Friday, September 30, 2005

The Commonwealth at the U.N.

I was thinking to myself today about how to find something to write for this blog and it occurred to me that the Commonwealth probably had something on at the United Nations which is about 2 miles from were I live.

So I called the Permanent Mission of the United Kingdom to the United Nations reasoning that they could put me in touch with who ever represents the Commonwealth at the UN. I spoke to a nice young man who was for some reason unable to help me. He suggested that I, (this is a paraphrase though it is in quotes) “call the embassy of a commonwealth country (pause) which you have obviously done (pause) I mean call another one.” He really was very nice and tried to help, I just couldn’t resist relating the story and I hope this doesn’t cause him any trouble.

Being the intrepid soul that I am, I was not deterred by this spot of confusion. I hopped on a bus and headed down to the United Nations were I figured the person at the information desk could help. It turned out I was right, but first I had to explain to the nice lady that I didn’t want the Commonwealth of Independent States, which I explained used to be the USSR, but rather the Commonwealth of Nations, which I explained used to be the British Empire. After digging around her computer for a while she asked if I meant the Commonwealth Secretariat, which I told her yes was indeed what I wanted.

(The weirdest part of that is that the term Commonwealth Secretariat had confused the nice man at the British Mission)

The information lady then carefully wrote down the address and phone number of the office I wanted. (She also told be where to apply for UN press credentials which I plan to do)

So I headed over to 800 Second Avenue Suit 400A which is not only home to the Commonwealth Secretariat representative to the UN, but is the location of the Joint Office for Commonwealth Permanent Missions to the United Nations. (Evidently some of the smaller commonwealth countries have decided rather intelligently to share office space to keep costs down.) Here I meet Janet G. John who is the front person for the whole operation. She was very nice and gave me a nice stack of brochures most of which dealt with the Commonwealth Plan of Action for Gender Equality, but also included an interesting brochure on the Commonwealth Fund for Technical Co-operation, an interesting pamphlet titled “About the Commonwealth Foundation,” and smallest of all a leaflet on the Millbrook Commonwealth Action Program on the Harare Declaration of 1995.

Ms. John also told me that there are Commonwealth Caucus meetings that are open to the public and told me to use the Secretariat Web sit to get information on this. It seems the Caucus tries to promote democracy, good government, and the rule of law. I am hopping to start covering the Caucus meetings regularly as I think it would be interesting for everyone.

I want to thank Ms. John for her help, she was a gem.

Are Juror’s Oath’s which Require Jurors to Follow the Judge’s Instructions Unconstitutional?

In a recent piece for on Mansfieldism, Jon Roland raised an interesting point. He points out that Article VI of the Constitution of the United States requires “all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this constitution.”
The oath currently prescribed by congress is the following, “I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.”
Roland then asks are not jurors judicial officers of the state or federal government which impanels them. If they are judicial officers shouldn’t they take the oath to uphold the constitution? If they should take an oath to uphold the constitution would that not then preclude them from taking an oath to follow the judges directions? After all what if they think the judge is instructing them to follow an unconstitutional law, would they not then be required by their oath to uphold the constitution, to disregard the judges instructions.
I admit that I maybe prejudiced, because I am a believer in jury nullification, but I find this argument convincing.

Tuesday, September 27, 2005

Sheehan Strikes Again

As a general rule I don’t like comment to much on current political events, but I think something has to be said about Cindy Sheehan who has managed to make a spectacle of herself once more.

First, someone needs to tell Ms. Sheehan, since her actions seem to show rather shockingly that she has forgotten it, that it was her son who died in the service of the republic, not she.

Second, while Ms. Sheehan is to be pitied for her loss, assuming she feels it, it does not give her any special powers of knowledge, understanding or moral judgment as to the rightness or wrongness of the foreign policy of the republic.

Some people will say I am being harsh and cruel in asking if she remembers that her son is dead and questioning if she really feels that loss, but the facts tend to indicate that she does not and that brings me to my third point.

If she really loved her son why is she shamelessly exploiting the death of her son for a cause that he presumably would disavow. Since he was a volunteer in the service of the republic and since he reenlisted after it was clear we were going to be invading Iraq, one must assume that he supported this course of action.

Would a person, with any sense of decency what so ever, exploit the death of someone who they loved to defeat the cause they died for?

It is one thing for Ms. Sheehan to draw motivation from her son’s death to the more fervorently support the anti war cause. Everyone uses the impact of political decisions on their life to motivate themselves and there is no reason Ms. Sheehan should not do so, but to pervert the death of her son is another thing altogether.

The fact is that Casey Sheehan died a hero in the cause of freedom, it is to bad that his mother doesn’t appreciate that.

Monday, September 12, 2005


As is all to usual for me, I am writing this memorial post a day late if not a dollar short. What can I say, it has all been said before and in any event, my mind goes blank when I think of 9/11. Not that I don’t remember, but that I can’t remember fully or my rage would overwhelm my judgment.

Who can forget the images of people jumping to their death to escape the heat and lack of air.
Who can forget, the towers, a monument to human ability and the human spirit, falling to the ground, smashed by those could never have built them, could never have harmed them except for the knowledge given to them by their betters.

I remember stepping from the shower to answer the phone not knowing that the call would change my world. It was my mother, “Steph, I’m just calling to tell you that Carlynn and I are all right,” she said. “Your all right what,” I replied stupidly. “A plane has crashed into the World Trade Center and one of the towers has collapsed,” she said. “I have to go, they’ll need me at work,” I replied, since I was working as a reporter at the time.

How can I forget the image of the towers, never this New York native’s favorite buildings, but none the less a great achievement and a land mark, crashing to the ground. The more shocking because those who worked in those buildings were for the most part those who had dedicated their lives to bettering the human condition through the promotion of trade, the symbol and mechanism of peaceful co-existence.

How can I forget the three pints of beer and two shots of Jim Beam that constituted my lunch that day, consumed at The Pub, our local watering whole across from the paper, as I watched tower 7 collapse. The drinks didn’t have the slightest effect on me, I wrote four solid stories on the atrocity that day.

How can I forget interviewing one of my parent’s neighbors, who had escaped from one of the buildings. From my observation since, he can’t forget.

How can I forget muttering to myself for weeks afterwards, like a sadistic mantra, Robert Oppenheimer’s shocked exclamation when he saw the reality of his mind’s child during the Trinity Test. In that moment, he expressed his terror and awe at his creation with a quotation from the Bhagavad-Gita, “I am become death,” he said, “the shatter of worlds.”

How can I forget returning to the city of my birth 10 days after the attack. I was the only person on the bus from Buffalo to New York. It was the only time I was able to stretch out and sleep on that route which I took many times over the years to visit my family. I wasn’t able to get a press pass, but I walked as far downtown as I could. The grit could still be seen under your feet and tasted on your teeth.

How can I forget and how can I convey to you, the shock of realizing that the dusty taste in my mouth undoubtedly included among its components, atoms and molecules that had once been a part of the victims.

But of course 9/11/01 isn’t about me. It is about the 3,000 people who were slaughtered by a bunch of religious fanatics.

Some say that the president of the United States is a cowboy, a fanatic, a Hitler, but the Middle East is not today radioactive glass. That George Bush, and the people of our nation, did not turn to blind fear and hatred after September 11, 2001 is a testament to him and to us.

We did not meet terror with terror. If we had, the Middle East would not exist aside from a few oil fields.

Instead we determined to destroy the backward political systems that nurtured the fanatics who planned and carried out the atrocities of Nine Eleven. That the people of Afghanistan and Iraq today have democratically elected leaders is a tribute to the president and the people of the United States and our allies.

As for the road forward, Sir W.L.S. Churchill said, “Never give in--never, never, never, never, in nothing great or small, large or petty, never give in except to convictions of honour and good sense.”

Long Live the Republic!

Saturday, September 10, 2005

Blogger makes me crazy

It often takes several days for my blog to show new posts.

Thursday, September 08, 2005

Is FEMA Unconstitutional

There is an interesting post on the blog Legal Fiction asking if FEMA is constitutional from an “originalist” perspective. I’m not sure whether I am an “originalist” or not, but I certainly believe that a fair reading of the constitution would be much more restrictive of the federal government, so I’ll take a swing at the question.

To answer the question is FEMA constitutional one must answer three questions, A) what is FEMA, what functions does it carry out; B) does the function violate the bill or rights; and C) are these functions among the enumerated powers of congress, the president, or the judiciary.

Question A

What is the function of FEMA?

According to a FEMA document, “Since its founding in 1979, the mission of the Federal Emergency Management Agency (FEMA) has been clear: to prepare for, mitigate against, respond to, and help individuals and communities recover from natural and man-made disasters.” Thus the function of FEMA is to provide disaster relief.

Question B

Does providing disaster relief INHEREENTLY violate a provision of the bill of rights?

Providing disaster relief does not seem to inherently establish or prohibit the free exercise of religion or abridge freedom of speech or press or of the right of the people to peaceably assemble to petition the government.

This function does not seem to inherently interfere with the individual right to own arms or the right of the states to organize a militia.

It does not seem to inherently require the quartering of soldiers in homes in time of peace.

This function does not seem to inherently involve unreasonable searches and seizures, unless rescue searches are used to find evidence for criminal prosecution, but that is not inherent. FEMA does not issue warrants so that does not seem to apply.

Disaster relief does not seem to inherently require trial without indictment, double jeopardy, forced self incrimination, a lack of due process, or the seizure of property without compensation.

It does not seem to inherently require: slow or closed trial, the suspension of trial by jury, the suspension of informing the accused of the charges against him and allowing him to confront the witnesses against him, the suspension of compulsory process for obtaining of witnesses in his favor, or the suspension of the provision of council.

This function does not seem to inherently involve suspending trial by jury in civil cases or require courts to overturn jury verdicts.

It does not seem to inherently require excessive bail, excessive fines, or cruel and unusual punishment.

Government disaster relief, being a species of forced charity, may violate the right to property which was an accepted right under the natural law framework and thus may violate the ninth amendment. However I admit that this is a quasi political judgment based, on exactly how you understand the right to property, that should to the largest possible extent, be worked out through the legislative process.

This function does not violate the 10th Amendment unless it exceeds the enumerated powers of congress, the president, or the judiciary, which brings us to the third question.

Question C

Is disaster relief an enumerated power of congress, the president, or the judiciary?

Article I

The first of the powers (Art. I, Sec. 1) is the legislative power of congress, but since it is limited to “powers herein granted” it is not a general grant of authority, but a restriction on the authority of the executive and judicial branches.

The first enumerated power of Congress (Art. I, Sec. 2) is the power (the exercise of which is required) to conduct a census. Disaster relief does not seem to be authorized by this provision. Nor does the election of a Speaker of the house or the other officers thereof seem to authorize disaster relief.

The Senate’s power to elect its officers and a President Pro Tempore (Art. I, Sec. 3) does not seem to grant power to provide federal disaster relief. The power to try impeachments seems far removed from a power to provide disaster relief.

Congress’s power to regulate elections and set the day for there first session of the year (Art. I, Sec. 4) does not seem to give authority to provide disaster relief.

The power of each house to judge the election of its members, compel attendance, make its own rules, punish its members, keep a journal of its proceedings and publish it, and to require the other house to hold near simultaneous meetings at a place agreed upon by both houses (Art. I, Sec. 5) does not seem to authorize disaster relief.

The power of Congress to set its own salary (Art. I, Sec. 6) does not seem to authorize disaster relief.

The House’s power to originate revenue bills, the president’s power of veto, and the power of congress to override such veto by a 2/3rds majority (Art. I, Sec. 7)does not seem to grant any legislative power over and beyond the other “powers herein granted.”

Section 8

Article I, Section 8, lists most of the powers of Congress.

Congress’s power to lay and collect taxes for “to pay the debts and provide for the common defense and general welfare of the United States.” is the one most often cited by those who want to expand the powers of the federal government to reach such objects as disaster relief. However this interpretation is almost certainly mistaken because, A) such interpretation is specifically disavowed by James Madison the father of the constitution, B) it is contrary to the doctrine of enumerated powers which has been held since the earliest days of the republic, C) if taken seriously, it along with the necessary and proper clause would make the rest of article 8 meaningless, and most importantly D) because it is contrary to the grant of general legislative authority over federal enclaves. However I think there it a proper interpretation that may allow some federal disaster relief which I will explain at the end of this essay.

The powers to borrow money, regulate commerce, establish uniform rules of naturalization, establish uniform rules for bankruptcy, coin money, regulate the value of foreign coin, fix standards of weights and measures, punish counterfeiting, establish post offices and post roads, grant patents and copyrights, establish courts inferior to the supreme court, to codify international law as it applies to the United States, to declare war, commission privateers, raise armies, provide a navy, set standards for the militia, and to exercise general legislative authority over federal enclaves does not seem to include a power to provide federal disaster relief outside of federal enclaves.

Article I, Sec. 9 and 10

Section nine mostly limits the power of Congress to take certain actions. The only grants of power are to end the importation of slaves after the year 1808 (though that may have been granted in the commerce clause) and to suspend the writ of habeas corpus in time of invasion or insurrection, neither of which would seem to grant a disaster relief power.

Section 10 mostly limits the power of the states. However four powers are granted to Congress, the power to regulate state tariffs, the power to regulate and abolish the active duty armed forces of the states, the power to control the foreign policy of the states, and the power to allow or forbid agreements among the states. The first three clearly do not grant the federal government the power to provide disaster relief. The fourth power may have an interpretation that could allow some federal disaster relief which I will explain at the end of this essay.

Article II

The executive power granted to the President (Art. II, Sec.1) is to execute the laws made by congress, this is no increase in federal authority. Congress’s power to regulate the election of electors and to break a tie does not seem to authorize a federal disaster relief power.

As commander in chief, (Art. II, Sec.2) the president can order the military around. This would seem to allow the president to use the armed forces for disaster relief when needed, but it is questionable if this allows the establishment of a disaster relief organization separate from the armed forces in general. The Presidents powers to make treaties, appoint ambassadors and other public officials with the consent of the senate does not seem to grant additional federal authority for disaster relief.

The president’s power to prorogue, convene, and adjourn congress, settle disputes between the houses, receive ambassadors, and commission officers (Art. II, Sec.3) would not seem to include a federal disaster relief power.

Section 4 relates to the removal of officers of the government by impeachment and hardly seems relevant to this discussion.

Article III

Section 1 grants no powers.

The power to try all cases arising in law and equity under the constitution (Art. III, Sec.2) does not seem relevant. The power to try ambassadors would not seem relevant. The power to hear cases of admiralty and maritime jurisdiction could only be relevant by way of a sick joke. The power to hear controversies between the states and between the states and the federal government could be relevant, but I will return to this point at the end of my essay.

Section 3 simply defines treason and is in general a limitation on federal power.

Article VI

The powers granted by this article are to harmonize state law (Art. IV, Sec.1), make states grant extradition to other states (Art. IV, Sec.2), admit new states to the union and govern the territories (Art. IV, Sec.3), and the power to make every state be a republic (Art. IV, Sec.4). None of this seems relevant to disaster relief.

Article V

The congress has the power to propose amendments to the constitution by a vote of 2/3rds of its members. This would be relevant if those who want federal disaster relief would chose it

Article VI

This article grants federal supremacy in areas of concurrent legislative authority.

Article VII

The article grants no powers, but sets the conditions of ratification.

Amendments XI-XIII

Amendment XI reduces federal authority. Amendment XII relates to choosing the president and grants no new authority. Amendment XII grants congress the power to enforce the abolition of slavery, but this hardly seems relevant.

Amendment XIV

This amendment gives congress broad authority to protect individual rights against state action. It disallows the holding of state or federal office of those involved in past insurrection against the federal government. It hardly seems relevant to disaster relief.

Amendments XV – XXVII

Amendment XV grants the federal government the right to enforce equal voting rights between the members of all races. Amendment XVI allows the federal government to levy an income tax. Amendment XVII establishes the direct election of senators. Amendment XVIII has been repealed. Amendment XIX grants congress power to enforce equal voting rights between men and women. Amendment XX regards the election of the president and the presidential succession . Amendment XXI grants the states limited powers to interfere in the interstate commerce in alcohol. Amendment XXII limits the president to two terms of office. Amendment XXIII allows the Dirstrict of Columbia to chose presidential electors. Article XXVI forbids pole taxes. Amendment XXV relates to the presidential succession and the issue of presidential incapacity. Article XXVI reduces the voting age to 18. Article XXVII restricts congress’s power to increase its own salary. None of this is a grant of disaster relief authority.

My Conclusion as to Question C

The federal government has no specific grant of disaster relief authority.

General Conclusion

FEMA as currently organized is beyond the enumerated powers of the federal government and thus violates the 10th Amendment and is unconstitutional. It may also be a violation of the ninth amendment but that is less certain.

However, if congress wanted to authorize a logistics corps far in excess of the needs of the armed forces of the republic so that it would be there for the president to use for disaster relief, this would be marginally constitutional.

Further there is another option for a nation wide government disaster relief organization. As I mentioned earlier, Article I, Section 10, allows the states to make compacts or agreement with one another. It seems to me that if the states got together and made an agreement to create an agency to provide disaster relief, congress could ok this. Such an agency could stockpile emergency equipment, allocate financial aid and organize the deployment of national guardsmen to effected states in the event of a natural disaster. This would have to be paid for by the states, but it is certainly possible. If all of the states joined the compact, then I think one might agree that it was ok for congress to help fund the agency under its Article 8 powers. This would be so because an agency created by the unanimous 50 states would be an agency of the United States (i.e. of the union) and it would not expand federal power without limit. In the event of a disaster, the president could coordinate his use of the armed forces for relief with such an agency. The federal courts counld enforce the agreement under their power hear cases between the states.

Lastly, congress could propose an amendment with the following words, “Congress shall have the power to create an emergency relief organization to provide disaster relief.” I have a feeling that this would probably get the consent of ¾ of the state legislatures fairly easily.

The government can address disaster relief, but not though the current FEMA framework, at least not if we are going to take the constitution seriously.

Last Thoughts

What I severely object to is the belief that the constitution doesn’t matter. It does, it is the law of the land. If we don’t like it, we can change it, but why even bother having a written constitution if we aren’t going to follow it. A written constitution was the great innovation of the American Revolution, but a lot of people on both the left and the right and for that matter in the center don’t seem to value the constitution. That thought frankly saddens me. Did the founders live in vain?