American Elephants

About the Constitution and The First Amendment by The Elephant's Child

We talk a lot about Free Speech in America because we believe deeply in the First Amendment. I’m not sure that all of us are aware that it is solely directed at the government, not at us. You can say whatever you want, but it may get you expelled or censored or punched in the nose.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Europeans are free to say only what the courts allow them to say.

When he was 50, the prophet of Islam took as his wife Aisha, who was then six or seven. The marriage was consummated when Aisha was nine.

This is not a smear. It is an accurate account of authoritative Islamic scripture. (See, e.g., Sahih-Bukhari, Vol. 5, Book 58, Nos. 234–236.) Yet it can no longer safely be discussed in Europe, thanks to the extortionate threat of violence and intimidation — specifically, of jihadist terrorism and the Islamist grievance industry that slipstreams behind it. Under a ruling by the so-called European Court of Human Rights (ECHR), free speech has been supplanted by sharia blasphemy standards.

Mrs. S appealed, relying on Article 10 of the European Convention on Human Rights. That provision purports to safeguard “freedom of expression” although it works much like the warranty on your used refrigerator.  It sounds as if you would be covered, but the fine print doesn’t follow through.

Article 10 starts out: Europeans are free “to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.”  Followed by the legal details: One’s exercise of the right to impart information, “carries with it duties and responsibilities.” What is called “freedom” is actually “subject to such formalities, conditions, restrictions or penalties” that the authorities decide are “necessary in a democratic society,” including for “public safety” and for “the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others.”

Translation: Europeans are free to say only what they are permitted to say by the unelected judges of the European courts. Truth is irrelevant. As the jurists reasoned in the case of Mrs. S., a person’s freedom to assert facts must be assessed in “the wider context” that balances “free” expression against “the right of others to have their religious feelings protected,” as well as “the legitimate aim of preserving religious peace.”

In other words, you cannot say anything that might upset Muslims. Child marriage, violent jihad, the duty to kill apostates, the treatment of women as chattel, that sort of things. Doesn’t matter if these tenents are accurately stated or supported by scriptural grounding makes no difference. Reliance on what their scriptures say could be classified as “an abusive attack on the Prophet of Islam, which could stir up prejucdce and put religious peace at risk.

There is no free speech in Islam. Sharia does not merely forbid speech that insults or denigrates Islam; they regard as blasphemy – and punish viciously – any form of expression that places Islam in an unfavorable light. Enacting laws against child marriage would be tantamount to saying that Mohammed was in the wrong, and that is unacceptable. So child marriage, among other things, remains a major problem in Islamic countries. In Saudi Arabia, efforts to establish the marriage at age 15 and some hope to raise it to 18 have been rejected by sharia authorities.

As we have said before, Europe seems bent on committing suicide.

Here, the Left’s increasing reliance on feelings as the most important guidepost is worrisome, and their contempt for the Constitution is even more a matter for very deep concern.

What Rights Does the First Amendment Protect? by The Elephant's Child


According to Campus Reform, the Freedom Forum Institute’s annual “State of the First Amendment” survey has found that while 74 percent of Americans say they support the First Amendment, nearly half could not identify a single one of the rights that it protects.

Meanwhile, roughly half of those surveyed said public universities should be able to disinvite “controversial” speakers, such as those who are likely to provoke protests or cause offense to certain groups or individuals.

According to the report, 56 percent of respondents recalled that the First Amendment guarantees freedom of speech, 15 percent mentioned freedom of religion, 13 percent remembered freedom of the press, 12 percent noted the right to assembly, and just 2 percent cited the right to petition.

Meanwhile, nine percent erroneously asserted that the First Amendment protects the right to bear arms, a freedom that is actually guaranteed by the Second Amendment.

In the interests of making sure you all have the facts and if you have kids, making sure they do too, Here is the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The amendment is about what the government may not do, not about what you may or may not do. Doesn’t mean that people cannot insult you or criticize what you say or cast aspersions on your religion. It’s there to protect you from an overreaching government.  Though if the country gets so far gone that Congress is completely ignoring the Constitution, all bets are off.

You might try to memorize it, and have your kids memorize it. It is our greatest protection from tyranny and as long as people know what it says and what it is about, we’ll probably be all right. But the numbers of people without a clue is discouraging.

If you are interested, you can get nice little bound copies of the Constitution, about 3½” x 5″, from the Cato Institute by calling 800-767-1241 (8:30am to 4;30 pm EST) They are inexpensive, but my copy is years old, and prices have probably gone up.  (It also includes the Declaration and a preface about the history)

Nice little gift for new grads or kids leaving for college. The way things are going they probably would not encounter it there.

What Did the Founders Mean By Advice and Consent?” by The Elephant's Child

“The Constitution of the United States of America, Article.II., Section . 2. …(First part makes the President Commander in Chief, require reports from officers in executive departments, and power to grant pardons)…He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors,other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law…”

Here’s my question: What did the founders intend by “Advice and Consent of the Senate?” Republicans in the Senate usually seem to think that a president should have whoever he has picked unless — what? Granted, the Republicans are in the minority, but does the two-thirds requirement not apply to appointments? Democrats filibustered Robert Bork, not because he was unqualified— for he was undoubtedly one of the most qualified men ever appointed— but because he was conservative. Same thing when George W. Bush appointed John Bolton Ambassador to the U.N. Bush reappointed him during a recess, and he was a wonderfully effective ambassador.

So why have Republicans in the Senate consented to the appointment of President Obama’s nominees? Worst bunch of nominees I can remember, singularly unqualified, of radical leanings, (which is why they were appointed), and sure to damage the country.  It’s hard to pick out just one or two who should be filibustered., or who is the worst.  Rand Paul’s filibuster was greatly admired, but essentially just getting the Attorney General to back down in his language, and trivial in the long run.

I understand that Republicans are a minority of 47 to the Democrats’ 53, with two Independents. Were the Founders serious about Advice and Consent? Did they not expect it to be taken seriously and used to rid us of poor nominees?


The President is Playing Politics With The Constitution and the Law. by The Elephant's Child

Unable to allow Republicans to dominate the news with the Iowa Caucuses,  President Obama traveled to Shaker Heights, Ohio to give a speech at the high school, on the economy.  What made the news was not the soaring rhetoric, but the fact that the President of the United States announced his intention to act in total and utter disregard to the U.S.Constitution, which he solemnly swore to preserve, protect and defend. He said:

When Congress refuses to act and as a result hurts our economy and puts people at risk, I have an obligation as President to act without them.

The President’s power over what are called “recess appointments” comes from Article II, section 2, of the Constitution, which grants him the authority “to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” As John Yoo points out,”the Senate adjourns for short periods of time, and the question becomes when does an “adjournment” become long enough to turn into a “recess?”

In the past Attorneys General and Presidents have thought that an adjournment would have to be longer than at least 10 days to become a “recess.” In the Founders’ day, it took a long time to get from Philadelphia to their home states and back by horseback, and it was pretty clear. The Senate is not officially in adjournment, but is holding “pro forma” meetings, where little or no business is conducted,  to prevent Obama from making exactly such appointments. This is a tactic that Harry Reid used to prevent George W. Bush from making “recess” appointments.

It is the Senate who decides whether or not they are in session,  it is not up to the President. He cannot decide the legitimacy of the actions of the Senate, nor can the Congress have the right to decide whether the President has thought long enough about granting a pardon. Separation of powers is an important and essential characteristic of our Constitution, and not only protects the authority of each branch of government, but acts as a brake on their actions.

Roger Pilon of the Cato Institute says that the president, under Article II, section 2, may make temporary recess appointments — but only when the Senate is in recess. Mr. Pilon said:

All of Obama’s appointments yesterday are illegal under the Constitution. And, in addition, as too little noted by the media, his appointment of Richard Cordray to head the Consumer Financial Protection Bureau (CFPB) is legally futile. Under the plain language of the Dodd-Frank Act that created the CFPB, Cordray will have no authority whatsoever.

He added: “So what is this? It’s politics — Chicago politics, plain and simple.  If any doubt remained, three years into his presidency, that Obama is a master demagogue, with class warfare as his central tool, this incident should dispel it.

Richard Epstein adds that” within the framework of the current law, …it is for the Senate and not for the President to determine whether the Senate is in session. The usual view in all cases is that the internal rules of each institution govern its operations, and for the President to say that the Senate is not in session when the Senate says that is is, introduces a set of constitutional confrontations that we would be far better off doing without.”

Epstein questions the whole idea of “recess appointments,” though he agrees with John Yoo on the Constitution and the law.  It’s a thoughtful discussion.

The Supreme Court has held that the National Labor Relations Board cannot operate with only two members, so the question of legitimate appointments will not go away. Neither the President’s appointments to the NLRB nor his appointment of Richard Cordray to the Consumer Financial Protection Bureau will have any authority, so there will be more court cases. Anyone who disagrees with rulings by these people will be free to ignore them or to sue.

Press secretary Jay Carney said today that :

We hope to work with Congress to continue to take action on that to continue to grow the economy and create jobs. Separate from that, and this was the case last year and will be the case this year, we can’t wait for Congress to act.  And when Congress refuses to act, and Republicans choose the path of obstruction rather that cooperation, then the president is not going to sit here, this gridlock in Washington is not an excuse for inaction.

He’s going to take the actions that he can take using his executive authority to help the cause here, to help Americans deal with this challenging economy.  And they can be small, medium or large actions and they don’t have to be just executive authority actions.

If you pay attention to the President’s actions and not his rhetoric, it’s clear that he has no idea how to improve the unemployment situation. Business has pointed out that ObamaCare is the number one reason for business’ reluctance to hire. Obama has essentially shut down the energy sector and thousands of potential jobs because he is pursuing a green fantasy. His agencies cannot stop piling on regulations that make for an uncertain business climate. Our corporate taxes are the highest in the world. It’s no wonder that business looks to conducting their business where they are better treated.

The late Walter Wriston said it very clearly:

Capital will go where it is wanted and stay where it is well treated.  It will flee from manipulation or onerous regulation of its value or use and no government power can restrain it for long.

You might copy that off and send it to your Congressman or Occupy protester.

%d bloggers like this: