Science and the Search for Truth

Harold Kroto, Nobel Prize winner in Chemistry 1996: Treat science right and it could help save the world.

Before you come unhinged at his subtle attack on the Texas school board for including religion in texts books (by the way he is right about this), this piece is aimed just as much to the Obama and his ignorant gang as it is at the Rush Limbaughs and Mike Church's. Science and Religion are not the same thing and neither are the mutually exclusive but they don't mix well. Both are about seeking the truth and if you openly accept both you will find that there is no conflict - both require that you drop all pretensions about what you think you know and accept what you don't.

Temporary Halt in Using Murdered Babies for Stem Cell Research

Not really that opposed to stem cell research but finally a Judge that stands up and says that there is no such thing as "settled" law when it is an executive order trying to circumvent a Congressional Law. NYT: U.S. Judge Rules Against Obama’s Stem Cell Policy.

Now Let me be Clear, I own this Economy, but it's Bush's Fault

THE HILL: A year after claiming the economy as his own, Obama points finger at predecessor.

Can't have Corporations outspending Unions

Professor Bainbridge: Obama's Anti-Corporate BS.

File Under: Toss Them All Out

John J. Pitney Jr.: The GOP and the Temptation of Hubris.

What's $4.4 Trillion Among Friends

WSJ: $4.4 Trillion.

File Under: Don't Hold Your Breath Too Long!

Is Barney Fwanks having a change of heart? WSJ: Barney to Fannie: Drop Dead.

What a Bloody Mess

Rove: Deconstructing Harry Reid.

The Enumerated Powers - Article 1, Section 8, Clause 1

Article 1, Section 8 of the Constitution enumerates the powers of Congress. Beyond those enumerated powers Congress has no others. Critical to our discussion of the Enumerated Powers is to first establish the Original Meaning and intent of Article 1, Section 8, Clause 1:

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;

This is probably one of the most hotly debated Clauses in the Constitution. From the liberal point of view the Power To lay and collect Taxes, Duties, Imposts and Excises, and to pay Debts and provide for the common Defense and general Welfare of the United States stand as two separate powers granted to Congress - thus their view that Congress and Government have unlimited authority, regardless of the Enumerated Powers of the following clauses. We turn to

Joseph Story, Commentaries on the Constitution for our answer:

§ 904. Before proceeding to consider the nature and extent of the power conferred by this clause, and the reasons, on which it is founded, it seems necessary to settle the grammatical construction of the clause, and to ascertain its true reading. Do the words, "to lay and collect taxes, duties, imposts, and excises," constitute a distinct, substantial power; and the words, "to pay debts and provide for the common defence, and general welfare of the United States," constitute another distinct and substantial power? Or are the latter words connected with the former, so as to constitute a qualification upon them? This has been a topic of political controversy; and has furnished abundant materials for popular declamation and alarm. If the former be the true interpretation, then it is obvious, that under colour of the generality of the words to "provide for the common defence and general welfare," the government of the United States is, in reality, a government of general and unlimited powers, notwithstanding the subsequent enumeration of specific powers; if the latter be the true construction, then the power of taxation only is given by the clause, and it is limited to objects of a national character, "for the common defence and the general welfare."

§ 905. The former opinion has been maintained by some minds of great ingenuity, and liberality of views. The latter has been the generally received sense of the nation, and seems supported by reasoning at once solid and impregnable. The reading, therefore, which will be maintained in these commentaries, is that, which makes the latter words a qualification of the former; and this will be best illustrated by supplying the words, which are necessarily to be understood in this interpretation. They will then stand thus: "The congress shall have power to lay and collect taxes, duties, imposts, and excises, in order to pay the debts, and to provide for the common defence and general welfare of the United States;" that is, for the purpose of paying the public debts, and providing for the common defence and general welfare of the United States. In this sense, congress has not an unlimited power of taxation; but it is limited to specific objects,--the payment of the public debts, and providing for the common defence and general welfare. A tax, therefore, laid by congress for neither of these objects, would be unconstitutional, as an excess of its legislative authority. In what manner this is to be ascertained, or decided, will be considered hereafter. At present, the interpretation of the words only is before us; and the reasoning, by which that already suggested has been vindicated, will now be reviewed.

§ 906. The constitution was, from its very origin, contemplated to be the frame of a national government, of special and enumerated powers, and not of general and unlimited powers. This is apparent, as will be presently seen, from the history of the proceedings of the convention, which framed it; and it has formed the admitted basis of all legislative and judicial reasoning upon it, ever since it was put into operation, by all, who have been its open friends and advocates, as well as by all, who have been its enemies and opponents. If the clause, "to pay the debts and provide for the common defence and general welfare of the United States," is construed to be an independent and substantive grant of power, it not only renders wholly unimportant and unnecessary the subsequent enumeration of specific powers; but it plainly extends far beyond them, and creates a general authority in congress to pass all laws, which they may deem for the common defence or general welfare. Under such circumstances, the constitution would practically create an unlimited national government. The enumerated powers would tend to embarrassment and confusion; since they would only give rise to doubts, as to the true extent of the general power, or of the enumerated powers.

§ 908. On the other hand, construing this clause in connexion with, and as a part of the preceding clause, giving the power to lay taxes, it becomes sensible and operative. It becomes a qualification of that clause, and limits the taxing power to objects for the common defence or general welfare. It then contains no grant of any power whatsoever; but it is a mere expression of the ends and purposes to be effected by the preceding power of taxation.

Thus, we see from Story's commentaries that the intent of the Founders was in fact not to create a government of general and unlimited powers. Paragraph 908 is essential to our understanding, the last sentence says it all: "It then contains no grant of any power whatsoever; but it is a mere expression of the ends and purposes to be effected by the preceding power of taxation." For Story's complete discussion please see the following link: Article 1, Section 8, Clause 1.

To further bolster the view held by Story is the following letter of James Madison to which I will add some emphasis:

James Madison to Joseph C. Cabell

30 Oct. 1828Writings 9:324--25

2. A history of that clause, as traced in the printed journal of the Federal Convention, will throw light on the subject.

It appears that the clause, as it originally stood, simply expressed "a power to lay taxes, duties, imposts, and excises," without pointing out the objects; and, of course, leaving them applicable in carrying into effect the other specified powers. It appears, farther, that a solicitude to prevent any constructive danger to the validity of public debts contracted under the superseded form of government, led to the addition of the words "to pay the debts."

This phraseology having the appearance of an appropriation limited to the payment of debts, an express appropriation was added "for the expenses of the Government," &c.

But even this was considered as short of the objects for which taxes, duties, imposts, and excises might be required; and the more comprehensive provision was made by substituting "for expenses of Government" the terms of the old Confederation, viz.: and provide for the common defence and general welfare, making duties and imposts, as well as taxes and excises, applicable not only to payment of debts, but to the common defence and general welfare.

There follows this the next 17 powers specifically granted to Congress. In my next installment I will address the Commerce Clause: Article 1, Section 8, Clause 3: To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

The Constitution: An Introduction

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquillity, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

The Constitution was written in 1787 and ratified in 1788. The debates that led to the creation of the Constitution, primarily the work of James Madison, and those within the originals 13 States of the Union are beyond the purview of this series, but are important to our understanding of the Constitution and especially its original on only intent. As needed I will refer to those necessary to drive home a critical point.

Despite all of the hoopla over the Bill of Rights - originally 12 Amendments to the Constitution that were winnowed down to 10 - the Bill of Rights is not the Constitution; it is part of but not the the most important part. In fact many, as I do, believed that including the Bill of Rights would lead, as it has, to the limitation of our rights. I will not delve into this in detail here but will reserve the discussion for a later post; the point being that given the nature of Government delineating a subset of our fundamental rights could, and has, lead to the Government to infringe on rights not listed in the Bill of Rights. It should also be noted that the Constitution is also, NOT, the tens of thousands of legal opinion - Constitutional Case Law - that has been generated and spewed by 200 years of Supreme Court rulings. These opinions are just that, opinions, they are not law and can be changed whenever necessary - they are flawed interpretations of a document that really is hard to misinterpret. Supreme Court opinions represent not adherence to the Constitution but political attempts to circumvent the law to the benefit of special interests. The purpose of the Supreme Court was not to give the citizenry or the government a venue for overturning laws with which they disagreed.

It is also important to understand that the Constitution does not grant a single right (it does grant the privilege to vote). Our rights do not derive from men or governments of men - as the Declaration of Independence says: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness." It cannot be any clearer than that yet this is one of the most misunderstood - especially by liberals - notions about the Constitution - The purpose of the Constitution is to define a government that has limited scope and powers, the most critical of which is to secure our rights. So, it is a misnomer to refer to our fundamental rights as Constitutional Rights. This is a point that Elena Kagan could not grasp - thus the real reason she should never have made it to the bench.

Fundamental to an understanding of the Constitution is to understand that the majority of our country's Founders distrusted government and understood far better than our current rulers do, that government is a necessary evil to be taken in small doses. Thus the Constitution is a document intended to define carefully and clearly a government of limited extent and limited power and balanced against the rights of the states and the individual.

The Constitution consists of 7 Articles that define the structure and powers of our government. If a power is not specifically specified as belong to the government authority then the government does not have that power. That is a critical point to understand - The Government does not have ANY implied powers. Another way of saying that is, just because the Constitution does not specifically prohibit or grant a power that does not imply that the Government can claim that power. A reading and understanding of the 9th and 10th Amendments clearly spell this out:

Amendment IX: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

As we go along we will see how purposeful misunderstandings of the 14th Amendment have gone a long way toward stripping the IX and X Amendments of their important purpose.

So, let's reiterate: The Constitution does not Grant the Government any powers not specifically specified in the text of the document.

Article I of the Constitution defines the Legislative Branch of our Government and Section 8, Clauses 1-18 specify the enumerated powers of that Branch - beyond those listed in those Clauses Congress has not other powers, real or implied - PERIOD.

Article II defines the Executive Branch and other than those limited powers granted the Executive - none of which involves making laws - the President has limited authority - as intended by the Founders.

Article III defines the Judicial Branch of government and specifies that its job it to uphold the Constitution, "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution." Again not anywhere in Article III is there a granting of authority to make law and more importantly, there is no authority to grant rights to the Citizenry.

The remaining Articles of the Constitution discuss Full Faith and Credit, Debt obligations, etc. Article V, which will be discussed later is very important in that it defines how the Constitution is to be changed if needed to adapt to changing situations. "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 it's equal Suffrage in the Senate." An interesting thing to note here, is that no where does it say that the Judicial Branch has the authority to modify the intent or meaning of the Constitution.

In summary: The Bill of Rights is not the Constitution - it is a list of prohibitions on government toward a subset of our rights; The Constitution does not grant any rights; Supreme Court Opinions are not the Constitution but flawed misinterpretations of the Constitution. The Constitution really does mean what is says, it is just that simple.

The Constitution

For regular readers and maybe some new ones, beginning either Sunday evening or Monday evening - some personal events taking place will determine which evening - I will begin Gordian's Introduction to the Constitution. It will be a series of blog posts presenting the Constitution, its history and its meaning and some of the critical Amendments and their misinterpretation and abuse - 1st, 14th and the often overlooked 2nd. Obviously this introduction will be mine - but it is directly from the Constitution as it was written not from Case Law as it has been interpreted. We have to remember that the Constitution is the law, the rest is just opinion and most of not such good opinion. So, stay tuned and please do not hesitate to jump into the middle of the discussion and let's get the debate going, after all the Founders intended for us to understand this wonderful document and they would be highly displeased at its current misunderstanding by our men in black.

Revenge of the Nanny State

Banning the Happiness in San Fransisco. Look, feeding your kids an endless stream of fast food isn't a good idea, but it is the business of the parent so keep your mitts off my Happy Meal!

Morning Bell: The Gulf Recovery Obama Does Not Want to See | The Foundry: Conservative Policy News.

Morning Bell: The Gulf Recovery Obama Does Not Want to See | The Foundry: Conservative Policy News.

Why I'm Not Hiring

Excellent column by Michael P. Fleischer, small business owner on how the government is helping his business: NOT!

Sometimes being Intelligent makes you Stupid

Hat tip to El Greco for this one in the Boston Globe.

File Under: Even if it is Wrong we are going to do it anyway

Harry Reid blames the republicans for his inability to get the 60 votes needed to pass an energy bill in the wake of the Deep Water Horizon incident. Question: Why is it that Congress feels they need to do something? It was an accident. Analyze the causes; develop a solution and move on. Congress isn't needed. This is an engineering problem not a lack of regulation problem. I am, though, waiting for congress to pass a bill to deal with baby burbs - a known source of the green house gas Carbon Dioxide.

Can You Hear Me Now? | Washington Examiner

Can You Hear Me Now? | Washington Examiner

A Move in the Right Direction

In the Wall Street Journal today: Yes, Virginia . . . ObamaCare is unconstitutional.

Also, go to Mark Levin's page, his Landmark Legal Foundation wrote an Amicus Brief in support of Virginia's suit. Levin links to the opinion and the brief.

A pair of silly ADA news items

With no disrespect to those with disabilities but not everything is about them and the world should not be revolving around them. The Americans with Disabilities Act, though noble in intent is just another insidious form of socialism.

Why did feds claim Kindle violates civil rights? | Washington Examiner

Chipotle in violation of disabilities act - Washington Times

The Constitution

A great piece on the Constitution by Charles R. Kesler at NRO.

It’s not just Rangel — Rep. Maxine Waters, D-Calif., to be tried on ethics charges | Washington Examiner

It’s not just Rangel — Rep. Maxine Waters, D-Calif., to be tried on ethics charges | Washington Examiner

Wouldn't it be great for America if they bumped this one out also. What an airhead she is.

Eight congressmen now calling for Rangel to give up his seat | Washington Examiner

Eight congressmen now calling for Rangel to give up his seat | Washington Examiner

Eight really isn't enough, the entire Republican block should be howling for his resignation and Nancy "I am going to drain the swamp" Pelosi should have already called him into her office and demanded his resignation.

Orin Kerr's Guide to Reading Legal Opinions

For those of you who like to read legal opinions, Orin Kerr his How to Read a Legal Opinion: A Guide for New Law Students.

Go download it, it is worth it.

The Obamacrats Still Win by Getting Lefty Republicans to Vote With Them

Democrat Senator Ben Nelson plans to oppose the Kagan nomination to the Supreme Court. But it won't matter 5 Senators that call themselves Republicans, but in fact are just Democrats in disguise plan to vote for her: Snowe, Collins, Lugar, Graham, and Gregg.

It is in fact a brilliant strategy by the Democrats - get lefties to register as Republicans then win Congressional races and vote Democrat!

Follow up: Over at the Washington Examiner short piece: Republican Sen. Gregg says he will vote for Kagan.

Honest Discussions About Race Are Not Actually Possible

the Obama makes a valid statement but Volokh shoots it down on practical grounds.