Category: U. S. Constitution

Is Federalism a Way to Reduce Political Violence?

A while back, in a Substack article, I posed the question: Can Federalism Save Us? I suggested that it might. Now I am wondering whether that piece embodies a tension if not a contradiction.  But what is federalism? The term does not wear its meaning on its sleeve. As I wrote in that article:

Federalism is (i) a form of political organization in which governmental power is divided among a central government and various constituent governing entities such as states, counties, and cities; (ii) subject to the proviso that both the central and the constituent governments retain their separate identities and assigned duties. A government that is not a federation would allow for the central government to create and reorganize constituent governments at will and meddle in their affairs.  Federalism is enshrined in the Tenth Amendment to the U.S. Constitution: “The powers not delegated to the United States by the Constitution, nor prohibited to it by the States, are reserved to the States respectively, or to the people.” 

Now suppose that in some city or jurisdiction ruled by crime-tolerant leftists, rape, carjacking, murder, and so on are out of control. Chicago is a prime example. We right-thinking people despise crime and the policies of those who allow it and in some cases promote it. The agents  of the Trump administration, in conjunction with local law enforcement, could easily clean  up Chicago in the way they restored order to Washington, D. C.  So most of us Trump-supporting conservatives who hate crime and want to see it reduced, support federal intervention, even  when the Feds are uninvited and can be accused of meddling in local affairs. 

The tension, then, is between a commitment to the Constitution with its Tenth Amendment, which implies respect for states rights, and a salutary concern for the welfare of the poor souls who must inhabit a city dominated by benighted leftists.

Of course, we’ve been here before.  I don’t recall anyone in 1962 calling John F. Kennedy a fascist, though. Standards of civility have deteriorated drastically.  The times they have a changed.

Bob Dylan, Oxford Town. Paul Butterfield Blues Band, Born in Chicago.

Is Flag Burning Speech?

In the 1989 case “Texas v. Johnson,” SCOTUS handed down a 5-4 ruling according to which flag burning was a form of speech protected by the First Amendment.  Now if you read the amendment you will find no reference to flag burning.  The subsumption of flag burning under protected speech required interpretation and argument and a vote among the justices.  The 5-4 vote could easily have gone the other way, and arguably should have. 
President Trump’s recent Executive Order has set things right:
Notwithstanding the Supreme Court’s rulings on First Amendment protections, the Court has never held that American Flag desecration conducted in a manner that is likely to incite imminent lawless action or that is an action amounting to “fighting words” is constitutionally protected.  See Texas v. Johnson, 491 U.S. 397, 408-10 (1989).
The bit about ‘fighting words’ invites commentary.
Ought flag burning come under the rubric of protected speech?  Logically prior question: Is it speech at all?  What if I make some such rude gesture in your face as ‘giving you the finger.’  Is that speech?  It is a bit of behavior, no doubt, but there is nothing verbal about it. So consider ‘Fuck you!’ which is verbal. If it counts as speech, I would like to know what proposition it expresses. The content of an assertive utterance is a proposition. Propositions are either true or false.   ‘Fuck you!’ is neither true nor false; so it does not express a proposition.  It expresses an attitude of disdain, disgust, hatred, contempt, bellicosity. Likewise for the corresponding gesture with the middle finger.  The same goes for the burning of a flag. If someone burns a flag, I would like to know what proposition the person is expressing. There isn’t one, or at least there isn’t one that transcends the merely biographical.  “I hate the nation this symbol stands for!” Say that and you are merely emoting. 
The Founders were interested in protecting reasoned dissent about matters of common interest; the typical act of flag burning by the typical flag burner does not rise to that level.  To have reasoned dissent there has to be some proposition that one is dissenting from and some counter-proposition that one is advancing, and one’s performance has to make more or less clear what those propositions are.  I think one ought to be skeptical of arguments that try to subsume gestures and physical actions under speech. Actually, I am more than skeptical: I am strongly inclined to deny any such subsumption.  
My point, then, is that since flag burning is not speech, it is not protected speech. Of course, it does not follow that it is not in many cases an illegal act.
Am I suggesting that there should be a flag burning amendment to the U. S. constitution?  No.  Let the states and the localities decide what to do with those who desecrate the flag. Let’s consider some examples.
  • A man buys an American flag and burns it in his fireplace. Nothing illegal here.. He is simply disposing of a piece of private property in a safe manner. That is his right. The symbol is not the symbolized. Destruction of the former does not affect the latter. The spirit of the nation and its laws is not somehow incarnated in the piece of cloth, any more than the Word of God  is incarnated in a copy of the Bible.  (The final clause of the preceding sentence might ‘ignite’ some interesting discussions!)
  • Someone steals or desecrates the flag I am flying on my property. That illegal act comes under local laws.
  • Someone burns a flag in a tinder-dry wilderness area. That too comes under existing local and federal laws.
  • Someone steals or desecrates an American flag on display at a state or federal facility.  That also comes under existing laws.
  • Someone burns a flag in the presence of others in a public place in a manner that is likely to incite imminent violence. Here is where Trump’s EO applies. We must not tolerate the incitement of violence by speech — which I have argued flag burning is not — or by such nonverbal behavior as flag burning.

Calvinball, Big Balls, and the Age of Balls

A couple of ballsy articles for your cojonic delectation.

Jonathan Turley, The Judicial Calvinball of Justice Ketanji Brown Jackson

An excellent piece that ends on a weak and decidedly unmanly note: "I truly believe that Jackson can leave a lasting legacy and bring an important voice to the court." I'm guessing that the erudite and distinguished Professor Turley is afraid of being called a racist and a sexist.

Mike Solana, Age of Balls

It's an 'interesting' time to be alive. Who could be bored?

Birthright Citizenship and the 14th Amendment

Robert Kuttner, in a piece entitled Supreme Contempt for the Constitution, writes,

The Supreme Court issued a shocking ruling today, making it easier for President Donald Trump to overturn birthright citizenship. The way the Court did it was in keeping with its disingenuous strategy of using technicalities that allow it to duck the underlying question.

The substance of Friday’s 6-3 decision, written by Justice Amy Coney Barrett, involved a challenge to Trump’s executive order denying citizenship to children born in the U.S. to parents who are in the country illegally or temporarily. His order violated the 14th Amendment, which clearly holds that anyone born in the U.S. is a citizen, regardless of the circumstances.

This Kuttner is obviously a leftist ideologue. 14A does not "clearly hold" what Kuttner says it "clearly holds." Section 1 begins:

14A. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

The meaning of the amendment depends on how the clause I have set in italics is interpreted. Such interpretation is the office of SCOTUS the function of which is neither legislative nor executive. Its function is judicial.  Here is how  Stephen Miller and others read 14A.:

Let's talk about birthright citizenship. After the Civil War, Congress and America came together to ensure freedom for the children of slaves, not the children of illegal aliens . . . .

If you go to the UN today, the United Nations, [which is located in New York City] you have diplomats from all over the world. None of their babies become automatic American citizens. Why? 

Because they're [the diplomats are] subject to the jurisdiction of a foreign country. Their allegiance is to a foreign country. Their citizenship is to a foreign country.

Illegal aliens are no different, in fact, worse, because illegal aliens are expressly forbidden from even being on our soil. Their allegiance is to a foreign land. They're under the jurisdiction of a foreign nation.

Their children are not U.S. citizens, and the Supreme Court has now cleared the way for us to restore the actual meaning of the United States Constitution and the idea that this special privilege does not belong to illegal aliens and their children. 

The interpretation of 14A depends on  who the referents are of the phrase, "subject to the jurisdiction thereof."  Miller quite naturally takes the referents to be the parents of the illegal aliens.   Thus Miller et al. take 14A to be expressing the more explicit:

14A*. All persons born or naturalized in the United States, and WHOSE PARENTS are subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

On this reading birthright citizenship is ruled out. The actual formulation in the Constitution, however, is 14A.  The trouble is that  the actual formulation allows the following reading:

14A**. All persons born or naturalized in the United States, whether or not their parents are subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 

14A** is ruled out by the points Miller makes, one of them being that the children of foreign diplomats born to these diplomats while they are in the USA do not automatically become U.S. citizens.

I have made two main points. The first is that Kuttner is either bullshitting or lying when he claims that the meaning of 14A in its actual formulation in the Constitution is transparently clear. No, it NOT clear.

Second, and more importantly, the most plausible reading, is 14A* above, and NOT Kuttner's perverse hate-America leftist reading.

Birthright Citizenship

An important article. Mercifully brief. Double hat tip: Mark Levin, Tony Flood. Do your bit and propagate it.

The crucial phrase: "subject to the jurisdiction thereof." 

Critics claim that anyone born in the United States is automatically a U.S. citizen, even if their parents are here illegally. But that ignores the text and legislative history of the 14th Amendment, which was ratified in 1868 to extend citizenship to freed slaves and their children.

The 14th Amendment doesn’t say that all persons born in the U.S. are citizens. It says that “[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof” are citizens. That second, critical, conditional phrase is conveniently ignored or misinterpreted by advocates of “birthright” citizenship.

Trump’s Executive Order re: 2A

I had been toying with the idea of heading to the range tomorrow morning; this 2A news just in, I am now going for sure to celebrate the Executive Order with a bang.  One hundred rounds worth.

The Bill of Rights is just so much 18th century parchment unless and until backed up with Pb. 2A codifies the Pb. 2A does not grant a right to self-defense; it protects a right logically antecedent to governments, a right to defend not only your life and liberty, but also your property, including the property instrumental to the defense of the first two items of the Lockean triad.

Read the EO carefully. Do see where 'impinge' ought to have been 'infringe'?  Call me a pedant if you like, but you young people will never fathom the beauty, richness, and versatility of the English language if you don't read good old books, but restrict yourself to social media dreck  and the latest printed offerings.

Steve Bannon and Megyn Kelly on FAFO

Here.

Megyn Kelly, being relatively young, may be forgiven for referring to Elliot Ness as Elliot Nest (ouch!), but Steve Bannon, whose superannuation shows, and who ought to know better, either missed her mistake or let it pass, being the gentleman that he is.  

In all other particulars, however, the short video is delightfully on target.

As for the man himself, what Kennedy said about Nixon could also be said about Trump: "The man has no class."

But what is more important, both domestically and internationally, class or the ability to kick ass?* We conservative quill-drivers do some good, I suppose, but none of us are positioned to bring about decisive, world-shaking, change. While we sit at our ink wells and drive our quills, great men stand at the ramparts and drive history.

But we the people must keep an eye on them. It is not that power corrupts; it does not. It is that we who are all morally defective and susceptible to the blandishments of power, abuse it.  Power itself, however, is good. If it were not, why would all-power count among the omni-attributes of deity?

The Founders understood how easily fallen natures are suborned by the possession of power. So they designed a constitution-based republic with built-in safeguards to check and balance the executive's power lest it issue in tyranny.

Long live the Republic, the republic our political enemies aim to tear down.  They will not succeed. The right man came along at the right time, whether or not by divine design.

But one thing troubles me. Government by executive orders cannot be what the Founders had in mind. Given our current predicament, however, such orders are a necessary evil. If Congress did its job, they would not be necessary.

An executive order is an edict. 'Edict' and 'dictator' share the PIE root, deik-. And so, true to his word, Donald Trump was a dictator on Day One, reversing the pernicious edicts of his corrupt predecessor, Joseph Biden who on his first day, playing the dictator, viciously and stupidly reversed Trump's  wise  2017  border policies.  Biden ought to have been impeached and removed from office on the grounds of dereliction of duty and failure to uphold the Constitution he swore to uphold and protect.  But so divided have we become, that Biden's removal could not be brought about.

And so here we are. If in the unlikely event that the Dems take back the White House in 2028, the cycle of reversing and promulgating edicts will begin again.  A suboptimal outcome, that.

One more thing. We need an opposition party as part of the system of checks and balances. The Dems would do just fine if they could be restored to sanity, the Camelot sanity of the early 'sixties, say.  But that is a big 'if.' Kamalot would be a disaster. If the Dems persist in their subversive ways, however, serious thought will have to be given to the question whether their party should be outlawed. 

I'm serious. The CPUSA was never outlawed, as far as I know.** There was no need to, because of their relative lack of political clout. Outlawing them would only have given them attention and brought them supporters. But the transmogrification over the last decades of the Dems into a hard-Left subversive outfit with real chances of winning puts a different complexion on the matter.

Toleration is the touchstone of classical liberalism.  But toleration has limits: it negates itself when extended unto political suicide. 

____________

*To put it politely and allusively, 'kick donkey.'

**I'm not an historian, so correct me if I am wrong or omitting pertinent facts.

MAGA, Majority Rule, and Consent of the Governed

Here:

In short, the political battle between the Left and Right is best understood as an existential fight over what America will be. The Left pushes for a metanoic transformation, while the Right tries to catalyze an epistrophic one.

Metanoia is a forward-looking change — a recognition that one’s past way of life was flawed in some fundamental way. Regret precipitates a self-rejection that drives the transformation, which is a deliberate turning away from one’s previous identity. In contrast, epistrophe is a backward-looking change — a realization that at some point one betrayed the true self and embraced a false mode of being. Epistrophic transformation, then, is a return to one’s essential identity — a return to a previous (and more authentic) way of life.

Under the second Trump administration, America will be transformed — and it will be an epistrophic transformation. The citizens of the country have unmistakably rejected the Left’s claim that our traditional identity was morally untenable.

Very good over all, but is the last quoted sentence true? 

The concept democracy includes at least four sub-concepts: majority rule, universal franchise, equality before the law, and consent of the governed.  Consider the first and the fourth.  They are in tension with each other. Trump won both the Electoral College and the popular vote, but he won the latter only by about 2%.  So almost half of the voters did not give their consent to be governed by Trump and his entourage and to be subjected to his and their agenda. 

As a citizen and a patriot, I am very happy with the outcome: I want to see our political enemies soundly defeated and demoralized.  As a philosopher, however, one who values truth above all else, and along with it, the ancillary virtues of  precision in thought and speech,  I must point out that that it is false that the citizens have unmistakably rejected the depredatory Left's signature allegation.

The false claim is being thoughtlessly repeated by too many media pundits on our side. Widely bruited as it is, it may have the negative effect of causing complacency. We are in a war with the Left and it won't be over soon, if ever. The National Sanitation Project, as I have been calling it, may take a generation or more. All of our institutions need the political equivalent of fumigation.  That includes, of course, the RCC which, though not part of the state apparatus, is an institution that affects the course of the ship of state.

We Have a Problem . . .

. . . and according to Malcolm Pollack, there's no fixing it:

We have a problem, and as far as I can see, it isn’t going away; indeed, I expect it will get sharply worse in the wake of next month’s election. The problem, simply put, is that although the bedrock principle of the American political formula is “consent of the governed”, we have now reached the point where whichever faction comes to power will govern entirely without the consent of half the population.

This was not always the case. Once upon a time — within my own memory — there was enough commonality on social, political, and moral axioms that those out of power would subordinate their dissatisfaction to the importance of playing the game, and would look at political setbacks as little more than a bad year for the home team. “Next season” was never too far off, and meanwhile we could live with the opposition temporarily in power because we knew that, despite some differences about policy, we more or less agreed on the fundamental axioms of American life.

Now, things are different. For the losers in the next election (whichever side that is), being governed by the victors isn’t going to feel like like losing a round; it will feel like being subjugated. It’s going to be like having their homeland pillaged and their altars desecrated by a despised and unholy enemy before whom they will be made to kneel. And that is going to get worse, not better, as time goes by.

The two factions, the Cloud People and the Dirt People, each have power, but very different kinds of power (the power of the latter is still mostly latent and unorganized, but it is real). Clearly, we can’t live together, and neither is willing to be ruled by the other — but we can’t get away from each other, either.

The problem is summed up perfectly in the final sentence.  I don't have a real solution but a return to federalism may help mitigate tensions, as I suggest in my latest Substack upload.

Amendments or Addenda?

The Bill of Rights. Amendments or additions? A reasonable question and a good distinction.  Addenda. I owe the point and the distinction to James Soriano. It's obvious when you think about it, but the question hadn't occurred to me.

And always give credit where credit us due, else you'll end up like the Big Guy, a terminally unrepentant serial plagiarist and an 'inspiration' to such other 'presidents' as Claudine Gay.

Distinctions are the lifeblood of thought. 

Universal Suffrage

I wrote, on 4 March, 

The war is over the soul of America.  The question concerns whether we should (i) preserve what remains of America as she was founded to be, and (ii) restore those good elements of the system bequeathed to us by the Founders, while (iii) preserving the legitimate progress that has been made (e.g. universal suffrage), OR whether we should replace the political system of the Founders with an incompatible system which can be described as culturally Marxist.

As I was writing clause (iii) I realized that some to my Right, people I consider friends, whose intellect and judgment I respect, and with whom I agree on many fundamentals, would take issue with my endorsement of universal suffrage. They are against it. Two points in response.

The first is that the 19th Amendment, ratified 18 August 1920, will never be overturned.  The Amendment states, "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex." And so the question whether female citizens should have the right to vote, while of historical and theoretical interest, has no practical importance whatsoever. 

The second point is that, even if it could be overturned, it ought not be. Now I concede to my friends on the Right that women as as a group are not as politically astute as men as a group.  Their political judgment is inferior to that of men. This is a fact, and a fact is a fact whether you like it or not. We conservatives stand on the terra firma of a reality antecedent to human wishes and dreams. 

What I have just asserted is enough to bring down the wrath of  many feminists upon my head. They will hurl the 'sexist' epithet at me. And I will reply: It can't be sexist if it is true, and it is true.  This is a special case of a general principle: It cannot be X-ist if it is true.  Candidate substituends for the variable include 'age,' 'race,' 'species,' 'able,' and others. Particularly knuckleheaded is the accusation of 'ableism.' 

I have said enough to establish my conservative bona fides.

Why shouldn't the 19th Amendment be overturned?

Yesterday, on C-SPAN, I watched Rep. Elise Stefanik (R-NY) rake Christopher Wray, FBI Director, over the coals. She did a superb job, a job as good as any man could do. So I put the question to my friends on the Right: Do you think that Stefanik should not have the right to vote and participate in the political life of the country?

To nail down my point, here is a list, off the top of my head, in no particular order, of just a few females  who are lot better politically than a lot of men I could mention:

Jeanine Pirro, Maria Bartiromo, K. T. McFarland, Tulsi Gabbard, Riley Gaines, Candace Owens, Mollie Hemingway, Tammy Bruce, Faulkner Harris, Diane West, Laura Ingraham, Ann Coulter, Heather MacDonald.

Will the friends to my Right dismiss these women as wholly unrepresentative outliers? Do they have arguments? What might they be?

Article IV, Section 4 of the U.S. Constitution

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion . . . . (emphasis added)

Whence it follows that Joseph L. Biden is in dereliction of duty, an impeachable offence.  Furthermore,

“No State shall, without the Consent of Congress … engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.” — Article I, Section 10, Clause 3 of the U.S. Constitution

“As each state will expect to be attacked and wish to guard against it, each will retain its own militia for it own defense.” — James Madison, speech at the Virginia Ratifying Convention, June 16, 1788

“This is not over. Texas’ razor wire is an effective deterrent to the illegal crossings Biden encourages. I will continue to defend Texas’ constitutional authority to secure the border and prevent the Biden Admin from destroying our property.”

That’s the message sent via X (formerly Twitter) by Texas Governor Greg Abbott on Tuesday.

Obviously, Governor Abbott remains resolute.

And every patriot stands behind him.

The Constitutional Maverick

Richard A. Epstein:

The maverick takes issue with both modern liberals and modern conservatives because he alone refuses to abandon two key pillars of our classical liberal constitutional theory: limited government and strong property rights. The modern maverick thus works in the Lockean tradition that was ascendant during the founding period. This classical liberal approach should not be misconstrued to hold that all forms of legislation and taxation are illegitimate. The classical liberal is no hard-line libertarian, for she accepts the legitimacy of state power, even if she thinks that it is always an uphill battle to justify government limits on individual freedom. Stated otherwise, the classical liberal does not ask, as do modern liberals and conservatives, why any assertion of individual rights poses a challenge to democratic institutions. Rather, he insistently questions the extent to which democratic institutions may misuse political power to limit individual rights. The position is not geared solely to economic issues of private property and contractual freedom; it also extends to such key areas of human interaction as political speech and religious conscience.