In sum, there are at least two ways the Court in Bond can accommodate federalism without undermining national foreign policy. It can construe ambiguous treaties not to reach purely local conduct. And it can require Congress to make a plausible showing that federal regulation of local conduct is needed to prevent material breach of treaty obligations. Either approach would allow Bond to win the case without undermining national treaty power.Details
Originally published at American Thinker
Democrats tell us that ObamaCare is “the law of the land,” and that the Supreme Court declared it constitutional, and that we should get used to it — it’s here to stay. Actually, the Court found ObamaCare unconstitutional on two counts, but let it pass anyway.
The problem for defenders of ObamaCare is that its court challenges just keep coming. One place to check up on them is the website Health Care Lawsuits. In September, American Enterprise Institute ran an article by Chris Conover headlined “Will the Courts Derail Obamacare?” The article covers several of the ongoing court challenges to ObamaCare, including the status of each case. (The article also ran at Forbes.)
On October 5, National Review ran a terrific article by former federal prosecutor Andrew McCarthy that addresses a specific legal challenge:Details
In The New York Times, Linda Greenhouse has an anti-originalist column A Tree Grows in Canada — with some interesting Canadian history. As she explains, the British North America Act (effectively Canada’s original constitution) provided for “qualified persons” to be appointed to the Senate. When a woman, Judge Emily Murphy, sought appointment, she was rejected because (it was said) women did not qualify as “persons.” As Greenhouse continues the story:
Judge Murphy and four other Alberta women, who were to become known as the Famous Five, formally petitioned the federal government, which then put a question to the Supreme Court of Canada: “Does the word ‘Persons’ in Section 24 of the British North America Act include female persons?”
The Supreme Court said no, on grounds that would warm the heart of some current members of the United States Supreme Court. Whether it would be desirable for women to be eligible for senatorial appointment was beside the point, Chief Justice Frank Anglin wrote in his opinion. What mattered was what the drafters of the 1867 statute intended, and the words they wrote had to “bear today the same construction which the courts would, if then required to pass upon them, have given to them when they were first enacted.”
Based on this, Greenhouse doesn’t understand originalism, and neither did Chief Justice Anglin (about whom I otherwise know nothing). The decision is silly, and no modern originalist would follow it, nor would it warm anyone’s heart on the current Court. It’s possible (even likely) that the drafters of the Act only had only men in mind as Senators. But they did not write “men,” as they easily could have. (Voting laws of the time typically referred to “male” citizens, for example). They wrote “persons.” In 1867, I cannot imagine that in any ordinary legal language, in Britain or Canada, “persons” meant “only male persons.” A word in a statute should be given its ordinary public meaning, regardless of subjective intentions harbored by its drafters.Details
At the National Constitution Center’s “Constitution Daily” blog, Doug Kendall and Tom Donnelly (Constitutional Accountability Center): Big Battles Brewing over the Constitution’s Original Meaning. From the introduction: For decades, debates over the Constitution divided along familiar lines. Progressives professed faith in a “living Constitution,” while conservatives claimed fidelity to originalism. In recent terms, however, this dynamic…Details
At Concurring Opinions, Marco Simons (EarthRights International) has this post on the Daimler v. Bauman case (argued at the Supreme Court 10/15): Is There a Constitutional Right to Corporate Separateness? Mr. Simons and I have been on opposite sides of some cases in the past, but I think there is something to his originalist argument here: The Ninth Circuit…Details
If a person reads Adolf Hitler’s Mein Kampf, does that make him a fascist?
If a person reads Karl Marx’s Das Kapital, does that make him a Marxist?
Of course not! Many individuals may just want a better understanding of these beliefs regardless of their personal views.
How can one offer criticism about a subject when this person doesn’t understand what he is criticizing?
Every day, we are bombarded by people on Facebook, all trying to get our attention and asking us to “like” their page. These pages can be about movie stars, authors, models, television shows, sports teams, universities, and yes, even political groups.
Since there are political based pages, they can also vary by party, movement, individual candidates or even individual causes. The Tenth Amendment Center even has its own Facebook page, which you can access HERE.Details
In noting the principal amicus briefs in Bond v. United States, I overlooked this one on behalf of Chemical Weapons Convention Negotiators and Experts. As described in this news release from Indiana University: In the brief, the arms control experts support the U.S. government’s position that, properly interpreted, the treaty requires states parties, including the United States, to apply its prohibitions on…Details
by Amanda Frost, SCOTUSblog
Bond v. United States is back before the U.S. Supreme Court, and this time it raises a question that has long interested academics: What are the limits on Congress’s power to implement treaties? Missouri v. Holland, decided in 1920, held that Congress could enact legislation implementing a treaty even if such legislation was otherwise outside the scope of its Article I, Section 8 authority. The decision is now canonical, and it has been widely accepted by most academics and followed by courts. Then, in a 2005 article in the Harvard Law Review, Professor Nicholas Quinn Rosenkranz challenged Missouri v. Holland’s rationale and asserted that it should be overruled. His arguments are now front and center before the Court in Bond.
The facts of Bond are unusually colorful. After Carol Anne Bond’s husband had an affair, Mrs. Bond sought revenge by sprinkling toxic chemicals around the car and mailbox owned by the woman involved. Prosecutors charged her with violating a federal statute implementing the Convention on the Prohibition of the Development, Production, Stockpiling, and Use of Chemical Weapons and on their Destruction (also known as the “Chemical Weapons Convention”), to which the United States is a signatory. Mrs. Bond argued that Congress lacked the authority to criminalize her conduct, asserting that the statute is a “massive and unjustifiable expansion of federal law enforcement into state-regulated domain.”Details
Sovereignty is the inherent and independent right to do all that is necessary to govern oneself. In the United States, the People are sovereign. In fact, only the individual is truly sovereign, because only the people, and not government, have inherent rights to life, liberty, and property, along with the right to protect and preserve it.
In the United States, we enjoy self-government; that is, government originates from the people, for the people – “of the people, by the people, and for the people.” Government arises out of social compact. In other words, because man is a social creature, he forms together into communities. And in order that communities run smoothly and common services be provided to protect everyone’s rights and property, governments are instituted. And so, individuals delegate some of their sovereign power of self-defense and self-preservation to a government. That is why the bulk of government is always supposed to be closest to the individual, where it is most responsible and most accountable. Our rights and liberties are most protected when people have the frequent opportunity to see their elected officials and look them in the eye, and when those officials see a personal story behind acts of legislation, etc.
This is exactly what our Declaration of Independence tells us about our individual sovereignty. In the first paragraph, we are told that our sovereignty is based on Natural Law and God’s Law – “to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them.” The only rightful power our government has is the power that the People – by the consent of the governed and according to the precise language and intent of our Constitution – have temporarily delegated to it. In that grant of power, in a system based on the Sovereignty of the Individual, there is always a mechanism to take that power back. That is why the Declaration explicitly states that the People have the right to “alter or abolish” their government (when it become destructive of its aims). In fact, that right is so important and so fundamental, it is listed with the other inherent rights that individuals possess. In other words, what the Declaration is saying is that the People of the “united States” have the right to reclaim the sovereign power that they temporarily delegated to that government to govern and protect their liberties.Details
by Jon Roland, Constitution Society
The Boston bombing suspect Dzhokhar Tsarnaev has been charged with multiple federal offenses, but none of them are authorized by the U.S. Constitution for offenses committed on state territory, as the acts in Boston were. If the federal courts were constitutionally compliant, they would be compelled to dismiss them all, and let the State of Massachusetts prosecute him under its laws.
The following is a summary of the main federal charges:
- Use of a weapon of mass destruction resulting in death and conspiracy.
- Bombing of a place of public use resulting in death and conspiracy.
- Malicious destruction of property resulting in death and conspiracy.
- Use of a firearm during and in relation to a crime of violence.
- Use of a firearm during and in relation to a crime of violence causing death.
- Carjacking resulting in serious bodily injury.
- Interference with commerce by threats or violence.
- Aiding and abetting.
Contrast this with the following, taken from the second of the unanimous Kentucky Resolutions of 1798, written by Thomas Jefferson, summarizing original understanding of the U.S. Constitution:Details