Category Archives: Constitutional Law

Britain’s MI5 chief warns al Qaeda in Syria planning mass attacks on West – Yahoo News

This is a no-brainer. There is no doubt Islamists are seeking the death of innocents in the West. We are all infidels…

The article urges greater ability for security agencies to access social media to root out Islamists plotting terror… I agree with this, in principle.

LONDON (Reuters) – Al Qaeda militants in Syria are plotting attacks to inflict mass casualties in the West, possibly against transport systems or “iconic targets”, the head of Britain’s MI5 Security Service said on Thursday.

via Britain’s MI5 chief warns al Qaeda in Syria planning mass attacks on West – Yahoo News.

Obama Imposed 75,000 Pages of New Regulations in 2014

Readers of my novel know how this damages America…

Just in the last few weeks, the Obama administration has proposed or imposed over 1,200 new regulations on the American people that will add even more to the already crushing $2 trillion per year cost burden of the federal regulatory machine.

via Obama Imposed 75,000 Pages of New Regulations in 2014.

EDITORIAL: Drones for the military – Washington Times

Read carefully, Obama (through Holder) only said he would not target a non-combatant… leaving the door wide open for Barry to kill Americans he deems combatants…

I hate it when a normally intelligent operation like the Washington Times blows it thusly:

It took a 13-hour filibuster last month for Sen. Rand Paul to extract a reluctant acknowledgment from the Justice Department that the president may not target U.S. citizens on U.S. soil.

via EDITORIAL: Drones for the military – Washington Times.

School: Americans Don’t Have Right to Bear Arms | FOX News & Commentary: Todd Starnes

This is the most stunning thing I have seen so far from liberals…

On Monday his social studies teacher gave students a worksheet titled, ‘The Second Amendment Today.’

“The courts have consistently determined that the Second Amendment does not ensure each individual the right to bear arms,” the worksheet states. “The courts have never found a law regulating the private ownership of weapons unconstitutional.

The worksheet, published by Instructional Fair, goes on to say that the Second Amendment is not incorporated against the states.

“This means that the rights of this amendment are not extended to the individual citizens of the states,” the worksheet reads. “So a person has no right to complain about a Second Amendment violation by state laws.”

via School: Americans Don’t Have Right to Bear Arms | FOX News & Commentary: Todd Starnes.

Hillsdale College – Imprimis

This is a great piece. Those of you who have read my novel know that the concept express here is my central thesis.

This is the President of Hillsdale College:

One obvious theme to strike is that people didn’t vote for, and don’t support, higher taxes and bigger government. But conservative statesmen have to get better. Calvin Coolidge once said that great statesmen are “ambassadors of providence, sent to reveal to us our unknown selves.” What that means is that great statesmen are not going to be around very often. I’d say that the standard of conservative statesmanship today is improving, but too few prominent conservatives are skillful at explaining the problem of the modern bureaucratic state. This form of government proceeds by rules, and rules upon rules, and compliance with those rules becomes a key activity of the entire nation. That results in bureaucracy, and in the inefficiencies of bureaucracy. Constitutional government, on the other hand, proceeds by clearly stated laws.

Not grasping this is an important failure of conservative statesmen today. During the first presidential debate I stood up and slapped my leg, and my wife said to sit down and be quiet, when Mitt Romney said that business and prosperity require regulation. What he should have said instead was that of course we require laws in order to be productive and to live safely, but that laws are different than regulations. Laws are passed by elected (and thus accountable) representatives, they cover everybody equally, and we can all participate in their enforcement because they are easy to understand. Not one of those three things is true of the regulations imposed by independent boards such as those established under Obamacare and Dodd-Frank. Romney was not able to make that distinction, and yet that distinction is at the heart of the choice Americans must make about how they will be governed.

via Hillsdale College – Imprimis.

Constitutiuonal ban on affirmative action is unconstitutional?

In 2006 Michigan residents amended the Michigan Constitution to prohibit racial preferences in the admissions process to universities.

So here we have, again, a judge deciding that a lawfully created amendment to a state constitution is unconstitutional.

Get that?

The University of Michigan may be able to consider race in its admissions process again following an appeals court ruling Thursday.

via Appeals court strikes down ban on affirmative action in university admissions.

This is a pretty mighty attack on my article at American Thinker about the Obamacare decision. Lester Jackson refers to me 14 times…

Here’s a pull quote:

Instead of responding to this, attorney Cameron Reddy, an apologist for apologist Franck, further illustrates lawyerly sophistry. In the words of early judicial review critic John Gibson, he “take[s] for grantedthe very thing to be proved,” baldly denying the contradiction is what it is.

First, Reddy changes the subject. Instead of answering the 2012 joint dissent, he turns to what Justice Story wrote — in 1833 — to justify Roberts’ assertion that those who don’t like ObamaCare should rely on elections. In essence, Reddy appeals to the authority of a long-dead justice to justify the impropriety of a very much alive chief justice.

http://www.enterstageright.com/archive/articles/1012/1012justicesangels.htm

Query how the analysis of the preeminent constitutional scholar of the 19th century (Joseph Story) is inapposite to the analysis of current constitutional adjudication.

This will be fun.

By Force of Patriots; 8/10 stars book review, author: Cameron Reddy – YouTube

I’ll take 8/10 stars from a “Mountain Man’s” review of my book!

By Force of Patriots, will appeal more to the intellectual or female reader, it is over 500 pages long and contains quite a bit of romance between the constitutional law professor and the ex-wife of the leader of the patriot movement. It also contains a villain that is the overzealous radical that wishes to take over the patriot organization. Therefore I will give it 8/10 stars, for me it is a little bit heavy on the female side of romantic description for me. But then again I am a guy so what do you expect.

By Force of Patriots; book review, author: Cameron Reddy – YouTube.

Articles: Why They Hate Us

An interesting piece today at American Thinker asks why they hate us. Bruce Walker does a pretty good job explaining, but it is in combination with two adroit comments that the full picture appears.

Mr. Walker basically posits that they hate us because we are good. And in that he is right. However, one comment (“From Missouri”) noted that what separates us is our adherence to Judeo-Christian teachings, and all those who hate us (including most Democrats), detest same.

So far so good. But, then “Shadow” noted that:

They fear Western society will open the eyes of the oppressed in their society and cause a revolt against the tyrants.

True again!

So, to combine the thoughts, I commented:

Shadow, I think you are on to it, and your post, taken with the comment “From Missouri,” fills in an important piece of the puzzle. They hate us because we are good, as Mr. Walker concludes, but we are good because our foundation is in the Bible. And that is what separates us and guides us in creating the economic, political, and legal systems the Muslims hate.

via Articles: Why They Hate Us.

Muslims Try to Rewrite Themselves Into America’s History – Godfather Politics

Rarely would I quote a comment to an article. This is an exception. While the article is good and I recommend it to all, it’s the comment that is most impressive:

The first war ever fought by a nascent America was against the Barbary Pirates of Tripoli. They were Muslims who attacked the ships of many nations and either beheaded or enslaved their passengers and crew, holding them for ransom. The newly formed Marines, wearing a wide leather collar to prevent beheading, were deployed to fight them… and they are called ”Leathernecks” to this day. It’s also the reason the scimitar-like curved sword which commemorates the battle is part of their dress uniform. So… indeed…. in the past Islam had some impact on our history….. but it was as our enemy.

via Muslims Try to Rewrite Themselves Into America’s History – Godfather Politics.

UPDATE:

This is turning out to be an interesting thread. Another author, Ted R. Weiland, made a post to the above-article that I found very interesting. He said, in essence, that our First Amendment allows to exist in America religions that are antithetical to Christianity. Of course, Judaism is such, though it does not require the destruction of Christianity. The problem with Islam is that it does not allow other religions to exist.

So, I made the following comment:

Mr. Weiland, interesting thesis. I just read a portion of chapter 11 and I find it very illuminating. I’m not so concerned with religions that deny Christ as much as I am with “religions” that seek to deny my life and the existence of our republic! I think we have to come to the sense that such is not a religion at all, but is instead something as abhorrent as Nazism, which also sought the extermination of those antithetical to its aims. We cannot turn something intended for self-preservation into a tool used by others for our immolation, or self-immolation, as it were.

Latest reveiw on Amazon nails my intent with By Force Of Patriots

woah. it rocks. packed with information and action.

That’s the headline from a review by a reader in Texas. He went on to say:

this book is not a quick read, nor for the faint of heart. the author brings up everything that either pissing you off, or making you wonder what the hell is going on in this country. mos def not PC. set in the coming years after the “next four” obama years, it paints a picture of americans who were too sleepy to understand the issues, while diving deep into those issues, and still has some space for action scenes. if you wondered what is getting people excited, this well written book has got it’s finger on the pulse of the real america. i recommend!

That pretty much sums up my intent and great effort in writing the story.

So, I made the following comment after his review:

Thank you kraemertwinz, your review has accurately captured my intent and my efforts. I did not delve into Marbury v. Madison, the District of Columbia v. Heller, Wickard v. Filburn, Roe v. Wade, Democracy and Distrust, Liberty and Tyranny, and various inane federal regulations with the hope that people would call this story an easy read.

Instead, what I tried to do is build an exciting story of human struggle around the very constitutional issues tearing at our republic. And in that, I tried to put my finger, as you say, on the pulse of those Americans who feel somewhat betrayed by a country they see slipping away.

I also note with interest a growing number of readers from Texas…

The Civil War of 2016… Coming to a town near you?

Obviously, with my title, By Force Of Patriots, I’ve seen the possibility of this coming for some time…

From the Washington Times:

Imagine Tea Party extremists seizing control of a South Carolina town and the Army being sent in to crush the rebellion. This farcical vision is now part of the discussion in professional military circles. 

Need I say more?

How it happens in my novel is not so “far-fetched” as to be dismissed…

 

My latest article appearing at American Thinker

Update to the Update. I have no idea why my article disappeared from about 10:30am to 3:00pm. But, it went back on line and all was (is) well. I never got an answer as to why Harry Reid’s name appears in the title…

American Thinker article.

Update: Apparently I jumped the gun on this. My article did appear on their site, as I took a screen shot of it and even read it on their pages. However, it appears that Google had dug it from the AT servers and it wasn’t yet being “published” for public consumption.

So, I have to wait. And in the mean time, I”ll hopefully figure out why the title to the article had Harry Reid’s name in it.

Why did Chief Justice Roberts miss this quote from Joseph Story in NFIB v. Sebelius?

In 1833, Joseph Story wrote in in his Commentaries on the Constitution:

Yet cases may readily be imagined, in which a tax may be laid, or a treaty made, upon motives and grounds wholly beside the intention of the constitution. The remedy, however, in such cases is solely by an appeal to the people at the elections; or by the salutary power of amendment, provided in the constitution itself.

Joseph Story is considered on of, if not the preeminent constitutional law scholar of the 19th Century if not of all time.

The Chief Justice Roberts quotes Story in two other places in his Obamacare ruling, but never for the position that he needed most!

It leads me to believe that he simply missed it. And that is evidence that he cobbled together his opinion at the last minute.

Should we revolt?

I’ve been thinking about folks who seem so easily disturbed by frank talk that they come to the mistaken conclusion that a novel that depicts a revolution actually endorses or promotes that revolution. I’m stunned by this inability do distinguish fact from fiction. On the other hand, perhaps this speaks to how real the story feels… Hmm…

In any event, I reprint below a snippet from a scene appearing in chapter 27 (out of 40). It illuminates my mindset. Res ipsa loquitur (the thing speaks for itself).

For over two hundred years American law had establish and maintained order in this highly complex society… [name omitted so as not to spoil the plot] thought back to the initial class discussions on property law and how the concept of private property ordered society. In the class on contracts he/she could see how every transaction in the business world, and even daily events, like going to the grocery store, are governed by law. The law of torts seemed to be all about legally enforcing the assertion, “You can’t do that to me, I’ve got my rights!” And even that had grown out of a regard for the well-being and property rights of others.

 

We had accomplished so much as a nation…

 
Despite its misuse by both sides of the political isle, [name omitted] reminded him/herself, the law still defined what it meant to be an American. It structured, governed, and guided American society as no where else in the world. The United States of America had become the embodiment of law in practice. Incompetence, malfeasance, envy, and hate notwithstanding, American law had become the world’s finest expression of justice, of fairness, and of man’s benevolent treatment of fellow man.*

* Note: the above may differ slightly, but not in any material respect, from the published scene as this comes from my writing software and changes were made in the production process.

 

United Nations treaty to affect gun rights in America?

Surprise Surprise,

This from Fox and recently headlined on Drudge:

A treaty being hammered out this month at the United Nations — with Iran playing a key role — could expose the records of America’s gun owners to foreign governments — and, critics warn, eventually put the Second Amendment on global trial. Read more: http://www.foxnews.com/world/2012/07/11/un-arms-treaty-could-put-us-gun-owners-in-foreign-sights-say-critics/#ixzz20KyB4wAp

Well, I was a bit ahead of this. The story in my novel tracks this. Here is an excerpt:

Big Sky News
Ninth Circuit rejects Heller
By Tom Bridger, BSN staff writer.

PASADENA, CA – It was a cool summer night in Seattle, Washington, when Frederick Jones returned home to find his wife on the living room couch, naked from the waist down, throat slashed, and oozing life. With her last breaths, Melinda Jones pointed to the bedroom of their 14 year old daughter.

Sounds coming from the bedroom made Fred Jones’s blood turn to ice. His daughter, Melissa, was gurgling as though cries for help were bubbling through a severed throat; her bed was creaking and the headboard was knocking into the wall in a quickly repetitive cycle. Fred Jones raced down the hall and recovered a .357 Magnum revolver hidden in a utility closet just outside his daughter’s room. He turned the knob on her bedroom door and rushed in.

A year later, Frederick Jones was convicted and sentenced to ten years in prison for killing Abdul Saeed with an illegal gun. Mr. Jones six-shot revolver violated a Washington law that prohibits guns from holding more than four cartridges or firing a bullet farther than 75 yards.

Mr. Jones’s appeal was upheld and today, in Jones v. Bouchard, the Court of Appeals for the Ninth Circuit ruled, 10-1, en banc, for the State of Washington, agreeing that its “police powers” allowed its legislature to craft reasonable regulations on gun ownership to curb rampant gun violence.

Jones had argued that the 75 yard requirement would render the gun ineffective for self defense. He further argued that limiting guns to four or more cartridges effectively banned virtually every self-defense handgun in existence.

The Supreme Court’s 2008 ruling in District of Columbia v. Heller, had found that a ban on handgun possession in the home, as well as storage requirements that rendered rifles and shotguns inoperable for immediate self-defense, violated the Second Amendment’s guarantee that the right to keep and bear arms shall not be infringed. In the case at bar, Jones argued, the facts were essentially identical to Heller; in both, the laws effectively banned armed self defense.

Two curious footnotes to the majority opinion appear to be aimed at providing additional grounds to support the ruling if, as is expected, the case is appealed to the Supreme Court. In the first, the Ninth Circuit indicated that Heller incorrectly read the history of the Second Amendment’s drafting, and that Justice Stevens “got it right” when he concluded there, in a dissenting opinion, that the founding fathers intended to protect only the military use of personal firearms. In the second footnote, the Court found it “persuasive that the United Nations Department of Disarmament Affairs has proposed exactly this type of limitation on gun ownership.”

The attorney for Appellant Jones, Frank Layton Jr., confirmed that his client would appeal. He said that, “The Supreme Court will see this scheme for what it is: an effective ban on self defense, the most fundamental right inherent in the Constitution.”
Wilber Terrapin, attorney for Washington state, said, “I think the court was impressed with Justice Stevens’s well-reasoned dissent in Heller, and further agreed that it’s wholly proper to utilize the opinions of international bodies to guide interpretation of the Constitution.”

Second Amendment scholar and firearms expert, Professor of Law David Couples, when reached at his office by telephone, noted that, “Any gun useful for self defense will of necessity fire a bullet much farther than 75 yards.” He agreed that states have a right, according to their police powers, to impose reasonable regulations on firearms. “But what’s reasonable,” he asked, “about requiring the use of something that doesn’t even exist, or if it did, wouldn’t work?” When asked about the court looking to the United Nations to interpret what our founding fathers intended when they wrote the Bill of Rights, Couples quipped, “it’s worthy of the mad hatter.”

To Rule Or Not To Rule, That Is The Question

This article originally appeared at American Thinker on July 7, 2012.

The airwaves and blogs are atwitter with comments about how Justice Roberts has abandoned the conservative ship and set sail to the “left” side of the vast oceans of judicial statesmanship.  I’ve heard some pretty venomous stuff coming from my conservative brethren, and it pains me — not only because I think we should stay away from such hostilities (not that I’ve always been serene, mind you), but more importantly because I believe they are wrong.

Imagine John Roberts had written something like this:

Yet cases may readily be imagined, in which a tax may be laid … upon motives and grounds wholly beside the intention of the constitution.  The remedy, however, in such case is solely by an appeal to the people at the elections;  or by the salutary power of amendment, provided in the constitution itself.

Folks would still be pretty upset.  Right?  After all, that’s pretty much what he said.

Would everyone still call him an activist judge?  A liberal in conservative clothing?

Probably.

But would you be interested in knowing who penned those words?  And when?

Might you want to know if the author was the most influential constitutional law scholar of the 19th century?  What if he was a man considered to be on the “strong federal” government side of the big government versus states’ rights political ledger?

Would you be surprised to know the man is Joseph Story, and the text, appearing here with very slight editing (I took out the phrase “or a treaty made,” and the corresponding “s” that made “case” plural), is in Section 374 of his seminal Commentaries on the Constitution (1833)?

The point I’m making here is that Justice Roberts penned a seriously courageous and brilliantly conservative opinion.

Yell at me and then, please, take a deep breath and hear me out.

That his words are courageous is obvious.  No dummy, he.  We all know that he knew that we would all scream like a stuck banshee.

But the other point — that his opinion is brilliantly conservative — ay, there is the rub!  And I’m going to get a few slings and arrows for this…but here goes.

The Founding Fathers envisioned three co-equal branches of the federal government.  Indeed, until the Supreme Court-decided Marbury v. Madison, 5 U.S. 137 (1803), the Supreme Court had never taken for itself the power to boss around the other co-equal branches of government.  Each branch was given specific powers we all know so well.  The legislative to write law.  The executive to enforce law.  And the judicial to interpret the law.  Easy.

The Founding Fathers knew that problems would abound if one branch tried to do two jobs.  Imagine the mischief if, say, the legislative was given the power to enforce the law, or the executive the power to write the law.  Aside from there being no “checks and balances” with such a system, the conflict of interest would be so great as to enable a tyranny.

Oh, wait.  That is what’s happening!  But that is another article.

Thus, the Founding Fathers gave law-writing ability to the only branch of government that was designed to be representative of the people.  And note the pains our fathers went to — representation by state and by population through two houses with intricate rules for passage of laws in, and between, each house.

And we might ask: why was law-writing ability withheld from the judicial and executive branches?  Well, the short answer is that neither was designed to be representative.  Neither was designed to give due consideration to all the nation.  The executive would clearly “represent” most closely the party that won the election, and the judges in the federal judiciary would “represent” most closely the executive that put them on the bench.

Only the legislative was trusted with law-making ability.

And here is where we run into problems.  What happens when the legislative writes a law that the judiciary thinks is beyond its powers in the Constitution?

If the judges like it, but find for it little or no support in the Constitution, they are, if unrestrained, likely to “create” a right– a constitutional right — and say no one may violate it.  Thus we have Roe v. Wade, 410 U.S. 113 (1973) (women have a right to privacy in their bodies that no state may disregard with an anti-abortion law), the high-water mark, or at least the most famous case, of judicial activism.

Yet, can anyone find in the text of the Constitution a right to privacy in one’s body?  Of course you can’t, because it’s not there.  Roe simply created a right out of whole cloth.  Now, I’m not saying the policy is or is not sound, ethical, just, or whatever.  What I’m saying is that divining such a right from the text of the Constitution is to take on the job of the legislative branch of government.  It’s to wade into a social/political issue best left to the one body of government that is representative (I won’t get into, here, the fact that the power to grant such a right does not inhere in the Constitution and therefore is reserved to the states).

Moreover, the risks in wading into social/political issues such as abortion are outweighed by the benefits.  The court’s prestige, its image as a bastion of fairness, is severely weakened, society is fractured, law is set in stone for everyone, and one more thing.  And this will get us back to Justice Roberts.

This one more thing was brilliantly discussed by constitutional law scholar, professor, and dean of Stanford Law School John Hart Ely, in his seminal work, Democracy & Distrust, A Theory of Judicial Review.

Dean Ely explained a deeply disturbing aspect of judicial activism.  He asked, how are nine old and crotchety (my terms, not his) justices to even know the direction of the “winds of change” in society, and if they know them, how are they to ensure that they don’t contribute to them too much or too little?

Dean Ely advised justices to look at the process by which a particular law came into being.  Assuming the law is not a violation of the text of the Constitution, Ely would have the court examine that business of the House “deeming” the ObamaCare bill to have passed.  Ely would have likely been inquisitive of Nancy Pelosi’s comment that we must pass the bill to see what is in it.  Such breakdowns in the representative process would have certainly merited very close scrutiny.

Unfortunately, such a ruling would have still left everyone upset.  Regrettably, we have come to the point where the nation wanted a verdict on the merits of the law.

Professor Matthew J. Franck has incisively noted this aspect of American thought in Against the Imperial Judiciary; The Supreme Court vs. the Sovereignty of the People:

What is alarming is the degree to which ordinary citizens seem to expect that the Court will resolve the nation’s deepest political difficulties in a statesmanlike fashion;  citizens are pleased or displeased at the outcomes of hotly contested “constitutional” issues, but please or not they seem convinced that the Court is the right place to have them resolved. Id. p. 30.

And that brings us to John Roberts.

Just as Joseph Story advised in 1833, Justice Roberts eschewed the widespread American desire to have a definitive ruling on the merits.  He avoided a final resolution for good reason.

Imagine what America’s airwaves would have been filled with had he sided with the conservatives.  Likely, we would have “occupy” riots in every major city, at least.  The media (which is decidedly leftist) would be excoriating the Court…

At best, the prestige of the Court would be severely diminished for years to come.

I believe Justice Roberts knew all this, changed course from his initial desire to strike down the law in toto, and decided to take a process-based approach.

Importantly, and thankfully, he solidified the limits on the federal government to regulate through the Commerce Clause.  That was good and proper.  Even a process-based justice is allowed to look at the text of the Constitution and ask, has Congress done something that the text says it cannot?  Congress tried and was rebuffed.

And thusly did Roberts preserve the standing of the court in the minds of most Americans.  My hope is that this action will pay dividends down the road, when a case such as District of Columbia v. Heller (affirming that the 2nd Amendment applies to individuals) is re-examined by a more hostile court, as will certainly happen if President Obama is re-elected.

And just as importantly, Justice Roberts kept the Court from wading too deeply into this social/political morass that is ObamaCare.  He made clear the appropriate remedy, just as Joseph Story did 179 years ago.