Monday, July 04, 2022

Against All Odds

The best lack all conviction, while the worst are full of passionate intensity.                                                                                                                          William Butler Yeats

REPUBLICS ARE RARE.  Like coal, they can be reduced to dust.  But those well-organized—even when under great pressure—become diamonds. 

     This nation is a miracle taken for granted by too many.  But in the old days, the smart money was not on the Colonies.  No one was saying, “I’ll take the Americans and give you ten points.”  Sacrifice, the high tax of greatness, made it all possible—“our lives, our fortunes, and our sacred honor.”  Something too often forgotten—citizenship consists of rights and duties. 

     “The American militia, in the course of the late war, have, by their valor on numerous occasions, erected eternal monuments to their fame; but the bravest of them feel and know that the liberty of their country could not have been established by their efforts alone, however great and valuable they   were.”  (Alexander Hamilton, The Federalist Papers, No. 25) 

     In the aftermath of the war, fear of a standing army remained because memories of the Redcoats lingered.  But Alexander Hamilton knew the inadequate arrangements of the Articles would be corrected under the Constitution.  The report President Washington had Secretary of War Knox send to Congress in support of Universal National Service was to be a constant reminder of the benefits and burdens of citizenship.  Hamilton had foreshadowed the Knox Report in The Federalist Papers, where he made it clear that “a well-regulated Militia” concerns “national security” and is under the control, initially, of a Governor and, ultimately, the President of the United States.  (The Federalist Papers, No. 29)   

     The South has been a major source of confusion regarding the Second Amendment.  It is not about slave patrols, which were in effect long before, nor stand your ground and concealed carry.  Yet the South’s claims have served as an example to others to do the same.  Nevertheless, assertion and repetition do not equal truth.  But that does not stop some from trying. 

     The Southern strategy is lying.  The South pays lip service to the Constitution while longing to live under the Articles of Confederation.  Thus, the supremacy clause of the former must yield to the States’ rights of the latter.  (Article VI, Clause 2) 

     Treason—“levying war” against the United States—is the only crime defined in the Constitution because it is a threat to the life of the Republic.  (Article III, Section 3)  Treason—firing on Fort Sumter—was committed based on falsehood.  Reconstruction was halted based on falsehood.  And the Capitol was invaded based on falsehood, by those who followed in the footsteps of the Confederacy. 

     A proclamation to “insure domestic tranquility” is necessary to serve notice on the rebels and put them in touch with reality.  (Preamble)  Like Lincoln, Biden must wed the “take care” clause and the war power to enforce the “guarantee to every State in this Union a republican form of government.”  (Article II, Section 3 & Article IV, Section 4)  The objective: crush the rebellion and save the Republic.  Pursuant to Article I, Section 8, Clause 15 that gave Congress the power “To provide for calling forth the Militia to execute the laws of the Union, suppress insurrections, and repel invasions,” the Insurrection Act was passed—and must be invoked, because Article IV, Section 4 requires the United States to “protect each of them against invasion; and…domestic violence.” 

     America is a child of the Enlightenment, not the Dark Ages.  In the beginning, our cause seemed unlikely and, at times, hopeless.  Now, in the minds of some, nothing hung in the balance then, because the matter was never in doubt.  But the inevitable is an illusion, the appearance of what had to happen, after the fact—and from a safe distance.  In the end, patriots do not risk life and limb so others may simply lie and push Lady Liberty off her pedestal, then laugh as she stumbles, staggers on her way, possibly to die.  And now, the naysayers are nervous, for those who take things for granted forget that the existence of the United States of America is against all odds.

(c)2022 Marvin D. Jones.  All rights reserved.

[Against All Odds]

[The Second Amendment]

[Lincoln and Biden] 

Monday, June 06, 2022

The Anti-Slavery Constitution

THE SOUTH has defined American history in the minds of many.  But what the force of circumstances dictated does not make something so, nor sustainable. 

     In an early draft of the Declaration of Independence, Thomas Jefferson addressed the original sin of the British Empire—slavery.  “He has waged cruel war against human nature itself, violating its most sacred rights of life & liberty in the persons of a distant people who never offended him, captivating & carrying them into slavery in another hemisphere, or to incur miserable death in their transportation thither. This piratical warfare, the opprobrium of infidel powers, is the warfare of the Christian king of Great Britain, determined to keep open a market where MEN should be bought & sold.”  (Emphasis Jefferson’s)  But acknowledgement of that fact was too much for the South to bear. 

     After the Revolutionary War, the failings of the Articles of Confederation were glaring.  A new system of government was necessary. 

     The South wanted to increase its number of members in the House Representatives by counting each slave as one inhabitant.  The North was opposed, and the disagreement threatened the work of the Convention.  But the difficulty was overcome through the three-fifths compromise, which frustrated the South’s desires. 

     The emphasis on States’ rights, of which the South is still so enamored, was supported under the   previous charter.  Nevertheless, that document’s complete title, the Articles of Confederation and Perpetual Union, reveals the significance of the first phrase in the Preamble to the Constitution—“WE THE PEOPLE of the United States, in order to form a more perfect Union…”  (Italics added)  That statement of purpose, written by Gouverneur Morris, who was anti-slavery, is a clue as to the original intention and how to interpret the text. 

     Yet, once the new charter was ratified, the South hampered the transition from the Articles to the   Constitution.  Rather than adapt, by preparing for the day when new shipments of bodies would be banned, the South insisted upon passage of the Fugitive Slave Act of 1793.  (Article I, Section 9, Clause 1 & Article IV, Section 2, Clause 3)  Enforcement required Northern assistance, which was not forthcoming among those States that had abolished human bondage.  And in 1800, when Congress made it a crime to be involved in the international slave trade, the South did not change its ways.  Finally, “An Act Prohibiting the Importation of Slaves” became effective on New Year’s Day 1808. But rather than adapt, the South adopted the gag rule, which did not allow abolition petitions to be debated in the House—an echo of the complaint made against King George III in the Declaration.  “In every stage of these oppressions we have petitioned for redress in the most humble terms:  Our repeated petitions have been answered only by repeated injury.  A prince, whose character is thus marked by every act which may define a tyrant, is unfit to be the ruler of a free people.” 

     Nullification and interposition were assertions made by the Southern States that they were members of the Union only when it was convenient.  But the Bible Belt was also in defiance of the Scriptures supposedly held as sacred.  “If the foot shall say, Because I am not the hand, I am not of the body; is it therefore not of the body?  And if the ear shall say, Because I am not the eye, I am not of the body; is it therefore not of the body?”  (I Corinthians 12:15-16, KJV)  And the South did so even though Exodus was a clue as to how God viewed the peculiar institution.  Instead, the Bible Belt disrespected the Book on which the oath was taken and rejected what the raising of the right hand required one to acknowledge.  (Article VI, Clause 3)  “This Constitution, and the laws of the United States which shall be made in pursuance thereof…shall be the supreme law of the land…any thing in the Constitution or laws of any State to the contrary notwithstanding.”  (Article VI, Clause 2)  Thus, the South knew the material—and the spiritual—stakes.  For as it is written, “These six things doth the LORD hate: yea, seven are an abomination unto Him”; the last of which is, “A  false witness that speaketh lies, and he that soweth discord among brethren.”  (Proverbs 6:16 & 19, KJV) 

     Treason—“levying war against” the United States “or in adhering to their enemies, giving them aid and comfort”—is the only crime defined in the Constitution because it is a threat to the life of the Republic.  (Article III, Section 3, Clause 1)  Yet the South calls the conflict that began when the Confederates attacked Fort Sumter the War of Northern Aggression.  But assertion and repetition do not equal truth. 

     The South’s obstruction and armed opposition ended in defeat, and now the Lost Cause must be put to sleep.  Instead of “the South shall rise again,” the nation must use advances in medicine to act on an old diagnosis and perform the long delayed surgery.  The Civil War Amendments are the implements to complete the operation.  For even under the Articles of Confederation, the Northwest Ordinance prohibited slavery in that territory.  Then, the new charter, the Constitution of 1787, carefully avoided using the word, which was hardly a ringing endorsement of the practice.  Indeed, provision was made to schedule removal of the malignancy. 

     “It is a matter both of wonder and regret, that those who raise so many objections against the new Constitution should never call to mind the defects of that which is to be exchanged for it.  It is not   necessary that the former should be perfect; it is sufficient that the latter is more imperfect.  No man   would refuse to give brass for silver or gold, because the latter had some alloy in it….  Is the importation of slaves permitted by the new Constitution for twenty years?  By the old it is permitted forever.”  (James Madison, The Federalist Papers, No. 38)

(c)2022 Marvin D. Jones.  All rights reserved.

[Jefferson’s early draft]

[Fugitive Slave Act of 1793]

[International slave trade ban in 1800 & “An Act Prohibiting the Importation of Slaves” in 1808]

[The gag rule]

[How the South Won the Civil War by Harriet Cox Richardson]

Tuesday, March 01, 2022

As Putin Passes...

“We cannot negotiate with those who say, ‘What’s mine is mine and what’s yours is negotiable.’”                                                                                                                            John F. Kennedy 

Block him now, trip him now, stop him NOW!  Otherwise, what is next—Finland and Sweden? 

I. Diplomacy 

     The Allies, in consultation with Ukraine, must demand a ceasefire and an immediate withdrawal from Crimea, from the Donbas region, and the withdrawal of all foreign forces.  They must change the frame of reference by telling and retelling the truth endlessly:  Khrushchev gave Crimea as a gift to Ukraine and, after the Cold War, the four-power nuclear agreement, which Russia signed, recognized the sovereignty and territorial integrity of Ukraine.  It must be upheld.  Furthermore, the use of hijacked or kidnapped titles must end, for words matter.  Refer to Putin as Tsar because he is not the head of a republic. 

II. Defense 

     Article V of the North Atlantic Treaty must extend to the proposed Treaty of Grand Alliance.  In response to the invasion, associates of NATO—Finland and Sweden—must be under a declaration of protection, prior to membership; and Putin’s nuclear threats need to be countered with deployment of THAAD in Ukraine, as requested, and associate states, if desired. 

     In the United States, Universal National Service can advance “domestic tranquility” as well as “the  common defense,” as set forth in the Knox Report that President Washington had the Secretary of War send to Congress, which deals with the fact that the Second Amendment concerns national security.  (Preamble)  The time has come for those who have lied to put up or shut up. 

     ACES—the Allied Cleaned Energy States—is a key part of the Treaty of Grand Alliance, and together they can offer assistance to other cooperative nations.  Sanctions then become more effective as the world weans itself off a Nineteenth Century fuel source and protects the climate. 

III. Deterrence 

     National security is about survival, and the ability to adapt involves playing to one’s strengths.  The nation that masters the interplay between domestic and foreign affairs—with the economy on the cusp—commands the future.  And, in the nature of things, a republic has a better chance of getting the right balance and blend. 

     Article IV, Section 4 of the Constitution—“The United States shall guarantee to every State in this Union a republican form of government”—is, according to the Supreme Court in Luther v. Borden, a political question.  Thus, it must be invoked by the Executive against those States that deny or abridge the right to vote, which undermines the defining quality of a republic.  (Fourteenth, Fifteenth, Nineteenth, Twenty-fourth, and Twenty-sixth Amendments) 

     This is where the ideal and the reality become one.  Character is the union of thought, word, and deed directed toward a noble end.  The oath to support and defend the Constitution “against all enemies, foreign and domestic” is meaningless without it. 

IV. Determination 

     When President Kennedy addressed the nation on the Berlin crisis on July 25, 1961, West Berlin was an island in a communist sea.  “The freedom of the city is not negotiable.  We cannot negotiate with those who say, ‘What’s mine is mine and what’s yours is negotiable.’”  Today Berlin is the capital of a reunited Germany.  A strong defense upholds deterrence and supports diplomacy. 


Monday, January 17, 2022

The Imperial Court

“Ultimately in our system of government the Supreme Court is first among equals.”  (First Among    Equals by Kenneth W. Starr, xvi)

THE UNITED STATES OF AMERICA won independence despite the Articles of Confederation, and the Constitution was created to overcome that document’s defects.  But the transition from the one to the other is not quite done.

      The Articles of Confederation were an invitation to confusion, which some seek to reintroduce.  For a basic principle of Anglo-American jurisprudence acknowledged by William Blackstone, James Madison, and Chief Justice John Marshall —“Where there is a right, there is a remedy”—was violated by the Texas abortion law, which has effectively overturned Roe v. Wade in that State.  Yet certain members of the High Court did so too through the shadow docket and violated the supremacy clause:  “This Constitution, and the laws of the United States which shall be made in pursuance thereof…shall be the supreme law of the land…any thing in the Constitution or laws of any State to the contrary notwithstanding.”  (Article VI, Clause 2) 

I. The Least Dangerous?

      Judicial review is vital to the health of the American Republic, as Alexander Hamilton made clear.  “The complete independence of the courts of justice is peculiarly essential in a limited Constitution.  By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like.  Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void.  Without this, all the reservations of particular rights or privileges would amount to nothing.”  But for some, the oath is meaningless, and the duty to be “faithful guardians of the Constitution” is lost.  (The Federalist Papers, No. 78; emphasis added) 

     Even before we became free, the country’s birth certificate declared that rights were to be protected by governments “deriving their just powers from the consent of the governed.”  Then the Constitution did so, creating, in Benjamin Franklin’s words, "A republic, if you can keep it."  And James Madison’s definition hearkened back to the Declaration:  “A republic, by which I mean a government in which the scheme of representation takes place....”  (The Federalist Papers, No. 10)  Thus, one thing about “the manifest tenor of the Constitution” is beyond reasonable doubt.  (Alexander Hamilton, The Federalist Papers, No. 78)  From beginning to end, America is a republic and the right to vote is inherent to the same.  And the Framers added an exclamation point, because according to Article IV, Section 4,          “The United States shall guarantee to every State in this Union a republican form of government....”    

     The right Thomas Paine said made all others possible—the right to vote—is now in jeopardy, and the Court has put it at risk repeatedly.  In 2000, Justice Scalia stopped the counting of votes in Florida with an injunction, even though James Madison said at the Federal Convention the involvement of the national judiciary “was out of the question.”  Nevertheless, Chief Justice Rehnquist wrote the majority opinion in Bush v. Gore that installed the Governor of Texas, even though Madison said at the Convention, in regard to the Electoral College, the President “is now to be elected by the people.”  Furthermore, if no one had a majority, the decision would be made by the House of Representatives.  In 2013, Chief Justice Roberts wrote the majority opinion in Shelby v. Holder that gutted Section 5 of the Voting Rights Act.  That provision required States or localities with a history of discrimination to get pre-clearance from the Department of Justice before changing laws, rules, or procedures related to voting.  In 2021, Justice Alito wrote the majority opinion in Brnovich v. Democratic National Committee that gutted Section 2.  That provision created an effects test, that is, it prohibited laws whose actual impact was discriminatory.  But the Court has denied and abridged the consent of the governed and made a republic harder to keep. 

II. Original Intention 

     “To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them; and it will readily be conceived from the variety of controversies which grow out of the folly and wickedness of mankind, that the records of those precedents must unavoidably swell to a very considerable bulk, and must demand long and laborious study to acquire a competent knowledge of them.”  (Alexander Hamilton, The Federalist Papers, No. 78; emphasis added)

     The Court is a collegial body that exists to “establish justice.”  (Preamble)  It is not a lifetime Cabinet with a Prime Minister in a robe.  “The Judges, both of the Supreme and inferior Courts, shall hold their offices during good behavior….”  (Article III, Section 1)  Thus, jurists’ deeds must be consistent with their trust.  Only then can their tenure continue, as they become acquainted with those “strict rules and precedents.” 

     The question of “good behavior” arises because of the aforementioned violations of a basic principle of Anglo-American jurisprudence—“Where there is a right, there is a remedy”—and the supremacy clause, as well as “the manifest tenor of the Constitution.”  (Article VI, Clause 2 & Alexander Hamilton, The Federalist Papers, No. 78)  For Judges, like “all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.”  (Article II, Section 4; emphasis added)

     It is a mistake to view things in isolation.  The present imbalance is related to past dubious elections.  They were made possible due to the misrepresentation and misuse of a misunderstood institution.

     The Electoral College has two functions—popular choice and national security.  In 2000, there was a failure in Florida to observe the first and to follow the constitutional procedure.  In 2016, foreign influence was a problem—one the Framers feared.  But the Electors failed to act as the final check on fraud and terminate the threat.  Popular choice and national security were cast aside, which caused a political discontinuitya misalignment of means and ends, a condition where a minority rules the majority.  Thus, the results in 2000 allowed the man the Court promoted to put John Roberts and Samuel Alito on the bench; and the results in 2016 allowed the man who benefited from the Russian Connection to add Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.

     “…(T)here is one basic check on a runaway Court: presidential elections,” as Professor Bruce      Ackerman pointed out in noting the significance of Bush v. Gore.  “The Supreme Court cannot be permitted to arrange for its own succession.  To allow (Bush the Younger) to serve as the Court’s agent is a fundamental violation of the separation of powers….  The right-wing bloc on the Court should not be permitted to extend its control for a decade or more simply because it has put George W. Bush into the White House.”  (Emphasis added)

     The situation has gotten worse.  On February 13, 2016, a duly elected President was not permitted to make an appointment, when the opportunity arose, based on a remarkable statement by Senator Mitch McConnell—“The American people should have a voice in the selection of their next Supreme Court Justice”—which was used to deny a hearing and a vote on the nomination of Merrick Garland.  But in 2020, the McConnell Rule changed so Amy Coney Barrett could be confirmed. 

     Now comes resonance in the presence of the past.  Professor Ackerman’s concern over “a fundamental violation of the separation of powers” was shared by Alexander Hamilton. 

     “… (T)hough individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the Legislature and the Executive.  For I agree, that ‘there is no liberty, if the power of judging be not separated from the legislative and executive powers.’  And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments; that as all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation…”.  (The Federalist Papers, No. 78; emphasis added) 

III. Approbation 

     No to the views of ire that would descend the darkest reaches of invention.  Reform must mean a return to origins, to the intentions of the Framers—and redeem the Court thereby.  Thus, the number of seats must not be increased at random but be equal to the Courts of Appeals, and each Justice would oversee a circuit. 

     Nominations and hearings regarding Judges need a new S.O.P.  These are the essential elements that must be weighed—the institution, the individual, ideology, interaction, image, impact, and intersection.Thus, the current composition of the institution needs to be carefully considered.  An individual who seeks truth—and is not a predictable vote—is invaluable, for ideology is a leading cause of blindness.  Their interaction will affect the image of the institution and its ingredients.  The impact on American jurisprudence and American lives will be significant, in a positive sense, provided respect is paid to Hamilton’s basic requirements of the least dangerous branch—the importance of reason, awareness of its role, and the exercise of restraint.  If acted upon, they make it unlikely that “a long train of abuses and usurpations” will continue.  But one fault merits immediate removal from the bench, because the intersection or union with the other branches undermines the constitutional design and endangers the freedom the separation of powers was meant to defend. 

     Much of the problem is one of neglect, a failure to exercise options readily available.  In regard to the Electoral College, the press could help by educating the public about its two functions—popular choice and national security—and the politicians could enact the National Popular Vote so that it is clear to the Electors who must perform them.  In regard to nominations, the i’s have it. 

     Beyond appointments and removal, thought must be given to regular review of judicial conduct.  A House Judiciary Subcommittee to enforce “good behavior” would be the place for professional and public complaints, which, if criminal, shall be referred to the Department of Justice—and that must be done when nominees commit perjury before the Senate.  Finally, Judges who hide behind unsigned orders are unworthy to sit on any bench.  In the future, they must be required to sign by law.  Meanwhile, waterboys should stand while guarding the bucket—and wear a dunce cap. 

IV. The End 

     The transition from the Articles to the Constitution was necessary to correct the shortcomings of the former.  Then something vital could be done. 

     “A circumstance which crowns the defects of the Confederation remains yet to be mentioned, the     want of a judiciary power.  Laws are a dead letter without courts to expound and define their true     meaning and operation….  To produce uniformity in these determinations, they ought to be submitted, in the last resort, to one SUPREME TRIBUNAL.”  (Alexander Hamilton, The Federalist Papers, No. 22, italics added; CAPITAL emphasis Hamilton’s) 

     Because Chief Justice John Marshall understood the importance of reason, the Court’s role, and the exercise of restraint, he produced uniformity in the determinations of the SUPREME TRIBUNAL.  Out of 1,129 cases, 1,042 were unanimous.                

(c)2022 Marvin D. Jones.  All rights reserved.  [THE LEAST DANGEROUS…DURING GOOD BEHAVIOR]

James Madison’s extended definition of a republic:

           ...(W)e may define a republic to be, or at least may bestow that name on, a government            which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure, for a limited period, or during good behavior.  It is ESSENTIAL to such a government that it be derived from the great body of the society, not from an inconsiderable proportion, or a favored class of it; otherwise a handful of tyrannical nobles, exercising their oppressions by a delegation of their powers, might aspire to the rank of republicans, and claim for their government the honorable title of republic.  It is SUFFICIENT for such a government that the persons administering it be appointed, either directly or indirectly, by the people; and that they hold their appointments by either of the tenures just specified; otherwise every government in the United States, as well as every other popular government that has been or can be well organized or well executed, would be degraded from the republican character.  (The Federalist Papers, No. 39; CAPITAL emphasis Madison's; italics added)  [THE ELECTORAL COLLEGE WITHOUT BLINDERS]  [NATIONAL POPULAR VOTE]

Wednesday, October 27, 2021

Calling A Spade...

“The right of voting for representatives is the primary right by which other rights are protected.  To     take away this right is to reduce a man to slavery, for slavery consists in being subject to the will of     another, and he that has not a vote in the election of representatives is in this case.” ~ Thomas Paine    

     The Freedom to Vote Act, Joe Manchin’s bill, died in the Senate last week.  A Republican filibuster was the murder weapon. 

     Instead of handwringing, those who take the oath seriously must thwart those who do not.  Therefore the President must send a message to Congress and “recommend to their consideration such measures as he shall judge necessary and expedient.”  (Article II, Section 3)  Change the name of Manchin’s bill to the Consent of the Governed Act and remove the Photo ID provision, which advances the Republican lie about voter fraud.  Pass the amended bill in the House on a roll call vote so the GOP can filibuster in the Senate again.  Then produce a list of suspects and put out a WANTED poster of those responsible for its failure. 

     Meanwhile, Republican Governors and Legislatures have passed bills—in violation of the Fourteenth, Fifteenth, Nineteenth, Twenty-fourth, and Twenty-sixth Amendments—that deny or abridge the right to vote.  But they had accomplices.  The door was opened by the Chief Justice who gutted the guard outside, Section 5 of the Voting Rights Act.  Then, once in, Sam “The Stiletto” Alito did the same to Section 2. 

     Despite the fact that Congress has the power to pass legislation pursuant to the aforementioned   amendments, the Supreme Court gutted the Voting Rights Act, and allowed Republican Governors and Legislatures to undermine “the primary right by which other rights are protected.”  And that confirms a warning made over two centuries ago. 

     “(T)hough individual oppression may now and then proceed from the courts of justice, the general  liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the Legislature and the Executive.  …(L)iberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments; that as all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation….”  (Alexander Hamilton, The Federalist Papers, No. 78; emphasis added) 

     Two dubious elections, in 2000 and 2016, made a 6-3 self-styled “conservative” majority possible.  Thus, Bush the Younger appointed John Roberts and Samuel Alito.  Then the Chief Traitor appointed Neil Gorsuch, Brett Kavanaugh, and Amy Coney  Barrett.  But President Obama appointed no one because of the McConnell Rule.  For the Majority Leader said, "The American people should have a voice in the selection of their next  Supreme Court Justice"; and by making something up he denied a hearing and a vote on the nomination of Merrick Garland. 

     The gentleman from Kentucky ran afoul of the Constitution, when his deed is compared to the words of one of the Framers in regard to “the nature of the agency of the Senate in the business of appointments.”  For Alexander Hamilton contradicts the McConnell Rule: “There will, of course, be no exertion of CHOICE  on the part of the Senate.”  And Hamilton shows what the Majority Leader did was an abuse of power:  "They might even entertain a preference to some other person, at the very moment they were assenting to the one proposed, because there might be no positive ground of opposition to him...."  (The Federalist Papers, No. 66; emphasis added)  Then, in 2020, the McConnell Rule was ignored when the Majority Leader did indeed “entertain a preference to some other person.”  But the damage had already been done.  And now there is “every thing to fear from… such a union…, notwithstanding a nominal and apparent separation….”  After all, Justice Amy Coney  Barrett paid homage to him at the University of Louisville’s McConnell Center. 

     Chief Justice Roberts and Justice Alito chose to ignore a basic precept of Anglo-American law supported by William Blackstone, James Madison, and Chief Justice John Marshall—“Where there is a right, there is a remedy.”  And now is the time to provide relief and stop those who are breaking the tablets. 

     In taking the oath to “preserve, protect and defend the Constitution of the United States,” the President must then “take care that the laws be faithfully executed”; and the Constitution is “the supreme law of the land…any thing in the Constitution or laws of any State to the contrary notwithstanding.”  (Article II, Section 1, Clause 8; Article II, Section 3 & Article VI, Clause 2)  According to Article IV, Section 4, “The United States shall guarantee to every State in this Union a  republican form of government....”  It is clarified through brief remarks by James Madison.  “A republic, by which I mean a government in which the scheme of representation takes place....”  (The Federalist Papers, No. 10)  And that is another way of saying “the consent of the governed.”  Therefore the Executive must go to a District Court to get cease and desist orders against States in violation and couple Article IV, Section 4 and Section 2 of the Fourteenth Amendment.  The latter provides the means to enforce the former so that “the basis of representation therein shall be reduced in the proportion which the number of...citizens shall bear to the whole number of...citizens (eighteen) years of age in such State.”  (Fourteenth Amendment, Section 2; the citation has been adjusted to reflect subsequent amendments that gave women the right to vote in all the States and that lowered the voting age to eighteen; emphasis added)  Thus, the recalcitrant would have fewer members in the House. 

     Even if cease and desist orders are granted, the Executive must bring charges against Governors and legislators who have violated the Constitution’s voting rights provisions—the Fourteenth, Fifteenth, Nineteenth, Twenty-fourth, and Twenty-sixth Amendments—and the statutes enacted to enforce them.  For they are engaged in a conspiracy to deny or abridge the right to vote under color of law.  (Title 18, Section 241 & 242 of the United States Code)  Furthermore, their efforts are part of a conspiracy to defraud the United States of America in support of a rebellion or insurrection.  (Title 18, Section 371 & Section 2383 of the United States Code) 

     The actions of the Republicans are the very definition of un-American.  They love to talk about “life, liberty, and the pursuit of happiness.”  But they ignore the part about governments “deriving their just powers from the consent of the governed.”  Had the Founders done the same, the country’s birth certificate would have listed a stillborn. 

Copyright 2021 Marvin D. Jones.  All rights reserved.


[Justice Amy Coney Barrett at the McConnell Center]

Thursday, October 14, 2021

A Last Resort

“This Constitution, and the laws of the United States which shall be made in pursuance thereof…shall be the supreme law of the land…any thing…to the contrary notwithstanding.”  (Article VI, Clause 2;  emphasis added) 

THE DEBT CEILING was established by the Second Liberty Bond Act of 1917.  It is the technicality of technicalities and of dubious constitutionality. 

     The debate over debt management or default was settled in the beginning.  The latter was out of the question.  James Madison dismissed “the pretended doctrine that a change in the political form of civil society has the magical effect of dissolving its moral obligations.”  (The Federalist Papers, No. 43)  “All debts contracted and engagements entered into, before the adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.”  (Article VI, Clause 1)  The “original intention” was to make our word true.  Thus, Secretary of the Treasury Alexander Hamilton gave force and effect to Article VI, Clause 1.  His measures made meaningful the related power “to borrow money on the credit of the United States.”  (Article I, Section 8, Clause 2)  He established the good faith of the nation and gave us our good name.  Therefore the precedent of the Washington Administration must stand. 

     Whenever a dispute arises over Article VI, Clause 1, the President must send a message to the House of Representatives, which has “(t)he exclusive privilege of originating money bills.”  (Alexander Hamilton, The Federalist Papers, No. 66)  Then, after giving due notice, Biden would issue a Proclamation on Public Credit declaring that the United States will not default.  The President would do so through an Executive Order on the Means of Extinguishment and invoke the Gephardt Rule, which simply stated that the debt ceiling was “deemed to have passed” when a budget resolution was approved. 

     “No axiom is more clearly established in law, or in reason, than that whenever the end is required, the means are authorized; whenever a general power to do a thing is given, every particular power      necessary for doing it is included.”  (James Madison, The Federalist Papers, No. 44)  In taking the oath to “preserve, protect and defend the Constitution of the United States,” the President must then “take care that the laws be faithfully executed”—and the Constitution is the first law.  (Article II, Section 1, Clause 8; Article II, Section 3 & Article VI, Clause 2)  Thus, a Proclamation on Public Credit and an Executive Order on the Means of Extinguishment* can be issued on the basis of prerogative, which John Locke defined as “nothing but the power of doing public good without a rule.”  (Second Treatise of Government, 166)  The same point was made in the debates contained in the Pacificus and Helvidius letters after Washington issued the Proclamation of Neutrality in 1793; it was described in TR’s stewardship theory; and it was restated when JFK said that, at times, a President must use the full powers of the office—“all that are specified and some that are not.” 

     “There is no position which depends on clearer principles than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void.”  (Alexander Hamilton, The Federalist Papers, No. 78)  The debt ceiling is a statutory provision while Article VI, Clause 1 is reaffirmed by Section 4 of the Fourteenth Amendment:  “The validity of the public debt of the United States, authorized by law,…shall not be questioned.”  Thus, the Second Liberty Bond Act of 1917 was not “made in pursuance thereof” and, is, therefore, void.   (Article VI, Clause 2) 

     THE END OF THE PREAMBLE makes clear the purpose of the Constitution—to “promote the general welfare and secure the blessings of liberty to ourselves and our posterity.”  But that becomes impossible if we cannot survive in the material world.  And those threatening to make the nation destitute—who will condemn the use of prerogative, “the power of doing public good without a rule”—must consider James Madison’s words regarding interpretation of the supreme law of the land.  

     “There are two rules of construction, dictated by plain reason as well as founded on legal axioms.  The one is that every part of the expression ought, if possible, to be allowed some meaning, and be made to conspire to some common end.  The other is that where the several parts cannot be made to coincide, the less important should give way to the more important part; the means should be sacrificed to the end, rather than the end to the means.”  (The Federalist Papers, No. 40)

(c)2021 Marvin D. Jones.  All rights reserved.

*On January 9, 1790, Alexander Hamilton sent the First Report on Public Credit to the House of Representatives.  He stated that “…(T)he creation of debt should always be accompanied with the means of extinguishment.”  Therefore, in his Executive Order, President Biden should instruct the IRS to carefully review provisions of the tax code that would increase revenue.  In the Second Report on Public Credit, on December 13, 1790, Hamilton proposed the creation of a national bank.    [the Gephardt Rule]    [Mitch McConnell objecting to his own debt ceiling proposal]

Friday, October 01, 2021

Too Many Notes

 THE AFGHANISTAN WITHDRAWAL presents an opportunity to move beyond the narrow band and expand our awareness.  For the tendency to view things in isolation must change. 

     Events may create a false impression.  But, as the song goes, however they seem, “It ain’t necessarily so.”  Appearances can be deceiving:  America is not in decline but in confusion. 

     Transitions are waves which ebb and flow between calm and stormy like a whisper or a howling wind.  In the Great Republic, history shows these to be particularly difficult to navigate—a natural death, an assassination, a disputed election. 

     Misguided decisions can be made due to a natural death or an assassination.  But the reverberations from a disputed election may cause a tsunami, a disaster set in motion by a political discontinuity—a misalignment of means and ends, where a minority rules a majority. 

     When FDR died, the Allies were months away from victory.  Truman saw it through to the end.  But had Roosevelt lived, the French position in Indochina would have been weakened without American support, and Vietnam would not have been subject to colonial rule. 

     Had JFK lived, the withdrawal of advisers from Vietnam would have continued with 1,000 out by      December 1963 and the rest by 1965.  But Johnson committed combat troops. 

     In 2000, had Florida not purged its voter rolls, or if the recount had not been halted, Gore would have been elected.  Then a full, smooth interregnum raises questions as to whether 9/11, Afghanistan, and Iraq would have happened. 

     In 2016, a perfect storm of chutzpah and complacency led to a slow motion and continuing catastrophe.  As Alexander Hamilton noted, “Nothing was more to be desired than that every practicable obstacle be opposed to cabal, intrigue, and corruption.  These most deadly adversaries of republican government might naturally have been expected to make their approaches from more than one quarter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils.  How could they better gratify this, than by raising a creature of their own to the Chief Magistracy of the Union?”  (The Federalist Papers, No. 68)  Yet the failure to understand that the Electoral College has two functions—popular choice and national security—allowed the man with fewer votes, plus the Russian Connection, to be raised to the highest office.  But, as James Madison noted, “One advantage of Electors is, although generally the mere mouths  of their constituents, they may be intentionally left sometimes to their own judgment, guided by further information that may be acquired by them….”  (The Electoral College by Lucius Wilmerding, Jr., 180-181)  Thus, the chance to make use of the final check on fraud was missed.

      A disputed election raises questions regarding legitimacy, for power and responsibility are severed, as are rights and duties.  Then the vessel is without proper ballast, and the broken bonds between captain and crew set the ship of state on a perilous course.  The great danger is that they will be ill-prepared for battle or diplomacy.  Thus, the Chief Traitor betrayed the Kurds in 2019 and negotiated the Doha Agreement of 2020—a surrender to the Taliban.  And at home, he encouraged an insurrection. 

     Confusion reigns in Ignorance, and its inhabitants speak loudly and curry a big mob.  But there is more to being an American than birth in the United States, or through the lineage of one’s parents, or by naturalization.  American citizenship is defined by rights and duties, and adherence to ideals even when inconvenient.  Thus, beyond legalities, it is a state of mind. 

     Without memory, we are lost.  Without memory, there is no sense of self, whether an individual or a nation. 

     After his ordeal, Job had a debriefing with God. 

     “Doth the eagle mount up at thy command, and make her nest on high?”  (Job 39:27, KJV) 

     The Great Seal of the United States of America is a reflection of the fact that we are spiritual beings in material bodies.  The eagle can mount up.  But she can only make her nest on high with Divine Providence.  For here, citizenship is about character—the union of thought, word, and deed directed toward a noble end. 

     To achieve true greatness in the material world, represented by the eagle on the Great Seal, we can no longer ignore the reverse side with the All Seeing Eye.  To make our nest on high, there must be an American Renaissance, what Lincoln called “a new birth of freedom.”  Then we can complete the mission and fulfill our destiny. 

     The Great Seal captures the essence of what we are meant to be.  The Capitol reinforces the same.  It is a temple of liberty, and the dome is a symbol of transcendence.     

     The influence of assertion and repetition cannot go unchecked.  Reagan’s error must be corrected.  The restoration—and enhancement—of the fairness doctrine is an absolute necessity.  For anyone who doubts the power of unrebutted falsehood need only look at Afghanistan.  President Biden acted as if the Chief Traitor’s agreement was legitimate when there were grounds for objection. 

     “As to corruption,” John Jay noted, in trying to imagine the unimaginable, “the case is not supposable….  The idea is too gross and too invidious to be entertained.  But in such a case, if it should ever happen, the treaty so obtained from us would, like all other fraudulent contracts, be null and void by the law of nations.”  (The Federalist Papers, No. 64) 

     Knowledge is the foundation of the American Republic.  On the first page of The Federalist Papers, Alexander Hamilton compared and contrasted two systems.  One depends on “accident and force”; the other is guided by “reflection and choice.”  Decisions based on the latter are open to nuance, while the former is chained to the reptilian brain where things are only this or that way.

     The Framers were thoughtful, and they are not at fault if we fail to follow in their footsteps.  As Drill Sergeant Hart, a Ranger, said regarding the Seven P’s, “Poor prior planning produces poor present performance.”  Preparation is a prerequisite of survival, but the failure to consider more than the material prevents the merger of ideals and reality to create A NEW ORDER OF THE AGES.

(c)2021 Marvin D. Jones.  All rights reserved.

1)  [ “too many notes”]  

2)    [“It ain’t necessarily so”] 

3)  The Best and the Brightest by David Halberstam, 79-84    [the significance of FDR’s death and French colonial rule] 

4)  JFK and Vietnam by John Newman    [the rest by 1965]         

5)    [Gore would have been elected] 

6)    [ill-prepared for battle or diplomacy] 

7)  The remarks on the Great Seal and the Capitol are based on the work of Dr. Robert Hieronimus and William Henry. 

8)    [Transcendence]

9)    [Reagan’s error must be corrected]

 10)  A NEW ORDER OF THE AGES    [NOVUS ORDO SECLORUM on the reverse side of the Great Seal]