Sunday, March 26, 2017

The 18th Amendment


Prohibition!!


Section 1.  After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.
Section 2.  The Congress and the several states shall have concurrent power to enforce this article by appropriate legislation.
Section 3.  This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several states, as provided in the Constitution, within seven years from the date of the submission hereof to the states by the Congress.
With its ratification on January 19, 1919, the United States entered into the alcohol-free era where booze was outlawed and we would become a much better society.  This was the culmination of a long-term effort by the temperance movement and a progressive highlight of that time.  Who could have possibly understood the second and third order effects of telling the average citizen they could possess alcohol, but could not legally buy it?
What I find so amusing about this, is we men decided to outlaw booze before we were willing to give women an equal voice in voting.  Was there a cause and effect relationship?  Actually, there probably was.  Both came up in the Congress about the same time in the later-half of the 19th century and both were ratified the same year so the idea that suffrage and temperance go hand-in-hand does not seem to be that much of a stretch.  This idea is reinforced, at least for me, in the movies of the time where we see groups of women banding together to shut down the saloons in their western towns.  Now, how accurately movies depicted real life is always subject to opinion.
This Amendment illustrates one of the dangers in social engineering through the creation of laws, and the Constitution.  Up to this point amendments had been approved to clarify how government was to work (e.g. 11th & 12th, or 16 & 17th amendments), or to protect and expand individual liberties (i.e. Bill of Rights, 14th and 15th amendments), with ratification of the 18th its framers and the politicians who approved it were entering into the role of overseers of our personal welfare.  The fundamental question, at least for me, is:  Is it possible for an amoral entity like government to actually define what is best for me as an individual?
Although not quite the same, we see a similar approach in the modern “war on drugs” campaign the United States has been waging since the end of World War II.  How successful has that campaign been at reducing the populations desire for the various drugs.  Proponents will certainly argue it has been money well spent, but has it?  Why then do we still see some 70 years since the beginning so many who advocate for Marijuana legalization?  I wonder how much government disinformation has been put out there in an effort to win the hearts and minds of the average citizen?
At the end of the day this amendment lasted about 14 years until repealed.  Its by-product was the dramatic expansion of organized crime and bootleggers who, unencumbered by a need to follow the laws, rushed in to fill the void left as legitimate businesses were forced to close.
 

Saturday, March 25, 2017

The 17th Amendment


The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.


When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.


This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.

With this amendment, ALL the members of the Congress were chosen by direct election rather than through some intermediate body.  The Representatives had always been so chosen, but it was not until after April 8, 1913 with the ratification of the 17th Amendment that the people could vote directly for their Senators.  Why was that?

We use the words democracy and democratic with great abandon here in the United States, but our founding fathers feared the potential of utter chaos if they attempted to establish a pure democracy were everyone had an equal voice and every decision had to have majority approval.  Therefore, they took steps in the framing of the constitution to limit the potential for pure democracy.  We see that in the appointment of Judges, in the Electoral College, and in the selection of Senators, where article 1, section 3, clause 1 said, “The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.”

At the Constitutional Convention, there was only one delegate, James Wilson[i] - a Pennsylvanian, who favored the direct election of the Senators.  During the next 100 years or so the process worked, but with some difficulty.  The principle problems are the same thing we see today where political party affiliation became the dominate concern, and if a State’s Legislature was divided they might not reach consensus on a nominee, leaving that state without a Senator, or perhaps having one too many and forcing the U.S. Senate to decide who was the best qualified.

As in all things political, there were also allegations of graft and other corruptions that led to investigations into a number of Senator nominations and the odd removal for being found guilty of bribing their way into office.  These events flashed across the social media of the day; cutesy of the muckraking journalists who made their living through the exposure of political corruption.

Following this last Presidential election, we heard much caterwauling, condemnation, intimidation and attempted corruption of the Electoral College as it assembled to do its constitutional duty, by those who were upset their beloved candidate was not victorious. To those who were so emotionally distraught as to believe that life as we know it was ending, I suggest you contact your elected officials and demand they follow the same process our great grandfathers had followed when they wrote the 17th Amendment.

Friday, March 24, 2017

The Sixteenth Amendment


The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.
The 16th amendment was proposed on July 12, 1909, and ratified on February 3, 1913, but why was it necessary, didn’t the Constitution already give the Congress the right to tax the people?
 Article 1, section 8 begins with “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States” wasn’t that enough?
The short answer was no, but let’s look at why.
To begin with, Article 1, section 8, clause 1 is not the only reference to taxation in the Constitution.  Article 1, section 2, clause 2 limits the types of taxes and how they are apportioned when it says, “…direct taxes will be apportioned among the several states…”  Section 9 clause 4, “No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken.” And clause 5 continues, “No Tax or Duty shall be laid on Articles exported from any State.”  It was the section 9, clause 4 that became problematic as the government grew and the cost of government increased.
There had been time in the past when to fund the cost of war income taxes had been levied (i.e. war of 1812 and the Civil War), but they were both finite in their duration.  In 1895, the Supreme Court of the United States (SCOTUS), heard the case of Charles Pollock versus Farmers’ Loan and Trust Company which seems to be the actual event leading to the decision to amend the constitution.
In this case, Mr. Pollock, of Massachusetts, “argued that while state-regulated income taxes were considered to be direct taxes, they were not subject to apportionment; as a result, Pollock argued that unapportioned, state-regulated direct taxes were in the direct violation of the Constitution.”[i]  In its opinion - SCOTUS upheld Mr. Pollock’s claim.
The idea of an income tax and the amendment itself was supported by the southern and many of the northeastern states, but was opposed by the western half of the country.  It was also opposed by many Republican politicians based on the concerns of their wealthy supporters.
With the passage of the 16th Amendment we opened up a new revenue source for the government, and enabled a growth in government bureaucracy to what we have today.   

Thursday, March 23, 2017

The 15th Amendment


Section. 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
Section. 2. The Congress shall have power to enforce this article by appropriate legislation.
In passing the 14th Amendment without clear guidance on the right of the African-Americans to vote, the determination on voting rights was left to the states.  At the time neither the Northern or Southern states were all that keen in allowing the Blacks an equal voice in the government, and the courts sided with the popular position of the day.  Nonetheless, supporters recognized the need to clearly provide the former slaves and freeman with equality at the ballot box.  The Amendment was proposed on February 26, 1869 and ratified 342 days later on February 3, 1870.  The following states rejected the amendment, Kentucky (March 12, 1869), Delaware (March 18, 1869), Ohio (Apr 30, 1869), Tennessee (Nov 16, 1869), California (January 28, 1870), New Jersey (February 7, 1870), and Maryland (February 26, 1870).  New York initially approved, then rescinded its ratification on January 5, 1870, but finally rescinded its rescission on March 30, 1970.[i]
Unfortunately for minorities the passage of an amendment did little to change the realities of the discrimination they faced, even when taken to the highest court in the land.  Initially, the SCOTUS was inclined to emphasize only the negative aspects of the amendment. ‘The Fifteenth Amendment,’ it announced, did ‘not confer the right . . . [to vote] upon any one,’ but merely ‘invested the citizens of the United States with a new constitutional right which is . . . exemption from discrimination in the exercise of the elective franchise on account of race, color, or previous condition of servitude.’” [ii]  Fortunately, later courts have amended this early interpretation, and the courts have been actively involved in settling the various tactics our politicians have used to subvert the suffrage of African-Americans.  Unfortunately, these have historically been done retroactively, after the damage of discrimination has occurred.
 It would be nice if I could write that today the 15th Amendment stands as only a reminder of what was once a wide-spread problem in the United States, but I cannot.  Racial discrimination remains alive and well, in fact it has grown significantly in this century as various groups come into power and attempt to maintain that power through the creation of racial division and strife.  The hopes of those who crafted the 15th Amendment remains an unrealized dream, but the safe-guard stands for those whose rights are taken through the subterfuge of the political establishment. 

Wednesday, March 22, 2017

The 14th Amendment


Section 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
As noted in the discussion of the 13th Amendment it took our politicians 60 years to find reason to amend the US Constitution between the 12th and 13th Amendment.  The purpose of the 13th was to remove or limit the rights of the several states to manage the society within their territory and therein increase the role of the central government.  The 14th Amendment carries this notion further.
Flush with the “thrill of victory” and the survival of the US following a long and costly Civil War the Congress set out to make sure the conditions that set us at each other’s throats were addressed in this amendment, and while they were at it, make sure those who had waged the insurrection, or loaned them money, didn’t come looking for the North to pay the bills.
The ratification took about three years once it went to the states but by 1868 it was approved by 28 of the 37 states and became the law of the land.  So, what does it do? 
Frankly, it does a whole lot and is the basis for much litigation including such milestone cases as Dred Scott v Sanford (1857) that said slaves were not citizens and therefore did not have the rights of a free person, Plessy v Ferguson (1896) that allowed “separate, but equal,” Brown v Board of Education, (1954), that overturned “separate but equal,” Roe v Wade, (1973) limiting a state’s right to prevent abortion, and United States v Windsor (2013) overturning the Defense of Marriage Act (DOMA) with regards to same-sex marriage.
Let’s start with the next to last clause, since it should be the easiest to understand. 
The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
We had just ended the war, the soldiers who survived and the families of those who hadn’t wanted assurances they would be paid for their sacrifices.  The framers of the amendment made sure there would be no back peddling on this issue.  At the same time, they were not about to assume the debts of the southern states who succeeded and began the war with the firing on Fort Sumter.  Today, we see little about this clause, but in the 18oo’s, following the war, this was a big deal.
No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
Clearly, politicians being politicians didn’t want to see the same folks who started the ruckus returned by their constituents to the same seats they held prior to the war.  This clause prevented that, and made room for the northern carpet baggers to gain control of southern politics for a time.  But as in all things political, they gave themselves some wiggle room in allowing themselves to say by a 2/3 vote of both houses that some of the rebellious politicians might be okay, and could be welcome back into the fold.
Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
This clause rescinded the compromise reached in the original Constitutional Convention where the delegates assigned a 3/5 value to slaves held by the slave owners (primarily in the South, but at the time there were some Northern owners as well).  This compromise was reached to address the concerns of states like South Carolina who had a significantly smaller free population than many of the other states like Virginia and Massachusetts.  
All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Finally, we come to the most important clause in the Amendment.  The clause that is at the heart of almost all the litigation that reaches the Supreme Court regarding the equal protection and due process protections of the Constitution and how the states and federal government attempt to subvert those basic safeguards.
For example, in Roe v Wade (1973), Texas argued it was exercising its duty to protect the life of the fetus when it established the laws dealing with abortion.  Those on the other side said the fetus was not a living being and the life of the mother took precedent.  The court sided with the plaintiffs, saying there was no universal standard as to when life began but at the time the first trimester was chosen as the point before which the mother and her physician could make a determination as to what was best for the mother.  Those favoring abortion have greatly extended the point of determination, up to the third trimester when a fetus is clearly viable outside the womb.  We seemed to have lost sight of this original court decision.
More recently, the case of United States v Windsor (2013) saw a sympathetic Solicitor General choose not to defend the DOMA, and the Congress hire a lawyer to fill the role of the Solicitor General.  In its decision, the Supreme Court of the United States found DOMA (which defined marriage as the union of a man and a woman) did not provide equal protection and afford the affected same-sex couples with the appropriate   due process safeguards.  It over turned the DOMA in its entirety.  
Then, of course we have a whole spate of civil rights cases dealing with the protections of the African-American population and the systemic discrimination they have been subject to.  Depending on the court make up, and the social pressures of the day we have seen the court take contrary positions on several of the cases.
The 14th Amendment is probably one of the most important changes this nation made in how it would treat ALL its citizens, but it has also shown that writing nice words on a paper is a far cry from achieving equality, for it can’t change the nature of its citizens, that only comes through a change in the moral values of the larger community.

Isn't it Racism?


Claims of cultural appropriation and racism are all the rage these days.  I read a few weeks ago where some Latina and Black women at Pitzer College were outraged at the white women in their college having the nerve to wear hoop earrings!  They chose to make their concerns known, and as in normal these days, painted their objection on their “free speech wall.”  When one blonde white girl was confused, the resident assistant at the center of this cultural debate sent out a campus wide e-mail to explain how white women wearing hoop earrings was appropriating all her core values as a WOC (woman of color), and they should stick to tiny little clip-on earrings so beloved by the WOW (white older women).  This got me to thinking about how we need to clean up all this cultural appropriation. 
How can major cities, all led by culturally sensitive progressive Democratic mayors and City Councils, allow the vestiges of racism and segregation to continue in their communities.  How many cities like New York, Los Angeles, and San Francisco exist where we have a “China Town, Little Italy, Little Havana, or Little Switzerland” communities?  Places where they allow anyone, including the culturally insensitive, to come in and culturally appropriate away? 
While I'm at it, what about the obviously racist approach where we “expect” the people of appropriate ethnic heritage to live in the same place.  We need to stop this right now.  I expect by the next election cycle all these offending places will be destroyed and all the self-driving Uber cars reprogrammed.
As a disclaimer, I admit these ideas didn’t occur until after I had a couple of beers, and had been sitting for a few hours watching baseball in the hot Florida sun.  I have found these are the times best suited for deep political thought.   
It is a shame I don’t have my own “free speech wall” to paint these ideas on.  This blog will have to suffice.

Tuesday, March 21, 2017

Spring Training and Other Stuff


For the past week, my wife and I have been to Northport, Fort Myers and Poinciana, FL on our now annual pilgrimage to see the Red Sox during their Spring Training season.  It was nice to get away from the daily routine and the daily news.  Since the sun continues to rise in the east, and set in the west I assume very little has changed since we left eight days ago.  So here is what I’ve learned this past week.

a. Pablo “the Panda” Sandavol is not really as heavy as he looks on TV, it must be true the camera adds 25 pounds.  He still is not very good moving to his right and guarding the line, but he’s not as bad as he was last year when he lost his job prior to injury.

b. Hanley Ramirez is no David Ortiz, and he still can’t find a helmet to stay on when he swings for the fences and whiffs.

c. Everyone talks about the depth of Red Sox pitching, but as far as I can tell everyone not named Porcello, sucks.

d.  I don’t think the Red Sox will win as many games this year as they did in 2016, because unless they have a 10-run lead when they turn it over to the relief the opponents will come back.

e. The 55+ community of Solivita still has nice homes, without enough closets.

f.  If you love Allen Wrenches then you will love IKEA…you can assemble an entire home with a single Allen Wrench.

g.  Some of the more idiotic Democratic politicians are still talking about Impeachment, and some of their fans are foolish enough to believe they can pull it off.  I would suggest if the Republicans couldn’t impeach Clinton for lying it seems unlikely that Trump will fall for tweeting, but keep that kabuki theater going.

h.  Some of the more idiotic Republican politicians are still talking about how implement Obamacare with a new name, while the average lower middle class citizen struggles to find affordable healthcare.  Here is my suggestion.  Treat health insurance exactly like auto insurance, mandate all companies must cover everyone, those with preexisting conditions go into a high-risk pool if appropriate and make the young pay a slight penalty for being healthy.  Then control hospital profits by treating non-profit hospitals exactly like for profit hospitals.

Finally, from a friend.  The judge that just put a hold on Trumps latest immigration EO must be really good at writing.  A 43-page decision within 120-minutes of hearing the case.  No political agenda there, no siree bob.
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