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XMFSinchiruna (26.51)

Another Section of the United States Constitution Bites the Dust



March 06, 2009 – Comments (16)

Actually, this will be the second time this particular section of the Constitution has been willfully violated. The portion that establishes gold and silver as the only constitutional forms of currency was ignored with the creation of our modern fiat currency system. Darn that pesky Constitution!

There is a process built into our system for ammending the document as needed, but ignoring it simply is not an option. Hillary Clinton's appointment as Secretary of State is a direct violation of the document as well (more on that below).

Here is the portion most recently violated by our beloved legislature:

United States Constitution, Article I; Section 10:

No state shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make anything but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility.

Mortgage ‘Cram-Down’ Bankruptcy Bill Passes U.S. House 234-191 

March 5 (Bloomberg) -- Legislation letting judges reduce the mortgage payments of borrowers in bankruptcy passed the House of Representatives, overcoming opposition from industry groups and Republicans who say the bill may further destabilize lending.

The so-called cram-down bill, approved 234-191, also permanently increases the Federal Deposit Insurance Corp.’s coverage of bank deposits to $250,000. The legislation now goes to the U.S. Senate where Democrats may vote on a companion bill as early as next week, said Jim Manley, a spokesman for Majority Leader Harry Reid of Nevada.

Democratic leaders had pulled the measure from consideration last week amid opposition from industry organizations including the American Bankers Association. Stricter provisions were added at the urging of a group of self-described moderate lawmakers called the New Democrat Coalition, including a requirement that borrowers seek loan modifications from their mortgage companies before they could qualify to amend terms through bankruptcy.

“This bill’s not perfect, but the process has worked better than anyone expected,” Representative Ellen Tauscher, a California Democrat and chairwoman of the New Democrat Coalition, said in a speech on the House floor today. “Over the last couple of weeks we’ve worked together to make improvements to make sure bankruptcy is an option of last resort.”


And on Hillary's appointment:

We’ll be honest: As a third-year in law school, we signed up for that seminar on the Constitution’s Emoluments Clause not because we think it’d ever come in handy, but because it would leave us more time to play video games and watch “Saved by the Bell” reruns. But now, wow, how thankful we are.

Here’s why: a handful of Con Law scholars seem to feel that the Emoluments Clause of Article I, Sec. 6 disqualifies Hillary Clinton from serving as Secretary of State, an appointment that arrived a moment ago. (Click here for part of the discussion, courtesy of the Volokh Conspiracy.) The Emoluments Clause states:

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time . . . 

In other words (and generally speaking), if the emoluments (i.e., pay) for a certain cabinet position increase, all members of the Congress in office during that time of the increase shall be disqualified from later holding that position.

According to Volokh, the Emoluments Clause is in play because the Secretary of State got a cost-of-living adjustment in January of this year, at which time Hillary Clinton was a senator from New York. As John O’Connor, the author of an 1995 Hofstra Law Review article on the Emoluments Clause puts it: “[U]nder a straightforward application of the Emoluments Clause, Senator Clinton is ineligible for appointment as Secretary of State because the emoluments of that office “have been encreased” during Senator Clinton’s current Senate term, and this disability continues until the end of “the time for which [she] was elected, or until January 2013.


Stand up for the sanctity of the Constitution... it remains the best chance we have for keeping the power of our government in check with the will of the people!

16 Comments – Post Your Own

#1) On March 06, 2009 at 10:02 AM, OleDrippy (< 20) wrote:

What exactly is the Supreme Court doing. Am I missing something or are they asleep at the switch? Isn't is their JOB to whack the pee-pee of the legislative and executive branches when they get out of line?

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#2) On March 06, 2009 at 10:13 AM, XMFSinchiruna (26.51) wrote:


Sing this to the tune of "Tradition" from Fiddler:

"Corruptiooooooooooooooooon... CORRUPTION!"


You watched for 8 years as the Supreme Court stood idly by and let GW use the Constitution for bathroom tissue... This court has already established its allegiance to the expanding power base of the legislative and executive branches.

The court has abrogated their principle duty to uphold the Constitution, IMHO, and the bench would need to be cleared and rebuilt before we could expect a different outcome.


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#3) On March 06, 2009 at 10:16 AM, djemonk (< 20) wrote:

I thought Obama reduced the salary of the Secretary of State so that this wasn't unconstitutional.  Doesn't Obama have a degree in Constitutional law from Harvard (plus he's also, you know, President or something).  I'm willing to trust his judgement that putting the best person into the job at a lower pay grade was the right way to go, even if it skirts the constitution.  Not sure why this is still an issue with so many people (other than the perma-Clinton-haters).

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#4) On March 06, 2009 at 10:17 AM, charlesblazer (30.53) wrote:

Article I, Section 10, by its plain language, limits the powers of the States, not the Federal government.

The Constitutional quandry of Hillary Clinton's appointment is remedied by the so-called "Saxbe fix," which rolls back her salary as Secretary of State to its previous level, before she was in Congress.

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#5) On March 06, 2009 at 10:18 AM, djemonk (< 20) wrote:

Isn't is their JOB to whack the pee-pee of the legislative and executive branches when they get out of line?

This is probably the funniest thing I'm going to read on CAPS this whole month.  

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#6) On March 06, 2009 at 10:23 AM, djemonk (< 20) wrote:

This is a good post, by the way.  I think it's important for us to look back at the Constitution to make sure we're following the guidelines that this country was founded upon.  Sometimes things in the Constitution need to be updated and that's part of the process, as well.

Sometimes you look at a situation and say "well, this doesn't seem right" and you look back at the Constitution and it turns out that, in fact, it was not right.  Sometimes you find that it is.

In the case of the mortgages ... well, I'm not really sure.  I'm just an investor and that doesn't make me qualified to know how this idea will develop.  I can't even predict the price of gold during a recession!

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#7) On March 06, 2009 at 10:30 AM, XMFSinchiruna (26.51) wrote:


I wasn't aware he did that, which does add some complexity to the issue. Thanks for pionting it out. I have not agenda... but simply believe that the Constitution has been threatened all too many times in recent years by an expanding power base in Washington.

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#8) On March 06, 2009 at 10:39 AM, StKitt (28.45) wrote:

"Whack the pee-pee" is lifted from a mid-70's Cheech & Chong comedy album. Truly hilarious stuff!

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#9) On March 06, 2009 at 10:43 AM, djemonk (< 20) wrote:

I have not agenda... but simply believe that the Constitution has been threatened all too many times in recent years by an expanding power base in Washington.

That was what I figured.  I just knew that there exists a contingent of people out there who hate anyone with the last name Clinton who didn't have a backup band called the Funkadelics.

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#10) On March 06, 2009 at 10:55 AM, kaskoosek (30.20) wrote:


I think we are seeing the demise of paper currency.

Britain is already a hopless case.

Central Banks are becoming more and more desperate by the minute.




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#11) On March 06, 2009 at 11:09 AM, XMFSinchiruna (26.51) wrote:


Point well taken about the word States... I guess it shows that I'm no constitutional lawyer. :)  But I remain a firm defender of the sanctity of the Constitution and the established process for ammending it. I continue to be concerned about a general tendancy toward treating the document as a quaint vestige of a forgotten past... and I think that tendancy risks the very survival of our republic... as per the explicit warnings of our founding fathers.

Also, while I am not avocating a position either way on the mortgage bill I referenced above, it just seems to me from a layman's point of view that contracts must retain some measure of permanency as well if we are to ensure the proper functioning of commerce. After all, look what a couple of reneged contracts did to the shipping industry last month!


I think we are seeing the demise of something, but whether paper currency as a phenomenon will be replaced by a reversion to some kind of physical standard I can not predict. I don't think we'll ever see a gold standard again, in part because the peg would have to be in the many thousands to account for al the dollars out there and the balance sheet of the U.S.

I think what we can say with confidence is that the Euro and Pound are in deep trouble, but the USD is in for a decline of epic proportions. It might even be a gradual decline, but it will be unrelenting in scope.

My gut tells me we have just seen the top of the USDX perhaps even just this week. I would not be at all surprised if that is the last time the USDX sees 89 for the next 20 years.

Fool on!

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#12) On March 06, 2009 at 11:31 AM, kaskoosek (30.20) wrote:


It is very hard to predict the movement of currencies with respect to each other. Each is crappier than the other.

Regarding the dollar. In my oppinion, it should go to the crapper first.

We have one of the least fiscally responsible government in the history of mankind.

The trade balance problem should be dealt with urgently.

I closed my gold short picks yesterday. I left my longs on the platinum miners. Platinum is still extremely undervalued. Report this comment
#13) On March 06, 2009 at 11:37 AM, 4everlost (28.83) wrote:

Keep up the great posts!

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#14) On March 06, 2009 at 11:52 AM, charlesblazer (30.53) wrote:

I absolutely agree that the Constitution must be rigorously defended and upheld, and that every branch of government - legislative, executive, and judicial - has at some point trampled on the document, sometimes out of urgency, sometimes convenience, and sometimes pure politics.  All such transgressions are inexcusable, though "politics" is worse than "urgency," in my opinion.  The document contains a fully functional method of amendment, which was most recently exercised in 1992.  1992 is the modern era, so I vehemently disagree with any argument that amendment is impractical today.

So I think we agree on that.  It just so happens that the particular two issues you highlighted do not, in my opinion, raise any real Constitutional questions. 

Moreover, Congress' Constitutionally-conferred power to intervene in commerce, in modern times, is almost unlimited -- for better or for worse.  If you disagree with the scope of Congress' power under the Commerce Clause, then, again, amendment is (in my opinion) the proper course.  However, in my opinion, the Constitution contains a better remedy: election.  Because really it sounds like your disagreement is not with the scope of Congress' power, but rather with how Congress has chosen to use that power.  If we disagree with the propriety of legislative action, we should rally the vote and vote them out.

So if the Mortgage Cram-Down Bankruptcy Bill is truly stupid, we should seek correction and retribution through the polls, not the courts.

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#15) On March 06, 2009 at 11:59 AM, jstegma (28.55) wrote:

Good post and discussion comments.  I agree that we don't have a violation of the constitution with the cram-down law or the Hillary appointment (bacause of the fix), but it's definitely taking a look when things like this come up.

See my blog

DC rep blatantly ignores the constitution

for an example where congress is attempting to violate the first clause of section 2 of article 1.

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#16) On March 11, 2009 at 3:46 PM, XMFSinchiruna (26.51) wrote:

Unbelievable! U.S. Army soldiers from Ft. Rucker have been documented by Reuters as having been deployed to Samson, Alabama after yesterday's shooting spree there.

This is in direct contravention of the Posse Comitatus Act of 1878, which was intended to prohibit just such an action from ever taking place again!

The Posse Comitatus Act is a United States federal law (18 U.S.C. § 1385) passed on June 16, 1878 after the end of Reconstruction, with the intention (in concert with the Insurrection Act of 1807) of substantially limiting the powers of the federal government to use the military for law enforcement. The Act prohibits most members of the federal uniformed services (today the Army, Air Force, and State National Guard forces when such are called into federal service) from exercising nominally state law enforcement, police, or peace officer powers that maintain "law and order" on non-federal property (states and their counties and municipal divisions) within the United States.

The statute generally prohibits federal military personnel and units of the National Guard under federal authority from acting in a law enforcement capacity within the United States, except where expressly authorized by the Constitution or Congress. The Coast Guard is exempt from the Act.

This is the latest in a series of troubling developments along these lines:

Homeland security

On October 1, 2008, the US Army announced that the 3rd Infantry Division’s 1st Brigade Combat Team (BCT) will be under the day-to-day control of U.S. Army North, the Army service component of Northern Command (NORTHCOM), as an on-call federal response force for natural or man-made emergencies and disasters, including terrorist attacks.

This marks the first time an active U.S. Army unit will be given a dedicated assignment to NORTHCOM, where it is stated they may be "called upon to help with civil unrest and crowd control or to deal with potentially horrific scenarios such as massive poisoning and chaos in response to a chemical, biological, radiological, nuclear or high-yield explosive (CBRNE) attack." These soldiers will also learn how to use non-lethal weapons designed to "subdue unruly or dangerous individuals" without killing them, and also includes equipment to stand up a hasty road block; spike strips for slowing, stopping or controlling traffic; shields and batons; and beanbag bullets.[5] However, the "non-lethal crowd control package [...] is intended for use on deployments to the war zone, not in the U.S. [...]".[5]

The US military will have around 20,000 uniformed personnel in this role in the United States by 2011, specifically trained and equipped to assist state and local government, respond to major disasters, terrorist attack, other major public emergencies.[6] This shift in strategy is a result of recommendations by Congress and outside experts.[6] This response capability is not new, but now accompanies a permanent assignment of forces to NORTHCOM.

This formalizes a role for the use of federal troops within the United States during major public emergencies and disasters, as was the case in the aftermath of Hurricane Katrina in 2005.[5] This has raised concern about the relationship between Posse Comitatus and the use of the military in domestic disaster support and homeland defense roles.[7]. However, federal military forces have a long history of domestic roles.[8] The Posse Comitatus Act prohibits the use of federal military forces to "execute the laws"; however, there is disagreement over whether this language may apply to troops used in an advisory, support, disaster response, or other homeland defense role, as opposed to conventional law enforcement.[1]

On December 10, 2008, the California Highway Patrol announced its officers, along with San Bernadino Sheriff's Department deputies and US Marine Corps Military Police, would jointly staff some sobriety and drivers license checkpoints.[9] However, the Marines at the checkpoints are not arresting individuals or enforcing any laws, which would be a violation of the Posse Comitatus Act.[10] A spokesperson said that the Marines were present to observe the checkpoint to learn how to conduct checkpoints on base, to help combat the problem of Marines driving under the influence. The Marines at a recent checkpoint learned techniques to conduct sobriety checkpoints and field sobriety tests.[10]




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