreeding is our penchant for celebrating a War we lost!  I did not want to be part of that "proof" any longer!

Not only am I now concerned about my own image and attitudes, I am also of the belief that needless offensiveness is simply wrong and a waste of time.  I don't mind being offensive as Hell when the need arises, and most acquaintances will attest to that.  But, I see no point in hurting other people's feelings for no reason, REGARDLESS of whether or not their subjective position is "right" or "wrong."  I try to no longer correct others so long as what they say or do does not infringe on me, nor will I go out of my way to overtly cling to some pointless activity or standard if I know that it hurts someone's feelings.  I won't rub their noses in it unless I think they deserve it.  Then, I will "rub" with a vengeance!  (Of course, I get to decide all that.)

Which brings me to this: W&L should get rid of all the Confederate trappings that are pointlessly annoying people and, being a totally private campus, it should ban like activities (not individual students' conduct or statements, though) that tend to hurt people's feelings.  Because it can.  Students should continue to be free to make asses of themselves.  That is an important principle, regardless of who gets annoyed, because the answer to offensive "speech" is more "speech," not censorship.  W&L does not need a "speech code" nor to punish mere stupidity.  But, at the same time, it does not need to contribute to the glorification of a war we lost!

WAR-DECLARING vs. WAR-MAKING

(The following was sent to Senator Tim Kaine of Virginia on April 8, 2014)

I just read your piece in Sunday's Richmond, Virginia Times-Dispatch about "clarifying" the war-making process here in the US.  I have evolved from being a war "hawk" during the Vietnam days to being a vehement opponent of the way Congress has evaded its solemn duty to TOTALLY control the manner by which the US is committed to offensive war.

I am not here advocating that Congress micromanage war once started, though the funding process is ongoing and should never become a rubber-stamp process, as it has so often in the past, at least since WWII.  Contrary to what the Supreme Court held back in the 1960's, it is patently ludicrous to suggest that the "Commander in Chief" language of Article II of the Constitution carries with it an implicit power to "make" war.  Article I, Section 8 reserves to Congress ONLY the power to DECLARE (not approve, not endorse, not bless) War.  Otherwise, any offensive military tactics are simply wrong.  Congress needs to quit hiding behind the Supreme Court's robes!

There is no question that the armed forces have a fundamental right to defend themselves in the event of attack.  I am not questioning that, but to then proceed to execute OFFENSIVE tactics is simply not allowed absent a formal declaration of war.  The 10th Amendment limits the federal government to only those powers "delegated" thereto.  So, there are simply no such things as "implicit" federal powers, regardless of whatever some majority of the Supreme Court may say from time to time, yet it is with wishful thinking and imperious notions of convenience that impel the Supreme Court, Members of Congress and the President into fabricating all sorts of "implications" that serve their aggrandizing or cowardly ends.

The Founders made things "inconvenient" on purpose!

The Founders were quite perceptive in burdening Congress with the war-creation process: a formally declared war (like WWII) more effectively unites the people behind the shared sacrifices, and the corollary is that the Congress will not declare a war not supported by a large majority of the people.  Each is a check on the other, and for obviously good reason.  Otherwise, we wind up in a quagmire created by a President needing to prove his manhood by kicking some "wogs'" disrespectful asses!  Korea!  Vietnam!  Eastern Europe!  Iraq!  Afghanistan!  How many more of these utter stupidities is the Congress or the Supreme Court going to tolerate?

You must answer that question!  I for one will never tolerate being stampeded into witless support of some cowboy adventure because somebody dares to question my patriotism!  You know that is EXACTLY what happened when the nonsense started in Iraq, and what do we have to show for all that now?  "Mission Accomplished"?  Where is all that "free oil" that Dick Cheney promised?

I am not unmindful nor dismissive of the legitimate desires to protect the defenseless from tyranny, slaughter, etc., but if the US citizens and taxpayers are to be forcefully dragooned into such efforts, then the Congress ought to have the courage to control that process and spell it out in such a way that we can understand and embrace the intended efforts.  There is usually no hurry for any of that!  I am not opposing war at all costs; I am demanding that the Constitution be followed when war is to be made.  That is my RIGHT as a citizen, not merely as a taxpayer!  I have a fundamental, inherent right as an American that all three branches of government strictly adhere to MY Constitution!

I have spent most of my professional life as a lawyer becoming intimately familiar with the US and Va. Constitutions.  (I have also been doing some recent analysis of the Confederate Constitution!)  Constitutions are one of my hobbies, if you will.  I keep several copies of the US Constitution handy, each in a variety of locations so that I may consult it frequently, whenever the impulse strikes.  I have never found ANYWHERE therein that the President is authorized to initiate offensive war, so I think the Supreme Court was wrong to rule thusly.  I recall the Vietnam nonsense was based on a validation of Congress's "Tonkin Gulf Resolution" which was deemed to be the "equivalent" of a declaration of war.  Hogwash!

My viewpoint has many powerful opponents; I realize that.  But you have an opportunity to lead the Congress into doing the right thing, and I hope you will try.  Even if you fail, you should be prepared to go down in flames!

SINS OF THE FATHER (IN-LAW)

On March 26,  2014, the son-in-law of Osama bin Laden was "swiftly" convicted of "conspiracy to murder Americans" in a New York federal courtroom.  He was bin Laden's spokesman and had reportedly taken joy in the killing of Americans.

So, there is no question that we may easily consider him a despicable person.

But, the NY Times article did not exactly spell out HOW he had made a concrete, positive contribution prior to the actual killing of Americans as opposed to just talking nasty about it after the fact.

I guess I am about the only scum-sucking "Commie pinko" who is concerned that MAYBE an American judge let a jury "railroad" someone just for merely talking badly.  An article in a prior edition of the newspaper reported that prosecutors had made a lot of closing argument about what the son-in-law was SAYING but never mentioned anything that he actually DID to further the conspiracy.

Should it be a crime in the US for just talking badly?  Does any possible exemption apply only to American citizens, so those in other countries better watch their mouths?  Maybe we should start rounding up the in-laws of all those who are suspected of committing crimes and lock them up or shoot them in the back of the head, just in case.

After all, we have to preserve the image that we are the big, bad-assed Americans with large testicles who can kick anybody's ass we want, any time we want!  Teach 'em some R-E-S-P-E-C-T!

Any patriotic American who values the First Amendment's guarantee of freedom of speech ought to be concerned about the outcome of this case.  It is easy to defend the rights of those with whom we agree, but do not the reprehensibly bad people also have rights worth defending?  Do we really want to invest the President and the Justice Department and the armed forces with the summary power to determine which statements get approved and which get criminalized?  And punished?

Defenders of Barack Obama are exultant that Abu Ghaith was convicted in a CIVILIAN court since so many war-mongers and thugs have previously rattled their sabers for summary kangaroo-court justice for these folks in "military tribunals," where pesky "legal technicalities" don't get in the way of convictions!  Obama's critics have fretted that there just might be too many acquittals of those scum in civilian courts, so Obama's supporters are giddy with delight demonstrating that summary "justice" can be achieved in civilian courts, too!  "Look, Ma!  Liberal puke Democrats have testicles, too!"

It is the exact same attitude that praised Barack Obama (to the teeth-gritting consternation of Republicans) for having directed the SEALs to grab Osama bin Laden, summarily execute him, then dump his body at sea so no pointless autopsy could be performed that MIGHT have shown that bin Laden, unarmed and in restraints, was executed with a bullet in the back of the head while kneeling down in his pajamas.  Who knows?  Who cares?  

We know, however, by the government's own murky statements, that bin Laden was captured and killed, in his pajamas, unarmed, without any arrest warrant or warrant of execution being issued by a proper court.  We know that bin Laden, though PROBABLY guilty, was never actually convicted of any crime in a US court of law.  If we all believe bin Laden was guilty (as I do), then why bother with a trial?  Problem is, most of us with an opinion know ONLY what we've been told.  Most of us have no first-hand knowledge.  Just foaming-at-the-mouth outrage about "9/11."

Does it really matter what the "legal technicalities" are if we don't have the legal certainty of a proper procedural conviction of someone who was "probably" guilty?

I know what my answer to those questions are, and I don't like any of this one bit.  It is worthy of the Soviet Union or Nazi Germany, or a lynch mob!  The US court system is certainly not perfect, but it is a lot better than summary execution by government stooges who have declared someone to be the universally despised bệte noir of our existence.  So, we need not worry our pretty little heads with that old bromide about being tried by a jury of one's "peers."

It's so easy to just be a good "German" and do what is expected and not rock the boat.

GAY MARRIAGE RIGHTS

The following made "Correspondent of the Day" at the Richmond (Va.) Times-Dispatch on March 26, 2014.

I have recently seen a lot of indignant Letters to the Editor angrily declaring that there is no such right in the Constitution for gay marriage.

It is true there is no specific reference to a "right" to gay marriage in the Constitution, but as with other implicit "rights," (1) there is no specific prohibition against it, (2) there is no compelling legal reason against it, and (3) there IS a constitutional right to "equal protection of the laws" across the board, regardless of what some English translation of the Book of Leviticus may say.

Contrary to the beliefs of most people, the Constitution does not operate as a bundle of specific rights from a benevolent government.  A majority is not allowed unfettered power, even in a "democracy."  Too many politicians and judges have incorrectly promoted this view, but constitutions actually operate as bundles of specific, limited POWERS granted to governments (or not).  As the 10th Amendment makes clear, if the US Constitution does not specifically authorize the US government to do something, then it is (or should be) PROHIBITED, regardless of what a mere majority may want!  State constitutions work the same way.  Constitutions do not constitute blank checks of power for governments.

Any government (federal, state or local) simply cannot treat gay people (nor anyone) differently UNLESS the applicable constitution specifically authorizes it.  In other words, all people in the US should be free to do as they damned well please unless a constitution specifically permits a government to interfere or to discriminate.  A state or local government is simply powerless to deny a civil marriage license to anyone UNLESS there is a specific constitutional provision thus allowing such discrimination or there is some legally compelling reason (like preventing incest) for a government to otherwise act in a discriminatory way.

It's really hard to see such things clearly, looking through the wrong end of the constitutional telescope.