Posts by Rurudyne

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  • UN security council to consider climate change peacekeeping

    07/22/2011 7:43:28 PM PDT · 29 of 29
    Rurudyne to jakerobins

    I love how at least one of those “small island states” is actively trying to shake everyone down because the land they sit on, being atoll, is sinking.

    Maybe we can loan them the power jacks our debt ceiling has been sitting on and tell them to shut up already?

  • There is a difference ...

    07/13/2011 8:47:06 AM PDT · 5 of 5
    Rurudyne to freedumb2003
    Thanks for the feedback.

    This offering is an attempt at brevity compared to my usual presentations which is why comments on presentation are much appreciated.

    Usually I spend more time on the idea of the original right of those who made the Constitution a Law and what that means for the meaning of same. Simply, the legislatures of the several States were presented with a consistent view by those arguing for the meaning of the text (including Hamilton) and this has since been misrepresented as merely as Madison's view. This advice given to their consent is the only thing that they could have agreed to and therefore the only thing that could be the Law.

    Yet after ratification, as if he were Sovereign to make Law, we find Hamilton contradicting even his own previous statements. People act as if the fact that it is “Hamilton” is so very important that it negates the significance of WHEN he spoke. Timeliness is important and I often challenge people which Hamilton is right: the one offering advice to those with the right of consent or the Treasury Secretary spouting off after ratification was a done deal?

    I've even likened the actual ratification of the Constitution to that moment when, in a wedding, the assembled host are asked to “speak now or forever hold their peace.” As Treasury Secretary Hamilton resembles that ill mannered wedding guest who bad mouths the bride after the vows have been taken (when he should just have kept his trap shut).

  • There is a difference ...

    07/12/2011 9:16:54 PM PDT · 4 of 5
    Rurudyne to hinckley buzzard
    Heh ... the second statement is, in fact, a direct quote from 1936's Butler decision ( ) which is, to be fair, a massive collection of gobbledygook, rhetorical abuses, false leading statements, mischaracterizations and whatnot rendered — get this — to try to protect the assertion I quoted even though every aspect of the actual argument presented in the opinion invalidates it.

    Want to know how loopy it is (I mean, besides going and reading reading it ... which may qualify as a form of self abuse)?

    Try this on for size: in order to protect the assertion that there is power to appropriate on account of the appearance of the words "general Welfare" in A1:S8:C1 while ALSO disallowing that there is a claim to regulate on that same basis Justice Roberts cuts this distinction: A1:S8:C1 involves raising money to pay for stuff but (apparently) not to pay for regulation enforcement.

    Thus a ruling that goes out of its way to assert that second statement (it was not even a point of contention) actually includes this language: "From the accepted doctrine that the United States is a government of delegated powers, it follows that those not expressly granted, or reasonably to be implied from such as are conferred, are reserved to the states, or to the people. To forestall any suggestion to the contrary, the Tenth Amendment was adopted. The same proposition, otherwise stated, is that powers not granted are prohibited. None to regulate agricultural production is given, and therefore legislation by Congress for that purpose is forbidden."
  • There is a difference ...

    07/12/2011 7:03:32 PM PDT · 1 of 5
    I would love to get comments on this suggestion — especially attempts at refutation. Certainly friendly criticism of style and substance, or suggestions for further evidences, would be welcome too
  • White House official cites ‘education problem’ on climate

    01/31/2011 9:00:50 AM PST · 70 of 71
    Rurudyne to FlingWingFlyer

    “brainwash, lie and indoctrinate” are pretty much spot on.

  • Could global warming turn Canada into a superpower? (Doubt it, eh.)

    10/02/2010 11:37:19 PM PDT · 19 of 19
    Rurudyne to PROCON

    That or Canadian Snowbirds fleeing an ever colder climate during a new Solar Minimum will save the real estate market in the lower 48 States.

  • Black Panthergate

    09/24/2010 2:09:35 PM PDT · 25 of 25
    Rurudyne to Bean Counter


  • Portals to Other Realities

    09/18/2010 2:11:31 PM PDT · 9 of 20
    Rurudyne to SunkenCiv

    Actually, looking at the thread’s title the first time my initial thought was: “Oh look, another thread of Keynesian economic theory.”

  • Burning The Quran

    09/11/2010 10:16:34 PM PDT · 56 of 56
    Rurudyne to Misterioso

    About the only thing I was assuming is that you’ve a Koran that you had not considered burning until now.

    I was not even assuming that you were a Christian but instead asked to look at the logic of this action “especially for a Christian (in light of their) commission” (I hate typos, and that omission was one).

    A burned Koran may be a victimless crime; but, just as with a burned flag when such are bought for the purpose it may be nominally said to represent someone using up their own resources in pursuit of a bit of futile symbolism.

    That is, I’ll contend, illogical. “Symbolism” of that nature is the kind that appeals to sentiment and plays on human sentimentality.

    That said, it is a poor writer who blames his reader if there is a lack of understanding ... which is why my own personal motto is: “The last edit you do is one edit too few.”

  • Burning The Quran

    09/11/2010 12:48:08 AM PDT · 54 of 56
    Rurudyne to Misterioso

    One thing is: you didn’t acquire the book to burn it.

    Think about the logic of that for a moment, especially for a Christian commission (in Scripture) whose avowed job is to proclaim the Gospel?

    Buying a book to burn it is a waste of limited resources that could be applied to proclaiming that Gospel TO Muslims.

    It is also an action that seems much more likely in that context to harden the hearts of those in Islam to that same Gospel.

    Overall it is simply a dumb maneuver. And that’s neglecting the fact that you’re paying someone to print the book you are going to burn.

    Now, if someone escaping Islam burned their Koran as a symbol of breaking their bondage, that’s different because of 1) intent and 2) the lack of a commercial aspect too — in such a case that is actually no different than converted disciples in the Acts burning their scrolls of magic.

    Likewise what you suggest is different: if only because it doesn’t represent a waste of resources to destroy something already in your possession.

  • Eric Holder Vs. Black Panthers

    05/20/2010 9:04:05 AM PDT · 43 of 66
    Rurudyne to raptor22

    I’m still waiting to hear if anything came about form those instances where Hillary supporters were threatened by the Thug’s minions.

  • All Roads Lead to Heaven? - Kathleen Parker Does Theology

    05/20/2010 9:00:48 AM PDT · 37 of 41
    Rurudyne to Some Fat Guy in L.A.

    I’m glad that your earlier post wasn’t “at face value” (because it did not make any point about what is required to receive redemption clear but seemed as if it could indicate that mere intellectual belief was sufficient ... thus my comment).

  • "You wrecked my coffee brewer?! Who do you think you are??!"

    05/17/2010 1:27:07 PM PDT · 8 of 9
    Rurudyne to brycemax

    The problem with a super-hero based on coffee is that the beverage is only hot enough to really do damage (to another super) if you target the groin area.

    That could quickly earn you a few extra Hunteds — only ones that give you no points — in your Disadvantages (going by Champions RPG rules).

  • All Roads Lead to Heaven? - Kathleen Parker Does Theology

    05/17/2010 1:09:34 PM PDT · 34 of 41
    Rurudyne to Some Fat Guy in L.A.

    There is a problem for that statement if taken at face value for it says that even the demons believe, and tremble even as they do so.

  • All Roads Lead to Heaven? - Kathleen Parker Does Theology

    05/17/2010 1:05:59 PM PDT · 33 of 41
    Rurudyne to SeekAndFind

    The odd thing is, I came to this thread today not using my usual browser.

    As a result I didn’t know the bookmark labeled “Free Republic” would take me to this old post of mine ( ) in a thread titled: “Jesus was an Iconoclast”.

    Where that post dovetailed with your OP rather nicely was early on when I wrote: “But this isn’t an age of zealousness in the world. Rather it is an age of apostasy. Can one be too narrow? Certainly! But narrowness isn’t the big issue of the day: it is broadness. We live in a culture here in America, and even more so in other parts of the West, where simply be doctrinally straight is considered being narrow and dogmatic.”

  • CAIR Asks GOP to Repudiate Racist, Anti-Muslim Ads

    05/17/2010 1:43:36 AM PDT · 196 of 220
    Rurudyne to seekthetruth

    I know it’s been said before: but frankly, I don’t care, CAIR.

    Maybe Muslims should be offended?

  • National Geographic Warns Global Warming Leads to Increased Violence... Possibly Even 'Genocide'

    03/26/2010 6:53:56 PM PDT · 33 of 35
    Rurudyne to KosmicKitty

    Right up to the point that the socialist peons in Europe, Russia and China are starving because shortened growing seasons have crippled the great northern bread baskets.

    Thankfully, Canadians are few in number because the Canucks have proven themselves in battle.

  • My Letter to the Texas Attorney General ...

    03/23/2010 11:13:34 AM PDT · 1 of 7
    This is the body of a letter I wrote to the Texas Attorney General.

    If these seem good point to folks in other States that are challenging Obamacare then please feel free to bring them up with your own State AGs.

  • If there really is a 'general Welfare' clause then why ...

    03/20/2010 12:16:31 PM PDT · 22 of 28
    Rurudyne to Eagle Eye

    The you have to ask yourself: do amendments generally function globally or do they also have ‘original intent’ that must be taken into account?

    For example, the 16th Amendment was sold on a soak the ultra rich basis and not as a way to heavily tax the lower and middle classes. As a matter of intent — one can say this is what the States as Sovereigns signed off on and nothing else.

    Now, as per Corfield v Coryell one of our common law Privileges and Immunities was an exemption to paying higher taxes than other Citizens. Given that there was no other body of rights retained by the people at the time that the 9th Amendment was adopted it logically follows that these SAME P&I mentioned in A4:S2:C1 are also the rights that are the “others retained” in the 9th Amendment.

    So, one could look at the 9th Amendment and opine that all progressive taxes are unconstitutional EXCEPT for those on the ultra rich BECAUSE the intent of the 16th Amendment altered this with respect to the federal (but not with respect to the States).

    So, using the principal that amendments too have intent that may limit their application I feel safe to opine that any federal income tax that has more than two brackets — one more dear that only affects the ultra rich — is and should be deemed unconstitutional.

  • If there really is a 'general Welfare' clause then why ...

    03/20/2010 12:07:31 PM PDT · 21 of 28
    Rurudyne to patlin

    “The government has deemed itself a person and therefore believes it has the right to use the term as it is applied to persons becaue the term as it is applied to states & governments is too limited.”

    Of late I’ve been using a similar notion: Sovereignty.

    One of the principal causes for the American Revolution was the growing awareness that the Crown and its Ministers (or even Jurist) could essentially recast the English constitution at will to suit them.

    They could do this because the King was a Sovereign and his Ministers and Jurist were able to exercise this Sovereignty on his behalf.

    But the United States federal government is more akin to a chartered corporation than a Sovereign Person (which may help raise your point to its clearest light). Thus Chief Justice John Marshall wrote: “The powers of the Legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may at any time be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested that the Constitution controls any legislative act repugnant to it, or that the Legislature may alter the Constitution by an ordinary act.”

    ... and as for the rule of the courts, Marshall wrote: “From these and many other selections which might be made, it is apparent that the framers of the Constitution contemplated that instrument as a rule for the government of courts, as well as of the Legislature.”

    So there is no hint, especially under Marbury when taken in proper context, that the federal is to be sovereign over itself — to be able to further establish and define its powers by ordinary means available at its disposal (legislation, executive orders, opinions and the like).

    THAT power, Sovereignty over the Constitution, IS retained within the specific context of Article 5 and Article 5 alone.

    That means that ultimately WE THE PEOPLE are Sovereign over our government (echoing the DoI no less) but only within a specific context (amendment ... not mere elections) are we able to work out that Sovereignty for ourselves and our Posterity.

  • If there really is a 'general Welfare' clause then why ...

    03/20/2010 11:34:14 AM PDT · 16 of 28
    Rurudyne to

    Heh heh! –.^

  • If there really is a 'general Welfare' clause then why ...

    03/20/2010 11:22:48 AM PDT · 14 of 28
    Rurudyne to US Navy Vet

    I find it interesting that this came while he was Secretary of State, AFTER the ratification of the Constitution, and in contradiction to what the Framers had told the several States (who alone had Authority to respect the Establishment of the Constitution as Law).

    Thus I’ve said that Hamilton’s later comments (as Secretary of State) were made Apart from Authority ... or apart from any lawful role he may have once enjoyed as a Framer but which had to come to an end once those with Authority, indeed Sovereignty, had acted.

    Ditto for a much later Court preferring Hamilton’s spurious opinion and explanation.

  • If there really is a 'general Welfare' clause then why ...

    03/20/2010 11:18:07 AM PDT · 10 of 28
    Rurudyne to mnehring

    Yes, the purpose of A1:S8:C1 is to delegate Power to Congress to levy certain forms of taxes.

    In that context the phrase “to pay the Debts and provide for the common Defence and general Welfare of the United States;” has real meaning about why Congress may tax and even the logical limits on how much they do tax (i.e. not to simply build up a huge pile of swag as if they were Eastern potentates); but, it tells you nothing about the objects of governance (Appropriations, Rules, Regulations and other non-tax stuff) that are reasonable and legal under Law.

  • If there really is a 'general Welfare' clause then why ...

    03/20/2010 11:13:24 AM PDT · 6 of 28
    Rurudyne to Joe 6-pack


    Or as Chief Justice Marshall might observe: “Affirmative words are often, in their operation, negative of other objects than those affirmed, and, in this case, a negative or exclusive sense must be given to them or they have no operation at all.”

    Meaning that if there are any delegated Powers for promoting the general Welfare (post office, patents, etc...) than their very existence demonstrates that they are THE Powers ... and there are no others.

    Also as an aside, this may easily be the least wall’o’text-like post on this subject that I’ve ever made that still manages to cover the material.

  • If there really is a 'general Welfare' clause then why ...

    03/20/2010 11:05:24 AM PDT · 1 of 28
    Just a question for the room....
  • Rurudyne's Daily Global Cooling Watch

    03/03/2010 9:20:18 PM PST · 450 of 450
    Rurudyne to I got the rope

    I remember all those times that scientist would predict the strength of Solar Cycle 24 ... only to revise it down later. And again. And again....

    Yet I’m glad it’s finally going to ramp up.

    Only it seems we may be climbing to the top of something rather more like Iron Mountain (in Georgia) than Pike’s Peak — nudge-wink!

  • Rurudyne's Daily Global Cooling Watch

    02/27/2010 10:08:39 AM PST · 448 of 450
    Rurudyne to I got the rope

    Pretty good, I suppose.

    Still having writers block on my novels even as my ramblings on matters of Law continue to improve and gain nuance. Here’s a fairly recent sample:

    So how have you been?

  • Brazil: 'Gringos' Must Pay to Keep Rainforests

    12/01/2009 8:20:43 AM PST · 46 of 46
    Rurudyne to geddylee

    Someone needs to inform this guy that the North American continent apparently has more forest now than since nearly when Columbus arrived.

  • Gore Gone Wild: Predicts 220 Foot Sea Level Rise in 10 years

    10/31/2009 11:44:47 AM PDT · 103 of 141
    Rurudyne to Free ThinkerNY

    Ummmm ... I thought the North Pole ice cap was on water?

    Mr.Gore ... have you forgotten about Archimedes and the bath tub?

  • Discombobamulate

    08/16/2009 2:38:18 PM PDT · 5 of 5
    Rurudyne to Rurudyne

    EDIT: sorry that should be “discombobotulate” and not “dismonbobotulate”.

  • Discombobamulate

    08/16/2009 2:35:06 PM PDT · 4 of 5
    Rurudyne to Rurudyne

    Here’s a new term recently inspired by slightly different circumstances:


    dis - com - o-bot - u - late

    Frustration inspired by trying to debate an O-bot.

    For example: I’m discombobotulated and fed up with trying to debate fundamental Laws with this guy!!!

  • What's In A Nme?

    08/15/2009 12:51:57 PM PDT · 9 of 36
    Rurudyne to Pan_Yan

    No ... wait ... I DID hit the right reply button. Sorry again. :)

  • What's In A Nme?

    08/15/2009 12:50:37 PM PDT · 8 of 36
    Rurudyne to Pan_Yan

    Sorry. I hit the wrong “reply” button. That was supposed to be to the OP.

  • What's In A Nme?

    08/15/2009 12:49:33 PM PDT · 5 of 36
    Rurudyne to MHGinTN

    You’re just trying to discombobamulate the left.

  • Discombobamulate

    08/15/2009 11:45:11 AM PDT · 3 of 5
    Rurudyne to Rurudyne

    BTW, on pronunciation: I think the first “b’ should be nearly silent if not effectively so.

    Also, now that I think about it, Discombobamulation — while it may be used of generic manipulation of the President’s name as in the case of this thread — should probably specifically refer to such efforts in the service of trying to discombobamulate people.

    Thus coining the term is not technically a form of discombobamulation. [/lawyering]

  • Discombobamulate

    08/15/2009 10:43:44 AM PDT · 1 of 5
    We've all heard of it and seen it and now there's a term for it!

    Courtesy of yours truly.

  • Senator Stabenow can “feel” global warming when she’s flying

    08/14/2009 6:50:55 AM PDT · 66 of 69
    Rurudyne to HorowitzianConservative

    Amazing article.

    Now I can feel my lunch while I’m reading!

  • Copenhagen: Environmental Munich

    08/09/2009 9:50:10 AM PDT · 9 of 9
    Rurudyne to Kaslin

    The forces of World Communism and Hell on Earth keep marching on.

  • Do the People really establish their government or ...

    08/06/2009 10:05:43 PM PDT · 67 of 70
    Rurudyne to KrisKrinkle

    I like “self-extending” lots.

    Thanks for the critique!

  • My Letter to the Whitehouse & President Obama regarding Dissent & Free Speech

    08/06/2009 9:42:00 AM PDT · 119 of 128
    Rurudyne to Jeff Head; Tolerance Sucks Rocks

    Thanks for the link and suggestion!

    I just sent them an email base off of this recent thread I’d began and some of the interaction with fellow forumites (post #16, 49 and 54 — which corrected some communication issues on my part with respect to post #16):

    I also cited one aspect of marsh2’s post #48, the bit about the Massachusetts constitution, for support.

  • Do the People really establish their government or ...

    08/04/2009 6:59:41 AM PDT · 56 of 70
    Rurudyne to marsh2

    Thanks for posting those!

    Anyone reading Marshall when he spoke of the original right of the Framers or their theory of written constitutions would do well to also look up the like.

    Two other things: I don’t know if we’re yet in a “state of nature” but there seems to be a lot of bears in them woods.

    Also: “No political dreamer was ever wild enough to think of breaking down the lines which separate the states, and of compounding the American people into one common mass.”

    Wonder what they’d think of this lot of Congresscritters?

  • Do the People really establish their government or ...

    08/04/2009 6:49:11 AM PDT · 55 of 70
    Rurudyne to Nosterrex

    You’re spot on.

    The people give consent to the federal government gaining powers (or loosing them) by means of the amendment process.

    Of course Congresscritters these days don’t need no stinkin’amendments!

    POTUScritters and Courtcritters too, unfortunately.

  • Do the People really establish their government or ...

    08/04/2009 6:41:22 AM PDT · 54 of 70
    Rurudyne to KrisKrinkle
    "Ok, the begged question was “Do the people and/or the States have a retained right and/or reserved power to require the Federal Government to do something not otherwise specifically delegated to it but also not otherwise specifically forbidden to it?” but I don’t see that the “people and/or the States … retained right and/or reserved power to require” part is clearly addressed. It seems to be just sort of assumed away with no more than mention of non specific objections and doubts. What did I overlook?
    Sorry that I wasn't clear. Like I said, criticism is welcome. It's also frequently useful as in this case. I'll try to do better.

    The whole thing was actually aimed at that question and the answer was: no.

    That's why I built a basis to finally ask the question which you quoted: to demonstrate the above negative answer.

    As for you repeated question: in such instances as when a State disparages our "P&I" under A4:S2:C1 there is a method to petition the government for redress of grievances available: taking it to the courts.

    The Constitution gives these jurisdiction. The Congress is not the only portion of the federal that the people should be able to petition.

    The whole point of the "privileges or immunities" clause of the 14th Amendment was to delegate a Power to Congress so that it would not have to wait on the courts but could instead take action directly. Proving this contention was a large part of my earlier response.

    However, Congress still does not have lawful power to make a State honor its A4:S2:C1 commitments. That jurisdiction still lay with the courts, the Court in particular. There is no need to submit to a government destructive of their Liberty.

    What it does have lawful Power to do is to fashion politically sourced federal civil rights that may mirror our unalienable rights even though they (the statutory privileges or immunities so respected by Congress) are not unalienable in and of themselves (since they can be withdrawn by later statutes) as if they were the real A4:S2:C1 Privileges and Immunities — which cannot be 'withdrawn'.

    You could look at such civil rights as Congress may respect as being redundant if indeed they are based on our "P&I".

    Example: we have, arguably, under our rightful common laws a right of Free Labor (i.e. 'right to work') derived from our unalienable right to enter into lawful contracts and such. Congress has never respected a federal "Right to Work" (indeed, they have respected the competing right to organize labor) but if they were to do so at some point the civil right they would be requiring the States to respect would not expressly be the common law right (though they should recognize such anyway) so much as it would be a redundant politically sourced "poi". So if some later Congress were to nullify the statutory law they would be freeing the States from having to respect the statutory "poi" but not the common law "P&I".

    I should point out that Congress does not need to base any "poi" on our unalienable rights and they could invent these pretty much on a whim. In such instances their statutory civil rights would be unique to statutory law and if said law were later repealed the "poi" invented by it would vanish altogether (apart from some possible grandfather clause, natch).

    Which brings up the right to alter or abolish forms of government which you mentioned. This right is expressed through the amendment process. This is the procedure even if said alterations are profound (it's reputed that one Framer opined early on that they were amending the Articles of Confederation out of existence, for example).

    Put another way: the DoI establishes no formal methodology or process for altering or abolishing governments while the Constitution does. Thus the terrain left behind by the DoI was uncluttered with any requirements as to how such change could be accomplished. While the Constitution established a specific proverbial lay of the land.

    This was a large part of Marbury: the Court rebuking an unconstitutional tweak to its delegated jurisdiction under A3:S2. The Constitution only gave the Court original jurisdiction over Cases; however, a petition for issuance of a writ is not a Case — it is a petition.

    Aside: the thing is, William Marbury and the others could have taken Marshall's opinion to a District Court and gotten that writ of mandamus without controversy. Failing in that effort, they could have appealed the decision to the Court and received their petition on appeal. Why they did not do this is something of a mystery to me and part of a gnawing suspicion that the whole thing could have been a set up from the moment Marshall, as Secretary of State, didn't mail some of the commissions that had been properly processed.

    Yep, that "or" in that case was a typoe just as you point out. I habte typeds! –.^

    That's why my motto as a writer is: "The last edit you do is one edit too few."
  • Do the People really establish their government or ...

    08/03/2009 6:51:54 PM PDT · 50 of 70
    Rurudyne to marsh2
    marsh2 ... I'm still reading (and more than a little tired after posting that last critter so I'll probably need time to recover before going on) but I've just got two comments.

    First, the powers reserved for the people (10th Amendment) likely line up well with aspects of the body of alienable rights.

    Second, I've been recently having great fun with the rights retained by the people under common law in light of Article 4:Section 2:Clause 1, the 9th Amendment and Corfield v Coryell. The last include some REAL gems that should invalidate many things the Federal currently does:
    We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign. What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole. The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the state; may be mentioned as some of the particular privileges and immunities of citizens, which are clearly embraced by the general description of privileges deemed to be fundamental: to which may be added, the elective franchise, as regulated and established by the laws or constitution of the state in which it is to be exercised. These, and many others which might be mentioned, are, strictly speaking, privileges and immunities, and the enjoyment of them by the citizens of each state, in every other state, was manifestly calculated (to use the expressions of the preamble of the corresponding provision in the old articles of confederation) "the better to secure and perpetuate mutual friendship and intercourse among the people of the different states of the Union."
    The highlighted text in particular is fun. I've been using it to go after the Alternative Minimum Tax, the proposed income tax on people not buying heath insurance, and have even suggested what it might, and probably should, do to the progressive tax structure itself.

    BTW ... what were your thoughts on post #16?
  • Do the People really establish their government or ...

    08/03/2009 6:33:10 PM PDT · 49 of 70
    Rurudyne to Tublecane; ForGod'sSake
    Tublecane, you bring up some valid points and I believe that something of an answer to these can be found in the nature of the Classical Liberalism known and approved of by the Founders and Framers.

    It may help to understand me better if you know what I deem to be four important hallmarks of Classical American Liberalism — or what might be called true 'political liberalism'.
    1) support for limited government
    2) support for decentralized administration
    3) support for constitutional authority for governance
    4) support for a proper basis for laws founded, in the case of the American Republic, in our rightful common laws
    These, I reason, are genuinely "liberal" in relation to vast swaths of human governance and the 'traditions' (if one could call them that) by which they have operated throughout much of history.

    What I would call a 'political conservative', or one who is in harmony with the long march of human tyranny, would tend to enjoin these:
    1) support for potent government
    2) support for centralized administration
    3) support for arbitrary authority for governance
    4) support for arbitrary basis for laws
    You may see how what we call "liberal" and "conservative" in 21st century America is somewhat out of whack by these definitions.

    Those we call "liberals" are in fact "political conservatives".

    I've even gone so far in the past to opine that the only thing that really separates them from the monarchist of old is that they are patrons of the centralized government itself as an ongoing concern rather than some dynasty.

    Modern 'liberals' are in fact either apparatchiks or wanna-be apparatchiks — for that is the best term I've ever come across to describe them.

    The centralized government: its power; its prestige; its ability to look out for people and protect them even from themselves ... THAT is their thing. C.S.Lewis wrote that the most persistent tyrants are those who, deeming their motives to be good, are never disturbed by their consciences and who sleep well never haunted by what they have done.

    Let's look at some of what you brought up and how that is addressed by the liberalism of the Framers.

    First off, the inescapable fact that people who establish governments do so as the federal head of their families too, for they represent those as yet unborn (thus "to ourselves and our Posterity"). This is what you cited when you wrote: "What about people born after the ratification process, like me, who no one bothered asking? My sovereignty is forfeit upon my birth because I was born in a nation that got the support of some slice of “the people” some time in the distant past? I might as well never have had it."

    It is true in the past — when dealing with statutory law as opposed to constitutional law — that I have opined that just because my great granddaddy was around when a tax was first imposed and he got representation (no taxation without representation thing) that does not mean that I have received representation. I have expressly stated that the tax code should periodically come up for reauthorization or else it should sunset and have suggested that they could break it up into 1/20th chunks and proceed to debate and reauthorize or modify or eliminate some portion of the tax code every year ... at least until the inexorable forces of human laziness finally resulted in a shorter tax code because no one wants to debate even a 20th of such a vast ... thing year after year with no end in sight (and also they could never resist tampering or grandstanding along the way).

    But as I alluded to there is a distinction between representation and the amendment process: the former relates to carrying into execution previously delegated powers and the latter is more akin to a referendum process that may delegate new powers or even remove old ones.

    So there is no possible basis under a written constitution (of any kind) for the generation who authored and accepted it to not be the federal head of the nation (this would also include, incidentally, those who amend a constitution too with respect to what they have authored and adopted). They were actually our representatives in that case, who spoke for us and on our behalf because we were and are, legally if not factually, their children.

    This is in fact what the decision for Marbury v Madison hinged on. As I wrote: this decision has been misrepresented and this has been done for a cause.

    Most people believe that Marbury hinged on the question of if judicial review was proper or not and a popular belief is that this opinion established the principal of judicial review; however, Marshall himself proves this contention wrong when he cites the earlier Cases that actually demonstrated the theoretical properness of judicial review, writing:
    "This opinion seems not now for the first time to be taken up in this country.

    It must be well recollected that, in 1792, an act passed, directing the secretary at war to place on the pension list such disabled officers and soldiers as should be reported to him by the Circuit Courts, which act, so far as the duty was imposed on the Courts, was deemed unconstitutional; but some of the judges, thinking that the law might be executed by them in the character of commissioners, proceeded to act and to report in that character.

    This law being deemed unconstitutional at the circuits, was repealed, and a different system was established; but the question whether those persons who had been reported by the judges, as commissioners, were entitled, in consequence of that report, to be placed on the pension list was a legal question, properly determinable in the Courts, although the act of placing such persons on the list was to be performed by the head of a department.

    That this question might be properly settled, Congress passed an act in February, 1793, making it the duty of the Secretary of War, in conjunction with the Attorney General, to take such measures as might be necessary to obtain an adjudication of the Supreme Court of the United States on the validity of any such rights, claimed under the act aforesaid.

    After the passage of this act, a mandamus was moved for, to be directed to the Secretary of War, commanding him to place on the pension list a person stating himself to be on the report of the judges.

    There is, therefore, much reason to believe that this mode of trying the legal right of the complainant was deemed by the head of a department, and by the highest law officer of the United States, the most proper which could be selected for the purpose.

    When the subject was brought before the Court, the decision was not that a mandamus would not lie to the head of a department directing him to perform an act enjoined by law, in the performance of which an individual had a vested interest, but that a mandamus ought not to issue in that case — the decision necessarily to be made if the report of the commissioners did not confer on the applicant a legal right.

    "The judgment in that case is understood to have decided the merits of all claims of that description, and the persons, on the report of the commissioners, found it necessary to pursue the mode prescribed by the law subsequent to that which had been deemed unconstitutional in order to place themselves on the pension list.

    "The doctrine, therefore, now advanced is by no means a novel one."
    In fact, the infamous and relatively well know quote from Marbury: "It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each." is actually lifted out of context and is presented as if IT were the actual foundation on which the opinion rest.

    But this is a misrepresentation of the opinion. As I've already proved the question of "if" judicial review was proper or not had already been settled and was not in contention.

    To understand this opinion, why it is the way it is, one need to remember an important fact: John Marshall was HIMSELF the Secretary of State who didn't put commissions for some of the Midnight Justices into the post.

    He was essentially involved in the dispute as a party.

    Rather than recuse himself for that basis he structured his opinion to take it into account: so he clearly lays out in both common law and the Laws of the United States Mr.William Marbury's clear right to obtain a Writ of Mandamus from a court with proper jurisdiction.

    Marbury v Madison does not hinge on that demonstration though, for by means of it we could rightly say that Marshall was demonstrating his impartiality and thoroughness as a jurist and thus his right to sit and hear the petition for that specific Writ of Mandamus.

    Likewise, Marshall demonstrated that judicial review was not an issue either, so he at least anticipated and tried to answer claims that he might be something of a tyrant or a bully.

    The real meat of the opinion is found only after these preliminaries are out of the way, and it is here that if it is proper or not for one generation to represent another not yet born can be inspected. This section starts:
    "This, then, is a plain case of a mandamus, either to deliver the commission or a copy of it from the record, and it only remains to be inquired:

    "Whether it can issue from this Court."
    It is in how Marshall answers this question that we find what should be the true significance of Marbury v Madison.

    You can find the full opinion here:

    Just scroll down a bit to reach the portion I'm dealing with.

    To make a long story short (too late, I know) this essay is not answered by the infamous quote which I presented above.

    It is answered by an essay of which that line is but, well, one line (and not even an especially important part of it too).

    This essay deals with the proper methodology for judicial review and it is one that expressly honors both original right of those who adopted the Constitution and the theory of written constitutions by which the Framer's labored. We would call these strict originalism and strict constructionism respectively.

    Without apology: Marbury v Madison is precisely the ruling that in strong language disallows notions like a "living constitution". Not only that, but it would cause even Justice Scalia problems, for while he strongly supports originalism he does NOT support constructionism (having essentially said that to be a constructionist would repudiate the modern theory of jurisprudence). Rather than being the great strength on the modern courts on account of being misrepresented it is, properly construed, the modern court's greatest weakness — the Achilles Heel.

    What this means is possibly best summed up in two lines from the opinion that taken together are better suited to represent its true meat than the infamous quote ever will be. These are:
    "Those, then, who controvert the principle that the Constitution is to be considered in court as a paramount law are reduced to the necessity of maintaining that courts must close their eyes on the Constitution, and see only the law."

    ... and ...

    "From these and many other selections which might be made, it is apparent that the framers of the Constitution contemplated that instrument as a rule for the government of courts, as well as of the Legislature."
    On account of the latter the former can in fact be fairly paraphrased as:
    Those, then, who controvert the principle that the Constitution is to be considered in court as a paramount law are reduced to the necessity of maintaining that courts must close their eyes on the Constitution, and see only past opinions and decisions of the Court.
    This is a fair paraphrase precisely because the courts are to be governed by the Constitution as the legislature is. So if mere statues, acts of Congress, are insufficient to practically alter the delegation of powers for the federal then how much less should mere opinions of the Court be likewise? Or else the courts are not governed by the Constitution but they instead are governors of IT.

    From the above, and the actual text out of Marbury, both which I've cited and which remains (possibly thankfully) still to be found at the above link (there are those who would claim I wouldn't know "brief" if it bit me on the butt ... and they might be right), it should be clear that those who act as a federal head, or better a representative head, for their posterity expect that they are doing something proper to begin with.

    They would say that we have already received representation in these matters and if anything critical to be done yet remains we could likewise represent ourselves (and our Posterity) in some future amendment process.

    While a "written constitution" can apportion general power to a government to do anything it feels like doing, much as Marshall himself notes, this aspect of federal constitutions seems inescapable if they are indeed of the sort that our is.

    Essentially, Marshall would have it that even the Framers, when they made all their arguments and the States finally signed the dotted line, had also been their own representatives in the process and that having helped to establish the Constitution what was left for them henceforth would be to represent the people and carry out the powers delegated to the federal RATHER than still be free to tweak the Constitution as if they had never laid down their pens in the first place.

    I would guess this was at least some point of contention, some source of irritation, that his peers may have had with him.

    Beyond this, many of your concerns can be answered in the first two of my highlights of Classical American Liberalism: support for limited government and support for decentralized administration.

    You wrote: "I’m wondering if there’s any way at all for powers to be legitimately delegated. This article sets the statndard that powers cannot be incorporated unless there was some sort of process that was seen as being legal. Accept no process is ever seen as legal and perfectly legitimate by everyone. And that’s important because if “the people” are sovereign, we take it to mean all the people are sovereign every last one of them."

    I would suggest that governance cast as close to home as possible and prudent answers your concerns. It is indeed difficult to be content with the actions of a distant and powerful central government that you may frankly have a snowball's chance in Hell of influencing. The same is not true of local governance.

    Several things are true, or at least likely true, under our federal Constitution that favor retaining as much of government's varied functions at the State and local levels.

    First, as the scale of government decreases the ability to engage it increases. One person who gets totally peeved can in fact successfully run for school board or the park commission (or at least give those who do get elected a righteous earful) while in practice most people couldn't get elected to Congress or else stand up in front of Congress and read them the proverbial riot act.

    Second, and this is especially true of local governments, these are easier to legally modify than is the federal Constitution to allow or prevent them powers. This is exactly why I closed off that essay wit: "Even if, as it may hopefully someday happen, true and lawful federalism is again restored to this land, this very principal should also be applied for how We the People have also established these State governments too — so that we will not merely trade one master, one great tyrant, for many."

    So I don't think legality is a shortcut or that civilization need be a colossal swindle. I do, however, reason that lawlessness in high places is a shortcut (if not THE shortcut) and that our civilization is in fact a colossal swindle at this time on account of that.

    We've gone from: "Buddy, can you spare a dime?" to "Buddy, you WILL spare a living wage and free health care." in only 70 years.

    ForGod'sSake, I guess mileage does indeed vary. –.^

    I hope you are feeling better.
  • Do the People really establish their government or ...

    08/02/2009 12:08:50 PM PDT · 18 of 70
    Rurudyne to xine

    Me too.

  • Do the People really establish their government or ...

    08/02/2009 12:07:43 PM PDT · 17 of 70
    Rurudyne to yefragetuwrabrumuy

    I absolutely agree that the 17th was a disaster.

    All in all, 1913 was a BAD year for the Republic.

  • Do the People really establish their government or ...

    08/02/2009 12:06:36 PM PDT · 16 of 70
    Rurudyne to KrisKrinkle; BenLurkin; OneWingedShark; MainFrame65; yefragetuwrabrumuy; Defiant; CodeToad; xine; ..
    "Which begs the question: Do the people and/or the States have a retained right and/or reserved power to require the Federal Government to do something not otherwise specifically delegated to it but also not otherwise specifically forbidden to it?"
    By means of ordinary statute: no.

    But the route of amendment is available and it is by that route that the balance of federal Powers are addressed (both to grant new abilities or even take away old ones).

    To clearly highlight this fact I will turn to the writings of Justice Field in his dissent in Slaughterhouse.

    Of course, you will properly say: "Wait, you're pointing to a dissent rather than the majority opinion!" but please bear with me.

    I turn to Field's dissent because in it he was FORCED to make what can only be a statement against interest and that is what I'm highlighting.

    By this I mean that even though he wanted to find for the butchers of New Orleans, and even though he was in fact laboring to misconstruct the 14th Amendment as well as confound the fundamental difference in Laws between "Privileges and Immunities" (as per A4:S2:C1) and "privileges or immunities" (as per the 14th Amendment) as to how these are founded: he had to make THIS admission:
    "That act, it is true, was passed before the fourteenth amendment, but the amendment was adopted, as I have already said, to obviate objections to the act, or, speaking more accurately, I should say, to obviate objections to legislation of a similar character, extending the protection of the National government over the common rights of all citizens of the United States. Accordingly, after its ratification, Congress reenacted the act under the belief that whatever doubts may have previously existed of its validity, they were removed by the amendment."
    This is actually the clearest statement made of the intent and function of the language in the "privileges or immunities" clause of the 14th Amendment.

    This clause exist to grant to Congress delegated Power to respect in statutory law civil rights that the several States could not disparage and this is what the majority upheld in Justice Miller's opinion for the majority.

    The reason this was a statement against interest is found in the preceding text where Justice Field writes:
    "The amendment does not attempt to confer any new privileges or immunities upon citizens, or to enumerate or define those already existing. It assumes that there are such privileges and immunities which belong of right to citizens as such, and ordains that they shall not be abridged by State legislation. If this inhibition has no reference to privileges and immunities of this character, but only refers, as held by the majority of the court in their opinion, to such privileges and immunities as were before its adoption specially designated in the Constitution or necessarily implied as belonging to citizens of the United States, it was a vain and idle enactment, which accomplished nothing and most unnecessarily excited Congress and the people on its passage. With privileges and immunities thus designated or implied no State could ever have interfered by its laws, and no new constitutional provision was required to inhibit such interference. The supremacy of the Constitution and the laws of the United States always controlled any State legislation of that character. But if the amendment refers to the natural and inalienable rights which belong to all citizens, the inhibition has a profound significance and consequence.

    "What, then, are the privileges and immunities which are secured against abridgment by State legislation?

    "In the first section of the Civil Rights Act, Congress has given its interpretation to these terms, or at least has stated some of the rights which, in its judgment, these terms include; it has there declared that they include the right
    'to make and enforce contracts, to sue, be parties and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property.'"
    This is where Field was intentionally confusing the distinction between "Privileges and Immunities" and "privileges or immunities". As I said, it's all a matter in how these are founded.

    The former, "Privileges or Immunities", are sourced in our rightful common laws and are the very same unalienable rights mentioned by Justice Washington in Corfield v Coryell which both the majority opinion and dissents mention explicitly in Slaughterhouse. Under the federal Constitution the several States are responsible to respect these "P&I" under A4:S2:C1 while the federal are responsible to respect them under the 9th Amendment (for there is indeed no other body of rights — common law or statutory — retained by the people at the time the amendment was authored).

    The latter, "privileges or immunities", are only sourced in statutory laws passed by a legislature — in this case Congress. As such they can be extended or even later revoked.

    It is important to realize exactly what was happening in the process that led up to the language of the 14th including a delegation of Power to Congress just as Justice Field wrote.

    Several of the several States were laboring to make the lot of freedmen as much a Hell on Earth as they could get away with.

    In the process of doing so they were factually disparaging A4:S2:C1 "Privileges and Immunities" that they had no right or lawful power to disparage — being forbidden to by the Constitution.

    The only legal recourse at the time was to be found in the courts. That meant that freedmen would have to wait on the whims of Case law and jurisprudence to see justice done.

    Meanwhile, the Congress was unwilling to wait on the courts and so they passed the very first federal Civil Rights Act which did not enumerate any new rights but merely reiterated common law "P&I" that free men should possess anyway — every right which Field highlighted in the above quote is also a "P&I".

    The problem was that this was not a remedy legally available to Congress. So rather than wait for the courts they acted to properly delegate a Power to give them the very power to make their civil rights act legal.

    It was, if you will, ANOTHER enforcement method to hold the State's feet to the fire to respect the fundamental and unalienable "P&I" they should have been respecting all along.

    This is why we find Justice Field echoing the words of those who debated the clause and the 14th Amendment. The CRA 1866 literally DOES NOT respect any new "Privileges and Immunities" but it does create a separate and similar set of "privileges or immunities" established in statutory laws and not under common law.

    This is how Justice Field set about to confuse the distinction between "Privileges and Immunities" and "privileges or immunities". In the process he clearly STATES that if all the amendment accomplished was just what its authors meant it to accomplish (and remember that he is forced to admit that this was the actual intent) then it: "was a vain and idle enactment, which accomplished nothing and most unnecessarily excited Congress and the people on its passage."

    I'll not be so cynical to opine here that the whole reason that Justice Field took this course of action was because this was a new Power for the Congress that offered nothing similar to the Court (as indeed Field's dissent would do): that sort of charge of misbehavior I'll leave to lay at latter day courts whose willful lawlessness is often astonishing.

    Rather, I'll simply lay at Field's feet the charge that he had ceased to be a jurist but had instead unethically become an advocate for the butchers of New Orleans. It is obvious that the lawyers representing these butchers had misconstrued the 14th Amendment when they essentially demanded that it guaranteed what we would in these days call a "right to work". No such statutory "poi" was enumerated by Congress at the time (nor has one been so enumerated at this time).

    There is, without a doubt, a reasonable claim for the right of Free Labor (our "right to work") under our rightful common laws. Given that both the majority opinion and dissents made reference to our A4:S2:C1 "P&I" there can be little doubt that had the butchers' lawyers simply argued on the basis of A4:S2:C1 they would have won their case — possibly in a unanimous decision.

    But the buthers' lawyers were inept twits so Justice Field, rather than base his judgment on the arguments actually offered, attempted to argue their case for them. If in the process he had to misconstruct the article he was sworn to uphold it would seem to have not been such a big deal (to him).

    I would also point out that the modern courts essentially take their cue from Justice Field. Acting as if privileges or immunities established by judicial fiat are in fact somehow the unalienable rights of the people even though there may be nothing resembling such 'poi' under our rightful common laws (as is the case, for example, with abortion). Conversely, they will also occasionally disparage a genuine "P&I" in favor of one of their inventions of judicial fiat.

    I hope I've been able to adequately describe the situation surrounding the 14th Amendment's "privileges or immunities" clause and also provide adequate cause to trust my interpretation.

    What this means for your question I hope should be plain too (I really DO try to work on matters of presentation so I'm not indecipherable, but as you wisely pointed out sometimes I'm in need of clarification); however, just to be complete....
    Among any powers not delegated to Congress could there have been a more needful ability at the time in question than requiring the several States to respect unalienable rights that they should have honored anyway?
    If such a clear and pressing need is not sufficient to justify the Congress exercising a power not delegated then what is?

    This tyranny of the States was not some mere emergency derived from external powers threatening our nation but it was like a 5th column within the nation striking a blow at our fundamental Laws and at our unalienable rights. So if this situation is not worthy of 'a little lawlessness by comparison' (Congress enacting the CRA 1866) then nothing is or truly ever will be.

    Or such are my thoughts on the matter.

    Again, I (unlike the current President and ... just about every Democrat in Congress) always welcome criticism.
  • Man dies from plague in China, 11 others infected

    08/02/2009 8:28:14 AM PDT · 12 of 22
    Rurudyne to mylife

    If you are referring to air you can cut or water that is already jello-mold ready ... sure.

    Sorry, that’s “jerro”

  • Man dies from plague in China, 11 others infected

    08/02/2009 8:10:18 AM PDT · 4 of 22
    Rurudyne to mylife


    That is just ... tacky!

    Funny, but tacky just the same.