Category Archives: Constitution
The Congress shall have Power To …regulate Commerce…with the Indian Tribes…
ARTICLE I, SECTION 8, CLAUSE 3
That’s how it always begins. Very small.
A man living in Oklahoma has a girlfriend who has an ex-boyfriend who gets into it with the man. In a gruesome crime, the ex-boyfriend is murdered, his genitals left on his chest on the side of the road. Not being a criminal mastermind, the man, Murphy, is caught. As there is little doubt and much evidence that he did it, he is tried and convicted of capital murder. The sentenced is death.
Not so fast…
The crime was committed by a member of the Creek Nation. The victim was also a Creek. And it appears that the crime was committed on Creek land. That being the case, the state of Oklahoma would have no jurisdiction, it would be a Federal case, requiring a Federal 9not State) prosecution. Because of the laws and agreements with the Tribes, such a crime cannot have a death penalty unless the tribe agrees to it, which they almost never do.
Not so fast… was it on Creek land? The Treaty of 1831 says that it is, but subsequent treaties (1966) make it less than clear. Did Congress intend to take the land where the crime occurred away? Did they actually do it? Did somebody make a big mistake and forget a sentence in a document more than a century ago?
And if it is Creek Land, what does that mean to the State of Oklahoma? What if the State of Oklahoma, as we’ve known and loved it since 1907, isn’t the state of Oklahoma? what if it’s only half the size it is today?
Absurd, you say? That’s not what the 10th Circuit Court says. And depending on how the Supreme Court rules, it might not be so crazy. By next June there might be a new old Territory and fifty percent less of the State of Oklahoma.
It’s Constitution Thursday on The Dave Bowman Show…
The one thing that you can say about the federalists is that they were optimistic. They truly hoped that; truly believed that Americans would see it for what it was and grasp their liberties firmly and protect them for generations yet to come.
The Anti-Federalists weren’t quite so rosy in their outlook. While some were firebrands and dedicated to the idea of State Sovereignty and Confederation, more of them were pragmatic and understood that things had to be changed. But was the proposed Constitution the best way to make that change?
Perhaps the most lucid and well spoken of the Anti-federalist was an anonymous writer who went by the pen name “The Federal Farmer.” His writings, which began this week in 1787, were a measured consideration of the proposed government. In fact, of the three possible forms of government that he saw for the nation, the proposed Constitution probably made the most sense.
But that didn’t mean that there weren’t some potential problems that, whoever he was, could foresee…
After recent school shootings, the proposal was made to raise the age for purchasing guns to twenty-one. In at least two cases, challenges were filed and in at least one of those, the challenge was upheld as the practice was seen as being in violation of equal protection and various State laws.
So now we move to the state of Louisiana. The Legislature there, deeply concerned about the well-being of young and vulnerable women who dance with exposed breasts and/or buttocks for money from patrons who must remain at least three feet away, must be twenty-one years of age in order to do so.
Naturally, the dancers who performed with exposed breasts and/or buttocks and who were under 21 sued in Federal Court. They are claiming that the law would violate their constitutional right to dance with breasts and/or buttocks exposed for money from patrons who must be at least three feet away.
Now look, there are a whole lot of issues here that we could get into, and perhaps we will tomorrow. But for now, the question is simply this: does a law restricting the right to dance with breasts and/or buttocks exposed to twenty-one and older meet muster Constitutionally? It’s not quite as clear-cut as you might think, and it’s what we talk about today on Constitution Thursday…