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The story by Crunchy titled "Don't Read if You Are Anti-1st Amendment" is a rant about gun rights. In other words, it's about the 2nd amendment, not the 1st.

In other words, it's about the 2nd amendment, not the 1st.

I guess he mentioned the first amendment to connect the freedom of speech with his lament.

has someone who read it told him he can't count.

He explicitly mentions the 2nd amendment as such in the text of the non-story, so innumeracy isn't the issue.

He explicitly mentions the 2nd amendment as such in the text of the non-story, so innumeracy isn't the issue.

Seems he was probably making a common, and highly common mistake regarding the first amendment. Congress shall make no law so far as proscriptions go, even with subsequent amendments(and court rulings) changing the reading to essentially be "No governing organization, be they federal, state or local shall..." does nothing to restrict the power of private parties to place constraints on activities in venues controlled by those private parties. (Although there are other legal precedents that do that now as well, it just isn't the 1st Amendment doing so)

This also ignores SOL not being in the United States. So the 1st Amendment in not applicable.

The 1st Amendment does not, and never did, provide an unrestricted right to speak your mind in any venue of your choosing.

freedom OF religion (not freedom FROM religion

There is some dispute about that assertion. Not all constitutional experts agree.

There is some dispute about that assertion. Not all constitutional experts agree.

Then I would suggest that said "experts" read the plain and specific words of the Amendment and forget about penumbras and emanations and all other such equivocations in their attempt to twist the intent into something they want to do.

then left everything else up to the state governments. That was the intent of the US Constitution,

I beg to differ. Many of the rights established in the Bill of Rights are rights of individuals and not leaving "everything else up to the state governments." The right of free speech, for example, is not a right of state governments, but of individuals. The right of a free press covers anybody who owns one, not just state governments. The right to assemble peacably is not for state governments, but for individuals. The right to bear arms (2nd amendment), the Supreme Court ruled, is an individual right, but subject to regulation.

That last clause has been argued for a long time (i.e. whether the Federal Government actually has the right to take control from the States with Federal Laws, though the Supreme Court has consistently sided with the Federal Government in each test case, whether during Democratic, Republican or Whig parties.

Prior to the Civil War, SCotUS siding with states wasn't uncommon. The Reconstruction Era Amendments were written in such a way that they wildly changed the interpretation of many previous constitutional amendments for the courts. The 14th Amendment, IIRC, in particular is a very common "gateway" to establishing many new federal powers and individual rights alike, at the expense of the state.

How does this square with the plain and obvious fact that words change meaning over time?

Irrelevant. You go with original intent.

Irrelevant. You go with original intent.

"Original intent" is one theory of how the Constitution may be interpreted. Others believe the meaning changes as times and the meaning of words and conditions change.
Some of those who have written about their own support of the "original intent" theory say they figure out what the "original intent" was by referring ONLY to the words written in the Constitution itself. Yet even most of those theorists believe the U.S. Supreme Court is the arbiter of the meaning of what the Constitution says. If the language of the Constitution (or laws, for that matter) was perfectly clear to everybody, it wouldn't need to be interpreted. Yet Constitutional experts of all types in good faith simply disagree. That's true on the Supreme Court as well, where many of its most far-reaching decisions come down in 5-to-4 or 6-to-3 votes.

"Original intent" is one theory of how the Constitution may be interpreted. Others believe the meaning changes as times and the meaning of words and conditions change.

Ever since 1803 and Marbury vs Madison, the SCOTUS has assumed the power of Constitutional interpretation. Now it seems to be assumed that it has sole power in that regard. Sorry, but I don't believe that was intended when Article III was drafted then approved. Penumbras, emanations and equivocations came about early, it seems, while the Judiciary sought to make itself more powerful at the expense of both of the other branches. I'll never forgive Jefferson for letting them get away with it. Jackson understood correctly the Judiciary's appropriate place when he said of one ruling words to the effect that "well, now that the Supreme Court has ruled, let the enforce it." And he didn't. Enforce the ruling, that is.

What are the three most important things to keep in mind when examining the Constitution. Original intent. Original intent. Original intent. Doing otherwise takes us out of the realm of rule of law and puts us squarely into the realm of rule of man. Which works fine until one branch finds they can saw pretty much say/do whatever they want regardless of what the law says and everyone is suppose to accept that as "Constitutional". That is the road to tyranny. Or fascism. Or communism. Or any other ..ism that results in rule of man. Those have always ended up despotic.

One other thing. The other two branches are Constitutional constructs also, like the Judiciary. So why can't they rule on what is Constitutional and what isn't? The Judiciary has no more power in that regard.

Which ties right into why the 2nd Amendment exists. Our (USA) Founders were prescient.

Ever since 1803 and Marbury vs Madison, the SCOTUS has assumed the power of Constitutional interpretation. Now it seems to be assumed that it has sole power in that regard. Sorry, but I don't believe that was intended when Article III was drafted then approved. Penumbras, emanations and equivocations came about early, it seems, while the Judiciary sought to make itself more powerful at the expense of both of the other branches. I'll never forgive Jefferson for letting them get away with it. Jackson understood correctly the Judiciary's appropriate place when he said of one ruling words to the effect that "well, now that the Supreme Court has ruled, let the enforce it." And he didn't. Enforce the ruling, that is.

Not that the Trail of Tears is a particularly good precedent. But in general, I have to somewhat agree, it was intended for the 3 branches to work against one another in order to keep things balanced. The "tradition" that has developed around SCotUS being "the final authority" is a problematic one, but at the same time, a "simple enough" one to get around in general. If CONGRESS and the President really think SCotUS is out of line, they can push through an amendment to resolve the matter by way of the states.

Or the Presidency and Congress can simply ignore SCotUS and go about doing whatever they please. Generally, SCotUS seems to have been mindful, post-Jackson, of not issuing rulings which will not be obeyed outright. They will issue rulings(and have done so) where the amendment process is easily pointed to as the path to resolution if they want to pursue it further.

But as congress has been largely dysfunctional on that front since the 1970's, we'll see when that bridge is crossed once more.

If CONGRESS and the President really think SCotUS is out of line, they can push through an amendment to resolve the matter by way of the states.

Not needed. Congress can remove legislation from Judicial review through a simple act, signed by the President. Article 3, Section 2, 2nd paragraph. I wonder why it isn't used more often.

I wonder why it isn't used more often.

My guess is that it's because of the fear of unintended consequences. Suppose Congress passed, and the President signed, a law removing all federal laws from judicial review. Then Congress passed a law outlawing all guns. Without judicial review, what's to stop that from happening. Or the opposite, Congress passed a law requiring all residents to own machine guns. Legislative bodies have been known to pass some pretty extreme laws.

My guess is that it's because of the fear of unintended consequences. Suppose Congress passed, and the President signed, a law removing all federal laws from judicial review. Then Congress passed a law outlawing all guns. Without judicial review, what's to stop that from happening. Or the opposite, Congress passed a law requiring all residents to own machine guns. Legislative bodies have been known to pass some pretty extreme laws.

Visualize this scenario. Congress passes a law denying judicial review of its last immigration law. Either the idiot in Hawaii or the one in Washington state rules it unconstitutional. It eventually ends up at the SCOTUS. They uphold the unconstitutional finding.

Talk about a constitutional crises, huh?

No worse than the basic question I asked earlier with a similar scenario. You either grant the Supreme Court the ability to declare laws unconstitutional, or you grant Congress the ability to ignore the Constitution. Which do you pick?

I choose the Constitution. If what you suggest ever actually happened, then StarFleetCarl's solution would probably be implemented.

You. Must. Pick. One.

I reiterate -- I choose the Constitution. As to my position re: judicial review, see previous posts of mine in this thread.

Maybe you would benefit from a close reading of Article III so as to fully appreciate what judicial power means. I think you'll find each of your points are addressed, I believe.

I don't want to turn into a lecturer of Constitutional law. Heaven knows we have enough of those already, and most of those have less a knowledge of the Constitution than I do. And I say in all honesty that I don't have all that much. But I do know that I can read a plain text.

I've already, on multiple occasions, elaborated on why "plain text" isn't.

Okay. You're wrong.

But I'll ask again, in plain and simple language: is, under the scenario I've detailed above, John Doe in violation of the law or not? That is, is he innocent or guilty?

This question is entirely different than the points I've tried to make. Guilt or innocence of any one particular person is a well recognized, and accepted, function of the judicial system and authorized in the Constitution. Plain text, Geek.

And as to your John Doe, it depends. If he is found innocent in the original trial, it ends there. If he is found guilty, it depends on where the case was filed. Kalifornia or anywhere else on the Left Coast and his guilt would have been wiped out at the District level upon appeal and never make it to the Appellate Court as they wouldn't accept it. Probably most other jurisdictions as well. So your question, IMHO, is moot. But, for the sake of answering your argument, SCOTUS would never accept it as the question was already answered in previous pleadings before the Court, i.e. laws passed that violate Constitutional rights can't be enforced. So it would, at best, be returned to the lower court for another look-see. Which means reversal.

And if something like this actually did occur? Like I said earlier, if such an environment actually existed, StarFleet Carl's solution would likely be implemented. Because what you describe is no longer the US.

If he is found innocent, that means the judiciary is nullifying the lower-precedence law

No, it would not be the judiciary doing anything unless John Doe had explicitly waived his right to trial by jury and requested a bench trial.

An act of the jury is not an act of the judiciary. It is well settled law that a jury has the right to convict the law rather than the defendant and a jury verdict of not guilty, even if clearly in contravention of the law can not be overturned. In a not insignificant bit of legal hypocrisy, the defense is legally barred from mentioning this to the jury.

Not even SCOTUS has the authority to overturn a jury verdict of not guilty.

At the trial level, the judge decides questions of law, but unless jury trial is waived, the jury is the finder of fact.

I never said anything about a jury. Quite intentionally. This is about the power of the judiciary.

Actually, yes you did.

If he is found innocent, that means the judiciary is nullifying the lower-precedence law

A verdict of innocent or guilty is a finding of fact, not a legal decision. This is the jury's decision not the judges decision.

Even if trial by jury is waived and a bench trial is held, the judge acts as both judge and jury and is presumed to be capable of separating those roles.

Even in a bench trial, the findings of fact (verdict) would not be considered judicial acts.

Adjust the particulars appropriately.

It's your job to make sure the particulars are appropriate, since you are the one trying to use a hypothetical case to make a point.

An act of the jury is not an act of the judiciary. It is well settled law that a jury has the right to convict the law rather than the defendant and a jury verdict of not guilty, even if clearly in contravention of the law can not be overturned. In a not insignificant bit of legal hypocrisy, the defense is legally barred from mentioning this to the jury.

You make a good point and one that I've already decided to follow if I'm ever called to jury duty again.

One big area of prosecution that bugs me is statutory rape. Take a case where a teacher is accused of statutory rape for having consensual sex with an 18 year old high school senior from one of his classes (an actual crime in my home state). Say the teacher successfully shows the "Duck Defense" --if it walks like a duck, waddles like a duck and quacks like a duck, then it is probably a duck. In this case, if it walks like a slut, talks like a slut, dresses like a slut and acts like a slut, then she is likely a slut. In which case, I wouldn't give two craps as to what the law is. My finding is not guilty as long as his defense is adequately demonstrated, i.e. proven.

One big area of prosecution that bugs me is statutory rape. Take a case where a teacher is accused of statutory rape for having consensual sex with an 18 year old high school senior from one of his classes (an actual crime in my home state). Say the teacher successfully shows the "Duck Defense" --if it walks like a duck, waddles like a duck and quacks like a duck, then it is probably a duck. In this case, if it walks like a slut, talks like a slut, dresses like a slut and acts like a slut, then she is likely a slut. In which case, I wouldn't give two craps as to what the law is. My finding is not guilty as long as his defense is adequately demonstrated, i.e. proven.

I would part ways a bit on this. At that point, I am going to be more interested in the student's testimony than anything else on making my decision. The issue present here is we have youth/inexperience going up against authority (teacher) and entering into sexual relations. At the least, there is potentially an abuse of authority on the teachers part. It is why many statutory rape laws make exceptions to include them in situations where they otherwise would not be. In other words, laws where age of consent is 16 unless "an authority figure" is involved, at which point it becomes 18.

But I remember being a high school student, and I remember how those students talked and acted. I can easily imagine a smaller number of them being fully aware of those laws and attempting to use them for blackmail purposes re: better grades.

I also knew plenty of guys that would have jumped at the chance "for more" with certain teachers, and ditto for the girls, without need for ulterior motives. But I also know a lot of that goes back to "youthful inexperience" and also other factors that recently led to a Senate Candidate being run over the coals.

There is a "public trust" issue present there, although classification under rape does seem a bit extreme outside other factors. (Like evidence of coercion by the teacher) As all to often the teacher is on the receiving end of a never-ending stream of adolescent seduction attempts. So I can give a little benefit of the doubt regarding "but he/she asked for it!" Even while "You were in a position of 'public trust' and failed to uphold it," comes into play.

Of course, we could go for a synthesis response, and address that issue plus the (potential) "Islamic problem" by going for a full on NiS type social setting. Public nudity is allowed, and encouraged at the school level, with students likewise being allowed and encouraged to "explore their sexuality" within the confines of their schools(certain restrictions still apply). Where the teachers are available to provide guidance and assistance(and allowed to participate) as well.

Just make normal society so offensive to them on religious grounds that they have "no choice" but to withdraw from it, much as the Amish and others have done.

(Wait for it)

Judicial review.

Where in all of the posts in this thread do you come up with the idea that I'm opposed to judicial review (as this implies)? My whole beef has been living Constitution vs original intent. Judicial review is written into Article III. Thats why I suggested you read it closely.

Which is also known as judicial review.

That was Marshall's interpretation which sought to establish judicial review and occurred in Marbury v. Madison. Its not in the Constitution.

That was Marshall's interpretation which sought to establish judicial review and occurred in Marbury v. Madison.

Which was one of the earliest Supreme Court decisions. And while many have criticized that decision, despite more than 200 years of trying, no has put forward a convincing counter argument.

So, which is it?

I'm guilty of using the same term to refer to two different things, judicial review as defined by Marshall and appellate review as defined in Article III. My bad. From here on in the thread, when I used it, it will refer to Marshall's interpretation. Hope that clears it up.

(Also, you keep referring to StarFleet Carl's solution, and I don't know what you are referring to. I've read up and down the thread to figure it out, but I am at a loss. Care to elaborate?)

Jim S 3/30/2018, 10:34:35 AM
Updated: 3/30/2018, 10:44:44 AM

@StarFleet Carl

My military oath was to preserve, protect, and defend the Constitution of the United States against all enemies, foreign and domestic. I have not been relieved of that oath. If you think I consider this House Bill to be a threat to the Constitution, you're probably right.

Rep

Well, and accurately, stated. Each sentence.

t doesn't actually propose any actions at all.

It kind of implies one, armed insurrection.

Which is fucking terrible and sickening that someone would even suggest such a thing. Especially people who keep talking about the "rule of law".

What do you think happened in 1776?

I won't pretend that it wouldn't be bloody and painful and awful, but if the status quo ante is bad enough, it can be justified.

And even if you did commit treason and murder...

Treason never prospers, for if it does, none dare call it treason.

it would (as I pointed out above) fall victim to the exact same dilemma: either you have third-party nullification, or lower-precedence-law makers can ignore higher-precedence laws.

That's not a solution.

I'll agree with you that it's not really a general solution to enforcing the constitution.

That said, the threat of insurrection from an armed populace can act as a restraint on the excesses of the government.

And if the government actually decides to abandon the constitution, it is there as a last resort, because full on abandonment of the constitution is not something the courts can stop, because at that point the executive isn't going to obey the courts.

Let's suppose that, in an armed insurrection, you succeed in overthrowing the U.S. government and then succeed in establishing a new strongman rule of your own without any constitutional curbs to restrain you. Do you have an army strong enough to defeat the U.S. military? Or do you think the U.S. military will support you? Might there be an Army general who decides he'd be a better leader than you? Do you dream of actually surviving such an effort?

Or do you think the U.S. military will support you?

US military personnel swear and oath to defend the constitution, not the president and not congress, from all threats foreign and domestic.

Yes, he's likely expecting that if it came to that his side would have the support of at least a significant chunk of the US military.

US military personnel swear and oath to defend the constitution, not the president and not congress, from all threats foreign and domestic.

I don't think that non military really understand that oath. And I don't think they fully appreciate what "domestic" actually refers to.

@PB, dwell on it a moment as to what it truly means to swear to ".....defend the Constitution from all threats, foreign and domestic." Does pledging your life, your fortune, your sacred honor ring a bell? These words have meaning.

Let me give a few more that have meaning (emphasis added) .....

When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

I don't think I need tell you where thats from. I think what you're having a problem wrapping your head around is that a significant portion of the country are truly afraid that what in that quote above is what is happening. So what are they to do? Sit back and take it. Sorry, but that isn't in America's DNA.

We're not at that point yet. Hopefully, we'll never get there. But if history is any guide, I wouldn't bet on it.

We're not at that point yet. Hopefully, we'll never get there. But if history is any guide, I wouldn't bet on it.

I agree, were not there yet.

Personally, I do think we are heading in that direction and that it is inevitable that we will get there eventually.

I just hope we don't get there in my lifetime.

Personally, I do think we are heading in that direction and that it is inevitable that we will get there eventually.

We seem to be heading to a crossroads, and certain parts of the country seem to be heading in diametrically opposed directions. They're going to need to either reconcile, or agree to part ways (somewhat) amicably. Otherwise, it will become a bloody mess once one side managed to lock the other out of most of the process.

Right now, the Electoral College is the only thing keeping it at a stalemate, but it too could quickly become part of the problem of it keeps deciding things on a regular basis.

It kind of implies one, armed insurrection.

And one of the stranger legal points.

1) Government (and Military) Officials take oaths to support and defend the Constitution of the United States of America.

2) Their oath further specifies their need to only obey lawful orders.

3) C/O the Nuremberg Trials at the end of WW2, "I was just following orders." Entered American (and other National Jurisprudence traditions) legal traditions as an invalid defense against carrying out illegal orders.

4) As of right now, there currently is no legal precedent that exists as to how someone is to respond to an "illegal order" scenario that places others in danger of immediate harm. Be that through deliberate actions of inactions.

Although going back to Nuremberg, simply being a guard at a concentration camp, rather than any of the more nefarious actors, was grounds for War Crime charges. So it is unclear how someone would fare in an after-the-fact review from going "conscientious objector" and refusing to carry out the illegal act, but failing to act to stop others from doing so while in a position to do so.

carrying out illegal order

Illegal according to whom? According to the authority that eventually tries you if you lose the conflict? Isn't that a retrospective form of justice?

Not defending WW2 actions; just asking the question. The "orders" came from the top executive authority in the state. What laws were broken there?

Illegal according to whom? According to the authority that eventually tries you if you lose the conflict? Isn't that a retrospective form of justice?

Not defending WW2 actions; just asking the question. The "orders" came from the top executive authority in the state. What laws were broken there?

I always considered the Nuremberg Trials to be nothing more than fancy window dressing for executing the leaders of the country just defeated. In the true spirit of Genghis Khan. Nothing more. Nothing less.

The human race hasn't advanced beyond its roots yet.

Illegal according to whom? According to the authority that eventually tries you if you lose the conflict? Isn't that a retrospective form of justice?

That's the "fun" quandary of a civil war scenario. Whichever side you decide to back, the other one will call you a traitor. And ultimately, it will be the victor who will be the one determining that.

Which becomes the real stickler on "all enemies, foreign AND domestic" as that same path means neutrality may not fly either. Although I think some clever commanders could make a case for keeping their units neutral in the interest of defense against "foreign interventions."

And at least as of my time on Active Duty, if they had to choose on backing a conservative or liberal "cause" the military would skew significantly in favor of the conservatives. Although enough liberal types are in the ranks that there would be plenty of chaos within the forces all the same. Net effect, they'd probably be mostly combat ineffective.

But then, I guess we'd also need to discuss what constitutes a "conservative" for some people. As going by some SOL stories over the years, some people seem to have really screwed up perspectives on that. Most conservatives have zero interest in visiting a Christian equivalent to Sharia Law. The Westborough Baptist Church might be, but they're extremists even by conservative standards.

How do you divine "original intent"? Does that mean we ignore the letter of the law in favor of the spirit of the law? How do we manage "intent" when it comes to inventions that postdate the Founders? How do you reconcile "intent" when the very people who ratified the document immediately turned around and began arguing over what it meant?

I think a good start would be to get the Federal government's nose out of every area not authorized in the Constitution. Honor the intent of the 10th Amendment. Then go from there.

Awesome. Let's get rid of the Air Force and repeal the Flag Code.

The Constitution authorizes a military. It does not detail how the military must be organized.

Sorry, the Air Force Stays.

Some legislators in Alabama were so unhappy with the Supreme Court ruling that it is unconstitutional for states to prohibit the marriage of people of the same gender, that there was a proposal there to have the state stop issuing marriage licenses. (The theory was that if the state couldn't regulate marriages the way it wanted to then it should just shuck the whole idea.) To get married (under the proposal, as I remember it), a couple would be required to file an affidavit that they had met all the legal requirements, and then the marriage would be registered. I have not heard the fate of that proposal. But what if Alabama (or some other state) went even further and simply said that nobody could get married at all? Would that be constitutional? Do we have a constitutional right to get married if we want to? The Constitution doesn't say so.

IMHO marriage is simply a unique type of contract that set forth certain obligations on the two involved and also gives the new entity certain privileges. Historically speaking marriage license or contracts is relatively recent.

Cheers

(I also find it fascinating that everyone seems to be implicitly fine with not actually having a national flag or national anthem or any rules about what to do regarding them)

The National Anthem didn't even exist(as "The National Anthem") until sometime circa 1920's-1930's. Everybody else was doing it, in particular for the Olympics, so we got in line with the cool kids and settled on the Star Spangled Banner.

Prior to that, it was a poem often sung to by drunken bar/tavern patrons. Which is part of what baffles me when people get all upset about people giving downright strange interpretations of that song. Compared to what would have been considered "perfectly acceptable" in either 1820 or 1890 for that same poem, I'm not finding a whole lot of /care about it.

Edit to add: That said, the events it chronicles is perhaps one of the least understood events in national history. And perhaps right up there with some of the more insane things that have happened. That event certainly deserves the title of "awful" or "full of awe."

At least if the accounts I recall from grade-school are accurate, and its damned hard finding anything on the subject. IIRC, the Brit's actually targeted--and hit, the flag multiple times. ("Striking the flag" was a sign of surrender) Only for the people in the fort (mostly medical patients) to go out there and pick the thing back up again to hold it aloft.

IIRC, the Brit's actually targeted--and hit, the flag multiple times.

IIRC, they were targeting and hit the flag pole, not the flag.

Shooting the flag itself, would have either not knocked it down, or not left much to hold aloft.

IIRC, they were targeting and hit the flag pole, not the flag.

Shooting the flag itself, would have either not knocked it down, or not left much to hold aloft.

And hitting a flag pole, from a ship(or barge) from a mile or more away would be quite the feat. Some more Google work tonight turns up one site calling that claim "voodoo history" as they've found no indication that actually happened. The National Park Service and Smithsonian versions don't mention it, and provide a context where it would have been unlikely.

The Fort was manned by able-bodied men and well armed. The British Naval force had to retreat from the onslaught Fort McHenry's guns brought to bear on them when they closed in to use their own primary weaponry. So they bombarded at range with mostly ineffective weaponry for the better part of 25 hours, then wrote it off as a bad job and left the field.

Edit: Also there were two flags flown over the fort. One was the "Storm Flag" which flew for most of the batlle, as there was Heavy Rain during much of it. And then there was the Garrison Flag which was 30 feet tall(2 feet per each of the 15 stripes. Yes, 15 stripes.) and 40+ feet long. Which is the flag Francis Scott Key witnessed flying that morning as the British Navy began its retreat.

So they bombarded at range with mostly ineffective weaponry for the better part of 25 hours, then wrote it off as a bad job and left the field.

https://en.wikipedia.org/wiki/Fort_McHenry

According to the wikipedia entry on Fort McHenry, the British didn't simply give up because they weren't getting anywhere, they had exhausted their ammunition supply for the larger guns that could hit the fort at that range.

There's nothing in the US Constitution defining what is or isn't in an Army.
That's a fascinating observation

I would be glad of it. How useful would the Constitution be if it had to define every word used within it.

I've often wondered whether Constitution and Legal System authors wouldn't do better to specify intent, rather than nail down every specific using language and circumstances which will inevitably become archaic and questionable.

Seems reasonable. There would be just as much work for lawyers interpreting intent :-)

To be fair, I don't actually think we should abolish the Air Force

Worse case, that would just force them to fold the Air Force back into the Army, where it was originally spun off from.

There are good tactical reasons for the Air Force to have it's own command structure, however, I don't see any reason for it not to be considered part of the Army for constitutional purposes as is.

Or are you suggesting that the lack of mention in the constitution of an air force (because aircraft didn't exist) prohibits the Army from owning warplanes?

That's the question, isn't it? If it's not mentioned explicitly in the Constitution, can the government do it?

You are confusing means with subject matter limits on the federal governments powers.

The federal government is only allowed to act in given subject matter areas specifically enumerated in the constitution. However, other than things that would violated the rights of the people as defined in the bill of rights amendments, and the states (10th specifically), there are few if any limits in the constitution on how the federal government can act within those enumerated subject matter areas.

The big problem currently is that the Supreme Court has allowed the government to stretch the meaning of the commerce clause (one of the enumerated subject matter areas, interstate commerce) to the point where it covers anything and everything anyone can imagine.

Removed by author

I think a good start would be to get the Federal government's nose out of every area not authorized in the Constitution. Honor the intent of the 10th Amendment. Then go from there.

Who, under your view of the Constitution, would interpret what the words mean when there is a dispute over what they mean?

Who, under your view of the Constitution, would interpret what the words mean when there is a dispute over what they mean?

Sure. Honorable men (and woman. Don't want to be labelled as sexist dontchaknow) can differ. But I don't think the distinction between original intent and living constitution is not readily apparent.

And, as I said in another post in this thread, all three entities defined in the Constitution have equal standing. And it can even be argued that the Judiciary has inferior standing, as its makeup and even its ability to rule in certain matters is determined by the Legislative branch. So, frankly, I don't have an answer other than to point back to the Constitution. And original intent.

ETA: I erred through partial truth. Judiciary's reach is restricted by both Legislative and Executive branches as the Executive branch must sign the legislation.

If there is no judicial review of legislation, then every law that the Legislative Branch passes, becomes enforceable, even if it violates your right to speech, or your right to assemble or your right to own a gun. Unless our rights are enforceable, they have no effect. Was that the "original intent" of our founders.

Honor the intent of the 10th Amendment.

And the 9th, which courts routinely ignore.

The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.

What most 'religious rights' advocates charge is that, by NOT giving the Christian faiths the full support OF the government, is discrimination against the majority faith of the nation. That's always been a specious argument, at best.

One of the more curious aspects of Article I's prohibition against the Feds supporting or establishing a state religion is that it doesn't prohibit states from doing so. In fact, Massachusetts (I believe) had supported a specific religion when the Constitution was adopted. Under that interpretation, Federal law belongs nowheres near the controversy surrounding local support of creches. Or local schools requiring teaching of intelligent design for that matter. Or even a Department of Education in the cabinet.
Now the SCOTUS has apparently made that "unconstitutional". But, given original intent, is it?

Where is the 10th Amendment when you need it?

In fact, Massachusetts (I believe) had supported a specific religion when the Constitution was adopted.

Maryland was one of those states as well, they seized a number of Catholic properties during that timeframe(1790's)

Maryland was one of those states as well, they seized a number of Catholic properties during that timeframe(1790's)

All 13 of the original US states had state supported churches at the time the US constitution was ratified(1787).

Only 3 of them (Pennsylvania 1790, Delaware 1792, and Georgia 1798) ended the state support before 1800.

The last two to go were New Hampshire (1877) and North Carolina (1875)

Note: The 14th amendment which SCOTUS has used to apply most of the bill of rights amendments to the states was ratified in 1868

https://undergod.procon.org/view.resource.php?resourceID=000069

Then the Second Amendment, to make sure that the public has the means to make sure the First Amendment is honored.

The U.S. Supreme Court has extended no such broad reasoning to the individual right to own firearms. It approved the right to bear arms for purposes of "self-defense." We have no recognized constitutional right to use a weapon to enforce the right to free speech, religion, or of the press. The opinion, written by Justice Scalia, said the government could restrict the use of "weapons of war," without defining what that meant.

This is the part that the tyrants don't like and keep trying to get around.

... shall not be infringed.

Actually, the part that the gun control advocates who keep denying that 2A provides an individual right have a problem with is

...the right of the people...

So the amendment doesn't address the right to have a rifle to hunt. It's all about the State's right to form a militia.

I'll go out on a limb and insert two things into the mix:

Hunting was a predominate cultural norm for people in the Nascent United States. The success of their snipers in particular was attributed to their extensive experience hunting in the back woods. (Side note: Military training now generally finds "prior experience" to often be a negative--They don't learn it right, and develop "bad habits" which then have to be "trained out of them." Almost making it preferential to have a total novice instead. That said, many of the present day snipers were hunters prior to enlisting all the same...)

As such, the right to keep arms, for the purpose of hunting, and "self-defense" is implied "between the lines" of what was written, given the context of the era.

But more importantly, the 2nd Amendment also talks about "a well regulated militia" which is where things get messy. "Original intent" would trend strongly towards state-run militia. Also bear in mind that the constitution's regular body actively restricts Congress from funding a standing Federal army for a period of longer than 2 years. (Good thing for the US Army they're get new funding resolutions every year--or more depending on how dysfunctional things are)

Original intent was clearly for "common defense" to be standing "States Militia" which would then be called up in time of war and federalized as warranted. This is the template that stood until well into the Civil War, although there was a smaller Union Army contingent that likewise existed in the interim years. (The Navy is expressly allowed to be funded in excess of 2 years at a time)

But what is the "original intent" significance of those State Militia? Well, that is so the State Governments have a military force they can use to face off against a tyrannical federal government, much as the Continental Congress did in 1776.

Except what became the Confederate States of America screwed that one sideways and several other ways in 1860.

The National Guard fulfills that role for the most part today(as they were formed from the various standing militias that did exist at the time--And they do report to the Governor of their state, although DoD also exists in their chain of command and cuts most of the checks). With the additional caveat regarding the national draft, as the Selective Service(if it had been devolved to the states) would be the penultimate form of "the militia" in the modern era.

In some cases, it could be argued that even the County Sheriff in many locations can also fall into the purview of the 2nd Amendment today (militia via "reserve Deputies") although that gets into para-military and other legalistic complications given para-military forces didn't really exist "as a thing" in 1790.

Long story short: The facility to rebel against the Federal Government is not an individual right, it is a County/State level right. One which was thoroughly trashed in the Civil War.

Clearly there's a link between the two

Careful CW, you are getting into religious territory here.

Control of gun ownership in the US is a faith based arguement, and both extremes are fanatical and closed to contrary views. They KNOW they are right.

Sound familiar?

It gives people the right to bear arms to form state militias to protect those states from an abusive federal government

The U.S. Supreme Court has never once interpreted the second amendment to mean that the right to bear arms is there "to protect those states from an abusive federal government."
It has ruled that the right to bear arms is an individual right, and that the right is there for individuals for self-defense. The ruling said that the government cannot (as the city of Washington DC had done) ban all weapons - but it can regulate it.

The main thing we need to defend ourselves from is a tyrannical government.

I hate to rain on your parade, but if you bring guns to a drone/missile/tank/aircraft fight, you won't win.

... if you bring guns to a drone/missile/tank/aircraft fight, you won't win.

That would be grossly unfair. I think even a tyrant would hesitate to use such weapons against his own country's citizens. At least during his first term or he'd never get reelected.

I hate to rain on your parade, but if you bring guns to a drone/missile/tank/aircraft fight, you won't win.

That all depends on how big the guns are.

Tanks are basically self propelled armored platforms for big guns, so are most military aircraft. A navel vessel has even bigger guns.

https://en.wikipedia.org/wiki/Anti-tank_rifle

The U.S. Supreme Court has extended no such broad reasoning to the individual right to own firearms. It approved the right to bear arms for purposes of "self-defense."

SCOTUS approves? Well, thank you SCOTUS for giving us these rights. /sarc

I'm making a basic point here that seems to fly over a lot of people's heads. All 3 branches -- Legislative, Executive and Judicial -- are subordinate to the Constitution. Given some of their actions, especially in the past 60 years or so, the Judicial branch as apparently forgotten that.

Government doesn't give any rights as if they did then they could take them away. These rights are natural. The Bill of Rights just reiterates that the government can't infringe on them. And note how all of them are personal, i.e. individual, rights. Not group rights.

How do you classify the right to a trial by jury, then?

Methinks I'd classify it as mandated by the 6th Amendment.

But it's explicitly a right granted and enforced by a government.

I view it as affirming the right not to be judged by an overseer but rather by peers. As such, it reaffirms an individual right just as the others in the BofR.

@Jim S

But it's explicitly a right granted and enforced by a government.

It's a right reserved by "We the people" for ourselves in the Constitution and supposed to be enforced by the people we have chosen to govern us.
There are multitudes of laws on the books in the U.S., and the President, as head of the Executive Branch is required to faithfully make sure they are enforced. But there are so many laws, no President, with the resources available to the government, could possibly enforce them all. It is interesting to see which laws which presidents choose to enforce and which ones they choose to let drift.

I got the impression he would have failed a sobriety test when he wrote that rant.
It invoked Nazis (or fascists, I can't remember) and otherwise defenceless women, he just forgot to mention innocent children. Then again, "think about the children" would have been counterproductive at the moment.

I got the impression he would have failed a sobriety test when he wrote that rant.

I honestly can't disagree with that assessment.

Then again, "think about the children" would have been counterproductive at the moment.

Would it? Those 17 teenagers at Parkland relied on the "Cowards of Broward" to protect them but those Sheriff Deputies decided to stand down, hiding outside while a maniac used them for target practice. While in the Army, I was taught that it was my duty to go to the gunfire, not away from it. It was a duty that went with the job. But I guess that must not be in the Broward County Sheriff Deputies union contract.

ETA: One teacher/administrator with a Glock 21 and the knowledge, ability and will to use it would have made a huge difference. As it has in every other school shooting where there were defensive weapons present. There have been several. Dig and you can find them.

While in the Army, I was taught that it was my duty to go to the gunfire, not away from it. It was a duty that went with the job. But I guess that must not be in the Broward County Sheriff Deputies union contract.

According to the FOP (Fraternal Order of Police) the first duty of a police officer, above all others, is to make it home alive at the end of their shift.

Of course, the FOP also thinks that a police office only has a 50/50 chance of getting out of any one traffic stop alive.

almost nothing is said about the gunman being nuttier than a grove of walnut trees at harvest time.

Not true. Plenty is said about nut jobs. In every instance of mass gun violence of which I'm aware, one side of the argument always blames guns, the other side always blames the mental health of the shooter. It is not that "nothing is said," it's just that other voices with a different perspective were also heard. The most extreme on one side want to ban all guns. The most extreme on the other side resists any regulation at all.

Well expand it to read 'nothing's said by the media at large.' After every shooting there's millions of dollars of media reportage of the anti-gun lobby rhetoric, but nothing you see in the media about the mental health issues of the shooter.

Maybe what you read has nothing said by the media. In what I read, both sides are well represented.

It's not a desert on all TV news broadcasts. Fox News certainly covers the mental health side of the controversy in the U.S. I do not know, of course, what Fox News (or any other) might or might not have done where you are. That you don't see it doesn't mean that the media isn't covering it.

By my recounting, there has only been ONE, the others have all been cases where a cop was ON the premises and had a gun. There have been NO cases where a civilian stopped a school shooting by shooting a gunman.

http://rense.com/general19/schd.htm

There are others, pretty easy to find on the net. This one came from entering "school shooting stopped by student" in Bing's browser, as I couldn't remember the school's name.

The school is in Virginia, if I remember correctly. Compare that story to the one at Virginia Tech to get some idea of the difference arming the right people on campus can make.

But I guess that must not be in the Broward County Sheriff Deputies union contract.

The Broward County Sheriff's union contract is online. It pretty much let's the management do whatever it wants to do via a "management rights" clause that's very broad. There's nothing that I found in the contract that would prohibit the management from issuing such instructions if it chose to do so. Of course, it was a quick read so I could've missed it.

Of course, it was a quick read so I could've missed it.

Probably. Just as you missed (intentionally?) the sarcasm.

It is true that if you did not mean what you said, I missed that. It sounded to me as though you were somehow blaming the Broward County Sheriff's Office deputies simply because they are covered by a union contract. Did you not mean that?

Did you not mean that?

Bob, normally I don't feed trolls as, like wayward cats, once you feed them, you can't get rid of them. But I made an exception and look what it got me. Time for me to stop feeding.

Hell almost anything can and probably has been turned into a weapon at some time and some where.

I'm mindful of a quote attributed to Albert Einstein. When asked what weapons would be used in the next war, Einstein is supposed to have said that he wasn't sure, but that the 4th World War would be fought with stones. Probably like the tribal wars were fought 40,000-50,000 years ago.

Curious. I seem to recall reading almost the exact same thing...

And how nany of those societies failed?

The problem is that our society has gone mad. It must be the shoot-em-up video games.

The problem is "industrial scale availability" and the information age. Certain other factors likewise come into play, like automatic weapons.

But the biggest factor is access to various things is a lot more freely available c/o industrial production of goods. This when paired with information also being widely available on how to use otherwise innocuous products for nefarious purposes provides ample means for people to go about causing mayhem.

Which isn't to mention the whole "numbers matter" type thing.

Jesse James, for example died in 1882. The 1880 census indicated that there were just over 50 million people living in the United States at the time. He wasn't particularly unique, but he was (im)famous all the same, to the point of being known of 135 years later.

There are 330 Million people alive today. Claiming he was a 1 in 50 million type event/person, "by the numbers" there should be 5 or 6 of "his type" running around today in the United States. This also ignores the less infamous varieties from his era.

Now also imagine the mayhem he'd be potentially be able to achieve with the things we have today vs what he had to work with back then. (Of course, flip-side is law-enforcement has a lot more at their disposal as well)

Interesting OpEd from a former Supreme Court Justice. He believes the Second Amendment should be repealed. Of course he leans to the Left.

The Progressive Left has always known you can't have a malleable, docile populace if they're armed. Thats why their first move has always been to disarm the populace. As I said in a previous post in this thread, our (USA) Founders were very, very prescient.

And here's a response explaining why Stevens is wrong.

http://reason.com/blog/2018/03/27/justice-john-paul-stevens-wrong-second-a

Never thought about a bobcat. Are they allowed under the US Constitution or would I need to go through a lot of red or blue tape to get a special license?

Oh well. I will ask the wife for suggestions. She will give me another earful of them.

Those who endorse "original intent" usually argue that state governments (but not federal) can do anything not prohibited by the Constitution. If that argument were to prevail, then state governments could pass a law prohibiting you from keeping a bobcat (for all I know, some might already do that). The Constitution is silent on whether you have a constitutional right to keep a bobcat.

If that argument were to prevail, then state governments could pass a law prohibiting you from keeping a bobcat (for all I know, some might already do that). The Constitution is silent on whether you have a constitutional right to keep a bobcat.

Depends on the bobcat in question. Are we talking about the power unit or the furry critter?

The furry critter requires some special licensing in many places IIRC. Many/most city government would also tend to have harsh restrictions on anybody keeping "wild animals" as pets, in particular the predatory kind.

As a red in California, all I can say is that my vote and opinion counts for less than the dog poop someones mutt left in my yard.

That practice is simply wrong. Every vote should count. One thing that interferes with that is the Electoral College, where the Constitution grants lopsided influence to states with smaller populations), and it is further aggravated by "winner take all" rules adopted by every state (2 states grant "winner takes all" by congressional district, instead of statewide, but that still denies those with contrary votes from having any effect on the outcome of the election). Red voters in California or blue voters in Texas get no voice.

Ergo the US is a Republic and not a Democracy. A collection of states with each state having a share. If it was a straight up vote, little states would be ignored in the election. As it is now, they at least pay lip service to all states. Though Republican presidential candidates do not spend a lot of time in solid blue states while Democrats do the same for solid red states.

Either way, someone will be left holding the bag wondering why no one pays them attention. Would we be better off with no primaries and just a general election? Or maybe have the ten candidates with the most votes in a single nationwide primary race move on to the general election?

Are you arguing that winner-take-all rules in states is what defines a Republic?

Are you arguing that winner-take-all rules in states is what defines a Republic?

No, that would be a Democracy. Republics, if memory serves correctly, are where you have individual territories that have equal status between them. In the US, we have 50 states and each one has equal status. At least in the Senate. The House is more a democracy, as it is based on population.

Within each state, you could base a republic idea based on counties or townships or whatever the state calls their areas. Each one would be equal in their representation.

Would it work? Probably not. But what we have now for presidential elections does not work. That is why I mentioned the top 10 vote-getters in a national election all held on the same day would progress to the final election. Might we end up with 10 from the same party? Possibly. Still, it would be better than this asinine years long debacle we call a presidential election.

Would the reds and blues vote for it? Nope. So I rant about the waste untold millions if not billions of dollars spent on the elections.

At times I wish we actually had viable third and fourth parties to vote for. Even this last election I do not believe that third party candidates achieved even 5 percent of the total vote. BTW, I voted third party. Both sides were idiots that I did not trust.

Most countries require voters to provide evidence of citizenship at some point in the voting cycle, but they don't in the USA

I cannot speak for every state, but every one of the four states I've lived in require proof of citizenship to vote.

I cannot speak for every state, but every one of the four states I've lived in require proof of citizenship to vote.

In California it is easy to bypass the rules. Here are the particulars...
https://www.dmv.org/ca-california/voter-registration.php

In order to be eligible to vote in the state of California, you must be:
•A citizen of the United States.
•A California resident.
...

When you complete your application, mail it to the address provided on the application. You will need to provide your California driver's license or identification card number or the last 4 digits of your social security number. If you do not have any of these numbers leave the field blank and the election officials will assign you a voter identification number.

So just leave the drivers license field blank and away it goes with an official voter ID number.

I cannot speak for every state, but every one of the four states I've lived in require proof of citizenship to vote.

My state kind of requires that now? 20 years ago you could register to vote by presenting a utility bill showing your name and address and stating you were eligible to vote. If you wanted to go above and beyound, you could, but that was the requirement. State Issued ID required proof of legal residence, so that was acceptable then and now too.

But going back to California, and others as well(such as New York), State Issued ID is acceptable proof of eligability to vote. But as they give State Issued ID to "undocumented residents" with few to no questions asked....

In the four states in which I've voted, it requires proof of citizenship in order to register to vote, which is done a month or more prior to election day. On election day itself, the voter must show identification to prove that he/she is the person who is registered to vote, but no proof of citizenship is required on that day - the registration itself is adequate proof.
In my current state, we do not register by party. When it comes time to vote in primaries, the rules are left up to the party. The law allows voters to vote in either the Democratic or the Republican Party - but not both. I never vote in the Republican Party primary because the party in my current state requires me to sign an affidavit promising that, regardless of who wins the primary, I will support that candidate in the general election. I'm unwilling to make that promise without knowing who the candidate will be. The Democratic Party requires no such pledge. I have voted for both parties (not in the same election) in the general elections.
Based on my own personal experience in four different states, your assertion is wrong.

In my current state, we do not register by party. When it comes time to vote in primaries, the rules are left up to the party. The law allows voters to vote in either the Democratic or the Republican Party - but not both. I never vote in the Republican Party primary because the party in my current state requires me to sign an affidavit promising that, regardless of who wins the primary, I will support that candidate in the general election.

This is generally my state, less the affidavit. However, state laws do exist regarding primaries. But the extent of involvement consists of being "required" (insofar as they're going to have a hard time proving it short of confession) to vote in the general election for whomever you vote for in the primary. (So if "your guy" loses the primary, state law says you're in the clear)

No party registration required for the general.

The Democrats caucus for the Presidential Primary(started in '08), which I believe requires registering Democrat to attend, but the rest of the primary ballot is "open" I think.

The Republican Primary "closed" during the Obama Administration, only registered members of the Republican Party may vote in their primary race. So you would need to 1) Be registered to vote. Then 2) Register as a Republican if you want to vote in their primary race now. (You can do both at the same time if you want)

But the primaries are not the general election. Although with as solidly Republican as some areas are(such as my own) the Primary race is the only truly "competitive" race that happens. Making the general election more of a pro-forma event.

In my current state, we do not register by party

What is with that? I have never understood the idea of registering to vote and having to state a party. Where is voting secrecy in that?

What is with that? I have never understood the idea of registering to vote and having to state a party. Where is voting secrecy in that?

In most states, even as a registered member of a given party, you're under no obligation to vote party-line down the entire ticket.

I can understand it for the primary, as vexing as that may be in my case. The states which want a party affiliation for general election baffle me. But then, also remember the "secret ballot" tradition/process isn't as old in the US as some would like to believe.

remember the "secret ballot" tradition/process isn't as old in the US as some would like to believe

The US voting systems seem chaotic to those of us used to more ordered and reliable systems. In Oz, voting is compulsory, and you can't vote unless you are included on the electoral roll some period before the ballot. Getting included is where entitlement checks are done. But I suppose all that ordered certainty is a violation of some right or other in the US.

Getting included is where entitlement checks are done. But I suppose all that ordered certainty is a violation of some right or other in the US.

The "issue" in the United States goes directly to the Jim Crow Laws and methods used in "the south" to deprive Blacks of their right to vote. Poll Taxes, Literacy Tests, and numerous other means were employed in order to keep them from even casting a ballot. It also is why the Southern States have to contend with Justive Department oversight of their voter registration systems.

The US voting systems seem chaotic to those of us used to more ordered and reliable systems.

I guess we missed this one earlier. Part of "Why the U.S. system seems chaotic" is that there is no federal system strictly speaking. Each state or territory maintains its own system independent of anything happening elsewhere. As there are no elections which happen across state lines.

Remember, the Presidential race is actually a series of state elections used to determine who the state will use to represent them in the Electoral College.

Thus things can get confusing when you get descriptions of California's process mixed in with stuff from Texas while somebody else adds in information from New Jersey.
:)

As there are no elections which happen across state lines.

Personally I think the voting of the electoral college would qualify for this.

The only election in the world where the voters are elected. :)

The only election in the world where the voters are elected. :)

What about those Prime Minister guys?

Personally I think the voting of the electoral college would qualify for this.

As the Electoral College voting process doesn't directly involved the general public, I don't consider that particular Vote to be a "normal" balloting process someone will participate in.

What about those Prime Minister guys?

Beat me to it.

Prime Ministers are the senior executives of Westminster style Parliamentary Democracies. They are not voted for by the public.

The party or parties coalition that wins the election to form a government elect their leader, who becomes the Prime Minister.

So the elected representatives in the government elect the Prime Minister.

Just to confuse y'all, the Government is not the same as the Parliament. Is is a subset of it.

So if he U.S. had the British system, the party who won the most seats in the House would elect the President - presumably the same person they've been choosing for Speaker of the House?

So if he U.S. had the British system, the party who won the most seats in the House would elect the President

That can happen, though it's exceedingly unlikely, with our existing system.

If none of the candidates gets a majority in the electoral College, the House selects the president and the Senate selects the vice President.

That can happen, though it's exceedingly unlikely, with our existing system.

If none of the candidates gets a majority in the electoral College, the House selects the president and the Senate selects the vice President.

I forget if it is a "rule" or constitutional (amendment) restricting them, but in such an instance, the House can only vote on persons nominated by an Elector in the initial ballot round.

It's in the original constitution. They are limited to selecting from candidates who got votes in the electoral college and in fact if there were a large number of candidates voted for by the electoral college, they are limited to choosing from the top five.

So that's how it's done.

Technically, yes. But most often the leader is elected before the ballot, and just confirmed post ballot. That way the public understands who will be Prime Minister before they vote.

But it doesn't always hold. In Oz, there have been many instances where the 'party' forming Government has tossed out one leader and voted in another. The new leader then becomes Prime Minister. In those instances the public gets absolutely no say in who is Prime Minister.

What about those Prime Minister guys?

Since the MP who elect the prime minister aren't elected solely to elect the prime minister it's not the same thing.

it's not the same thing

Not exactly, but it is an 'election ... where the voters are elected', so 'only ... in the world' doesn't hold.

Remember, the Presidential race is actually a series of state elections used to determine who the state will use to represent them in the Electoral College.

Like I said, chaotic :-)

I get the reasons for it all. The (near fanatical) devolution of power and responsibilities in the US has also brought about many differences in the way precisely the same things are done, all the way down to how the city dog catcher is empowered. It almost seems that the same devolution has resulted in a 'we will do it our way, and make sure it is different from everybody else, just so we can say it is ours alone' arrangement.

Countries that aren't paranoid about State or County or City process independence, and prefer to have ordered common processes (without shedding responsibility) are, IMHO, easier to live in.

In Oz, ALL significant elections are managed the same way by the same independent body, so it's all familiar and easy to execute, regardless of where in Australia one lives.

Oz too is Federated, but as a Commonwealth, not a Republic. It is technically a federal parliamentary constitutional monarchy. The Federal Government in Australia exists, technically, at the pleasure of the States.

We have a constitution. I haven't read it. There has been one constitutional crisis in my lifetime, a real one, and I still didn't read it.

We don't seem to need to rely on our constitution for 'rights'. We don't have a Bill of Rights. Never needed one. Just goes to show how backwards we are I guess.

but as a Commonwealth, not a Republic

How do they differ? There are some "states" in the U.S. that call themselves commonwealths, but as far as I know they operate the same way as other states do.

How do they differ?

Not by much, particularly in modern context, where the difference is comparable to that of a Democracy vs a Republic.

Voting secrecy is a modern invention

And a good one. Which is why most Western democracies now employ it.

Is this one of those modern things that isn't in the US Constitution, and therefore can never be used?

MPs votes should be secret so that they can vote with their consciences rather than follow party diktat.

That surprised people, including me

I think, mayhaps, you are confusing the publicly stated reason with the actual reason.

I think, mayhaps, you are confusing the publicly stated reason with the actual reason.

A politician who doesn't want to be held accountable for things they instigate or otherwise supported? Inconceivable! Never happens. They're paragons of accountability after all.

💩

It (by omission) leaves up to each state how to actually conduct the elections to choose those representatives to the federal level. There are, strictly speaking, no federal elections: only state elections for federal representatives (electors are essentially this).

Actually, under the original constitution states were not required to select Senators or electors by election at all, and in fact most states originally had the Senators appointed by the state legislators.

This was changed for Senators by the 17th amendment and technically still stands for electors, most states adopted some form of the indirect election of electors very early on.

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

https://en.wikipedia.org/wiki/Article_Two_of_the_United_States_Constitution#Clause_2:_Method_of_choosing_electors

A state currently using indirect election to choose electors may face issues with challenges under the 15th, 19th and 24th amendments if they attempt to switch to a non-election based method of selecting electors.

It (by omission) leaves up to each state how to actually conduct the elections to choose those representatives to the federal level. There are, strictly speaking, no federal elections: only state elections for federal representatives (electors are essentially this).

Well, until Reconstruction, when an amendment gave blacks the right to vote. Then about 50 years later another amendment gave women the right as well. Another 50-ish years later yet another amendment came along requiring all states to allow 18 year olds to vote.

It should be noted, it isn't worded in such a manner as to prohibit a state from letting persons under 18 vote. Just that they must let an 18YO vote.

And those eligibility differences also point back to the wisdom of the Electoral College. It limits the impact of whatever wonky things a state may get up to which could impact the vote totals re: The Popular Vote in Presidential Elections.

The process of electing a U.S. President is not by secret ballot everywhere. In some states where they use caucuses, rather than primaries, to select delegates (who eventually choose electors), people gather in neighborhood houses (or schoolhouses) and to show support for a particular candidate must group themselves publicly with that candidate's other supporters. Then somebody counts the number of people in each group. Somehow they winnow it all down - very publicly.

The process of electing a U.S. President is not by secret ballot everywhere. In some states where they use caucuses, rather than primaries, to select delegates (who eventually choose electors)

No, caucuses are only used in the nominating process to select delegates to the party convention (in the few states that still use them), not to select electors for the general election.

No, caucuses are only used in the nominating process to select delegates to the party convention (in the few states that still use them), not to select electors for the general election.

Not so few any more. The system fell out of favor for a while, almost disappearing even. But it has since had a revival and seems to be becoming increasingly popular for both parties to implement in their primary proceedings.

Not so few any more. The system fell out of favor for a while, almost disappearing even. But it has since had a revival and seems to be becoming increasingly popular for both parties to implement in their primary proceedings.

A caucus is not a primary process.

But you are correct, more states are using caucuses than I thought. 12 states and 3 territories used caucuses in 2016.

https://www.bustle.com/articles/138406-how-many-states-have-caucuses-instead-of-primaries-heres-exactly-what-to-expect-from-each-one

Caucuses, where they are held, are an integral part of "the process of electing a U.S. President," which is what the note said. If I had wanted to specify the general election, I would have done so. Congratulations, you've knocked down a straw man.

If I had wanted to specify the general election, I would have done so.

You did do so.

who eventually choose electors

Electors, the people who vote in the electoral college, are strictly part of the general election process.

The party convention delegates have nothing to do with selecting them.

The slates of electors chosen in a states general election are chosen directly by the candidate well after the party conventions are over.

What is with that? I have never understood the idea of registering to vote and having to state a party. Where is voting secrecy in that?

You can state a party preference on your voter registration in all 50 states.

However, it's only mandatory in the 14 states that still have closed primaries. In a state with closed primaries you can only vote in the primary for the party listed on your voter registration.

The states with closed primaries are: Delaware, Florida, Kansas, Kentucky, Louisiana, Maine, Maryland, Nebraska, New Jersey, New Mexico, New York, Pennsylvania, Oregon, and Wyoming

https://en.wikipedia.org/wiki/Primary_elections_in_the_United_States

You can state a party preference on your voter registration in all 50 states.

Not true, not in all 50 states.

I'm in Arizona and it must be a closed primary.

Arizona uses what is considered a semi-closed primary system.

From the link I posted above on primary types:

Semi-closed. As in closed primaries, registered party members can vote only in their own party's primary. Semi-closed systems, however, allow unaffiliated voters to participate as well. Depending on the state, independents either make their choice of party primary privately, inside the voting booth, or publicly, by registering with any party on Election Day. Twelve states — Alaska, Arizona, Colorado, Iowa, Kansas, Massachusetts, New Hampshire, North Carolina, Rhode Island, Utah, and West Virginia — have semi-closed primaries that allow voters to register or change party preference on election day.[5][6]

My state, Wisconsin uses an open primary. Everyone can privately decide which primary to vote in inside the voting booth. All the parties are listed on one ballot, but if you try to vote in more than one primary, you spoil your ballot and it won't be counted.

In some states (Virginia is one), when you go to the voting place on primary election day, you check in with the registrar, show your ID (to prove you are the person who is registered), then you request either a Republican or Democratic ballot - one or the other. If you request a Republican ballot, before you get your Republican ballot you also have to sign a pledge promising to support in the November general election all the Republican candidates who win their Republican primary elections.
I heard a resident of Pennsylvania on the radio the other day saying that in that state, when the November general election rolls around, voters may choose a single lever that selects all the candidates for either the Republican or Democratic candidates from top to bottom, or you can select individual levers to mix up your vote among the candidates of the parties.

I heard a resident of Pennsylvania on the radio the other day saying that in that state, when the November general election rolls around, voters may choose a single lever that selects all the candidates for either the Republican or Democratic candidates from top to bottom, or you can select individual levers to mix up your vote among the candidates of the parties.

Wisconsin has basically the same thing. We phased out lever machines years ago in favor of a scan-tron type optical scan paper ballot system, but there is a spot on the general election ballot to mark a straight party line ballot in one mark.

But then someone said: "But what if he wins?"

Then we all win. :)

I once read that one of the parties encouraged their members to vote in the other primary for the person they thought had the least chance to win in the general election.

But then someone said: "But what if he wins?"

And then Trump won.

https://www.congress.gov/bill/115th-congress/house-bill/5087/text

They really seem to be hung up on grenade and rocket launchers. Those are banned from both semiautomatic rifles and shotguns. I am pretty sure those are already banned unless you have a special license.

They are also banning the Ruger mini-14.

Wow, just like California, they are banning those evil pistol grips on rifles. Those must be banned cause they are so scary looking.

If you have a semiauto rifle with a forward grip it will also be banned. If taken to extreme, that would ban any of those rifle where the stock extends past the trigger guard. Say goodbye to your hunting rifles unless they are bolt action.

ETA: Oops, the actual text on the grip states:
"(42) The term 'forward grip' means a grip located forward of the trigger that functions as a pistol grip

Just noticed a list of exclusions. That list includes:

"Ruger Mini-14 (w/o folding or telescoping stock or pistol grip)

My military oath was to preserve, protect, and defend the Constitution of the United States against all enemies, foreign and domestic. I have not been relieved of that oath. If you think I consider this House Bill to be a threat to the Constitution, you're probably right.

Rep

Well, and accurately, stated. Each sentence.

You can turn up at the booth on voting day, prove you live in the area, say you're a citizen without showing any proof, and you're allowed to vote.

Not in Oregon. You are required to be registered a certain number of days prior to the election in order to vote in that election.

You are allowed to register to vote prior to your 18th birthday if you will be 18 on or before the election day.

I know this because my sister turned 18 on Election Day, November 2, 1976, and was required to register to vote prior to that date; I don't remember how many days prior, but you could not vote without having registered in advance.

And in every state I've lived, you have been required to register in advance. Oregon, Arizona, Illinois, and now Washington.

From what i can make out via Internet searches and the media reports there is no requirement to register to be able to vote in any state or federal election. You can turn up at the booth on voting day, prove you live in the area, say you're a citizen without showing any proof, and you're allowed to vote.

As far as I know, only Wisconsin (I am a Wisconsin resident) has ever allowed full registration at the polling location on election day.

There are some states that allow a provisional registration at the polling station, but those ballots are held back and not counted until the person's registration information has been confirmed.

I suspect you may be confusing American citizenship with residency in the voting district. Americans tend to move from place to place. In the four states where I've voted, registering to vote is a one-time thing in the district. That is, if you register in, say, the year 2000, that registration is valid as long as you continue to vote regularly in the same district, and you don't have to prove American citizenship again. You may be asked, at the voting booth, to prove residency - evidence that you still actually live in the district in which you are voting. Much of the argument about evidence of residency is what documentation the state requires to prove residency. If the state will accept only a driver's license as proof of residency, those who don't have a driver's license aren't allowed to vote. In my state, if you can show a gun permit, that's good enough to prove residency. But a student identification at one of the state's colleges is not accepted as proof of residency. The result is, of course, gun owners are allowed to vote and many students who otherwise meet all the legal requirements are not allowed to vote. Even a passport, which, as far as I know, is proof of citizenship everywhere, will not establish residency if the passport is more than a couple of years old.
In Florida a few years ago, there were accusations (i do not know whether they were true) that the state was purging registration rolls, particularly in minority communities. The accusations were that a private company funded by one of the political parties provided lists of people, by name, who were no longer eligible to vote. The state struck those names from their voter registration lists. To become eligible again, would-be voters again had to prove citizenship and residency.

The question is always over what documents should be allowed, and the implications those choices have in terms of voter suppression.

If we had a national citizenship ID card, that would take care of it. But we don't. The closest to that is a passport, and a great many citizens have never obtained one, as they have never travelled outside the US since the increased scrutiny at border crossings post 9/11.

If we had a national citizenship ID card, that would take care of it.

A national citizenship ID card might be evidence you are a citizen, but it is not likely to be accepted everywhere as proof that you are a current resident in the voting district.

A national citizenship ID card might be evidence you are a citizen, but it is not likely to be accepted everywhere as proof that you are a current resident in the voting district.

If it had the same requirements and regulations as a State ID card, it would.

Because you would have a limited number of days after changing your address to inform them of the new address, and you would then be either issued a new card, or an update to affix to your existing card.

Your presumption seems to have been that it wouldn't require a current address as part of the information included on the card.

My presumption is that, for it to be any good as a national ID, it would need to contain the same information as the current State IDs, and have the same requirements of keeping your address current in the issuing agency's database.

There would, of course, be the exact same problem as currently exists for those who are homeless or otherwise without a fixed abode. I'm not sure how the respective States deal with that currently.

I am not familiar with "current State IDs." Can you enlighten me?

I am not familiar with "current State IDs." Can you enlighten me?

In every State that I've dealt with, a State ID card is identical to a State isssued Driver's License, except that it doesn't grant you driving priviledges. It is issued by the same department, and requires exactly the same documentation. You just don't have to pass the driving test.

They will issue it to individuals who are too young to obtain a Driver's License, which is a decided advantage, as well as issuing it to individuals old enough to obtain a Driver's Licence who do not drive, or have had their driving priviledges revoked.

Once you have been issued either a Driver's License or a State ID card, within that State you will retain the same ID number regardless of which card you currently have, and that ID number will remain with you within that State even after moving out of State and then back.

As with a Driver's License, you must have a fixed physical abode, and when you move, you are required to inform the issueing agency within a set number of days what your new address is.

The one thing a State ID card doesn't do, which a national ID card would need to do to be of use for expediting voter's registration, is indicate your citizenship status. The only condition placed upon the issuing of a State Driver's License or ID card is that you are required to be within the State legally; Green Card status will do just fine for their purposes, but they don't indicate that status on the card itself. For use with Voter's eligability verification, that status would need to be recorded and made verifiable during the registration process.

Under your scenario, what other use could be made of a national ID card? Would it be necessary in order to get a job? Get a driver's license? Get married? Own a business? I seem to recall that a national ID car may have been used in the past for purposes with which most of us would disagree today.

I have no desire to do the research for you to show that every single state and territory requires proof of citizenship to register to vote.

Wisconsin does not require proof of citizenship to register to vote.

http://elections.wi.gov/sites/default/files/publication/154/voter_registration_guide_pdf_21165.pdf

The last time I moved, all I had to do to register at the new location was sign an affidavit that I lived in the district and was eligible to vote.

They're trying to add a question to the census counting: Are you a citizen. Trump is being sued over it by California because their illegal immigrants wouldn't be counted so they'd lose seats in Congress.

So much for 1 person, 1 vote.

And they're complaining about the outsize influence Rhode Island still has 225 years later? (On wait, RI is Democratic, it's Wyoming that is "The Problem"),

Don't mind me and my 3 legislative districts with 700k people in them, 300k of which in each district cannot legally Vote because of their Immigration Status...

It's also why the Constitution specifically called out some people as being worth fractional people; if representation/apportionment was meant to be based on voters, why even have the clause?

Wrong, the 3/5ths of a person thing was an initiative from the abolitionists to discourage the South from "stacking the deck" population wise by either importing more slaves, or by forcing them(slaves) to have more children.

Although now it's commonly used to portray the founders as viewing slaves as being sub-human and thus literally only equal to 3/5ths of a white person.

"All men are created equal."

In regards to the "All men are created equal" in the Declaration of Independence.

There is little reason to believe that the authors of the Declaration of Independence were deliberately excluding women.

It should be noted that in Old English, man/men was gender neutral and there was a male prefix, along with the female prefix "wo".

Even though the male prefix got dropped from the language, the gender neutral use of man/men persisted into modern English and was not at all uncommon in the 18th century.

In fact, the gender neutral use of man/men didn't fall completely out of official favor until the modern feminist movement started actively opposing it in the 1960s.

So then why did the Declaration of Sentiments say "all men and women" instead of just "all men"?

1. It was written 72 years after the Declaration of Independence by a completely different group of authors.

2. The gender neutral use of man was common in that era, but it was by no means universal.

3. Absolutely nothing about the phrasing choices of the authors of the Declaration of Sentiments can be imputed to the authors of the Declaration of Independence.

ETA:
4. There are many ways in which, even in the founding era, the government of the United States failed to live up to the grandiose principles outlined in the Declaration of Independence.

Were women equal? They couldn't vote.

Actually... They could, but they had to be "head of household" to vote in most states circa 1790. But then, in 1790, many MEN, even the white ones, couldn't vote in the 1790's either. As being a landowner was a common requirement.

But then, in 1790, many MEN, even the white ones, couldn't vote in the 1790's either. As being a landowner was a common requirement.

Yep, back then, voter turn out as a percentage of eligible voters was much higher than it is no at around 80%, but turn out as a percentage of the full population was only around 10%

Personally, it appears to be the Facebook equivalent of 'unfriending' everyone here because in the grand scheme of arguments, there were several close items in a row where people called him on his assertions without having actual facts in support and in an attempt to save face, he's saying that we drove him away.

Oh, I would agree that at least a couple of people in this discussion came across "like an 'old' white guy" in what they said and did, and ventured into racist territory as well(which isn't to say they are, I know better than that. But it is valid "privilege" example, they're blind to what they're actually saying).

Personal experience is confronting them on it is pointless, so I ignore them until/unless they're actually directing it at someone physically present. Something he clearly hasn't learned.

Of course, he probably considers me to be one of "those old white guys" which I am not. (Not even 40 yet)

Of course, it was also odd being condemned for not immediately assuming the worst of "certain types" of people, historical or otherwise. But that is a problem with a lot of present day rhetoric and tendencies.

Personal experience is confronting them on it is pointless, so I ignore them until/unless they're actually directing it at someone physically present. Something he clearly hasn't learned.

I should append this one: The actual and/or "marginal" racist isn't the only one with whom engagement is "mostly pointless" the "SJW'S" and company also generally qualify.

But they're a special case for me, as I generally agree with the intentions and goals many of them have. What I disagree with is the methods, and what I fear is "the swing of the pendulum." Which is something they ignore at their peril.

They may be ascendant at this time, but "a downstroke" is inevitable.

Many of them seem to be of two camps on that. Either they can not conceive of a regression, or they're hoping to have moved things so far in their favor that when the backslide happens, they'll still have progressed forward. In a "Three Steps Forward, Two Steps Back" kind of way.

The problem is the methods now often being employed are more likely to turn it into "Three Steps forward, Four Steps back." Which is the option that horrifies me. So of course I am going to call out efforts that seem to be ratcheting that pendulum up to an even greater proverbial height.

everything that happened during the Obama presidency was intended to destroy the country

To an outside observer, the rot was really started by one person. Newt Gingrich broke all precedents and normal behaviors when he introduced the attack dog methodology against Clinton. Regardless of any view anyone holds about Clinton, the methods Gingrich employed were not justified by the outcomes. I remember thinking at the time, that it was the beginning of the end for bi-bipartisan politics in the US. I didn't foresee that it would eventually lead to a Trump outcome, although I probably should have. I still had hope for the prevalence of the precedence of good governance, I suppose. I wonder where it will go next …

Newt Gingrich broke all precedents and normal behaviors when he introduced the attack dog methodology against Clinton.

Actually have to somewhat agree with this, but in a different way. It still is Newt's fault, but the specific change at fault is more the changes in how the Republicans did the campaign funding in 1994, at Newt's behest, IIRC.

They Nationalized and centralized a lot of it in ways that had never been done before. Which allowed Republican candidates to outspend incumbent Democratic candidates in races where it had never happened before.

It can probably(but this is supposition on my part, haven't checked the paper trails) also account for the funding mechanisms the RNC used in defeating the Tea Party in several primary races in 2014. Which certainly did prime a lot of Republican voters to go "Fuck You" towards the RNC in 2016, and thus giving us Donald Trump.

Basically the 1994 campaign waged by Gingrich's team, while pushing for smaller, more localized governmental approaches, actually created a nationalized political campaign mechanism they essentially destroyed "local variation" between party districts. As politicians are often beholden to their next campaign fund... And as they moved that to a national rather than local level in a very big way, it both homogenized things and made it far more partisan as a result.

Heck, just to make things interesting. The number 2 vote-getter should be the Vice-President. Might have to bring back the Presidential food tasters if that happens.

No, not unless/until we have more than two viable (competitive) parties.

Since that would guarantee a Rep pres has a Dem vice president and vice versa, it would actually increase the incentives for nut jobs from the opposing party to try and assassinate the president.

Please note, Secret Service agents, I AM talking tongue in cheek here with some sarcasm and I am wearing my protective aluminum foil hat.

So, would the decimation be bad? It would definitely eliminate the most hateful of all parties from running and also bring out the more moderate. I think.

You need it in a quote tag. If you highlight text before hitting reply (on the particular post), it should do it for you

Cool. Thank you.

The right to wear short sleeve shirts: The right to bare arms.

A man who lost both his arms had the forelegs of a grizzly bear grafted in their place. The right to bear arms.

Only if you take the bear to militia meetings, and if he militia is well regulated

Jefferson was also a vile man.

Why?

Yes. She was his slave; he was her master. Slaves do not have the power to give full, enthusiastic consent because of the power differential. That is rape. The age gap only made the power differential more problematic.

At face value, I would tend to agree. However, reality is rarely that simple and straight forward. While it is entirely possible, and even highly probable that most relationships of that nature were one sided and exploitive/abusive in nature.

There still remains the possibility that the relationship was reciprocal in nature and that she did have a significant degree of choice in the matter outside of the "is his slave" aspect. From my understanding of Jefferson and his views on slavery, I find it far more likely the relationship was far more reciprocal in nature than exploitive.

Now discussions on if the relationship would have existed outside the master/slave context are relevant, but still exist as potential edge-case criteria for "was it rape?" Because if you start passing criteria through that kind of filter for preliminary consideration, a lot of other situations suddenly become "rape by circumstances" even if both parties willingly consented.

And doing THAT to the definition of rape would be a travesty of justice for those who were truly raped in a violent or otherwise far more overtly non-consensual context.

All you achieve by going down that path is furthering the process of defining ANY form of Sexual Congress as being "a form of rape."

doing THAT to the definition of rape would be a travesty of justice for those who were truly raped in a violent or otherwise far more overtly non-consensual context.

All you achieve by going down that path is furthering the process of defining ANY form of Sexual Congress as being "a form of rape."

Going to augment this with an additional post. For me "rape" has a few important criteria to meet:
1) Results in either (medium/long-term) physical or (any duration) psychological trauma, if not both.

("short term physical trauma" is ommited in this case because Sex itself "is Messy" and even the fully consensual stuff can sometimes take days to recover from.)

2) Requires the active (deliberate) exercise of a power differential in order to deprive the other party the ability to choose.

For example, using your authority as the boss/manager/supervisor to induce the subordinate into having sex with you is highly likely to be rape.

However, a subordinate deciding to have sex with you(as their superior authority figure) absent any overt actions on your part is not rape. Exploitive? Probably, but as to who is exploiting whom, that may be another matter.

Going to augment this with an additional post. For me "rape" has a few important criteria to meet:
1) Results in either (medium/long-term) physical or (any duration) psychological trauma, if not both.

("short term physical trauma" is ommited in this case because Sex itself "is Messy" and even the fully consensual stuff can sometimes take days to recover from.)

So the existence of a crime will depend on the resilience of the victim?

That has to be another misguided attempt to make a joke, at least I hope it is.

Hello?

He's saying that if someone takes harm from the act, other than that which occurs no matter how consensual it is, that it's a crime.

Nothing about the resilience of the victim. Other than someone argueing that it would be possible to not consent and not suffer emotional/mental trauma!

By making the caveat concerning short term physical trauma he's recognizing that sometimes, even when consensual, people don't take the steps required to properly lubricate, that if everything works out properly it _will_ be messy afterwards, etc. But since he's saying physical trauma isn't required for it to be a crime, that mental/emotional trauma suffices, non consensual which does little physical trauma still counts!

The criteria he stated demand either severe physical injury and/or psychological trauma and neither is a prerequisite for rape. He added these prerequisites for reasons I don't want to speculate about. Rape is a crime commited against sexual self-determination, physical or psychological injuries are not neccessary. I don't see any reason to restrict the prosecution of rape, especially whith regards to the use of date rape drugs.

The criteria he stated demand either severe physical injury and/or psychological trauma and neither is a prerequisite for rape.

I did? I said any psychological trauma qualified. I disqualified "minor physical trauma" for reasons just covered above. As without that carveout, any sex at all, up to and including self-masturbation in some cases, would qualify as rape.

Unless you think legions of teenage girls raped themselves when they broke their own hymem?

The deciding factor to qualify sexual intercourse as a crime isn't physical injury or any psychological trauma, it's the victims missing consent.

The deciding factor to qualify sexual intercourse as a crime isn't physical injury or any psychological trauma, it's the victims missing consent.

And engaging in sexual relations with someone without freely given consent is non-traumatic for whom exactly? (Doubly so for women!)

One thing is implicit in the other, while the other way is not so clear.

If it was traumatic, the odds of being non-consensual are high(but still not quite 100% a "falsified" outcome can still happen--ie "inept partner")

The push from some corners re: explicit consent, with limitations and legions of footnotes regarding what does or does not qualify, or invalidates their ability to grant it is silly and obtuse.

Yes, "No means no" (unless you're into BDSM games and have safewords in use) and intoxicating people without their knowledge or consent in pursuit of sex is rape.

Arbitrarily declaring that a woman being intoxicated absolves her of any responsibility without regard to circumstances is NOT acceptable. And potentially sexist as well, if women are not to accountable when drunk by their own choice, why are the same people pushing to punish men for things done while drunk?

I'm all for equality, but replacing the Good Ole Boys Club with The Mean Girls Club isn't progress. It is simply the same old shit, just peddled by new management.

'Arbitrarily declaring that a woman being intoxicated' cannot legally give consent is indeed absurd, no matter who claims so.

However, demanding a victim's physical or psychological injury as elements of the crime is not better, it's worse. Currently, for a rape verdict, the prosecution has to prove the victims missing consent. The result of your demand of an injury would be that even in cases where the missing consent can be proven, an injury still would need to be proven as well. If an injury for whatever reason cannot be proven the prosecution would fail. The plea "the victim said 'no' but I didn't hurt her" would become a legal defense, and that is truly unacceptable.

I believe the opposite, but then I've never had to get a woman drunk to have sex ;)

The same principle applies to drunken men, so you hardly have a reason to gloat.

However, demanding a victim's physical or psychological injury as elements of the crime is not better, it's worse. Currently, for a rape verdict, the prosecution has to prove the victims missing consent. The result of your demand of an injury would be that even in cases where the missing consent can be proven, an injury still would need to be proven as well. If an injury for whatever reason cannot be proven the prosecution would fail. The plea "the victim said 'no' but I didn't hurt her" would become a legal defense, and that is truly unacceptable.

I think we're actually arguing tomatoe vs tomato on this. The "legal standard" essentially boils down to consent. Or have you missed my repeated comments about traumatic events regarding lack of consent? Or how ANY psychological trauma qualified for that purpose? (Even with the remaining risk of "falsification") It isn't like I'm supporting a standard of evidence where say, a lack of a visible bruise means no physical contact happened.

The key difference is in the way I view it, it takes the victim declaring "this was rape because I did not give my consent freely at any point(relevant to that timeframe) for that kind of outcome."

Rather than some third party declaring "This was rape because Suzy drank 3 beers at 2200 hours and didn't have sex with the defendant until 2335 that evening." Even though Suzy decided to have sex with the defendant that night well before she drank any beer.

Not that there have been any prosecutions yet with that as the threshold, but there have been "victim advocacy groups" who have used that specific line to decide women are victims of rape for them.

Let the victim determine and establish context before going off on any crusades.

The biggest difference here is I actively make provisions for consent and/or intent (as asserted by the "victim") to exist in scenarios that current rhetoric asserts it cannot exist.

The biggest difference here is I actively make provisions for consent and/or intent (as asserted by the "victim") to exist in scenarios that current rhetoric asserts it cannot exist.

No, you're blurring the lines between rules of evidence and the definition of a crime.

He's saying that if someone takes harm from the act, other than that which occurs no matter how consensual it is, that it's a crime.

Nothing about the resilience of the victim. Other than someone argueing that it would be possible to not consent and not suffer emotional/mental trauma!

By making the caveat concerning short term physical trauma he's recognizing that sometimes, even when consensual, people don't take the steps required to properly lubricate, that if everything works out properly it _will_ be messy afterwards, etc. But since he's saying physical trauma isn't required for it to be a crime, that mental/emotional trauma suffices, non consensual which does little physical trauma still counts!

In terms of physical trauma of a short-term duration, I was thinking on the order of broken hymems, sore, bruised, or chaffed body parts. Ie "walking funny" for sometime after a sexual encounter has happened due to the extent of the activities engaged in.

To a lesser degree, BDSM elements also factor in. Someone into being spanked with a tender bottom a day later isn't necessarily a rape victim for exampke.

So the existence of a crime will depend on the resilience of the victim?

That has to be another misguided attempt to make a joke, at least I hope it is.

Even a "resilient victim" would be traumatized by a traumatic event. They just won't demonstrate symptoms as readily.

The reason the criteria was set forth as such is because there are concerted efforts to define "rape" as being things it clearly was not. I'd events where the purported "victim" is anything but, in a vein not dissimilar to "You cannot rape the willing."

An example of this is many (mostly feminist) groups trying to make it so "simple intoxication" renders a person(almost exclusively female) "incapable of giving consent." Without regard to the circumstances of how, or why they were intoxicated.

Yes, there are plenty of examples of date rape drugs, and frat boys getting girls drunk(without her knowledge of consent) for the purpose of having sex. Those are clearly examples of a rape attempt.

But a married or otherwise committed couple going for a night on the town with "sex on the agenda" who get intoxicated as "part of the foreplay" for the night? By the dictates of some groups, that is now rape because she is drunk/intoxicated before the sex actually starts.

But it was a premeditated outcome on her part prior to "losing her ability to consent." And thus highly unlikely to be "a traumatic event" crossing the threshold into rape in my book.

Unless you, or somebody else, wants to claim there was a rape victim all the same, even if nobody involved thinks there was. Talk about taking "victimless crimes" to the inverse extreme.