15 June 2011

Simple solutions for complex problems

As the discussion of what the States might do during a Constitutional convention has been kicked around for a few years and is getting some traction (as seen at Instapundit), here is a quick and simple amendment to consider:

Proposed Amendment

1)  All regulations shall be approved by a simple majority of Congress.

2) Any regulation may be removed by either house of Congress.

3) All legislation for all laws shall be reauthorized every ten years, to include all regulations.  All prior government laws and regulations shall be reauthorized on the final number year they were first instituted.

4) All directly granted bodies mentioned specifically in the Constitution are exempt from reauthorization.  All directly granted bodies are not exempt from regulatory reauthorization procedures.

This concept is known as a 'sunset' law that would sunset every provision ever passed by any Congress or regulatory body formed by Congress so that Congress must take active steps so as to re-affirm that these bodies and regulations are actually necessary.

The ability to get a simple majority in either body of Congress to strike down regulations should be enough to curb offending regulations.

Do note that this proposed Amendment is incorporated, in part, to the States so that every State gets a 'sunset' law.  It is up to the States to consider which bodies they have that pass laws so that the proper ten year sunset cycle is implemented in each State for State level concerns.

This will keep the US Congress and State legislative bodies very, very busy for a decade to clear out the backlog.  And anything that isn't reaffirmed goes away.  The default position of any government is that it only has power on approval of proper legislation passed and reaffirmed on a frequent basis.  Do note that this includes ALL government activities, and only those mandated by the US Constitution or State Constitutions must be kept, but their regulatory ability is also under scrutiny.

Sunshine is the best policy for transparency as a disinfectant.

Sunsets allow for old ideas to pass away and only those positively reaffirmed will survive any nightfall, others live like mayflies and die out very quickly, indeed.

All agree or none shall pass - Part 2

The following was originally posted at The Jacksonian Party.

This is a follow-up article to All agree or none shall pass which is a look at the structure of the US Constitution as put forward by Nicholas Rosenkranz on The Subjects of the Constitution.  The follow-up article on The Objects of the Constitution by Nicholas Rosenkranz was linked to by Glenn Reynolds at Instapundit on 26 MAY 2011.

By establishing the SVO system of sentences (that is Subject, Verb, Object) Mr. Rosenkranz has put forward that the Subjects of the Constitution are part of a logical understanding that actions (that is Verbs) that are being done apply to something (Objects) and are performed by someone (Subjects).  To find out who the Actors or Subjects of a clause or Amendment are in the US Constitution it is necessary to see what the Object of the Verb is which then tells you the Subject of that clause or Amendment.  As this is being applied to a federal structure type of government it is possible to implicate more than one Subject to a Verb acting upon an Object: a federal structure requires division of power and checks and balances amongst branches so as to establish a form of government that does not devolve down to a single branch or individual.

Finding the Subject performing an Verb requires that any reader of the Constitution understand the Object that the Verb is being applied to, so as to understand what the implications are in the Verb and Subject being described are.  To do this requires an examination of the internal structure and consistency within the US Constitution, itself, so as to see how powers (Verbs) are apportioned to different actors (Subjects) to do something (to an Object).  Even within the general Articles of the Constitution there is an apportionment of powers both stated and unstated but present by implication, that reach beyond the branch of government being discussed.  This is done so as to set up the balance of powers systems within the Constitution (and there are more than one power balance system involved), and to discern who is being talked about one must look at the phrasing of clauses and Amendments so as to properly place who gets a power and who is the counter-balance to it.  As there are three branches of government in the federal system (Legislative, Executive, Judicial) and divisions amongst the States and the federal government, and the States having their own republican forms of government that do not mimic the federal system, the types of power that are apportioned must often be directed to the holder of that power type rather than a formulaic system that equates, say, the President directly with a Governor as each State apportions powers differently

As part of the review of the Constitutional structure, Mr. Rosenkranz continues with the examination of powers via the clauses and Amendments and utilizes prior SCOTUS case history and other judicial review documents to see who gets to do what via the way a clause or Amendment is phrased and ties in with other, similarly worded, clauses or Amendments.  This is to perform a logical coherency check on the system to see if there is an underlying theme of how phrases are stated and what the understanding is for each power grant in terms of scope and limitations.  The clauses and Amendments fall into the category of active voice (Congress shall make no law...) which directly addresses an actor, and passive voice in which an actor is not directly named, but has a restriction on an action, instead.  The lineage of the passive voice is a long one and, for Common Law heritage, can be most directly traced back to the first article of the Magna Carta (boldface mine, unless otherwise noted throughout):

(1) FIRST, THAT WE HAVE GRANTED TO GOD, and by this present charter have confirmed for us and our heirs in perpetuity, that the English Church shall be free, and shall have its rights undiminished, and its liberties unimpaired. That we wish this so to be observed, appears from the fact that of our own free will, before the outbreak of the present dispute between us and our barons, we granted and confirmed by charter the freedom of the Church's elections - a right reckoned to be of the greatest necessity and importance to it - and caused this to be confirmed by Pope Innocent III. This freedom we shall observe ourselves, and desire to be observed in good faith by our heirs in perpetuity.

Compare this to the First Amendment in the Bill of Rights for the US Constitution:

Amendment I

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.

The Magna Carta utilizes the passive voice in that it does not state who the people are that cannot limit the English Church's internal operations.  It is a very broad declaration that pertains against the whole of the English government and all of its sub-parts.  For not stating who has done the restricting in the past, the first article puts forward that NO ONE can restrict it in the future and that it is to be run by its own internal election system from that point onwards.  This both establishes the Church of England for the Nation and yet removes it from the power of government, at the same time.

Amendment I of the Constitution is an active voice and narrowly crafted restriction as it names its actor: Congress.  It hits at the point of the federal system in that Congress, using Legislative powers, makes law that is then enforced by the Executive and presided over by the Judicial.  By making the crafting narrow so as to restrict the making of law by Congress, the other branches can gain no foothold nor have any say over the realm of religion as there can be no basis in law for it.  Congress cannot create or establish (or disestablish) a religion or prohibit the free exercise of religion.  Do note that if the people, separately from Congress and the National government, wish to make a National religion outside of the power of government, they are free to do so as Congress gets no say in that as those are the unenumerated powers that are retained by the States and the people.

Both prohibitions work to restrain the power of the government, but the passive voice restraint is universal in tone while the First Amendment is narrow in scope although broad in its implications in that the federal government is restricted from doing these things via the organ of Congress, but says nothing about the States who had as their purview the establishment of State church recognition at the time of the Framing.

To see this in the purely passive form on a similar subject, there is this from the Magna Carta:

(38) In future no official shall place a man on trial upon his own unsupported statement, without producing credible witnesses to the truth of it.

(39) No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.

(40) To no one will we sell, to no one deny or delay right or justice.

And from the Bill of Rights:

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Again passive voice in both is an injunctions against unlawful searches and seizures of someone's person or property, which is an Executive power, and that their liberty shall not be violated without having probable cause, which is the production of credible witnesses before seeking out an individual for searches and seizures.  The exceptions for the Magna Carta includes those of from judgments by juries '...the lawful judgment of his equals...' and '...by the law of the land', which is the Legislative arm of government. Amendment IV has an injunction against the Executive to perform  '...unreasonable searches and seizures...' indicating that there are reasonable ones that must be backed by a Warrant issued from the Judicial branch for law made by Congress.  In the absence of law or judgment, there can be no violation of the right against unlawful searches and seizures which is a passive voice restriction that binds the Legislative branch to make 'reasonable' laws, the Executive to ensure that it has good information before going after individuals, and the Judicial is made a part of this in the Magna Carta via court decisions and in the Constitution via the necessity of seeking a Warrant.

This lesson of the passive voice being an involving one because it does not clearly state who the actors are and requires an understanding of who gets these powers within a Nation are ones that any British citizen would know to some extent as this was part of the Common Law system.  The hidden structure within the Constitution is supported by the repetition of phrases amongst clauses and Amendments that point to a common understanding of the functions of the powers of government within the object of the Constitution, which are those powers that the Nation has, as a whole.  That a Nation has concerns that are different than those of States (that is sub-units that cannot make treaties and have other National concerns) is something that is well understood in the Founding and Framing era coming after the works of Grotius, Pufendorf, Montesquieu, Hobbes, Blackstone and de Vattel that all address the limits of National power.

From these examples done outside of the scope of Mr. Rosenkranz's article, it is possible to see how the English language has been utilized not only in the instance of the US Constitution, but thematically across time from at least the era of the Magna Carta.  The structure of sentences dealing with National powers is a form of 'originalism'  that goes beyond the power context of the document as a whole or even in its major sections, but allows for an in-depth understanding of clauses within sections, that tell much about the structural underpinnings gained from the utilization of the language to imply actors in the power arrangement without explicitly stating who they are.

Stepping from this to the interior cross-structural elements of the Constitution, the utilization of multiple instancing of phrases on topics then puts into play an understanding of linkages within the Constitution and its Amendments.  For this I will start with one Mr. Rosenkranz utilized which centers on the analysis done in Barron v Baltimore.  This analysis centers around the Takings Clause in Article I, Section 9 of the Constitution:

No Bill of Attainder or ex post facto Law shall be passed.

This is a passive clause and when asked 'to whom' does it apply, it is clear that the passing of laws is up to the Legislative branch of government as that is the organ of government that passes laws.  Now this language is replicated in Section 10 which applies to the States:

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

This clause is a complex one, so it is necessary to concentrate on the structure as it pertains to the Takings Clause in Section 9 which I have put in boldface.  The 'No State shall...' is addressing the States (singular) and then listing prohibitions, which the 'pass any Bill of Attainder...' part highlighted is the one to examine.  Here the verbiage is similar to the restriction upon Congress, but is put on the States. Given that passing laws is a Legislative power, it can be inferred that the restrictions upon the State Legislatures or that set of organs of government that are vested with the Legislative power.  Because each State has a different arrangement of powers, so long as they are republican in form, it is not possible to say that a State may not transfer a power to a different organ for passing these sorts of laws.  So no matter which part of State governments get this power, they are restricted from using it to create a law pertaining to a Bill of Attainder or ex post facto situations.

Similarly the first article of the Magna Carta tells what may not be infringed in the manner of law leaving the implied context that although Parliament is normally the place for such laws, it is possible that the Sovereign may choose other bodies to do such things.  Those bodies, having that power, are also similarly restricted.  While the subject of 'States' are explicit in Art. I, Sec. 10 of the US Constitution, the reference to which part of State government is restricted from doing these things is not explicitly stated.

Reading from the same clause is a restriction on another part of State governments with the 'enter into any Treaty, Alliance or Confederation' restriction.  To whom does this apply at the State level?

In the main body of the Constitution, the only power in this regard is the Senate assent to a Treaty, but this is in Art. 2, Sec. 2:

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur;

This is an active voice clause 'He shall have Power...' is directed at the Executive branch of government, which is vested in one individual: The President.  With that power is a restriction requiring the Advice and Consent of the Senate by a 2/3 majority of those present. From this the restriction upon the States is to the Executive branch of State governments, namely Governors.  By utilizing a passive voice and generally addressing the States, the Constitution allows for a broad set of restrictions on the States as these powers that they are restricted from having are vested in the federal government.  Instead of an explicit listing of 'No State Legislature shall...'  or 'No State Governor shall...' the writers of the Constitution decided that a summary listing of powers that the States are restricted from having would then imply which organs of each State would face that restriction.  The blanket restriction of this clause removes uncertainty as it has no exceptions, no other mentioned or implied action that can be taken to allow these items, nor any way a State may do them while remaining in the United States.  The categories of power and branches that enact them for the States are embedded within the clause, itself.

A power mapping into the States can be performed by showing the different functions in the clause:

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

The items marked in red are Executive functions while those in green are Legislative functions.  These function areas come from the formulation of republicanism used by the Founders in the Articles of Confederation and by the Framers of the Constitution, both of which had demarcations between Legislative, Executive and Judicial functions as part of the structure of government.  The structure of a republican form of government is not set in stone, and from Ancient Greek and Roman times through to the time of the Framing, the positives and minuses of republics were understood.  Republics are stronger than Confederations which had been seen as a failure as a system time for the Ancient Greeks as they are more of a passive structured alliance system with sovereign States able to act independently within the alliance with outside Nations.  By centralizing a number of functions to a single government, the ability of sovereign States was limited, but not dissolved.

When the United States was first Independent it was as a Confederation.  The load sharing of debt could not be centralized in that form of government and while the southern States found that with their thriving plantation based agricultural system was able to handle the debt load, the poorer family farming northern States could not due to smaller amounts of distributed output.  In the north the Confederation was breaking apart with uprising against confiscatory taxes leveraged by politicians that mainly represented the few bit cities which then tilted in favor of the merchants and against the rural farmers.  Changing to a republic meant a new Constitution to dissolve the old Confederation, so as to centralize the debt load so that the States as a Nation, not as States, paid off the Revolutionary War debt.  In a very real sense America failed in her first governmental system due to debt, the republic was founded in debt and with one exception under President Jackson, America has always been in debt.  Getting out of debt was a relatively easy thing to do: staying out of debt has proven impossible for this form of government.

One of the minuses of republics that was well known at the Founding and Framing is that they work best with small and compact geographical regions with more or less homogenous populations.  In their era the examples of the Swiss, Dutch and City of Venice were well known and each typified the examples of the Greek and Roman republican systems for being compact geographically, with similar cultural and ethnic backgrounds.  The reason a Confederation was chosen is that the United States were seen as too geographically spread and having major ethnic sub-populations that brought different forms of society together, even while they were colonies.  Each of the colonies had their own form of republican government with strong variations from Georgia to Pennsylvania to Connecticut to Rhode Island. The necessity of changing to a republic was worrying as central governments tend to become distant from those they govern when geographical size overwhelms the homogeneous nature of the republic.  Multi-ethnic and cultural republics have proven to be very few and far between, and not stable.  Rome transitioned from republic to empire before Julius Caesar in many ways with the government subsuming more private functions and handing out goods and services on an unequal basis.  The strength of a republic is also its weakness and it takes a good people who hold the values of republicanism to heart to hold a republic together.

The language of the Constitution reflects this understanding of the form and nature of governmental power at the level of the Nation and the internal workings of Nations as States.  By utilizing a federal form of republic, that is one with restricted allowances on what powers are granted to the National government, the concepts of checks and balances was put into place via the understanding of how they worked not just under British Common Law, but using the examples of republics past and present. 

When crafting sentences and clauses, as well as the Articles of the Constitution, the Framers took pains to understand exactly which powers they were dealing with (sovereign external or internal powers) and to proscribe those powers explicitly via statement and implicitly by the way republics utilize such powers amongst different branches of government.  An understanding of the federal form of government created at the Framing has a pre-requisite of understanding what a republic is and how one works as sovereign and representative power of the Nation in question.  Because of the SVO formulation of English as a language, those underlying power allotments are to be taken into consideration when approaching which actions (Verbs) are given to which actors (Subjects) and applied to which parts of the power structure (Objects).  The flexibility of the English language to have passive and active structures, and change the SVO ordering (although not the internal logic of the SVO order, itself) means that all parts of a sentence must be in accord with the underlying understanding.

All parts must be known and agree with the structural outlay or else it may not be understood and none of the power structure shall pass muster for the federal form of republic.

14 June 2011

The benefits of commentary

For me the benefit of restricting myself to commentary to other sites is that it helps to distill important ideas that I would normally present in a longer, more complex, blog post.

No one reads those beyond the few and dedicated that basically got the idea some years ago.

That is why I pluck my commentary from other sites and repost those with some added commentary, like what you are reading now, to help shine a light on the basic concept.

Thus for the idea of what the problem is with the federal government, can often be stated in someone else's stream of thought even if they aren't addressing the problem, directly.  Thusly reading through the latest page on Hot Air about the so-called 'debates' in the Republican Party hosted by CNN (which went all high-techy and I dutifully ignored as debates are turning into 'gotcha' forums), I ran across a comment that hosted the nub of the problem but was directed to finding an experienced 'manager' for the government.  My point is as follows, with warts and all and I'll try to put down my formatting problems as-is, also, for your copious amusement:

[..]Today the United States federal government is the world’s largest enterprise. Only China, Japan, and India have total GDPs larger than our federal budget. [..]

Adjoran on June 14, 2011 at 3:31 AM

Sorry to do a pull-out from a longer paragraph, but you have stated the problem to a T with that.

The federal government should in no way, shape or form be that large outside of a global war, and then it should only be that large as long as hostilities are going on and then fall back to a tiny size thereafter.

It shouldn’t require a very good or excellent executive to manage the thing. And we should be able to survive electing a dipstick with no experience by that said dipstick not being able to get his or her hands on so much cash and power. The size is the thing that is dangerous, not the experience, or lack thereof, of a candidate or official.

When we have a federal government large enough so that such in-depth experience matters, then we are in a bind as any single experienced mistake will destroy us. The idea now is to get someone who will reduce the size, scope and power of the government and get it out of our lives so we can survive mediocrity. Because, lets face it, most of our elected officials are reflective of the body politic and it is mediocre at best and awful for its norm.

Stop looking for geniuses and start looking at the problem.

ajacksonian on June 14, 2011 at 7:35 AM

Close enough, Hot Air does something funky with a line before blockquotes to differentiate them.

The problem is that those who are partisans are looking for geniuses.

The problem is the size, scope and power of government which now consumes a huge amount of our economy.

I'm looking for someone to put government back in its place as something that can and should be outside of our daily lives save at the most local of levels.

I'm looking for a dedicated problem-solver for reducing the problem of the huge size of government, not an awesome manager of an authoritarian State, which means I'm not a Republican.

I'm a Jacksonian.

See how that works?

08 June 2011

All agree or none shall pass

This article was originally presented at The Jacksonian Party.

This is an article of The Jacksonian Party.

On 25 MAY 2010 Glenn Reynolds linked to an interesting, indeed compelling, article by Nicholas Rosenkranz on The Subjects of the Constitution.  This article will be followed with another on The Objects of the Constitution and a later book to explore this conception of judicial review of Constitutional law and cases.  I have previously written on this topic looking at formulations of Constitutional Structure with Strictly constructed or not?  In that I attempted to discern the differences between Strict Consturctionism, Originalism and Textualism.  I do not come to this topic from the law perspective, per se, and have no legal training just some common man familiarity with law. The Constitution is, in and of, itself not law, save for the few crimes and penalties mentioned within the text (ex. Treason and Impeachment).  The Constitution is a system of powers that are limited, enumerated, and sovereign within the limitations and enumerations, that is to say they are the exercise of sovereign power by the Nation of the United States of America.  It is a system of how one makes and designs a government to make laws, how that government works and just who gets which powers.  Thus it is a system of rules agreed upon by those who agree to abide by them and they state who they are in the Preamble.  Note that the Preamble is a statement of those individuals and what they agree to do and only invoke the Constitution as one means to do so at the very end of their statement.

To me this is a form of mechanical design theory (Wikipedia, YMMV):

In economics and game theory, mechanism design is the study of designing rules of a game or system to achieve a specific outcome, even though each agent may be self-interested. This is done by setting up a structure in which agents have an incentive to behave according to the rules. The resulting mechanism is then said to implement the desired outcome. The strength of such a result depends on the solution concept used in the rules. It is related to metagame analysis, which uses the techniques of game theory to develop rules for a game.

Thusly the Constitution can be viewed via metagame analysis, and is a set of metarules for making the rules of a game, which we call the federal government and how it works internally and externally under the Law of Nations conception of Nation State structure.

Nicholas Rosenkranz utilizes Formal Grammar of the English Language with the Subject, Verb, Object agreement system as its basis thus forming a systemic functional grammar basis analysis of how Constitutional law cases should be evaluated.  SFG is described thusly (Wikipedia, YMMV):

Systemic functional grammar (SFG) or systemic functional linguistics (SFL) is a model of grammar developed by Michael Halliday in the 1960s.[1] It is part of a broad social semiotic approach to language called systemic linguistics. The term "systemic" refers to the view of language as "a network of systems, or interrelated sets of options for making meaning";[2] The term "functional" indicates that the approach is concerned with the contextualized, practical uses to which language is put, as opposed to formal grammar, which focuses on compositional semantics, syntax and word classes such as nouns and verbs.

Systemic functional grammar is concerned primarily with the choices the grammar makes available to speakers and writers.[1] These choices relate speakers' and writers' intentions to the concrete forms of a language. Traditionally the "choices" are viewed in terms of either the content or the structure of the language used. In SFG, language is analysed in three different ways (strata): semantics, phonology, and lexicogrammar.[3] SFG presents a view of language in terms of both structure (grammar) and words (lexis). The term "lexicogrammar" describes this combined approach.

Notice that such an analysis can be done fully within a mechanical design theory approach as Formal Grammar for English, and analysis from same, are mechanism design systems.  In fact such a systemic analysis can yield structure beyond the mechanism, itself, and reveal much of the operation of the mechanism as designed via its grammatical composition.  The article does not utilize the logical notation system that the metarules can be boiled down to, but sticks to a more conversational approach that is more a reminder of simple sentence construction classes than of a Law Review article (although it is gloriously footnoted throughout).  Thus the objective of the actor is to present a highly coherent presentation of grammar as applied to the Constitution via the activity of presentation.

This analysis is one of the most compelling of the structural analysis reviews of the Constitution that I have run across as it gives an inherently logic-based review of the Constitution via its grammar and syntax.  Thus a key change in judicial review that started with the Progressive Era in full swing was the movement away from the Supreme Court to say who violated the Constitution and when they did so.  This shift from actors taking action at a discrete time starts with utilizing imprecise language for the basis of Supreme Court judicial reviews and even creates a blurring of the lines of who and when the Constitution to the point that statutes are seen as unconstitutional, not the actors who created such actions.  As all actions are taken by an entity, for such an action to be unconstitutional, then the entity that is doing that is in violation of the Constitution by the enumerated and limited powers it defines.  There are only three actors in the federal government:  Congress (the Legislative Branch), the President (the Executive Branch) and the Supreme Court (the Judicial Branch).  There are unconstitutional actions outside the federal government (the various limitations on the States), but for simplicity the systemic approach is used on the federal government and, once learned, then can be applied to all levels of Constitutional cases and law.

Modern Supreme Courts have moved from identifying actors, or who violates the Constitution, as a means to not get involved in political fights, by and large.  That means the imprecision of their rulings can and do create confusion about just what is and is not Constitutional and on what basis.  This means that proceedings that should be questioning a law's Constitutionality may be addressed to the wrong actor by plaintiffs, and the Supreme Court has allowed such proceedings which further confuse the issue of who violates the Constitution and when. 

Thus, in something like the Raich case of medical marijuana in California, the defense team argued that the violation of the Commerce Clause was done by the Executive Branch.  The Commerce Clause has a particular actor attached to it and that is Congress, thus any violation of the Commerce Clause in its extent of reach is not one of the Executive but the Legislative branch of government.  By attempting a Due Process procedure case, they did not bring a Congressional power over-reach case.  The difference is that in the Executive a singular action on a Constitutional law is the violation at one, singular time while in the Congressional instance the entire law is in violation from the moment it was passed.  The Executive, when acting within all other Constitutional constraints cannot be the target of a Commerce Clause case: only the Legislative branch and Congress by name, have the power to utilize the Commerce Clause and direct others in how to execute it.

In trying to blame the Executive on over-reach and admitting that Congress had the power to regulate interstate commerce, the case against intrusion into intrastate commerce was not made as that would be argued as an over-reach of Congressional (not Executive) power and a direct violation of the Tenth Amendment.  By making the procedure an enforcement case, the Raich case was not doomed to failure, but was doomed to see its Executive part of the case fail as they did not address the power being used at the direction of its holder, which was and is Congress.  Not only did the Raich team make scant use of this argument, the Supreme Court only addresses it in a single footnote which, Mr. Rosenkranz rightly observes, should have been the opening statement of a judgement as it contained the subject, the who, of the power and the extent of that power as written in the Constitution.

In looking at the Depression era case of Wickard v. Filburn, the farmer producing wheat to for private purposes, which was upheld mainly due to the District Court not addressing the actual case and, instead, writing much about how the Agriculture Act had been campaigned for by Congress.  Later United States v. Lopez would put some restrictions on the intrusion of federal interstate commerce as the prior case set no real limits on it and could be seen as an open door to federal intrusion into State sovereignty.  In the Lopez and Raich case the government deployed the rubric of intrastate commerce if it 'significantly impacted' interstate commerce, and this has never been properly addressed as a concept in direct violation of the limited powers of Congress pertaining only to interstate commerce.  Under a precise grammatical review would there be any question of this rubric even being valid?  The power grant is exclusively for interstate commerce and the outcome of it is not given to the federal government to decide: there is to be equality of law and application between the States for commerce and the power is silent, thus not granting any power, on commerce within a State.  The sovereign power grant for one aspect is singular and complete, outside of that there is nothing: no grant, no provision, no support whatsoever.

This view of the active voice parts of the Constitution with definite actors is a vital review of the concept and the subject, as it allows much of the imprecise, ill-worded and ill-conceived rulings to be examined as to their actual following of the logic of the grammatical construction of the Constitution itself.  Those constructions have meaning as they are sovereign power grants by the people to their government for the Nation of the United States of America.  When Courts, professional lawyers and professors of law attempt to cloud the language, to invite imprecise words and concepts into their everyday work with the Constitution we all begin to suffer as the meaning of the words and their sentences can be read clearly and easily by a layman.  Congress used to cite their powers in the bills they authorized so there would be no question of the power grant, its source and its extent.  By muddying that as a concept and no longer even bothering to include it, Bills and then Acts become unclear as to their power, their extent and the content of what is being done with that power.

I very much look forward to The Objects of the Constitution and the passive voice sections and Amendments to see where this analysis goes in those realms.

02 June 2011

Cross-Posted from 1389blog: Bruce Bawer & Hege Storhaug 7PM June 8, 2011 Ottawa

The following is cross-posted as a courtesy to 1389blog.

Bruce Bawer & Hege Storhaug:
The Problems of Immigration in Europe

Wed. June 8, 2011, 7 PM
Library and Archives Canada
395 Wellington

Admission: $20 (includes HST), $10 for students/ seniors

Tickets available at:
Compact Music, 785 1/2 Bank Street, 190 Bank Street
Ottawa Festivals, 47 William Street
Collected Works, 1242 Wellington
Tickets will also be available at the door.

Tickets are also available on line (click here)

Please join us for an amazing evening when Bruce Bawer returns to Ottawa with his colleague Hege Storhaug to speak on the problems of immigration in Europe.

Bruce Bawer: Surrender: Appeasing Islam, Sacrificing Freedom

Bruce Bawer

Bruce Bawer is an internationally-acclaimed author, whose recent book is “Surrender: Appeasing Islam, Sacrificing Freedom“, and here are some short reviews:

“Bruce Bawer has yet again written an excellent book….I truly hope that it will serve as an eye-opener for everyone.” - Geert Wilders

“Written with an urgency and clarity that makes it hard to stop reading and re-reading it. It should be studied by all who wish to understand the forces at work in the West that make an Islamic ‘House of Peace’ a brewing nightmare.” - Ayaan Hirsi Ali

Hege Storhaug: But the Greatest of These Is Freedom

Hege Storhaug

Hege Storhaug is the information director of Human Rights Service in Norway and the author of several books on immigration and integration, forced marriage, women in Pakistan, and related subjects.

Bruce has translated Hege’s new book, “But the Greatest of These Is Freedom: The Consequences of Immigration in Europe.” — the authorized English translation of the explosive Norwegian bestseller about the consequences of immigration in Europe.

From Norwegian and Danish reviews:

“A necessary and brave book.”
Henrik Gade Jensen, JYLLANDS-POSTEN

“A sharp and necessary book, one of the most important of the season.”
Lars Saabye Christensen

“A painful but necessary book to read. It is the most important contribution ever to the Norwegian immigration and integration debate….It should be obligatory reading for everyone who works with foreigners in Norway.”
Tore Andreas Larsen, FREMSKRITT

“If Hege Storhaug’s revelations about how our country and other Western societies are being attacked by Islamic fundamentalists…are not taken seriously by the powerful politicians, we will, within a few years, see a different, illiberal European in which a mentality out of the Middle Ages will wield absolute power…..One of the most important opinion books that have come along in recent years.”
Oddbjørn Solstad, DRAMMENS TIDENDE

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