July 4th: What You WON'T Hear Today
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2018-07-04 01:00 by Karl Denninger
in Editorial , 468 references Ignore this thread
July 4th: What You WON'T Hear Today
[Comments enabled]

This piece from a few days ago tells the tale by omission.

The Declaration of Independence talked about England’s “history of repeated injuries and usurpations, all having in direct object an absolute tyranny over these states.” In response, the founders established the principle of self-government – not just by limiting the powers of government but, vitally, by decentralizing government, as enshrined in the 10th Amendment.

That virtue of decentralization has been under assault for decades by a vast, bureaucratic federal government machine that is as remote, corrupt and unaccountable as the European Union. That’s why we need mechanisms like the Convention of States to return power to the people.

Nice premise.

And a lie.

A knowing, intentional lie.

Yes, this is looking at you Meester Levin.

Here's what the Founders actually wrote:

The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.

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.

One decision specifically folks: Wickard .v. Filburn.

There is no Constitutional power for the Supreme Court to claim that:

  • It can rewrite a statute (e.g. The Affordable Care Act) so as to "save it."  Roberts claimed that judicial construction requires this.  He has no basis for that claim in the Constitution; he literally made it up out of whole cloth and got away with it.

  • It can add or remove words, or alter their plain meaning.  The entirety of the body of federal law on firearms other than aspects dealing with actual interstate commerce, is flatly unconstitutional.  Period.

  • It has jurisdiction of any sort for citizens internal to a state and its law unless said law(s) impact on a delineated and declared individual right protected by the Constitution as that inherently implicates the Federal Government's duties.  For the Supreme Court to have jurisdiction under the Constitution there must be diversity of jurisdiction at issue or where one of the parties is the US Federal Government.

The Supreme Court does not have jurisdiction otherwise.

The Constitution does not grant it and the Constitution explicitly states that it is a negative document (that is, it grants limited powers to the Federal Government while all others are explicitly prohibited.)  Period.

The Supreme Court did not have the power to rule on Roe .v. Wade, for example.  It doesn't matter whether you believe a woman has a right to choose whether to terminate a pregnancy or not; the Supreme Court has no power to compel an entirely intrastate decision on said laws and regulations because the Constitution has no such framework under which to make that decision nor does it grant such a power to the Federal Government or the Supreme Court.  It can rule on whether (for example) you can act in Interstate Commerce to produce an abortion (and answer that in the affirmative) but not whether a state can entirely within its borders regulate (or even prohibit) same.  The court found a "right" in that decision that it made up entirely out of whole cloth -- a right to "privacy" -- but note that nowhere has that "right" been applied against Google, Facebook, Amazon or for that matter the medical system itself.

The Federal government cannot regulate commerce or personal activity entirely within a given state.  The States can, but not the Federal government.  Wickard .v. Filburn was a flat usurpation of authority that never existed.  There never was and does not now exist the authority for the Federal Government to regulate any intrastate commerce.

The Federal Government knew it had to pass an Amendment, for example, to ban liquor throughout the United States; it knew there was no federal authority to do so entirely within a state otherwise.  The same applies to marijuana or any other drug, incidentally yet that's conveniently overlooked despite the fact that the Federal Government admitted through both the 18th and 21st Amendments that it had no power to regulate or prohibit intrastate production and consumption of anything, including "drugs", without an explicit grant of said power via Constitutional Amendment.

Amending the Constitution is hard -- intentionally so.  It's hard because expanding government power, especially Federal power, is a thing that should never be done lightly or without damn good cause.  Once expanded political power is almost-never removed without people being killed en-masse.  Further, history has proved time and again that most of the time the process of trying to fix those acts of usurpation not only fails it fails dramatically and the people wind up in worse condition than they were before (Nazi Germany anyone?)

The genius of America came in the form of 13 (originally) and then 50 state political experiments with wildly varying amounts of government regulation, taxation and public services.  The Federal Government was explicitly barred from intruding into nearly all matters within a given state, except for those areas specifically outlined in the Constitution and its Amendments as the Founders explicitly intended that some states would find their experiments more successful than others.  This in turn would either compel the losers to change their viewpoints or find themselves increasingly, but peacefully, marginalized for their refusal to do so as people moved from the unsuccessful to the successful states.

Wickard .v. Filburn was a raw theft of that power from the states by the Federal Government.  It should have been met with the immediate refusal by the States to acquiesce, if necessary backed by the Governors calling up their National Guard contingencies as there never was and still does not exist today jurisdiction in the Supreme Court on the matter.  The substance of this case was that Filburn was growing wheat to feed animals on his own farm.  The entire cycle of life of said wheat was contained within the boundaries of one state.  The Government claimed that because he grew it he wouldn't have to buy as much wheat on the market, that wheat was traded both nationally and internationally in the marketplace and thus his lack of need to make a purchase through his entirely intrastate actions meant it had jurisdiction.  In short the Supreme Court claimed that there was no limit on any act of the Federal government, ever, since any action or inaction by a citizen always results in some change in one's economic activity.  The mere act of taking a crap leads to "interstate commerce" under this standard and thus the Federal Government can regulate where, how and when you may do so or even tax same; you might buy toilet paper, if you use water to flush or wash your hands you might cause your local government to consume chlorine shipped across a state line to sanitize said water, etc.

The Court ripped up the entire Constitution with this decision -- and thus far, since 1942, for more than 75 years, it has gotten away with it.

Then there are decisions where the litigants lied before the court.  Miller, the seminal empowering decision for federal gun control, was one such instance.  Not only was Miller unrepresented (he was broke and nobody showed up to argue his side of the case) but the US Government directly lied to the court both orally and in written form about the lack of military application of the weapon Miller was arrested for possessing (a short-barrel shotgun), claiming it had no legitimate military or militia purpose despite having previously purchased a weapon of almost-exactly the same design, form and function by the thousands for use in trench warfare during WWI.

Roe .v. Wade was also a deliberate lie.  The claim was that Roe was raped.  We know this was a lie because Roe later disclosed same.  While that was not the foundation of the decision it clearly played into the sentiment on the court and it was not a mistake it was a lie.

Perjury is supposed to be one of the highest offenses in any civilized nation because in every single case it perverts justice, yet in neither of those cases was any subsequent notice given to same nor were the judgments vacated.  Congress could address this but has refused to even discuss it.  There are dozens of similar instances and in exactly zero of those events has a litigant ever faced justice for having done so nor has any Supreme Court decision been summarily tossed on that basis even when the lie is later admitted by the litigants or facutally proved, as was the case in both Roe and Miller.

We have a framework for not only our government but for changing how it works.  The problem is that you can no longer find it in the many linear feet of law and regulation directly contrary to the limits on power in the Constitution and nobody -- utterly nobody -- will do a damn thing about it.

No, a "Convention of States" will not address this.

Why not?

Because the highest law in the land already addresses all of it and said law is routinely and outrageously ignored without one scintilla of consequence attaching to any government agency or employee who does so -- ever -- even when they perjure themselves while under oath.

There is utterly no reason to believe, until and unless that highest law of the land is enforced, which will only happen when the people demand it be enforcedthat any such event will mean anything as whatever such a "Convention" produces will also be ignored unless it is backed up with a credible threat of force.

Why do we need a "Convention" to enforce what already exists?

So on this 4th of July, until and unless attitudes change and the people decided to enforce the black letter of the Constitution we are in fact having a celebration of Dependence day, not the converse as the Constitution is a literal dead letter.

Enjoy your beer.

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