Carp of the Day

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"Indeed, the rage of theorists to make constitutions a vehicle for the conveyance of their own crude, and visionary aphorisms of government, requires to be guarded against with the most unceasing vigilance."
     -- Joseph Story
     Commentaries on the Constitution of the United States
     Book III, § 1857.

Thursday, February 26, 2004

Everyone's taking whacks at the proposed FMA, so here's mine. The proposed amendment goes too far, and not far enough. Given my druthers, this is what I would enact:

Section 1.
No existing provision of this Constitution, nor of any State Constitution, nor of any Federal or State law, shall be construed to define marriage as anything other than a union of one man and one woman. Any change to the institution of marriage shall enter the law through the acts of the people of the various States, speaking clearly through their elected representatives.
Section 2.
The Supreme Court of the United States is hereby reminded, the power set forth in the second sentence of Article IV, Section 1, of this Constitution, is given to Congress.
Section 3.
The people declare that, were it not for the unlawful actions of dishonest judges, this amendment would not have been enacted, and they deplore the judicial contempt for this Country's laws and institutions that made this amendment necessary. That the lesson not be lost, they further enact that Chief Justice Margaret H. Marshall and Justices John M. Greaney, Roderick L. Ireland, and Judith A. Cowin, all of the Supreme Judicial Court of the State of Massachussets, are hereby deprived of their offices, and are forever unable to hold any office of honor, trust, or profit under the United States or any of them, and that no act or order of the said Court, in any dispute pending on or after the First day of February, 2004, shall have any effect until their successors shall have been seated and rehear the matter.
That about covers it, I think.

-- posted by Clayton 2/26/2004 12:43:00 AM | comments (0)

Tuesday, February 24, 2004

Hmmm. My invitation was unaccountably lost in the mail, so here's my entry.

Top Ten Ways the Loony Moonbat Left Will Make Themselves Look Even MORE Hopelessly Ridiculous in 2004

  1. Former Vice President Al Gore, attempting to speak at Democratic rallies across the country, is continually attacked by rabid minks earlier "liberated" by ELF. Retired General Wesley Clark is subsequently charged with cruelty to animals.
  2. In a bid to revive flagging media interest in covering its protest marches, International A.N.S.W.E.R. starts buying its own bulldozers. It claims "vindication" when its "Drivers Wanted" web page is soon receiving more hits than Google.
  3. Fresh from receiving an honorary LL.D. from Harvard University, Mayor Gavin Newsom of San Francisco announces that the City will register all voters that apply, without regard to constitutionally-suspect categories like nationality, citizenship, and species. Mayor Richard Daley of Chicago sends him a telegram congratulating him for "thinking outside the box."
  4. Self-described "comedian" Al Franken challenges former President Ronald Reagan to a debate -- and loses.
  5. Invited to give a few brief comments at the Democratic Convention, Bill Clinton finally winds up his speech only after the DNC, in a last desperate attempt to reclaim the podium, sends Angela Lansbury onto the floor dressed as the Queen of Diamonds. In her speech the next day, Hillary Clinton chides the Party for its "lack of follow-through."
  6. After failing to win the nomination, the ketchup-spattered John Edwards, one of the few survivors of the Convention debacle, files a class-action suit on behalf of trial lawyers, and all others similarly situated, against the Democratic National Committee. The ATLA enthusiastically joins the suit, looking forward to a profitable decade spent individually deposing all registered voters.
  7. In a bold move to forestall a recurrence of the voting irregularities that marred the previous Presidential election, the Florida Supreme Court decrees that, in order to allow enough time for court challenges, tallies shall be due from each county five days before the election. The Canvassing Boards of Broward and Dade Counties easily meet this obligation, and Al Gore is certified the winner of Florida's electoral votes.
  8. A congressional investigation into the mayhem at the Democratic Convention discovers that the voting was rigged, and that the trigger for the massive carnage was a bucket of tomato ketchup suspended over the stage. The death of former candidate Howard Dean in a freak auto accident that same night is dismissed as a "mere coincidence."
  9. The United States Supreme Court, in Edwards v. Democratic National Committee, rules that whatever public purpose a legislature may wish to advance in preserving ballot secrecy (which, it notes, is not mentioned in the Constitution) cannot outweigh the rights of a plaintiff in a civil suit. Responding to cries of "un-American!" from the right-wing fringe, Justices Souter and Ginsburg flash metallic stars attached to their right breasts; the last remaining manufacturer of syrup of ipecac goes out of business.
  10. After losing the National election in a landslide, John Kerry swears himself into office as the "real President" in San Francisco, and begins assembling a Cabinet. The entire city is then flattened during an A.N.S.W.E.R. protest.

-- posted by Clayton 2/24/2004 01:03:00 AM | comments (0)

Tuesday, February 10, 2004

Eugene Volokh on a proposed approach to a Federal Marriage Amendment.

Consider the Article V process. Consider the enormous investment of time and effort required to get anything through it. Consider how much greater that investment must be, when the subject matter is as contentious as this one. Now picture the man who undertakes all this, when the goal of all his striving is, "We agree to disagree." Does this look just the slightest bit unrealistic, maybe?

Constitutional amendments are nuclear missiles, not spitwads. The courts have been able to get away with as much as they have, because the country isn't willing to reach for the nukes every time the courts go on a toot. And when the country is finally driven to push the button, it's not going to confine itself to half-measures; it will make sure the job gets done.

I find it interesting, though, that Volokh, a professor of law, is saying "I agree entirely" of a measure that openly proclaims, "We don't trust the courts."

And why do I have this suspicion that what Professor Bainbridge means by "reach[ing] consensus" is what Andrew Sullivan means in the same context? which is, "You've got one chance to see things our way, before we shove it down your throat."

-- posted by Clayton 2/10/2004 11:06:00 PM | comments (0)

Monday, February 09, 2004

Steven Den Beste on treason and dissent.

First, elaborating further on "enemies": The term, as used in Article III, has a specific meaning; it does not mean "who- or whatever the Federal government chooses to call an 'enemy.' " For a thing to qualify as an "enemy" under Article III, there must be an actual war on between us and it. The U.S. citizen giving aid and comfort to Jacques Chirac, say, is no traitor, no matter how hostile Chirac may be to our National purposes.

Second, elaborating upon the common-law idea of "treason": There were other reasons to define treason explicitly in the Constitution, besides its use throughout English history as a particularly gruesome weapon between rival factions. The common law of England defined many other things to be treason. Some of them were simply inapplicable to our republic, as, for example, "if a man do imagine or compass the death of our lord the King": murder still being murder, and the President, as the Framers emphasized, merely one among all us other civilians, requiring no special legal eminence in the matter of his death. Some were repugnant: An attempt on the chastity of the Queen, or of the King's eldest daughter, or of his eldest son's wife, was treason; such concerns, whatever their merits in an hereditary monarchy, do not apply when an office is elective. Some were and are crimes, though the Constitution forbids that they be treason: Counterfeiting, for example, was treason under English law; it is, at least for those familiar with 25 Edw. III c. 2, conspicuously excluded from the definition in Article III, but placed squarely within the authority of Congress in Article I, Section 8. A large part, also, of what motivated the Article III definition was the impulse that later expressed itself more clearly in the Eighth Amendment: No one with his head on straight would say that filing coins ought to be punished like that. This is not to ignore the more inventive constructive treasons as part of the Framers' motivation, but they do not tell the whole story.

Third, a reservation as to "dissent." As anyone who has raised small children knows, there is no value to be had in dissent per se. The value of any thought, or of any expression of thought, is in its content, and not in its accord with, conflict with, or indifference to any prevailing orthodoxy. Certainly dissent is nothing to tout for its own sake; if we set aside any consideration of the actual content of thought, we ought rather to prefer harmony to discord. We have, for example, the "prevailing orthodoxy," if you will, that the Earth is round; the man who insists on its flatness is a fool with nothing of value to contribute, his "dissent" earns nothing but contempt from me. We've seen a lot of this, especially, in the last two years: Utter ass-aches screaming at everyone they can force to listen: "Pay attention, I'm dissenting!": the subject under dispute, whatever it is, a mere detail to them; the magic word "dissent," on the other hand, all-important. The rejoinder comes, it is the freedom to dissent that is of such tremendous importance: to which I answer, that doesn't improve my opinion of the man who makes nothing more of his life than a chronic, dreary, obnoxious proof that, hey, it's still there.

Finally, as to wholly repugnant ideas: We forbid our government to interfere, not because all thoughts are deserving of protection, but because no one has ever found a way to empower the government drawing a line here without its eventually growing into the power to draw lines everywhere. If a clear principle were possible, such that decent society stood on the one side and NAMBLA (to use Steven's pet example) on the other, I would not at all mind watching every last squidgy bit of NAMBLA being crushed out of existence. Note, however, that phrase, "drawing a line." It is only recently under the Supreme Court's "expression" jurisprudence (insisting on the explicit drawing of all lines) that NAMBLA's advocacy has been protected; for most of this country's history such advocacy would have been criminal, not because anyone could point to a definite line crossed, but from the general common-sense view that the line, wherever it was, would have been crossed long since. And freedom, somehow, was not imperilled thereby.

Here's something for you to mull over, Steven: The fact that common sense is subject to the occasional pitfall does not invalidate it; it is still, in many contexts, far more valuable than any substitute rationalism can hope to provide. And if this is not the case, then there is no special value to be had in government by the people, and no reason to prefer it to, say, the new Byzantium erecting itself in Brussels.

-- posted by Clayton 2/09/2004 10:43:00 PM | comments (0)

Wednesday, February 04, 2004

David Bernstein on "Reasonable Accomodations" laws.

Here we have, right out in the open, what is wrong with the legal profession. If the context is the law (as it is on The Volokh Conspiracy), the advisability (or, as Bernstein has it, foolishness) of a law is no part of the discussion. Legislatures can, and often do, enact thoroughly stupid laws; they are laws nonetheless.

-- posted by Clayton 2/04/2004 09:05:00 PM | comments (0)




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