The Constitution as Contract

Here is something for all those geniuses that insist the Constitution is a living document, and the relevance of certain provisions changes with time...
If the Constitution is anything, it is a contract. The Constitution is a pact, charter, or contract, between, I believe, the states, representing the people, and the new federal government.

Contract law is very common sense. While contracts were interpreted more strictly in earlier times, and extrinsic evidence is easier to introduce to help clarify a contract, one of the goals of contractual interpretation is to interpret a contract as the parties entering into that contract intended.

It would not be fair for A to make a contract with B and change the rules mid-game because A's circumstances have changed. A and B are bound by the contract. So it should be with the Constitution. Some states got together, wrote articles for their common government, which were duly approved, and that government took effect. Later, more states petitioned for full membership in this union. The union has changed significantly since the first states "formed the club." But the rules remain the same, except for properly encated amendments.

We cannot be a nation of laws if individuals with black robes can decide what the Constitution "means today," because that changes the meaning of the Constitution outside its enumerated procedures for amendment. The constant flux of meaning would in time destroy all meaning of the Constitution and we will descend into a not a nation of laws, but a nation of men.

Think Free, Live Free
C.A.G.

Brazil Rejects Gun Ban

In a recent national referendum, Brazil's citizens have soundly rejected a harsh gun ban that would have restricted possession of guns to a select few (read: rich) people.
A Reuters article cites the margin of victory for the pro-freedom side at 64% to 36%! All this in a country with the world's highest number of murders in the world.
It is true that Brazil suffers from enormous violence problems. If you have the most murders in the world, its a safe bet yours is not a safe country. But 64% of Brazilians recognize that banning guns from common people will not make the gangs and slums go away. It would only assure that the denizens of the slums and the gangs would be armed, but everyone else would not, allowing criminals to prey on those then disarmed.
This is truly a victory for freedom in the world, because of the democratic nature of this exercise and the fact that a continent's largest country stood up for freedom.

Think Free, Live Free
C.A.G.

Would you like to know more?
Reuters Article
Instapundit

Cause and Effect

Why does liberalism fail to advance quality policy intiatives again and again?

Why do liberal ideas fail to solve real world problems?

Why did the "Great Society," Communism, and Socialism fail to deliver on their promises?

The failure to understand cause and effect. Take Communism for example. Will the destruction of the "state" and common ownership of means of production motivate individuals (the proletariat) to work hard and find value on their labor (as Marx said they would)? No. Hard work (labor) results in ownership of means of production. Marx thought common ownership of production would inspire, instead it resulted in backwords economies still trying to recover from the depredations of Communism.

Next consider gun control. It is common knowledge in liberal enclaves like Harvard and Berkely that murder wasn't invented until guns were, so if guns are outlawed, crime will obviously decrease. News flash: crime happens whether there are guns are not. Britain's noble and proggresive gun control scheme is working quite nicely, since their violent crime is on the rise (while the United States' is on the decline).

Next: poverty and social programs. Are people poor because they refuse to work or because the Government isn't helping them? After many, many years of Great Society programs helping lift poor people out of poverty, we have discovered that...it didn't really help that much. America provides the opportunities for people to succeed...people are (most of the time) poor because of personal choices. No amount of government handouts will change that. The EFFECT of government handouts is not lifting people out of poverty, but to condition them to not achieve because others will take care of them.

The reason liberals can't seem to get this whole cause and effect thing right? I'm not really sure. Leftists love to tell other people how to act, how to better themselves. This could just spill over into a belief that other people will act how a leftist thinks they should act.

Think Free, Live Free
C.A.G.

Militia

With a big round of federal and National Guard military bases to be closed, some Air National Guard components will lose their entire flight capacity. The commanders of these Air National Guards and the governors of their states are none to pleased. Some have sued the federal government to stop them from closing the bases. They have invoked the militia clauses of the Constitution.

Article 1, Section 8 says that Congress can "provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions." Congress may also "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."

If you read the first provision literally, the "Militia" in the Constitution cannot be forced by Congress to deploy outside the United States. (The reluctance to leave the United States caused problems in the War of 1812). The Militia can only be used to suppress insurrections and repel invasions, not say, invade Iraq.

The second provision says that the authority of training the Militia is left to the states. I'm not quite sure what a court would say about the situation, but the National Guard is federally trained (not all training is federal but a lot is), inference then being that it is not the Constitutional Militia, which is trained by the states.

These points lead to the conclusion that: 1. the National Guard is not the "Militia," and 2. if it is, Congress can organize, arm, and discipline it, so the states have no way to stop the federal Government from closing the bases by invoking the militia clauses.

I think the National Guard is not the Militia. It is a "federal/select militia," not a true militia. The United States Code still says the unorganized militia is every able bodied man within certain ages not in the "organized militia," or National Guard. (10 U.S.C. Section 311). The "Constitutional Militia" cannot be sent overseas by Congress. Obviously, the National Guard is sent overseas. Since the National Guard is an "organized militia" (1o U.S.C. Section 311), it is a select militia controlled by the federal government, not the Constitutional Militia the founders envisioned. The governors suing the feds will lose.

Think Free, Live Free
C.A.G.

Nominee Roberts on the 2nd Amendment

Per a tip off and post on Of Arms and the Law, Judge Roberts got asked about the 2nd Amendment in recent Senate hearings on his nomination. He was questioned by Senator Feingold, who stated in his opinion the 2nd Amendment protected an individual right. I wonder if Feingold voted for or against the Assault Weapons Ban? Feingold asked Roberts about the issue, and even brought up the Miller case from 1939, the only time the Supreme Court addressed the issue in the modern era. Feingold indicated that Miller held the 2nd Amendment as a collective right, but Roberts, being quite knowledgeable about the case apparently, said that Miller sidestepped the issue of collective v. individual rights. This is in fact what happened. Roberts pointed out the argument was made in Miller for a collective right and the court pretty much ignored it. This reflects an honest reading of the Miller opinion. I am rather impressed with Robert's knowledge of this obscure jurisprudence and some of his comments indicate a marked understanding of the issue, and maybe even sympathies toward the individual rights side....
text of hearing available here: transcript.

C.A.G.

Back from hiatus

A couple comments on the New Orleans disaster:

Everyone note the blame game going on. Local government blames the Feds, Feds blame the local government, etc. Not to igmore the obvious tragedy, but disaster relief is not a primarily Federal job. Last year after the hurricanes, Florida officials took care of on scene stuff and the Feds brought in money and some trailers for people to live in. Federal troops weren't required to patrol the streets and restore order. Everyone should be leery of making a habit out of deploying Federal troops inside the United States to "maintain order" because U.S. troops may not act as the police inside our borders.
Primary responsibility for disaster response lies with state and local officials, so perhaps we should ask the mayor of New Orleans why the city's school buses are under water and didn't lift thousands of people out of town?

Noticed a lot of blame being placed on the Homeland Security Department. Is disaster relief in that department's mission? HHHMMM.

C.A.G.

Communism

It is hard to say what the biggest failing on Marxism is, the gross misinterpretation of human nature, or the unrealistic appraisal of history and future.
Private property, performance based rewards, freedom to be different, these are all essential to a prosperous society. Any post-agricultural civilization of small size needs them.
It is sad that so many smart people fall for the song of socialism or communism. Many of them make the mistake of assuming that people are self motivated like they are. Soviet doctrine strived to produce the "new" man, better then before. The problem is, you can program human beings all you want, using coercion, threats, etc., but you are simply going to have to re-coerce the next generation.
One of Marx's biggest errors in my opinion was the unrealistic assumption that the state would pass away. In all of the countries that have attempted to create a communist society, the state has yet to pass away and the utopia has not arrived. The "State" is a self sustaining creature, it will not pass away, no matter what Marx has to say about it.

Think Free, Live Free
C.A.G.