Article1 Section1 Clause 1
"All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives."
Wisdom from a Great American Patriot
The Constitutionalism of Caprice
by Greg Weiner
accomplished on the basis of bizarre constitutional reasoning, it will take effort to top Judge William Alsup’s preliminary injunction preventing the Trump Administration from undoing the Deferred Action for Childhood Arrivals, or DACA, program.
Alsup’s argument amounts to this: Because the Obama Administration had the constitutional discretion to implement the program unilaterally, the Trump Administration lacks the constitutional discretion to revoke it unilaterally. The reasoning is as predictable as it is insidious: The Trump Administration made a constitutional judgment against the program, and such judgments belong to the judicial branch alone.
That reasoning manages to achieve a result even harsher toward so-called DREAMers—those brought to this country illegally but as children and therefore not through their own fault—than revocation of DACA. It leaves their fate to the transient whims of presidents and judges.
The particular problem with this decision is that it discourages healthy constitutional behavior. The Trump Administration—which is quite arguably wrong on the substance of DACA—nonetheless disclaimed the authority of its own branch to implement such a policy unilaterally. That it made any constitutional judgment, as opposed merely to a policy one, is important; that it made one that constrains the authority of the presidency is exceptional. One would have expected past administrations of both parties to defend presidential authority—even authority to do that with which they disagree—at any cost.
The stage was thus set for exactly what ought to happen: forcing Congress to defend the consequences of current law, which does indeed provide for deportation of DREAMers, or to act like a legislature and legislate. Yet in rode the judiciary to spare Congress, and its constituents, such burdens.
Alsup’s reasons for doing so are so flimsy that it is difficult to explain them absent sheer judicial arrogance. The core of the ruling objects to Attorney General Jeff Sessions’ decision that the 2012 memorandum establishing DACA was “an unconstitutional exercise of authority by the Executive Branch.” Alsup views that belief as mistaken, which is wrong but defensible.
What is wholly indefensible is his claim that only the judiciary can interpret the law, and that the Trump Administration cannot unilaterally undo what the Obama Administration unilaterally did if its reason is that the latter acted unconstitutionally: “The main, if not exclusive, rational for ending DACA is its supposed illegality,” Alsup asserts, and if the illegality argument fails, the Administration’s justification for ending DACA is capricious. “But,” he continues, “determining illegality is a quintessential role of the courts.”
THIS WEEK at BBFL (1/14/18)
Judicial modesty is a permanently depreciating currency on the Ninth Circuit, so it would be premature, less than two weeks into January, to describe a decision emanating therefrom as its most arrogant and indefensible of the year. Some judge out West will try to outdo it, and probably will. But for institutional overreach
Martin Luther King, Jr. Day: ‘I Have A Dream’ Speech
By Julia Greenberg
Americans honor the life of Martin Luther King, Jr. Monday. King was an African American civil rights activist known best for advancing the cause of the Civil Rights Movement in the U.S. using nonviolent methods.
Born on Jan. 15, 1929 in Atlanta, Ga., King became a Baptist minister and helped found the Southern Christian Leadership Conference in 1957. Through his early efforts as a civil rights leader, he led the 1955 Montgomery Bus Boycott and a 1963 march on Washington, D.C. where he delivered the famous I Have a Dream speech.
The I Have a Dream speech has become one of the most celebrated speeches in American history and was ranked the top American speech of the 20th century in a 1999 poll.
The 17-minute long public outcry was delivered on Aug. 28, 1963 on the steps of the Lincoln Memorial during the March on Washington for Jobs and Freedom. One of the defining moments of the American Civil Rights Movement and King's life, he delivered the speech to over 200,000 civil rights supporters and countless more in media reports on national TV.
In the speech, King calls for racial equality among Americans and an end to discriminatory practices in the U.S.
When the architects of our republic wrote the magnificent words of the Constitution and the Declaration of Independence, they were signing a promissory note to which every American was to fall heir. This note was a promise that all men, yes, black men as well as white men, would be guaranteed the unalienable rights of life, liberty, and the pursuit of happiness, he said in the revered speech.
I have a dream that one day this nation will rise up and live out the true meaning of its creed: 'We hold these truths to be self-evident: that all men are created equal.' I have a dream that one day on the red hills of Georgia the sons of former slaves and the sons of former slave owners will be able to sit down together at the table of brotherhood, said King.
And if America is to be a great nation this must become true. So let freedom ring from the prodigious hilltops of New Hampshire. Let freedom ring from the mighty mountains of New York. Let freedom ring from the heightening Alleghenies of Pennsylvania! he continued.
Known for his eloquent speeches, I Have A Dream has been hailed as a stylistic masterpiece, with allusions to the Bible, the Declaration of Independence, the Emancipation Proclamation and the United States Constitution. The speech also alludes to the Gettysburg Address and Shakespeare's Richard III.
While the speech is believed to have had numerous drafts, the I Have a Dream section, which comes at the end of King's beautiful speech, is thought to have been improvised. Near the end of King's speech African American gospel singer Mahlia Jackson allegedly shouted Tell them about the dream, Martin, at which point King departed from his prepared speech to deliver a part punctuated by I have a dream. Stanley Levison and Clarence Benjamin Jones helped King craft the prepared part of his speech.
The I Have a Dream speech and the March on Washington both had an enormous impact on the Civil Rights Movement. King was named Man of the Year by TIME magazine in 1963 and 1964 and he was awarded the Nobel Peace Prize in 1964. The speech and King's success put pressure on the Kennedy administration to advance civil rights legislation.
King was assassinated in Memphis, Tenn. on Apr. 4, 1968. He is honored through the success of the Civil Rights Movement and remembered on Martin Luther King, Jr. Day, which was established as a U.S. federal holiday in 1986.
Read Martin Luther King, Jr.'s full I Have a Dream speech as delivered on Aug. 28, 1963.
I am happy to join with you today in what will go down in history as the greatest demonstration for freedom in the history of our nation.
Five score years ago, a great American, in whose symbolic shadow we stand today, signed the Emancipation Proclamation. This momentous decree came as a great beacon light of hope to millions of Negro slaves who had been seared in the flames of withering injustice. It came as a joyous daybreak to end the long night of their captivity.
But one hundred years later, the Negro still is not free. One hundred years later, the life of the Negro is still sadly crippled by the manacles of segregation and the chains of discrimination. One hundred years later, the Negro lives on a lonely island of poverty in the midst of a vast ocean of material prosperity. One hundred years later, the Negro is still languishing in the corners of American society and finds himself an exile in his own land. So we have come here today to dramatize a shameful condition.
In a sense we have come to our nation's capital to cash a check. When the architects of our republic wrote the magnificent words of the Constitution and the Declaration of Independence, they were signing a promissory note to which every American was to fall heir. This note was a promise that all men, yes, black men as well as white men, would be guaranteed the unalienable rights of life, liberty, and the pursuit of happiness.
It is obvious today that America has defaulted on this promissory note insofar as her citizens of color are concerned. Instead of honoring this sacred obligation, America has given the Negro people a bad check, a check which has come back marked insufficient funds. But we refuse to believe that the bank of justice is bankrupt. We refuse to believe that there are insufficient funds in the great vaults of opportunity of this nation. So we have come to cash this check -- a check that will give us upon demand the riches of freedom and the security of justice. We have also come to this hallowed spot to remind America of the fierce urgency of now. This is no time to engage in the luxury of cooling off or to take the tranquilizing drug of gradualism. Now is the time to make real the promises of democracy. Now is the time to rise from the dark and desolate valley of segregation to the sunlit path of racial justice. Now is the time to lift our nation from the quick sands of racial injustice to the solid rock of brotherhood. Now is the time to make justice a reality for all of God's children.
It would be fatal for the nation to overlook the urgency of the moment. This sweltering summer of the Negro's legitimate discontent will not pass until there is an invigorating autumn of freedom and equality. Nineteen sixty-three is not an end, but a beginning. Those who hope that the Negro needed to blow off steam and will now be content will have a rude awakening if the nation returns to business as usual. There will be neither rest nor tranquility in America until the Negro is granted his citizenship rights. The whirlwinds of revolt will continue to shake the foundations of our nation until the bright day of justice emerges.
But there is something that I must say to my people who stand on the warm threshold which leads into the palace of justice. In the process of gaining our rightful place we must not be guilty of wrongful deeds. Let us not seek to satisfy our thirst for freedom by drinking from the cup of bitterness and hatred.
We must forever conduct our struggle on the high plane of dignity and discipline. We must not allow our creative protest to degenerate into physical violence. Again and again we must rise to the majestic heights of meeting physical force with soul force. The marvelous new militancy which has engulfed the Negro community must not lead us to a distrust of all white people, for many of our white brothers, as evidenced by their presence here today, have come to realize that their destiny is tied up with our destiny. They have come to realize that their freedom is inextricably bound to our freedom. We cannot walk alone.
As we walk, we must make the pledge that we shall always march ahead. We cannot turn back. There are those who are asking the devotees of civil rights, When will you be satisfied? We can never be satisfied as long as the Negro is the victim of the unspeakable horrors of police brutality. We can never be satisfied, as long as our bodies, heavy with the fatigue of travel, cannot gain lodging in the motels of the highways and the hotels of the cities. We cannot be satisfied as long as the Negro's basic mobility is from a smaller ghetto to a larger one. We can never be satisfied as long as our children are stripped of their selfhood and robbed of their dignity by signs stating For Whites Only. We cannot be satisfied as long as a Negro in Mississippi cannot vote and a Negro in New York believes he has nothing for which to vote. No, no, we are not satisfied, and we will not be satisfied until justice rolls down like waters and righteousness like a mighty stream.
I am not unmindful that some of you have come here out of great trials and tribulations. Some of you have come fresh from narrow jail cells. Some of you have come from areas where your quest for freedom left you battered by the storms of persecution and staggered by the winds of police brutality. You have been the veterans of creative suffering. Continue to work with the faith that unearned suffering is redemptive.
Go back to Mississippi, go back to Alabama, go back to South Carolina, go back to Georgia, go back to Louisiana, go back to the slums and ghettos of our northern cities, knowing that somehow this situation can and will be changed. Let us not wallow in the valley of despair.
I say to you today, my friends, so even though we face the difficulties of today and tomorrow, I still have a dream. It is a dream deeply rooted in the American dream.
I have a dream that one day this nation will rise up and live out the true meaning of its creed: We hold these truths to be self-evident: that all men are created equal.
I have a dream that one day on the red hills of Georgia the sons of former slaves and the sons of former slave owners will be able to sit down together at the table of brotherhood.
I have a dream that one day even the state of Mississippi, a state sweltering with the heat of injustice, sweltering with the heat of oppression, will be transformed into an oasis of freedom and justice.
I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.
I have a dream today.
I have a dream that one day, down in Alabama, with its vicious racists, with its governor having his lips dripping with the words of interposition and nullification; one day right there in Alabama, little black boys and black girls will be able to join hands with little white boys and white girls as sisters and brothers.
I have a dream today.
I have a dream that one day every valley shall be exalted, every hill and mountain shall be made low, the rough places will be made plain, and the crooked places will be made straight, and the glory of the Lord shall be revealed, and all flesh shall see it together.
This is our hope. This is the faith that I go back to the South with. With this faith we will be able to hew out of the mountain of despair a stone of hope. With this faith we will be able to transform the jangling discords of our nation into a beautiful symphony of brotherhood. With this faith we will be able to work together, to pray together, to struggle together, to go to jail together, to stand up for freedom together, knowing that we will be free one day.
This will be the day when all of God's children will be able to sing with a new meaning, My country, 'tis of thee, sweet land of liberty, of thee I sing. Land where my fathers died, land of the pilgrim's pride, from every mountainside, let freedom ring.
And if America is to be a great nation this must become true. So let freedom ring from the prodigious hilltops of New Hampshire. Let freedom ring from the mighty mountains of New York. Let freedom ring from the heightening Alleghenies of Pennsylvania!
Let freedom ring from the snowcapped Rockies of Colorado!
Let freedom ring from the curvaceous slopes of California!
But not only that; let freedom ring from Stone Mountain of Georgia!
Let freedom ring from Lookout Mountain of Tennessee!
Let freedom ring from every hill and molehill of Mississippi. From every mountainside, let freedom ring.
And when this happens, when we allow freedom to ring, when we let it ring from every village and every hamlet, from every state and every city, we will be able to speed up that day when all of God's children, black men and white men, Jews and Gentiles, Protestants and Catholics, will be able to join hands and sing in the words of the old Negro spiritual, Free at last! free at last! thank God Almighty, we are free at last!.
How do you determine if something is Constitutional?
James Madison gave us a 2-step process.
First, Madison said “whenever a question arises concerning the Constitutionality of a particular power; the first question is whether the power be expressed in the Constitution. If it be, the question is decided.”
Second, if the action is absolutely necessary to carry out a power that is clearly spelled out in the Constitution, and it is a proper or customary way of doing so, then, as Madison put it, “it may be exercised by Congress. If it be not; Congress cannot exercise it.”
Paying Tribute this week to a Great American patriot,
Dr. Martin Luther King, Jr. Dr. King was a Baptist preacher who rose to national prominence in the 1960s for his use of non-violent, civil disobedience against the institutionalized racial bigotry and the repressive segregation laws enacted and enforced in the Democratic Party- controlled Southern States. He will be forever remembered for his inspiring "I Have A Dream" speech delivered in Washington, DC on August 28, 1963.
" Nothing in all the world is more dangerous than sincere ignorance and conscientious stupidity."
Dr. Martin Luther King, Jr.
Conservatives Should Not Lump Classical Liberals with Modern Liberals
by John O. McGinnis
In the End of Liberalism and in his recent book, Why Liberalism Failed, Patrick Deneen joins some other conservatives today in lumping classical liberalism and modern liberalism together as both contributing to the acid bath that is dissolving important institutions like the family that are essential to human flourishing. This move is wrong analytically, consequentially, and tactically. Analytically, because classical liberalism is concerned with protecting the individual against state power, not protecting him against social influences it dislikes, as is modern liberalism. Consequentially, because the classical liberalism, unlike modern liberalism, protects the ability of people to act together and precommit to institutions, like the church, that are the essential foundation for modern conservatism. Tactically, because after the decline of the throne and altar provided by a state, conservatives do not have sufficient power to govern without being in coalition with classical liberals.
It is modern liberalism, not classical liberalism, that blurs the distinction between the state and society. For instance, modern liberalism is concerned about using the state to enforce equality, because it worries that substantial levels of inequality will make people too subservient to the rich, a social norm it dislikes. It is hostile to religious influence in the social world because that influence too can make it harder to for people to find their true selves. Even the family can be too confining. But classical liberalism essentially leaves people alone and subject to social influences so long as those with influence do not act with force or fraud. Indeed, one of the great insights of classical liberalism — one that has been formalized by public choice — is that the attempt to cabin the social influences in order to enforce a social order more to one’s liking aggrandizes the state.
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