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2018-07-11 07:00 by Karl Denninger
in Editorial , 505 references Ignore this thread
So What About Kavanaugh?*
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Can you stop the caterwauling already?

Look folks, just cut the crap.  Seriously.  There's nothing legitimate about SCOTUS at the present time.  Nothing.

And no, neither left or right did that to the SCOTUS -- not Bush, not Obama, not Clinton and certainly not Trump.  The SCOTUS did that to itself, and we the people then ratified it -- and it happened a long time ago.

To make the example and underline the point I shall go back to the root of the problem we have today with the Judiciary, with the SCOTUS and with the Federal Government generally: The 17th Amendment, proposed on 5/12/1912 and ratified less than a year later on 4/8/1913.

Following that came Wickard .v. Filburn, 317 US 111, decided in 1942.  That decision was unanimous.

I bring this up because I was sent the following on Kavanaugh, which is a decision he filed a dissent on related to Obamacare, known as Seven-Sky .v. Holder.

Kavanaugh has been "credited" with giving Roberts the idea that he could "recast" Obamacare as a tax, and by doing so providing him the means to "save" Obamacare.  Nonsense.  Kavanaugh argued in his dissent that the Anti-Injunction Act prohibited the court from granting relief and never reached the merits at all.

This is important because, if you remember, Roberts didn't just recast the "penalty" (impermissible) as a tax -- he recast it as a Direct Tax, which is constitutionally impermissible on its face and has been since the founding of the nation except on a capitated basis.

In other words it is Constitutional to lay a $10 per-person direct tax -- but you can't condition or vary it.

There were multiple attempts to lay an income tax and every one was struck down as a violation of the Constitution, leading to the 16th Amendment, which permitted same.  But the 16th Amendment only authorized taxes on income; it did not override the general prohibition on non-capitated direct taxes in the Constitution.

That is, Roberts re-wrote an unconstitutional "penalty" into an Unconstitutional Tax -- a black letter unconstitutional tax that was unconstitutional in 1789 and remains so today -- and yet nobody has done a damned thing about it.

This is, I remind you, despite the Congressional Record from the time of the crafting of the PPACA containing evidence that Congress knew they couldn't define the "penalty" to be a tax as they knew that was a facially-unconstitutional direct tax so they intentionally worded it as a penalty to try to get around that infirmity!

I bring all this up, especially the elements of Wickard .v. Filburn, because if you read the above linked opinion -- not Kavanaugh's dissent but the opinion that was issued -- you will in fact find myriad references to Filburn as controlling precedent.

But Wickard .v. Filburn was nothing less than a complete re-write of the Constitution so as to remove the separation of power between the Federal Government and the States!

The decision held that a farmer who grew a crop for his own internal consumption -- that of his family and his animals on said farm, never entering one grain of same into commerce, was nonetheless subject to federal regulation on how much of said crop he could grow or whether he could grow it at all.

The claim was that because his act of growing same would mean he wouldn't need to buy as much, or none at all, of the same product or something that provided the same benefit (e.g. was food and thus sustained life) that affected interstate commerce.

By this decision the Supreme Court completely tore up the entire Constitution; it rendered literally no subject matter beyond federal regulation.  You can, under this premise, have a federal law passed making it illegal for you to have a toilet in your house with the intended effect of forcing you to go down the street and pay $1 to take a crap each time.  Why?  Because if you have a toilet you will not need to use the public one at $1 for each use as much, or even at all.  Since the pipe (for the water!) might travel in interstate commerce this affects same, and thus federal regulation attaches.

So given that precedent, and that the correct and immediate response to that decision was not taken by the States (specifically, to immediately secede and call up their National Guard units to enforce same until and unless the Constitution was restored as the contract with the States had been breached egregiously and without any possibility of recovery through peaceful means) what do you think was going to happen with Obamacare?

Here lies the problem with Kavanaugh -- and all the rest of these black-robed bastards: They know good and ******n well the Constitution prohibits nearly everything in Federal Law today and they don't give a ****.

More to the point neither do you so long as the violations are to your liking!  Nowhere is the Federal Government empowered to regulate public schools.  There is no Federal Constitutional right to an education -- of any sort.  Yet there is title after title bearing on exactly this, forcing expense down the states' throats.  The States have constitutional guarantees at the state level for a public educational system but nothing allows federal reach into same.

THE SUPREME COURT DOES NOT HAVE THE POWER TO REWRITE THE CONSTITUTION YET IT ROUTINELY HAS DONE EXACTLY THAT.

The Founders were very specific on creation of a weak federal government and strong states.  They did it for the specific reason that they fully expected and anticipated exactly the sort of schism between the people we have today.  They expected and designed the federalist system so that 13 (now 50) political laboratories would be empowered to each come up with their own set of rules, regulations, taxes and benefits.

The Federal Government's role was to (1) prevent invasion whether by stealth or force (gee, they're doing that today, right?), (2) to prevent states from trying to rig the outcome of their political experiments by laying what amount to tariffs on goods and services crossing state lines and (3) to protect against infringement of individual rights (all of which pre-exist government and are not granted by same) such as the right to speak, the right to freedom of worship, the right to self-defense (thus the Second Amendment) and the various collection of due process rights such as the right to a trial by jury, to confront one's accuser and to be free from searches and seizures except upon issuance of a warrant containing the specifics of probable cause, and strictly limiting what was to be searched for, and where.

To the extent a state wished to enact a tax and spending program that issued welfare they could.  But they couldn't compel any other state to go along with it or pay for it as absolute control of the upper house -- the Senate -- rested in STATE LEGISLATURES.  In other words the people had their proportional representation (in the US House) and the State Legislatures had theirs (in the Senate.)

To pass a federal law, say much less a Constitutional Amendment, you needed concurrence of both.

The 17th Amendment ended that.  The State Legislatures were permanently stripped of the foundation of their power at the Federal Level -- the requirement that they concur through the Senate before any Federal Law could be passed.

Further, let me point out that at the time of Wickard, and indeed continually both before and since, the US Congress could have constrained the power of the US Supreme Court.  Congress has the power to establish tribunals inferior to the Supreme Court (and over which it has appellate jurisdiction), and has (Article I, Sec 8)

But the Constitution also says this in Article 3 Section 2 about Congressional Regulation of the Supremes:

2: In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

Congress can control the boundaries of any appeal, for instance.  And while Congress cannot prevent any case in which Original Jurisdiction rests these are a tiny, in fact vanishingly small, percentage of the whole of what the Supreme Court hears.

But it hasn't.

So what about Kavanaugh personally?  Well, he's opined that assault weapon bans are unconstitutional.  He's right -- they are and so are all other federal gun laws except those bearing on interstate commerce.  Laws banning or regulating, including licensing or permitting, the "keeping and bearing" of arms are black-letter unconstitutional.  Period.

But he's also opined that the President is immune from indictment.  Uh, no.  That's not in the Constitution; I know how he reaches that viewpoint but it simply isn't in the enumerated powers and with good reason.  A primary principle of statutory and Constitutional construction is that words that are present mean what they say and those that are omitted cannot be added in; the writers are presumed to have omitted the words you might imagine you'd like to see on purpose.  Indeed the founding principle of this nation is that all are created equal.  One cannot be equal if one is immune from the legal strictures that apply to anyone else as a consequence of being elected or appointed to a political office.  Finally the Constitution is a negative document not just by inference but by actual word in the 10th Amendment; that which is not specifically delegated as a power does not exist at the federal level -- including for federal office holders!

Does Kavanaugh have an excellent intellectual background and ability to reason?  Absolutely.  But is that the test?  It ought not be yet the usual pablum of "obeying the written Constitution" was trotted out by him at the lectern (it is not a podium folks -- learn the difference Mr. President!  You stand on a podium, and you speak behind a lectern!) -- which is an utterly common yet blatant and outrageous lie uttered by all Supreme Court nominees.

When you wind it all up what you have here is a nominated man who has the very same idea of making the Constitution read the way he wants it to that Sotomayer and Kagen have -- along with others before them and plenty of robe-wearers right now.  Nor can you point to Scalia, who once again "found" things that simply never existed.  They simply have a different idea of how they want the Constitution to read.

Yes, it is a fact that actually obeying the dictates of the Constitution means that a huge percentage of the alleged laws on the books -- like 80% of them or more -- simply go "poof" like a fart in a Church.  That's how it's supposed to work.  Nearly the entire federal gun law set, for example, is unconstitutional.  Ditto for the "scheduling" of drugs; Congress knew damn well they had to pass an amendment to ban alcohol.  Alcohol is a drug, and a drug of abuse.  Well?

Then there's Roe.  If you haven't read the actual opinion you should; it has a quite-full exposition on the history of abortion included in it.  It's an extraordinarily well documented piece of judicial reasoning, whether you agree with the conclusion (and its limitations; there was no blanket right to abortion contained in the opinion) or not.  But Roe, in the end, turns on whether you have an individual right to privacy, which the justices found.  Well, if you do and it vests in the Due Process clause of the 14th Amendment, how come it hasn't been applied to anything else?  Why can a private entity collect all manner of private data and sell it to anyone who they want including the government, without a warrant?  Why can the government use a DNA database without a warrant?  Why can the government (and it does, by the way, in many if not all states by now) collect DNA from all newborn children and catalog that?

In short how do you have a constitutional right to privacy if you can't actually enforce it anywhere except in the abortion doctor's office?

Cut the bull**** folks.  Those screaming on both sides of the aisle are simply demanding that the government put its boot on your neck as they want it to, and not as the other side wants.

NOBODY is arguing for a return to the boundaries of the Constitution, never mind that pesky 17th Amendment we can't get rid of without a revolution.

With that said I predict Kavanaugh will be confirmed -- before the election.

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Gbacker
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Should be required reading for politicians and lawyers across the country.
Jwilson2359
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So true, the 17th was the beginning of the end for this country. It upset a critical balance that was and still is necessary for constitutional integrity. I would like to see it repealed but I do not see that ever happening, short of a revolution.
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It can't be repealed.

To do so you would need the sitting Senate to literally vote itself out of a job. While there would likely be some percentage of the Senate that would be re-submitted by the state Legislatures in virtually all cases at least one of said Senators would not be.

I have long argued that the 17th Amendment is both irreversible and marked the literal destruction of the Framers intent. That we continue to allow people to run that crap, including Kavanaugh, is an outrage but I see exactly zero pushback from anyone on that and related points, since their intent is almost-EXCLUSIVELY to use their claim of "original intent" to PLACE a boot on someone's neck rather than prohibit same.

The political schism we have today is NOT NEW. But it was manageable without leading inevitably to violence in a nation where state political laboratories were the arbiter of success. In a nation where states can and do have HUGE percentages of their operational and budgetary control dictated by the Federal Government, however, as popular federal representation shifts you INEVITABLY will have one side or the other unable to escape the dictates of the other. Eventually, when the polarization reaches a critical level, there is no longer a peaceful means available to resolve the issues since you cannot simply pick up and move to a state with a more-similar view than where you reside now.

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Even the senators that would be voted back in by the state legislatures would have to worry about state legislatures changing hands in the future, while they don't today. Short of a constitutional convention, no way in hell this would happen.

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A ConCon is the worst of all possible outcomes -- even worse than a revolution.

There is NO MEANS to constrain what comes out of that. Roberts Rules prohibit attempts to do so; a motion from the floor to suspend the rules adopted at the outset is all it takes, and if sustained you're instantly ****ed.

Given the schism in the nation today there is ZERO probability of that not occurring.

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"Given the schism in the nation today there is ZERO probability of that not occurring."

Yup...and Yikes!

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Magus
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Agree 100% - I would never advocate for a CC in the current political environment. Best case would be watering down of the Bill of Rights/etc. Worst case would be a straight up civil war.

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so basically he is smart, accomplished, relatively conservative and a believer in the "living document" school of the constitution. this allows every special interest group to bend the rules regardless of how noble or worthwhile its intentions.

the founders required that all changes to the rule of law be difficult and follow a pattern which in itself is a check on power. this has been permanently lost.

most lawyers that i know like this concept as they see it as lawyers working out the problems among themselves as they know better. shame as it is not the way it is meant to be.

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Tickerguy
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@Whitehat --
Quote:
so basically he is smart, accomplished, relatively conservative and a believer in the "living document" school of the constitution. this allows every special interest group to bend the rules regardless of how noble or worthwhile its intentions.

He CLAIMS to be an originalist, but his OPINIONS say otherwise -- that he can find whatever justification he wants in the original words, so yep -- "living document" it is.

The Framers, were they alive, would have LONG AGO again dusted off The Declaration, presented it, and WHEN it was ignored told them "come and take them -- and good luck, *******s."

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Quote:
It can't be repealed.

To do so you would need the sitting Senate to literally vote itself out of a job. While there would likely be some percentage of the Senate that would be re-submitted by the state Legislatures in virtually all cases at least one of said Senators would not be.


I can be repealed, but it is likely as a snowball's chance in hell with most of the current Senators. Unless you invoke Article V:

Quote:
The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.


Tougher way to get it done, but still valid. I think many state legislatures would love to get back some of the power they lost with the ratification of the 17th Amendment.

I am all for the 17th's repeal and that of the 16th.




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Ee4fire: You're speaking of a Constitutional Convention... which, as KD and others have mentioned, would probably be even worse than a revolution...

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About the only way I see that it MIGHT work is if you grandfathered in all currently serving Senators and made it only applicable after the current serving Senator had either retired or lost an election.

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Thanks for the history lesson. The constitution is dead. Every level of dot guv everywhere violates it at will 24/7. The people have never read it. Nobody knows what it says and nobody cares. A contract that nobody has read and nobody follows is no contract at all. It is null and void. Proceed with the revolution or be a stain on a tank tread.

Kavanaugh is a career Statist and I don't care one wit what he thinks the law is.

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Quote:
Ee4fire: You're speaking of a Constitutional Convention... which, as KD and others have mentioned, would probably be even worse than a revolution...


There is a danger in a constitutional convention. There is also a danger in not pushing back against the socialist/communist faction that is determined to make us a socialist country and undermine our constitutional republic.

Also the Constitution requires 3/4 of the states and not the population. There are far more conservative or "red" states than "blue" states. I thinks the 2/3 for calling the convention is the easy part getting 3/4 to agree will be the battle.

Many blue states have state legislatures that are not as liberal as the governor or senators from those states. Virginia is one of those states where the legislature is more red than blue. Even though they have two democratic senators and democratic governor. California's legislature is full of socialists, but its voting power at a convention is the same as Wyoming.

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(Politicians), 536 commoditized temple monkeys pawing through the ruins of America in search of bribes. (The District of Corruption) works like a vending machine. You put coins in the slot, select your law, and the desired legislation slides out." Fred Reed. Some editting by me.


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Ee4fire wrote..
There is also a danger in not pushing back against the socialist/communist faction that is determined to make us a socialist country and undermine our constitutional republic.


I posit that both of these have already occurred.

And for the danger of a Constitutional Convention one needn't look any further than the original Convention.

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I taught American Government at my Community College Alma Mater several times. When I taught it, I went through the Declaration of Independence, and the Constitution word for word. Then, I would add a bunch of American History, and venture out into Federalism, Political Parties, and the like. One of my faculty colleagues had conveniently put up a poster detailing a host of federal government programs, and so, I asked my class to read that list, and then comment as to whether or not these programs were actually Constitutional? The class read the poster, and then the chorus started, "None of them are Constitutional!" They got it! And that is one of my favorite memories of my teaching career!
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@Tickeryguy --

yes, he says the right things to the right wingers that they so much want to hear that they do not look at his actions. mix this in with them figuring that he is the best that they will ever get and you have the next compromiser like the other so-called conservative originalist justices who sold out in the past, Obamacare anyone.

the so-called right needs to realize that when you support the lesser of the evils you still get evil.

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The right and left are not looking for good; BOTH SIDES believe the USSC has not only the power BUT THE RIGHT to "fix" the Constitution AS THEY WISH IT TO READ instead of as it ACTUALLY does.

The reason is simple and stark: They know damn well they can't get the necessary votes to AMEND IT using the legitimate process, so they do it THIS way.

That makes them worthy of being HUNG -- on BOTH sides -- as BOTH are intentionally, through use of force, literally overthrowing the form of government we have.

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Whitehat
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yes, yes, yes, thank you for saying it. they are both wrong and guilty of intentionally destroying one of the greatest successes in human society for their own gains and ideology. by destroying this once great system one can no longer find a state where certain constitutionally acceptable conservative rules of life are the norm or where more libertarian attitudes prevail along with differing taxation and business rules. countrywide we have lost local culture and competition for one big liberal slop. one selects a place to live by a least bad criteria which is a terrible waste of our potential.

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There are two ways to be rich: One is by acquiring much, and the other is by desiring little.
snow, seasons, distance and dirt roads: SSDD
"Be not deceived; God is not mocked; for whatsoever a man soweth, that shall he also reap" (Gal. 6:7)
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This "ticker", should be pinned

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Angerydenny
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Karl, your insights here are almost on the mark. The major problem with your analysis is you embrace the common historical propaganda regarding the so-called founding fathers; namely that they intended to create a free Union of States by replacing the Articles with the Constitution. There is a tendency today to lump the Founding Fathers together as though somehow they thought alike, acted in unison and actually got along with each other! The Federalist Papers represented counter revolutionary propaganda to push the people into accepting a counter-revolutionary constitution. Charles Beard and Sheldon Richman have done some good work making this point. If you had read Thomas Paine's criticisms of the Constitution prior to and during the convention you would know that he predicted, with prophetic accuracy, the Judicial Tyranny that would ensue if the Supreme Court was placed under the Executive branch. He also predicted the Imperial President or Unitary Executive that was also a clear eventuality of the Constitution. James Monroe and others clearly saw what the US Constitution presaged. What we have today IS EXACTLY what Hamilton, Jay, Madison wanted: a corporate state with a standing imperial army and a private central bank controlled by the moneyed oligarchy. The constitution was conceived as a cynical way to perpetuate the American Counter Revolution endlessly into the future. That is why you will never run out of fodder for you anger! There is no solution in the constitution. HA!

Love you, but you have veganism as wrong as "original intent"...
Scott

https://www.libertarianism.org/media/liberty-chronicles/constitution-counter-revolution-sheldon-richman

http://www.globalresearch.ca/americas-hi....

https://mises.org/library/no-treason-con....
Tickerguy
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First, I've read BOTH The Federalist and Anti-Federalist. You presume much before taking the cheap shot.

Second, as far as the veganism cheap shot goes I saw that horse****'s face on CNBULL**** today and she was a fat ****ing sow. Walking DIABETES, to which Oprah has subscribed (big shock -- NOT!) If you had read ANYTHING around here for ANY length of time you'd know more than a bit about my view on it.

I'd give you the benefit of the doubt were I feeling charitable -- but I'm not, so....

 

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Goldmanssack
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oh jesus...They're even marketing their food as anti-inflammatory, while trotting her about. I can't wait for the ticker on this.

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