Toyah

This is the description of a seminar I am registering to take next fall entitled Constitutional Design. This same professor taught a seminar last fall on the constitutional problem of secession that I would have been very interested to take, had my schedule allowed. Happily he incorporates secession into this class. Though this prof. is fairly liberal, he is very thoughtful and measured in his observations and recommendations. (BTW, I had him for my Con Law I class.)

I am going to think of this class as a mini constitutional convention. Although it is not every day one gets to write a constitution (much less write one anyone will actually pay attention to), Iraq will soon get a new constitution, the EU is fighting over its constitution, and Texas could use a new constitution to replace the awkward reconstruction-era one it has now. Accordingly, this is actually a study in current events.

Course Description:
This seminar will look at various issues that arise when one tries to design a constitution from scratch (rather than interpret one that is already in being). One might begin with the question of who gets to design a constitution in the first place, and with what legitimacy. And how is the handiwork of the constitutional designers turned into a "real" constitution, i.e., accepted as the basic framework? This raises the question of ratification procedures. Of course most of the attention will be focused on classic issues, most of them structural: What should the election system look like, and why? Parliamentary or presidential system? What should the judiciary look like [currently very important!](e.g., life tenure, appointment process, control over docket, etc.)? Under what circumstances is federalism a desirable constitutional system, with what ramifications? (E.g., should the constitution mention the possibility of secession?) Should there be an explicit "Bill of Rights" and, if so, what form should it take? Should a constitution include "positive" welfare rights? Should a constitution countenance its own "suspension" during a time of emergency? We will look at a variety of constitutions from around the world, including the newly drafted Iraqi constitution, as well as political science and law review literature relevant to the issues raised. [emphasis added]

So, if I find that I have squandered my legal education on a buch of pie-in-the-sky theory courses and can't find a real job, at least when selling the product of my fine liberal arts education, I'll always be able to respond: "Do you want a constitution with that?"

A must read. Chernobyl: Ghost Town.

This MTV spot is one of several I've seen on television lately covering UT's Young Conservatives of Texas and their liberal professor watch lists. The report also mentions Protest Warrior and their quest to disrupt liberal anti-war rallies with pro-war rallies of their own.

Life on Mars? Ha!

Here is the Hatch alternative to the currently popular Allard/Musgrave FMA: "Civil marriage shall be defined in each state by the legislature or the citizens thereof. Nothing in this constitution shall be construed to require that marriage or its benefits be extended to any other union than that of a man and a woman."

This language will most certainly be the alternative that most Dems and squeamish Reps will turn to.

While I like the idea of federalism and state sovereignty on issues that pertain to the family, I also believe the Union was conceived in the first place in order to achieve a degree of uniformity on issues where divergence among the fifty states' laws would work more ill than good. Imagine the effect of 50 differing definitions of marriage in our highly mobile society. Those that are married would be discouraged from relocating to other locales for fear their marriage would not receive legal protection, and those couples considering marriage could choose to forgo marriage altogether. Also, the ill effects of further diluting the fundamental unit of society, the family, would certainly not be confined to those states that choose to recognize same-sex marriage; the impact would be nation-wide. If any law is deserving of national uniformity, this is it. (I note that though presently all states do define their own marriages, the overall definition is uniform. What we are facing is a vast incongruence in the definition, the like of which we have not seen since the days of the southern bans on interracial marriage.)

I favor the Allard/Musgrave FMA as a way to achieve uniformity on an issue where I believe uniformity--and especially uniformity in accordance with what is best for society--is necessary. To me, gays don't want recognition of same-sex marriage so they can show their partner how much they love them, or whatever. No, they just want popular approval for their sinful lifestyle. I don't think we should give it to them.

If you still aren't sure why law should only recognize the traditional definition of marriage, see Prof. J. Budziszewski here.

Some days, you just gotta say it.

In the fall of 1835 many Texans, both Anglo-American colonists and Tejanos, concluded that liberalism and republicanism in Mexico, as reflected in its Constitution of 1824, were dead. The dictatorship of President Antonio López de Santa Anna, supported by rich landowners, had seized control of the governments and subverted the constitution. As dissension and discord mounted in Texas, both on the military front and at the seat of the provisional government of the Consultation at San Felipe, the colonists agreed that another popular assembly was needed to chart a course of action. On December 10, 1835, the General Council of the provisional government issued a call for an election on February 1, 1836, to choose forty-four delegates to assemble on March 1 at Washington-on-the-Brazos. These delegates represented the seventeen Texas municipalities and the small settlement at Pecan Point on the Red River. The idea of independence from Mexico was growing.
. . . .
The convention [was] held at Washington-on-the-Brazos on March 1, 1836 . . . . Forty-one delegates were present at the opening session, and fifty-nine individuals attended the convention at some time. Two delegates (José Francisco Ruiz and José Antonio Navarro of Bexar) were native Texans, and one (Lorenzo de Zavala) had been born in Mexico. Only ten of the delegates had been in Texas by 1836. A majority were from other places-primarily from the United States, but also from Europe. Two-thirds of the delegates were not yet forty years old. Several had broad political experience. Samuel P. Carson of Pecan Point and Robert Potter of Nacogdoches had served, respectively, in the North Carolina legislature and in the United States House of Representatives. Richard Ellis, representing the Red River district and president of the convention, and Martin Parmer of San Augustine, had participated in constitutional conventions in Alabama (1819) and Missouri (1821), respectively. Sam Houston, a former United States congressman and governor of Tennessee, was a close friend of United States president Andrew Jackson. Houston was chosen commander in chief of the revolutionary army and left the convention early to take charge of the forces gathering at Gonzales. He had control of all troops in the field-militia, volunteers, and regular army enlistees. The convention delegates knew they must declare independence-or submit to Mexican authority. If they chose independence they had to draft a constitution for a new nation, establish a strong provisional government, and prepare to combat the Mexican armies invading Texas.

On March 1 George C. Childress, who had recently visited President Jackson in Tennessee, presented a resolution calling for independence. At its adoption, the chairman of the convention appointed Childress to head a committee of five to draft a declaration of independence. When the committee met that evening, Childress drew from his pocket a statement he had brought from Tennessee that followed the outline and main features of the United States Declaration of Independence. The next day, March 2, the delegates unanimously adopted Childress's suggestion for independence. Ultimately fifty-eight members signed the document. Thus was born the Republic of Texas.

The convention declared all able-bodied men ages seventeen to fifty liable for military duty and offered land bounties of 320 to 1,280 acres for service from three months to one year. . . . With the declaration of independence, the chairman appointed one person from each municipality to a committee to draft a constitution. . . . The convention adopted the document about midnight on March 16.

The Constitution of the Republic of Texas was patterned after that of the United States and several Southern states. It provided for a unitary, tripartite government consisting of a legislature, an executive, and a judiciary. . . . The constitution also contained a bill of rights. An ad interim government would direct affairs until general elections were possible.

With news that the Alamo had fallen and Mexican armies were marching eastward, the convention hastily adopted the constitution, signed it, and elected an ad interim government . . . . The delegates then quickly abandoned Washington-on-the-Brazos. The government officers, learning that Houston's army had crossed the Colorado River near the site of present La Grange (Fayette County) on March 17 and was retreating eastward, fled to Harrisburg and then to Galveston Island. With news of the Texan victory at San Jacinto, the Burnet government hastened to the battlefield and began negotiations to end the war. On May 14 at Velasco, Texas officials had Santa Anna sign two treaties, one public and one secret. The public treaty ended hostilities and restored private property. Texan and Mexican prisoners were to be released, and Mexican troops would retire beyond the Rio Grande. By the terms of the secret treaty, Texas was to take Santa Anna to Veracruz and release him. In return, he agreed to seek Mexican government approval of the two treaties and to negotiate a permanent treaty that acknowledged Texas independence and recognized its boundary as the Rio Grande.

From Joseph Milton Nance, Republic of Texas, Handbook of Texas Online.