Tag: constitution

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ideological culture national politics & policies

Equal Wrongs

ERA, Equal Rights Amendment, ratify, Constitution,

Back in the 1970s, the late Phyllis Schlafly charged that, if the Equal Rights Amendment (ERA) were ratified, women would be subject to the military draft. 

Funny thing, though — the ERA was not ratified, yet any return to the draft means our daughters would be forced into combat just like our sons. 

The 14th Amendment already requires equal protection of the laws.

Congress proposed the amendment in 1972 with a seven-year period for ratification by the necessary 38 states. Even with an extension, the ERA fell three states short . . . well, make that eight, since five states* rescinded their initial ratifications. 

“One thing we are going to need to do right away,” declared Senate Democratic leader Dick Saslaw, “is pass the Equal Rights Amendment in Virginia.”

But it’s back, sorta. In recent years, Nevada and Illinois have ratified the timed-out amendment. And with Democrats taking control of both chambers of the Virginia Legislature in this year’s election, the state could now become the 38th to ratify. 

Not so fast. Even Supreme Court justice and progressive action-hero Ruth Bader Ginsberg has made it clear that the amendment has expired, that the process must begin anew. No amendment should be bum-rushed into the Constitution.

Though some conservatives warn the ERA may undermine women’s rights. I support the language of the amendment as it plainly reads: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”**

Possible wrinkle: can anyone read plainly?

This is Common Sense. I’m Paul Jacob.

* Idaho, Kentucky, Nebraska, South Dakota, and Tennessee.

** There were two boilerplate clauses, in addition: Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article. Section 3. This amendment shall take effect two years after the date of ratification.

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ERA, Equal Rights Amendment, ratify, Constitution,
Categories
judiciary national politics & policies Popular Second Amendment rights

Packing

Beto

“Are you proposing taking away their guns?” 

“I am,” replied former Texas Congressman Robert Francis “Beto” O’Rourke to ABC World News Tonight anchor David Muir’s question. If, anyway, “it’s a weapon that was designed to kill people on a battlefield.” 

“Hell, yes,” he added, later in last week’s Democratic presidential debate.

“We’re going to take your AR-15, your AK-47.”

Yesterday, I noted that U.S. Senator Kamala Harris seemed oblivious to any consideration of the constitutional rights of citizens to “bear arms.” Today, consider the constitutional work-around both Democrat presidential contenders support. You see, when they talk about confiscating your guns, they do not intend to go to all the hard work of changing the law of the land. They plan, instead, merely to change the High Court — something the president, with a majority of Congress, can do — and have the new justices re-visit the legal interpretation.

O’Rourke “spoke openly after launching his run,” informs Politico, “about expanding the high court to as many as 15 judges.” Fox News reported that he “is open to making drastic changes to fundamentally reshape the Supreme Court — essentially court-packing, with a twist.”

The “twist” is the scheme that I wrote about in March. In a bizarre nod to bipartisanship, O’Rourke would have Republicans select five justices, Democrats select five more, and then have those ten judges select yet another five. 

Only tradition and public opinion have kept the highest court in the land from previous hijackings.

Is Republican opposition all that stands in the way now?

Gives a whole new meaning to the question: Are you packing?

This is Common Sense. I’m Paul Jacob.

Beto

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general freedom U.S. Constitution

Why We Fought

When I was young, we were instructed to revere the men dubbed by President Warren Harding as “the Founding Fathers.” Reverence has since gone out of fashion.

Even today’s freedom-minded often express a general iffiness about America’s separation from England.

Now, I’m so deep-seatedly anti-monarchical, so resolutely anti-royal that I tend to shake my head at this sort of stuff. Yet people I very much admire might be called Revolution Liberty Skeptics.

“Can anyone tell me why American independence was worth fighting for?” asks economist Bryan Caplan. He says “it’s hard to get a decent answer” on specific policies improved by the secession from the Empire, at least liberty-wise.

He speculates, for example, that separation “allowed American slavery to avoid earlier — and peaceful — abolition.”

Historian Jeffrey Rogers Hummel ably answers him, noting that before “the American Revolution, every New World colony, British or otherwise, legally sanctioned slavery, and nearly every colony counted enslaved people among its population. As late as 1770, nearly twice as many Africans were in bondage throughout the colony of New York as within Georgia, although slaves were a much larger percentage of Georgia’s population.” Vermont, which did not join the union until 1791, abolished slavery in 1777. By 1804, gradual emancipation had begun in all the remaining northern states that had not abolished slavery outright.*

Do we really think all this would’ve happened under British rule?

As Hummel reminds us, “emancipation had to start somewhere.”

It started in the country that put liberty up front.**

Scoffing at the Revolution now won’t put liberty further forward.

This is Common Sense. I’m Paul Jacob.

 

* New York’s gradualist plan declared all children of slaves born after July 4, 1799, to be free after ages 25 and 28 years, female and male, respectively.

** Hummel makes good points on other freedoms, too.

 

 

Categories
general freedom incumbents local leaders national politics & policies political challengers U.S. Constitution

The First Shall Be Last

Article the first, Amendments, Constitution, Representation, found, ratified, Apportionment of the U.S. House of Representatives

We were taught in school that the first ten amendments to the Constitution make up the Bill of Rights. True enough.

But not completely true — as I pointed out at Townhall.

In 1789, Congress passed and sent to the states twelve constitutional amendments, called “articles.” Our current First Amendment was billed as Article the Third.

The first two of the original batch did not pass at that time: Article the First and Article the Second. That latter article, after more than two centuries of wandering around legislatures, was finally ratified by the necessary three-fourths of the states as the 27th Amendment to the Constitution. In 1992.*

As for the rejected Article the First, last Tuesday, Eugene M. LaVergne filed a motion, pro se, before a federal three-judge panel convened in the D.C. Circuit to hear his challenge to “the validity and Constitutionality of the 2010 Apportionment of the U.S. House of Representatives.” He and four other rabble-rousing New Jersey citizens are challenging the courts to acknowledge a surprising truth: the original Article the First was actually ratified.

On June 21, 1792, Kentucky’s legislature voted to ratify, making it the twelfth of fifteen states at that time to do so.

It’s a complicated story. One of the elements is a clerical error.

But rectifying this old mistake would have huge repercussions.

How huge? Currently the lower house of Congress has a mere 435 members. Were this amendment acknowledged, that number would soar to over 6,150 members.

And that would be a good thing.**

This is Common Sense. I’m Paul Jacob.

 

* Sadly, its sensible prohibition — “No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of representatives shall have intervened” — was immediately rendered toothless by the automatic cost of living salary adjustments congressmen had already provided themselves.

** Skeptical? Well, click here for a preview of more detailed arguments to come.

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Categories
ballot access initiative, referendum, and recall local leaders political challengers Regulating Protest too much government

New-Fangled Vote Counting

Florida, Proposal 97, Constitution, democracy, voting, initiative, Constitution Revision Commission

Call me old-fashioned, but when you go to the pols to cast your vote on a ballot measure, your Yes vote should count for yes and your No vote for no.

And if you choose not to vote, your non-vote should count for neither yes nor no.

That’s just common sense. Right?

Well, meet its antithesis: Proposal 97, now being considered by Florida’s powerful Constitution Revision Commission (CRC).* Proposal 97 would count all those who do not cast a vote for or against a ballot measure as a No vote against it.

To pass a constitutional amendment in the Sunshine State already requires a supermajority vote of at least 60 percent of those who do cast a vote on the measure. Under Proposal 97, counting all those not voting on it as No votes, that percentage would necessarily go even higher. If 10 percent don’t vote, Yes would have to come in at 67 percent to win.

This is minority rule . . . with an extra perverse twist.

The supermajority requirement encourages big money interests to spend heavily against ballot initiatives — even when the issues have clear majority support — because if they can manage to lose by less than 20 points (60–40 percent), they win. Now all opponents need do is poison the water with the nastiest campaigning imaginable, causing more voters to throw up their hands or pinch their noses and avoid the issue . . .

. . . thus, being counted as voting No.

Don’t abstain. Stop Proposal 97. Tell them NO here.

This is Common Sense. I’m Paul Jacob.

 

* How powerful is the CRC? Every 20 years it meets with the awesome authority to refer constitutional amendments directly to the ballot — as many as it wishes and the amendments can be packaged to include several different subjects. No other state has a similar body. Of the 37 commission members, the governor appoints 15, the Senate president and the House speaker each appoint nine, the chief justice of the state supreme court appoints three and the attorney general is an automatic member.

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Accountability crime and punishment folly free trade & free markets general freedom moral hazard nannyism national politics & policies too much government U.S. Constitution

The Ninth and the Tenth of It

marijuana, constitution, intrastate, rights, legalization, decriminalization

When Attorney General Jeff Sessions rescinded the Obama Administration enforcement guidelines regarding the states that have legalized (in their 29 different ways) marijuana, last week, supporters of freedom expressed some worry.

But we had to admit, one excuse for Sessions’s nixing of the mostly hands-off policy seemed to make sense on purely legal grounds. If we want to liberalize drug laws, then our Cowardly Congress should do it.

Definitely not the Executive Branch.

And yet, over at the Volokh Conspiracy, Will Baude argues that “the rule of law” does not require “renewed enforcement of the Controlled Substances Act.”

If anything, he argues, it “requires the opposite.”

Baude mostly rests his case on the Constitution’s Commerce Clause, which does not authorize regulation of intra-state trade. An issue on which the AG does possess a duty to weigh in.*

This rubs against FDR-Era constitutional theory, of course, which treats all commerce as regulate-able interstate trade. But this makes no sense. The Tenth Amendment declares that states possess powers not given to the federal government. An interpretation of the Constitution cannot be justified if it effectively nullifies other parts of the Constitution. (If all trade is “inter” state, what’s left for the states? Powers to do what? And how could there be any constraints on federal power?)

And then there is the Ninth Amendment, which states that the people retain rights not listed in the Constitution.

When citizens assert rights — such as the option to cultivate, sell, buy or ingest a common and quite hardy plant — in their states (largely through ballot initiatives), the federal government should butt out.

This is Common Sense. I’m Paul Jacob.

 

* “Members of the executive branch have their own obligation to interpret the Constitution,” Baude writes, “and if a federal law is unconstitutional in part then the executive branch, no less than the courts, should say so. It is the Constitution, not the Court, that is the ultimate rule of law in our system.”

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general freedom initiative, referendum, and recall local leaders nannyism political challengers Regulating Protest

Delivering a Double Standard

Ohio, initiative, voting, election, ballot, legislature, democracy, amendment, constitution

Former State Representative Matt Lynch got right to the point in his Cleveland Plain Dealer op-ed: “The people’s right to amend the Ohio Constitution through the ballot initiative is under attack.”

Created by the Ohio Legislature to consider constitutional amendments, the Ohio Constitutional Modernization Commission (OCMC) has a hidden purpose: provide cover for that same legislative body. As Lynch aptly notes, the OCMC “is filled with politicians and lobbyists. Thus, commission recommendations must be scrutinized for fidelity to the public good versus the special interests of political insiders.”

This Thursday at the capitol in Columbus, OCMC will consider whether to recommend that state legislators propose an amendment to the state constitution to make future amendments more difficult. That’s an awfully bad idea in itself. But, bizarrely, the greater difficulty would depend entirely on who proposes the amendment.

The working OCMC recommendation makes no change to the legislature’s ability to propose and pass constitutional amendments. What it would do is make it tougher for citizen-initiated amendments. Most unhelpfully, the recommendation would require only citizen-proposed amendments to garner a supermajority of 55 percent of the vote.

Consequence? Suppose a measure proposed by citizens — term limits, ethics reform, government transparency — was massively outspent by powerful interests, and yet still won 54.9 percent of the vote. It would lose.

Yes, the 45.1 percent of voters would defeat the 54.9 percent of voters.

Call it “New Math.”

The very same issue proposed by legislators would win . . . and be added to the state constitution.

“The double standards are breathtaking,” writes Lynch,* adding, “and no other state has such unfair rules.”

This is Common Sense. I’m Paul Jacob.

 

* Sunday at Townhall, I also discussed this double standard. And the word may be getting out. Townhall always adorns my column with a photograph — this time featuring Ohio Attorney General Mike DeWine, also a Republican candidate for governor in 2018. DeWine’s campaign objected to being pictured, arguing they have no involvement with the OCMC. DeWine’s picture has been removed.

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Accountability general freedom ideological culture moral hazard national politics & policies political challengers responsibility too much government U.S. Constitution

The Wisdom of the Founders

Constitution, voting, democracy, Ed Crane, fear

“At a certain point, you have to let go for the democracy to work,” President Barack Obama told HBO’s Bill Maher last week, praising “the wisdom of the founders.”

“There has to be fresh legs,” he continued. “There have to be new people. And you have to have the humility to recognize that you’re a citizen and you go back to being a citizen after this office is over.”

Maher failed to ask Mr. Obama how this “fresh” viewpoint squared with his support for Mrs. Clinton. Nevertheless, let’s applaud the president’s endorsement of term limits.

Speaking of the founders, and limits on power, and this being Election Day, I’m reminded of a commentary in Forbes, back on Election Day four years ago, written by Ed Crane, the man who built the Cato Institute into one of the nation’s preeminent think tanks. Bemoaning the “interminable presidential race,” Crane wished for “a nation in which it really didn’t matter who was elected President, senator or congressman.”

“Don’t get me wrong, because I’m not saying it doesn’t,” explained Crane, “only that it shouldn’t.” He added, “I believe the Founders had a similar view.”

His point is simple: Getting to vote for your next president and senator and congressman is swell, but it’s important to have a Constitution that restrains those elected, so they “don’t have a heck of a lot of power over you or your neighbors.”

“We are a republic of limited governmental ­powers,” or should be, argued Crane. “Such a nation allows for sleep on election night.”

Instead of gnashing of teeth.

This is Common Sense. I’m Paul Jacob.

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Constitution, voting, democracy, Ed Crane, fear

 

Categories
general freedom national politics & policies political challengers too much government U.S. Constitution

Is That a Constitution in Your Pocket?

Khizr Khan, Pakistan, Democrat, convention, Democratic, Donald Trump, illustration

“We were blessed to raise our three sons in a nation where they were free to be themselves and follow their dreams.”

Those eloquent words came from the lips of Khizr Khan, the Pakistani immigrant who spoke at the Democratic National Convention last week about losing his son, Capt. Humayun Khan, to a suicide bomber in Iraq.

Describing his family “as patriotic American Muslims with undivided loyalty to our country,” and charging that, “Trump consistently smears the character of Muslims.” Khan asked Donald J. Trump a great question: “Have you even read the U.S. Constitution?”

Then, reaching into his suit pocket, Khan pulled out a copy, adding, “I will gladly lend you my copy.”

Yesterday at Townhall, I declared Khan my Person of the Week. Not just because Mr. Khan is fond of handing out pocket-sized copies of the U.S. Constitution and told the New York Times that his “real hero” is Thomas Jefferson, but because he asked a great question.

Let’s ask all the candidates. That question, for sure, and three additional ones:

  1. Do you favor repealing parts of the First Amendment to allow incumbent congressmen to regulate their own campaigns and their opponents’ in regard to raising and spending money?
  2. In the Heller case, the Supreme Court ruled that the Second Amendment provides individuals a “right to bear arms” — will you appoint justices who agree or disagree with Heller?
  3. As president, will you issue an executive order instructing all federal agencies and police agents to cease any use of civil asset forfeiture?

I’ve got more questions. I bet you do, too.

This is Common Sense. I’m Paul Jacob.

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Khizr Khan, Pakistan, Democrat, convention, Democratic, Donald Trump, illustration

 

Categories
crime and punishment general freedom ideological culture national politics & policies political challengers U.S. Constitution

Faces Veiled, Fallacies Unveiled

Gary Johnson, libertarian, burka, Common Sense, illustration

A real-life politician has admitted to having been wrong, even going so far as to dismiss his own previous comment as “stupid.”

He wasn’t abject about it — didn’t “apologize.” He simply explained how and why he had erred.

This . . . from a presidential contender.

No, it wasn’t Hillary Clinton, she of many errors and untruths. It wasn’t Bernie Sanders, whose love of Big, Intrusive Government is an error in and of itself. And it wasn’t Trump, known hyperbolist.

The erring politician? Gary Johnson, a former two-term Republican governor of New Mexico.

Johnson, who is currently running for the Libertarian Party presidential nomination, told Reason last year that banning the burqa would be a reasonable step in protecting the rights of women. Here in America.

Sound sort of Trumpian?

Earlier this month, Johnson retracted his statement. Last week on Fox Business Network’s Kennedy, he explained why prohibiting the face-veil wouldn’t work.

“We need to differentiate between religious freedom, which is [sic] Islam, and Sharia law, which is politics,” he said — and I add a “sic” there because he is obviously driving at this point: religious freedom means we cannot prohibit the religion of Islam, but Sharia law amounts to a religious intrusion into the legal and political realm. And thus must be opposed as “contrary to the U. S. Constitution.”

The reason Johnson had earlier floated the banning of the Islamic face-veil was to save women from Islamofascist enforcement of Sharia’s mandate to go around in public only when completely covered.

“We cannot allow Sharia Law to, in any way, be a part of our lives.”

I’m with him. Let’s hold tight to both religious and political freedom. And how refreshing for a politician to admit an error.

This is Common Sense. I’m Paul Jacob.

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Gary Johnson, libertarian, burka, Common Sense, illustration