Consent of the Governed and Interpreting the Constitution

If consent of the governed means anything, we have to apply the Constitution in the way the people who ratified it understood it.   Otherwise we are imposing laws nobody consented to, which is tyranny.  It's easy to say that people who object to decisions like Roe v Wade and Obergfell are just misguided bigots.  But in fact, they are objecting to laws invented by the courts that were not lawfully adopted by the legislature or consented to by Constitutional ratification.  The ends don't justify the means.  The means change the outcome.  If the Supreme Court interprets the Constitution in ways that nobody consented to, there is no limit to the Supreme Court's power.  There is also no binding precedent, because any precedent can be reinterpreted to mean something entirely different.  The Supreme Court becomes a Supreme Revolutionary Council with essentially unlimited powers and life appointments for members.

Let me give you an example of how this works.  The 14th Amendment was passed in 1868, when homosexual acts were illegal in every state.  If the legislators who voted to ratify the 14th Amendment had known they were ratifying same sex marriage, it wouldn't have passed.  Obergfell should have been decided on the full faith and credit clause.  Any marriage validly performed in one state must be recognized in all states.  This would have left the states in control of who could marry inside their borders, but forced all states to recognize same sex marriages performed elsewhere.  Such a decision would have been consistent with the invalidation of the Defense of Marriage Act (DOMA), which conservatives liked because of the states rights reasoning, even though the outcome didn't go their way.  DOMA was invalidated because the Supreme Court ruled marriage was a state matter, and federal law could not interfere with it under the 10th Amendment.  A ruling on full faith and credit would have been much more easily defended as consistent with the original intent of the Constitution.   If Obergfell had been decided on full faith and credit, doubt about the permanence of Obergfell, including this article, wouldn't be necessary.  Since using the 14th Amendment was a stretch, Obergfell is a shaky decision.

Who's Responsible for Poor Civics Education? Liberals Who Control It!

With the rise of Trump, it’s popular for liberals to complain about the sad state of civics education in the US today.  I think the sad state of civics education is the result of liberals not wanting the populace to have a civics education.  The complaints are ironic to the point of absurdity.

Liberals control education in the United States.  Any failures in education are liberal failures, either by neglect or by design.  I believe the failure of the US education system to teach civics and relevant history is the desired result of the liberals who control it.  It's difficult to reconcile the "consent of the governed" with regulatory overreach, executive orders and rogue court decisions which obviously violate existing laws and the Constitution.  Congress, an elected coequal branch of government, has been cut out of most processes.

Notably left out of the civics classes that are taught are the key writings and historical events that influenced or explained the Constitution.  For example, John Locke wrote “Two Treatises on Government,” published in 1690, to justify the overthrow of King James II in the Glorious Revolution of 1688.  Locke advanced the idea that government existed by the “consent of the governed,” not by the divine right of kings.  Locke also said that government’s function was to preserve the “life, liberty and property” of the people it governed.  Another example is the “Federalist Papers,” a group of 85 articles and essays arguing in favor of adopting the Constitution written by Alexander Hamilton, James Madison and John Jay under the pseudonym Publius.  While the Federalist Papers are considered to be an “incomparable exposition of the Constitution” according to one historian, the odds are that most civics classes never read even one of them.

Regulatory agencies today have executive, legislative and judicial functions all rolled up into a single agency.  There is no separation of powers.  They make the rules, decide who to prosecute for breaking the rules and then conduct hearings in their own administrative proceedings.  They can decide to declare war on coal or regulate the internet with no legal basis for doing either.  Congress, supposedly the legislative branch of the federal government, can't stop them.  According to the Constitution, "All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives."  Clearly, administrative agencies are legislating.  Anyone who studies the Constitution is going to notice a huge disconnect between the Constitution and current practice.  It's a lot easier not to teach civics.  That way, teachers don't have to explain why we're not following the Constitution.  Since most teachers are liberals, it would be against their political interest to point out that we aren’t following the Constitution.  Voters might get the idea that regulatory agencies should be reined in.

Executive orders have become very popular with the current administration.  The way President Obama behaves is very close to the behavior of Charles I (1600-1649).  Charles I tried to rule without Parliament for 11 years. President Obama used his pen and phone to rule by decree. Charles thought he should be an absolute monarch by divine right. President Obama believes he is "on the right side of history," acting with "the fierce urgency of now."  President Obama believes he can grant exemptions to any law at any time, like refusing to collect Obamacare employer mandate taxes or the ordering the administrative enactment of the Dream Act for illegal aliens brought here as children after it failed to pass Congress. I hope we can solve our problems with the Smartest President Ever without following the historical pattern of Charles I. Charles' insistence on absolute power lead to the English Civil War. Charles I lost the Civil War he initiated by trying to arrest 5 members of Parliament on the floor of the house. Victorious Parliamentary forces executed Charles I in 1649.  Oliver Cromwell, the Parliamentary Army’s commander, became a military dictator in 1653 and held power until his death in 1658.  

Please notice that most readers have never heard of Charles I.  This history, England from 1625 to 1776, is a vital part of the background of the Constitution.  The 2nd Amendment is designed to make military dictatorships, like Cromwell's, impossible to impose on the United States, because an armed populace would be able to resist.  The clause that says the president "shall take Care that the Laws be faithfully executed...." is aimed at Charles I and his son, James II, who were in the habit of ignoring laws passed by Parliament.

Rogue court decisions are another area where civics becomes hard to teach.  The Constitution is a contract between the states and the federal government.  Article V. has two methods of how to change the Constitution.  Both methods require 3/4 of state legislatures to ratify changes.  Most people would agree that contracts can't be changed unless both parties to the contract agree to the change.  Unfortunately, liberals believe the Constitution is a "living document."  This means that federal courts can reinterpret the Constitution to mean something different than what was originally agreed to.  This means that the "consent of the governed" is no longer necessary to change the Constitution.

Let's look at a recent example.  The 14th Amendment was passed in 1868.  The Republicans who wrote it meant it to protect recently freed black slaves from abuse from state laws and state courts.  Here's the key sentence: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."  In 1868, homosexual acts were illegal in every state.  In 1868, the definition of marriage was considered to be a state issue.  In 1967, the "equal protection of the law" clause of the 14th Amendment was used to strike down state laws prohibiting mixed race marriage in Loving versus Virginia.  I think this is a logical extension of the original meaning of the amendment, which was definitely about race.

In 2016, the 14th Amendment was used to mandate same sex marriage for all states in Obergfell versus Hodges.  This is a "living Constitution" decision in two ways.  Since in 1868 homosexual acts were outlawed, the ratifiers of the 14th Amendment could not have known they were voting for mandatory legalization of gay marriage.  If they had known, the 14th Amendment would not have passed.  Also, since generally marriage is a state, not a federal, issue, the case should have been decided on state grounds.  Under the "full faith and credit" clause, marriages performed in one state must be recognized in all states.    Deciding the case this way would have allowed state legislatures to decide for each state how to define marriage.

Changing the definition of marriage is a very big change.  It seems to me to be something to be resolved by legislative processes after full debate.  Changing the Constitution to mandate same sex marriage for all states, overriding several state constitutions and referendums, is really a violent remedy.  Making a change this big without the consent of the governed is very difficult to explain in rational terms to students.  It's a lot easier to avoid teaching civics.

 Liberals control education completely in the US.  Education failures in the US are the result of liberal design or liberal neglect.  Teaching civics is avoided because current practice deviates substantially from original Constitutional design. Preserving ignorance of the Federalist Papers, John Locke's "Two Treatises on Government" and the history of England from 1625 to 1776 allows liberal changes in government to go unchallenged by a population too ignorant to realize they are being cheated. 

Original Article:

http://foreignpolicy.com/2016/10/06/america-is-turning-into-a-confederacy-of-dunces-united-states-presidential-election-trump-civics-education/

Explain Trump's Nomination: PTSD or Outlaw Government?

For David Rothkopf, the Editor of Foreign Policy Magazine, “Donald Trump is the Symptom of Our PTSD.”  I would like to propose an alternative analysis.  The government of the US no longer cares about obtaining the consent of the governed and the government no longer bothers with preserving even the appearance of equal justice.  Since 2010, the Democrats' strategy has been to deadlock Congress and use illegal executive orders, rogue courts and regulatory excesses to get what they want without Congress.  The power of the purse has been negated by Harry Reid blocking every spending bill until the last minute, then giving Republicans the choice of giving Democrats more or less everything that they want or shutting down the government.  

The "living Constitution" doctrine, for example, completely removes the consent of the governed.  When the 14th Amendment was ratified in 1868, homosexual acts were illegal in every state.  The ratifiers did not ratify mandatory same sex marriage.  If same sex marriage had been explicitly part of the 14th Amendment, it would not have passed.

Regulatory agencies have no separation of powers.  They combine executive, legislative and judicial functions all in one shop.  Due to the Chevron doctrine, the courts defer to regulatory agencies expertise, so in most cases regulations get minimal judicial review.  It's clear that Congress has no power over regulatory agencies.  It's also clear that President Obama can get them to do whatever he wants, like regulate the internet as if it was a copper wire telephone utility in 1934, or maybe a steam locomotive railroad in 1887.  The Environmental Protection Agency declared War on Coal after Congress failed to do so.  Companies who sued to stop the regulations were told they had no standing to sue, because they had suffered no injury yet.

The courts generally vote a straight party line in deciding cases.  You can tell this because the news reports who appointed the judges when it reports how the cases are decided.  The 4 liberal justices on the Supreme Court are almost 100% predictable.  The judiciary is no longer independent.

In the last 7.5 years the president has operated outside the law.  Obama decided not to collect the Employer Mandate taxes which he signed into law as part of Obamacare.  He has had the Supreme Court rewrite Obamacare twice rather than submit it to Congress for a rewrite.  He has unilaterally proclaimed and enforced the Dream Act by executive order after it failed to pass Congress.  

The Department of Justice has become a mockery of its name similar to George Orwell's Ministry of Truth.  Justice department lawyers have been cited for contempt several times because they presented facts to judges which later turned out not to be facts.  The Justice Department has not prosecuted Lois Lerner for setting up IRS harassment of Tea Party nonprofit advocacy groups. It has not prosecuted IRS Commissioner John Koskinen for obstruction of Congress and perjury in covering up the IRS harassment of Tea Party groups. 

The Justice Department has not prosecuted Hillary Clinton for mishandling classified information.  FBI Director Comey said the crime requires intent to be prosecuted.  It most emphatically does not.  The Justice Department has not even investigated the Clinton Foundation's pay to play aspects.  The Chicago style fix is in.

The Justice Department has not prosecuted big Democrat fundraiser Jon Corzine, former Senator and Governor of New Jersey, for using customer money to pay corporate debts in the MF Global brokerage scandal, even when Mr. Corzine testified under oath to a Congressional Committee that his financial controls were not good enough for him to know that he was using customer assets.  Failure to have good controls is a violation of Sarbanes Oxley, and using customer money to pay corporate debts is the biggest no-no in the brokerage business under the securities laws.

I think Donald Trump's nomination is a desperate attempt by Republican voters to stop the corrupt mess in Washington.  After electing a Republican House in 2010 and a Republican Congress in 2012 and 2014, they have nothing to show for it.  Congressional Republicans seem to be intimidated by the mainstream media, who operate as the propaganda arm of the Democrats without even attempting to look unbiased.  Trump's one qualification was that he is not intimidated by the Pravda Press.  I'm not saying this choice was a wise decision, but I do understand the desperation.  If, as is very likely, Trump loses, the next step will be a Constitutional Convention called by the states.  People are fed up with the corruption of the Democrats in Washington, DC and their enablers in the mainstream media.  They are willing to look for any alternative that looks promising. 

[After posting the above, I got some pushback from a liberal commenter.  He said that the Clintons had maintained enough separation from the Foundation so that they were not in violation of a law prohibiting federal employees from receiving money from foreign governments.  He said a “living Constitution” was needed to keep the 2^nd Amendment as a valid part of the Constitution.  He said that Obama’s executive orders were sailing through the courts easily.  He said the deadlock in Congress was mainly the result of Republicans refusing to compromise.  My response is below.]

The reason for Hillary Clinton's private email server was so she could coordinate Clinton foundation donations with State Department favors.  Here's a good place to start on the Clinton Foundation:

https://www.washingtonpost.com/politics/emails-reveal-how-foundation-donors-got-access-to-clinton-and-her-close-aides-at-state-dept/2016/08/22/345b5200-6882-11e6-8225-fbb8a6fc65bc_story.html

The purpose of the Second Amendment was to make military dictatorship, like the one Oliver Cromwell imposed on England after the English Civil War in 1653, impossible. Here's a link to the history of Oliver Cromwell:

https://en.wikipedia.org/wiki/Oliver_Cromwell

This purpose is clearly explained in Federalist Papers Number 46.  This purpose, to prevent federal military dictatorship is still valid.  Even if it isn't, the Constitution's Article V specifies how to change the Constitution.  It says that 2/3 of each House of Congress must pass the Amendment and then 3/4 of the states must ratify it.  It does not say that a 5 to 4 vote of the Supreme Court is a valid way to change the Constitution to get rid of things we don't need anymore.  Here's a link:

https://en.wikipedia.org/wiki/Federalist_No._46

Here's an account of the litigation around Obama's executive order implementing the Dream Act.  It's written by Illegal Immigration advocates, so it should be an acceptable source for you.  It doesn't sound like smooth sailing for Obama's executive order.  The ruling that currently stands is that the order violated the Constitutional provision that the president "take care that the laws be faithfully executed."  That provision should be called the King James II clause, because it was drafted to prevent the kinds of things he did to flout parliament.  Obama is merely imitating him.  Here's the link:

https://www.americanimmigrationcouncil.org/research/-legal-challenges-executive-action-on-immigration

Basically you are the victim of a "liberal" education.  Your effort to shout me down by stacking up manure is not going to work.  I grew up in Montana and I learned how to deal with lots of manure very young. 

[After my post above, the liberal commenter got upset.  He insisted I read a Politifact article about the Clinton Foundation.  He mentioned how many emails Bush deleted.  He said the 2^nd Amendment was obsolete because it was written when the US Army had only 5,000 men.  He said that the 14^th Amendment was too vague for anybody to know what it meant.  He mentioned Loving v. Virginia and Griswold v. Connecticut as two cases which would be overturned by my interpretation of the 14^th Amendment.  He complained about my insulting his “liberal” education.  My response to his response to my response is below.]

I read the Politifact article on the Clinton Foundation.  It was a whitewash followed by a split decision.  The polite fiction was that the Clintons did not receive any direct benefits from the foundation.  The foundation was used as a slush fund to support friends of Bill and Hill as a campaign organization in waiting, so the polite fiction was more fiction than polite.  The lawyers were of differing opinions.  Politifact, not surprisingly, chose to take the opinions most favorable to the Clintons as gospel.  Politifact is part of the media bias you've heard so much about.  Having "fact" in your name does not make Politifact any less biased that having "truth" in Pravda's name made Pravda any more truthful.

"All anybody got was a meeting" is LOL funny as a lame excuse. If George W. Bush was selling meetings through a Bush Foundation, would you still argue that?

On the 2nd Amendment, the point, which escaped you, is that "the right of the people to keep and bear Arms, shall not be infringed."  That's not a conditional statement.  It doesn't depend on the whims of local government.  It doesn't depend on a "living Constitution."  It's right there in plain English.  There is no room for wishful interpretation to accommodate modern conditions here.  Any other spin on this is organic fertilizer.  Heller was rightly decided.  If people don't like it, they can amend the Constitution using either of the two procedure specified in Article V.  Getting the Supreme Court to find another penumbra is not going to work.  Attempts to confiscate some of the 300 million privately held guns in the US will lead to widespread violence.  Any Supreme Court case which moves in that direction is really a big risk, considering how angry the Deplorables are right now.

The 14th Amendment was about RACE.  The Republicans who wrote it wanted to prevent state laws and state courts from mistreating recently freed black slaves.  To pretend otherwise is to back the Humpty Dumpty school of jurisprudence:

“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.” “The question is,” said Alice, “whether you can make words mean so many different things.” “The question is,” said Humpty Dumpty, “which is to be master—that's all.”

The great benefit of the rule of law is that it's predictable.  People can make long term investment decisions based on a predictable legal environment.  The great drawback of the "living Constitution" is that it's not predictable at all.  Supreme Court cases are more like NFL games.  On any given day, depending on what Justice Kennedy had for lunch, the Court can overturn thousands of years of tradition and law on a 5 to 4 vote.  It's even more ridiculous when you consider that the "full faith and credit" clause could have been used to rule that any marriage legally performed in one state had to be recognized in all states.  Stretching the Constitution out of shape wasn't even necessary to legalize same sex marriage.

Virginia v. Loving was a case about interracial marriage.  It was decided correctly based on the 14th Amendment.  The decision said that interracial marriage could not be outlawed by the State of Virginia.  This is exactly what the 14th Amendment was designed to do.  

Griswold v. Connecticut should have been decided using the 9th and 10th Amendment.  The states do not have the right to interfere in bedrooms just because the Constitution does not forbid it.  Inventing a right to privacy based on the 5th and 14th Amendments, when it was never there, opened the door to a slippery slope where the Court is finding all sorts of other things in the Constitution that weren't there.

My link to the Dream Act case shows that the courts have not upheld all of Obama's illegal executive orders.  You said, incorrectly, that they had.  "Obama's executive orders have been dismissed by the courts."  Ain't true.  Obama didn't just violate the intent of the Constitution.  He violated the letter of the Constitution repeatedly.  If George Bush decided not to collect taxes on oil companies until next year, would that be OK?  If not, why is it OK that Obama decided not to collect the taxes of the Employer Mandate passed in the Affordable Care Act?

As a straight white Republican male, I am assumed to be an ignorant uneducated racist sexist warmongering fascist pig.  Since I'm a Vietnam Era veteran, I'm also assumed to be a crazed trained killer who could lash out at any moment.  Since making these assumptions seems fair to liberals, I don't understand why any liberal would be upset if similarly broad assumptions were made about them.  None of them bother to notice my two Master's degrees or my black sister in law, the best thing that ever happened to my little brother.  I've just decided to strike first with insults.  It makes me feel better about myself.

I assume that "liberal" education leaves things out, like English history from 1600 - 1750 for example, because that knowledge would tend to undermine key liberal ideology.  You don't want people to notice the similarity between Divine Right Monarchy and being "on the Right Side of History" with the "Fierce Urgency of Now."  You especially don't want people to notice that Barry the Brilliant and King Charles I have a lot in common, both being tyrants who tried to rule without legislatures.  You also don't want people to read John Locke's Two Treatises of Government.  It wouldn't be good if people thought they actually had a say in consenting to government.  It's better for liberals if government just does what's best for people, because the people are too dumb to know what's good for them.

The original article I reacted to.

http://foreignpolicy.com/2016/09/13/trump-clinton-ptsd/