A Violation of the Religious Establishment Clause

Stumbled on this language in a treaty between the US and the Kaskasia Indian Tribe:

. And whereas, The greater part of the said tribe have been baptised and received into the Catholic church to which they are much attached, the United States will give annually for seven
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years one hundred dollars towards the support of a priest of that religion, who will engage to perform for the said tribe the duties of his office and also to instruct as many of their children as possible in the rudiments of literature. And the United States will further give the sum of three hundred dollars to assist the said tribe in the erection of a church.

Not sure how modern scholars would view this.

Founders: Their Words

I may have mentioned this Founders site before, which contains the digitized correspondence of the Founding Fathers (and the Adams family).  What's neat is you can do a rapid search for terms.  Here's a list of terms and their occurrences.  (I discovered that searching on lower case picks up upper case, but not vice versa.)   Who would have thought that "electricity" would be mentioned more often than the "slave trade"?

Citizen 11,287
King 10,968
Colonies 5,581
Continent 3,334
British  17,460

United States 25,153
United Colonies  774
Constitution  7,731

Rights  16,033
Liberties 17,463
Society  17,242
Individual 6,188
Bear arms  174

Corn  2,919
Wheat 3,167
Potatoes 515
Tomato  5
Cabbage 157
Oats 806

Apples  425
Maple sugar  79


Horse 7,517
Oxen 452
Sheep 1,033
Cattle 1,782
Cow  496
Hen  151
Chicken  69

Compost  30
Marl 19
Lime 141
Manure 342

Rum  1,025
Whiskey 400
Wine 2,394
Cider  78
Ale 85
Beer 275

Gardening 1,842
Lawyer 2,673
Doctor 3,623
Farmer 2,516
Merchant 10,604
Commerce 7,537
Industry 2,392  (mostly working hard)
Teacher 485

Slave 2,953
Slavery 804
Slave trade 177

Electricity  381

Our Federal System, Same Sex Marriage, and Animal Rights

Our federal system is like an apple orchard for small boys.  It provides an abundance of ammunition for political controversy, without worrying about consistency. (I'm flashing back on a war between two groups of boys (10-12) back when I was young.)

 That pontification (I sound more and more like my grandfather) is prompted by Kathleen Parker's column in today's Post, defending the idea of states passing their own laws for humane treatment of farm animals.  What I'm pointing at is the inconsistency of liberals and conservatives: liberals mostly want each state to have their own laws on animal treatment, but they now want all states to recognize marriages wherever made.  Conservatives want to ban state laws which are tougher than national law on animals, but want each state to have the ability to accept or reject marriages formalized in other states. 

There's many more cases of inconsistency, mostly generated by the temptation to snatch up the nearest cudgel handy with which to beat one's foes over the head.

What Was on Their Minds in 1787?

Stumbled on an item from New Jersey in 1787.  After the NJ convention had ratified the new constitution, they adjourned to a tavern to celebrate.  "After dinner, the following toasts were drank:

1. The new constitution
2. The united states in congress.
3. The president and members of the late federal convention.
4. The governor and state of New Jersey.
5. The states of Delaware and Pennsylvania.
6. May the independence of the union, reared on the basis of the new constitution, be perpetual.
7. The princes and states in alliance with the united states.
8. May the interest of the united states be ever deemed the interest of each state.
9. Religion, learning, agriculture, arts, manufactures, and commerce, in harmony and mutual subserviency to each other.
10. The memory and posterity of those who have falled in the late war.
11. May the gratitude of the American citizens be equal to the valour and patriotism of the American soldiery.
12. The daughters of America.
13. May the united states be the asylum of invaded liberty.

Volunteer [sic?] May the American drums soon beat reveille to the dawn of the new government, and tattoo to anarchy and confusion.
Ditto.  Universal liberty, justice and peace. "

Republicans Will Violate the Constitution?

J.I. Bell at Boston 1775 notes the Republicans are now proposing to violate the Constitution, specifically the 27th Amendment which prohibits varying the salary of Congress people.

Gun Control: A Modest Proposal

Three things strike me about mass slayings using guns in the U.S.:

• the shooters are young males
• the shooters aren't NRA members that I know of.
• most of them have multiple weapons.

That leads me to this modest proposal:

• permit men to buy 1 gun every other year on their birthday, or
• permit men to buy a gun if they provide proof of being an active member of an NRA club for at least 1 year.

 In theory that should slow down the accumulation of weapons and mean that they're successfully handled social relations with others for a year.

Not that I expect anyone to take this seriously, but I get tired of the fights liberals have with the NRA.

Our Christian Nation Founded in Sin?

John Fea reports that one conservative scholar believes it was unChristian to rebel against Britain. 

Wickard and Healthcare

How did a ladies dress shop owner become involved in the battle over the constitutionality of Obama's healthcare act? Jim Chen has a law article on Wickard vs. Filburn (1942) which will play a large role in the Supreme Court debate.

The issue in that case was the constitutionality of acreage allotments and marketing quotas on wheat, given that Filburn grew his wheat, in excess of his allotment, for consumption by his animals.

As best I could see in a scan of the text, Chen has the program and agriculture pretty close to right, and he's a good writer for a legal beagle.

How Government Really Works

Two articles in today's Post show how government really works:

• one covers the implementation of the rules of 28 states on health insurance covering contraception.  Turns out the states have loopholes and vague provisions, and provisions which aren't really enforced, which means the Catholic organizations who were/are yelling about the Obama administration's requirements were able to live with what really happened at the local level.
• the other covers the implementation of the law requiring reservists to get their job back when they return from active duty.  Turns out some reservists don't get their job back, and sometimes it's the federal government which fails to follow the law.

Some points:

•  the way our government is designed, the multiple layers (local, state, federal) mean "liberty" is protected. (I put "liberty" in quotes because I could as easily write "disorder".)
• some laws are more signal than reality.  That was a lesson from my sociology prof who cited the case of laws against prostitution. There's still prostitutes.  Or speeding, there's still speeding.  
• no one doubts President Obama wants veterans looked after, but it's a big government so gaps between executive intent and actual execution can be great.

The Definition of Wheat

What's fun is to watch a bunch of academics and city folk at Volokh.com try to understand the AAA of 1938 and the Wickard v Filburn case (excess wheat), representing the furthest stretch of Congressional power under the commerce clause of the Constitution.

Either they don't understand the Act, they don't understand farming, they don't understand current farming, or they're just off on tangents.  There's 240+ comments on a post several days old, so I didn't read them all.  Towards the end some of the nonsense gets weeded out.

You Can't Choose Your Allies: John Yoo and Obama

Yoo attacks Boehner over War Powers Act.  As far as I can tell, both Obama and Boehner have flipped their positions, so Yoo is an exemplar of consistency.

Two-Faced Republicans

Ed Bruske at Grist has a piece on how the House Appropriations committee wants the USDA to change their school lunch guidelines (fruits and veggies, all the stuff kids don't like but the foodies do.)  But USDA says: No, the legislation passed last year rules and not the appropriations language.

Meanwhile, as I wrote yesterday, the House Ag committee wants to overrule what the House Appropriations committee did.

I call the Republicans two-faced, but that's wrong, or rather all sides are two-faced.  Everyone will take advantage of all the multiple choke points and bypasses provided by our system to advance their position and hinder the opposition.  It's "politics", or rather the way politics operates within our historic framework.

Our Weak Federal Government--States Control Fed Employees

In any rationally constructed bureaucracy, the leadership of the organization can control the hiring and firing of the people who do the organization's work.
Right?  Anyone disagree?

So we're all in agreement the Social Security Administration is not a rationally constructed bureaucracy.  As the FederalComputer Week reports:

"Under a joint federal-state funding relationship, SSA pays the full salaries of state employees who do initial processing of disability claims under the federal Disability Determination Services program."

 Because they're state employees, not Feds, some 19 states have furloughed these people, meaning SSA can't timely service these claims.

Founding Fathers Had Imperfect Foresight

According to Rep. Duncan Hunter,(in a Grist post) when writing the Constitution the founders envisioned automobiles, but not bicycles.

Not Your Father's GOP--Authority from the UN Charter!!

Some Republicans are turning over in their grave at the first two sentences of this Politico post:

"If Congress had rejected his request for authorization to liberate Kuwait, George H.W. Bush probably would have sent combat troops in anyway.
The most senior members of the former president’s national security team, here for a Thursday night event to commemorate the 20th anniversary of the first Gulf War, said Bush was already intent on moving ahead after August 1990 because he believed the United Nations charter gave him the authority he needed."

The occasion was a reunion of George H.W.Bush's cabinet to talk about the Gulf War. All those people who think the UN is taking over and that politicians believe the UN Charter and foreign treaties supersede American rights now have something to point to.

Read more: http://www.politico.com/news/stories/0111/47928.html#ixzz1BgX1vkQR

The Interactive Constitution

Via Ezra Klein, here's a section by section presentation of the Constitution, with an accompanying exegesis, all done interactively.

Ratification

Some thoughts from a reading of Pauline Maier's "Ratification":

• doesn't seem much concern for the right to bear arms in the discussions.  So far I think only NH mentioned it as a right.  
• VA was concerned about "arming" the militia, someone even proposed an amendment ensuring the states' right to arm their militias if the federal government failed to do so.  That suggests to me a recognition of the fact that depending on personal arms for the militia was not a consideration.
• VA's resolution of adoption included a statement that the "people of the United States" were adopting the constitution, but always had the right to change their form of government.
• opponents and proponents used whatever tactics they could to advance their cause.  For example, sometimes they delayed, sometimes they shanghaied their foes into the meeting to make a quorum.  
• as for advocates of "originalism", neither proponents nor opponent agreed on a reading of the Constitution; there were lots of variant interpretations.
• a stray thought: in one convention, I believe VA, an argument against a bill of rights was that such a bill would tend to limit rights.  By saying that A, B, and C were rights, a bill of rights would imply that X, Y, and Z were not rights.  I wonder if that's been born out over the years--I'm thinking specifically of the right of privacy.

Glenn Beck More Enlightened Than Lindsay Graham!

Politico reports Sen. Graham wants to bypass Miranda rights for American citizens suspected of terrorist acts.

Meanwhile, with my very ears, I heard Glenn Beck last night we shouldn't Mirandize aliens, but we should protect the rights of American citizens.

I guess I need to get my hearing checked, and if that's okay, head for the head doctors.

Is the Air Force Unconstitutional?

Inasmuch as the Constitution only provides for an army and a navy, it would seem anyone who is an originalist in constitutional interpretation would have to say that Truman should have initiated an amendment to legalize the Air Force.  (Comment triggered by a NYTimes review of two books annotating the Constitution).

The Second Amendment

As a good liberal who remembers exactly where I was (U of Rochester library) when I heard about JFK's assassination, I've always been a supporter of gun control.  And as someone who trusts authority, mostly, I bought the idea the Second Amendment related to militias.  Then, in recent years, scholars have made the argument that it really pertains to individual rights.  And enough have made that case, and as I've lived and crime has decreased, I've come to accept the idea that there might be an individual right to weapons.  (Looking at the Young Irelanders has also been interesting.) You might say I've learned a better interpretation of the Second Amendment.

But then, via Althouse, I stumbled on this site, which quotes the discussion in the House of Representatives on the Second Amendment.  Nothing there about individual rights.  (I realize that's not a clinching argument, but it certainly causes me to question my recent learning.