Constitutional P T Barnums

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Nothing annoys me more than when someone says something is constitutional or unconstitutional without that fact actually having been established. This is especially true when lawyers say this.

Recently, the new attorney general of Virginia, a bilious actor named Herring, said he refused to defend Virginia’s ban on same-sex marriage because “it’s unconstitutional”. Not only is Herring an ass, he is a liar, for no competent authority has ruled it so.

And so are the armies of gays in America’s side-saddle districts who proclaim the same thing. Only I can forgive them to some degree for they actually have some skin in the game (sic). They are, to some extent, innocent of knowingly making a false claim because they are unlettered in the deeper meanings of legal ethics and perhaps even the nature of lying (since fewer ever attended Sunday School to learn about the cosmic laws about lying, or have their britches stung for practicing it). They are mere children in these matters, just as your 10-year old Little Leaguer was when he stomped back to the dugout after having been called out on a strike that soared just under his capbill. “Dad, it was a ball!” “No son, it should have been a ball, but it was a strike,” you try to teach him.

These are lessons we have to repeat several times to our youngsters before it sinks in that some things are never so until they become official. And for a thing to become official, it must come from a competent, designated authority, always with worrisome afterthoughts about “competent”.

Constitution law is one of those things and it really grates at my craw to see grown adult men and women, many trained in the law, crow like Little-Leaguers all because a simple-minded federal judge who probably graded her own law school exam (Mencken), declared it.

(Over the past several years I often ask myself why I try to hold lawyers to a higher standard than Sunday School students, when for the learning they display about the deeper understandings of law, they may as well have learned a good trade at stamping out metal plates on a drill press.)

This is all about authority, and on this issue the Constitution is clearly the sole source of it, the Supreme Court the final arbiter of it.

Anyone who claims that authority in his own name is a liar. A damned liar. Anymore who simply guesses at that authority, without saying it is just his opinion, is a fool.

So it was when Chief Justice Roberts contorted his back, and broke America’s, by declaring Obamacare constitutional. Bad law for sure. Wiser minds simply hoped the Court would rule one way, maybe even laid a few bets, then we had to eat our words or pay up when the decision came down against us. This happens. But if we dared to say, as a matter of constitutional celestial certitude that Obamacare was unconstitutional, we weren’t just wrong. Ethically,

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we lied.

Not a big deal you say? Well it seems people who engage in this sort of ethical mendacity usually have other tricks up their sleeve. So it is a very big deal.

P T Barnum Meets Article V

The current case for an Article V convention of states to change the Constitution is a good example, for it is both a legal issue, wrapped up in scholarly dialogue, and is also a red-meat moral, philosophical and political issue for millions of average Americans, who are anxious to end this cycle of corruption and soft tyranny issuing from the Washington DC establishment. They want to lock and bolt a lot of doors government has cut out of the solid wall of protections the Constitution had erected for us.

So to some it is also worth a lot of money.

This combination of legal expert marksmen and citizens looking for someone to ride shotgun on the national stagecoach, can bring out the worst in some otherwise smart men. Or they wouldn’t have become lawyers in the first place. Some just naturally see true patriots grasping at straws and looking for protectors as gullible hayseeds who’ve just come to town for the county fair, begging to have their pockets picked at Ring Toss and Little Egypt’s bump and grind.

Article V says the state legislatures, 2/3rds of them, can “make application” to Congress to convene e convention. That’s about all, actually. Since one’s never been carried out, although states have been making application since before Hitler was born, there are no hard and fast rules as to what comes next. Questions abound: Can Congress just turn the states’ application down flat? And what happens if they do? How are delegates and voters apportioned in such a convention? Again, if Congress sets one number and the states’ set another, who decides? Finally, can the states, in their application, limit the scope of the the proposals that are made there; i.e, is it an open convention, where the entire document can be ripped apart and a new one substituted to replace it (good people don’t wants this, but most scholars think it is probable), or a limited or closed convention, where only a single or few predetermined issues will be discussed and voted on? Again, who decides if there’s a conflict between Congress and the states? Even ratification is held up in the air, for normally constitutional amendments coming out of Congress are sent o the states for ratification, requiring three quarters, but can ratification take place at the convention? This too has to be decided.

And do the people who pay the freight (the ordinary citizens) know these questions have yet to be answered? Or that the road to get them answered isn’t all that easy to navigate? Are citizens being convinced that all they have to do is twist the arms of their legislatures and it will all be fine?

As to who decides these questions, should a conflict arose over any of them, the Supreme Court is the designated authority. I think we can agree to that.

Of course Article V is itself constitutional, but it it is not yet determined as to whether any of the answers to any of those issues I asked above are also known to be constitutional. I have seen near-promises made, near-constitutional guarantees made, so that if the states ask for a convention with a limited agenda, it will be so, leaving no room for discussion as to what might happen if this is not the case, and the Supreme Court says it is not the case. Citizens, donors, and legislators alike need to know this now, not later.

As I said, anyone who says these questions have been already been answered falls into one of the two groups, damned liars or ethically challenged, woefully misinformed boobs.

Why I raise this is that I do not look unfavorably on any convention of states or compact that will make a good faith application to the Congress to make certain changes. Millions of fine, patriotic Americans want to see this done in the worst way and I’m on their side.

But I do look skeptically at many of the promises being made to these people in order to gain their support, the biggest promises being the very big “if’s” I raised above, that they are in fact, constitutional, or alternately, unconstitutional. As Festus Hagen would say, “That remains to be saw.”

And I look skeptically at the people who make them. When I see this, I then know the kind of company I’m in; hucksters or ignoramuses, and I have to proceed accordingly. This is why such a little lie can be such a big thing.

I’ve read many of the briefs by proponents of an Article V convention, but am not a scholar. It’s not for me to check their citations to see if the briefs are correct. But I can tell a horse from a mule. Still, that’s what they are, briefs…where one side presents his version of facts and law, while the other side does the same. These are arguments placed before a court to render a decision… not settled facts as they are often portrayed to the general public or legislators.

I’m not arguing this process isn’t going to be a tough slog, no matter which way it goes, rather that it is a flim-flam to tell people there won’t be a tough row if only the states will only line up and sign this resolution. I’d like to see the product labeled a little more accurately. And more humbly.

I won’t argue the merits of either side’s argument here (it would take thousands of words, boring words) but invite you to visit various websites, Citizens for Self Governance, Compact for America, Restore America Liberty Project, Mark Levin, Phyllis Schlafly and her Eagle Forum, and The Publius Huldah. Once again, quoting Festus, “Some are fer it, some are a’gin’ it.” Go read them for yourself then know that the road will be rockier than you probably imagined.

Ethically, we are watching a political movement here, being moved forward under the guise of being a constitutional cause, Holy Writ, as if the legal issues were already settled. This is not the case. And there is no handbook. Everyone is feeling their way, which belies the cocksuredness of the way some of these aluminum-siding salesmen are selling it. I don’t mind a little puffery as to the rightness of the cause, but as to the legal ease of 33 states to vote a resolution, then send a delegation to some meeting hall, then decide on a single amendment (a balanced budget seems to be on all the lists), or two, or three, then debate and decide on the right language, then ratify it all there on the spot, then go home and think they’ve changed one single thing is sheer hubris. Or madness.

Or something else.

Many citizens are led to believe that this is exactly what will take place if they just get their legislators on the phone and convince them to vote that resolution out of committee, the House, the Senate and the Legislature.

The greatest lie here is to cause the people to believe that a law or an amendment to the Constitution, by its own self-enforcing power, can make Congress, any Congress, or any president, behave better than they have in a generation. It is the most hideous sort of dishonesty. That Congress and the President already ignore existing law and constitutional prohibitions to state action, should force us to look at the darker possibilities of any amendment/law being put forth in this manner.

Having been aware of the “little lies” involved in this sales pitch, it is entirely appropriate for people to view any of these suggested amendments from the worst-case scenario point of view, regardless of the purported intentions of the sponsors.

America’s road to hell is already paved with good intentions, and can ill afford any more, yet I note a few wayward leftists’ names on mastheads of organizations sponsoring these conventions, which makes me worry about those same “good intentions” impregnating these amendments. That investigation continues (but for another time).

So today, we are justified to at least inquire, and ask that you inquire.

One such, which I will draw out here simply because I have already been drawn in, is the Balanced Budget Amendment being passed through House committees in Arizona right now. Now I don’t have to go any further than the Affordable Care Act, which 1) provides less care, not better, not more, and 2) is hardly affordable, driving much of the middle class into poverty, to be able to tell you that the name on a piece of legislation isn’t worth spit.

“Balanced Budget Amendment” is about as generic a term as you can come up with, because every Democrat has desired, since Reagan left office, to balance the budget, but only if we can tax the hell out of anyone owning a second pair of Nikes. This balanced budget amendment allows essentially this, for while it forces the Congress to balance the budget, it doesn’t prohibit a national sales tax or any other vehicle to raise revenue. Cutting government spending, while inferred, is never really locked in. So the beat goes on.

Publius Huldah stripped this amendment apart, not on constitutional grounds, but on practical political and accounting grounds, so I’ll let you see her argument here.

As the bartender says, “Take it outside, boys.”

This is why a public debate, a series of them in fact, state-by-state, in front of the people, tea parties, left-wing harpies, as well as legislators would be a good idea.

Just take it outside. I’ll wager, just as Dr Dawkins cannot ever answer that one question about Creation that dashes all his certitude about a Grand Design in the universe, there are questions that can be asked of these BBA sponsors they cannot answer. They can fill a Hyundai showroom lobby, a high school gymnasium or even Mile High Stadium, and I will wager more than half of the people will leave the arena believing they are being sold only half a loaf of bread. Hire a hall, and bring your people. I’m sure the other side will bring theirs.

And I will postpone all other forms of recreation to watch.

 

 

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bobmontgomery
bobmontgomery
March 7, 2014 12:36 pm

Case in point: There is an article in PJ Media by one Jack Dunphy, who used to be a cop, pleading that the Constitution only expressly forbids “unreasonable” searches and seizures, and not “warrantless” searches and seizures. – https://pjmedia.com/blog/a-warrantless-search-is-not-the-same-as-an-unreasonable-search/ – Apparently the phrase “no warrants shall obtain” is totally irrelevant to the discussion or he somehow contorts that to mean “warrantless searches” were smilingly approved by the founders. To me, the phrase, “no warrants shall obtain but on probable cause..” etc, is exactly the same as “Shall Not Be Infringed.” He goes on to cite a big long anecdote about… Read more »