November 28, 2015

What do attacks on the religious say about America and free speech? [KSL]

Opinion  What does attacking the religious say about America and free speech    KSL.comThe following is an op-ed I wrote that was published by KSL. 


SALT LAKE CITY — With the Human Rights Campaign’s tactic of attacking supporters of Amendment 3 for their religious convictions, we have seen an ugly shift toward divisive politics over civil discourse.

Last week, Fred Sainz of HRC attacked Gene Schaerr, Utah’s lead counsel in the Amendment 3 appeal, for Schaerr’s privately expressed religious convictions.

In a leaked email, Schaerr explained to his associates at his former law firm that he was leaving to defend Utah’s Amendment 3 because he felt a “religious and family duty: defending the constitutionality of traditional marriage in the state where my church is headquartered and most of my family resides.”

Schaerr privately expressed to his professional associates that he believed the U.S. Constitution was on Utah’s side and that it was his duty to take the case.

“Schaerr’s entire motivation for taking this anti-equality case is to impose a certain religious viewpoint on all Utahns, and that’s wrong,” said Sainz. “When you become an attorney, you take an oath to uphold the U.S. Constitution, not any particular religious doctrine.”

Sainz confuses what is constitutional with HRC’s political opinions. As Eugene Volokh observes in the Washington Post: “[Attorneys] take an oath to uphold the Constitution, not the moral views of the Human Rights Campaign.”

It is also why, when Sainz came out not just disagreeing with Schaerr’s legal opinions on the case but actually criticizing Schaerr’s upholding his legal oaths in taking the case, that many across the nation — including lawyers critical of Amendment 3 — raised their collective eyebrows.

Accusations of ethical malfeasance are serious in the legal world. They involve bar complaints, tribunals and notorious mention in the bar journal, or even punitive action.

Unfortunately, they probably aren’t alone. Americans have, at least recently, demonstrated an alarming willingness to try to shut down and shut up those they don’t agree with rather than consider and engage them.

A couple examples:

Phil Robertson, patriarch of the A&E’s Duck Dynasty clan, came under attack for expressing an opinion critical of homosexual practice. Rather than initiate a conversation between Robertson and his naysayers, A&E shut Robertson up, putting him on an “indefinite hiatus.”

Robertson is not entitled to his own opinion, the argument goes, because of his ignorance relative to the opposing viewpoint.

This kind of censorship isn’t a problem limited to the political left and the LGBT activist crowd, either. It happens on the other sides, as well.

Dick Metcalf, formerly a firearms journalist for Guns & Ammo magazine and a lifelong gun enthusiast who wrote more than 1,700 articles for firearms publications over the last four decades, was fired when he penned an article that, as he puts it, explored “the distinction between regulation and infringement as it applies to constitutional rights.”

“[T]he column was innocuous,” he recalls. “I […]merely noted the Second Amendment was already regulated and that such regulations had been validated even in recent Supreme Court and federal appeals court rulings affirming an individual’s right to keep and bear arms.”

The result was to be called a “gun control collaborator,” a “Bloomberg supporter” and a “modern-day Benedict Arnold.”

In response to pressure from advertisers, Metcalf was fired.

It doesn’t bode well for American experiment and civil discourse when, instead of discussing issues, we tell our opponents that they aren’t allowed to express their opinions at all, no matter how flawed we feel those opinions might be.

Attorneys — including HRC’s own lawyers — take cases for personal reasons quite frequently. Contrary to popular belief, lawyers have motivations beyond greed and malice. There’s a reason that Atticus Finch is often a popular, if fictional, role model for young attorneys. In our adversarial system, justice is best served when good advocates make the best arguments for their clients.

That’s why Schaerr taking Utah’s case to defend Amendment 3’s traditional marriage definition is not only in the spirit of the Constitution, but in the spirit of the oath an attorney swears to uphold when he becomes an attorney. He may form his opinion based on his religious convictions, and we protect that right.

Trying to shut down and shut up that opinion, then, becomes an affront to everything the First Amendment stands for. We can do better.

Originally published on


More information on Impeachment from Lockhart to House Members [Documents]

lockhartSpeaker Becky Lockhart has sent another email to legislators on the impeachment process. It is the third such email, and her efforts to provide a cornucopia of information to legislators speaks highly of her office’s professionalism and due diligence. (In case you haven’t read the email or the documents attached to it, they’re embedded below).

Meanwhile, with the vast, left-wing conspiracy between Utah’s AWOL Democrats  and the Marxist media (i.e. the Salt Lake Tribune) in full swing, John Swallow is feeling “a little picked on” by the press.

Because, you know, the press likes to makes stuff up.

Except that the press hasn’t made stuff up. They’re just reporting what’s out there, much of which Swallow has already admitted.

For example:

  • Swallow was recorded having a conversation with Aaron Christner in which he told Christner, who was at the time pursued by Utah’s consumer protection agency and dodging $400,000 in civil penalties, that he–Swallow–wanted to take over consumer protection in the state from his client, the Division of Consumer Protection, so he could help out people like Christner. In the attorney world, we call this a violation of the client – attorney relationship. On KSL News Radio, Swallow said he was proud of the conversation.
  • SwallowSwallow’s campaign has admitted to repeatedly filing false or deceptive campaign finance documents, including some that hide Swallow’s last-minute change of ownership interest in companies to his wife. His campaign has called these “mistakes” or blamed the accountant. Nevermind that Swallow has a pattern of misleading campaign finance filings reaching back to his run for Congress. See here, here, and especially here. Suffice to say, after two federal campaigns, a stint in the Utah legislature, and several years as a lobbyist, Swallow either still hasn’t figured out how to accurately appraise the public of his campaign finances, or he really doesn’t want the public to know where his money is coming from and going to.
  • Swallow has admitted to repeated conversations with members of industries that receive high levels of scrutiny from government regulators due to their propensity to scam us, not to mention accepting a large portion of his campaign donations from them…not that there’s anything wrong with talking. It’s just that the talking–and the emails that have been published–seem to make it look like Swallow was not just talking, but also in business with them, and playing golf with them…and using their giant house boats….and so on.

And the allegations go on. It’s all in the public record. None of  this is spurious or made up stuff, but it does leave us all wondering: what is still out there that we don’t know about?

Even if none of what has been reported is illegal, it is costing Swallow the public’s trust, and that is the standard that legislators must use as they evaluate Swallow’s “side of the story.”

becky lockhartAnd so, Lockhart has provided more information to the House members on the impeachment process. If you ask me, she’s done a very good job of providing lots of information about how the process works, complete with legal analysis, quotes, and direction. Rather than a rush to judgement, it almost feels like she’s trying to hold temper passions and assure that legislators walk into the process informed and educated about the standards.

The documents sent out under Lockhart’s email address seem to urge caution, but also to allow broad leeway for the members of the House to exercise their judgment. After all, while they will decide whether to bring charges against Swallow (and then send him on to the presently taciturn Senate to pass judgment on the charges), they are not judges and many, if not most, lack professional legal credentials.

Among other things, the documents discuss:

  • “political crimes” (“the kinds of abuses of power or injuries to the Republic that only could be committed by public officials by virtue of the public offices or privileges that they held. Although the concept ‘political crimes’ uses the term ‘crimes,’ the phrase did not necessarily include all indictable offenses. Nor were all indictable offenses considered ‘political crimes.’”),
  • the lack of debate during the constitutional convention about the meaning of “impeachable crimes,”
  • the purpose of impeachment (“removal from office and potential disqualification from future office”)
  • the legitimacy of the impeachment process (the charges “must be so grave and the evidence for them so weighty that members of both parties agree on the necessity of considering the drastic remedy of removal from office”)
  • the necessity of impeachment as a check on corruption between elections (to show a “public commitment to honest government”),
  • and that an impeachment trial is not the same thing as a criminal trial (“The U.S. Constitution specifically differentiates between impeachment proceedings and criminal proceedings. For example, the impeached official has no right to a jury trial. Also, the President cannot pardon a conviction arising out of an impeachment.”)

I find this last point tell, especially since the spin coming out of the AGs office, and the AG’s surrogates, has tended to argue that we should all wait for criminal proceedings to come to fruition before passing judgment on Swallow’s fitness to remain in office.

Bollocks, according to this. They aren’t the same thing.

Read the documents below. They’re informative, educational, and, to wit, a fascinating look at a rarely used (thank heavens!) but essential part of the checks and balances in our republican form of democracy.


  Various Quotes[1] (regarding impeachment)

Assorted Materials (regarding impeachment)

What is your favorite part?

Today, in honor of “Constitution Day,”  in lieu of any gratuitous platitudes and commentary I give you the US Constitution itself (minus amendments) from the online site of the US Archives and Links will take you to Amendments that have superceded sections of original document. Signers are at the end and are linked to their biographies.

Take a half hour and read through it.  If you are feeling more industrious and interested, check out for an excellent resource in learning more about the Constitution as it was originally written.  ConSource posts images of the original document along side the transcript, as well as links to documents that further inform the original meaning of various portions of the Constitution (for example, letters from Founders, the Federalist Papers, etc).

The Constitution of the United States: A Transcription

Note: The following text is a transcription of the Constitution in its original form. 
Items that are hyperlinked have since been amended or superseded

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Article. I.

Section. 1.

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Section. 2.

The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.

When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.

The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.

Section. 3.

The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof for six Years; and each Senator shall have one Vote.

Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year; and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies.

No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.

The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.

The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States.

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

Section. 4.

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day.

Section. 5.

Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.

Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.

Section. 6.

The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

Section. 7.

All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States: If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.

Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.

Section. 8.

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow Money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;–And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Section. 9.

The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

No Bill of Attainder or ex post facto Law shall be passed.

No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken.

No Tax or Duty shall be laid on Articles exported from any State.

No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another; nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.

No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

Section. 10.

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it’s inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.

No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

Article. II.

Section. 1.

The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.

The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.

The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:–“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”

Section. 2.

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

Section. 3.

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

Section. 4.

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Article III.

Section. 1.

The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.

Section. 2.

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;–to all Cases affecting Ambassadors, other public Ministers and Consuls;–to all Cases of admiralty and maritime Jurisdiction;–to Controversies to which the United States shall be a Party;–to Controversies between two or more States;–between a State and Citizens of another State,–between Citizens of different States,–between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

Section. 3.

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

Article. IV.

Section. 1.

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

Section. 2.

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.

No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

Section. 3.

New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.

Section. 4.

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic Violence.

Article. V.

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

Article. VI.

All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

Article. VII.

The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.

The Word, “the,” being interlined between the seventh and eighth Lines of the first Page, the Word “Thirty” being partly written on an Erazure in the fifteenth Line of the first Page, The Words “is tried” being interlined between the thirty second and thirty third Lines of the first Page and the Word “the” being interlined between the forty third and forty fourth Lines of the second Page.

Attest William Jackson Secretary

done in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven and of the Independance of the United States of America the Twelfth In witness whereof We have hereunto subscribed our Names,

G°. Washington
Presidt and deputy from Virginia

Geo: Read
Gunning Bedford jun
John Dickinson
Richard Bassett
Jaco: Broom

James McHenry
Dan of St Thos. Jenifer
Danl. Carroll

John Blair
James Madison Jr.

North Carolina
Wm. Blount
Richd. Dobbs Spaight
Hu Williamson

South Carolina
J. Rutledge
Charles Cotesworth Pinckney
Charles Pinckney
Pierce Butler

William Few
Abr Baldwin

New Hampshire
John Langdon
Nicholas Gilman

Nathaniel Gorham
Rufus King

Wm. Saml. Johnson
Roger Sherman

New York
Alexander Hamilton

New Jersey
Wil: Livingston
David Brearley
Wm. Paterson
Jona: Dayton

B Franklin
Thomas Mifflin
Robt. Morris
Geo. Clymer
Thos. FitzSimons
Jared Ingersoll
James Wilson
Gouv Morris

I agree with Bagley: Indefinite Detention of Americans is Wrong.

I’m with Pat Bagley on this one: by signing the National Defense Authorization Act, the President is threatening our liberty and treading on the Constitution.

The appropriate balance between security and freedom in a  liberal republican democracy (and I mean liberal in the classic sense, not in the modern political connotation)  has always tenuous and difficult for lawmakers, and modern technology and globalization have made it even more difficult. Our laws promise access to “due process” and the courts, but at a time when enemies do not wear uniforms, follow a chain of command, can use our own technology and resources to surveil and attack, our multicultural population to hide, and our large and porous borders to infiltrate, the difficulty of providing security has increased dramatically.

Fighting the Nazis and the Japanese in World War II was bloody, but the enemy was clear. Knowing who the enemy is in the twenty-first century is a much more difficult task, especially when the enemy often lives and works among us, looks like us, and acts like us.

That doesn’t mean we quit adhering to the Constitution and the Bill of Rights.

Nevertheless, security should never replace the freedom or the protections of the Bill of Rights without the right of “due process” and appeal to the courts. Our government is designed to split and limit the concentration of power in the hands of one authority–be it the President or the Congress. Tyranny and dictatorship by one man or a legislative body is still tyranny and dictatorship, and our form of government is designed specifically to prevent either the legislature or the President, or even both acting together, to maintain any kind of tyranny over the people. Specifically, the courts were given as a check on the power of the Congress and the President, and appeal to those courts is open to all, at least in theory, to limit the reach of the executive and the legislature.

In recent years, however, many have argued that these limitations have been eroded.  The right of individuals to appeal to courts for relief, and release, through due process, has been modified as legislators and Presidents grasp about to look “strong” on national security. Yes, it’s true that security is among the first and foremost responsibilities of a a government. From Federalist #23, we hear Hamilton argue that, among the most important reasons for union of the states under the constitution was “[t]he common defence [sic] of the members[.]”  But when common defense become common restraint on liberty, the balancing act has perhaps moved too far in the wrong direction. Government is intended to be limited in its ability to provide security, intentionally balanced against the equal importance that our governing philosophy places on liberty, freedom and rights.

Examples where government is overreaching its constitutionally limited grasp?

Commonly cited is the PATRIOT Act, but recent weeks have seen the National Defense Authorization Act for Fiscal Year 2012 (or “NDAA“). The bill is passed every year. This one just happens to have some more controversial provisions included) passed by both houses of Congress and sent on to the President for signature. The NDAA codifies provisions from the Authorization for Use of Military Force Against Terrorists (AUMF) passed in the wake of 9/11 and has raised concerns about the expansion of military powers beyond the theaters of war.

Representative Jerrold Nadler, who voted against the bill, said that it presents a “momentous challenge to one of the founding principles of the United States—that no person may be deprived of his liberty without due process of law.”

Because when the theater of war is on American soil, who can say where the enemy will be found? Or who it will be?

And there’s the rub. Critics have raised concerns that the authorization will allow the military to act against American citizens, without appeal to the courts.

Someone the government says is “a member of, or part of, al-Qaida or an associated force” can be held in military custody “without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.” Those hostilities are currently scheduled to end the Wednesday after never. The move would shut down criminal trials for terror suspects.

But far more dramatically, the detention mandate to use indefinite military detention in terrorism cases isn’t limited to foreigners. It’s confusing, because two different sections of the bill seem to contradict each other, but in the judgment of the University of Texas’ Robert Chesney — a nonpartisan authority on military detention — “U.S. citizens are included in the grant of detention authority.”

But those people are bad people, right? They’re terrorists, right?

Right…until they’re not. Until they’re your neighbors, family, friends, or you. Until they aren’t just people far away, but are Americans. Argues Spencer Ackerman at Wired:

So despite the Sixth Amendment’s guarantee of a right to trial, the Senate bill would let the government lock up any citizen it swears is a terrorist, without the burden of proving its case to an independent judge, and for the lifespan of an amorphous war that conceivably will never end.

War: what is it good for?

Sen. Rand Paul opposes the NDAA because it would limit Americans’ rights of due process.

That this is a bad idea isn’t some radical notion, either, but agreed upon by Democratic and Republican politicians alike. Both  Sen. Al Franken (D-Minn.) and Sen. Rand Paul (R-Ky.) have denounced the law and its effect on our country’s ideals. (Watch Sen. Paul’s comments on YouTube here.)

If the NDAA were all, we might have less to worry about. We can rely on good smart leaders to be careful, right? Plus, it’s a bill, the President can still veto, and the law can still (eventually) be found unconstitutional.

Newt Gingrich, candidate for the Republican nomination for President, wants to arrest judges who make rulings he does not like and force them to testify before Congress.

But what if our elected leaders aren’t so trustworthy? Or what if they are just human? Recently, we’ve seen a growing list of leaders who question or violate the internal safeguards of the constitution against the overreach of government in the national security arena.

  • On September 30, 2011, President Obama ordered the killing–by way of cruise missile–of Anwar al-Awlaki, an American born Muslim (from New Mexico) who had become a leading preacher for an Al Qaeda affiliate in Yemen.
  • Newt Gingrich, a leading candidate for the Republican Presidential nomination, argued that judges should be brought before Congress by US Marshals  to justify their decisions. Not only does that allow the Congress to intimidate courts with decisions it does not like, but it puts the rule of law in an inferior place to the rule of men.

That’s just crazy talk. We believe in the rule of law, not men.  When the President or Congress can enforce their will on the point of a gun without any restraint, when the military has unchecked authority to arrest and detain Americans and the people have no recourse to the courts, we are looking at a precarious and dangerous change in the balance between liberty and security.

And that doesn’t even start on SOPA and the limit it will be to the ability of private citizens to find and share information in a day when the US governments intelligence community employs a veritable private army in surveillance of most of the planet.

Security and freedom are both important responsibilities of the government, but overreach in the first can limit and endanger the second. Take a moment and reach out to your elected representatives and let them know your concerns. At the end of the day, an elected representative’s greatest motivation is reelection. Apply that pressure, and push the pendulum back towards balance.

[Bill Text][Salt Lake Tribune][Consource][Wired][Washington Post][Washington Post’s “Top Secret America” report][Raw Story][Washington Monthly][Justia]

“The Constitutional Origins of the American Revolution” by Jack P. Greene

Map of the British colonies in North America, ...

Image via Wikipedia

Time for a segment of “A moment in obscure history.” This time, we’re looking at the constitutional dispute that resulted in the American Revolution.

Since sometime in 2009, the Tea Party movement has lead a revival of interest in the US Constitution.  Senator Mike Lee summed up why the increased interest of late during the release of his new book , The Freedom Agenda: Why a Balanced Budget Amendment is Necessary to Restore Constitutional Governmentmany of our problems today stem from when the “federal government started ignoring those Constitutional boundaries about what Congress is supposed to be doing.”

Suddenly, propelled by Glenn Beck, books like The 5000 Year Leap , a right-wing conservative’s guide to the making of the federal constitution, “leaped” to the Amazon best seller list (it’s now listed at 2,615 overall and the top 100 under “Politics”). While it provides only a simple, somewhat white-washed, and superficial vision of the US Constitution, no amount of increased attention in our federal constitution is too little.

“Where does the Constitution,” goes the rallying cry, “give the President and Congress the authority for the laws they are passing?”

Neither the revival, however, nor questioning the constitutionality of the federal laws, is unique in history. In fact, it was a dispute over the constitutionality of a central government’s actions that lead to another major event in our country’s history: the American Revolution.

"The fruit of half a century of research and reflection, Greene's masterly book restores legal pluralism and constitutional controversy to their proper place among the causes, course, and consequences of the American Revolution." - David Armitage, Harvard University

In his short, and dense, review of the century and a half leading up to the American Revolution, The Constitutional Origins of the American Revolution, Jack P. Greene postulates and examines that evidence that the American revolution did not erupt purely as a simple dispute over “taxation without representation,” but rather that such rallying cries emerged after decades of disagreement on who justly had the right to legislate for the American colonies

Whether the king-in-Parliament, the ultimate source of statute law in Great Britain, could legislate for British colonies overseas was the ostensible question in dispute, but many other related and even deeper legal issues involving the nature of the constitution of the empire and the location of sovereignty within the empire emerged from and were thoroughly canvassed during the debate.

(From Constitutional Origins, p. 1)

It was only after the conflicting opinions of metropolitan Britain and that of the colonists failed to be reconciled that open warfare broke out in 1775, and it was why the decision to broach the topic of and ultimately pursue independence from Great Britain was so cautiously and tentatively pursued. The colonists considered themselves British subjects, citizens, not vassals and secession was not a choice they relished.

They saw themselves as part and partial of the British Empire. Indeed, as one Virginia lawyer at the time phrased it, they might be “subordinate to the Authority of Parliament,” but only “in Degree” and “not absolutely so.” (p.78).  As free men and

As free-born Britons, the colonists assumed, they could not be subjected to any but what Bland referred to as “a constitutional Subordination” to the parent state.

(From Constitutional Origins p. 78)

This political cartoon (attributed to Benjamin...

This political cartoon (attributed to Benjamin Franklin) originally appeared during the French and Indian War, but was recycled to encourage the American colonies to unite against British rule. From The Pennsylvania gazette, 9 May 1754. Abbreviations used: South Carolina, North Carolina, Virginia, Maryland, Pennsylvania, New Jersey, New York, and New England. This is a somewhat odd division: New England was four colonies, and Delaware and Georgia are missing. Image via Wikipedia

The nature of this “constitutional Subordination” was such that the colonists readily accepted the authority of Parliament in certain areas, but balked at the idea of taxation, seeing it as beyond Parliament’s authority. “Indeed, considerable evidence suggests that the colonists’ strong initial impulse was to exclude Parliament from all jurisdiction over the domestic affairs of the colonies.” (p.79) Like our modern idea of the federal government, the states concern themselves with their domestic activities while the federal government’s most basic responsibility is national security.

Interestingly, from a historical perspective, we start to see the first signs of federalism in the disputes between the colonies and the home country.


[s]o long as Parliament confined its regulations to “restrictions on navigation, commerce, or other external regulations,” they reasoned, the ‘”legislatures of the colonies” would be “left entire”and “the internal government, powers of taxing for its support, and exemption from being taxed without consent, and [all] other immunities which legally belong[ed] to the subjects of each colony agreeable to their own particular constitutions” would thereby, according to the “general principles of the British constitution,” remain “secure and untouched.”

Sound familiar? If you hear the foreshadowing of the federalism that would be later inscribed into the US Constitution, there’s a reason. It was rooted in the relationship between Great Britain and its far-flung colonies.

If, during the last couple years, you’ve found yourself at all more interested in the federal constitution and the limitations it places on the federal government, I urge you to look at the role constitutions, and constitutional disputes, played in leading to our own American constitution.

It’s a great read, if a bit scholarly, and evidence that whether a law is constitutional is not a new question, but actually may be  at the very root of the American experiment and its origins in the American revolution. The American revolution was not, nor is it today, an obscure moment in history, but rooted in obscure legal disputes between the colonies and mother country, long predating the Stamp Acts and the Boston Massacre.  It began  as a constitutional dispute between the central government in London and the British colonies in America.

Understanding why the colonist went to war, how they got there, and the legal battles that preceded the battlefields can be useful in understanding why the Founders drafted what they did–into the Declaration of Independence and into the federal constitution–and what those words mean to us now, even in the midst of our own constitutional disputes.

Pick up The Constitutional Origins of the American Revolution by Jack P. Greene from Cambridge University Press, 2011.

(h/t Patrick Charles, who introduced the book to me, and  Conor Friedersdorf of The Atlantic)

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A false dilemma: Support a Dictator, or Support Oppressed People…How about instead support the “Constitution, limited government, limited executive power to kill people, [and] limited executive power to put our armed forces at risk…”

"Duh. It's for the children. Now don't ask any more questions."

When in doubt of winning a debate, re-frame it as a false dilemma.

In other words, make it impossible for people to choose anything but your side. Never mind if it means ignoring the Constitution or killing people, just to start.

It takes a lot of restraint to put things in their fair perspective. Evidently, Secretary Clinton does not have that restraint. [Read more…]

Mexico files brief against Utah…federalism at issue?

Immigration is one of those issues that never seems to go away. While almost every policy can be debated, either passionately or with blithe calm, immigration seems to evoke a passionate and even angry response from people who are, otherwise, level-headed and even-tempered. [Read more…]