Posts tagged ‘Constitution’

02/14/2016

OBAMA ENTITLED TO COURT APPOINTMENT

Since the death of Supreme Court Justice Antony Scalia, the Constitution requires a replacement nominated by the President. Assuming an academically qualified nominee, the Senate should approve. The fact that President Obama is in his last year is irrelevant and no reason for the Senate to refuse to consent.

During President Washington’s eighth and final year, he named two Justices to the Court, Samuel Chase on Jan. 27, 1796, and Oliver Ellsworth on March 4, 1796. President John Adams sent Chief Justice John Marshall on Jan. 31, 1801. This was after he lost the Nov. 1800 election to Thomas Jefferson and before the President-elect was sworn-in in March.

In 1836, President Jackson’s final year, Justices Roger Taney and Philip Barbour both started on March 15. Jackson also elevated Justice John Catron on March 8, 1837, after President Van Buren won the Nov. 1836 election and while Jackson was packing his bags. President Tyler picked Justice Samuel Nelson for the Court on Feb. 14, 1845. This was after President Polk won the 1844 race and Tyler was going home.

In his last year, President Hayes presented Justice William Wood to the Court on Dec. 21, 1880. He did this after President-elect Garfield won the Nov 1880 election and Hayes was a lame duck. President Cleveland put two Justices on the Court in 1888, namely Justice Lucius Lamar on Jan 16, 1888, and Justice Melville Fuller on Oct. 8, 1888, just one month before Benjamin Harrison defeated Cleveland.

During his final year, Republican Ben Harrison named Justice George Shiras on July 26, 1892. He also added Justice Howell Jackson, on Feb. 18 1893, after losing the Nov. 1892 contest. During his last year, President Taft sent Justice Mahlon Pitney on March 13, 1912. President Hoover elevated Justice Benjamin Cardozo on March 2, 1932, before being soundly defeated in November.

President Franklin Roosevelt picked Justice Frank Murphy on Jan. 18, 1940, during his eighth year, and before announcing an intent to seek a third term. During the last year of his first term, President Nixon appointed Justice Lewis Powell and Justice William Rehnquist, both on Jan. 7, 1972. President Reagan nominated Justice Anthony Kennedy, who assumed the bench on Feb. 18, 1988, during Reagan’s eighth and final year.

We had elections in 2008 and 2012 as to who should name our Supreme Court Justices. Obama won both. We don’t need or want another referendum. The fact that Republican leader Sen. Mitch McConnell of Kentucky vowed to deny Obama his constitutional right to replace Scalia is frankly no surprise. McConnell is a crusty old Southern obstructionist, born in Alabama. Some bad attitudes just never die.

While Wis. Sen. Tammy Baldwin, a Democrat, can be relied on to consent to Obama’s nominee, the same is not true of Republican Sen. Ron Johnson. If he joins McConnell and obstructs the will of the people, this November, every Wisconsin voter should help former Sen. Russ Feingold drive Johnson from office.

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12/24/2014

Constitution of U.S. in 1750 Words or Less

The U.S. Constitution created a House and Senate. (1-1-1) House terms are for two-years. (1-2-1) House members are directly elected by the people. (1-2-1) Representatives must be at least 25 and citizens for at least seven years. (1-2-2) House seats are apportioned equally based on a census taken every 10 years. (1-2-3) Washington DC receives one House seat. (A-23) Vacancies are filled by elections called by state executives. (1-2-4)

Senate terms are for six years. (1-3-1) Senators, initially chosen by state legislatures, are also directly elected. (A-17) Senators must be at least 30 and citizens for at least nine years. (1-3-3) Each state is entitled to two Senators, regardless of population. (1-3-1) Senators are divided into three classes; one-third are elected every two years. (1-3-2) The Vice-President serves as the President of the Senate (1-3-4)

The time, place and manner of elections is determined by Congress. (1-4-1) Citizens 18 years of age may vote. (A-26) Those born in the U.S. or naturalized are citizens. (A-14) Congress may write rules for naturalization. (1-8-4) No one may be denied the right to vote due to race or sex. (A-15, A-19) No poll taxes are permitted. (A-24)

No member of Congress may be subjected to a religious test. (6-3) Members are compensated. (6-1) Pay changes cannot become effective until after the next election. (A-27) The House and Senate determine if those elected met the qualifications for office (1-5-1) Members may not simultaneously retain other offices. (1-6-2) They cannot accept gifts or titles of nobility from foreign states. (1-9-8) Senators and representatives may be disciplined for disorderly behavior and expelled if two-thirds agree. (1-5-2)

Congress convenes on Jan. 3 and is in session at least once a year. (1-4-2) A majority constitutes a quorum. (1-5-1) While in session, neither body may adjourn for more than three days. (1-5-4) Members may not be questioned about their House or Senate speeches or debates. (6-1) They are privileged from arrest. (6-1) A journal records all proceedings and votes. (1-5-3) The Vice-President votes only to break a tie in the Senate. (1-3-4)

The President must be a natural-born citizen. (2-1-5) He must be at least 35. (2-1-5) Each state receives Electoral College electors equal to their number of representatives and Senators. (2-1-2) Elections are held on the same date in every state. (2-1-4) A majority of electors choses the President. (2-1-3) If no candidate receives a majority, the House elects the President. (2-1-3)

The Presidential oath of office, written into the Constitution by the Founders, makes no reference to god. (2-1-8) The President may not be subjected to a religious test. (6-3) The President is entitled to compensation. (2-1-7) He is elected to a four-year term that begins on Jan. 20 (2-1-1). He can serve no more than two terms. (A-22) If he already served more than two years of another’s term, he is limited to one term. (A-22)

The President defends the Constitution. (2-3) He is Commander-in-Chief of the army and navy. (2-2-1) He may use the militia to suppress insurrections and enforce the laws of the union. (1-8-15) He appoints ambassadors, officers, and Supreme Court Justices. (2-2-2) He fills vacancies, including Vice-President. (2-2-3) He may grant pardons. (2-2-1) He gives a State of the Union address, which recommends legislation. (2-3) He can make treaties. (2-2-2) No state may sign treaties. (1-10-1) The President may veto bills (1-7-2)

The President may be impeached for treason, bribery, or high crimes and misdemeanors. (2-4) The crime of treason must be supported by two witnesses or a confession in open court. (3-3-1) The House has the sole power to file impeachment charges. (1-2-5) The Senate has the exclusive power to try and convict cases of impeachment. (1-3-6) The Vice-President becomes President if the President dies or is removed from office. (2-1-6)

The House and Senate have legislative powers. (1-1-1) Congress has several enumerated powers. (1-8) They may also pass laws necessary for carrying out the delegated powers. (1-8-18). They may legislate for the District of Columbia. (1-8-17) They may make rules for U.S. territories. (4-3-2) They may admit new states. (4-3-1) They may initiate constitutional amendments by a vote of two-thirds in both bodies. (5) Presidential vetoes may be overridden by a two-thirds majority in both bodies. (1-7-2) The Senate may ratify or reject treaties. (2-2-2)

All revenue bills begin in the House. (1-7-1) Congress has the power to lay and collect taxes. (1-8-1) They may use income taxes. (A-16) Direct taxes must be proportional (1-2-3) Congress, but no state, may coin money. (1-8-5, 1-10-1) They may punish counterfeiters of U.S. coins and securities. (1-8-6) They may borrow money. (1-8-2) They may pay the debt. (1-8-1) They may write uniform bankruptcy rules. (1-8-4) Money from Treasury must be appropriated. (1-9-7)

Congress may regulate commerce with foreign nations and among the several states (1-8-3). They cannot tax exports (1-9-5) There shall be free trade within the U.S. from state to state, without preferences or tariffs imposed on ships (1-9-6) States cannot impose tariffs on imports from abroad or exports headed overseas. (1-10-2)

Congress may promote the progress of science and useful arts by protecting inventors and authors. (1-8-8) They may build post offices and postal roads. (1-8-7) They cannot prohibit intoxicating liquors. (A-21) They may provide for the general welfare. (1-8-1)

Congress provides for a common defense. (1-8-1) They may declare war. (1-8-11) They may raise and support armies for two-year periods. (1-8-12). They may create a navy. (1-8-13) They may organize the militia to repel invasions. (1-8-15, 1-8-16) Militia members cannot be denied a right to bear arms. (A-2) They may grant letters of marque and reprisal. (1-8-11) States may not. (1-10-1) Individual states may not maintain troops. (1-10-2) Congress may erect forts, arsenals, and docks, (1-8-17) but may not quarter soldiers in homes. (A-3)

The Congress may make rules for land and sea forces. (1-8-14) They may make rules for enemies captured on land and water. (1-8-11) They may punish offenses against the Law of Nations. (1-8-10) They may punish felonies on the high seas. (1-8-10)

The Constitution created a Supreme Court. (3-1-1) Tribunals inferior to it may be created by Congress. (1-8-9) Supreme Court Justices serve for good behavior. (3-1-1) They must be compensated.

The judicial power extends to cases where the issue involves the U.S. Constitution, federal law, a treaty, an ambassador, admiralty or maritime law, where the U.S. is a party, two states sue each other, or citizens of different states are involved. (3-2-1) Federal courts cannot hear cases between a state and citizens of another. (A-11) The Supreme Court has appellate jurisdiction, and only a limited degree of original jurisdiction. (3-2-2)

Each state is guaranteed a Republican form of government. (4-4) States cannot grant titles of nobility. (1-10-1) They cannot enter into confederations with other states (1-10-1) They cannot enter into agreements with foreign powers or other states. (1-10-3)

Federal law is the supreme law of the land. (6-2) States reserve only those powers not delegated to the federal government, or barred by the U.S. Constitution. (A-10) States may initiate amendments to the Constitution, if two-thirds of the state legislatures agree. (5) A constitutional amendment becomes law, if three-fourths of the states ratify it. (5)

States must grant full faith and credit to the laws and judgments of the other states. (4-1) They cannot impair the obligations of contracts. (1-10-1) If they take private property for a public purpose, they must pay just compensation. (A-14) In civil cases at law, jury trials cannot be denied. (A-7) States cannot deny citizens the privileges and immunities of citizens of the other states. (4-2)

States cannot deny liberty, which encompasses many freedoms. (A-14) Liberty includes a freedom from religion, as well as the free exercise of it. (A-1, A-14) The government cannot deny free speech, or a freedom of the press. (A-1, A-14) They cannot deny a right to assemble to petition for a redress of grievances. (A-1, A-14)

The Founders made possible the abolition of the slave trade by inserting a provision that allowed it to be terminated in 1808, which is exactly what Jefferson did as soon as he could. (1-9-1) Slavery itself was ended by Lincoln’s efforts in 1865. (A-13) Persons cannot be denied the equal protection of the laws. (A-14) The enumeration of certain rights in the Constitution, does not mean others retained by the people are denied. (A-9)

Neither Congress nor any state may single out a person and convict them through a Bill of Attainder (1-9-3, 1-10-1) Neither Congress, nor any state, may change the rules of the game after the fact by passing Ex Post Facto laws. (1-9-3, 1-10-1)

The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated, and no warrant shall issue but upon probable cause, supported by oath or affirmation, particularly describing the place to be searched, and the persons or things to be seized. (A-4) One state may ask another to extradite an alleged fleeing felon. (4-2-2)

A person accused of a crime may not be denied liberty without the due process of law. (A-5, A-14) He is entitled to the assistance of counsel. (A-6) Writs of Habeas Corpus, which bring the accused out of a jail and before a judge, cannot be suspended, except in times of rebellion (1-9-2) While awaiting trial, the accused may not subjected to excessive bail. (A-8)

One accused of a felony must be indicted by a grand jury, or a judge must find probable cause to bind him over for trial. (A-5) He must be provided with the information that sets forth the nature of the accusation. (A-6) He is entitled to a speedy trial (A-6) He is entitled to a trial by jury. (3-2-3) The jury must be impartial. (A-6)

The trial must be held in the state where the alleged offense occurred. (3-2-3) The trial cannot be conducted in secret and must be open to the public. (A-6) The defendant cannot be compelled to be a witness against himself; in other words, he has a right to remain silent. (A-5) He has the right to confront witness against him. (A-6) He has the right to use the compulsory subpoena process to obtain witnesses for his defense. (A-6)

If a jury finds the defendant not guilty, he cannot be subjected to same offense twice (A-5) If the defendant is found guilty, he cannot be subjected to excessive fines, or exposed to cruel and unusual punishment. (A8)

05/11/2013

Immigration: 200 Years of Law

Although immigration is once again being debated, it’s an issue that’s been discussed on and off since the founding of our nation. Before Congress and the President pass another bill, perhaps it’s time to review the federal laws previously enacted.

Let’s start with the U.S. Constitution. The score here is one right and one wrong. The Founders got it right when they delegated to Congress the power over Naturalization and Citizenship and thereby federalized the issue (Art I, Sec. 8). It would have been a mistake if they had allowed each state to write their own laws.

The Founders, however, got the idea of Citizenship wrong when they counted only 3/5ths of slaves and initially limited immigration to only free white persons (1790).

Congress got it right as they required immigrants to first reside in the U.S. for five years before they could become citizens (1795). They got it wrong by extending residency to fourteen years (1798), but then corrected the error, by returning to five (1802).

Congress got it right in the mid-1800s, when they ignored the Know Nothing Party and their Protestant members, who wanted Irish immigrants excluded, simply because they were Catholic.

America got it right after the Civil War when the 14th Amendment made all persons born or naturalized here, Citizens of the U.S. and of the state where they resided. Citizenship by birth, regardless of the nationality of their parents, was the right thing to do.

Congress got it wrong as they passed laws that excluded Chinese and other Asians based on nothing more than race (1875-92)

Congress got it right when they made some knowledge of the English language a condition of citizenship (1906). There is nothing wrong with requiring English reading tests (1917). Some civics is also not too much to ask from someone who wants to become a U.S. Citizen.

Congress got it wrong after WWI when they limited entry of newcomers to small numbers, by establishing quotas based on the nationalities of those already in the U.S. (1921-24). Ironically, the exclusion of foreigners, willing to work for low wages, helped organized labor in the U.S., by giving American citizens more job opportunities and greater bargaining power during the roaring 20s.

America got it right after WWII, when millions of homeless and orphaned displaced persons were taken in from war-torn Europe.

Congress got it wrong in the McCarthy Era (1950s) as suspected subversives were deported, and blacklisted people, like future Canadian Prime Minister Pierre Trudeau, were kept out.

Congress got it right in 1965 when they abolished the nationality quotas established in 1924, and started focusing instead on immigrant work skills, regardless of country of origin.

Congress got it right in 1986, as they imposed sanctions against employers who hired illegal immigrants. But they got it wrong by giving amnesty to three million illegal-aliens, as this had the unintended effect of encouraging even more to enter unlawfully.

Congress got it right in 1990 when they increased the annual number of legal immigrants from 500,000 to 700,000.

Congress got it right in 1996 when welfare and immigration reform made immigrants here illegally ineligible for most forms of federal assistance, including many types of Social Security.

We’ve learned from history the federal government, and not the states, have exclusive jurisdiction over immigration policies. These laws should not reject people on the basis of race or religion. Immigration policies must properly require newcomers to learn civics and to read and write English. People with useful skills should be allowed to enter the work force, as the U.S. needs a steady flow to insure a gradual rise in population. Caps on the annual flow are needed, however, so unemployed American citizens are able to find jobs, and not be displaced by excessive foreign labor, willing to work for less. Employer sanctions must be enforced, so everyone pays into the Social Security System. The underground economy must be destroyed to end cash payments under the table, so everyone contributes income taxes.

04/23/2013

Boston Bomber To Use Civilian Court

Since the Boston Marathon Bombings, some have advocated processing the surviving defendant in a Military Tribunal, but since he is a U.S. Citizen, and a civilian, he will be indicted and tried in the ordinary American criminal court system.

Whether someone is to be tried as a civilian, or as a combatant, depends on the circumstances. The following is a review of the various categories.

Civilian U.S. Citizens, who are not combatants, alleged to have committed a crime in the United States, are given access to the civilian courts, with all the rights of the accused, provided in routine jury trials. If they are found “guilty,” they can be sentenced to prison or to death if the offense and the jurisdiction allows it, but if the verdict is “not guilty,” they must be released. An example in this category is the domestic terrorist, Timothy McVeigh, the Oklahoma City bomber, who was convicted in our civilian court system, sentenced to death, and executed.

Combatant U.S. Citizens, enlisted in the U.S. military, and charged with an offense, would be entitled to Courts-Martial proceedings, under the Uniform Code of Military Justice, again with all the due process rights and privileges provided by our Constitution. An example would be U.S. Lt. William Calley, who was charged with massacring hundreds of defenseless Vietnamese women and children, and convicted by U.S. combat officers, who served as a jury of his peers.

Enemy Alien Combatants, captured in the field, who may have killed our soldiers, but who did not violate any of the Laws of War, would be entitled to Prisoners-of-War status, and can held for the duration of the conflict, provided they are granted prisoner rights, under the Geneva Conventions. For example, thousands of ordinary German soldiers, taken prisoner by the U.S. in WWII, were entitled to this status, as they were held and later released to go home.

Unlawful Enemy Alien Combatants, captured in the field, would initially be treated as prisoners-of-war, but if evidence surfaced they had committed illegal acts in violation of the Laws of War, they could be subjected to a trial by a Military Commission to answer for their illegal acts. For example, many Japanese commanders in WWII, who had executed defenseless civilians in the Philippines and elsewhere, were tried in Military Commissions, convicted, and executed.

The Boston Marathon Bomber is not a member of the armed forces of another nation. He was not for example an Afghan Taliban captured in the field or a member of the Iraqi Army. He has no status as a enemy combatant, and cannot be tried in a Military Commission. Moreover, he is not an alien, but rather a naturalized American citizen. His status as an American guarantees him all of the Constitutional rights allowed under our civilian judicial system.

01/14/2013

Need “Borrowing” Not “Debt” Ceiling

The “Debt Ceiling” is once again being debated in Congress, but it shouldn’t be, since we have no choice, but to pay the financial obligations we already have. Defaulting on our loans is not a realistic or responsible option as it would do nothing but lower our credit rating and trigger negative global responses.

The debate should instead occur much earlier whenever Congress borrows money.  If we are going to have a “ceiling,” it should be as to the amount we borrow. Whenever right-wing politicians vote for another war, or a new weapons system, without raising taxes to pay for them, they should first be required to raise a “Borrowing Ceiling.” This is where the issue might make a difference, since borrowing is not a necessity.

Under the U.S. Constitution, the power “to borrow money” is specifically delegated to the Congress (Art. I, Sec. 8). Congress must approve of any measure that causes borrowing. It is not a power assigned to the Executive. The President does not write the budget. The House must stop blaming the President for spending and they must face their constitutional duty to control it.

Right-wing politicians, who control the House, where all budget bills originate, are famous for supporting all sorts of wasteful military spending, without raising taxes, but once they authorize spending, it’s a waste of time to debate the issue of paying for the military toys previously purchased with a credit card.

It’s time for the Republican House to act like adults, take responsibility, and significantly cut the Defense Budget, or raise taxes to pay for the military spending they previously supported.

12/22/2012

NRA: Gun Caused Newton Shooting

It’s only been a little more than a week since the horrible grade school massacre in Newton, Connecticut, where twenty 6-year-olds and six teachers were murdered, but the National Rifle Association (NRA) is already confusing people as to its cause.

Yesterday, in a speech by Wayne LaPierre, the head of the NRA, the true cause of the shooting was not mentioned. Instead, he suggested increasing our tax burden by spending countless sums to place armed guards in every school in the U.S. He failed to mention mass killings have occurred in theatres, shopping centers, and even army bases, already protected by armed guards.

The NRA cannot see the forest for the trees. The simple cause of the shooting in Connecticut was a gun, period. Yes, the shooter had a mental issue. People have had mental problems in the past, and no matter what we do as a culture, there will be sick people in the future. All we can do is treat illnesses once diagnosed.

The critical mistake in Connecticut occurred when the mother of the mentally ill kid purchased not one, but three firearms, and then kept them in her home, where her son could access them. Although people have been warned over the years the presence of firearms increases risks of injury or death to the owner, more than anyone else, the mother ignored this, and tragically she died first.

The mentally ill kid then took his mother’s semi-automatic weapon on a shooting spree at a grade school. If the mother had not given him access to the gun, or if we would have barred her from purchasing it, the shooting probably wouldn’t have occurred.

We first have to acknowledge that twenty innocent 6-year-olds were murdered by a gun. Sadly, the NRA just can’t accept this.

Other countries, including Canada where hunting is popular, have far less violence from guns, because their regulations are more effective. The 2nd Amendment is not absolute. It specifically refers to a “well-regulated militia.” As the Founders wrote it, they envisioned regulations. It’s time we implemented gun regulations by banning powerful semi-automatic guns now and forever.

12/17/2012

2nd Amendment Allows Regulation

Although the Supreme Court’s conservative five-member activist majority of Scalia, Thomas, Alito, Roberts, and Kennedy ignored the “original intent” of the Second Amendment, as they drafted law from the bench in 2008, and gave individuals who had not enlisted in any state militia an individual right to bear arms, the Constitutional interpretation enunciated by dissenting justices Stevens, Souter, Breyer and Ginsburg, who said only state militia members have a right to bear arms, was the correct view.

In the American Revolution, a loosely-affiliated group of colonial states, operating under the Articles of Confederation (1777-87), provided arms to those serving in well-regulated militias. Art VI of the Articles stated in part: “…Every state shall always keep up a well-regulated and disciplined militia, sufficiently armed…and shall provide…a proper quantity of arms…”

When the Founders realized the Articles were too weak, and the nation needed a stronger central government, they adopted the U.S. Constitution, which created a federal system, and delegated to Congress the power to raise an Army. The new arrangement concerned some, as they feared a rouge President might use the Army for his own personal purposes, to overthrow their liberties.

The Second Amendment was adopted to preserve the rights of the states to maintain armed militias, so they could collectively resist a federal Army. This is why it provides: “A well-regulated militia, being necessary to the security of a Free State, the right of the people to keep and bear arms shall not be infringed.”

The “original intent” of the 2nd Amendment was to prevent the federal government from disarming state militias. In modern terms, the U.S. government in Washington cannot take guns away from those in state militias, such as the Wisconsin National Guard. If you belong to the Guard, you have a right to bear arms; if not, you have no right to them.

Subsequent Acts of Congress, such as the Militia Act of 1792, which ordered every 18 to 45 year old man to be “enrolled in the militia” and to “provide himself with a good musket or firelock…or with a good rifle” showed the Founders were connecting the right to bear arms with enlistment in a militia.

State Supreme Courts also found only those in the state militias had a right to bear arms. In Andrews v State, 50 Tenn. 165 (1871), a Tennessee Court held the right to bear arms for common defense did not mean individual defense, but referred to the right to bear arms for the defense of the community.  In English v State, 35 Tex. 473 (1872), the Texas Court held the “arms” referred to in the Second Amendment are those of soldiers. In Dabbs v State, 39 Ark. 353 (1882), the Arkansas Court held a statute making it an offense to sell “any pistol,” except those “used in the Army or Navy of the U.S.” did not invade the constitutional right to keep and bear arms. In Pierce v State, 276 P. 393 (Ok App 1929), an Oklahoma Court held “arms” in the 2nd Amendment did not include pistols, but only weapons carried by the militia.

A few years ago, however, the conservative U.S. Supreme Court ignored the language of the 2nd Amendment, as well as case precedent, as they created an individual right to bear arms. See District of Columbia v Heller (2008). Heller was later applied to state and local governments, in another 5-4 case. See McDonald v Chicago (2010). (Sotomayer replaced Souter’s dissent).

The only saving grace in Heller was the part where the Court upheld the constitutionality of firearm regulations, and reaffirmed the right of states to engage in gun licensing. They said Second Amendment rights are not unlimited, as there is no right to carry any weapon, in any manner, for any purpose.

Gun regulations have been used for over 100 years. 126 years ago already, the U.S. Supreme Court upheld an Illinois Military Code that prohibited all bodies of men, except U.S. troops, and those in regular organized state militias, from drilling or parading with arms, unless they were licensed. See Presser v Illinois (1886). 115 years ago, in Robertson v Baldwin (1897), the Court held the right to bear arms was not absolute, and states had the authority to regulate concealed-carry. 73 years ago, the Court held the 2nd Amendment does not protect citizens who transport 12-gauge shotguns, because they are not reasonably-related to the preservation of a well-regulated militia. See U.S. v Miller (1939).

Today, while the need of urban governments to reduce crime by imposing complete handgun bans has been blocked, they can still keep felons and juveniles from possessing firearms; they can ban certain types of firearms, like machine guns and sawed-off shotguns; they can prohibit concealed carry; and they can ban guns on public property.

While gun control advocates are unable to ban and can only regulate, 10 to 20 thousand Americans die each year as a result of handguns. Most murders (63%) are caused by handguns, and 70% of the time the person shooting is a friend or relative of the victim. Foreign countries, such as Japan, Canada, and those in Europe, have only a small fraction of homicides caused by handguns.

Gun control is needed in central cities (where there is no hunting), and any regulation that makes access to handguns in urban areas more difficult, is a step in the right direction. Since the Supreme Court decided to write law, and outlawed handgun bans as an option, the only alternative is to now regulate gun use to death, with the hope that someday, a different Supreme Court will finally apply the original intent of the Second Amendment.

06/04/2012

Regulating Commerce: What Can We Do?

The Supreme Court will soon be deciding if all or part of the 2010 federal health care act went too far under the Congressional power to regulate interstate commerce. The question is to what extent does the “commerce clause” give Congress the power to regulate?

Art. I, Sec 8 (3) of the Constitution provides: “Congress shall have power…to regulate commerce…among the several states.” The first significant “commerce clause” case involved a challenge to a state law in Gibbons v Ogden (1824), where Chief Justice Marshall held Congress has the power to regulate every aspect of commercial intercourse, including every transaction not wholly carried out within the boundaries of a single state.

During the nation’s first 100 years, despite a federal power to regulate commerce, Congress passed no significant law in that regard, and instead most legislation was at the state level. Congress first used the “commerce clause” in 1887 to create the Interstate Commerce Commission (ICC) to regulate the railroads. Three years later, they added the Sherman Antitrust Act (1890).

An activist conservative Supreme Court however went right to work limiting any federal expansion of the power to regulate commerce. They held in 1895, while Congress could control railroads and common carriers, manufacturing conducted wholly within the confines of a single state, was outside their reach. In Hammer v Dagenhart (1918), Congress tried to eliminate child labor by establishing a minimum work age, but a conservative Court held the act exceeded their constitutional powers, because manufacturing was outside the reach of the “commerce clause.”

The interpretation of the “commerce clause” changed significantly during the Great Depression, when a new Court held in NLRB v Jones & Laughlin Steel 301 U.S. (1937), Congress could regulate manufacturing, even if it is based within one state. The Court abandoned the old distinction that kept manufacturing beyond the reach of federal regulation. The new test was any activity “affecting” interstate commerce could be subjected to regulation. In a challenge to the 1938 Fair Labor Standards Act, which regulated wages and hours, a progressive court in U.S. v Darby (1941), finally overruled the old 1918 Hammer decision above.

In Wickard v Filburn 317 U.S. (1942), the Court upheld the power of the federal government to regulate local farmers, who never did any business outside their state, on the grounds their production nevertheless affected aggregate national supplies and prices. In Heart of Atlanta Motel v U.S. 379 U.S. (1964), a local motel in Georgia that discriminated against blacks was subjected to the federal Civil Rights Act of 1964, because they accepted guests from out-of-state, and therefore engaged in interstate commerce.

The question now is whether the Supreme Court will limit the national power to regulate health care providers, businesses that provide health insurance to workers, as well as the powerful health insurance industry. Will they exclude the “individual mandate” from the reach of the commerce clause? The answer is there are five conservative votes on a 9-member Supreme Court, and though we have no crystal ball, at least 4 or 5 of them will vote to overturn at least part of the new law.

05/17/2012

Banking: How the System Evolved

With the Crash of 2008 and the melt down of our big financial institutions, questions have arisen as to how U.S. Banking evolved into what it is today.

While the Constitution did not expressly delegate the power to establish a federal bank, it clearly authorized Congress to coin money and to regulate its value. The Congress was also given the authority to make all laws “necessary and proper” to carry out those functions. In addition to a mint, George Washington opened the First Bank of the U.S. in 1791, which continued for 20 years, until their charter expired in 1811 due to non-renewal.

After the War of 1812, converting state bank notes into gold and silver became such a problem, Congress and James Madison were prompted into creating a 2nd Bank of the United States, in 1816. Andrew Jackson criticized it, saying it concentrated funds in the east, and limited local western banks from lending to farmers.

When Jackson became President, he was presented with a bill in 1832 to extend the charter of the 2nd U.S. Bank, but he vetoed it, arguing it was unconstitutional. He directed his Treasury Secretary to move all federal funds from the U.S. Bank into state banks, but his Treasury Secretary and his successor both refused, before the third in line finally carried out Jackson’s order.

As Jackson left office in 1837, newly-elected Martin Van Buren inherited the nation’s first serious depression. The crash came 36 days after he was sworn-in, as nearly every bank in the country closed. Van Buren tried to create a more stable system in 1840 by moving all federal funds from private banks into a U.S. Treasury.

As soon as President Tyler took over in 1841, he quickly reversed Van Buren’s policy, and vetoed two bills sponsored by Sen. Henry Clay to revive the U.S. Bank. President Polk, who followed Tyler in 1845, returned to Van Buren’s policy of keeping federal funds in the U.S. Treasury.

Before the Civil War, President Buchanan presided over an economic panic that witnessed the failure of several banks, and the volatility later continued, with additional panics under Grant in 1873, and Cleveland in 1893.

President Wilson signed the Federal Reserve Act in 1913, which created a new more stable system, by establishing 12 Federal Reserve Banks, charged with regulating the money supply, making loans to private banks, and by monitoring their reserves.

As President Franklin Roosevelt inherited the Great Depression, depositors started withdrawing their money from banks in 1933, triggering a panic that caused 5,000 of them to go out of business, the day before he was inaugurated. The new President promptly closed all banks, declared a Bank Holiday, and signed an Emergency Banking Act (1933) that established the Federal Deposit Insurance Corporation (FDIC) to make deposits safe by providing insurance for them. Congress also passed the Glass-Stiegel Act (1933) to take banks out of stock market speculation.

Ronald Reagan ushered in a new era of right-wing deregulation, during which he pushed the repeal of financial sector rules. As the conservatives beat the dumb louder and louder, they pressured moderates like Bill Clinton to repeal of the depression-era Glass-Stiegel Act. For eight years under George W. Bush, his minions looked the other way, as speculators took over the financial sector, and led us into the Crash of 2008.

To correct the problems caused by deregulation, President Obama signed the Dodd-Frank Wall Street Reform and Consumer Protection Act, as a first step in re-regulating the financial sector. That is how we got to where we are, but we are not there yet, and we have a ways to go to fully stabilize the system.

05/14/2012

Gay Marriage: Time for Recognition

While President Obama announced last week he now favors gay marriage, Gov. Romney simultaneously was implicated in a bullying event against a gay student, who was pinned down against his will, so Mitt could cut his hair, despite the victim’s cries for help. Although virtually everyone involved in the abusive incident clearly remembered it, even though it occurred in 1965, Mitt obviously lied, when he claimed he could not recall it.

The issue of gay marriage has now been joined as a topic for the 2012 Presidential Campaign, as Obama is for it, and Romney is against it. In the Republican Debates, Romney said he supported equal rights regardless of sexual orientation, but characteristically adopted a contradictory position, as he said he opposed same-sex marriage. (1-16-12) He explained as Governor he issued gay marriage licenses in Massachusetts, only because his state constitution required it (12-15-11). He agreed with adoption agencies that restrict child placement to homes with only one man and one woman (2-22-12). He wants the Constitution amended to limit marriages to one man and one woman (8-11-11) (1-7-12).

If Mitt Romney and the Republicans win the 2012 election, the policies of other conservatives will also be advanced. Sen. Santorum pledged to push gays back into the military closet by reinstituting “don’t ask don’t tell” (10-25-11). He ran against the U.S. Constitutional framework, and State’s Rights under the 10th Amendment, as he suggested the issue of marriage be governed exclusively from Washington. He wanted to federalize marriage in all states, saying a national law is needed. He argued someone cannot be married in one state, but not in another. He also supported a federal law banning adoption by gay couples (1-7-12).

Newt Gingrich also came out against gay marriage. While he conceded gays should be able to visit friends in hospital beds, or designate them in Last Wills, he opposed gay marriage, as he thinks marriage is limited to one man and one woman. (1-7-12) Gov. Perry also favored a U.S. Constitutional Amendment defining marriage as between one man and one woman. (1-7-12)

President Obama on the other hand has evolved, and we as a nation have come a long way. Mitt is right about one thing, in the 1960s, the topic of gay rights was very much in the closet. At that time, we all focused on Mary Tyler Moore in a tight black shirt. While I think it was the Laugh-In Comedy Hour that allowed an apparently gay guy named Tiny Tim to play banjo, while singing at a very high pitch, no one verbally connected the dots, and explained he was gay, or that there were people like him, who are drawn to their own sex. Personally, I had absolutely no idea of what gays were all about in the 1960s. The assumption was we were all the same, and had the same drive towards women.

In college, in the early 1970s, I met a couple of smart guys on campus, who shared an intellectual curiosity about academic topics, which made them interesting to talk to, but I did not know they were gay, because they were not flaming, and they left me alone, since I was very heterosexual and they knew it.

Some 20 years later, I saw one of them at a class reunion. By that time he had some gay characteristics, and he finally came out of the closet, and told me the other friend we had in college was gay. When I asked how he knew, he admitted he too was gay. I was kind of shocked, but asked what made gays the way they are. Was it genetics or environment? He stated he was gay due to genetics and not learned behavior. It was something in their DNA, he said.

The incident helped me to evolve, because the revelation put a human face on the topic. Today, while I still don’t feel comfortable around flaming gays, at least I understand why they are the way they are. They certainly have no choice. I am sure if they did, they would avoid the troubles that come with being gay, by joining the heterosexual world.

Romney and the Republicans need to change, as many of the rest of us have over time. We have come to grips with the reality gay people are born that way, and it is unfair to blame them for being different, simply by the random chance of birth. It’s is time they were treated as fully equal citizens.