Wednesday, August 25, 2004

Campaign Finance Law vs. the 1st Amendment

Highly recommend taking a gander at today's op-ed in the Washington Post by Robert J. Samuelson titled "So Much for Free Speech." Great synopsis of the Constitutional issues surrounding McCain-Feingold. People worry about profiling as an infringement of their rights but willingly accept this travesty. Go figure.

Saturday, August 07, 2004

For uncommon viewing pleasure

I've on more than one occasion sworn an oath to seek vengeance upon my cable company and rid myself of their usury. But, alas, I love the internet. Even more do I love my broadband connection and, with a self-satisfied air of superiority, pity those not so blessed. But I digress.

Today I discovered the "Uncommon Knowledge" program site that is produced by the Hoover Institution for PBS. One may browse through the archives of programs at the "Season" page. These programs are available as streaming video, audio feeds or in transcript form. Two from the past 2003-2004 season are of particular interest to those lurking in ConstitutionAlley. The first is an interview with Robert Bork discussing the meaning of being a Constitutional "originalist" and contrasts this with those who prefer a "living" Constitution. The second is a three-way discussion regarding judicial review and whether or not the Supreme Court is the "supreme" and "final" arbiter of all things Consitutional.


Friday, August 06, 2004

Poletown – Vindicated if not Saved

Perhaps July 30th should be declared “Property Rights Restoration Day” in recognition of the justice finally done though too-long delayed for a tad over twenty-three years. For on that day of this year the Michigan Supreme Court - yes, a court - reversed its own 1981 decision that extended the use of eminent domain to the taking of private property for another’s private use - not a public one. Now all those law books on property that cite the earlier decision as having created a new law of the land will have to be rewritten. One piece of the Constitutional puzzle is in back in its proper place. Only a few hundred more to go. See:

Razing Objections
A court rediscovers property rights in the rubble of Poletown
By Jacob Sullum
August 6, 2004

PC Law Watch - "Living" Constitution on-the-run

So you think the Federal Judiciary is adamant about keeping in place that Jeffersonian wall separating church and state? Better think again. Because if you’re a native-American animist you have the full power of the Feds behind any claim you might assert regarding “sacred” burial remains and artifacts. Of course, I’m assuming that “sacred” is here being used in a religious sense, as in “sacred text”, “sacred offering” or in some similar meaning.

And, yes folks, that's just what the 1990 NAGPRA act signed into law by George the First seems to mean. You don’t know what NAGPRA is? Tsk, tsk. Why shame on you PC Dummies. That is, of course, the “Native American Graves Protection and Repatriation Act” - for the benefit of those among you who are less than fully informed on the machinations of our Federal Nannies. This curious piece of legislation has provided those claiming Amer-Indian tribal affiliation all sorts of opportunity for mischief while they frustrate legitimate, serious scientific research.

For more detail regarding this fascinating venture into the Byzantine thinking of today’s legislators and litigators see:

Grave Injustice
Federal laws about burial remains put politics before science.
By Steven Vincent
July 2004

Wonders never cease.

Wednesday, August 04, 2004

Marbury vs. Madison - Justice Marshall creates judicial review

For more detail on the case widely touted as creating the doctrine of judicial review of Congress, please see:

"The 200th Anniversary of Marbury v. Madison: The Reasons We Should Still Care About the Decision, and The Lingering Questions It Left Behind" by Joel B. Grossman, February 24, 2003 at

What's most interesting is how little this concept was used and mostly lay fallow until the twentieth century - and even then, mostly in the later half thereof. But the origin of the doctrine does make for interesting reading.

Tuesday, August 03, 2004

Constitutional wish list

This is a "living" document. Unlike what the Constitution should not have been adjudicated to be.

Judicial Review & Judicial Activism.
· Both houses of congress with ¾ majority and Presidential assent may override any Supreme court decision or ruling that does not involve a basic individual right or governmental power explicitly granted Constitutionally and not merely implied through judicial opinion or ruling. Unless otherwise specified, stare decisis will be considered as applying to existing decisions and rulings unless specifically revoked by the exercise of this provision.
· Rights and other provisions of the Constitution will be interpreted as literally stated and as would have reasonably been understood or intended by the original authors of the Constitution unless specifically amended to mean otherwise. Congress and the States may enact legislation that prohibits or regulates the behavior of individuals or other legal entities, provided, however, that the applicability of such laws shall not be predicated upon nor distinguish between persons solely because of their sex, race, national origin or religion.

Federalism – Rights of the States
· Congress may pass no law, budgetary or otherwise, that creates a federally unfunded liability for the States. All laws that require specific funding by the States without the Federal Treasury providing those funds are hereby declared unconstitutional, rescinded and revoked unless, within two years from the adoption of this provision by the States, such laws shall have been amended to provide such funding.
· Withholding, reduction in amount, or delay in providing funding for federally legislated programs shall not be used for the purpose inducing or forcing compliance by the States to the wishes or desires of the Federal government regarding issues or concerns not directly related to the primary purpose of said funding.

Due Process
· Search and seizure without due process, including forfeiture and confiscation that is not associated with the conviction of the owner of said property, for an offense related to the reason for that same forfeiture or confiscation, is hereby unequivocally prohibited. Property seized in relation to a legal action that does not result in conviction will be returned to the owner of record as of the date of its seizure, in its original condition, without requiring further action by the owner to recover said property, or, if such property is lost or damaged so as to not substantially retain its original value, full restitution or damages shall be expeditiously paid.
· Property rights -- laws may not be written that categorically deny property rights either explicitly or implicitly in their implementation. Suits to abrogate property rights must show irreparable and substantive harm to others or the environment, and must demonstrate that reasonable remedy by the property owner is not available nor is feasible. Prevention of harm to others or the environment is deemed worthy but does not invariably supercede ownership rights. Eminent Domain may be used to acquire properties that the government, State or Federal, may wish to remove from private use. However, compensation will be based on the value said property would have as if it were actually put to its most valuable, reasonably-envisioned use.

Freedom of Speech, Religion, Press and Peaceable Assembly
· Non-financial political speech – written or recorded verbal speech with accompanying images or graphics, regardless of media - may not be regulated nor abridged.
· Financial political speech - campaign contributions - may be regulated only in terms of revealing the sources of funds. Sources of funds must be publicly disclosed. Individuals or organizations must not use conduits so as to disguise the ultimate source of funds. Persons or organizations attempting to or actually succeeding in hiding the ultimate sources of funds, including the ultimate source itself, whether person and/or organization, the recipient, any intermediaries, candidates, will be subject to the legal sanction of imprisonment or fine. Financial institutions will not be held liable unless guilty of collusion to hide sources of funds unless they are the ultimate source of the funds. Legal entities other that individuals may be held liable, as well as their officers, directors or other person with authority to dispense funds but not shareholders as individuals unless that person or persons also holds one of the aforementioned positions of authority. These rules will apply to the sources of funds for individual candidates as well as all advertising or publication that is intended to influence opinion that will or may affect elections, legislation, or any decision by a public official whether they be part of the executive, legislative or judicial branch of government.
· Graphic or pictorial images – photographic, hand generated, computer generated, any media, any technology, any method of generation or delivery – shall be subject to regulation, prohibition or censorship by the individual States.
· References to “God” or a “Supreme Being” do not constitute an “Establishment of Religion” within the meaning of the First Amendment and as such shall not be prohibited in public use unless there is a clear intent on the part of the government, State, Federal or any entity thereof, to establish, endorse or promote a specific religion or sect.
· Private organizations and associations, privately funded and maintained, and whose purpose is overwhelmingly recreational and not commercial in nature, may institute and enforce their own rules of membership without being prejudicially treated by the State or Federal governments or other governmental entity.
· The Press may publish, without prejudice or interference by the government, any materials or documents of governmental origin that consist of only, or nearly only words, and are not primarily pictorial or diagrammatic in nature, or summaries or extracts thereof, however they may have come into their possession, with the provision, however, that the source or sources of such official documents so published shall be made public knowledge. Failure to make such sources public knowledge shall subject the persons or organization publishing such information to legal remedies as provided by law.

House and Senate rules & practices
· Grant Presidential line-item veto authority for budgetary/spending bills only.
· No “rider” amendments to legislation. No amendments that do not relate to, nor affect the basic intent or provisions of the legislation under consideration.
· Filibuster and cloture – first vote 3/5, second vote ½ plus 5, third vote simple majority, simple majority thereafter – timing or how to call for a cloture vote – Senate may write rule that involves only a simple majority.
· Senatorial legislation blockage and/or blackballing by a single senator – prohibit such activity.
· Advice and Consent – simple majority, no filibustering. Floor vote shall be held to force a nomination out of committee if such a vote is requested by any group of twenty Senators.
· Only cloture-vote roll call timing rule not subject to simple majority implementation, revision or repeal.
· Unwritten or unspecified practices and traditions of either house are not binding upon any single Representative or Senator, or any group of Representatives or Senators.

Bills regarding raising income taxes, raising or implementing any form of revenue generation
· supermajority – 3/5 or 2/3
· May lower or eliminate with simple majority of members voting to lower. (If the President disagrees with the lowering, he may veto the tax- or revenue-lowering legislation and Congress may override and force the lowering with a 2/3 majority.)

Equal Protection
· A person’s sex, race, national origin or religion shall not be used to determine the applicability of a law or any imprisonment, fine, or censure thereby applied. (Dump “Hate Crimes” and other such nonsensical laws.)