Notes from a law library

I was reading at a law library, and thought I’d share my notes.

One of potential concerns of post revolutionary, pre-constitutional, America, was protection against standing armies. As the second amendment legitimized militias, for leverage should the federal government encroach; so each former colony, in the 1780’s had one of three policies regarding armies. One was to have a standing army, which a few did; another was a policy of being able to call up an army if needed, and a third, was not to worry about having an army. The notion of a federal military, that wasn’t standing, but to be called up as needed; the protection from the concept and actuality, of an army, during times of peace: was considered a potential amendment. It’s a very nice concept, we’ve forgotten, or fail to hold as a goal. Our incentives have lessened: There is less carrot on the stick, then there was 200 years ago.

Rhode Island and North Carolina did not ratify the federal constitution.

There is too much emphasis on a free press in the constitution. It is the first right. I’m not against a free press one bit; but thinking a free press, will stave off bad leaders, isn’t true, because our press isn’t free. They don’t report the Kingdom of God, or Heaven, or any other ways and terms towards that phenonoma described by those terms. The press is the most atheistic an therefore unwise thing about. The press, is a function of History, which the kingdom of god is made for. I’m not against a free press, but all the stock placed in it. I’m for creating a free press, but there is no free press now, only perhaps relative to say communist states, nor was there one much back then. So the emphasis given to a free press, in context of History, is deceptive and designed towards the same negativity of History; the put down of Humanity in History, through the ages.

I was reading an article in the Cornell School of Law that explained Thomas Jefferson was not a big separation of church and state guy at all. Back then they “asessments” where a portion of taxes went to support religion. Jefferson did stop that in Virginia. But the universities he founded, he expected religion to be taught and core requirement. What Jefferson thought no laws respecting religion intended, was the federal government was to have a hands-off policy upon religion: And thus leave the states to regulate religion as they saw fit, per tenth amendment. It was about limiting federal government, not allowing them to make laws respecting religion, not prohibiting states from the freedom to deal with religion as they saw fit. And yet, as a statesman of Virginia, Jefferson authored bills outlawing work on the Sabbath, as well as protecting religious activity from disruption, through the threat of jail sentences, to disrupters; slightly reminiscient of Putin’s incarceration of those women who bared their breasts in church to protest Putin. Jefferson’s Kentucky Resolutions are fairly specific about ensuring religious freedom, not protecting government from religion.

Now this is very interesting. While the context for Constitutions, and branches of government, is classical times; the states of Rome and Carthage, the tribes of Italy and Europe, the confederations, leagues and city-states of Greece; generally had Senates, Judicial process, and main leaders, and constitutions: there was a multitude of religions, or rather palpable phenonoma, pagan times worshiped. There was an array of them, from Isis to Jupiter, to Venus to Fire, to meteor stone that landed on Earth; and each and any State, generally respected all of them, but chose to especially focus on one or a few; like Rome, with Mars, would condescend to Jupiter; and The Volsaci Tribe would worship Vulcan, or Fire, and Egypt, Isis. So one was aware of the literally hundreds of different phenonoma and ways to worship, but each state or tribe had its own favorites, which culturally defined that state or tribe. If there were many objects and forms of worship, would separation of church and state be conceivable, or is this a condition circumscribed by the paucity of religions today, the limitation of Christianity being so prevalent, and pagan religions, pagan as nonchristian, so few? The answer would be the actual effectiveness and gain of those form of worship. Should any spiritual practice gain benefits, from consensus, to observation of palpable phenonoma, the proof is in the pudding, and relevance directly related to productivity.

I interpret one specific level of “Congress shall make no law respecting religion” as allowing Congress to make a law that disrespects or bans a bad religion. This interpretation has classical roots. The Roman Republic, generally liked all religion, assenting to the popular spirit, religion, the pagan worship of palpable phenonoma, was good. Pagan tribal times, where daily local circles were frequent, didn’t have atheism. Atheism arose with the state, with governments proclamation of the sanctity or existence, of the individual; or more so, with History, for History really grew after pagan tribal times, and History ascribes all to Humanity, and little to Creators, from the universe, or afterlife, that control Humanity.

Thus, because of the multitudes of different religious forms, Rome would scrutinize and liscence each applying to practice in Rome. Generally they would approve very nearly all of them, and even respect them in ceremony; yet they understood, a religion could be bad, could be used to corrupt spirit and be destructive, and so, religions had to be liscenced by the state. Notably a sect of the religion of Baal, (Baal centered on an awareness of the sun and moon) that had only female priestesses, and castrated a few monks for them, and encouraged it’s men to be drunks and run maypoles to obstruct traffic, and its women to learn healing arts, and treat upper class women, and so gain some wealth; this religion for instance, was allowed to travel through and practice in Rome, for it could be nomadic, like traveling hippies, but not allowed to convert any from the city of Rome.

Any debate on Religion and Government,  must recognize our age of basically one religion in America, Christianity. Again, that is a little Not like religious freedom, to have such a dominant religion. Our Constitutional Structure is based on classical times. Our constitutional structure signaled a death knell to medieval times, and warring kings. Yet Constitutional structure, in classical times, was in context of many, many religions. A villification of religion by government, or popular sentiment, can only come, I think, when there is only one or two religions to choose from. If we returned to a world of many palpable forms to choose from to worship, would there be any context for the elimination of the relevancy of religion to government?

Federal government, contrasted to state government, for Jefferson, consistent with a popular spirit back then that resisted federal government, spoke for federal government handling foreign affairs, and states, their own domestic concerns.

Now I think the federal government, may trump state government, by the following morale: that as representing more people, than state government, it has an inherent larger quantity of goodness and morality, and that is why we turn to the federal government to protect our rights, when smaller state governments violate them.

The prevailing attitude for government was “seizing doubtful ground”. Amputate or unempower states, so they could not war each other. Worry about insurrection, by having a tight control upon the people, such as the power to enforce taxation. And yet I have to say; this is overly uptight. See how the states relate first, before condemning them, the principle, is act, if there are complaints, or problems, otherwise let be. There should be no statist impulse to resolve, what isn’t conflict. And that ripples a problem to today. The complete authority of the state, often embodied by the judiciary, over citizens, a great problem today; stems from worry and anxiety over insurrections and wars between the states and being conquered by European powers, and disrespected by Indians, 230 years ago.

Jefferson’s sentiments imply that a federal government, that unites and rules smaller states, is more likely to tend to monarchy, or that forebearance, than smaller state governments. I suppose the principle, the greater the ocean, the more power its leader may assume; yet it is true, our presidents dominate and lead policy, and are focused on by people, obsessively; whereas our governors, are more prone to the trappings of state legislatures, and less the cult of personality; so this axiom seems true.

Of course the problem with government, is it is not honest, fundamentally: and this is not government’s fault, when History, (herself) is not honest, in exactly the same way. Yet it is also true, that smaller governments and less prone to faults than those over larger areas, and Montesquieu points to the famous example of Rome, as a Republic over Italy, was fine; but as it expanded beyond, and legions spent years far from Italy, they replaced their loyalty to the Republic, with a loyalty to their generals, (out of bribes of plunder), and this loyalty so superceded loyalty to government, that the generals of different regions, marched on each other, in chaotic decades of civil war.

This is true today. The later western states of America have a great inherent rejection of DC, than the states that have been under federal rule longer. Likewise, resentment to the federal government increasing each decade, may be due to expansion and collapse from the federal government increasing power through its naturally increasing seniority derives.
Thus Montesquieu writes, the focus on morality and spirit of government, by the people, is replaced by a worship and following of individual leaders. And this is certainly true today. The federal government, is so far flung, in so many ways, people today focus less on its spirit and morality, and more on particular leaders; and pointedly this is more true among the hero-worshippers of Barrack and Hilary, god bless them, than conservatives, whose adulation for the Rands, Palins, and Rubio’s of the political world shifts, evaporates, and reemerges in a focus on the failure of government, rather than a the cult of personality. America has grown too large, and federal government in enough ways, for the common good to be lost.

Yet let us not sugarcoat constitutional government and three branches. The argument the three branches check each other, simply pales before the notion of government, policing government semi-absurd; That the concentration of power in a few, makes the few vulnerable to those more powerful.

The problem with separation of church and state, it focuses on religion per se, rather than the wisdoms of religion. The wisdoms of religion, Christianity’s belief in love and sharing, and its terms, on the face of it, very useful tenets for government; the essential rejection of religion, per se, is vague and cloudy, as it eliminates all religion, without once focusing on specific wisdoms of religion. Thus specific ideas are not considered, as the category they are under, rejected.

One thing, I and the supreme court inquires into then, is the right to abridge speech, or even discriminate. If Congress may make no law therein regarding, may a head of household or boss limit speech? They are not congress. If Congress has no right to, may you? Jefferson’s interpretation seems based that if the federal government may not, the state still can. Yet the 14th amendment is about securing rights the federal government goes by. So to me the issue, of whether if congress may make no law regarding, can entities or states, for they are not congress? The intent of the constitution is unclear and long has been here, to me, as well the reasoning to any firm decision on the matter.

You couldn’t buy a condom legally in Connecticut, in 1966. That’s prima facie backwards. So the supreme court stepped in, and said that is wrong, albeit not straightforwardly, by valueing the privacy of individual intention, and not the right to avoid reproduction. One would want a federal government to step in on that type of repression of its subjects. So there are planes federal authority should exercise in regarding state moralities; regarding an injunction or imposition of Catholicism, whose part of Christianity, differs from the first three gospels, as the new testament itself, like many good intentioned things, like education, and sports, are compromised, out of fear, from design, of a good history.

It’s not hard to miss, how often litigation against the state, fails, because the judiciary defends the state. While the problem is we need a better way of resolving disputes, that there are just forms good, or bad; for resolving history; that the problem is form of government itself; the doctrine of sovereign immunity, where one can’t sue the state, without the state’s consent is ludicrious and malevolent. Authority must be grounded in challenges, to remain authority, or then let other authority be sought. The notion the state is good, because these rights we have are good, or better than worse states, can not lead to a stasis where the state has no responsibilities for its behavior, where the welfare of state, supercedes the welfare of anything else. Before the 11th amendment in Chisholme vs George, it was agreed, the judiciary must handle disputes between states and citizens. Then the 11th amendment protected states from suits sby individuals out of state. The 11th amendment then, is a very worthy debate. Then in the 1880s can Hans V. Lousiana, where because bonds invested in were not paid off, because they were used to fund flood relief, so one can not sue the state. On that I agree, a state is not a bank, it is primarily an entity with far wider ranging concerns; constituting a legitimate risk investors must consider. Yet on political matters, such as the violations of making decisions in peaceful assembly locally, by local officials, who are also neither state nor people, violating the tenth amendment; these are of a political nature, and that is what the state nature is about, politics, and not banking. Often Sovereign Immunity protects the state from the effects of its negligience, such as in public hospitals or injuries and loss through its sewer operation or property maintenance; and that invoacation here, also makes no sense, for manifested ably, the state would question itself and adapt, as is natural.

Again, let us Jefferson’s separation of church and state; as, existing at a federal level: To limit federal government: To avoid the imposition of a federal religion upon state religions(New England states and others, supported a state church) And to keep states free to regulate religion as they see fit. The wall is between federal and state. The wall is against big federal government. As governor of Virginia, Jefferson proclaimed several thanksgiving, which, back in those halycon days, would last several, not one day. And there would be fasting and prayer, not gorging and tv football.

Jefferson’s simple goal was no tyranny to the federal government, by having a weak federal government with limited powers, able to solve the issues of the articles of confederation. The tenth amendments reservation of powers to the state or the people, must encompass the regulation of religion, especially in so as the first amendment outlaws congressional regulation of religion, therefor, that regulation must be left for the states.

Jefferson’s anti-federalism is signaled in his opposition to a national bank; as no specific power allows that. It will be a breach to unlimit federal government. Jefferson famously argued all laws necessary to the welfare of the people, not all laws convenient. In other words, echoes of the distant refrain, there’s got to be a better way to achieve the same results. By emphasizing conforming to the limitations of government, rather than achieveing goals by expanding government, Jefferson, the lawyer, is essentially speaking to the nature of contracts, being complicated enough, to achieve goals within limits; compromise manifest.

Before the Constitution, people were concerned about standing armies, about monopolies. Couldn’t you have a bill of rights, or Christian principles, the mere principles of good. As Patrick Henry says, the constitution fails to delineate it’s reasons for being and goals, and fails to be a contract between states, for only states would have the power to stand up to it.

Because there weren’t scores of religion as in the first constitutions, atheism has set to restrict and avoid federal endorsement of any; though before, they endorsed most, seeing worship as a positive thing.


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