On October 11, 2018 I posted this blog. I reread it because I was going to pass it on, and I hoped errors I found were not posted earlier. I corrected, as much as possible, the errors and am now reposting. There are another 100 or so words.

The Monday headline on the Real Clear Politics site read, Heitkamp Tries to Explain her ‘No” Vote to Kavanaugh to Constituents.

She should get credit and cache for having consistent views with the following and recognizing disqualifying features to Kavanaugh. She’s on the side of James Madison. Kavanaugh is on the side of Mark Judge.

  1. Kavanaugh’s opinions about Executive Immunity have no Constitutional basis, neither in the present nor in the 1787 Philadelphia Convention where nothing like it was ever proposed. It was not brought up in the Reports (Transcripts) of the 1788-1790 State Conventions ratifying the Constitution.  

       NOTE: James Madison repeatedly stated the 1788-1790 State Ratifying Conventions transcripts were the legislative histories of the Constitution and its contents. They have that legal impact. 

      Kavanaugh’s article was written by a practicing, experienced lawyer of many years. He was old enough to know better, and to be informed. He did no research; there was no reflection. Yet the tenor of the arguments are of the quality of a term paper by a sophomore trying to pass a political science class at an Ivy League school. Indeed, Kavanaugh kept his calendars. Likely, Kavanauth kept kept this sophomoric paper to enlarge and publish when he had made the right connections. It wasn’t polished; it is not well written.

II.  The Constitution keeps sovereignty with the American people, not with the government and certainly not with the Court. The American people have rights despite what the Court says only belong to the people. Ask Madison.

      Right to Life; End of Pregnancy. This issue is one of religion. Some religions prohibit the end of pregnancy under all circumstances, and other leave it to the consciousness of the female. No woman wants to become pregnant in order to end a pregnancy. Ending a pregnancy is an extremely personal, riveting and agonizing decision.

      How does ending a pregnancy play out under the United States Constitution on religious grounds? Opponents of ending a pregnancy claim Religious Liberty to advance their cause. Religious Liberty is not at issue; those people have the liberty to say anything and believe what they want. They have the ability to proselytize. I wish them well, provided they use faith as the bases of their arguments, and no other force: They must convince Americans not to end pregnancies. They must act as Jesus Christ might. However, through their actions and inabilities to convince, they lost those arguments culturally, socially and politically in the Sixties. They can still make their arguments and convince today.

      The same social forces that allowed end of pregnancies to become lawful, also tolerated the sorts of actions that belabored the Kavanaugh hearings, after a partial FBI investigation. However, religious liberty does not extend to government action. The Establishment Clause forbids any government action in support of religion or faith. In the only liberty James Madison defined by constructing it (Remonstrance, Virginia, 1785), James Madison divorced government completely from religion.

    It is unconstitutional for the government – legislature, executive, courts – to prefer faith or tenets of a sect – over others. Madison called this Freedom of Conscious. Indeed, the sovereignty of all the American people is diminished if the government and its minions are allowed to interfere and interpose in favor of one sect or tenets of one over others. (See Madison’s Remonstrance.)

     Might rights of an unborn cild be protected somewhere else in the Constitution? Under the Ninth Amendment, The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people., An American woman has a right to privacy, a right to be left alone, a right to chose medical treatment, a right like any other American to live her life as she wants, and other rights. 

     For a thousand years unborn children under English and American law have been identified as expectancies. It explains the Rule Against Perpetuities, enacted to prevent tax avoidance which is part of each state law of the United States.

     Tort and criminal law treat the unborn (fetuses) with casual indifference. The analyses are macabre. There are no wrongful deaths lawsuits for the death of a fetus; a fetus has no rights. Damages are to the mother, physical and emotional.

      Criminal law offers more excuses, depending upon the term of pregnancy, and whether the fetus might survive outside the womb. But if a fetus is a month old, is killed intentionally during a crime, there is no first degree murder for the death of the fetus; there is no second degree murder for the death of a fetus; no manslaughter, and usually no involuntary homicide is never prosecuted.

     If a woman miscarries after a crime or tort – assault and battery, a rape, auto accident, drug use, is the death of the fetus prosecuted as a murder or manslaughter? NO. 

     Is a woman who renders herself incapable of pregnancy committing a crime? NO.

     The answers to these questions are the same in all states. The reasons why these 

considerations are important: Constructing a liberty, a right, a freedom, rights does not appear from magic, or spontaneously,  from divine intervention or outer space. They are formatted analyses through logic, reason intellect experience and learning.  They first attempt to reflect what society is doing or will understand and accept, politically, intellectually, socially and emotionally – by all Americans. They rely on society as we know it – laws, rules, morals, ethics, customs, habits, norms and usage. To degrade a fetus throughout the society but create a special circumstance is contrary to centuries of interpretation and development of the law, of the Constitution, and of societal values. 

     Kavanaugh himself failed to indicate any of the considerations were necessary,  about the right to life, the end of pregnancy, or any other issue where parallel analyses will arise to construct or to interpret rights under the Constitution. He seemed ready by Supreme Court decisions to rule spontaneously, by impulse and by magic. He is another Roger Taney.  

III. Senator Kamela Harris asked Kavanaugh asked seemingly preposterous question. Can President Trump prevent the immigration of a person [not a citizen of the United States] from coming into the country based solely on skin color? This is the sort of street-level facts confronts any state or federal court in the country. The job of a judge or a justice is to phrase the question so it becomes a legal issue and determine whether there is an answer or how the court through is processes can find one. There is no answer because Congress has not provided one.

      Kavanaugh is thick and slow. He is intellectually feeble; he is a dolt and a dunce. The proper response to Harris’ question [because this is what she asked] is, “Are you asking if non-citizens of the United States enjoy all the liberties, rights and privileges under the Constitution that American citizens have?”

      As mentioned Congress has not acted; it is improbable Congress would exercise its broad authority. In his Report of 1800, an ultimate analysis about the Constitution, James Madison mentioned the rights of non-citizens under the United States Constitution. He did not amplify, but he began the discussion well. 

     The Fourteenth Amendment of the Constitution gives Congress authority to set the rules and circumstances regarding immigration and citizenship for the natural born, the naturalized and for persons who are under the subject matter jurisdiction of the United Sates, plus whether residency of any state is also required. 

     It is the job of Congress not the Courts. Congress has not acted. The most important part of the Fourteenth Amendment is Subsection 5: “The Congress shall have power to enforce by appropriate legislation, the provisions of this article.”(emphasis supplied) This provision gives Congress the authority to which the Supreme Court must defer and follow – unless Congress wants to return to the days of Dred Scott(1857). 

     Kavanaugh’s response to Harris indicates a shallow, unimaginative, defensive, narrow mind. He was incapable of recognizing the legal issue, raising Constitutional questions, and explaining or responding. In law school and taking any bar exam in the country, he would flunk.

Points I, II and III are salient, significant Constitutional points which Kavanaugh failed, and failure to identify and explain. Separately or collectively, Kavanaugh’s testimony required from each United States Senator a No vote. He should not have been confirmed. His behavior as a judge, a jurist and a justice, according to his own words, reveal more flaws. 

However, the people of North Dakota or other Kavanaugh-loving states may not care about ignorance, inability and the United States Constitution. They are of the Roman Hruska school of jurisprudence: There are a lot of mediocre people, attorneys and judges in this country. They deserve representation on the Supreme Court.(paraphrased) Who knows? The North Dakotans might next join Canada: Hey! everyone can light up a joint. Wow! Go blow. Have a toke.


  1. I still cannot believe that the American Bar Association gave him even a passing approval – yet alone an endorsement as a high qualified candidate.

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