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Category: Tirade Tuesday (page 2 of 6)

On 08-13-19 TODAY’S RANT is: El Norte Deporte


America is a nation of idioms. Some true, some not so much. My favorite American idiom is “By the sweat of one’s brow.” America is a land where the streets are paved with gold. It is a land of unlimited opportunity and success is gained through one’s own efforts or hard work. “By the sweat of his brow (fill-in the story of wealth and prosperity). Another popular idiom is “America is the melting pot of the world.” This maxim refers correctly (until recently) to the historical process of America’s cultural assimilation and acculturation of mostly Western Europeans during the 20th Century. Ellis Island, Statue of Liberty, very American, and true.

A truism that doesn’t get a lot of play is “America is a nation of second, third and even fourth in line younger brothers and sisters.” This refers to the ancient and still in place European blood-line traditions of inheritance where the oldest son inherits all while the rest of the clan inherit nothing. Working for dad might have been one thing, but working for your brother (the squanderer) until he kicks the bucket, well that’s another. With nothing to lose, why not try your luck in the new world? A land where tradition, blood, family and seniority had little meaning and “By the sweat of one’s brow…” you get the picture.

It may have even been possible that many of these immigrant fortune seekers may also have heard the words of the Declaration of Independence and that America was a land where everyone had the right to Life, Liberty and the Pursuit of Happiness. They may have even understood the Constitution guaranteed these Rights from undue government interference. That these Rights were inalienable, meaning that every person was entitled to a certain fundamental fairness in their dealings with the government. That each new citizen was entitled to due process of law. Words like proper notice and the Right to be heard.

They may have even understood that America was a nation comprised mostly of Christians, but was not a Christian nation. They may have heard about the First Amendment and it’s guarantees of religious free exercise for all and where there was no official, government endorsed religion.

They may have heard about free speech. The Right to criticize one’s own government without fear of retaliation or retribution. Where there was no royalty to criticize, no titles, no upper crust of society to fear. A land where anyone could attain wealth and status through a combination of unfettered ambition and, you guessed it, “By the sweat of one’s brow.” And to state the obvious, there must have been quite a bit of sweating going on in those days.

They may have heard The Star-Spangled Banner. America, “the land of the free and the home of the brave.” Those going west may have heard “Home on the Range” which paints the American west as where seldom is heard a discouraging word and the skies are not cloudy all day. “Go west young man” probably sounded dang good right about then.

America, the shiny city on the hill. The place where anything was possible for someone without even a dollar in their pocket but the guts to make a long, arduous journey from far away based on nothing but the promise of a better life for oneself and family. By nothing more than the sweat of one’s brow, and far away from the misery which they once called home.

What happened?

On 08-06-19 TODAY’S RANT is: A Few Thoughts on the One and a Half Amendment


Today, we start with a simple proposition. How did the original Second Amendment;

“A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed, but no one religiously scrupulous of bearing arms, shall be compelled to render military service in person.”

Later edited by the Founders to the actual Constitutional text;

“A well regulated militia, being necessary for the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”

End up as this?

“The Second Amendment has been the subject of one of the greatest pieces of fraud, I repeat the word ‘fraud,’ on the American public by special interest groups that I have ever seen in my lifetime.” – Supreme Court Justice Warren Burger (January 14, 1990)

The answer is fully illustrated on the wall in the front lobby of the NRA. You capitalize a “T” and cut the Amendment in half.

“The right of the people to keep and bear arms, shall not be infringed.”

The current interpretation of the Second Amendment was largely formed through manipulation of public opinion and not by scholarly investigation. For nearly 200 years, the Second Amendment was virtually ignored. There is very little case law or scholarly analysis available. The Second A was on its way to becoming as obsolete as the Third Amendment. You know, the one about not requisitioning and quartering troops in private homes? Thought so.

Historically, the meaning of the Second Amendment was never in serious question. The Founders did not want the Federal Government to have its own standing army. To protect their new nation, the Framers chose the model first introduced in England by Alfred the Great and already under use in Colonial times by Virginia. The militia. Militias are formed when citizens are “mustered” together into groups and then trained by the states to be part of their militia. In times of both domestic and foreign peril, the individual states could unite their individual militias into one national fighting force. No muss, no fuss and no need for a Federal standing army of professional soldiers that could be used to terrorize the states and their inhabitants. In those days, militias were BYOM as in Bring Your Own Musket as the militias did not supply weaponry. Toward this end each male between the ages of 16 and 60 was required by law to own a musket.

Notice how the words of the Second Amendment refers to the security of the “free state” and not individual rights to gun ownership. Historic context further informs us that “bear arms” was a term describing the right to go to war and not the individual right to own a gun. So how did we get into the mess we are in today?

The NRA was founded in 1871 by two veterans of the US Civil War to promote sport shooting with rifles and pistols. In the beginning, the body was involved with sponsoring exhibitions and competitive gun contests based on accuracy. By the 1970s the body was under “new management” and its mission changed, dramatically.

The NRA became a full-time, well-funded, political lobbying organization bent on spreading the gospel of gun ownership as a fundamental right protected by the Constitution. It wasn’t until 2008 when in the District of Columbia v. Heller opinion, written by right wing lunatic/activist judge Antonin Scalia, found the rights of individuals to own guns a fundamental feature of the Second Amendment. Scalia, a guy not above arguing the meanings of words like and, if, or and the placement commas as they relate to Constitutional interpretation, discards the entire first section of the Second Amendment as mere verbiage not central to the issue of gun ownership. Meaning, he adopts as his own the writing on the NRA’s wall of shame. Now, the shame is his. The pity is that we, the people, are stuck with the horror, carnage and continuing blight of an epidemic of gun violence spreading across the land.

That’s what happens when you cut an Amendment in half, Charlie Brown.

On 07-30-19 Today’s Rant is: Stop! In the Name of Law! The Supremes Speak.


Assuming that everything I said in my last article was true, and it is, the final say-so on virtually all constitutional issues (there are some exceptions) including cases involving the separation of powers, resides with the US Supreme Court (see last bullet point). The inherent power of judicial review under Article III, a judicial power the basis of which does not appear in the black letters of the law (now that we know what that means), but through a “hidden” power the Supremes gave themselves through their own interpretation of the Constitution. This power allows the Supremes to review all cases and controversies that arise under the Constitution and adjudge them constitutional or otherwise. As a practical matter, we can safely conclude that in this final analysis, the Constitution says whatever the Supremes says it does. Yes, you read that right. This includes cases involving legally cognizable skirmishes between the President and Congress.

You might be thinking how did this happen? Wouldn’t such a sweeping, influential and flat-out dangerous power have to be in plain, unambiguous writing within the four corners of the document to be “kosher?” What would the Founders have said? The case establishing the power of judicial review is Marbury v. Madison (1804). It involved two of the best known and influential of the Founding Fathers, John Adams and Thomas Jefferson.

When it comes to separation of powers the Legislative and Executive Branches have been fighting since the day the Constitution was ratified. Marbury is still a prime example of classic, churlish infighting between the President and Congress. After a nasty (even by modern standards) campaign involving countless incidents of mudslinging, character assassination and a hefty amount of balderdash, the incumbent Federalist candidate John Adams was defeated by the somewhat more radical Republican-Democratic Party candidate Thomas Jefferson. In an act of naked partisanship, on the evening before he left office, John tried to appoint 100 or so of his Federalist allies to life-time commissions in the Federal government. For the most part he succeeded, however, out of what was probably a haste makes waste moment he left several appointment letters behind in ye presidential desk drawer.

Thomas found the letters and summarily refused to deliver them, thereby denying the intended recipient their cozy, crony commission. One potential public servant denied his post as Justice of the Peace was John Marbury. He sued Jefferson’s Secretary of State and another Hall of Framer, James Madison, to deliver his appointment letter post-haste. Madison told Marbury to poundeth sand and the fight was on. Who was right? The still controlled by Federalists Congress wanted the appointment. The President did not. The Constitution has no express provision for this kind of conflict between branches. In a bind, they asked the Supremes to decide. In what still is the biggest constitutional power grab, John Marshall, the Chief Justice Supreme said, “let me think about it.” And he did. Several months later, he published his decision. In the first part of the opinion, Marshall has to decide whether the Supremes have the constitutional power to interpret the Constitution. Not surprisingly, the politically savvy Marshall decides yes. The Supremes do have the power to hear, interpret and render a decision in the case.

In the much shorter second part of the decision, we find Lady Liberty is not so lucky for Marbury. Marshall finds the Supremes do not possess the power to compel the Executive branch to deliver the letter, the sooner the better, or otherwise.

What did the Founding Fathers have to say? Nothing. They let the decision stand, judicial review and all. Greatest usurpation of power in American history, right under their collective white wigs and powdered, perfumed noses.

In conclusion to last week’s earlier conclusion, does Trump have an Article II power to do whatever he wants? Now I’m not saying Marbury is a blanket ruling under which the Supremes can never order a President to do, or not do something. Each case has unique facts including some of far greater significance that whether Marbury became a Justice of the Peace. With Herr Trump, it doesn’t seem likely Justice Roberts would approve of such a far reaching declaration of presidential power. Not likely to be sure, but now you know you never know until the fat supreme sings. It’s like that. Yes, it is.

[Ed.s Note: You can see the many previous Rants of Dean Drucker at:
https://losangelesfreepress.com/testimonials-to-the-la-free-press/ as well as here under the Today’s Rant Tab. Interesting reading, we think. And, too, we think that in these upcoming months, he will be a vital resource, a go-to Expert on the on-going attempts of the White House to turn America’s most cherished values into sludge.
>>Additional ‘Rants’ are posted every Tuesday, and if we are all lucky, he’ll also have one up on Thursday. Best to check regularly. Or, too, so you will receive them automatically you are welcome to take advantage of today’s Subscription Special at: https://losangelesfreepress.com/subscribe-to-the-la-free-press/

I’ll add this, too, as I personally hope you make the most of our Historic Archives, as well ~ they begin in 1964 and are, literally, among the very finest records of that pivotal era. And, as a Subscriber, you may make Requests for our articles on those seminal events – FOR FREE 🙂
>>Not sure where to begin? See the most remarkable – and eerily coincidental??? – articles at our ’50-Year Throwback Thursday’ Tab… up at the top of the page.
>>Now, Phil, now that we know that the Supremes have as much power as they do, what can ‘we’ do to ensure that America stays its course of high-ideals? Hope to see you all, automatically, on this Thursday… please go on back up and check out that link to the Subscription Special!]

On 07-25-19 Today’s Rant is: It’s The “Ho! Ho! Ho! I’m 14 Years Old and I can do Whatever I Want” Clause


I’m going to let you in one a little secret. Constitutional analysis is not as difficult as it may seem. Yes, it is not for the weak of mind or spirit, and it does require a working knowledge of history, law, government and civics. The trick is being able to put the pieces back together again. They are all there. The question is not what, but where.

Take for example the recent statement our President gave regarding the Constitution.

“Article II gives me the right to do whatever I want.”

Is it possible that is a correct statement of Constitutional Law? It could be. But it’s not. Why? Let’s break it down and find out. I offer the following step-by-step outline as a guide. Use topically and as often as necessary.

· There (Black Letter Law)
· Not There
· What Is There?
· 4 Corner Context
· Legislative Intent
· Historical Context
· US Supreme Court Case Law (if necessary)

Step 1: We need to look for what is there. We call this “Black Letter Law” analysis – do the actual words themselves appear in the Constitution and are they open to any alternative meaning except those conveyed by the words common meaning and perhaps augmented by a pinch of context? Now this may sound a bit cheeky, but is there within the four corners of the Constitution an “Article II gives me the right to do whatever I want clause? In the plain, black letters of the law? Step II: The answer is no. This does not mean the statement is patently indefensible, but it’s not a good sign.

Step III: Article II of the Constitution deals with the Executive Branch. The branch tasked with first and foremost the black letter mandate (Article II Section 3);

“he shall take care that the laws be faithfully executed,”

https://www.law.cornell.edu/constitution/articleii

“He” is the President. So, according to Article II, Step IV: what exactly, within the “four corners” does the President do? For purposes of clarity and legislative intent, let’s split those parts of Article II devoted to the president into two parts, domestic and foreign. Next, we can further investigate Article II, Sections 2 & 3, and divide the identified not so much powers, but more accurately described as duties and obligations into two columns:

*Domestic ………………………………………………………………………….Foreign
*Commander in Chief ……………………………………………………..Make Treaties
*Grant Reprieves and Pardons……………………………………….Appoint Ambassadors
*Appoint Superior and Inferior Officers……………………….Receive Ambassadors
*Recess Appointments…………………………………………….and other public ministers
*Inform Congress of the State of the Union
*Convene Congress in Times of Emergency

https://www.law.cornell.edu/constitution/articleii

Step V: Unlike the Congressional powers enumerated in Article I, Article II was intentionally written in broad strokes to give the President flexibility in dealing with crises and emergency situations where quick response times can be the difference between life and death. Therefore, most of the Presidential powers are not evident from a cursory reading of the Constitution, yet the president must follow the Constitution and takes an oath to do so (Article II Section 1).

“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.”

https://www.law.cornell.edu/constitution/preamble

Further guidance can be found by breaking down the Constitution’s Preamble:

· Form a more perfect Union
· Establish Justice
· Ensure domestic Tranquility
· Provide for the common defence
· Promote the general Welfare
· Secure the Blessings of Liberty

https://www.law.cornell.edu/constitution/preamble

Step VI: Say you are Lincoln and you are faced with the southern states wishing to succeed from the Union. The Constitution itself is silent on the concept. The Constitution does however task the President with perfecting a more perfect Union, ensuring domestic tranquility and promoting the general welfare. How could any of these Constitutional mandates s/he is sworn to uphold be accomplished by allowing the south to succeed? None, thought Lincoln and so he went over to Congress, asked them to declare war making him commander in chief. And so, we went to war. That’s how the Constitution works, Charlie Brown.

Oh, as for that ridiculous 14-year-old sexually active potty mouthed brat on Jerry Springer assertion Trump spewed out about presidential powers, is it true? Of course not.

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