Constitution

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The Filibuster, according to the Constitution

People often ask me, as a Constitutional scholar, about what the Constitutional provisions are for the filibuster.

It’s actually very simple.

There is no mention whatsoever of the word “filibuster” anywhere in the Constitution. It’s not even there under a different name. It never even happened until a hundred years or so after the Constitution was passed.

It’s a Senate rule that allows a Senator to speak as long as they want to block a bill unless 2/3rds of the Senate votes to shut them up. And it has been used more often to block progressive legislation than the other way around.

As you may have guessed, the conservative Senators use it a lot more than the liberal ones but have had no problem in breaking the filibuster rule when it worked in their favor. Their current claim about the sancity of it is bullshit, of course. They’d get rid of it in a second if it would benefit them.

So it could be changed tomorrow without any harm coming to the Constitution in the slightest.

But what happens is that Republicans filibuster anything a Democrat tries to do, meaning that in order to get anything passed, instead of just getting a majority to vote for it, you need sixty Senators. This seems to contradict the entire idea of majority rule, because it allows the minority to block anything even if the majority of Americans want it.

This is especially true now, since the Senate is inherently unrepresentative. The smaller, more conservative states each get two Senators no matter how slight their population. The Republicans in the Senate haven’t represented the majority of Americans since 1996. This is why, despite our views being the majority views in America, we can’t seem to get our agenda passed.

I’m not going to spend an inordinate amount of time explaining why the rule should be changed. I just wanted to point out that it’s not in the freakin’ Constitution already, no matter what some idiot on the internet might say.

This is fiction
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Why “under God” needs to be removed from the Pledge of Allegiance

Imagine for a minute that instead, the pledge said “One nation, except for Jews” or “except for Christians” or “except for people who like cilantro.”

In other words, imagine that it specifically exempted certain Americans, telling them that their beliefs are meaningless; that their presence in America is unimportant.

Because it does.

Ignoring the fact that saying “under God” seems to clearly go against the US Constitution’s 1st Amendment and provisions prohibiting any “religious tests” for citizenship, what the phrase does is tell many Americans who are not believers that they don’t count — that they’re not included.

Studies have shown that approximately 23% of all Americans say they have no religious affiliation, and around 4 to 5% admit to being atheists or agnostic. (The number is clearly larger than that: because of the discrimination and treatment atheists get in this country, most are still “in the closet.”)

Even at 4%, that’s more than the American Jewish population, which is estimated to be around 2% — yet if the pledge specifically excluded Jews, lots of people would be quite upset.

So you need to ask yourself: Is that what America means to you? Having a national pledge that specifically excludes a large percentage of the country you supposedly are pledging to?

Then you might want to rethink what it means to be a patriot.

Superheroes giving the original pledge, before “under God” was added in the 50s, to separate us from the “godless commies”
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The difference between the Declaration of Independence and the Constitution

I’m always surprised by Americans who don’t know the difference between these two documents, so here’s a brief summary:

The Declaration was written by Thomas Jefferson and signed in 1776, with John Hancock’s signature prominent.

This is the document that says, basically, “Hey King George! Screw you!” It starts off with “When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.” (Or, to be more concise, “Here’s why we’re leaving, asshole.”)

The Declaration also has the famous sentence “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.”

Neither of those sentences can be found in the Constitution.

The Constitution came eleven years later, after the war was won. It was mostly written by James Madison. Alexander Hamilton played a huge role in this as well, especially thanks to the Federalist Papers he wrote (along with Madison and John Jay, who later became the first Supreme Court Chief Justice). These treatises not only helped to convince the states to pass the Constitution, but the ones from Hamilton were also amazingly poetic and even danceable, because he was not giving up his shot. Thomas Jefferson’s writings were influential but he was prohibited from attending the discussions on the Constitution, mostly because he was in France at the time.

But here’s where the confusion really sets in: Stupid people point to the attack on the Capitol and other violent acts against our government and say that rebelling against the government like that is their “right.”

Well, no. No, it isn’t.

The Declaration of Independence was aimed at a specific person, named in the document. It says that we have the right to rebel against a king, a dictator, a tyrant.

The Constitution talks about democracy. You don’t have the right to rebel against a democracy under our Constitution, because we have other means of changing things, through elections and our laws. The Constitution specifically says such action against the United States is treason and punishable, and the Founding Fathers all agreed. (Just look up “The Whiskey Rebellion” and see how the Founders dealt with this kind of treason in our early years.)

Attacking the Capitol when you don’t get your way is the most unAmerican thing you can do. These idiots who claim to be “patriots” while destroying property and killing police officers are deluded and insane.

And on this July 4th weekend, we need to remember that.

The cover of my book “How to Argue the Constitution with a Conservative,” a small portion of which is in this post. Artwork by Darrin Bell
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“How to Argue the Constitution with a Conservative” now available as an audio book

I really couldn’t have someone else read my book — it’s just too personal and, let’s face it, parts are definitely written in first person.

So I bought a nice microphone and recorded in my room. The quality may not be as good as I would have liked, but it’s not bad and Amazon said it was good enough for them, so now my Constitution book is available for you to listen to!

This is not my first audio book — the Baker Street Irregulars anthologies (co-edited with NY Times Bestseller Jonathan Maberry) had wonderful actors reading the stories. However, that was all arranged by the publisher and I had no control over it. They did an excellent job!

But this is the first that I got to read my own work. And, if you know me, you know I’m a ham. Give me an audience and I’m happy. I hope I did a good job!

The advantage of this audio book is that you can listen in your car or while jogging or otherwise doing something else. You also have the advantage of an updated copy, since I added a few bits here and there as the law changed (such as discussing Trump’s two impeachments which occurred after the publication of the original book).

The disadvantage of this audio book is that you’ll miss all the great cartoons from Pulitzer-Prize-winning artist Darrin Bell. So clearly, you’ll need to buy a copy as well. (And if you want many of the cartoons in color, you’ll also have to get the ebook version).

Hope you enjoy it! Here’s the link.

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Easy Statehood for DC

In my Constitution book, I argued for DC to become part of Maryland so that they could get representation in the Senate and Congress. But I overlooked something.

The District of Columbia was set up as a neutral place halfway between the 13 states where the federal government could exist free from any interference from any state. Of course, no one predicted at the time that it would grow to have more people in it than some smaller states.

Originally, it was a 10 mile square, with part of it on the Virginia side of the Potomac, but that side eventually was given to Virginia and became Arlington.

Since the District is in the Constitution (Article 1, Section 8, Clause 17), I said you would need a Constitutional Amendment to change that and make it a state. After all, you needed an amendment to give them Electoral Votes (The 23rd). And if you wanted to make DC a state, you’d have to basically get rid of Article 1, Section 8, Clause 17.

But it was pointed out recently that no, you don’t.

You see, nowhere in the Constitution does it say where the District would be located, and the only reference to the size of the district is a maximum limit of 10 miles square). So some are saying the simplest solution is to redefine the District’s area to only include the federal buildings: The Capitol, White House, Supreme Court building, the Smithsonian, and the various federal office buildings that no one lives in. The rest can become a brand new state.

This is a great idea, and doesn’t need an amendment, which has very little chance of getting 3/4ths of the states to agree to (especially since, let’s face it, we’ll end up with two new Senators who will most likely be Democrats and black — no Republican state wants that).

Of course, we could still make it part of Maryland. They’d get at least a few members in the House of Representatives.

But I like the state idea. And you only need a simple majority to pass it.

And while you’re at it, add Puerto Rico, which has a larger population than 20 other states. 52 stars is much easier to fit on a flag than 51.

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No, we don’t need to bring the Fairness Doctrine back

Many liberals complain that we need to bring back the “Fairness Doctrine” to prevent Fox News and other right-wing outlets from spouting constant lies.

While the right-wing lie machine is indeed a problem, bringing back the Fairness Doctrine is not only a bad idea, it wouldn’t solve the problem.

The Fairness Doctrine was established in the late 40s to apply to radio and television, and it required broadcasters to provide equal time to opposing views. It was eliminated during Reagan’s attack on all government regulations.

Doesn’t the doctrine seem to violate the 1st Amendment, by regulating what you can say on your own radio or TV show? Well, yes and no. The Supreme Court held that TV and radio were different than newspapers or magazines (which never had to follow a “Fairness Doctrine”). There were limited frequencies available — only so many TV and radio stations could fit on the same dial in the same area. Therefore, the government needed to regulate those frequencies to prevent overlap and confusion. And if you wanted a license to broadcast, the government could put restrictions on your license: Only so many commercials per hour, no obscenity, public service announcements, and equal time to opposing views.

This never applied to cable, which doesn’t need “frequencies.” There is an infinite number of cable stations that could exist, so the government cannot regulate it in the same way. The Supreme Court even ruled in one case that it could not be applied to newspapers or magazines since there was not a limited number that could exist, and the same logic applies to cable.

So even if we brought back the Fairness Doctrine, it would not affect Fox News or other cable stations at all.

And why would we want it to? Seriously, do you really want that? Think about it. It would have to apply to everyone. You really want Rachel Maddow to say “And now, for an opposing view of what I just talked about, here’s ten minutes of Rush Limbaugh”? No, that’s not why I watch MSNBC.

The other thing to consider is that even when we had this, it didn’t work very well. Not all views are equal. Yet, in order to meet the requirements of the Doctrine, TV stations had to give time to the most ridiculous things. “And now, to counter our learned doctor who spoke of his wish for everyone to get a vaccination to fight the covid virus, here’s a guy who has a web page claiming this will place microchips in our skin so that Bill Gates can track our moves and better gauge where to send the chemtrails.” TV stations would cave in to ridiculous “equal time” provisions so as not to lose their licenses.

So no, we don’t need the government regulating free speech and violating the 1st Amendment. Whenever you think that way, ask yourself how that can be used against you. Imagine if Trump had been re-elected and was given the right to demand “equal time” and regulate TV stations and cable news that way. You think they’re going to go after Fox, or will they attack all the stations they consider “fake news”?

 

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Dear conservatives whose free speech rights have been violated:

I know you can no longer post on Facebook or Twitter, but here’s the rub:

YOUR RIGHTS ARE NOT BEING VIOLATED.

Setting aside the issue that only the government can violate your 1st Amendment rights, let’s address the issue where instead you’re claiming that you’re being silenced by the Powers That Be for your views.

Some of you are complaining because of the difficulty of trying to set up a place where you can speak and not be “censored for your views” but it’s too difficult to get a foothold in the free market. I would suggest that we should look into breaking up monopolies so that companies can’t get so big that it is impossible to compete with them — oh, right, you’re are against that, too. Maybe the “free market” isn’t the solution to all our problems after all.

What we really need to do is look at what you’re really saying, because, let’s face it, no one is censoring conservative voices.

You want to start a new service for conservatives where you can discuss conservative issues? Lower taxes, less regulation, abolish the UN, whatever? NO ONE WILL STOP YOU.

What is being restricted are hate posts. Posts arguing for the violent overthrow of the United States Government. Posts calling for the murder of people you don’t like. If you consider those “conservative” views, then that says a lot about you, doesn’t it? If these sites were all run by Islamic extremists calling for violence and hatred, I’d bet you’d be the first to demand they be shut down.

“Dammit, they won’t let me into McDonald’s any more to scream about QAnon to the other patrons! And not only that, they have a sign outside that says ‘no shirt, no shoes, no service’! My rights are being violated!” NO THEY’RE NOT. You can scream all you want in your own home, but no one has to be forced to give you a place to scream. You have the right to say just about anything, but you don’t have the right to demand that anyone provide you with the forum for you to say it.

You want to join civilized society? Be civilized.

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The 1st Amendment limits the government, you idiots

With Twitter banning Donald Trump and Parler being limited and people losing their jobs over their participation in an armed rebellion against the United States, some idiots on the right are screaming that their 1st Amendment rights are being violated … which just goes to show once again that these people who claim to be patriots don’t understand the most basic things about the country they pretend to love.

Here’s an excerpt from my book HOW TO ARGUE THE CONSTITUTION WITH A CONSERVATIVE that explains it all:

The 1st Amendment says that the government cannot limit your rights. The government.

Every day there’s another article about someone whining that their 1st Amendment rights were violated because they lost their job or got kicked off Facebook or got criticized for something they said. All that does is demonstrate to the world that you have no idea what the 1st Amendment is.

One recent case involved a bank teller who was fired for saying “Have a blessed day” to her customers. She also criticized patrons for “taking the Lord’s name in vain” and talked to people about “salvation.” She was told by her boss to stop that, but she didn’t, because Jeebus demands her to do so or something. And she was fired.

An employer has the right to tell their employees not to discuss religion, or politics, or anything of the sort with the customers, in the same way they can tell you to not wear boxing shorts and tank tops to work.

There’s a place for everything, and that is not the place. It’s a business decision.

If the business fired her simply for being a Christian, she would have a wonderful case, because her rights were clearly being violated. For that matter, if the bank fired her for saying any of those things on her own time when she wasn’t working, then I would happily take her case and fight against such a clear violation. But reasonable work rules such as “Don’t piss off our customers” don’t get that kind of protection. (We’ll talk more about this kind of thing when we discuss Freedom of Religion next chapter, especially when dealing with idiots who think that they have the right to discriminate because their god tells them to.)

A few years ago, “actor” Rob Schneider was fired from a nice job doing insurance company commercials when they discovered that he had been arguing against vaccinations. Insurance companies like vaccinations—they save lives and save insurance companies lots of money. But Schneider—who gets typecast as an idiot in movies for a reason—screamed that his constitutional rights were being violated.

Look, Rob, you have every right to say whatever the hell you want to about vaccines. You can spout nonsense about the world being flat if you want to. No one has the right to stop you from doing that. You can continue to spout this idiocy forever if you so choose, because the 1st Amendment guarantees your rights there.

What you don’t have is the right to a job or a platform for your speech. A newspaper doesn’t have to print your opinion. A TV network can cancel your show if you are saying things that they disagree with (especially if it hurts their ratings). A public school can fire you as a science teacher if you’re trying to teach your students creationism. An internet discussion group can kick you out based on what you say. Facebook and Twitter can decide you’ve violated their terms of service. Your freedom of speech is not violated in any of those incidents. You can continue to say whatever you want, just not with an audience provided by someone else. Because the 1st Amendment prohibits the government from taking away those rights. The government. I’ll say it again. The government.

 

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Why Trump-appointed judges have ruled against him

Donald Trump knows nothing about how government works, and was clearly under the impression that all the judges he appointed would be loyal to him.

But now his lawsuits have had more than fifty losses and only one procedural win early on (having to do with forcing Pennsylvania to do something it was already doing, so it’s kind of moot). Judges from every state have ruled against the GOP’s attempt to destroy democracy. The Supreme Court twice (and swiftly) refused to hear the appeals and not one Justice filed a dissent.

And many of these judges were Trump-appointed.

And here’s why that happened:

The GOP has been filling the courts for years with right-wing ideologues, many of whom are deemed “unqualified” by the American Bar Association. These radical judges have done a great job in destroying many of our basic civil liberties and bending over backwards to give corporations wins.

But these people were nominated in the first place because they are (what I call in my Constitution book) “Constitutional Fundamentalists.” Like religious fundamentalists, they believe there is only one interpretation of their holy document and lo and behold, they know exactly what it is and it matches their own views perfectly.

Justice Scalia was one of the prime movers of this idea on the Supreme Court, believing not only that his view of what the Constitution was correct, but that everyone who disagreed with him was not only wrong but very likely evil as well. Fortunately, he no longer does this, primarily because he is dead, but his views live on.

These fundamentalist judges honestly believe that they are being fair in their decisions and are fanatics to the fantasy document that exists in their head. They don’t think they are interpreting the Constitution in any way, ignoring the fact that every decision a court ever makes about the Constitution is an interpretation. (If the Constitution was as clear as they believe, there would never be a need for a judge at all.)

This mindless refusal to acknowledge that other people’s views may be valid is typical of conservatives who are not known for their tolerance of anyone different, but it’s important to consider now — because these judges think they are doing the will of the founders in the same way religious fundamentalists believe they are doing the will of their god.

And that’s why these judges are never going to ignore that Constitution like the Trump lawsuits require. These suits have no basis in our laws, are completely frivolous, and ask the courts to ignore democracy and our system of elections completely and just hand over the presidency to the loser who wants to be a dictator.

These judges are fanatics for the Constitution, not for Trump. And that’s why he keeps losing.

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Why the Electoral College has to go

With the election on everyone’s mind, I’ve been answering a lot of questions about the terrible Electoral College. So to make things easier, here I am reading the chapter from my book HOW TO ARGUE THE CONSTITUTION WITH A CONSERVATIVE explaining the concept and why we need to get rid of it (including a discussion of the Wyoming Plan).