Don’t Ask Don’t Tell and the Courts

Today a District Judge in the District of Columbia order the immediate injunction of the Don't ask Don't Policy for the Armed Forces.

The most significant Constitutional Question is not only of the policy itself, but the authority of the policy. The Constitution grants Congress alone the power to, "To make Rules for the Government and Regulation of the land and naval Forces", not the courts. SCOTUS has on more than one occasion ruled [correctly], Military Service is not a Constitutional guarantee, that this gives Congress alone the power to determine eligibility of service in the Armed Forces, and not the Courts. Many policies exist that restrict or prohibit service as set forth by law enacted by Congress including Disability, prior Felonies, minor medical conditions [that are not minor in combat], and education among various others.

The ONLY proper method of changing this policy is by an Act of Congress, not the Courts. By allowing the Courts to determine the requirements [by the President not directing DOJ or the DOD not appealing this to SCOTUS] removes the Constitutional prerogative from the specific body it was granted to, and places it in another branch.
This is not a discussion if the policy is right or wrong, but the current events of how it has been changed in regards to granted powers in the Constitution.

General Welfare (Part 1) Other uses of the term in 1787.

Perhaps no single Clause is more contentious than the General Welfare clause, found in Article I Section 8 Clause 1 of the Constitution,

• The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States

In particular the part of “to pay the Debts and provide for the common Defence and general Welfare” being the one that is most often cited as granting the Federal Government a broad and sweeping amount of power. Many things Congress does, or wishes to do are justified as being for the “General Welfare” of the United States, that many may contend it does not permit.

We also see the term in the Preamble:

• We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Two completely opposite points of view on this Article leads to either an expanded government on one side, or it leads to the conclusion of an out of control government on the other. Is General Welfare a general statement granting broad power, or is it something other than the broad powerful statement?

Technical Difficulties

I apologize for the site being down sat-sun October 9-10. The site is now up and running with only sitemaps used for search engines unavailable, but hopefully this can be resolved soon.

Sorry for any inconvenience.

Originalism and its different types

Originalism is more than just one type of interpretation or Jurisprudence in regards to the Constitution. There are three main types of Originalists, Original Intent, Original Meaning, and Constructionist [textualist]. All of do have common threads, with perhaps the most important one being, the Constitution is a document of limits on the Government and is designed to protect the “inalienable rights” [Natural Rights according to Locke and Montesquieu], and it is the Judges and Justices job to determine what Law is, not what Law should be.  The methods of determining what Law is is done differently depending on the type of Originalist one may be.

What law should be to an Originalist is a function of the Legislature, it is the job of the Courts to determine how it is applied in Justice, what was the intent of Congress in the law, and whether it abides by the confines of the Constitution, WHAT LAW IS not if it is what some or that Judge or Justice would want the law to be. To an Originalist, Judges are to act only as “Umpires” to law, not judge if a law is moral or if the law is outdated, they believe morality of law is a function of the Legislature and if it is outdated, that is also the domain of the Legislature to repeal it, not the Judicial Branch to negate it, provided the law abides by the confines of the Constitution.

Arizona Immigration Law

On Monday the 0th US Circuit Court of Appeals allowed 11 Foreign Nations to file Friend of the Court letter in regards to Arizona Bill SB 1070 [Arizona Immigration Law].

This brings up several significant Constitutional Questions.
1. Do foreign States have standing to file on an international subject? This is a Challenge between the State of Arizona and the United States Governments, the bill and US Challenge does not effect a foreign state, only US laws.

2. This filing is conducted by the USDOJ, and Executive Branch, which does not have the Authority to Regulate trade or Naturalization, this is the domain of Congress. by introducing Foreign Nations in the respect to immigration, this is to assume a power of determining the Natural Status of an Individual without the consent of Congress.

3. By allowing Foreign Nations to file once again dealing with the domain of Foreign Nationals within the United States, a domain only of Congress, the Judiciary is now in a role to determine the status of a person without regards of the will of Congress, who has the sole authority to set rules of Naturalization.

http://www.politico.com/news/stories/1010/43199.html
http://www.myfoxphoenix.com/dpp/news/immigration/immigration-arizona-lawsuit-10-5-2010