March 26, 2007

Constitutional Relativity

A grad-school thesis has once again made its way into the 2008 Presidential race. Previously, a 40-year-old treatise by Hillary Clinton lauding a radical leftist caused a few moments of consternation for her campaign, mostly because her husband's administration kept it suppressed until now. This time, Barack Obama may have to answer some questions regarding his views from law school about the elasticity of the Constitution, views which are less than two decades old:

Is Barack Obama a space cadet? The man who would become senator of Illinois and a top Democratic presidential contender was credited for editorial or research assistance in a page-one footnote of what may be the zaniest-titled article ever published by the Harvard Law Review: "The Curvature of Constitutional Space: What Lawyers Can Learn From Modern Physics," authored by noted legal scholar Laurence Tribe.

The 39-page densely argued treatise — think "The Paper Chase" meets "Star Trek" — argues that constitutional jurisprudence should be updated in a similar way that Einstein's theory of relativity replaced Newtonian mechanics, a view that would release judges from the original intent of the Founders of America. Published in 1989, with help of the much younger and politically greener Mr. Obama (a few others are also thanked in that footnote), the article is sprawling with references to cultural anthropologist Clifford Geertz and physicists Stephen Hawking and Werner Heisenberg.

In 1990 Mr. Obama became the first black president of the Harvard Law Review. The long-ago article could indicate his views on the Constitution, which, if he is elected, could come into play in such matters as his choice of nominees to the Supreme Court. ...

"Oy vey," said a professor of jurisprudence at Princeton University, Robert George. "Constitutional law is not that complicated. There's just no need to complexify this," he said, adding that if one makes such discussion so abstruse that only highly trained academic specialists — "let's call them legal physicists" — can understand, then ordinary citizens would feel that evaluating legal decisions is beyond their ability.

No, Obama is not a space cadet -- but in this case, that isn't a good thing. What Obama wanted to do in this treatise is to disconnect the text of the Constitution from its application [see update below]. This would mean that anyone applying the Constitution to a case would be free to do so based on whatever that judge felt the Constitution meant to him or her at that moment, the exact opposite of strict constructionism.

Obviously, this has a lot more relevance to the presidential campaign than Hillary's schoolgirl swooning over radical leftists. Obama would, as President, nominate justices to the federal bench, including appellate and Supreme Court openings. If he believes that Constitutional law can be approached in the same manner as Einsteinian physics, then he would appoint judges who have no problem twisting the Constitution for any purpose they see fit -- rather than force legislative matters back to Congress and the states where they belong.

It's amazing that people cannot understand the beauty of the Constitution. It means what it says, and it allows for amendments as the nations finds necessary as we consider policy. In that manner, the Constitution is a living document; the people can modify it through established processes. Instead, Obama and others treat it like a work of art, one that should never get modified in any manner but which only holds relative truth in the eye of the beholder.

Nonsense. It's law, and it should be treated as such. Einstein, Newton, the space-time continuum, and the rest of science-fiction nonsense have nothing to do with it. Anyone who believes it does should not be allowed to appoint the jurists who govern the legal system.

UPDATE: Several readers point out that Obama was a researcher on this project, not a primary author, so it's a little much to pin this on him personally. Others have pointed out that grad students don't get grad degrees by writing papers that tick off the faculty, a point that could also apply to Hillary's thesis. Still, I'd like to hear Obama's take on this paper -- whether he agrees with its conclusions and whether he would appoint jurists from this mold. It certainly has more relevance to his campaign than whether his father took him to a mosque at the age of eight.


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Comments (66)

Posted by stackja1945 [TypeKey Profile Page] | March 26, 2007 7:33 AM

Old TV series quote: " Warning! Warning! Alien approaching! "

Posted by wham1000 [TypeKey Profile Page] | March 26, 2007 7:41 AM

At least he has brains! Something that we haven't seing much in the last 6 years.

Posted by jerry [TypeKey Profile Page] | March 26, 2007 7:43 AM

Laurence Tribe should stick to his discipline. Relativity and Quantum Mechanics did not replace Newtonian Physics they added to our understanding of the universe. Our everyday life is still governed by Newtonian Mechanics. Quantum Mechanics is the physics of very small bits of matter and energy while Relativity is applicable to high velocities and cosmic distances. In other words don’t try to occupy the same place at the same time as another object. Neither Quantum Mechanics nor Relativity will bail you out of that one. Werner Heisenberg cautioned against applying the concepts of modern physics outside of its domain. However, social (pseudo) scientists have continually misapplied these concepts to suit their own agendas.

Laurence Tribe is one of the biggest violators of Heisenberg’s advice. He is the founder of the concept of Critical Legal Studies which itself merely the application of post-Modern Deconstruction theory to the law. Tribe was heavily influence by the Belgian Crypto-Nazi Paul De Man was also a member of the Yale faculty. The noxious Edward Said was another one of De Man’s “outstanding” disciples. The irony in all this is that these Progressives have been seduced by ideas that can be traced back to the French political philosopher Georges Sorel who is the founder of the Fascist movement.

Posted by Lew [TypeKey Profile Page] | March 26, 2007 8:02 AM

How much different is Dr. Tribe's "Star Wars" version of Constitutional law, from what's been going on since Roosevelt's bludgeoning of the Supreme Court in 1937?

The Court has demonstrated time and time again, for seventy years now, that "the Constitution means what I say it means." Anyone with a decent search engine and a passing aquaintance with the law can list a boatload of cases that literally scream to the rooftops that so-called "original intent" is an anachronistic throwback to a byegone era. So there should be no surprise that a rising young star in the elite world of Ivy League Law would establish his credibility in his tribe by plowing over the fields of his elders.

Defining the proper role of the Supreme Court of the United States is yet another dimension of the vast chasm between "us and them". Its a way that we delineate ourselves. To our side, a Supreme Court that focuses its efforts on broadly defined ends rather than narrowly delimited means, becomes a supralegislative body not unlike a Politboro. To their side, its a second and final bite at the apple of Justice. Its the hall of the philosopher kings that slap's the ignorant and benighted people into conformity with a moving definition of enlightenment and benevolence.

Barack was merely proclaiming his membership in his tribe. Is anybody surprised?

Posted by Bird of Paradise [TypeKey Profile Page] | March 26, 2007 8:21 AM

I remember writing a paper for a socialist/communist social science professor in college that used every cliche of manifesto boilerplate I could muster to gain an A+ grade in the class. The exercise taught me a great deal about what I did not and never have endorsed as a satisfactory approach to the human condition.

Is it possible that Obama's support and participation in these Harvard Law article was just an academic exercise and not necessarily a reflection of his own views of or personal approach to the interpretation of constitutional law?

Posted by Geoff [TypeKey Profile Page] | March 26, 2007 8:25 AM

The impoverished, oversimplified "euclidean" principles of secular materialism are insufficient for application in a "riemannian" moral spiritual universe that has meaning, depth, and texture.

I think that's what Obama really meant.

He's admitting that the democrat party is intellectually vacuous and wrong for America.

Posted by Bird of Paradise [TypeKey Profile Page] | March 26, 2007 8:28 AM

I remember writing a paper for a socialist/communist social science professor in college that used every cliche of manifesto boilerplate I could muster to gain an A+ grade in the class. The exercise taught me a great deal about what I did not and never have endorsed as a satisfactory approach to the human condition.

Is it possible that Obama's support and participation in this Harvard Law article was just an academic exercise and not necessarily a reflection of his own views of or personal approach to the interpretation of constitutional law?

Posted by muirgeo [TypeKey Profile Page] | March 26, 2007 8:41 AM

So let me get this right. We are discussing concern for a presidential candidate who "might" not uphold the constitution? Yeah we sure wouldn't want something like that to ever habeas....I mean happen.

Posted by TWood [TypeKey Profile Page] | March 26, 2007 8:59 AM

EM: "This time, Barack Obama may have to answer some questions regarding his views from law school about the elasticity of the Constitution, views which are less than two decades old:"

EM: "What Obama wanted to do in this treatise is to disconnect the text of the Constitution from its application."

EM: "Instead, Obama and others treat it like a work of art, one that should never get modified in any manner but which only holds relative truth in the eye of the beholder."

What a shameful and thoroughly dishonest presentation of Obama's involvement in the article's publication. He was 'thanked' in a footnote, but to see your framing of the matter you make it sound like he is the primary author.

And oh my, less than two decades old, when he was 28 years old and in Harvard Law school. A university environment is -supposed- to be a place where students and faculty are -encouraged- to think creatively about the world we contend with.

That Obama did research (or whatever) on articles written by thinkers that stretch the envelope is probably an indication the he played the law school system (publish or perish) well. Hooray for him. But this attempt to turn an accomplishment into a smear is simply disgraceful.

Posted by Lew [TypeKey Profile Page] | March 26, 2007 9:04 AM

You've missed the point muirgeo. If the Constitution is movable and pliable and "living", then how can anybody violate it? They aren't "violating" it, they're merely "reinterpreting" it. And just because John Marshall proclaimed the Court the sole interpreter of this "living" document, that doesn't make it so. That's just his opinion, after all. And nobody get's to enshrine his own opinion in granite, on his own say-so - does he?

Posted by jerry [TypeKey Profile Page] | March 26, 2007 9:06 AM


Please tell me that you haven't gotten over the Lincoln Adminstration yet?

Posted by biwah [TypeKey Profile Page] | March 26, 2007 9:46 AM

The Captain puts it well and succinctly - there are many theories by which to construe the Constitution as a vessel for one's own prescription for society. Extrapolation from quantum physics is just one means among many to do so. But it's just law! The courts' interpretive role does require some artfulness but ultimately is contrained by the need to be faithful to the ink on the page. In this, simplicity musty be a primary aim.

However, a footnote acknowledging Obama's contribution to some portion of this article does not mean that he had any creative input, and it would be beyond a reasonable inference, and into dishonesty, to assume or state conclusively that say that the article reflects his views.

Finally, academic works should be permitted some license. But the flip side is that one could very reasonably question whether Obama has really graduated from the academic/argumentative mindset 100% and into the practical realm of making important decisions in whatever circumstances actually (and not theoretically) exist.

Posted by Jeffrey Carr [TypeKey Profile Page] | March 26, 2007 9:54 AM

Twood and biwah have both expressed my view on your post very well. You're reaching WAY behind any reasonable argument, in trying to attach even an iota of responsibility to Barack Obama as regards the authorship of this paper. If a footnote in a law school article that Obama didn't even write is all that the Right wing has to work with, then it's a good day in the Obama camp, and a bad day for the Republican party.

Posted by Mr. Michael [TypeKey Profile Page] | March 26, 2007 9:58 AM

Obama's subject of research does not address his opinions on the subject, only his exposure. To conflate the two is like calling Ronald Reagan a Communist because he understood the threat so clearly...

Posted by Lew [TypeKey Profile Page] | March 26, 2007 9:58 AM

Right on biwah. Well done!

This is really the product of "Opposition Research" gone over the cliff. The author is Lawrence Tribe and not Barack Obama, so the only useful aspect of this little tidbit is as a platform for further inquiry - end of story!

Now if we want to argue with Professor Tribe then that's fine, but he's not running for anything. Besides, we all know that Ivy League Law Schools and insane asylums have some truly disturbing commonalities.

Posted by richard mcenroe [TypeKey Profile Page] | March 26, 2007 9:59 AM

It's not science, It's just plain old deconstruction and post-modernism in a Star Trek T-shirt...

Jeffrey Carr -- you seem to be ignoring that this position of Obama's fits perfectly with his voting record in state government. Given his lack of any other accomplishments, it's a legitimate point for discussion.

Posted by Fred [TypeKey Profile Page] | March 26, 2007 10:22 AM

Of course, Relativity has rules that must be strictly followed. All they have really done is change the name of their theory.

And the governing theory they are pushing is rule by judges and lawyers.

Posted by Tom Shipley [TypeKey Profile Page] | March 26, 2007 10:24 AM

TWood & others...

You beat me to the punch. I was going to give Cap'n Ed the benefit of the doubt and say it looked like he misread the article. But the extent of Obama's involvement in this article is "research assistant." There's really no evidence to show that he believed or believes the central thesis of this article.

The WaPo describes his work like this:

"Obama analyzed and integrated Einstein's theory of relativity, the Heisenberg uncertainty principle, as well as the concept of curved space as an alternative to gravity, for a Law Review article that Tribe wrote titled, "The Curvature of Constitutional Space."

I'm sure as the campaign moves forward, we'll have plenty of time to hear about Obama's views on judicial appointments and constitutional law (which he taught at University of Chicago), but I don't think we really get too much insight from this article.

Posted by unclesmrgol [TypeKey Profile Page] | March 26, 2007 10:27 AM

Constitutionality is whatever the current Supremes decides it is. A wet-behind-the-ears almost-lawyer is not going to change that (unless, of course, he becomes either a member of the Supremes or a President who appoints one or more of the Supremes).

The "fabric" of Constitutional law space changes as the composition of the Court changes and the issues before them are decided. Each decision, good or bad, produces precedents which are used by lower courts to decide the constitutionality associated with whatever suit they are hearing. The Supreme court itself even listens to its own precedents in making decisions.

That "fabric" also changes every time the Constitution is amended, or Congress makes a law removing actions from oversight of the Court; the Constitution we have is quite different from the one the Founding Fathers put forth (at the very least, slavery, that peculiarly Democratic institution, is no longer legal under the Constitution).

But the concept strict constructionism basically says that you should interpret the words of each Article by the intent of its framers. Such a decision does much to unify the fabric of the law and prevent discontinuities in both space and time. There is no other way of interpreting the law (including Tribe/Obama) which does not introduce local discontinuities.

Hey, I love this stuff; finally the law is comprehensible. But I have one remaining question -- where do the other 21 dimensions figure in to Constitutional string theory?

Oh, and to answer Bird of Paradise's question -- Obama would have done whatever his thesis/dissertation adviser told him to do, at the risk of not receiving a degree. You are alone as a 20-something facing a 40-something professor. I know -- I did something against my advisor's wishes and forfeited my PhD as a result. I still feel I did the right thing, but it has had lasting effect on my earnings (and my contributions to my alma mater).

Posted by Woody [TypeKey Profile Page] | March 26, 2007 10:33 AM

Here's the deal: The Constitution was written so that Joe Blow and John and Jane Doe could read, understand, and have no problem obeying it. It's written so plainly, we the people can plainly see when it isn't being abided or obeyed. The Constitution does not need an oligarchic cadre of judges and justices to "interpret" it. Those judges and justices have been given no power in the Constitution to do any such thing. All the Court is granted in the Constitution(Article III) is the judical power in the United States. That power extends to all cases in law and equity arising UNDER the Constitution. Judges and the Justices are bound by the oath they must take in Article VI to suppoet the Constitution. No where is there any word about interpreting or construing it into anything other than what it obviously and plainly states.

Construal of anything in the Constitution or NOT in the Constitution is expressly prohibited in the Tenth Amendment. Basically, that means that if it isn't in the Constitution, it is not in the purview of the United States,or any branch of the governance of it, as any such governance would, in one way or another, deny or disparage a right of the people.


Look at your rights and freedoms as what would be required to survive and be free as if there were no government. Governments come and go, but your rights live on. If you wish to survive government, you must protect with jealous resolve all the powers that come with your rights - especially with the Right to Keep and Bear Arms. Without the power of those arms, you will perish with that government - or at its hand.

Posted by Brooklyn [TypeKey Profile Page] | March 26, 2007 12:32 PM


well stated Captain.

thank you.

Posted by Michael Smith [TypeKey Profile Page] | March 26, 2007 12:37 PM

Obama is a committed liberal and an advocate of pure statist plunder -- which means he is an utter enemy of freedom and individual rights -- which means he is an enemy of the US Constitution.

Posted by SwabJockey05 [TypeKey Profile Page] | March 26, 2007 12:56 PM

Captain, your "Update" is right on the mark.

Mike Smith, You are correct as well.

Most of the critters (who take the same oath I did) are enemies to the Constitution. Pres Bush has also played a huge part in diminishing the Constitution. On this point, I agree whole heartedly with many of the Trolls. The difference is that the Constitutional attacks that Bush enabled (McCain “reform”, Education, Prescription Drug etc) were not the ones that the Trolls complained about…

The fact is that the Trolls complain the MOST when Bush executes his constitutionally derived “powers” (COC)…they privately cheer (or publicly complain he didn’t go “far enough”) when he enables gross expansions of the Welfare/Nanny State.

As Mike but it, our liberty/freedom and our nation’s very existence are dependant on a strict adherence to the WRITTEN Constitution. The amount of “interpretation” will be indirectly proportional to the amount of freedom and liberty enjoyed by all Americans.

Posted by Adjoran [TypeKey Profile Page] | March 26, 2007 1:07 PM

Obama should thank his lucky stars he got an acknowledge from Tribe.

That serial plagiarist has been content to simply steal the work of most of his research assistants through the years. His giving Obama even nodding credit probably means his role was anything but minor.

Still, old academic papers are a mere sideshow attraction. In their admittedly limited service in the Senate, both Hillary and Obama have given us a pretty clear idea of where they are, and it is on the left. Hillary is moderately so, while Obama is more liberal by voting record than Ted Kennedy, John Kerry, and Russ Feingold.

Posted by docjim505 [TypeKey Profile Page] | March 26, 2007 1:24 PM

I have to agree with TWood, biwah and others who think that this is much ado about nothing. Obama didn't write the article; he merely assisted. Now, he MAY agree with the Tribe... or he may not. Good question for the campaign trail, but I don't think we can begin to infer what his views are from the fact that he was thanked in a footnote.

Posted by unclesmrgol [TypeKey Profile Page] | March 26, 2007 1:45 PM


What a delightful world you live in! The Constitution gives the Judiciary the right to interpret our laws. What do you think a "case" is, as mentioned in Article III Section 2? It's a place where two different interpretations of the Constitution are colliding, and the collision needs resolution. Our founders thought it wise to prevent people from deciding things like that with guns, and instead instituted the equally dangerous court system.

As an example of interpretation by gunnery when the Courts fail, witness the Civil War, which was (partially) waged to determine whether the Constitution bound the states into federation weakly (as had the ultimately unworkable Articles of Confederation) or strongly.

Taney, the Chief Justice most responsible for causing that war, ruled in a succession of cases that the federal system was strong, because the laws mandating property in one state held in all other states, even when the property was a human being (and that being was counted free in one state and slave in another). Taney got cold feet on this position when South Carolina seceded, but Lincoln used other clauses in the Constitution to prevent Taney from being able to rule that secession was legal. Of course, unlike the present Supreme Court, Taney was also a circuit judge in Maryland; Lincoln ignored, under Article 1 Section 9, Taney's attempts as circuit judge to exercise writs of habeas corpus and thus to eventually bring the matter before the full Court.

If there were no government, in your world-view we'd be like Iraq, where everyone is asserting their rights (and, in some cases, more than that) by arms. In fact, if you read the full Second Amendment, your right to bear arms is not absolute; it is only allowed in defense of community.

Posted by Count to 10 [TypeKey Profile Page] | March 26, 2007 1:51 PM

I object to the characterization of physics as allowing gross reinterpritation of the constitution. Physics is the aplication of mathematics to observed phenomina, and the use of approximations to predict outcomes within certain tolerances. The underlying mechanics don't change, but our understanding of them can improve over time.

The Constitution, on the other had, sets out the rules under which the government governs. It allows a prosses in which it can be changed if nessasary. Reinterpritation has historicly been the work of powerful minorities or narrow majorities manuvering to avoid the restictions the Constitution places on their agendas without having the votes to ammend it.

As far as Obama is concerned, don't we have more recient and reliable information on how he views the Constitution than a footnote in someone elses paper?

Posted by JohnAnnArbor [TypeKey Profile Page] | March 26, 2007 2:10 PM

"Oy vey," said a professor of jurisprudence at Princeton University, Robert George. "Constitutional law is not that complicated. There's just no need to complexify this," he said

Is inventing the word "complexify" (when "complicate" would do) introducing too much complexification?

Posted by SwabJockey05 [TypeKey Profile Page] | March 26, 2007 2:25 PM


I've read the Constitution several times. I've also read the Federalist Papers...I'm no shyster lawyer, but when I took the oath “to support and defend the Constitution”...I certainly did not do it with your interpretation of the 2nd Amendment in mind.

When it comes down to “takin’ a bullet for what you believe in”…how many people you think you can find who are willing to “take the bullet” for your interpretation of the 2nd Amendment?

Posted by A NEWT ONE [TypeKey Profile Page] | March 26, 2007 3:17 PM

I just wanted to invite you to join up with what promises to be the biggest rally in American history!
It's Operation America Rising! For more information, visit their blog at and to join the blogroll just send me an email at


Posted by seejanemom [TypeKey Profile Page] | March 26, 2007 4:09 PM

I am telling you folks, I didn't dub his happy a$$ "The Manchurian Messiah" because its sounds catchy.

We need only to look across the pond to the coming Eupocalypse to see our future.



I'll take The Pantsuit with a side of Silky Pony, happily. But not ONE SOUL as cagey as this freakshow.

Posted by Matt [TypeKey Profile Page] | March 26, 2007 4:31 PM

One quick point: Einstein, Newton and the space-time continuum aren't part of "science-fiction" as you said Ed. I know, semantics.

But it is important that you point out the difference between Obama making a comparison between the constitution and the unshakable laws that govern our entire universe, and Obama comparing it to "fiction" which is a figment of your imagination. Huge difference there.

You jump to the conclusion that he wants to "update" the constitution, when you haven't even read the thesis. It sounds to me like this thesis was just a really artsy, fancy way to look at the constitution at a different angle and impress some poli-sci professors, not necessarily an overhaul of the way the constitution is interpreted.

Posted by seejanemom [TypeKey Profile Page] | March 26, 2007 5:41 PM

Words mean things Matt.

If it was just FARTSPEAK for a prof, why do you want some peter puffer in the Oval Office? I'd like a man a character from the START, THANK YOU VERY MUCH.

Capitulate elsewhere.

Posted by Matt [TypeKey Profile Page] | March 26, 2007 6:07 PM

Oh really, do words mean things!?!! My whole world is tipped upside down... you've totally blown my mind! Thank you for freeing me from my naivity!

Could you tell me what Fartspeak and peter puffer mean? I'm trying to be a good college student, and expand my vocabulary.

I would think someone who calls themself a mom would be more mature than to describe someone elses manner of speaking using the word FART. It's good to see that at least you have enough of that "character" to go around. Maybe you should run in '08.

Posted by Matt [TypeKey Profile Page] | March 26, 2007 6:26 PM

PS I think you used the word "capitulate" out of context. So much for words meaning things.

Posted by conservative democrat [TypeKey Profile Page] | March 26, 2007 7:13 PM

not important enough to comment on....sigh

Posted by seejanemom [TypeKey Profile Page] | March 26, 2007 7:18 PM

I am a mom of BOYS, hence the familiarity with the word "FART".

And lastly,
the word capitulate was brilliantly used. Allow me:

capitulate: (v) : to end all resistance; to give up; to go along with or comply; may imply compliance with an enemy or to end all resistance because of loss of hope


Matt's excuses for Obama's early legal FARTSPEAK are lame capitulations to Liberal apologists.

How many books in the library at your school AREN'T colored in, eh, college boy?

Posted by Carol_Herman [TypeKey Profile Page] | March 26, 2007 7:20 PM

Hillary does not even stand a chance!

This isn't hard to figure out, folks.

Yes. She was IN the White House once. Because her huband won. While it took all he could do to keep her from harming herself, early on.

That you want to talk about "legal schmeagle" crapola? Why? Most Americans are not entertained by the lawyers.

Many Americans are now very angry, though. And, it seems enough of the Peole are collecting, so they can have some input next February; when the primaries roll around.

You think you know who the candidates for 2008 are? Really? You're basing this guess on what?

Life has ways where those who deserve support; like Ronald Reagan got. Got it because they were doing the right thing, about getting to the White House, starting EARLY ON. Reagan? You could say he got the idea back in 1962. 1972. At the latest. And, no set back stood in his way.

Hillary? You're believing the hype.

Or? You've got nothing better to do.

Instead? I think there's a mood in this country that is furious at Bush. And, the "team" that put him in place. Because he is out of his league.

Hillary? She's even less popular than Bush! This is not the kinds of stuff that brings you anywhere near your goals, folks.

While it's possible there are people in both parties who want to CLEAN HOUSE. Who want to go in and repair the damages done by the congress critters as well as the campaign managers. As well as the tripe that runs our elite schools. And, press.

You could recognize some of the failings if you just watched subscription rates. Even today, Drudge had up a headline that "business for newspapers" is way down. That's not a journey to success, folks.

What's probably more amazing? For all of Hillary's exposure, she does poorly. When matched up to other contestants.

Sometimes, I think Hillary is the "horror movie" of the week, where you supposed to be made afraid by hollywood tricks and camera angles.

Go ahead. Believe, if that's what you want to do.

Meanwhile? The TV audiences are down in the dumps.

And, after having an 8 year run with Bush, who is coming off like a collosal dummy; I don't think Americans are gonna want to be spoon fed tripe in 2008.

Begin looking around for the candidate with style. And, who can handle off-the-cuff conversations without looking mean or dumb.

It's okay. We survived Jimmuh Carter. And, the "games" pulled on Reagan? Won't be successful the next time. Let alone, if we get Guiliani! He eats other lawyers for breakfast, lunch. And, snack-time. He won't be afraid of the loo-loo's who get elected to office. Because? He'll know what to do. Which this Bush DOESN'T!

I think that's what we miss! It's like looking at that battleship, CORNWALL, and wondering what possessed the commander (Woods) to call home? What was missing from that man's training?

We know what's missing from Bush, though.

And, Hillary? Uglier. More like poison. And, most people just want to see her losing it on stage. Where her eyeballs roll back in her head, and her voice goes higher and higher.

Heck, even Rush Limbaugh is waiting for that moment!

Posted by unclesmrgol [TypeKey Profile Page] | March 26, 2007 7:20 PM


Try to read the Second amendment again, and pay careful attention to the leading parenthetical clause:

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.

If we follow strict construction, the material in front of the parenthesis gives the intent of the framers; that which follows gives a result. So, you, as a trained member of the militia, are allowed to bear arms to the extent that such a right maintains the security of our country.

Now, there are lots of interpretations which make militias not fall under control of the State and others which just plain leave off the antecedent. It seems like your interpretation is the latter.

So, we appear to disagree on why we are allowed to keep and bear arms, and under what circumstances might that right might be negated.

I posit the following:
a) When the police confiscate a firearm from a criminal, have they violated his/her Constitutional right?
b) Should a private party be allowed to own a nuclear weapon?
c) Should a five year old be allowed to own a machine gun?

Certainly, if we follow Woody's interpretation, the answer to all of the above questions are "yes". Do you feel comfortable with that?

Our argument on this matter is not without precedent. Wikipedia has an excellent article on various interpretations of the Second Amendment which highlights Woody/your view as contrasted to mine.

As for me, I'd "take a bullet" for either form. Our argument here, in a nutshell, shows that the Constitution is not so clear-cut as some would make it out to be, and also outlines the need for the Supreme Court as the final interpretor of the Constitution.

Posted by seejanemom [TypeKey Profile Page] | March 26, 2007 7:25 PM

And Matt, honey,

I am a "herself", not a "themself", which isn't EVEN A WORD, much less used out of context, college boy.

Posted by Woody [TypeKey Profile Page] | March 26, 2007 10:01 PM


Woody here.

I wrote of interpreting/construing the Constitution, not law.

As for the Second Amendment, "A well regulated militia being necessary to the security of a free State,"... is a parenthetical phrase. It is not an independent clause bringing any clarity to, nor is it necessary to support the independent clause at the end of the Second Amendment, "(T)he right of the people to keep and bear Arms shall not be infringed." Even inserting one or both of the other two commas often seen in the amendment, the same thing applies. Precedent for this exists in Article I, Section 8, Clause (8).

Now the good stuff:

a) When the police confiscate a firearm from a criminal, have they violated his/her Constitutional right?

Answer: Not while said criminal is in custody.

b) Should a private party be allowed to own a nuclear weapon?

Answer: Yes. However, there is nothing to prevent Congress from cornering the market for the precursor nuclear materials needed to power such a weapon under Article I, Section 8, Clause (1), concerning the general welfare of the United States, and reserving said materials for the common defense; and storing it in arsenals under the control of Congress per said article and section, Clause (17).

c) Should a five year old be allowed to own a machine gun?

Answer: A five year old child would be under the guardianship of it's parents. But, if that five-year-old were emancipated, then by all means, yes. Note that the Constitution makes no distinction as to when a person reaches maturity, nor has the power been granted to Congress to set such an age, that being left to the several states. State law covers what would be the "legal age" of maturity. Once that age is reached, unless the child is emancipated and not under the guardianship of the state, that person has as much right to a machine gun as any adult not in prison.

I'm quite comfortable with all that.


"You all need to remember where the real middle is. It is the Constitution. The Constitution is the biggest compromise - the best compromise - ever written. It is where distribution of power and security of the common good meets with the protection of rights, freedom, and personal sovereignty."

Posted by Matt [TypeKey Profile Page] | March 26, 2007 11:21 PM

Deep breathes jane... deep breathes. Breathe in, breathe out. I'm sorry for hurting your feelings, and implying you were immature for your age. You seem like a bit of a loose cannon, and I like to push buttons.

Who would have thought that one day, the word "college-boy" would be used in such a mean spirited way. I knew that would be a mistake to mention on here. Only here would it be used against me as if it were a bad thing. The 'capitulate' statement flew over my head.... I guess it was a hard one to figure out, mainly because I'm neither surrendering, nor giving up to any "enemy". That's a pretty intense word to use in a comment thread about someone's interpretation of the constitution twenty years ago. Still seems completely out of context to me. But I don't hate people with a passion just because they're name rhymes with osama, so it's kind of hard to understand where you're coming from.

Posted by unclesmrgol [TypeKey Profile Page] | March 27, 2007 12:40 AM


If you discard the first portion of the Second Amendment, it then makes no distinction between a five year old unemancipated child, or a felon in the hands of the police, or a "normal" person (which I assume both you and I are). The clause becomes absolute: there can be NO circumstance under which denial of the right to keep and bear arms is constitutionally correct. The clause makes no exception for sanity or insanity, for criminality or uprightness, or even for the calibre of weapon allowed. The only possible check is the capital "P" of People, which would imply a society as a whole, not a group of individuals.

If one views the Second Amendment as a defense against the tyranny of our own government, as opposed to tyranny which might be imposed from without, then no limitations on what a person may own weapon-wise is allowed; if the government can own nuclear weapons, then it must by nature be the right of private citizens to own the same types of weaponry. Any other path allows the government to impose tyranny through superior firepower.

I apologize for not addressing you in my second post; my big point in that post was not the correct interpretation of the Second Amendment, but the fact that two reasonable people, reading the same text, can come to far different conclusions as to what that text means. Those two interpretations each gets considerable play in the Wikipedia article.

You are absolutely correct when you state the Constitution was a compromise. Even the Second Amendment was a compromise in a microcosm; look at the proposed alternate texts for it in the Wikipedia article, as well as the proponents of each such text. I'm not sure the Wikipedia article is the best one ever written on the matter, but I've yet to see better as a standalone article.

My position on the Constitution is that every word in it is important in discerning the meaning as posited by the framers. You cannot discard words without distorting meaning. You cannot add words without similar distortion.

Posted by unclesmrgol [TypeKey Profile Page] | March 27, 2007 1:19 AM


I think Hillary's situation and Obama's are completely different.

In research papers the primary author(s) are given first billing, and helpers are given secondary billing, in order of decreasing contribution. So, for example, a paper authored by jones, philby, and jacobs may have only jones as the actual writer, and philby and jacobs as research assistants who are given writers' credit for their research (which was actually done at the direction of jones). My wife has dozens of such papers to her credit as a senior programmer, even though she has never written a single paragraph in any of them.

Of course, the same authors may have the positions of a) only jacobs being the assistant, or
b) all three being equal co-authors.

A thesis or dissertation topic is always chosen by the candidate themselves; the advisor approves the topic. Now, the advisor may suggest a range of possible topics, but the candidate is free to choose outside of that set. A thesis or dissertation never has multiple authors; your reason for writing such a document is to prove your personal worthiness for the degree you seek. That said, there is a level of political correctness needed; depending on the advisor, you might be advised to not inform the advisor of any problems you discover with his/her work (where I went wrong, but that's another story).

So Hillary chose her topic, did the research, and wrote her thesis. All the words in it are hers, and those that aren't have been chosen to buttress her assertions therein.

Obama on the other hand gets a credit for a paper whose principal authorship is not his; the wording of the credit as specified in the preface indicates whether he contributed quotes from others or was a minor author himself.

Posted by SwabJockey05 [TypeKey Profile Page] | March 27, 2007 1:57 AM


As for “takin’ a bullet” I didn’t ask you if YOU’D take a bullet, I asked you how many others you can convince to take a bullet for your “interpretation”.

I say again, I’m no shyster lawyer, but I find it somewhat disappointing that someone like you makes the same argument (and therefore sound very similar to..) Hildebeast and her liberal pals.


I’m sure you’ve read the Federalist Papers…are you actually saying that you think that the Framers did not want my neighbor (tax-paying white man who’s never committed a crime) to be regulated in some manner as to what type of firearm he kept in his house? If so, you are wrong. And I see you as one of my enemies.

You mention the Wiki long winded discussion on the Second Amendment…what I found interesting was not the long winded discussion of the right to “bear arms” but the lack of discussion about the ninth and tenth amendments. Your sited discussion of the Second Amendment is focused exclusively on TAKING RIGHTS AWAY from the “people”…an equally enthusiastic discussion of Ninth and Tenth would make the discussion of the Second Amendment a moot point. To “bear arms” usually has to do with organized, military type operations (against a tyrant or enemy State). The right for a private person to own a firearm has almost nothing to do with “bear arms”…unless you’re talking about allowing the general population to be armed so they can enter a MILITIA. It is not surprising that there is such “Wiki discussion” on how to legitimize disarming tax-paying non-criminals. It’s all about POWER.

Speaking of the militia, you said I was in the militia…well, I’m not. Not as understood by the Framers…and not as understood by CURRENT US LAW. During the Rev War there was a very distinct difference between Regular Troops (that would cover swabbies too) and Militia…Regular Troops were NOT Militia.

Getting back to my neighbor…Unclesmrgol, do you have any idea who’s in the militia today? Google it and you’ll find that according to “Title 10” USC 103011 if you are 17-45 years old, you could very well be in the militia yourself.


When’s the last time you did sit ups, pull ups and hop and pops? It's easy to say you're "ready to take a bullet"...but are you really? Or like most, are you just a lot of talk…and ready to send someone else to do the fighting that YOU believe in?

Like you, I think my neighbor would be surprised to know that he’s a militiaman. So would ck, “dave”, monkey, monkeyboy, matt and the rest of the Captain’s fur-bearing Trolls, I’ll bet. Next time they throw around their “military expertise” perhaps they can use their “militia status” as bona fides.

Unclesmrgol, Do you know what the “Incorporation Doctrine” is?

Posted by docjim505 [TypeKey Profile Page] | March 27, 2007 8:31 AM

The discussion about the Second Amendment interests me greatly (I do indeed keep and bear arms), so if I may:

1. I'm not a lawyer, but as I understand the Anglo-Saxon legal traditions which underpin our own legal system, much is left to "common law", i.e. not codified to the last jot and tiddle. The writers of the Constitution doubtless thought that any ambiguities in their language would be taken care of either by "common sense" ("Look, guys, I think we all know what 'the people' means, don't we?") or the normal process of legislation and litigation.

For example, I'm sure that the Founders didn't intend that slaves were considered among "the people". I also think that children were also considered as exceptions (superb point made by Woody at March 26, 2007 10:01 PM).

2. My understanding of the late-18th century definition of "militia" is that it included every able-bodied citizen who was capable of bearing arms. The reason is obvious: in sparsely populated and not especially wealthy "frontier" communities, maintaining a standing army or even a semi-professional force like our modern National Guard and Reserve would have been difficult if not impossible.

3. As to the question of whether the Constitution allows "the people" to possess nukes... I'd have to say (with reluctance) that, yes, it does. The purpose of the Second Amendment in my view is to ensure that the citizens can oppose an attempt by the government to suppress their liberties by force of arms if neccessary (consider the "alter or abolish" phrase in the Declaration of Independence). If the citizens are not allowed to possess a level of arms that allows them to effectively oppose the national army, then the point of the Amendment is rendered effectively null.

For this reason, I think the National Firearms Act of 1934 is blatantly unconstitutional. However, it's settled law and there's not much I can do about that.

Anybody know where I can pick up spare missiles for my TOW, by the way?

4. The Second Amendment does not prevent the several states or local communities from making restrictions on keeping and bearing arms, however. The Constitution is a federal document and deals with powers and restrictions that apply to the federal government (though the 14th Amendment and various court cases that rest on it have made a major change in that).

I don't think that the Founding Fathers would have balked at state or local restrictions that (for example) prevented a citizen from strolling down the streets of Boston or Philadelphia or Charleston with his musket in hand. Indeed, I think that laws such as those against "going armed to the terror of the public" have long standing in Anglo-Saxon law and do not conflict with the Second Amendment.

5. In my view, the Second Amendment right to keep and bear arms has the same weight as the rights to free speech, free press, etc. listed in the First Amendment: they are inalienable rights but subject to some restrictions in the interest of maintaining the civil peace. It's prudent to restrict the right to carry a machinegun into a crowded theatre just as it is equally prudent to restrict the right to shout "FIRE!" in that crowded theatre.

Posted by unclesmrgol [TypeKey Profile Page] | March 27, 2007 9:19 AM


If the Second Amendment is THE amendment as far as the people we are discussing are concerned, it's a pretty poor Constitution. I've fought for every word in the Constitution, not just the ones that are convenient to fight for.

And, last I saw, those words I've pointed out were not added to the document under cover of night -- they have been present in the document as long as any of us have been alive, and they have a meaning which is obvious to anyone who reads them. You can choose to defend all of the Constitution except those words, and fine -- I'll allow you that.

Phil Specter is my poster child for the "guns for everyone" crew. A history of punctuation of sentences by the waving of firearms, particularly when drunk. Now, in the dock for murder. His defense that the woman "kissed the gun" is reprehensible.


The militia has never meant any ragtag crew of gun-carrying people -- its always been a group of citizens enrolled by the goverment to train for military service. The words "well regulated" serve to emphasize that meaning.

The Swiss have the closest thing to the meaning of "militia", although they did have to recently apologize to Lichtenstein for accidentally invading it (not that Lichtenstein noticed).

I view the state firearms laws as counter-constitutional. The mere presence of the Second Amendment means that the regulation of guns is a federal power, not a state one.

So, unlike you, I allow the feds to outlaw private nukes, but would not allow California to outlaw AK47's.

That's my interpretation of the Constitution, so you better hope I'm never Chief Justice.

Posted by SwabJockey05 [TypeKey Profile Page] | March 27, 2007 9:41 AM

Doc J.

The “nuke” statement is a red herring. The likely hood of the police or the military showing up at your door with a nuke…is non-existent.

The Founders feared a standing army which could lead to what we now call a “police state”. The Founders wanted armed citizens. In a free society, law-abiding citizens would be allowed to have whatever weapons the police have at their disposal…the police have noting to fear from law-abiding citizens. But citizens have EVERYTHING to fear from a police state where only the cops have guns. Most “beat cops” don’t have a problem with armed, law abiding citizens.

What weapon do the arms control Nazi at the UN have in front of their building? Is it a nuke? A machine gun? No. It’s a revolver with a twisted barrel. These gun-grabbing Nazi want the handguns precisely because that type of weapon is the best type for a normal citizen to use for personal defense and defense of his family. The Brady moonbats and euro-trash want to disarm all Americans.

My idea of gun control is what you do when you hit what you’re aiming at…

Capt Ed said: “It's amazing that people cannot understand the beauty of the Constitution. It means what it says, and it allows for amendments as the nations finds necessary as we consider policy”

Do you know what the “Incorporation Doctrine” is…? And what “amendment” did “we” ratify to enable this FUNDAMENTAL change to the Constitution?

Posted by jerry [TypeKey Profile Page] | March 27, 2007 9:58 AM


One cannot fully understand the meaning of the "Right to Bear Arms” without making the 18th Century distinction between Arms and Ordinance. Arms were defined as personal weapons like pistols, muskets swords etc, which were part of the individual soldier’s kit. Ordinance referred to heavy weapons like cannon which were supplied by the state. That is why the typical British infantry regiment did not carry the word Royal while the artillery was a “Royal” arm. By limiting the right to own weapons to “Arms”, the Constitution should not be construed as allowing individual citizens to own “Ordinance”, i.e., cannons and by extension to current technology heavy machine guns, tow missiles or nuclear weapons. Only the state has an inherent right to own this class of weapons.

The Second Amendment enshrined in the Constitution the people’s right to own personal weapons because a “Well Regulated Militia that could be turned out on short notice must know how to use firearms in advance. I know some will argue that in the modern age we only have an organized militia (National Guard) and that they typically supply the arms so the individual citizen who is not part of a militia has not right to own his own arms. However, there is still a law on the Federal books called the militia act which makes all male citizens between the ages of 16 and 55 subject to call up in a national emergency. Even without the Militia Act the right to bear arms also has the effect of creating a pool of manpower that is already familiar with firearms before they enter military service. Historically the US infantry was far more proficient then his opponent on the battlefield in marksmanship because of a life long familiarity with guns. One could also argue that since all citizens may be subject to conscription that they constitute a militia in being.

Posted by docjim505 [TypeKey Profile Page] | March 27, 2007 10:41 AM


"Well-regulated" is one of those devilish details. My National Guard battery trained one weekend per month and two weeks in the summer. My grandfather's National Guard company trained (I believe) one night per week and a week or two in the summer. Back in the day of the colonial militia, units might drill one day per month, or one week every few months, etc. Which was "well-regulated"?

In this case, I'd say that "well-regulated" simply means that there is a standard of military discipline, including a recognized and legitimate chain of command, and some standard of equipment, arms and training. In effect, "well-regulated" has much the same meaning as the requirements for a "lawful combatant" under the Geneva Conventions (though I believe that international law also recognizes the legality of levee en masse in occupied countries).

At any rate, my definition of "every able-bodied male" has legal standing in American law under the case The United States v. Miller [307 US 174, 1939]. In the majority opinion, Mr. Justice McReynolds writes:

The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. 'A body of citizens enrolled for military discipline.' And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time. [emphasis mine - dj505] (1)

He goes on to cite various historical documents from the American colonial period as well as earlier English law. All point toward the militia as being every able-bodied man, though it was the responsibility of the local government (the colonies and then the states in America) to establish training times and standards for equipment and arms as well as the method of selecting officers. I have also seen references to "organized militia" (i.e. the body of trained citizen-soldiers) and the "general militia" (i.e. every other able-bodied man).

As for your view that the feds can outlaw private ownership of nukes (a great disappointment to me, as I've always wanted my own Minuteman ICBM!) while CA cannot outlaw AK-47s... I see your point. However, I cling to the federalist view of the Constitution, and I think that, absent an argument based on the 14th Amendment, CA absolutely has the right to do that.

It's something over which civil people may disagree.




Ironically, in my view, the Court had to do some twisting and turning to get away from this definition. Miller was prosecuted under the National Firearms Act of 1934 for possessing and transporting a sawed-off shotgun. The District Court upheld the following demurrer:

The National Firearms Act is not a revenue measure but an attempt to usurp police power reserved to the States, and is therefore unconstitutional. Also, it offends the inhibition of the Second Amendment to the Constitution...

However, the Supreme Court, even as it afirmed the right of the people to keep and bear arms as part of the "militia", held that "it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense" and so Miller's conviction was upheld.

Posted by SwabJockey05 [TypeKey Profile Page] | March 27, 2007 10:54 AM

Doc J,

Google "Incorporation Doctrine".

You may find it interesting. Under this "Doctrine" the 14th Amendment "incorporated" some of the Amendments...but not can this be?

Do you agree that this was a fundamental "change" to the Constitution?

Posted by Woody [TypeKey Profile Page] | March 27, 2007 10:58 AM


The 2A is absolute. As for the criminal, the mentally ill or deficient, and the young; we have prison, mental institutions, and guardianship for all those who cannot be trusted with arms. Due process under the Fifth Amendment covers this for criminals and the mentally incompetent, and parental responsibility for the young. It is the MISUSE of arms that is criminal, not their possession. Once responsible enough and no longer under parental control, once freed from prison and no longer a threat to society, and once "cured" and no longer institutionalized, those people have as much right to arms as they have a right to a fair trial.

People is the plural of "person". "The People" is each and every one of us as individuals. "A People" would be a specific group or class of people. Since it's protected as a right of "The People", it's protected as a right of each and every individual.

You are right on about the threat of tyranny from our own government. Any arm we allow Uncle Sam to have, Uncle Sam cannot deny us the same.


The simple truth of the Second Amendment's protection of the right to keep and bear arms is that it protects the right as a right of the people. What would make you think that a state could infringe upon the right where the United States may not? Note that the Second Amendment does not say, "Congress shall make no law...". Especially where the people might be call upon by the United States to assemble and defend the country as in Article I Section 8, Clause (15) ??? Where would we be if all the states thought they could disarm or drastically limit the arms the people could keep and bear and a well equipped multinational force millions strong decided they wanted our amber waves of grain and purple mountain's majesty?


"If you want security, buy a gun. If you want longevity, learn how to use it. If you want freedom, carry it. There is nothing worth more than freedom you win for yourself. There is nothing more valuable to that end than the tools of the right that make it possible"

Posted by SwabJockey05 [TypeKey Profile Page] | March 27, 2007 11:03 AM the way, when Justice Scalia gave a presentation to the NWC he allowed Q & A afterwards. For some reason he thought I was a shyster lawyer when I asked him a similar question.

He did agree that the “Incorp Doctrine” FUNDAMENTALLY changed the Constitution...but he neglected to answer the part about where the Supremes found the "power" to make this change to the Constitution. They did it by waving the black robe…and making a stroke of the pen.

Posted by SwabJockey05 [TypeKey Profile Page] | March 27, 2007 11:09 AM


Unfortunately for you...the Second Amendment has not been "Incorporated"...and it NEVER will be...leaves too much power in the hands of the chattel. Remember: It’s a Wheel Gun with a twisted barrel in front of the UN.

Posted by Woody [TypeKey Profile Page] | March 27, 2007 11:50 AM


By "Incorporated" , I assume you mean by the 14th Amendment. The Second Amendment doesn't need "incorproation" any more than any other amendment, save the First. The First Amendment was the only amendment in the first ten that applied strictly to the Union. As proof, the entire judicial power in the United States is in the one Supreme Court, covering the several states of which their courts must be ordained by Congress. Therefore, the Fifth Amendment applies across the board since it does not single out the the United States as is the case of the Second Amendment not singiling out the United States. (In fact, the Fifth talks of a power reserved to the states - the power to take property by eminent domain.)


Posted by Woody [TypeKey Profile Page] | March 27, 2007 11:57 AM

This "incorporation" thing is something that cropped up after the 14th Amendment. The Second Amendment was considered across the board as late as 1859 when it played a major role in the Texas Supreme Court Decision, Cockrum vs State of Texas, ---- 1859 . It's good reading. And, this happened BEFORE the 14th Amendment came to be.


Posted by docjim505 [TypeKey Profile Page] | March 27, 2007 1:11 PM

Woody wrote (March 27, 2007 10:58 AM):

What would make you think that a state could infringe upon the right where the United States may not? Note that the Second Amendment does not say, "Congress shall make no law...". Especially where the people might be call upon by the United States to assemble and defend the country as in Article I Section 8, Clause (15) ??? Where would we be if all the states thought they could disarm or drastically limit the arms the people could keep and bear and a well equipped multinational force millions strong decided they wanted our amber waves of grain and purple mountain's majesty?

The fact that "Congress shall make no law..." doesn't appear in the Second Amendment is persuasive, but I still believe that the federalist intention of the Constitution and the Bill of Rights was to limit the power of the feds, not of the states. This is demonstrated in the case Barron vs. Baltimore (32 U.S. 243, 1833). In the majority decision, Mr. Chief Justice Marshall wrote:

The plaintiff in error contends that it comes within that clause in the Fifth Amendment to the Constitution which inhibits the taking of private property for public use without just compensation. He insists that this amendment, being in favor of the liberty of the citizen, ought to be so construed as to restrain the legislative power of a state, as well as that of the United States. If this proposition be untrue, the court can take no jurisdiction of the cause.

The question thus presented is, we think, of great importance, but not of much difficulty. The Constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual States. Each State established a constitution for itself, and in that constitution provided such limitations and restrictions on the powers of its particular government as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself, and the limitations on power, if expressed in general terms, are naturally, and we think necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself, not of distinct governments framed by different persons and for different purposes.

If these propositions be correct, the fifth amendment must be understood as restraining the power of the General Government, not as applicable to the States. In their several Constitutions, they have imposed such restrictions on their respective [p248] governments, as their own wisdom suggested, such as they deemed most proper for themselves. It is a subject on which they judge exclusively, and with which others interfere no further than they are supposed to have a common interest. [emphasis mine - dj505] (1)

As a personal matter, I think that any state foolish enough to grossly restrict the right to keep and bear arms - the right upon which the security of all others is based - should be walled off from the rest of the country and converted into a gigantic lunatic asylum. However, I think that the "Incorporation Doctrine, i.e. forcing the requirements of the Constitution on state governments, is unwise in the extreme and ultimately destructive to our federal system. Let's consider the mischief the Court has done with the Fourteenth Amendment and that an unfettered Congress and presidency have done since the 1930s; it's getting so that we don't live in States: we live in some kind of half-assed federal provinces with a small amount of autonomy that can be usurped at will by bureaucrats in DC or the nearest federal building.

I realize that I'm firmly in the minority, but this is why I have a problem with otherwise sensible rulings like Brown, Gideon and Miranda: they pave the way for abortions like Roe (pun very much intended!).


Thanks for the tip about the Incorporation Doctrine. I'd never heard the term, but I'm unfortunately familiar with its intent and effect.



Posted by SwabJockey05 [TypeKey Profile Page] | March 27, 2007 1:53 PM


No, it was not JUST the 14th Amendment. The “Framers” of that Amendment did not mean for the other Amendments to be “Incorporated”. It was a later event…IIRC it was the Warren court that invented the “Incorporation Doctrine”.

What is criminal, is not just the illegal change to the Constitution…but also the way they “Selectively Incorporated” only the “important” Amendments…they left off the 2nd Amendment. Why? It’s a matter of power. It’s far too dangerous for chattel to have weapons similar to the king.

Interestingly, the courts have ruled that individuals are responsible for their own self defense. In fact, it is a free man’s RESPONSIBILITY to provide for his self-defense and the defense of his family. To abdicate that responsibility --taken to the extreme would put a cop on every corner -- will inevitably lead to a Police State.

The courts say you’re responsible for your own safety…but by not allowing the private ownership of weapons, the same court will be depriving the individual the means to perform his responsibility/duty.

The main point, and topic of this thread, is that I was not BSing about Scalia…he really did admit the “Inc Doctrine” FUNDAMENTALLY changed the Constitution…without bothering to use the Amendment process. The fact that the change was done through un-Constitutional fiat is why that act was a crime. No, abomination.

Posted by docjim505 [TypeKey Profile Page] | March 27, 2007 3:53 PM


Thanks so much for drawing my attention to the Cockrum decision. The reasoning presented in it represents to me what the essence of the judicial process ought to be:

1. It stems from a plain reading of the text of the law;

2. Assumes that the citizen has rights, priviledges AND responsibilities that should be given the utmost consideration by the court, and;

3. Points toward a law that is simple and level in application without all sorts of well-intentioned but foolish exceptions.

I was also very much struck by the language used to describe the bowie knife and reasons for its carry. Almost identical language could be used to describe our modern "concealed weapons". This REALLY leaped out:

He who carries such a weapon, for lawful defense, as he may, makes himself more dangerous to the rights of others, considering the frailties of human nature, than if he carried a less dangerous weapon. Now, is the legislature powerless to protect the rights of others thus the more endangered, by superinducing caution against yielding to such frailties? May the state not say, through its law, to the citizen, "this right which you exercise, is very liable to be dangerous to the rights of others, you must school your mind to forbear the abuse of your right, by yielding to sudden passion; to secure this necessary schooling of your mind, an increased penalty must be affixed to the abuse of this right, so dangerous to others." This would be in accordance with the well established maxim of law, that "you must so use your own as not to injure others." A law inflicting such increased penalty, would only be a sanction of this rule.

In other words, "You've got the right to do it, but if you abuse the right and injure others, we're gonna fall on you like a ton of bricks!"

Posted by SwabJockey05 [TypeKey Profile Page] | March 27, 2007 4:21 PM

Doc J.

Earlier, I told you I wouldn't "storm the capital" if Bush were impeached...even for a "bogus" reason. In fact I HOPE IT HAPPENS! You went out of your way to congratulate me for that judgment.

I see impeachment as a Constitutional political process. My oath to support/defend said document would make me nothing more than an interested bystander if that process were to take place against Pres Bush.

However, if you were to change your scenario…say, to storming the “Domicile of Black Robes”…well then, you may not be so congratulatory after hearing my response to THAT ONE!! :>

Posted by docjim505 [TypeKey Profile Page] | March 27, 2007 6:56 PM


Now, now! Mustn't disturb Madame Justice Ginsburg's naptime or interrupt Mister Justice Breyer while he pores over foreign law books to help him interpret our Constitution!

However, if you ever decide to take a horsewhip into the Congress and put it to good use, give me a call.

Posted by Woody [TypeKey Profile Page] | March 27, 2007 8:00 PM


In that Barron v. Baltimore case, the Court completely ignored the supremacy clause, and therefore, the supremacy of the Constitution for the United States over the constitution(s) and laws of the several states.

This next from that same case is as fallacious as it gets. The Court said, "They(the amendments in the Bill of Rights) are limitations of power granted in the instrument itself,...". It is fallacious because there is no power in the Constitution granting power to Congress for the *taking of land in the first place to be limited by the Fifth Amendment, same as there is no power in the Constitution granted to Congress to govern the keeping and bearing of arms to be limited by the Second Amendment.

I see no consideration in this "decision" for the right of the individual. None. Chief Justice Marshall and every other justice who went along with him on this blew it big time. It is a "Bill of Rights", and each amendment in it is a limit or prohibition on the powers of government. ANY government.

*The Union may not take land. It may only acquire land by the process in Article I, Section 8, Clause (17).

Back to the Cocrum case, yes, they hit the nail on the head. There is nothing to prevent passing and enforcing law governing certain uses of arms and proscribing penalties for the misuses of arms - as severe as the misuse might warrant.


"Revolution is the Right of the People to preserve or restore Freedom. Those vested with power shall neither deprive the People the means, nor compel such recourse."

Posted by docjim505 [TypeKey Profile Page] | March 28, 2007 4:10 AM


Thanks again for an informative and interesting discussion. However, I think we simply disagree. Mind you, I don't necessarily like the idea that the Bill of Rights is binding only in cases involving the feds; in principal, a State could institute slavery, abrogate the right to jury trial, deny freedom of the press, etc, without the feds being able to do a thing about it (well, absent the Reconstruction amendments, anyway). Happily, the various State constitutions have similar "bills of rights" in them and so we don't have to worry too much about that.

But I maintain that, once it is accepted that the rights enumerated in the federal Constitution are binding on the States, then it must follow that ANY right or POWER - including those made up from whole cloth by the Supreme Court - also becomes binding, and the country is well on the road toward judicial oligarchy.

Posted by Woody [TypeKey Profile Page] | March 28, 2007 8:15 AM


Any right wouldn't be a problem, since rights only belong to people, but for any powers the Supreme Court might dream up, Congress has the power to instruct the Court otherwise and justices can be impeached just like anyone else in government.

Having our Constitution followed and rights protected the way they are supposed to be would eliminate a lot of the usurpations of power and oligarchic rule we suffer right now. One good example would be all the power usurped for Congress when the Supreme Court amended the Constitution by adding "limit" and "prohibit" to the definition of "regulate".


Posted by docjim505 [TypeKey Profile Page] | March 28, 2007 8:38 AM


But consider Gideon. The Court decided that people's right to counsel REQUIRES the state to provide counsel if the defendent can't afford it, and in order to fulfill this obligation the state has to take money from the taxpayer to fund public defenders.

Somehow, we've gotten away from the idea of a "right" being a liberty that is not to be abridged by the state without due process and gotten to the idea that rights are priviledges that must be funded and administered and safeguarded by the state. We've decided that education is a "right", and so we spent hundreds of billions on the public school system and the bloated, inefficient bureaucracy that oversees it... and politicians and special interest groups are there to make sure they get their cut. We've decided that health care is a "right", and it's only a matter of time before the health care system is federalize to "ensure" that right. It's as if the government started passing out printing presses or M-16s in the interests of "ensuring" our First and Second Amendment rights.

As for impeaching judges or justices, absent a "high crime or misdemeanor", I don't think it can be done. While we may lament it from time to time, the Constitution doesn't allow for impeachment on the ground of stupidity (else no member of Congress would last more than a few weeks in office!).

Posted by Woody [TypeKey Profile Page] | March 28, 2007 1:21 PM

I have to disagree with the Gideon ruling. The Constitution recognizes a person's right to council, but the Constitution doesn't guarantee that a person shall have council.

As for the handout of printing presses and M-16's, there is power granted to Congress to hand out the M-16's in Article I, Section 8, Clause (16). No such luck on the printing presses. Congress can't even give us a pad of paper and a pencil as far as the Constitution is concerned.

Don't expect those M-16's to be passed out any time soon. Once passed out, Congress has no power to take them back!

The Justices and other judges serve during good behavior. Abridging, ignoring, misconstruing, or going outside the Constitution is not good behavior. Theoretically, justices and judges are held under much tighter scrutiny than anyone else in government. You'd never know it, though.