The Constitution Isn’t a Living Document — It Was Built to Resist You

They didn't want you to have arms to resist, or defend yourself. They wanted you to bear arms in a militia to preserve the system (Art I, Sec. 8, Clause 15 and article III, Sec. iii). 

You are the yahoos who would come later.

Supreme Court Can’t Hear Case Because Majority Had To Be Recused

People are upset about the mention of "court packing", but the founders didn't put judicial review into the Constitution. Toss in that the Supreme Court didn't have ethics rules until 2023!

And when they did adopt ethics rules (from NPR):

The U.S. Supreme Court Monday adopted its first-ever ethics code, bowing to pressure from Congress and the public. All nine justices signed onto the new code, which was instantly criticized for lack of an enforcement mechanism.

In an unsigned statement, the justices said though there has been no formal code, they have long abided by certain standards.

"The absence of a Code, however, has led in recent years to the misunderstanding that the Justices of this Court, unlike all other jurists in this country, regard themselves as unrestricted by any ethics rules," they wrote. "To dispel this misunderstanding, we are issuing this Code, which largely represents a codification of principles that we have long regarded as governing our conduct."

Public trust in the court has fallen amid revelations that Justice Clarence Thomas received gifts and travel from Harlan Crow, a Republican donor. Justice Samuel Alito has also been criticized for failing to disclose a fishing trip with Paul Singer, a big Republican donor with cases before the Supreme Court.

This gets better

With the release of the code Monday, the court is trying to be somewhat specific about what justices can and cannot do. But, there is a lot they can do and no enforcement mechanism as to what they are supposed not to do.

For example, the code is quite specific about financial transactions: Justices can make a real estate transaction, as long as it's not before the court. But the code simply reaffirms the commitment to the disclosure provisions that are in the existing code for all federal judges.

The code is also specific about recusal if family members, such as spouses, children or grandchildren, have a case before the court or is a lawyer before the court.

But the code also makes exceptions for justices that may not apply to lower court judges. For instance, a justice doesn't have to recuse if his or her relative files a friend of the court brief because the court receives so many of these briefs, sometimes over 100 in a single case, and it has loosened the rules on these briefs being filed.

In recent months, critics have raised concerns about Justice Thomas' wife, Virginia Thomas, and her activities to promote political causes that end up before the court. The code says that if a spouse or child living with the justice has a substantial interest in the outcome of a case — financial or any other interest — the justice is supposed to recuse. That would have meant, for example, that Justice Thomas would have to recuse in cases in which his wife has played a major role. Last year, Thomas did not recuse, and was the sole dissenter, in a case about whether former President Trump's White House records had to be turned over to the House committee investigating the Jan. 6 riot at the U.S. Capitol, despite Ginni Thomas' texts to then-White House Chief of Staff Mark Meadows urging him to take steps to overturn the 2020 presidential election results.

 I'm sorry, but I have not had respect for the US Supreme Court for a long time. Serious ethics rules would be a start.

Trump has found Gödel's Loophole in the US Constitution which allows the US to become a dictatorship.

Kurt Gödel was an Austrian-American logician, mathematician, and analytic philosopher. He was born in Austria and emmigrated to the United States

When Gödel was studying to take his American citizenship test in 1947, he came across what he called an "inner contradiction" in the U.S. Constitution. At the time, he was at the Institute for Advanced Study in Princeton, New Jersey, where he was good friends with Albert Einstein and Oskar Morgenstern. Gödel told Morgenstern about the flaw in the constitution, which, he said, would allow the U.S. to legally become a fascist state. Morgenstern tried to convince Gödel that this was very unlikely, but Gödel remained very concerned about it. He was an Austrian by birth and, having lived through the 1933 coup d'état and escaped from Nazi Germany after the Anschluss, had reason to be concerned about living in a fascist dictatorship. Morgenstern had secret discussions with Gödel about his concerns and told Einstein about them.

Since the exact nature of Gödel's Loophole has never been published, what it is, precisely, is not known. In his 2012 paper "Gödel's Loophole" F. E. Guerra-Pujol speculates that the problem involves Article V, which describes the process by which the Constitution can be amended. The loophole is that Article V's procedures can be applied to Article V itself. It can therefore be altered in a "downward" direction, making it easier to alter the article again in the future. So even if, as is now the case, amending the Constitution is difficult to bring about, once Article V is downwardly amended, the next attempt to do so will be easier, and the one after that easier still.  Other writers have speculated that Gödel may have had other aspects of the Constitution in mind as well, including the abuse of gerrymandering, prorogation of Congress, the Electoral College, and the presidential pardon.

In any case, the Gödel story is at least plausible. He spent a great deal of time thinking about systems of rules (axiom systems in mathematics), and looking for their limits and what such systems can say about themselves.

It should come as no surprise that when encouraged to look at the US constitution (which is, after all, just a set of rules), Gödel was enthusiastic and his thoughts turned immediately to what the system said about itself – and its limitations. It should also come as no surprise then that when he looked, he found some.

So, maybe the loophole isn't what is written in the US Constitution, but is something which has come about through tradition?  Although, I have come to realise the US Constitution is basically poorly written bumpf. A piece of shit written by a committee. Which is why he couldn't put his finger on one thing. Since as the speculation has pointed out, there are more than enough problems with it.

But Donald Trump pushed the envelope with his attack on birthright citizenship. Which is something I agree about and there is a simple solution which requires an amendment to the Constitution that at least one parent needs to have some legal connection to the United States (Ireland uses this). But instead of following tradition and protocol, Trump has chosen to use the nuclear option.

He's challenging the Supreme Court and its power.

So much for checks and balances.

So, I am going to quote myself on the biggest problem, which is one which custom has allowed to stand.

In fact, those decisions (Supreme Court decisions on the Second Amendment) should be laughed at. And any academic or practising lawyer who is shit for brains enough to give them the slightest credence should be barred from the practise of law since they ignore a fundamental basis of US Constitutional law.

Marbury v. Madison, 5 U.S. 137 (1803).

It's one of the first cases any constitutional law class covers, which is why anyone who gives Heller and McDonald a shred of legitimacy should be barred from the practise of law. Why? First off.

Marbury v. Madison, 5 U.S. 137, was a U.S. Supreme Court case that established the principle of judicial review in the United States, meaning that American courts have the power to strike down laws, statutes, and some government actions that contravene the U.S. Constitution.

Judicial review for constitutionality is not a power granted by the US Constitution: it comes from this case.

More importantly it centred around a clause in the US Constitution (hint, hint, for those shit for brains who want to call themselves "Constitutional Scholars").

My question when Heller came down was how does the system handle an out of control Judiciary? The obvious answer is that it defers to tradition. On the other hand, Trump is pointing out that the emperor is naked. Does the Supreme Court, or the Judiciary, have any real power to enforce its decisions? 

So, maybe the reason Gödel didn't tell anyone what this loophole happened to be was because it is that the entire constitution is a house of cards. Gödel could see this since English wasn't his first language and he was a logician. The loophole isn't something which is written into the constitution, it is something which was attributed to the constitution.

And as I have pointed out, proper legal method requires that something needs to be explicitly mentioned in the Constitution for it to be constitutional. Gödel's loophole is the deference given to concepts which are not explicitly written into the Constitution. Assumptions made by the founders which can be exploited by those with malicious intent. And the fact that language changes meaning.

The Second Amendment was the perfect example of this.

So, two people whose mother tongue is not English can agree on this. It's not what is written, it is what ISN'T written. Or is subject to misinterpretation.

Scalia was very wrong when he said: "Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct."

That is precisely what he needed to do before he set in motion the destruction of the United States.

And the "scholars", politicians, and lawyers who allowed this should resign their positions for someone who is competent.

'We the People' - the three most misunderstood words in US history | Mar...

Like it or not, the US Constitution, and the Declaration of Independence, are anything BUT popular documents. It was written in secret by a select group of people. Sure, there were debates, but they were anything open and above board until after the document was written. People forget that some people, the anti-Federalists, were against ratification of the constitution.

I don't totally agree with his analysis (the pronouns bit is anachronistic as heck), but he does make some very good points.

It wasn't written for the benefit of my ancestors who fought for independence and revolted at Morristown. It was written for the elite who said "We the people".

Defund the Police, Get a Kyle Rittenhouse

 Art. 12. La garantie des droits de l'Homme et du Citoyen nécessite une force publique : cette force est donc instituée pour l'avantage de tous, et non pour l'utilité particulière de ceux auxquels elle est confiée.

XII. A public force being necessary to give security to the rights of men and of citizens, that force is instituted for the benefit of the community and not for the particular benefit of the persons to whom it is intrusted.

Déclaration des Droits de l'Homme et du Citoyen de 1789

What Kyle Rittenhouse did was wrong. That is travelling to another jurisdiction to "preserve the peace". He was lucky that he wasn't shot by the actual militia, or National Guard (US Constitution, Article I, Section 8, Clauses 15 & 16), for being on the street with a weapon.[1] On the other hand, I understand why he did what he did.

The Document that I quote above is contemporary to the US Constitution and is equally influential on the Constitutions of other nations beside France and former French Colonies.  There are parallels between the two documents, but the most important piece of the Constitution tends to be neglected. That is the preamble. In other laws, there is a statement of purpose, or why the document was adopted. The US Constitution states it was adopted for the purposes of:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, 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 Second Amendment of the US Constitution DID NOT repeal previous sections of the Constitution, which describes the roles of  the militia as:

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

And while the uneducated like to claim membership in the militia as members of an "unorganised militia", that is the equivalent to saying that being subject to the draft makes one a member of the US Military. In other words, the "unorganised" miltia is a body which can be called into service under the call up provisions of state laws. Presser v. Illinois, 116 U.S. 252, 6 S. Ct. 580, 29 L. Ed. 615, 1886 U.S. LEXIS 1760 (1886) addressed this issue:

The right voluntarily to associate together as a military company or organization, or to drill or parade with arms, without, and independent of, an act of congress or law of the state authorizing the same, is not an attribute of national citizenship. Military organization and military drill and parade under arms are subjects especially under the control of the government of every country. They cannot be claimed as a right independent of law. Under our political system they are subject to the regulation and control of the state and federal governments, acting in due regard to their respective prerogatives and powers. The constitution and laws of the United States will be searched in vain for any support to the view that these rights are privileges and immunities of citizens of the United States independent of some specific legislation on the subject. It cannot be successfully questioned that the state governments, unless restrained by their own constitutions, have the power to regulate or prohibit associations and meetings of the people, except in the case of peaceable assemblies to perform the duties or exercise the privileges of citizens of the United States, and have also the power to control and regulate the organization, drilling, and parading of military bodies and associations, except when such bodies or associations, are authorized by the militia laws of the United States. The exercise of this power by the states is necessary to the public peace, safety, and good order. To deny the power would be to deny the right of the state to disperse assemblages organized for sedition and treason, and the right to suppress armed mobs bent on riot and rapine.

What happened in Kenosha is a very good example of how the Second Amendment has been taken out of context. Yes, when the official forces are unable, or unwilling, to keep order, somebody has to step in. Likewise, I wouldn't convict someone for defending their home as was the case with the McCloskeys. On the other hand, Kyle Rittenhouse was walking around openly carrying a weapon: he could have been the victim of the REAL militia had they been on the scene. As is, he was an untrained civilian in a situation which was way beyond his abilities.

His heart was in the right place, but his head was up his ass.

Unfortunately, he is a symbol of the "armed civilian" using a weapon for "self-defence". But Kenosha burned with or without Kyle Rittenhouse. 

The reality is that people saw the police as either unwilling or unable to control what was happening in US cities, but the issue here isn't the Second Amendment: it's that the US is a failed state. It's the Soviet Union on life support.

BTW, unless your militia was created by act of congress: it is not a true constitutional miltia (Article I, Section 8, Clause 16). The Second Amendment does not create the militia, it only ensures its viability. But the fact that there is a large standing military establishment shows that the Second Amendment is a victim of desuetude and should be repealed.

Footnote:

[1] Some US Jurisdictions have laws similar to this one from Pennsylvania: 18 PA.C.S. 6107, Prohibited Conduct During an Emergency, “No person shall carry a firearm upon the public streets or upon any public property during an emergency proclaimed by a State or municipal governmental executive unless that person is: (1) Actively engaged in a defense of that person’s life or property from peril or threat. (2) Licensed to carry firearms under section 6109 (relating to licenses) or is exempt from licensing under section 6106(b) (relating to firearms not to be carried without a license).” 

BTW, Before you go around saying that your militia is somehow acceptable, be sure to check out your state constitution for provisions like this from Pennsylvania's State Constitution:

     § 22.  Standing army; military subordinate to civil power.
        No standing army shall, in time of peace, be kept up without
     the consent of the Legislature, and the military shall in all
     cases and at all times be in strict subordination to the civil
     power.

Also be aware that primary sources relating to the adoption of the Second Amendment also are replete with similar language to this.

See also:

• Mother Jones: Why the Law Turns a Blind Eye to Militias
• NPR: The Legality Of Private Militias 
• Militias are Unlawful in Colorado
  
• Fact Sheets on Unlawful Militias for All 50 States Now Available from Georgetown Law’s Institute for Constitutional Advocacy and Protection
  

A Little Light Friday Content

But this mostly-below-the-radar caught my attention, as being Friday-worthy.  It is certainly unprofessional for people who should have their metaphorical fingers on the hot buttons of missles to focus their attention on something else hot fingering.  But isn't that true of more than just porn? 
I am not a prude; heck, I wrote a post here with the title in praise of porn and freedom that involved quoting the Marquis de Sade's political philosophy quotes.  Most people know de Sade only for his sexual exploits and writing, and are not aware of his heroism or his support for democracy in france, including as an elected delagate to their National Convention during the Revolution.
Aren't there plenty of OTHER sites that are sources of malware -- or do I run security scans for the heck of it, since I'm not spending my time on porn sites?  Are we less victims of those?  The worst malware I've had to contend with came from a translation / dictionary site - related to Babylon.  If you follow this line of reasoning, we're victims of dictionary sites too.  But THAT doesn't plug into the right wing anti-porn position, like that of Mitts on R-money who wants to make all computers after he's elected incapable of accessing porn sites.  I personally have no problem with computers on our missile control networks being disabled from porn access - but the right wants to control what EVERYONE can - or can't - access.  Yeah - so much for the freedom lovers, NOT.

right wing porn?

I think it is a stretch to claim that having to run cyber security for malware makes us porn victims - we have overt cyber attacks frequently, not just a risk from dormant code waiting to strike the unsuspecting lusty government employee or contractor. 
It is EVERY source of malware that attempts to harm us, not porn itself.  Conservatives, and especially the religious right HATE sex.
This is a bit of a stretch, to claim our national security is a porn victim because of potential cyber attack.  It can be as true of a badly secured on-line shopping sites; but claiming business makes us victims wouldn't conform to the God Loves Capitalism mantra of religious fundy nuts like Fischer.
Before you are too persuaded, remember this guy was also claiming that Butterball turkeys were not only Halal, but were part of a secret plot to Islamicize us all by tricking us into eating Muslim poultry.  Apparently, Fischer believes you become Muslim like you contract Salmonella, from eating bad poultry.  (The Butterball turkeys aren't Halal of course, until IN MUSLIM COUNTRIES THAT IMPORT THEM, the are further processed through a religious ceremony, formal/official marking, etc.).
So take EVERYTHING Fischer says with a highway department dump truck load of salt; he's part of that right wing media that consistently fear mongers with factually inaccurate bullshit.  WHY conservatives just love love love to be lied to still eludes me; but it seems to make them happy.
Certainly their logic-challenged factually-defective propaganda entertains the rest of us who live in fact-based, verifiable, objective reality.
From Right Wing Watch : Fischer Discovers Proof that Pornography is not a Victimless Crime
Submitted by Kyle Mantyla on Fri, 08/03/2012 - 10:28am

Recently the Pentagon’s Missile Defense Agency issued a warning to employees and contractors not to use their computers to visit pornographic websites because it was not only unprofessional and a violation of government regulations, but such websites often contain viruses and malware that could compromise the missile defense network.
And for Bryan Fischer, that was proof that pornography is not a victimless crime because "you and I could get incinerated, burned to a crisp, toasted because some guy is looking at porn instead of taking care of our missile defense system; [so] do not tell me it is a victimless crime":