I was shocked this morning when I received this email from No Mask Nevada PAC. I like most Nye County residents have been staunch supporters of this organization and it’s events, especially here in Pahrump. What does replacing Gregory Hafen, have to do with fighting the unconstitutional mask mandate?
I contacted Melissa Blundo, Chairman of the organization to find out more. Melissa Blundo referred me to Ian Bayne, Vice Chair. Apparently this was done by him and she is busy trying to put the fires out. I reached out to Ian Bayne by phone and was unable to get a hold of him.
I have never met Ian. I had only heard his name a couple of times. I asked where he resided and was told Rhodes Ranch which is off Fort Apache between Warm Springs and Blue Diamond. Not even close to. let alone in, State Assembly District 36.
Apparently he is a campaign strategist, and handled the last campaign for Nye County District Attorney Chris Aribia.
I do not agree with Ian on his stance towards Greg Hafen. Normally, I would not even care how he felt, after all, he is not even a constituent of District 36. What makes this an issue to me is that he is using an organization focused on a cause I support strongly like many others who are Greg’s constituents.
The Florida-based firm that’s overseeing the 2020 election audit in Arizona’s largest county on Friday accused a court of releasing its security plan to the public despite knowing it was meant to be shielded from public view.
Cyber Ninjas submitted a slew of documents to the Maricopa County Superior Court in response to a recent ruling by Judge Daniel Martin, who rejected an attempt to file the documents under seal because of their sensitive nature and ordered them filed by 12 p.m. on Thursday.
But even the plaintiffs in the case, the Arizona Democratic Party, agreed that one exhibit, which gave an overview of the security for the audit, should be withheld from the public.
The 7-page plan appeared on the website of the court on Thursday. It was available for anyone to view and download. The Epoch Times obtained the plan while it was publicly accessible.
At 11:02 a.m., about an hour before the deadline, lawyers for Cyber Ninjas informed Martin’s judicial assistant that the exhibit should not be publicly released. They offered to send over a stipulated motion saying as much.
The court approximately 30 minutes later asked for the motion. Lawyers drafted the motion and sent it to all parties involved. The court at 12:58 p.m. asked about the motion. Lawyers promptly informed the assistant that all parties had been provided with the proposed motion and they were waiting for approval. At 3:32 p.m., Cyber Ninjas filed the stipulation. Three minutes later, the judicial assistant responded, “Thank you.”
Additionally, the court’s clerk said in a minute entry from 3:20 p.m. that it received the stipulation and that the exhibit would be sealed.
But the security plans, known as Exhibit D9, were still released to the public.
“Although the Court had knowledge since 11:02 am that the Parties agreed that Exhibit D9 should be sealed and not made available to the public, the Court released Exhibit D9 to the public via Maricopa County’s Clerk of the Superior Court website,” Cyber Ninjas lawyers wrote in the request for a hearing.
The exhibit began to appear on the internet after 6 p.m. and later that evening, a local media outlet published an article describing details of the exhibit.
The request was for an emergency status conference regarding what happened.
The court and Cyber Ninjas did not respond to requests for comment.
Martin took over the case, an attempt to block the audit by Arizona Democrats, from a different judge after that judge recused himself. Martin was appointed by a Democrat governor. On April 28, he rebuffed the bid to immediately halt the audit.
The audit started on April 23 and is scheduled to continue until May 14. Workers are reviewing ballots cast and machines used in Maricopa County in the 2020 presidential election.
The leaders of the Senate Intelligence Committee vowed to “get to the bottom” of mysterious directed-energy attacks dubbed “Havana syndrome,” which are reportedly on the rise and have been linked to brain-damaging injuries.
Senate Intelligence Committee chairman Sen. Mark Warner (D-Va.) and vice chairman Sen. Marco Rubio (R-Fla.) confirmed in a joint statement Friday that there is an apparent rise in the incidence of directed-energy attacks on U.S. personnel.
“For nearly five years, we have been aware of reports of mysterious attacks on United States Government personnel in Havana, Cuba, and around the world,” Rubio and Warner wrote. “This pattern of attacking our fellow citizens serving our government appears to be increasing. The Senate Intelligence Committee intends to get to the bottom of this.”
Their statement comes after media reports saying incidents bearing the hallmarks of “Havana syndrome” attacks had taken place in Washington, including just outside the White House, and in Miami, Florida. One of the alleged energy attacks took place on the south side of the White House in November, and is believed to have sickened a White House aide, CBS reports.
U.S. authorities have struggled to understand the mysterious attacks since they were first noted in 2016, when diplomatic and intelligence personnel in Cuba first began reporting disturbing symptoms including head pressure or vibration, dizziness, sometimes followed by visual problems and cognitive difficulties.
“For some of these patients, their case began with the sudden onset of a loud noise, perceived to have directional features, and accompanied by pain in one or both ears or across a broad region of the head,” reads a State Department-sponsored study into the phenomenon by the National Academy of Sciences.
A 19-person committee of medical and scientific experts involved in the study considered chemical exposures, infectious diseases, and psychological issues as being behind the symptoms, but concluded that the most likely cause was directed microwave energy.
“Overall, directed pulsed RF (radio frequency) energy, especially in those with the distinct early manifestations, appears to be the most plausible mechanism in explaining these cases among those that the committee considered,” the report found.
The report did not suggest that microwave energy was part of a deliberate scheme targeting U.S. personnel, but noted that “the mere consideration of such a scenario raises grave concerns about a world with disinhibited malevolent actors and new tools for causing harm to others, as if the U.S. government does not have its hands full already with naturally occurring threats.”
Rubio and Warner said in their statement that the Senate Intelligence Committee has “already held fact finding hearings on these debilitating attacks, many of which result in medically confirmed cases of Traumatic Brain Injury, and will do more.”
Director of National Intelligence Avril Haines did not deny the reports of the attacks when questioned this week, and told the Senate Armed Services Committee she could not discuss the issue openly because it involved classified information, CNN reports. Haines called the issue of the mysterious attacks “critically important” adding, “across the intelligence community, frankly, leaders are focused on this issue.”
CIA director William Burns, during his confirmation hearing before the Senate Intelligence Committee in late February, committed to investigate the strange phenomenon.
“I will make it an extraordinarily high priority to get to the bottom of who’s responsible for the attacks and to ensure that colleagues and their families get the care they deserve,” including treatment at Walter Reed National Medical Center and the National Institutes of Health, Burns said at the time.
Warner and Rubio said in their statement that they welcomed renewed investigation by the CIA into the incidents, noting it was important “to better understand the technology behind the weapon responsible for these attacks.”
“Ultimately we will identify those responsible for these attacks on American personnel and will hold them accountable,” they said.
Tomorrow, May 1, Nye County will officially assume control over nearly every aspect of the mitigation and management of the COVID-19 pandemic within its boundaries, with one very notable exception. Despite Nye County commissioners’ unanimous vote to rescind the requirement that its citizens wear masks when interacting with others in a public setting, the statewide mask mandate still stands and Nevada Governor Steve Sisolak has made it clear that any endeavor to sidestep that mandate is null and void.
“Nye County received a letter April 27 from the governor’s office thanking Nye County stakeholders for the work invested in developing Nye County’s Local COVID-19 Mitigation and Enforcement Plan. The letter indicates that the governor delegates authority to Nye County to manage COVID-19 mitigation measures in accordance with the plan,” a news release sent out by Nye County Public Information Officer Arnold Knightly this week states. “Emergency Management Director Scott Lewis presented the plan to the state COVID-19 Mitigation and Management Task Force on April 22. The plan highlights include removing capacity limitations for businesses and gatherings due to COVID mitigation starting May 1. The county will also lift social distancing restrictions. However, as stated in the letter, the requirement for face masks in public spaces, including businesses, remains in place past May 1 in Nye County and statewide.”
Before being sent to the state, the Nye County COVID-19 Mitigation and Management Plan went before commissioners for their stamp of approval during the board’s April 20 meeting.
At that meeting, Nye County Manager Tim Sutton gave an overview of the plan, explaining, “The plan provides for the following: no mandatory capacity restrictions; no mandatory social distancing; no mandatory sanitizing; no requirement for large event plans to be approved by the state moving forward. And that is in response to the board’s request for a full reopening.
“The plan provides that will continue to monitor the items found on page 4, which would be; daily new cases; daily tests; test positivity rate; daily vaccination rates; daily COVID deaths; daily hospitalization rate; and daily ICU and ventilator use,” Sutton continued. “The plan also provides that we will continue to provide vaccination PODs and also information about testing and also we will provide PPE in the priorities listed in the plan.”
Sutton requested just two changes to the document prior to its approval, one for a minor typo which changed the incorrect term “contract” to “contact” and another to remove two entire sentences from a section of page 6 addressing public sector work plans.
“Social distancing and sanitization protocols were deferred to the county per the governor’s last press conference, and I think everybody knows that the mask mandate is under the state anyway so there is really no reason to put in it there,” Sutton stated. “Where it says ‘Mask mandates, social distancing and sanitization protocols remain in place’, I’d like to propose that that sentence be stricken.”
Nye County Commission Chair Debra Strickland then remarked that this would mean, first and foremost, that the tape barring members of the public from using certain seats in the commissioners’ chambers would be removed and the sanitization of the public commenter’s stand would not longer be carried out. “All the people can sit with whomever they want to. And that right there is a big change,” she noted.
Strickland then attempted to give direction to Sutton to end the teleconferencing that has been available for the public since the onset of the pandemic limited the number of persons allowed inside of the chambers during meetings. Nye County Commissioner Leo Blundo, for one, threw his support behind the idea of doing away with the teleconferencing system but at least one board member was not amenable to that and even county staff expressed their hesitation in removing that option just yet.
“I don’t have a problem with people calling in,” Commissioner Frank Carbone stated. “There are people who are at home right now who are calling in here, they don’t need to come here if they don’t want to. It’s just a burden on their part.”
Strickland interjected that the teleconferencing was a burden of the part of staff, asking, “So you foresee that we will need to still do teleconference? Because this is a pain in the you know what.”
Nye County Administrative Manager Samantha Tackett jumped in to request that the teleconferencing remain in place for now, adding that the county has certain contracts and other items that she would like taken into consideration before the teleconferencing comes to an end. In response, Strickland asserted that a formal agenda item would be brought forward so the commissioners could vote on the matter.
Nye County Commissioner Donna Cox then opened the discussion on the sticky topic of the mask mandate, asking how the county was going to be handling that. Carbone asserted that the commission had already voted to get rid of the mask mandate, with Blundo chiming in, “I remember that too.”
Regardless of the action taken by the commission earlier this month, Strickland informed her fellow commissioners that the mask mandate is a statewide mandate and Sutton added, “The state’s position is that the counties do not have the authority to pass any resolution on the mask mandate, so they won’t recognize anything. I have also been advised by counsel that the action taken by the board at the last meeting, as it pertains to the mask mandate, was void and of no effect.”
“I vehemently disagree with that opinion,” Blundo declared. “And I believe that we voted in the affirmative and we have control over Nye County… and we took a stand, knowing, against the governor…”
Blundo then specifically asked if the mitigation plan before the board means that the county is returning to normal, to which Sutton answered that he and Blundo might have different ideas of the concept of “normal”. Blundo clarified that he was asking about masks and Sutton replied, “That’s kind of where the rub is.”
Strickland noted that there was nothing in the mitigation plan that stated that the county will or will not have a mask mandate, and Blundo added, “So let them (the state) interpret it for what they want to.”
“So does this mean that I can come back to the meetings without a mask on?” Cox, who has not attended a commission meeting in person for many months due to the mask requirement, asked. During that very meeting, Blundo, Carbone and commissioner Bruce Jabbour had all already removed their masks so it stands to reason that Cox would be able to attend without a mask in the future as well.
Cox then stated that she was leery of the idea of not addressing the removal of the mask mandate within the county’s mitigation document but once again Sutton remarked that any and all provisions adopted by counties that go against the statewide mandates, such as the mask mandate, are null and void. “Whether we put it in or take it out, the state is not going to recognize it,” Sutton emphasized.
Blundo made the motion to approve the county’s COVID-19 Mitigation and Management Plan, which carried 5-0.
The plan can be viewed online by visiting www.NyeCounty.net and clicking on the “Meeting Center” link. The document is included with item #42 on the April 20 agenda.
President Biden addresses Congress (Getty Images via ABC)
Joe Biden graduated law school 76th out of 85 students in 1968. Maybe he hasn’t bothered to keep up with the status of jurisprudence since.
During his remarks to a joint session of Congress Wednesday evening, he declared, “And no amendment to the Constitution is absolute. You can’t yell ‘Fire!’ in a crowded theater.”
Maybe those words with improvised on the fly, because they do not appear in his prepared text.
Yes, in 1919 in the case of Schenck v. U.S. Justice Oliver Wendell Holmes declared, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”
President Biden said nearly the same thing in a Rose Garden speech in April 2021.
And just what was tantamount to “falsely shouting fire” and constituted what was labeled the “clear and present danger” test?
Charles Schenck was convicted under the 1917 Espionage Act for distributing pamphlets urging resistance against the World War I Selective Service Act — the draft. His pamphlet argued that conscription was tantamount to indentured servitude, which was barred by the Thirteenth Amendment following the Civil War. He was making a legal argument, Holmes compared that to causing a panic.
Even Holmes himself backed off this stance in a later case:
“Every idea is an incitement. It offers itself for belief and if believed it is acted on unless some other belief outweighs it or some failure of energy stifles the movement at its birth. The only difference between the expression of an opinion and an incitement in the narrower sense is the speaker’s enthusiasm for the result. Eloquence may set fire to reason. But whatever may be thought of the redundant discourse before us it had no chance of starting a present conflagration. If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.”
This was pointed out in the case of Brandenburg v. Ohio, which essentially overturned Schenck and established a much stricter free speech standard. The court held, “Freedoms of speech and press do not permit a State to forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
Imminent lawless action.
Of course, that case was concluded in 1969, a year after Biden finished low in his graduating law school class. Perhaps he’s not bothered to keep up since. http://dlvr.it/Rymd6G
An opalescent pendant, the Milky Way cuts a colossal path through the night sky. It is the nebula of our galaxy that has inspired a sense of awe and mystery in humankind throughout history.
It was this sense of wonderment that photographer JP Metsavainio hoped to capture with an extreme long-exposure composite image of the Milky Way.
But he didn’t want just any picture of the galaxy overhead.
The photographer was aiming for something extraordinary.
It took Metsavainio 1,250 hours of exposure and nearly 12 years, as reported on his website, to map out in high resolution a vast celestial panorama spanning millions of light-years across.
The end result seems to capture some of that glorious wonder.
“I can hear music in this composition,” Metsavainio said of his work, “from the high sounds of sparcs and bubbles at left all the way [to] deep and massive sounds at right.”
The vast mosaic was captured with Metsavainio’s hodgepodge telescope camera setup (consisting of a custom Apogee Alta U16 and Tokina AT-x 300mm f2.8 camera lens combo), which he has lovingly dubbed “Frankenstein’s Monster,” among other configurations over the years.
Metsavainio explained that the final composite image, which encompasses 20 million stars and 125 x 122 degrees of the Milky Way, took so long to compose due to its size.
The final mosaic consists of 234 individual images and is roughly 100,000 pixels wide.
The photographer says he used PhotoShop to piece together the mosaic with very little tweaking, using stars as markers to assemble the frames.
With this incredible process, Metsavainio captured an image of unfathomable richness and depth.
The mosaic displays a Milky Way that is full of rainbow clouds, every inch a window into worlds never before seen in such color by mankind.
“I think this is [the] first image ever showing the Milky Way in this resolution and depth at all three color channels (H-a, S-II, and O-III),” Metsavainio said.
Metsavainio’s breathtaking work reveals a new level of depth to the night sky, offering new inspiration to stargazers everywhere.
A new gender discrimination lawsuit claims that Nye County District Attorney Chris Arabia and Commissioner Leo Blundo “began a campaign of harassment and intimidation” against a former prosecutor.
Before Ronni Boskovich was fired in 2019, Arabia and Blundo targeted her “in part, because of her father’s political aspirations and her father and step-father’s status as homosexual males,” according to the federal lawsuit.
Boskovich also claims that she was fired after she reported sexual harassment against Blundo, who is a close friend of Arabia’s. An ethics complaint was filed against both officials before she was terminated, the court document states.
Also listed as defendants are Nye County and the district attorney’s office. They are accused of violating the Civil Rights Act of 1964 and allowing “Defendant Arabia and Defendant Blundo to continue to abuse their office and positions.”
Both a Nye County spokesman and Arabia declined to comment on the allegations, citing pending litigation. Blundo said he would respond to the claims in an email but never did.
In the lawsuit, filed Thursday, Boskovich claims that Blundo and Arabia made numerous degrading comments about the sexuality her father and stepfather. Her dad, Ron Boskovich, is gay and ran unsuccessfully for county commissioner against Blundo in 2018.
After taking office, Blundo often would refer to Boskovich and her parents as the “Trifecta of Evil,” according to the complaint, which also accuses Blundo of sexual harassment.
On Jan. 24, 2019, he hugged Boskovich inappropriately, the document states.
“As he was hugging Boskovich, he whispered to her that they were not on the clock, so this was ok,” Boskovich’s attorney, Michael Balaban, wrote.
In March 2019, Boskovich reported Blundo’s behavior to the county’s human resources director “however, nothing was done to address and/or correct Defendant Blundo’s behavior,” the lawsuit states.
Boskovich claims her boss, Arabia, then had her interrogated and fired her based on false allegations of misconduct, then directed his employees not to extend professional courtesies to her cases when she later became a public defender.
He also filed a State Bar of Nevada complaint against her, but it was dismissed after nine months, according to the document.
The Pahrump Valley Times reported in July 2019 that Arabia outlined in a letter to Boskovich several “issues of concern/misconduct” that Nye County determined had occurred.
This letter “noted Boskovich disclosed the existence and substance of sensitive, legally significant and confidential information related to marijuana regulations, procedures, brothels and conflicts of interest, which included the disclosure to three people potentially involved in the matter, as well as disclosure to at least two other people.”
Just finished David Baldacci’s latest mystery novel, “A Gambling Man,” another in the author’s long string of intriguing, deftly woven tales of odd characters facing long odds while making moral decisions.
Released this past week, “A Gambling Man” is the sequel to Baldacci’s “One Good Deed,” about recent World War II vet Aloysius Archer who was trying to put his life back together after being imprisoned for the “crime” of being involved with a young lady who could not refuse the entreaties of her law enforcement father. It is another world, one in which everyone is chain-smoking unfiltered Lucky Strikes and Camels while taking frequent swigs of hard liquor from ubiquitous flasks that seemed to populate every pocket and purse, often joined by small-caliber pistols.
To accomplish this life mending, Archer — who always avoided the use of his rather anachronistic mouthful of a given name and answered to his surname, as is customary in the military — took a bus west to meet up with the “very private investigator” Willie Dash about a possible job as a PI with Dash in his California coastal town. During an overnighter in the biggest little city of Reno, Archer befriended a gambling addict too deep into debt to the wrong crowd. After some fisticuffs, a car chase punctuated by small arms fire and the presumptive demise of the gambler, Archer wound up the custodian of a red, 12-cylinder, 1939 French convertible and in the company of a comely singer-dancer with the convenient post-war stage name Liberty Callahan, who had Hollywood ambitions.
Together they made it out of Reno alive and arrived in Dash’s corrupt town in time to become ensconced in an attempted blackmail investigation that evolved into bodies tumbling like dominoes.
Baldacci keeps the pace quick and the plot twisting and tightening ever closer to the penultimately evil culprit. Along the way he drops nuggets of tortured similes and metaphors like: “They heard the sobs as they approached the garage. They cut through the still morning air like a machete through bamboo.”
Or this gem: “Dash moved slowly across the room to greet the men. Where he had been frenetic seconds before, Archer could see the man was now all cool, calm, and as collected as a preacher about to dispense an easy dose of religion and then follow that up with an ask for money.”
There is an adequate helping of casual sex along the way, but not so detailed as to border on the pornographic.
“A Gambling Man” is another satisfying and mind tingling tale from the 60-year-old author of more than 40 novels. The prolific writer is already scheduled to release another in his Atlee Pine series in November. Can’t wait. http://dlvr.it/RyXrQC
CARSON CITY, Nev.—The man-made lakes that store water supplying millions of people in the U.S. West and Mexico are projected to shrink to historic lows in the coming months, dropping to levels that could trigger the federal government’s first-ever official shortage declaration and prompt cuts in Arizona and Nevada.
The U.S. Bureau of Reclamation released 24-month projections last week forecasting that less Colorado River water will cascade down from the Rocky Mountains through Lake Powell and Lake Mead and into the arid deserts of the U.S. Southwest and the Gulf of California. Water levels in the two lakes are expected to plummet low enough for the agency to declare an official shortage for the first time, threatening the supply of Colorado River water that growing cities and farms rely on.
The agency’s models project Lake Mead will fall below 1,075 feet for the first time in June 2021. That’s the level that prompts a shortage declaration under agreements negotiated by seven states that rely on Colorado River water: Arizona, California, Colorado, Nevada, New Mexico, Utah and Wyoming.
The April projections, however, will not have binding impact. Federal officials regularly issue long-term projections but use those released each August to make decisions about how to allocate river water. If projections don’t improve by then, the Bureau of Reclamation will declare a Level 1 shortage condition. The cuts would be implemented in January.
Arizona, Nevada and Mexico have voluntarily given up water under a drought contingency plan for the river signed in 2019. A shortage declaration would subject the two U.S. states to their first mandatory reductions. Both rely on the Colorado River more than any other water source, and Arizona stands to lose roughly one-third of its supply.
Water agency officials say they’re confident their preparation measures, including conservation and seeking out alternative sources, would allow them to withstand cuts if the drought lingers as expected.
“The study, while significant, is not a surprise. It reflects the impacts of the dry and warm conditions across the Colorado River Basin this year, as well as the effects of a prolonged drought that has impacted the Colorado River water supply,” officials from the Arizona Department of Water Resources and Central Arizona Project said in a joint statement.
In Nevada, the agency that supplies water to most of the state has constructed “straws” to draw water from further down in Lake Mead as its levels fall. It also has created a credit system where it can bank recycled water back into the reservoir without having it count toward its allocation.
Colby Pellegrino, director of water resources for the Southern Nevada Water Authority, reassured customers that those preparation measures would insulate them from the effects of cuts. But she warned that more action was needed.
“It is incumbent upon all users of the Colorado River to find ways to conserve,” Pellegrino said in a statement.
The Bureau of Reclamation also projected that Lake Mead will drop to the point they worried in the past could threaten electricity generation at Hoover Dam. The hydropower serves millions of customers in Arizona, California and Nevada.
To prepare for a future with less water, the bureau has spent 10 years replacing parts of five of the dam’s 17 turbines that rotate to generate power. Len Schilling, a dam manager with the bureau, said the addition of wide-head turbines allow the dam to operate more efficiently at lower water levels. He said the turbines will be able to generate power almost to a point called “deadpool,” when there won’t be enough water for the dam to function.
But Schilling noted that less water moving through Hoover Dam means less hydropower to go around.
“As the elevation declines at the lake, then our ability to produce power declines as well because we have less water pushing on the turbines,” he said.
The hydropower costs substantially less than the energy sold on the wholesale electricity market because the government charges customers only for the cost of producing it and maintaining the dam.
Lincoln County Power District General Manager Dave Luttrell said infrastructure updates, less hydropower from Hoover Dam and supplemental power from other sources like natural gas raised costs and alarmed customers in his rural Nevada district.
“Rural economies in Arizona and Nevada live and die by the hydropower that is produced at Hoover Dam. It might not be a big deal to NV Energy,” he said of Nevada’s largest utility. “It might be a decimal point to Los Angeles Department of Water and Power. But for Lincoln County, it adds huge impact.”
“Originalism” means applying the Constitution as the Founders understood it. Originalism is just a modern name for how English and American judges and lawyers have read most legal documents for at least 500 years (pdf).
By respecting the understanding behind a document, originalism keeps the document alive.
By contrast, there’s no simple definition of “living constitutionalism” because “living constitutionalists” differ greatly among themselves. They’re united by dislike of many of the Constitution’s rules and standards, and they all want to adjust the Constitution to serve their political goals. But beyond that, their unity ends: They sometimes have different goals, and they propose different ways of justifying constitutional manipulation.
“Living constitutionalism” is a misnomer, because when we abandon a document’s rules and standards, the document dies. In practice, “living constitutionalism” converts our Constitution into a parchment loin cloth to cover political pudenda.
Among the inconsistencies of living constitutionalists are claims that the Constitution is both “too rigid” and “too vague.” One who thinks it’s too rigid is David A. Strauss, a law professor on President Joe Biden’s Supreme Court commission. He wants constitutional law to evolve much as the common law evolves. Such “common law constitutionalists” underappreciate the fact that our decision to adopt a written Constitution was a clear rejection of the British-style “evolving” constitution.
By contrast, William Brennan, a living constitutionalist who afflicted the Supreme Court from 1956 to 1990, thought much of the Constitution was so vague as to be virtually meaningless. He referred to constitutional provisions as “luminous and obscure.” He wanted judges to replace the shimmering fog with structures of their own making.
The “too vague” and “too rigid” accusations are not only inconsistent with each other. They also are incorrect.
Let’s apply a dash of common sense to a serving of history. The Constitution’s framers weren’t the kind of people who write overly rigid or meaningless terms. They included Oliver Ellsworth of Connecticut, John Dickinson of Delaware, and John Rutledge of South Carolina, each the leading attorney in his respective state. Eight framers had been educated in London’s Inns of Court, the schools for training English barristers. The framers included other celebrated lawyers as well, such as James Wilson of Pennsylvania and Alexander Hamilton of New York. Even most of the non-lawyers, such as James Madison and Nathaniel Gorham, had been immersed in legal subjects throughout their careers. The framers had composed written legal documents in business, in law practice, in the state legislatures, and in Congress.
They were, moreover, deeply familiar with the 600-plus-year Anglo-American tradition of composing constitutional-style documents.
They drafted the Constitution as a legal document should be drafted: tuning each provision to the level of rigidity or flexibility necessary to its purpose.
As a result, some constitutional phrases are rigid—but properly so. For example:
The president “shall hold his Office during the Term of four Years.”
“No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.”
Few of us would want to live under the “living constitutionalist” versions, which might read:
“The president shall hold [insert politically correct pronoun here] office as long as the judges, balancing all factors, decide it promotes good social policy,” and
“A person may be convicted of treason if the judges find the evidence persuasive after they have balanced its reliability and quantity with the needs of social justice.”
But when rigidity wasn’t appropriate, the framers could write terms flexible enough to satisfy any living constitutionalist. For example:
“Each House shall keep a Journal … and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy,” and
“The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” (Italics added)
And as explained below, the Constitution also has many provisions that are neither particularly rigid nor overly flexible.
One reason some people think the Constitution is too vague or too rigid is that they don’t understand what many of its clauses actually mean.
For 25 years I’ve been working to cure that by writing a series of research articles exploring sections of the Constitution. My research has demonstrated that many charges of rigidity or vagueness are wrong.
For example, some law professors used to laugh at how “rigid” the Coinage Clause is. The Coinage Clause (Article I, Section 8, Clause 5) grants Congress power “To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures.” The scoffers assumed that “To coin Money” meant only to strike metallic coin. They said that in modern society this is impractical: We need paper and electronic money as well.
But if they’d read the clause carefully, they might have noticed that interpreting “coin” as only metal made no sense. When the Constitution says “regulate the Value … of foreign Coin,” it means setting foreign exchange rates. If “Coin” meant only metal, then Congress could set exchange rates for foreign metal tokens but not for foreign paper money. Surely the Founders didn’t intend such an absurd result.
And they didn’t. As I documented in a 2008 article (pdf) published by one of the Harvard journals, the Founders understood the Constitution’s word “coin” to include money in any medium, including paper. The scoffers were flat wrong: The Coinage Clause wasn’t rigid at all!
I also have disproved the once-common charge that the Constitution permits only male presidents, and other scholars have rebutted (pdf) the charge that its original meaning permits segregation of schools.
The living-Constitution crowd leveled the opposite accusation against the Necessary and Proper Clause (Article I, Section 18, Clause 18). They claimed it was so open-ended they branded it the Elastic Clause.
The Necessary and Proper Clause grants Congress power “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”
“What in the world does ‘necessary and proper’ mean?” the scoffers asked. “And what about these powers ‘in the Government of the United States’? Is that a drafting mistake? The Constitution grants powers to government departments and officers, but not to ‘the Government of the United States.’” Some living constitutionalists even claimed it refers to federal authority not otherwise mentioned in the Constitution.
Most constitutional commentators have had little experience practicing law. But I had, and to me the Necessary and Proper Clause looked like a phrase I’d seen in agency and trust documents. I suspected “necessary and proper” was a common term in 18th century documents and had a specific meaning.
Investigation proved my hunch correct. During the Founding Era, “necessary and proper” and variants of that phrase were exceedingly common in legal documents. In this context, “necessary” was a technical term for “incidental,” and “proper” meant “in compliance with fiduciary duty.” I don’t have space here to explain all of these legal expressions, but I can assure you they’re not “vague.”
The Necessary and Proper Clause authorized Congress to undertake a limited number of subordinate activities the Constitution doesn’t list explicitly. My investigation also showed that the Supreme Court had misapplied the Clause in some very important cases.
I also found—contrary to what the scoffers were saying—that the part of the clause referring to powers granted to “the Government of the United States” wasn’t a drafting error or a reference to mysterious extra-constitutional authority. The Constitution explicitly grants some powers to the federal government as an entity. This last point became clear from examining colonial documents familiar to the framers but unknown to most commentators.
My Necessary and Proper Clause findings were published in a book published by Cambridge University Press and in other outlets (pdf).
Over the past quarter century, I have examined many other parts of the Constitution previously pronounced rigid, vague, or meaningless. I have found that all have fairly well-defined meanings. Moreover, most are flexible enough to accommodate modern political activity consistent with the Constitution’s underlying principles of freedom, federalism, and limited government. Admittedly, they’re inconsistent with the goals of many of the “living constitutionalists”—regimentation, centralization, and cultural destruction.
Of course, altered conditions occasionally do require constitutional change. To respond, we can use the amendment process. We don’t need to kill the Constitution on the pretense of letting it live.
Robert G. Natelson practiced law for 11 years, then served as a law professor for 25. Among other subjects, he taught constitutional law, constitutional history, First Amendment, and advanced constitutional law. In 2010, he returned to the private sector. He is senior fellow in constitutional jurisprudence at the Independence Institute in Denver and author of “The Original Constitution: What It Actually Said and Meant.”
Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.