Humpty Dumpty and the Kolkhoz

Apparently the Supreme Court was not satisfied with its definitional convolutions in McConnell v. FEC, where it turned the First Amendment's

"Congress shall make no law ... abridging the freedom of speech, or of the press;"

into

"Congress shall make no law ... abridging the freedom of speech, or of the press; However "no law" means that Congress can pass laws governing (1) broadcast ads that (2) refer to a clearly identified candidate for federal office, that (3) are distributed within 60 days before a general election or 30 days before a primary, and that (4) are targeted to the identified candidate’s electorate."

The latest is Kelo v. New Haven

which has turned the Fifth Amendment's takings clause from

"No person shall ... be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

into

No person shall ... be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation, unless it is done "pursuant to a carefully considered development plan, which was not adopted to benefit a particular class of identifiable individuals.

The decision also notes that the limitations of the term "public use" were just too restrictive for thousands of city and county petty tyrants and that it has now been redefined as "public purpose", which means "anything that the government wants to do."

When does "public use" not have to mean "public use"?

This Court long ago rejected any literal requirement that condemned property be put into use for the ... public."

Interpreting words in a manner inconsistent with their meaning in plain speech: that's the Humpty Dumpty part of the title.

`When _I_ use a word,' Humpty Dumpty said in rather a scornful tone, `it means just what I choose it to mean -- neither more nor less.'

So now, in the first case, the Court has said that restrictions on political speech are constitutional.

Guess what kind of speech the Founders had in mind when they wrote the First Amendment? Hint: it wasn't topless dancing.

And now, the scope of the takings clause has been redefined from a narrow "public use", which, to those of us oldsters who grew up in the days when common sense was common and words had definitions which were agreed upon by all parties, meant things like railroad lines, highways, water, sewer and power line easements and the like, to "if it's yours and we want it, it's ours."

This in effect has turned the U.S. into one giant collective farm where all property belongs to the State (if and when it so desires to take it away from you.) That's the kolkhoz part of the title.

You see, if you look at the cast of characters who signed off on these two doublethink-in-legal-form opinions, you will note that they are those who envision the Constitution as a "living document".

And unfortunately, that, too, is the opposite of what it means.

For the Founders meant for the Constitution to be interpreted according to the plain meaning of its words: "East" does not mean "West", and "shall" does not mean "maybe".

The Founders also intended for the Constitution to be difficult to change by requiring the approval of two-thirds of the state legislatures for any proposed constitutional amendment to become law.

They did not intend for the constitutionality of laws to be determined because of "evolving standards of decency" [ Roper v. Simmons ] or by what the European Court of Human Rights thinks [ LAWRENCE et al. v. TEXAS ]

One would think that the Justices would take an oath to uphold and defend the Constitution of the United States. And the plain meaning of those words would imply that the standard against wich laws should be compared in order to determine their constitutionality should be the Constitution and not some nebulous concept or opinions from a foreign court.

If Justices decide the constitutionality of issues not on the language of the Constitution but on such things as those listed above, well, I was going to say they violate their judicial oath.

However, I can't seem to get a firm answer on just what they do swear to when they are sworn in, and the sites I'm turning up I can't vouch for their accuracy, so I will not reference them here.

If the Constitution isn't composed of words whose meaning is consistent with their use in plain speech, then the Constitution means nothing.

In other words, if the Constitution is a "living document" then it's DEAD.

And to think that some of the most recent appointmees to the federal judiciary were called "extremists" and "out of the mainstream" because they had the audacity to publicly state that the Constitution Meant What It Said.

From the reasoning (or lack thereof) employed in the judicial gymnastics discussed above, I'd say that those are EXACTLY the type of judges this country so desperately needs.

The FCC's Proposed Rules for Political Blogs and Request For Comments

Y'all be patient- I'm trying to get this to format and it ain't easy.

Proposed Rules

Federal Register

Vol. 70, No. 63 Monday,

April 4, 2005

Page 16967 [ Department of Agriculture Item omitted ]

FEDERAL ELECTION COMMISSION

11 CFR Parts 100, 110 and 114

[Notice 2005–10]

Internet Communications

AGENCY: Federal Election Commission.

ACTION: Notice of proposed rulemaking.

[ REMAINDER OF PROPOSED RULES SNIPPED FOR YOUR PROTECTION ]

I'm sorry, y'all, I just couldn't do it.

And I once worked with trust indentures for a living.

Any law with language that convoluted shouldn't be allowed.

Janice Rogers Brown's speech to the Federalist Society

The following is the beginning of California Supreme Court Associate Justice Janice Rogers Brown's speech to the Federalist Society:

One cannot read it without walking away with the impression that Justice Brown is a woman of great intellect, exceptional eloquence, and a dry sense of humor.

"A Whiter Shade of Pale":
Sense and Nonsense —
The Pursuit of Perfection in Law and Politics

Thank you. I want to thank Mr. Schlangen (fondly known as Charlie to my secretary) for extending the invitation and the Federalist Society both for giving me my first opportunity to visit the City of Chicago and for being, Mr. Schlangen assured me in his letter of invitation, "a rare bastion (nay beacon) of conservative and libertarian thought." That latter notion made your invitation well-nigh irresistible.

There are so few true conservatives left in America that we probably should be included on the endangered species list. That would serve two purposes: Demonstrating the great compassion of our government and relegating us to some remote wetlands habitat where — out of sight and out of mind — we will cease being a dissonance in collectivist concerto of the liberal body politic.

In truth, they need not banish us to the gulag. We are not much of a threat, lacking even a coherent language in which to state our premise. [I should pause here to explain the source of the title to this discussion. Unless you are a very old law student, you probably never heard of "A Whiter Shade of Pale."] "A Whiter Shade of Pale" is an old (circa 1967) Procol Harum song, full of nonsensical lyrics, but powerfully evocative nonetheless. Here's a sample:

"We skipped the light fandango
turned cartwheels cross the floor
I was feeling kinda seasick
but the crowd called out for more.
The room was humming harder
as the ceiling flew away.
When we called out for another drink
the waiter brought a tray."

There is something about this that forcibly reminds me of our current political circus. The last verse is even better.

"If music be the food of love
then laughter is its queen
and likewise if behind is in front
then dirt in truth is clean...."

Sound familiar? Of course Procol Harum had an excuse. These were the 60's after all, and the lyrics were probably drug induced. What's our excuse?

One response might be that we are living in a world where words have lost their meaning. This is certainly not a new phenomenon. It seems to be an inevitable artifact of cultural disintegration. Thucydides lamented the great changes in language and life that succeeded the Pelopennesian War; Clarendon and Burke expressed similar concerns about the political transformations of their own time.

It is always a disorienting experience for a member of the old guard when the entire understanding of the old world is uprooted. As James Boyd White expresses it: "[I]n this world no one would see what he sees, respond as he responds, speak as he speaks,"¹ and living in that world means surrender to the near certainty of central and fundamental changes within the self. "One cannot maintain forever one's language and judgment against the pressures of a world that works in different ways," for we are shaped by the world in which we live.²

Click here to read the entire speech, with much better formatting than this.

Cold War mystery over: Identity of Markov killer revealed

The Times
Online reports that the identity of the assassin who killed Bulgarian dissident and exile Georgi Markov in 1978 with a ricin-laced platinum pellet has been leaked.

The Russian and Bulgarian secret services had long been thought to have been behind this assassination, and now this has been proven.