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The Washington Post had an article on the resolution of Rep. Jesse Jackson (D-IL) condemning the alleged ethnic slur on a rock that was on land leased by Governor of Texas Rick Perry and his father.  This resolution has this language in it (I quote the Post):

The measure then resolves that the House “calls on Governor Rick Perry to apologize for not immediately doing away with the rock,” to “condemn the use of this word as being totally offensive and inappropriate at anytime and anyplace in United States history” and to “list the names of all lawmakers, friends, and financial supporters he took with him on his hunting trips at [Jackson’s resolution actually uses the alleged name of the ranch – !  I won’t.]”

It is peculiarly ironic that Rep. Jackson’s resolution to be adopted in the House of Representatives uses the very word the resolution states is “…totally offensive and inappropriate at anytime and anyplace in United States history…”   I guess OFFICIAL resolutions of the United States House of Representatives do not constitute part of the history of the United States!  (I do agree with the resolution that the word is totally offensive and inappropriate at anytime and anyplace.)

But the resolution makes a judgment that Governor Perry ought to apologize for the incident (which means factual findings are to be made by Congress) and that he is to produce for Congress the “…names of all lawmakers, friends, and financial supporters he [Perry] took with him on his hunting trips at [offensive word place mentioned by Rep. Jesse Jackson Jr in his resolution but not here on this blog!]…”

This resolution, like many in Congress, is actually unconstitutional.  It requires a finding of fact, condemns/judges a situation, and even asks a sitting governor to disclose information to it on a matter pertinent to the resolution.  That is in effect a subpoena.

For Congress to judge a situation like this and condemn a person is a bill of attainder; the original Constitution forbids it:

“No Bill of Attainder or ex post facto Law shall be passed.”  Article I, Section 9, paragraph 3

A bill of attainder is an ancient practice of the British Parliament where it could try a person for alleged crimes or offenses and then mete out punishment.  The Founders made it clear:  No such procedure here in the United States!

Hence, the only way Congress can act is to try the case of Governor Perry’s intent and motive:  Is he a racist?  How about his supporters who he brought to the hunting ranch?  Are they racists, too?  That is a trial and a punishment.  The punishment is that Governor Perry must apologize to it for his alleged actions and promise to repent of future similar actions.  Governor Perry also must produce names for Congress.  That may not be jail or execution but it is a punishment.  This resolution is a judgment and condemnation not authorized by the Constitution.  This and similar resolutions ought to be voted down without discussion of any merits it might have.


About Elwood Sanders

Elwood "Sandy" Sanders is a Hanover attorney who is an Appellate Procedure Consultant for Lantagne Legal Printing and has written ten scholarly legal articles. Sandy was also Virginia's first Appellate Defender and also helped bring curling in VA! (None of these titles imply any endorsement of Sanders’ views)

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Tom White Says:

Nothing is more conservative than a republican wanting to get their majority back. And nothing is more liberal than a republican WITH a majority.

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