Constitution Thursday

This past week the Chief justice of the US Supreme Court ordered a stay in the beginning of the trial of the case, Juliana v US. this is the second time that the re has been a stay in the famous case, which seeks to force the US Government to pursue policies that would "keep warming in check." Both the Obama Administration and the Trump administration (which submitted a 103 page argument to the Court asking for the stay) have argued that the case is problematic, in that it violates the separation of powers in the Constitution. The plaintiffs, supposedly a group of young people, claim that their civil rights have been violated and they have demanded policy changes that would "protect their civil rights" from the effects of global climate change in the future. This raises a number of questions, one of which is, what exactly is a "civil right?"

The Congress shall have Power To ...regulate Commerce...with the Indian Tribes.... ARTICLE I, SECTION 8, CLAUSE 3 That's how it always begins. Very small. A man living in Oklahoma has a girlfriend who has an ex-boyfriend who gets into it with the man. In a gruesome crime, the ex-boyfriend is murdered, his genitals left on his chest on the side of the road. Not being a criminal mastermind, the man, Murphy, is caught. As there is little doubt and much evidence that he did it, he is tried and convicted of capital murder. The sentenced is death. Not so fast... The crime was committed by a member of the creek nation. The victim was also a Creek. And it appears that the crime was committed on Creek land. That being the case, the state of Oklahoma would have no jurisdiction, it would be a Federal case, requiring a Federal 9not State) prosecution. Because of the laws and agreements with the Tribes, such a crime cannot have a death penalty unless the tribe agrees to it, which they almost never do. Not so fast... was it on Creek land? The Treaty of 1831 says that it is, but subsequent treaties (1966) make it less than clear. Did Congress intend to take the land where the crime occurred away? Did they actually do it? Did somebody make a big mistake and forget a sentence in a document more than a century ago? And if it is Creek Land, what does that mean to the State of Oklahoma? What if the State of Oklahoma, as we've known and loved it since 1907, isn't the state of Oklahoma? what if it's only half the size it is today? Absurd, you say? That's not what the 10th Circuit Court says. And depending on how the Supreme Court rules, it might not be so crazy. By next June there might be a new old Territory and fifty percent less of the State of Oklahoma. It's Constitution Thursday on The Dave Bowman Show...

The one thing that you can say about the federalists is that they were optimistic. They truly hoped that, truly believed that Americans would see it for what it was and grasp their liberties firmly and protect them for generations yet to come. The Anti-Federalists weren't quite so rosy in their outlook. While some were firebrands and dedicated to the idea of State Sovereignty and Confederation, more of them were pragmatic and understood that things had to be changed. But was the proposed Constitution the best way to make that change? Perhaps the most lucid and well spoken of the Anti-federalist was an anonymous writer who went by the pen name "The Federal Farmer." his writings, which began this week in 1787, were a measured consideration of the proposed government. in fact, of the the three possible forms of government that he saw for the nation, the proposed Constitution probably made the most sense. But that didn't mean that there weren't some potential problems that, whoever he was, could foresee...

In 1971 a Senator from Alaska began publishing classified documents known collectively as "the Pentagon papers." The ensuing kerfuffle tested the limits of Article 1 Section 6. Dave & john take a look at the Constitution and The Pentagon Papers

After recent school shootings, the proposal was made to raise the age for purchasing guns to twenty-one. in at least two cases, challenges were filed and in at least one of those, the challenge was upheld as the practice was seen as being in violation of equal protection and various State laws. So now we move to the state of Louisiana. The Legislature there, deeply concerned about the well-being of young and vulnerable women who dance with exposed breasts and/or buttocks for money from patrons who must remain at least three feet away, must be twenty-one years of age in order to do so. Naturally, the dancers who performed with exposed breasts and/or buttocks and who were under 21 sued in Federal Court. They are claiming that the law would violate their Constitution right to dance with breasts and/or buttocks exposed for money from patrons who must be at least three feet away. Now look, there are a whole lot of issues here that we could get into, and perhaps we will tomorrow. But for now, the question is simply this: does a law restricting the right to dance with breasts and/or buttocks exposed to twenty-one and older meet muster Constitutionally? It's not quite as clear cut as you might think, and it's what we talk about today on Constitution Thursday...

In recent days, we have watched the debate over the nomination of a Supreme Court Justice. While the debate rages around things such as abortion, gay rights, women's rights, and so forth, the single fact remains that these things are rarely the meat and potatoes of what the Supreme Court does. Almost never are those things noticed until after the fact. indeed, very few (if any) questions of any nominee relate to them or to the understanding of how those things might end up affecting our day to day lives. In 1820, a Pennsylvania man was found guilty of violating a State Law that required him to report for duty as a part of the militia during the War of 1812. He had refused service in the Pennsylvania Militia, and now it was time for the state to lower the boom. But the Feds also wanted their pound of flesh, because they believed that the Congress has powers over the Militia, and this man has spurned those laws. The Court ruled that the 5th Amendment didn't apply because (a) there was no incorporation and (b) the Constitution had not limited states from passing laws to punish people for failing to show up for the Militia and (c) Congress had passed such laws. Back in 1922, a man was found guilty in the State of Washington of violating the state's prohibition against the production and distribution of alcoholic beverages. Then the fed stepped in and after he was convicted charged him with violations of the Volstead Act, the national law against the production and distribution of alcoholic beverages. He protested, claiming that under the 5th Amendment this amounted to double jeopardy. The Court said that there were two systems of sovereignty, State and Federal. As a citizen, we voluntarily accept that we live under both sovereigns and therefore we can be punished by both for the same act, just not twice by either. And in 2015, a man was stopped for having a headlamp out in his car. The officer who stopped him smelled marijuana and found the driver was a convicted felon, so he searched the car, finding drugs and a 9mm handgun. The man (Gamble) does not deny this. The state convicted him of being a felon in possession of a handgun, and then the Feds also charged him with the same crime. And the Supreme Court has been asked, once again, to consider whether or not the Dual Sovereignty Doctrine is Constitutional.

When the USS Caine, a fictional minesweeper in WWII, was in danger of foundering in a hurricane, the Executive Offer, with the encouragement of the Wardroom, relieved the CO and "saved" the ship. It was a clear cut case of mutiny, and as such a Court Martial would be required to resolve the matter. In the climatic moment, it becomes clear that though the Captain may be in trouble, the XO acted improperly and precipitously. He was not well advised and the Wardroom failed in its primary duty. The interesting thing is that the movie itself, and specifically was in the minds of the commission that gathered to consider the words of what would become the 25th Amendment to the US Constitution. Today you can buy a "25/45" T-shirt and you'll hear Talking Heads debating the whole idea of how the 25th Amendment could be used to rid the country of the hated Trump. What was once considered a ridiculous idea has gained enough steam that Vice President Pence had to specifically deny that he had conversations with the Cabinet regarding the implementation of the 25th. In fact, many people still believe that he wrote the infamous New York Time Op-Ed as the opening shot of a 25th coup d'état. The problem is that the 25th was never intended to get rid of a President because some part of the country doesn't like the way he parts his hair...

One of the myths about the Constitution is that The Federalist Papers are a commentary, like Matthew Henry's, on the Constitution. They are not. They are simply and only a passionate written argument in favor of ratification of the Constitution. That doesn't mean that they are not without merit and not without lessons for us today. They do give us insight into the understanding of the document which the Framers - at least those in favor of ratification - held of the government plan which they had created. To that end, they are not only important, but they are required study for anyone who seeks a serious understanding of the Constitution of The United States. Which is why my ears picked up when I heard questions directed to Judge Kavanaugh yesterday regarding not just his personal favorite Federalist Papers (which did not include my personal favorite), but also his explanation of how Federalist 51 has impacted his personal Judicial philosophy. Federalist 51, famous for one particular phrase, reminds us of some very important ideas about the structure of our Government, many of which have been diluted and dissipated through the years. But Judge Kavanaugh has been very active during his time on the Federal bench in opposing that dilution. A fact that has not gone unnoticed by those paying close attention to the things that really matter rather than those protesting the things that really don't matter as much as they would want hem to matter. The bigger question that should come out of Judge Kavanah's answer is why is it that we have gotten so far away from the ideas and constructs that were established? and why then is it such an problem for some that a Justice Kavanaugh looks like he would seek a return to the separation of powers and unbalanced system the Framers intended? Ay, there's the rub...

James Madison once wrote that "A Government is instituted to protect property of every sort...This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own." So what happens when a government, other then the national government, that is, decides that it wants what you have, even if they claim it's for a "public benefit?" In the Township of Scott, Pennsylvania, a nice old lady - she's even named Rose Mary Knick - owns a cute place on the edge of town that has a bit of property around it that - this is important - she owns. (Commence menacing music here) The Township loves its history and it wants to share it - all of it - with pretty much anybody who happens to saunter through the Township. And for reasons that will soon become the focal point of our discussion, it has decided that some of that history is on little old Rose Mary's property. So what's a Township to do? You might think that they would sit down with Rose Mary and have a nice pleasant conversation - probably over tea and milk and homemade cookies that she would make for the occasion - about the importance of this particular piece (or pieces) of history that might be on her land and work out a way that would benefit the Township, Rose Mary Knick and all the history loving wanderers who go gallivanting through the Township of Scott. Yeah... you might think that. So of course, that isn't what the Township of Scott, Pennsylvania decided to do... And it's our case for this week on Constitution Thursday, somewhat tongue in cheek titled: Grandma's Haunted History...

A few years ago there was a wonderful show on TV, "How the States got Their Shapes." Host Brian Unger takes you around the country and looks at.... well... how the states got their shapes. It's all based on the book of the same name (HERE). For what it's worth, the show is better than the book, but the information is the same. At any rate, why does any of that matter? Yesterday, the California Supreme Court ruled that the much heralded and discussed Prop 9, a vote by the people on whether or not to separate California into three States should be removed from the ballot because it "might" violate the States Constitution. Now... whether it does or not we have to ask some questions about this whole deal. Plausibly live, It's Constitution Thursday on The Dave Bowman Show!

On Constitution Thursday we delve into the statement by the current President to the effect that he could pardon himself, were such a pardon were actually needed. It isn't as clear-cut as you might want it to be - from a Constitutional viewpoint. But I would think that from a political viewpoint, it would create immense problems. Great problems. The biggest and best problems we've ever seen in this country. And that would be, of course, just the beginning...

In Danbury, Connecticut, the local Baptist congregation is deeply concerned about the ability to freely practice their religion. Sure, the Constitution says they can, but those words are only as good as the men who uphold them. They are pleased that Thomas Jefferson, a well-known fighter for religious freedom is now President. Still, they want to make sure where he stands, so they write him a letter. Two Hundred and twelve years later, the Grace Cathedral Church in Akron, OH, which didn't exist when Jefferson replied to the Danbury Baptists, decided to freely exercise their religion by opening, of all things, a public cafeteria on their own property. Much of the staff was paid and employed by the Church, but many of the service staff were volunteers from the church. They were there to "help" smoothly run things and to proselytize while they worked. You will not be surprised to learn that the government objected to this arrangement and filed a lawsuit alleging violations of FSLA rules. Mind you now, not one single person complained or filed a complaint about it. The government decided that it was a violation and shut it down hard. And so we take a look at the Case of the Danbury Cafeteria...

In a ruling that surprised absolutely nobody - with the possible exception of the President himself - the Southern District of New York ruled that the President cannot block people on Twitter. Shocker. Let's spend Constitution Thursday digging into this and seeing what other things it might end up impacting...

It's Constitution Thursday, and we take a look at Federalism and its evolution in The United states under the Constitution. What seemed at first to be a pretty clear distinction between state and Federal powers, has slowly morphed into a whole lot more Federal and less State. And the journey to get there started long before the Progressive era. In fact, it really stated the day after the Constitution was ratified. We'll take a short look at two cases in the news this week. One of them went before the Court and the law passed by Congress was stuck down, allowing for sports Betting to be opened up across the nation. It's the opinion in that case that has Progressives excited and one of them even exclaiming that "Federalism can be good for liberals!" The other deals with the laws being debated by Congress as we speck to make any attack on a Police Officer a Federal Crime. who would oppose that? After all, we "support" Law enforcement, right? Or do we support and defend the Constitution?

After their experience in the American revolution and years of watching Kings buy their way to policy, the Framers believed that a simple and even elegant solution was to simply ban the ability of a single person to hold Office both civilly and in the government. Makes sense, right? So how did we get to the place where the Article is routinely "ignored" and senators become Secretaries?

Live broadcast of Constitution Thursday looks at the limits of the 26th Amendment in the light of calls for raising the purchase age of guns to 21

Many years ago, back in the 1970's, you could, on rare occasions, actually learn something watching a TV crime drama. And so it was that way back when, Dave watched an episode of Quincy, M.E., during which he learned a fact about how Jury trials can work that he retains even today. That single fact is helpful when we recall the purpose of the Jury is to serve as a mighty bulwark against government. To make certain that government isn't allowed to just run roughshod over accused citizens. At the same time, that simple fact also makes certain that a person who is guilty can't hide behind confusion and misdirection. Back in 2012, a man stood accused of hacking into PriceWaterhouse and stealing the Romney's tax returns, which he threatened to release to the highest bidder if he didn't get paid $1Million in digital currency. The self-named "Dr. Evil," was about as competent as his nom de guerre, and ended up in the custody of the US Secret Service, who take a dim view of people threatening potential Presidents with blackmail. He denied being involved, of course, and eventually found himself sitting in front of a Jury as the Secret Service laid out their digital case against him. It was extremely complicated, and for people who aren't computer experts, somewhat confusing. To make sure that the Jury understood the case, the Judge allowed the same thing that Dave learned watching Quincy, M.E., all those years ago to happen...

As the debates rolled on, the nation considered many elements of the proposed Constitution. In Rhode Island there was grave concern over the idea that the State would not be able to print its own paper currency. In Virginia the Kentucky Counties worried about the navigational rights on the Mississippi River. But nearly everyone agreed on one issue - the idea that if the nation went to war, it would be stronger united than not. On April 6, 1917, Congress gathered to vote on whether or not the United States should declare war on Imperial Germany. Four days earlier President Woodrow Wilson had made it clear that the United States was needed and ready for the fight against an evil and depraved monarchy that chose war over peace and threatened the entire world. But, he made he clear, that it would not be, it could not be, his decision alone to send the US into World War I. Despite the changes in the world since 1787, one thing remained the same. It was that one thing that the Framers had in their prescience foreseen: that no one person should ever be allowed to take the US to war.

Imagine for the moment that you are living in Small Town, USA. Your life is pretty normal and while there are things about your life that you wouldn't want people to know, you aren't a pervert or a criminal. You're just a average person when it comes to your private life and your online activities. Maybe you have a friend, his name is... oh let's just call him John. John Q. Public. He lives in your town and runs his own contracting business. Heck, maybe you've even hired him once or twice. Like you he has a bank account and a line of credit for his business. He also likes to travel, having gone to Europe last year. It's something you'd like to do, but you're just too busy. One afternoon, there is a knock at your door. It's the local Police and they have a search warrant. A search warrant for your computer. Signed by a local Judge, they want your search engine history. All of it. They have no reason to believe that you did what they are investigating, but they have convinced the Judge that if they can just look at everybody's computer and search engine history, they can find out who did do whatever it is that they are investigating. Now again, you've done nothing wrong. Well... maybe you're a little weird and all, but what you search for is your business after all and not my place to judge. But you've committed no crime and there is no reason whatsoever to suspect that might have. But here at your door stands a police officer with a warrant for your search engine history. By the by, as you're standing there, you notice that across the street, another Officer with another warrant is knocking on that sweet old lady's door. And a couple of doors down the Pastors house has yet another Cop with a warrant. In fact, you notice that every house has a police officer with a warrant knocking on the door. Never happen, Dave, you might be saying. First off the Cops got better things to do and nobody would be that silly and no Judge would ever approve such a warrant in the first place. That's what you would tell me, right? Right?????

In 44bce, following the death of Julius Cæsar, Mark Anthony wasn't really impressing people in Rome with his leadership and management. Despite his inspiring speech at Cæsars funeral pyre, he was basically making a pigs breakfast of things. Opposing him was Cicero. Here was a Constitutionalist, a leader and a man of words. And it was to words which Cicero turned in his very public condemnation and criticism of Anthony. He delivered a series of fourteen speeches, known as the Phillipics, in which he rips Anthony for everything from his management to his dalliances with women (even one beneath his station) and even implies that Anthony might be, just possibly, at least once or maybe twice, homosexual. For his impertinence and speeches, Cicero will be killed by Anthony. Well... not Anthony himself, he was busy. But some of his men took Cicero's head and hands, and nailed them to a wall in Rome. There Anthony's current wife (#3 of at least 4, maybe 5), pulled out his tongue and drove a needle through it. It seems that free speech criticizing the government was a risky business in the ancient Roman Republic. Anthony himself would also learn that lesson the hard way in a decade or so. Which brings us to today, in a place about as different from Cicero's Rome as you can get, the halls of the State Capitol of Utah, located in downtown Salt Lake City. Utah, by the by, is a place with which I was once very familiar, having attended Ogden High School from where I graduated in May of 1981. It (Utah) was deeply influential on me and my views of religious freedoms and tolerance. You may ask how, but that is a discussion for another day, except to simply say that I was not a member of the primary religion in the State. Here in the State Capitol of Utah, the Legislature has voted unanimously, to ban and to punish speech which it has said is "intended to harass" or even "frighten" or perhaps just "annoy" another person. But going a step further, Utah's lawmakers have decreed that such speech ONLINE is hereafter, henceforth and forever banned. Don't even try it. Or else. The Legislature says that this is to protect "the people" from being "harassed" online, but the interesting things about the bill is that the "people" most likely to be involved in being talked about online are who exactly? Oh yeah... the Legislators themselves. By the by, Utah is not the first State to try such a law. And while some protections are obvious, there is a further test which the Courts have already designed and applied, which - it appears - Utah hasn't heard about. The first one is, of course, that pesky 1st Amendment thingee...

When we hear the term "muck raking," we almost automatically go in our heads to politicos and specifically those who "report" on politicians and their antics. There's a good reason why we associate the phrase that way. And much of it goes back to the 1st decade of the 20th Century, when calls in earnest were coming from the media to chance how Senators would be elected. In the early 1900's, President Theodore Roosevelt began to label those in the press who attacked him or the government as "muck rakers," a term he has borrowed from a book written in 1678 and well known to Christians even today, Pilgrim's Progress. But it was over the US Senate that the muck-rakers, as they even began to call themselves, really began to strike a blow against what they perceived as government corruption and the failure of the US Senate. When William Randolph Hearst began to promote the attacks against the Senators such as Nelson Aldrich of Rhode Island, it became increasingly clear that facts were no longer relevant to the discussion.  Whether there was or was not any truth in the accusations or the stories of gridlock and failure by the States no longer matters. When one Senator was exposed as a corrupt and evil man, it reflected upon the entire body. When what would become the 17th Amendment was first introduced, it faced an uphill battle. As time went by, and as more and more of the muck-rakers "uncovered" scandals and perceived injustices, it gained traction. In 1912 it would be adopted by Congress and in 1913 it would be ratified by the requisite number of States. And in that lies the story of how the press can change the vision of the Framers and the US Constitution...

One of the things that I believe we (corporately, not you specifically) have lost connection with in our history, is that our Framers and Founders were people, not demigods (Thomas Jefferson notwithstanding). In 1865, George Washington will be featured in a painting that is hung in the dome of the US Capitol, visible through the oculus of the dome. The painting portrays Washington being elevated to the status of a deity. The idea of portraying Washington as a god, really does not offend most Americans.  On occasion, it's worth our time to talk about and recall the realities of these men and women. They lived, they loved, they got mad, they had joys. They traveled and they discussed. They argued and they liked and disliked each other. They wrote copious letters to each other in flowery language that both complemented and occasionally berated each other. They saw things differently. Some favored one way, others favored another. On March 30, 1788, six of the necessary nine States have ratified the Constitution. Debate is leaning towards Ratification in Maryland, and in South Carolina the resistance of the country folk is being dealt with. In New Hampshire, the efforts to manipulate things by the Federalists are being indefatigably resisted by the anti-Federalists in Convention. New York has not gathered in convention as yet, but already more than seventy letters have been published as "The Federalist Papers" arguing for the ratification. Likewise, dozens of anti-ratification letters have been published. The debate, while hopeful, is still in doubt. There are many who believe that there will be a new United States that will not have all of the original States as a part. In Bath, England, Abigail Adams begins her trip home to The United States after three years in Paris and London.  Over the past six months, a couple from Alexandria, John and Elizabeth O'Conner, have been corresponding and even in early February, visiting the Washington's. Mr. O'Conner is a "barrister," from Ireland, who plans to write a topographical and geographical description of The United States. Elizabeth has opened a small school for girls in Alexandria. At Mt. Vernon, George Washington sends a letter to Mr. O'Conner, thanking him for his kind words and invitation to a speech. A presentation on eloquence by Mr. O'Conner which Washington clearly had no intention of attending. Probably because he knows what the O'Conner's are really (probably) up to...

This week the 4th Circuit Court, ruling en banc, ruled that a Maryland State law banning "assault weapons" is Constitutional. The Court ruled that those weapons were "military" in nature and therefore they are not covered by the restrictions of the 2nd Amendment. Conservatives are outraged. Progressives are ecstatic. Who is correct? Is it as simple as "I am conservative therefore the Court is wrong" or "I am progressive so the Court is right?" Did the 4th really ignore the precedents of Heller and other cases dealing with the 2nd Amendment? In order to understand the issue, one has to consider two competing syllogism and their underlying axioms: (A) All guns are military weapons. Ownership of military guns should be restricted to the military. Therefore the individual ownership of all guns should be restricted. Or (B) All guns are military weapons. The Militia is a military unit. Individual ownership of all guns are protected by the 2nd Amendment. Remember that in order to reach a valid conclusion, the basic assumptions of the axiom must be true. If the underlying presumption is false, the logic, regardless of how brilliant, will reach an invalid conclusion. Did the Court base its ruling in a good axiom or upon a flawed presumption?

In 1788, Fishkill, New York, was a well known and important city, having once served as the Capitol of New York State. It was also the home of the largest supply depot of the Continental Army. And Fishkill had its own newspaper, The New York Packet, later known as Louden's New York Packet. It was this newspaper, on Tuesday, February 19, 1788, that published another in a series of essays which were rapidly taking the country by storm. The essays were anonymous and while there was much speculation as to the authorship, only four or five people (not counting the writers themselves) in the entire nation could say with any certainty that they knew who the author - or authors - was. Even George Washington pretended to not know as he praised the essays and proclaimed, "Who is the author?" In fact, he had been directly told by the authors that they were in fact, the authors. The Federalist Papers, as the essays had become known, were "the best argument" in favor of ratification for the new Constitution. They were directed at the people of New York, as the debate swirled about the State, but in fact they reached the entire country. Published in bound volumes almost as soon as the ink dried, they became a prized possession of Americans from Maine to Georgia. Indeed they were a hit internationally as well. The French offered "honorary citizenship" to the authors, one of whom would later accept the honor. For all their grandeur and importance in their day, they have lost a certain appeal to modern Americans. They are dismissed as "old ideas," and even in the 1860's some of the essays were... if not ignored, certainly given less priority because of who the author was. And it might surprise you which ones were relegated, given the state of things today. That Tuesday morning, readers of the New York Packet  found two of the letters, numbers 56 and 57. Addressing the concerns over the House of Representatives, the author outlined his beliefs and argued that the House would be something very special and dear to the people as the primary defense of their liberties. For myself, it is Federalist #57 that speaks loudest. It is written, as we now know, by James Madison. And it is here that we find the answer to the questions so often asked today as to where things "went wrong." Madison and Hamilton knew and understood the dangers of politics and power against the liberty of the people. The argument of Federalist #57 is how to defend liberty against such incursions. It remains my personal favorite of the Federalist Papers, and in it I find renewed belief that We the People choose our destiny. Which is, after all, the very meaning of the word, Liberty.

On Monday, Judge Leonie Brinckema, a Federal Appeals Judge in Virginia, issued an injunction against President Trumps Immigration Executive Orders on the basis that they are in fact, a Muslim Ban. The Government has argued that the doctrine of Plenary Powers over National Security and Immigration should make the Orders unreviewable. But can such power be given under the Constitution? If the answer is no, then can statements made outside of the Orders by the President and his advisers be taken into account as to the intent of the orders? If the answer is yes, are we prepared to accept a country where he sitting President has unchecked power which neither the Courts nor Congress can counterbalance? It's a Valentines day Tuesday episode of Constitution Thursday!

Say the words, "Judicial Review" to most Talk Radio Show Hosts and you get to watch them go ballistic as they explain why judicial activists are ruining the country. In recent days we have seen a whole lot of this argument, as the 9th Circuit Court upheld a stay against the Immigration Executive Orders of President Obama. The Governments argument before the Court was that the Orders were not/are not "reviewable." That is to say that the Court has no power or jurisdiction to overturn the orders. Whether or not you support the Orders or oppose them, there is a basic misunderstanding as to exactly what the argument was last week - and it wasn't whether or not Immigrants from seven Islamic ruled nations should be admitted or not to the country. In fact, it was the same basic argument that the Supreme Court first heard in 1796, when Alexander Hamilton himself argued that a tax on Carriages was Constitutional. The Court agreed that it was in fact, not a direct tax and therefore Constitutional. More than that however, they made it clear that because they agreed, there was no need for "Judicial review. But it wouldn't be long before they would see the need for it...

Excessive bail shall not be required, nor excessive fines imposed... 8th Amendment In recent days, members of the California State Senate and Assembly have made the reformation of the Bail system a "Legislative Priority" in the State. Their reasoning is that on any given day, 63% of the people held in the States Jails have not been convicted of any crime. They are simply awaiting trial and cannot - for a variety of reasons - make bail. The Legislative argument goes that the main reason that people cannot make bail is twofold. First that bail levels are set far too high in the State. Second is that the Bail system discriminates against those who are "poor," in favor of those who have money. So the solution that at least two other States have elected to employ is to eliminate Bail requirements for some "low level" crimes. The history of Bail in The United States traces its origins to 1689 and the Glorious Revolution. And, with just a single word change since, has been a cornerstone of those rights which we have held dear, both as Englishmen and as Americans. So is Bail really discriminatory? Or is there a bigger problem? Or any problem at all? And why hasn't the Supreme Court addressed it? Today we look at Bail on Constitution Thursday.

July 4, 1788 - In Providence the local Federalists have set up a giant barbecue to celebrate both the Independence Day holiday and to read aloud the proposed Constitution. There is little hope that Rhode Island will quickly ratify the Constitution, in fact, as of today, there hasn't been any move to even call for a convention to consider the document. The anti-Federalists in Rhode Island aren't just opposed to the Constitution. They oppose virtually every idea to strengthen the Union. For the past few years they have intentionally/unintentionally sabotaged the Articles of Confederation by using the power of the veto to stop any forward progress. It is in Rhode Island where the rampant use of State issued paper money has resulted in chaos and financial ruin to States and individuals trying to do business with Rhode Islanders Now, as the few Federalists in Rhode Island gather to celebrate, William West, leader of the Country Party, decides to take action and make sure that the Providence Federalists understand that Rhode Island has no intention of ratifying the Constitution. He means to shut down their celebration and end once and for all the consideration of the Constitution in the Rhode Island...

In the summer of 2016, the idea that an election could be "rigged" didn't really surprise anybody. At the same time, it also allowed Americans of all political stripes to act like Captain Renault and feign shock at the idea that American democracy could be so callously and easily manipulated. New Hampshire was the first of the Colonies to establish a government independent of the Crown and to establish its own state Constitution. In the Spring and Summer of 1788, New Hampshire has a unique opportunity. If she ratifies, she will become the Ninth Pillar, thus establishing the Constitution as the new government of The United States. But she also faces the same problem that South Carolina, Massachusetts, and other States have seen. That is, that the seaboard cities with their heavy mercantile class population support ratification, while the interior country folks are less enamored with the Constitution. New Hampshire's problem is that her seaboard is tiny and heavily outnumbered by the country folk. So... if you happen to be an ardent Federalist in New Hampshire in the Spring of 1788, what do you do? What do you do? Hmmm.....

Of all the states that - even for a fleeting moment - thought that they might be able to go their own way and reject the Constitution, Virginia is probably the only one that realistically had a chance of success. But Virginia is also the center of The Enlightenment in America; and it is her leaders who have the nations confidence. So much so, that Madison almost won't make it home in time to be elected to the Virginia Convention, because he is busy conducting the Nations business which is entrusted to Virginia. It is here that the most eloquent Anti-federalist of all, Patrick Henry, will probably join forces with George Mason, a man who attended the Philadelphia Convention but refused to sign the final document. Together, they look to face down the Federalists. If they succeed, Virginia will not ratify and it will be likely that other States remaining to consider the Constitution will follow her example. Patrick Henry will take the lead. He has a long history of being a defender of individual, particularly religious conscience, and States rights. He has opposed Madison and Jefferson before; this time he means to pull out all of the stops to prevent what he sees as a usurpation of power from the people. Mason has become surprisingly (one might say, Samuel Adamsish) passive. Madison, having just made the convention, faces the most important task of his life...

As the ratification process turns to South Carolina, it is clear that the Federalists who run the State favor ratification. It was South Carolina, after all, that teamed up with James Wilson to cement the 3/5th's compromise and stuck to the deal as the tides of anti-slavery climbed against it. But it won't be as simple as that. First, the State Legislature will do something that no other legislature has done - it will openly debate the Constitution "for the sake of informing the country's members" of the reasons why the Constitution should be ratified. Then there is a second issue. South Carolina. like Massachusetts, is concerned about the lack of religious tests for holding offices. As it turns out, South Carolina has an official religion, one that is traditional but quickly becoming an anachronism. Lastly, Mr. Rawlins Lowndes rises in opposition to ratification. A Charleston lawyer, he takes upon himself the mantel of speaking for those "less accustomed to public speaking," and he outlines the problems that many in South Carolina have with the overall tone of the Constitution. Which is, of course, the one thing that all of the Southern States, South Carolina most of all, fears the Constitution will do - end slavery. There is strong majority anti-Federalist sentiment in the State, and indeed, there are many in South Carolina who believe that the State should "go it alone" rather than remain joined to the Union. It is Charles Cotesworth Pickney who puts a final rest to that political heresy. When South Carolina votes to ratify, it is over the objections and the will of the people of the State. but it is the eighth pillar to be raised in the new government...

Over the course of the Convention, Luther Martin (Maryland) had been a petulant opponent of the plan and an irritant to pretty much everybody there - even those who agreed with him. Now that his State, Maryland, is taking up ratification, he will continue to adamantly and vociferously oppose the Constitution. He is the very embodiment of the Anti-Federalists. Pretty much nobody will listen to his ranting, and Maryland will easily vote to ratify. It's what happens after that is so fascinating to me. Because of our own historical myopia, we tend to only see the good and heroic sides of the Framers and Founders. We don't relate to them as people just like us, facing difficulties and crises. Consequently we don't learn from their example of how to deal with and even overcome those difficulties. The rest of Luther Martins' life will be spent in various pursuits as a lawyer - including defending Aaron Burr against charges of treason - and in the bottle. But by 1807, he will be called, "The Federalist Bulldog," by no less than Thomas Jefferson. What drives a man who is virulently anti-Federalist to change his mind? Was it the ultimate "If you can't beat 'em, join 'em?" Or did Luther Martin discover something about human nature in his later years?

As momentum builds for ratification, the two biggest States, New York and Virginia are hesitating. New York is seemingly against ratification, but as the pillars of the needed nine States continue to fall, the debate intensifies. With their convention not scheduled to begin for several weeks, the debate moves into the Social Media of the day - the newspapers. First, New York papers take up the Anti-Federalist cause by publishing the DeWitt Letters, the Letters from a Federal Farmer, the Cato and Brutus letters, but they also begin to pick up a series of equally anonymous letters written specifically to the people of New York and signed simply, Publius. These particular letters will become known as "The Federalist Papers," and they are not - despite common misconception - a "commentary on Federalist Papers Facebookthe Constitution." They are in fact, a reasoned and direct defense of the Constitution as written and a statement of what the Federalists believed would be the benefits of ratification of the Constitution. But the really amazing thing to think about when we consider all of these letters is how the people of New York (and the rest of the country) consumed them. It's quite an odd foreshadowing of a more modern phenomena with which we ourselves are very familiar, #socialmedia...

After "impartial discussion & full consideration," the Massachusetts delegates to their State ratifying Convention agreed to what became known as the "Massachusetts Compromise." This allowed a number of anti-Federalists, including Samuel Adams, to vote in favor of ratifying the Constitution. But it wasn't a cut and dried, full-throated endorsement of the document. As the compromise agreed, many of the Anti-Federalist ideas worked their way into the ratification document as proposed amendments to the Constitution. Many of their recommended amendments are easily recognized by us today, and some made their way into the proposed Bill of Rights when the 1st Congress finally convened. Some of the ideas were ultimately rejected, but there is one overriding idea that we must keep in mind when considering these ideas: all of them came from people who did not like the Constitution as proposed. As intriguing as what the Massachusetts Convention recommended is what the did not include in their list of proposed amendments. Did they leave out some of the most treasured Rights because they assumed the States would and could protect them or did they presume that the proposed Federal Government would never try to stifle free speech or religion?

When the Massachusetts Convention gathered in early January, 1788 to consider ratification off the Constitution, the state faced three hurdles to ratification. First, the lingering suspicion and distrust of a central government from the western part of the State when just two years before, Shay's Rebellion had shaken the nation. The western part of the State saw the Constitution as little more than a larger form of the same government that had suppressed their rights and demanded their hard currency, and strongly objected to the idea that Congress would be able to tax and that only gold and silver could be used to pay debts. The Second problem was Maine. At the time, Maine was part of Massachusetts, and because of it's physical separation had often felt both neglected and treated as second class by the Boston mercantile class. Furthermore, Maine had staunch loyalist leanings during both the Revolutionary war, and would again during the War of 1812. It was assumed by most people that Maine wanted to separate from Massachusetts, but that the proposed Constitution made it virtually impossible to do so since Massachusetts would have to give it's consent to do so. But like many assumptions about both people and the Constitution, this turned out to be the least of the Federalist's worries. The third, and potentially the greatest hurdle to Massachusetts ratification was Sam Adams. He had made it clear that he saw in the Constitution, not a protection of the sovereignty of the States in a federal union, but instead a national government, which he was certain would crush the rights so recently and so difficultly won. Despite his "open mouthed" opposition to the Constitution, he was elected as a delegate by Boston, which supported the ratification. As Henry Knox informed General Washington, 2/7th's of Massachusetts was "insurgents" who had supported Shays, 2/7th's was Maine which opposed the ratification on their own grounds. Leaving only 3/7th's to try and carry the Constitution and try and make Massachusetts the 6th State to ratify...

In early 1788, a Weston, Massachusetts newspaper reported that, "Little else, among us, is thought or or talked of, but the new Constitution." The debate seemed to engross the attention of all classes of people, including women, who normally would be excluded from politics. . But as Massachusetts debates, the fate of the Constitution is as yet, undetermined. If Massachusetts ratifies, it is likely that the Constitution will be adopted. But if not, it seems that New York, Virginia will most likely follow their example. The debate's have consumed Americans of all political and social divisions. for the first and perhaps only time in her history, the level of political engagement is nearly one hundred percent. Even former Loyalists have and interest in the Constitution being ratified, as it would mean they would finally receive their long ago promised compensation. But no longer will States simply approve the Constitution in quick and easy conventions. In Massachusetts, where the Revolution really began, the life or death of the Constitution will face it's first real test among the States.

Connecticut's path to ratification was decidedly more smooth than some of the other States. While there would be debate, and the final vote would not be unanimous, the entire process reflected the character of Connecticut in a way perhaps no other process had. Certainly not the Revolution, which at one point during the Convention, had seen a delegate accuse Connecticut of being less than whole hearted in her efforts to support the Patriot cause. Overshadowing Connecticut's debate, the Federalist Papers turn away from the subject of the problems with the Confederacy and the ills that face the nation and the need for union, to the more detailed arguments as to why certain provisions in the proposed Constitution are so important and, consequentially, beneficial to the nation. The Anti-Federalists naturally turn to those same provisions as dangers to the liberties of the people. So who is right? Can both sides be? How can something, like a standing army, be both a danger and a necessity?

By the summer of 1787, George, the youngest and smallest (population size) State, seemingly had very little to offer to the nation, and needed a great deal of help to deal with her problems, many of which could be described as more or less self-produced. The biggest problem was Georgia's indifference towards... well... pretty much everything, including defending herself, first against the British and now against the hostile tribes on her borders and territory. And while her participation in Congress had been spotty at best, she had managed to send four delegates to the Convention. Now, in very late 1787 - December 25th, to be exact, Georgia's leaders gathered to debate ratification of the Constitution. For her, it was more a matter of what was to be gained, than what could be lost. And when the New Year finally rolled in, Georgia kicked it off by officially ratifying the Constitution.

In late 1788, Pennsylvania was, without a doubt, the most culturally, religiously and politically diverse State in the Union. It was also the one State that managed to spend most of the preceding decade disenfranchising most of its own citizens as a small powerful, anti-British, anti-Quaker minority ruled the State politically and used that power to maintain its base. It was only in 1786 that laws had been repealed that allowed the ouster of the political minority from power. Now, just two years later, the State delegates meet in the same room where the Constitution had been forged to debate whether or not Pennsylvania would follow Delaware's lead and ratify the document. Unlike Delaware, in this room sat men who adamantly opposed the Constitution, and interestingly enough, had recently been removed from power in the State. Over the few weeks of debate, the fight in Pennsylvania moved out of the State Hall, and into the media of the day - newspapers and pamphlets. And whoever won that, would win the ratification debate. Our story today begins in the office of a prominent Wilkes-Barre citizen, who supports ratification of the Constitution. On his desk, given to him by another, perhaps more prominent citizen of the city, are pamphlets that present a Federalist, pro-constitution view of the matter, with instructions to distribute the pamphlets throughout the city. But Ebenezer doesn't like the fact that the pamphlets contain rebuttals to arguments against the Constitution. He fears that if the good people of Wilkes-Barre read these, they will discover that there are cogent arguments against the Constitution. And so, he hits upon an idea...

The first State conventions in Pennsylvania and Delaware are called to debate the proposed Constitution. While Pennsylvania will actually debate, and question the wisdom of proceeding sans Bill of Rights, Delaware's internal issues and her external debates with the other States, have put her in a unique position. Of the thirty delegates who will be elected to her Convention, all thirty will favor ratification, even those men from Sussex County, which polls show is adamantly against ratification. For years, Delaware had led the fight for equal representation. Both in the Congress under the Articles of Confederation, and in the new Senate. And it is at Delaware's insistence and with her support that the proposed Constitution offers that equal representation in the new Senate. Internally, Delaware is racked by violence and constant bickering between the the Whigs and the Tories, but unlike her neighbor, Pennsylvania, both of Delaware's political movements want the Constitution ratified. It's more an argument of who will get credit for it, than it is whether or not they should ratify the Constitution. As Pennsylvania hesitates, Delaware ratifies the Constitution and become "The First State" of the new Federal Republic.

Breaking both the timeline and the 4th Wall, the debate of religion and government in the United States has taken on a new and particularly partisan tone in recent days, as the Nation tries to decide what to do about the Syrian Refugee problem. Oddly enough, the debate has taken on religious tone, as some say that "as Christians" we must accept the refugees, while others say that we must not. Scripture is quoted to both support and defy the idea of bringing in the refugees. But as Dave so often says, people do not change. The do the same things for the same reasons usually with the same results, throughout history. Indeed, as we have already seen, they even have the same arguments. As the debate over debate the ratification of the Constitution continued, one of the ideals bubbled to the surface - religion, and the lack thereof in the proposed Constitution, came to the front and center. But you might be surprised as to who was on which side of things, and why. And how it shows that all these centuries later, we are still debating the same questions as those who debated the Ratification of the Constitution.

John DeWitt issues his second letter, in which he begins to get to the details of issues over which he is concerned about the proposed Constitution. Later, Hamilton, writing as Publius, will answer the objection to the lack of the Bill of Rights in Federalist #84. But both arguments should remind us of one important historical fact: that the Bill of Rights was, in essence, given to us by people who objected to the general functions of the proposed Constitution. Even today, on a College Campus in Columbia, MO, we see what is, in effect, the exact same argument from all those years ago. Should there be a central basically unrestrained government with the power to command the citizenry, or should that strong central government have limits placed upon it to protect precious rights which are necessary for liberty? The answer to us today seems clear. We venerate and honor our Bill of Rights. But the argument isn't always so clear cut, and the issue not always... black and white... Extra Reading: Hamilton's "The Continentalist #1"

As he closes the 2nd Federalist Paper, Publius appeals to the words of the poet to remind Americans that all of our greatness, all that we have achieved and could yet be, will be erased if we reject Union. The arguments take on a more philosophical tone, between classic republicanism and what each side believes is the best definition of that term, and what is the best way to achieve the singular goal of Union to protect individual rights, liberties and the survival of the Nation? In the study of the Constitution, we begin to realize that our long held beliefs about what the Framers thought best, might not match up with what they themselves told us they believed. It should not change or passion, or even necessarily our positions. But it should remind us that Union is still the only way to achieve what we can be as a Nation. That we must join, or die.

By the end of October, 1787, the two side in the debate had been clearly delineated. There were those who were opposed to the Constitution, and there were those who favored it. Those opposed, the Anti-Federalists, as they would become known, had been first to publish their ideas with the first two DeWitt letters. But even as the second hit the papers, the first pro constitution article appeared. It was addressed to the People of the State of New York, and signed by the penname Publius, one of four men who overthrew the monarchy and established the Roman Republic in 509 b.c.e. Over the coming months, many more pro constitution, or "Federalist Papers" would be written. Their purpose was clear - to convince the people of the State of New York, and by extension, the entire country, to favor ratification of the Constitution.

Three weeks after the convention ends, the first of the many letters debating the proposed Constitution appears in published newspapers. The discussion will revolve around whether the Nation should remain as it is, a confederation of thirteen sovereign republics, or if it should move to a single central government. Already dividing lines are being drawn between those who favor the new Constitution and those who fear that it goes too far and takes too much away from the individual States. By this point, virtually every newspaper in the country has printed a copy of the proposed Constitution, allowing every citizens to read it or at least hear it, and to discuss it among themselves. This is the moment when every man will have to decide for himself under what impressions he will act. For this first, and perhaps only time in all of history, the People are asked to decide their form of government, not just who will be the leaders. And the debates, are just beginning.

The Convention is over, and the delegates disperse home. George Washington can hardly wait to get out of town and on his way back to Mt. Vernon. He is so anxious to leave, that it almost costs him his life. The issue is now before the States to decide. Ratification and Union or reject the proposed Constitution and try to go it alone or in small groups. As the process begins, the Congress of the United States takes up the debate first. Should they approve of the draft Constitution? Or has it gone too far? Two opposing ideologies will coalesce around the debate. One Conservative and liberty minded. The other, radical and focused on a much different - and much bigger - goal. Can only one succeed and push the other into the pages of history? Or is there yet still room for compromise?

Over the course of the convention, Gouvernor Morris has lost every single debate, discussion, argument and point. It would be hard to find any single man who had less successful direct influence on the direction of the debates. Everything that he wanted or stood for in the new government had been defeated. Now, as the work draws to its close, the convention turns to the one man in whom they have utmost confidence to stitch together the final document. And that man, is Gouvernor Morris. When all is said and done, it is Ben Franklin who rises to the moment. His words of self-sacrifice and putting the nation ahead of oneself ring in our hearts even today. And most of all, lets us astonish our enemies.

As the convention reaches the end of the first week of September, it seems, at least on the surface of things, that all their work is about to come undone. Luther Martin is convinced that the only way the American people will agree to this Constitution is to be hurried into it by surprise. Edmund Randolph of Virginia declares that yet another full convention be held - AFTER the states are given the opportunity to make amendments to the draft. It seems like there is a movement to undo all that has been done. What is left to hold the Convention together? Two men. Perhaps the only two men in all of American history to whom every citizen will listen...

As August fades into September, General Washington is feeling pretty upbeat about how things are going. At least one delegate believes that they will be done "i9n three weeks time." Others aren't so ready to finish things without getting their say. Every attempt to resolve the matter of the Presidency is met with an objection and a move to delay. Soon enough, the Committee on Postponed Parts will have their hands full trying to resolve everything that has been postponed. In the meanwhile, the Convention seems to, for the first time, consider why a new form of Government is needed, beyond the Randolph outline of so many weeks ago. The principles that underlie the nation are Life, Liberty and Property. There is general realization that a stronger central government is the best guarantee of those. watching what is happening in Rhode Island has convinced them that left to themselves, the States will not provide those protections. With that in mind, the Delegates take up the Judiciary and the power of the States over commerce, money and contracts. They believe that the federal Governments control of these items, among others, will provide the best guarantee of Life, Liberty and Property.

Today, we debate and discuss the War Powers Resolution of 1973, which may, depending on how you read it, gives the President the authority to make war, while Congress has not declared a war. Oddly enough, the delegates had exactly the same debate, which is why the Constitution gives Congress the power to DECLARE war and the expected the President to MAKE war... as long as the people approved... Needing a bit of a break, most of the Delegates headed down to the shore of the Delaware River to take a ride on a steam ship. Yes... a steam ship. Twenty years before anybody ever heard of Robert Fulton. Is it possible that little adventure helped them to empower Congress to "promote the Progress of Science and useful Arts?" Roughly a hundred years after the convention, Otto von Bismark will develop his political maxim of the "realpolitik." He could have learned it from Rutledge, who, in response to Luther Martin's call to accept the immorality of slavery, reminds the Convention that IF there is to be a Union, it WILL be with slavery. And if there is a Union WITH slavery, non-slave States... will make a whole lot of money...

As the Delegates return from their vacation, so does the summer heat. Sitting down to work, they begin to read and digest the draft that Rutledge of South Carolina has put together while they were gone. There are many points of contention, but also many points of agreement. One agreement is that they are moving too slowly, and that the nation is growing impatient. Despite the progress, there remains much to be done. James Madison feels that the work could take many more months. Washington and most of the other delegates know that they do not have that much time. The first solution offered is to work longer days. From 10am until 4pm with no changes to the schedule now allowed. With the new plan in place, they take up the qualification for electors. Should property ownership be considered? The draft of the Constitution says that it should not be considered, but some, like Gouverneur Morris, vehemently disagree.