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Old 05-18-2008, 05:41 PM
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Default The U.S. Constitution:

THE CONSTITUTION OF THE
UNITED STATES OF AMERICA

A User's Guide
by Gunny


PART I

First off, let us begin with the most basic of all requirements in understanding this document: 'Constitution of the United States' is NOT a title, as in the sense of a book or movie title; it is not merely something simple to 'call' the document that follows.

It is a simple declarative sentence.

'That which makes up (constitutes) America'; or, if you prefer, 'How to be American'.

This is very important to understand; all to often it either falls by the wayside, or is deliberately ignored. This document is the defining 'rules' for America, and the highest law in the land. The oaths sworn to 'preserve and defend' it are not mere formalities - they are legally binding, and - in certain circumstances - actually supersede other obligations, including laws.

I'm going to be posting this discourse in several pieces - partially to allow for responses to sections of it; mostly because I'm also working at the moment, and am 'popping' in and out of the forum while I do.

As my first 'brain teaser' to leave you thinking while I get some work done:
No more insidious example exists today of the erosion of American devotion to the Constitution than the way it has been 'put on a pedestal' to be either nearly-worshipped or practically ignored, depending on the person. It was, is and has remained a vital, living document, and the foundation of all America claims to be... and yet, today, it is being constantly 'slipped around' in what has become a 'standard practice'. To whit; you CANNOT, legally, make any law that either contravenes or 'redefines' the Constitution; as the highest law, the Constitution automatically supersedes all such laws. Yet, Government - all branches, all parties - constantly do so, and turn a blind eye to others when they do, so that they, themselves, may continue to do the same.

The mechanism to constitutionally change the Constitution is in place; it's called amending it, and it's not very easy to do... which is why the 'end run' by politicians, of course.

Back shortly...
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Old 05-18-2008, 06:10 PM
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PART II:

ARTICLE III - Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Hmm... often called 'The First Amendment', for reasons I won't bother going into right now. Let's take a look at it, shall we...?

'Congress shall make no law...' - bit of an odd phrasing there, wot?

Not really. If you bother to take the Constitution as an ENTIRE document, rather than, (as is usually done), jumping right to the AMENDMENT that amplifies the rest of the document, then you would understand that Congress is the ONLY part of the government empowered to pass Federal law.

This is one of the more common methods of trying to override or undermine the Constitution; 'cheating' by making law. Judges SEEM to do it all the time - yet the Judicial Branch has no authority to make law. Only the Legislative branch may do that. Is 'Roe vs. Wade' the 'law of the land'?

Nope.

It's a single decision in a single court case. I'm not going to state whether I am pro- or anti-abortion, and right now, I don't care if you are, either - this 'cheating', in my opinion, is a much more overreaching matter. I simply picked that case as it's one I'm sure almost everyone will be familiar with, to some degree or another.

Now, lawyers, judges, and politicians treat RvW as 'the law of the land'. Why? Simple - the judicial branch doesn't like the constitutional limits placed upon it. Oh, I'm not necessarily assigning Machiavellian motives across the board, (though, I'm certainly not clearing them across the board, either.) I'm willing to bet a good percentage of those involved truly believe it's 'for the best'. Nevertheless...

Judges come from the ranks of lawyers; many politicians in all branches were judges or lawyers themselves. This, normally, is what would be called a conflict of interests, as any in a profession tend to look for what's best for them and/or their profession - a completely normal human response, which is usually why we try to make sure that response can't affect anything. Except, of course, in government...

RvW is precedent - and precedent has no real legal standing whatsoever. Again, Judges and lawyers treat precedent as if it were, itself, law... again, a matter of professional self-interest.

Moving on from Judicial to Legislative; the people SUPPOSED to be making the laws. Their job is simple: to vote, 'in Congress Assembled', on what the people of their respective states have told them to vote. They are representatives - that's all. They are not supposed to work 'on behalf' of one industry or another; nor for 'the good of the state', and CERTAINLY not for 'their constituents'. They are supposed to vote on matters EXACTLY how 50%+1 or more of their voting state citizens tell them to. AT MOST, if they find they cannot vote as instructed, a legislator may resign, so that one who can may be put in their place. After all, if that 50%+1 of their state says he-or-she should vote 'yes' on a motion to make it illegal to wear jeans in any other color but BLUE, then that is how the vote should be.

Okay - that seems silly, you say.

Well, that's where amendments come in. Look at the 1st Amendment again - it says something that NO MATTER how many people tell how many representatives to vote, here are laws Congress CAN NOT pass.

To sum up - nobody can pass law but Congress; Congressmen can only vote as 50%+ of their state dictates; and, regardless or approval from state voters, there are certain laws Congress cannot pass at all.

We'll get to the 'meat' of the 1st in the next post...
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Old 05-18-2008, 06:41 PM
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PART III:

'Congress shall make no law...'

Always thought that was rather straight-forward. NO law. None. Not FOR, not AGAINST, not even IN VAGUE REFERENCE TO. So...

....respecting an establishment of religion, or prohibiting the free exercise thereof;

Pretty straight-forward. Local school-board has prayers in the classroom? There's NO LAW against that. Another school-board has decided NOT to hold prayers at commencement of class? No problem; that's legal. Students of religion 'X' decides to pray, on their own, at the beginning of class - that's fine too. There is NO LAW against that... because there CAN be no law 'prohibiting the free exercise thereof'. Either way, like it or not, it's not a 'legal' matter.

...or abridging the freedom of speech, or of the press;

You want to stand on the top of the Empire State Building and express, in no uncertain terms, you opinion of a certain individual? Go right ahead... but be prepared to get arrested.

NOT for exercising 'freedom of speech' - but for the consequences of having done so. There will be NO law regarding your RIGHT to speak freely; however, there may be consequences, and you will be responsible for them.

If I were to make the same opinion known, at a cozy backyard BBQ, there's no problem. Even if I wish to publish a flyer, as long as it clearly states that it IS my opinion, and makes no solid accusations that cannot be proven... well, you might get in trouble for HOW it is distributed, depending on local bylaws about such things, but not because of your speech.

Now, a somewhat more 'dangerous' matter - I make accusations against someone. this is not stating opinion; it's asserting a fact. You can be brought to court for this... but IF YOU CAN PROVE IT TRUE, you cannot be punished for it. That's free speech... but if you are lying, then that's another matter, and one the law CAN deal with.

...or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

This one is the simplest of all - you just have to note the 'peaceably' portion. Violent protests, riots, public nuisance... these can, and probably will, be dealt with by the law, as it is empowered to do. If you assemble peaceably, however - well, 'there's no law against that'.

Unfortunately, mankind in large groups seem to have a VERY hard time remaining 'peaceable'...
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Old 05-18-2008, 06:50 PM
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It's actually interesting that you mention the whole issue of judges making policy. If you notice that's always a real stumbling block whenever it's time to appoint new judges. Republicans and Democrats are both quite guilty of trying to appoint judges that are favorable to them in order to help get policy through.
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Old 05-18-2008, 07:13 PM
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Quote:
Originally Posted by Akula2ssn View Post
It's actually interesting that you mention the whole issue of judges making policy. If you notice that's always a real stumbling block whenever it's time to appoint new judges. Republicans and Democrats are both quite guilty of trying to appoint judges that are favorable to them in order to help get policy through.
As I said: "Conflict of interest..."

Here's a perennial favorite:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.


What nobody seems to mention is what this amendment is referring to - the text within the body of the Constitution:

Section 8 - The Congress shall have Power...
...To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
...To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;


Hmmm - seems pretty straight-forward to me. Congress can 'call forth' the Militia, under certain terms - the rest of the time, it's up to the states to appoint officers and train them. Well, what do the 'respective states' have to say about the Militia:

Section 219 of the Kentucky Constitution:
The militia of the Commonwealth of Kentucky shall consist of all able-bodied male residents of the State between the ages of eighteen and forty-five years, except such persons as may be exempted by the laws of the State or of the United States.

Well, well... a bit outdated, (MALE residents...?) perhaps, but illuminating. Moreover, section 220 says:
The General Assembly shall provide for maintaining an organized militia, and may exempt from military service persons having conscientious scruples against bearing arms; but such persons shall pay an equivalent for such exemption.

Interesting, no? So, 'a well regulated militia', in the case of Kentucky, means that every 'able-bodied' man between 18 and 45 MUST have a firearm... OR PAY FOR THE PRIVILEGE OF NOT.

Of course, it is also up to the state to make sure said armed citizen is trained; also, such armed citizen would swear that oath to 'defend and preserve' the constitution.

Legally, then, the way the system SHOULD work is that EVERYBODY would be armed, aside from those paying the privilege not to be. Thus, ANY crime committed with a firearm would not only be that crime, but a violation of the oath that came with the gun; with the subsequent VERY harsh punishment.

People seem to forget that every 'Right' is ALSO a 'Responsibility'. They are not 'related'. They are not even 'two sides to the same coin'. They are inextricable and identical. The 'right to bear arms' is semantically identical to the 'responsibility to bear arms', exactly as the Constitution reveals. It's merely that Western culture, as a whole, has been busy trying to perpetuate the fictional difference between 'right' and 'responsibility'.

You want a gun? Found out what your state constitution defines a member of the militia to be; fulfill that requirement. Under the Constitution, they MUST allow you a fire-arm... and provide training in it's use!
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Old 05-18-2008, 07:16 PM
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Quote:
Originally Posted by Gunny1 View Post
PART III:


...or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

This one is the simplest of all - you just have to note the 'peaceably' portion. Violent protests, riots, public nuisance... these can, and probably will, be dealt with by the law, as it is empowered to do. If you assemble peaceably, however - well, 'there's no law against that'.

Unfortunately, mankind in large groups seem to have a VERY hard time remaining 'peaceable'...
Remember the Christian group that was protesting at soldier's funerals? They used signs that read "God Loves Dead Soldiers". I can't remember more signs, but that one was really burned in my head.

I ask about this because I believe certain local governments were passing laws/ordinances in order to keep these kinds of protests away from the grieving family and friends of the dead soldier. I think the ACLU was fighting these laws stating it was against the first amendment. It sounds to me the "peaceable" part went out the window with the messages on the signs. If I were at one of those funerals and it was my buddy, cousin, or friend that had died, I would have taken that sign away and broken it over their heads!! I would have gone to jail gladly.

What is your take on that whole situation. Was it ever resolved in court?

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Old 05-18-2008, 07:19 PM
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We should remember that when the constitution was written, America was brand new. The Founding Fathers had no idea what America would become - heck, Jefferson envisioned a country of landed gentry and loyal yeomen tilling their fields! We can't ever assume that every little word in the constitution is Holy Writ.

Nor should we assume that what a small town in Iowa deems offensive is also offensive to the denizens of Manhattan. That's why things get in a muddle when it comes to issues like abortion or school prayer. (And if you're in a federally supported school, pray all you want but do it in your head or in a room with other members of your faith - just my opinion there.)

I agree that lawyers are slippery critters, but I also don't like the idea of a judge having any contraints upon him/her except their own knowledge and concious. They're tribal elders, if you will. It's a flawed system, and the Executive Branch abuses the piss out of it through appointing judges they assume will agree with them on certain issues... but it beats having the Ruler For Life appointing his family members to the bench.

That's why, liberal though I may be, I think America is pretty darn lucky to have such a great document to guide us... GUIDE us, that is. Jefferson et al made it so that we can change it to fit the times, and for that I thank them. We can't kid ourselves that a "perfect" system exists anywhere (the whole "peaceable" problem we seem to have - some people are power hungry). All we can do is muddle through and not use the Constitution as a tool to promote our own special interest agendas.
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Old 05-18-2008, 07:29 PM
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We should remember that when the constitution was written, America was brand new...
Agreed. that's why there are mechanisms in place to amend it. As I said, it IS a living document... and it's SUPPOSED to be 'Holy Writ', not 'general guideline'. If, as you feel, something in it is outdated, then by all means, amend it... if ENOUGH of the population agrees with you that it should be so. If not... well, then, leave it be, and so best serve the majority of the people.

As for the 'tribal elders' argument... "Objection! Presenting facts not in evidence!" (*Grin*)

I wholly agree against dictatorship... but, as it stands now, judges act as 'mini-dictators'. (Their word, quite literally, 'is law'.) I think judges MUST be held responsible and accountable to an overall law, one defined by Cicero's statement: "The Good of The People is the Highest Law".

Oddly enough, I've always felt that those best suited for deciding what the Good of The People is are... The People.

"...government of the people, by the people, for the people, shall not perish from the earth."
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Old 05-18-2008, 07:37 PM
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Even though the executive branch tends to appoint judges that might be favorable to what the executive thinks (and quite honestly that is well within the powers of the executive branch), but that's why it has been set up so that Congress has to approve the appointment.
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Old 05-18-2008, 07:38 PM
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Quote:
Originally Posted by MrQ1701 View Post
Remember the Christian group that was protesting at soldier's funerals? They used signs that read "God Loves Dead Soldiers". I can't remember more signs, but that one was really burned in my head.
Personally, given the context, I'd say that the 'Christian Group' was definitely providing an incitement to riot; therefore, clearly not covered under the articles of free speech.

(On the other hand, the same people expressing the same opinion in a different locale, distasteful as I would find it, would have nevertheless had my 'theoretical' support for their peaceable gathering, if not their opinion. As it is, what they did was clearly MEANT to be inflammatory...)
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