Constitutional Corner – The Right of Self Preservation

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In 1775, Alexander Hamilton wrote:

“The sacred rights of mankind are not to be rummaged for, among old parchments, or musty records. They are written, as with a sun beam, in the whole volume of human nature, by the hand of the divinity itself; and can never be erased or obscured by mortal power.”[1]

We should not seek out our rights in “musty old” Constitutions, we should look for them in the world around us; as an expression of natural law they are “written on our hearts.”[2] But what is their source, who wrote them there?

John Dickinson represented Pennsylvania in the Second Continental Congress in 1776, although he refused to sign the Declaration of Independence. Eleven years later he represented Delaware at the Constitutional Convention (where he did sign the document). He answers the question:

“Kings or parliaments could not give the rights essential to happiness… We claim them from a higher source – from the King of kings, and Lord of all the earth.  They are not annexed to us by parchments and seals. They are created in us by the decrees of Providence, which establish the laws of our nature. They are born with us; exist with us; and cannot be taken from us by any human power without taking our lives. In short they are founded on the immutable maxims of reason and justice.”[3]

Who would deny that each human being has a natural right to preserve their own life? Self-preservation is an almost universal, natural response of living organisms. Upon recognizing a threat to its life, nearly any aware creature will move away from the perceived threat or, if movement is impossible, do whatever is possible to neutralize or minimize the threat to its life. It seems as if this response is hardwired into us. Might this be because it is both a natural response and a natural right?

All the great natural rights philosophers recognized a right of self-preservation. Thomas Hobbes put the right of self-preservation at the top of his catalog of laws of nature that constitute the “true moral philosophy.”[4] He wrote in “Leviathan:”

“The Right Of Nature , which Writers commonly call Jus Naturale , is the Liberty each man hath, to use his own power, as he will himself, for the preservation of his own Nature; that is to say, of his own Life; and consequently, of doing any thing, which in his own Judgement, and Reason, he shall conceive to be the aptest means thereunto.” (Emphasis added)

John Locke took it a step further; not only could we defend ourselves, we could wreak havoc on whomsoever or whatever threatens us:

“Self-preservation [is] a duty to God…I should have a right to destroy that which threatens me with destruction: for, by the fundamental law of nature, man being to be preserved as much as possible, when all cannot be preserved, the safety of the innocent is to be preferred: and one may destroy a man who makes war upon him, or has discovered an enmity to his being, for the same reason that he may kill a wolf or a lion.[5]

Notice that to Locke (and others, as we’ll soon see) we have a duty to preserve ourselves; but the duty is owed not to ourselves but to our Creator. Do we have a similar duty to protect the lives of others?

“Every one, as he is bound to preserve himself… so by the like reason, when his own preservation comes not in competition, ought he, as much as he can, to preserve the rest of mankind, and may not, unless it be to do justice on an offender, take away, or impair the life, or what tends to the preservation of the life, the liberty, health, limb, or goods of another.”

Jean-Jacques Burlamaqui, the great French philosopher, wrote:[6]

“God is therefore willing, that everyone should labor for his own preservation and perfection, in order to acquire all the happiness, of which he is capable according to his nature and state…”

“For, man being directly and primarily charged with the care of his own preservation and happiness, it follows therefore that, in a case of entire inequality, the care of ourselves ought to prevail over that of others…”

“If a particular manner of acting appears to me evidently fitter than any other for my preservation and perfection, fitter to procure my bodily health and the welfare of my soul; this motive alone obliges me to act in conformity to it.” (Emphasis added)

The Founders took a similar view:

“Among the natural rights of the Colonists are these: First, a right to life; Secondly, to liberty; Thirdly, to property; together with the right to support and defend them in the best manner they can. These are evident branches of, rather than deductions from, the duty of self-preservation, commonly called the first law of nature.[7]

“In the human body the head only sustains and governs all the members, directing them, with admirable harmony, to the same object, which is self-preservation and happiness;[8]

Self-preservation is the first principle of our nature. When our lives and properties are at stake, it would be foolish and unnatural to refrain from such measures as might preserve them because they would be detrimental to others.[9]

The right of self defense is the first law of nature.”[10] (Emphasis added in all)

Since natural law and revealed law (the Bible) have the same source, we should find them in harmony. But the Bible takes a more nuanced view, especially when we encounter the New Testament.  But first the Old:

“Thou shalt not murder” makes it clear that we can have an expectation that no one should threaten our life. But does this give us the right to actively defend our life?

In Psalm 82:4, we find an obligation to protect all who are in danger:

“Rescue the weak and needy; Deliver them out of the hand of the wicked.”

In Ezekiel 33 we encounter an obligation to warn others of approaching danger, and if we do not, any harm that comes to them will be our responsibility:

“…’But if the watchman sees the sword coming and does not blow the trumpet, and the people are not warned, and a sword comes and takes a person from them, he is taken away in his iniquity; but his blood I will require from the watchman’s hand.”

Numerous verses[11] demonstrate that murdering another person results in the forfeiture of the life of the murderer. Does it not follow that to prevent someone from forfeiting their life we should do what we can to prevent or neutralize their attack on our person?

For what are we preserving by doing so? Yes, our life; but to whom do we own our life? Are we not God’s “property?” Is it not God’s property we are ultimately protecting?

Or know ye not that your body is a temple of the Holy Spirit which is in you, which ye have from God? and ye are not your own; for ye were bought with a price: glorify God therefore in your body.[12]

Returning to “Thou shalt not murder;” can we justify taking the life of an attacker in defending our self? Jesus’ command to “turn the other cheek” certainly presents us with a challenge. Must we “turn the other cheek” when our life, and something more than a slap on the face, is in the bargain? In John 15:13, we are shown it is an act of love to lay down our own life for a friend. Sacrificing one’s self when others are imperiled, subordinating our right of self-preservation to the preservation of someone else, is the ultimate act of love. We honor those who choose this path; but it remains a choice.

Yet, Jesus confirms there is still a time and place for weapons of defense: “he who has no sword, let him sell his garment and buy one.”[13] When Peter imprudently cuts off the ear of the high priest’s servant while trying to protect Jesus, Peter is told to put his sword back in its sheath, not discard it.[14]

So if the Right of Self-Preservation was universally recognized by moral philosophers and the Founders, subordinating that right counted as the ultimate sacrifice, why was this right not enumerated in the Constitution?

Perhaps one reason has to do with the limits of language.  Madison noted that:

“[T]here is great reason to fear that a positive declaration of some of the most essential rights could not be obtained in the requisite latitude. I am sure that the rights of conscience in particular, if submitted to public definition would be narrowed much more than they are likely ever to be by an assumed power.”[15]

Translation: if you do not describe the right you are trying to secure with “the requisite latitude,” that is, precisely enough, there is danger that it will not be secured correctly or adequately. And if the public is allowed to define the right, they will likely do so in an even narrower sense than the government might.

Considering Madison’s example: how would you describe the Right of Conscience? To what beliefs would it extend – anything and everything, or only religiously-focused beliefs? If you believe it is morally wrong to kill animals should you be able to enunciate and act upon that belief? Of course, but not to the point that your actions infringe on the right of others to eat meat if they choose (PETA take note).

How would you describe the Right of Self-Preservation in a short sentence or paragraph so that it would be appropriately protected by your government? The “Stand Your Ground Laws” found in several states are a step in that direction, but do they cover all circumstances where self-preservation comes into play? Certainly not. Does a terminally ill patient have a right to take experimental drugs or therapies not yet approved by the FDA if doing so offers a chance of preserving their life? So called “Right to Take” legislation is attempting to secure precisely that right.[16] Would you have included that in your description of the Right of Self-Preservation?  I would probably have overlooked it.

While Madison chose not to enumerate a Right to Self-Preservation, most likely because the right went without saying, he did provide for it. In arguing for the Bill of Rights on the floor of Congress, Madison said:

“It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration, and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the general government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that may be guarded against. I have attempted it, as gentlemen may see by turning to (what would later become the Ninth Amendment).”

“The Ninth Amendment is the repository for natural rights,” writes Leonard W. Levy in Origins of the Bill of Rights.[17] But, Levy cautions: “no evidence exists to prove that the Framers intended the Ninth Amendment to protect any particular natural rights…we can only guess what the Framers had in mind.

The problem with the Ninth Amendment is that the rights it is to protect must be “teased out of it.” And who should do the “teasing:” five lawyers in black robes, or the rightful owners of the Constitution, i.e., the people? Clearly the people are the ultimate authority over what the Constitution says and means; in my view they are the only rightful agency with the authority to identify new rights which are to be protected by the Ninth Amendment. “To say that the Framers did not intend the Court to act as a constitutional convention or to shape public policies by interpreting the Constitution is…to assert historical truth.”[18]

As Levy points out, until 1965, the Ninth Amendment was considered an indecipherable mystery by the court, akin to an “ink blot.” In 1965, the five lawyers “teased out” a right to privacy over the use of contraceptives;[19] eight years later they extended this newly discovered privacy right to the killing of babies in the womb.  In the 2015 case of Obergefell v. Hodges, while the Court claimed to discover a right to homosexual “marriage” in the Fourteenth Amendment’s Due Process Clause, they could just as easily have discovered this “right” in the Ninth. “Within fifteen years [after Griswold] the Ninth Amendment…was invoked in more than twelve hundred state and federal cases in the most astonishing variety of matters.”[20]

Let us presume then that a Right of Self-Preservation is a natural right deserving of protection by the government; by what means is this right to be acted upon? Is it logical that a right to preserve one’s life when confronted by some armed with a weapon should involve the use of a weapon at least equal in lethality? I think so.

Locke reminds us that: “The state of nature has a law of nature to govern it, which obliges every one: and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions.”[21] (Emphasis added)

No one ought to wish to harm us, but some do. Some people have no compulsion against killing their fellow man and even inflicting great pain in the act. Paraphrasing Jesus: like the poor, given the fallen nature of man, we will always have such people with us.

As I noted earlier, Locke states: “I should have a right to destroy that which threatens me with destruction: for, by the fundamental law of nature, man being to be preserved as much as possible, when all cannot be preserved, the safety of the innocent is to be preferred: and one may destroy a man who makes war upon him, or has discovered an enmity to his being, for the same reason that he may kill a wolf or a lion.

Defending yourself against someone who threatens to take your life with a gun logically requires a gun of your own. And the Founders would agree:

“The right of the citizens to bear arms in the defense of themselves shall not be questioned.” James Wilson

”Arms in the hands of individual citizens may be used at individual discretion for the defence of the country, the over-throw of tyranny, or in private self-defense.” John Adams

“…[T]he people have a right to bear arms for the defense of themselves and their own State, or the United States… and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals.” Pennsylvania Ratifying Convention

In Thomas Jefferson’s Commonplace Book we find him quoting Cesare Beccaria’s book, On Crimes and Punishment.[22] Jefferson found this quote of Beccaria worth remembering: “Laws that forbid the carrying of arms … disarm only those who are neither inclined nor determined to commit crimes… Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.”

In 1859, a court, albeit a state court, finally proclaimed forthrightly what everyone, certainly everyone of the time, knew to be true: “The right of a citizen to bear arms, in lawful defense of himself or the State, is absolute. He does not derive it from the State government. It is one of the “high powers” delegated directly to the citizen, and is excepted out of the general powers of government.’ A law cannot be passed to infringe upon or impair it, because it is above the law, and independent of the lawmaking power.”[23]

Turning to the Second Amendment, much has been made of its prefatory clause which can be read to imply that keeping and bearing arms is only permitted for militia duty. This is clearly an important reason for having arms, but I hope you see by now that it is not the only reason.

As Robert Natelson explains in The Founders and the 2nd Amendment:[24]

“History makes it clear that the Second Amendment is designed to serve four principal purposes.

First, it guarantees the states militia power of their own to balance the military power of the federal government;

Second, it promotes the God-given right of personal self defense;

Third, it enables the citizenry to repel foreign invasion; and

Fourth, it enables the citizenry to overthrow domestic tyrants and intimidate or discipline those who otherwise would be tyrants.”

Each of these purposes deserves more elaboration, but space this day does not permit it.

Let us be clear: the second Amendment grants no rights, it only protects a preexisting right from government infringement (and the infringement that has been allowed thus far is also a story for another time). The Supreme Court’s decision in Heller v. District of Columbia,[25] although decried by Progressives, demonstrated conclusively that a right of individual self-defense/preservation is appropriately exercised by keeping and bearing arms.

There are those who will insist, however, that an individual gives up his natural right of self-preservation when entering into a social contract; i.e., the government assumes responsibility for our protection. This brings to mind the meme: “when seconds count, the police are only minutes away.” It should also come as no surprise that police have no responsibility to protect individual citizens from harm.[26] So then there’s that.

To conclude: the Right of Self-Preservation is a natural right with a long pedigree. The ability to use appropriate weapons, including guns, when exercising that right should be as protected as the right itself. The right to keep and bear arms does not hinge exclusively or even predominately on duty in a militia.

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[1] Alexander Hamilton, The Farmer Refuted, 1775.

[2] Romans 2:15.

[3] John Dickinson, An Address to the Committee of Correspondence in Barbados, 1766.

[4] Leviathan, xv, ¶40.

[5] Second Treatise on Government, Section 16.

[6] Jean-Jacques Burlamaqui, The Principles of Natural And Politic Law, 1748.

[7] Samuel Adams, The Rights of the Colonists, The Report of the Committee of Correspondence to the Boston Town Meeting. November 20, 1772.

[8] John Dickinson, A Speech Against Independence, 1776.

[9] Alexander Hamilton, A Full Vindication, December15, 1774.

[10] Henry St. George Tucker (in Blackstone’s Commentaries).

[11] Exodus 21:14, Deuteronomy 19:11, Numbers 35:16.

[12] 1Corinthians 6:19-20, American Standard Version.

[13] Luke 22:36.

[14] John 18:11.

[15] Annals of Congress, 8 June 1789.

[16] https://www.usnews.com/news/articles/2014/11/18/right-to-try-laws-allowing-patients-to-try-experimental-drugs-bypass-fda.

[17] Leonard Levy, Origins of the Bill of Rights, Yale University Press, 1999, p. 254.

[18] Ibid, p. 243.

[19] Griswold v. Connecticut, 381 U.S. 479 (1965),

[20] Levy, p. 242.

[21] John Locke, Second Treatise on Government, Chapter 1, Section 6.

[22] http://www.constitution.org/cb/crim_pun.htm.

[23] Cockrum v. State, 24 Tex. 394, at 401-402.

[24] http://tenthamendmentcenter.com/2013/04/01/the-founders-and-the-2nd-amendment/.

[25] District of Columbia v. Heller, 554 U.S. 570 (2008).

[26] Castle Rock v. Gonzales, 545 U.S. 748 (2005).

Constitutional Corner – The Right of Protest

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Wikipedia[1] says “[t]he right to protest is a perceived human right arising out of a number of recognized human rights. While no human rights instrument or national constitution grants the absolute right to protest, such a right to protest may be a manifestation of the right to freedom of assembly, the right to freedom of association, and the right to freedom of speech.”

I could stop right there, because that is a nice succinct way of answering the question of whether there is indeed a right of protest, but that just wouldn’t be fun, so let’s proceed:

Wikipedia’s answer is fine as far as it goes, but it fails to address the distinction between natural versus civil rights a distinction Americans of the founding period easily explain. We are endowed natural, unalienable rights by our Creator, we are granted civil, alienable rights by our government.

Could a right of protest be a natural right? In its most generic sense, certainly. In a state of nature you can certainly protest anything you want: the taste of food, the weather, anything is fair game. But in a political sense, a right of protest makes no sense at all.

The Oregon ACLU[2] appears to harbor no doubt, however, stating on their website: “You have a constitutionally protected right to engage in peaceful protest in “traditional public forums” such as streets, sidewalks or parks.” Really?  Constitutionally-protected?

As Wikipedia rightly points out, but which the Oregon ACLU  apparently doesn’t realize, no national constitution, including our own, establishes such a right.

A Right of Protest might have been contemplated in the Ninth Amendment; protests were certainly a well-known feature to colonial Americans. The colonists took to the streets in droves to protest the Sugar Act of 1764, the Stamp Act of 1765, the Townshend Acts of 1767, the Tea Act of 1773 and, finally, the Intolerable Acts of 1775.

Some protests turned violent, particularly in Boston, but certainly not all of them; some protests were purely economic in nature – boycotts of British-made goods. James Madison recounted in a letter to his father how he and fellow college students participated in a subdued protest of New York merchants who chose to not take part in a boycott of British liquor urged by their brethren in beleaguered Boston.

An 1861 anti-war protest in Baltimore, Maryland resulted in both citizen and military deaths when protesters tried to block the movement of southbound Massachusetts troops going from one train station to another. It was actually the first blood spilled in the war.

From July 13–16, 1863, protests in New York City over the Union Army draft quickly turned violent, leading to 120 deaths and at least 2,000 people injured. After the Battle of Gettysburg, President Abraham Lincoln had to send several regiments of militia and volunteer troops to control the city. Protests of the National Conscription Act took place in other cities and states across the North.

The “Bonus Army” protest of 1932 resulted in 2 dead; 1,086 injured.[3]

And then how can we forget the many protests of the Vietnam War and some attendant acts of terrorism by the Students for a Democratic Society and the Weather Underground.

Some today have likened our current anti-Trump protests to the Boston Tea Party, as though there was some sort of moral equivalence. Balderdash! The Boston Tea Party was a calm and orderly affair, focused exclusively on the tea (a broken ship’s lock was immediately replaced and, eventually the more than a million dollars of tea was paid for). I can see the disclaimer now: “No ships were damaged nor crews assaulted in the taking of this tea.”

Contrast this with the violent protests on January 20th in which businesses, including an immigrant-owned limousine were torched. If there is good news here, it is that the more than 200 protesters who were arrested that day face 10 years imprisonment and up to a 250,000 fine.

Going back to the Wikipedia description, “such a right to protest may be a manifestation of the right to freedom of assembly, the right to freedom of association, and the right to freedom of speech.” “May be?” So if we combine these three natural rights somehow a right of protest springs out of them? It reminds me of the right of privacy assembled by the high court in Griswold v. Connecticut from “bits and pieces” of inferences of privacy found in the 4th and 5th Amendments, and others.

But as I repeatedly say to groups: I have no problem with creating a right to privacy or any right at all, and securing it in the Constitution; but who rightfully has the authority to create and define those rights: five unelected lawyers, or the 300 million owners of the Constitution – i.e., the American people? Because the process of amending the Constitution to create such a right requires a bit of work on our part, we seem to be more inclined to let lawyers in black robes do our work for us. Need a right to privacy? No problem. Need a right to kill your unborn child? No problem. Need a right for two homosexuals to “marry?” No problem. Give the job to the courts, they can do anything.

Our current Court, which seems to show no reticence to creating new rights, is not willing to give citizens the right to protest or even exercise their free speech right on the court’s very own steps.[4] But that’s not a obstacle to a determined protester. Protesters upset with the Citizens United decision have now taken their obnoxiousness inside the Supreme Court’s chamber,[5] even to the point of interrupting the Chief Justice.

The Supreme Court itself has never claimed there was a right to protest, per se; they have instead viewed protest-related cases as free-speech issues:

In 1969, (Tinker v. Des Moines) high school student protesters were told they could wear black armbands as a free speech right.

In the 1989 case of Texas v. Johnson, the court decided that burning the U.S. flag in protest of the government’s actions was to be considered a free speech issue. Flag burning joined the ever-increasing list of “symbolic speech” that was to be protected.

In 2011, the Westboro Baptist Church won the right to protest military funerals after claiming free speech.[6]

In 2014, in McCullen v. Coakley,[7] the Court unanimously held that Massachusetts’ 35-feet buffer zones to keep abortion protesters from interfering with women seeking abortions violated the First Amendment because it limited free speech too broadly.

So, I’m going to go out on a limb here and say that there is no such thing as a political right to protest. You have a right to petition the government for a redress of grievances, you even have a right to assemble for that purpose as well as to freely speak your grievances. But when your use of any of those rights infringes on my right to freely travel in my car, or damages my property, or disturbs my peace, we have a problem, and I’m going to demand that the law be enforced against you.

The criminals who defaced a putting green on a Trump golf course[8] last week need to be rounded up, fined and imprisoned.

The holligans who are preventing businessman Peter Thiel from enjoying his home[9] and neighborhood should be disbursed and arrested if they return.

Protesters who disrupt a Congressman’s Town Hall meeting[10] should be arrested for incitement. Let them convince a judge their actions were otherwise.

Any protests which turn into riots and property destruction where it can be proved that George Soros or anyone else funded the event should result in the arrest of those financiers for inciting riot.

The training sessions conducted by the ACLU[11] should be monitored for the same purpose and if any instructions can be interpreted as inciteful, the director of the ACLU should be similarly arrested.

Quoting from the federal government’s website on the subject of riot, we find:

Government officials cannot simply prohibit a public assembly in their own discretion,[4] but the government can impose restrictions on the time, place, and manner of peaceful assembly, provided that constitutional safeguards are met.[5] Time, place, and manner restrictions are permissible so long as they “are justified without reference to the content of the regulated speech, … are narrowly tailored to serve a significant governmental interest, and … leave open ample alternative channels for communication of the information.”

The First Amendment does not provide the right to conduct an assembly at which there is a clear and present danger of riot, disorder, or interference with traffic on public streets, or other immediate threat to public safety or order.[13] Statutes that prohibit people from assembling and using force or violence to accomplish unlawful purposes are permissible under the First Amendment.[14]

So there it is: you may peacefully petition the government for a redress of your grievances, you may even do so in a group; and you may speak your mind in any public place (except the Supreme Court’s steps). But please don’t insist that you have a constitutionally-protected right of protest.  Further, if you do not allow other Americans to enjoy their equal rights while exercising yours, don’t claim you stand on the moral high ground.  Just saying.

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[1] https://en.wikipedia.org/wiki/Right_to_protest

[2] http://aclu-or.org/content/your-right-protest

[3] https://en.wikipedia.org/wiki/Bonus_Army

[4] https://www.washingtonpost.com/politics/courts_law/protesters-have-no-free-speech-rights-on-supreme-courts-front-porch/2015/08/28/f79ae262-4d9e-11e5-bfb9-9736d04fc8e4_story.html

[5] http://www.cnn.com/2015/01/21/politics/supreme-court-protests-citizens-united/index.html

[6] http://www.washingtonpost.com/wp-dyn/content/article/2011/03/03/AR2011030304124.html

[7] http://www.scotusblog.com/case-files/cases/mccullen-v-coakley/

[8] https://www.washingtonpost.com/news/post-nation/wp/2017/03/12/video-shows-environmental-activists-defacing-popular-trump-golf-course/?utm_term=.0972b18e88da

[9] http://www.sfgate.com/bayarea/article/Pro-immigrant-demonstrators-rally-outside-Peter-10995442.php

[10] http://www.sbsun.com/general-news/20160304/protesters-disrupt-logistics-town-hall-meeting-in-san-bernardino

[11] https://aclufl.org/2017/02/24/aclu-to-host-the-resistance-training-an-aclu-town-hall-in-miami/

Constitution Corner – The Right of Conscience

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“… there is great reason to fear that a positive declaration of some of the most essential rights could not be obtained in the requisite latitude. I am sure that the rights of conscience in particular, if submitted to public definition would be narrowed much more than they are likely ever to be by an assumed power.”[1]

Despite Madison’s initial reluctance to add a Bill of Rights to the Constitution, he finally succumbed to the arguments of Jefferson, Mason, Henry and others, and then fought vigorously for its addition.  Nevertheless, as he warned Jefferson, if the rights to be secured are not described “in the requisite latitude” they will likely not receive the protection they deserve.

So how do you describe the right of conscience?

You start by understanding what conscience is and why it is part of the human condition.

Every person is born with a conscience; it has been called “a gift of God to mankind.”  This gift manifests itself as the “still, small voice” in our spirit that speaks as we contemplate a particular action:  “And your ears shall hear a word behind you, saying, ‘This is the way, walk in it,’ when you turn to the right or when you turn to the left.”[2]  We may not hear a verbal “word” behind us, but we know the guidance is there; that guidance, based on the laws of God, is “written upon our hearts.”

Notice that conscience guides actions as well as thoughts; we are to “walk it its light.”  Thoughts or beliefs are a first step, but insufficient; they are impotent if they cannot also be acted upon.

In 1778, Theophilus Parsons warned: “We have duties, for the discharge of which we are accountable to our Creator and benefactor, which no human power can cancel. What those duties are, is determinable by right reason, which may be, and is called, a well informed conscience. What this conscience dictates as our duty, is so; and that power which assumes a control over it, is an usurper….”[3]  “Duty” implies action.

Based on the suggestion of New Hampshire as they ratified the Constitution, and his own inclinations, Madison tried to explicitly secure such a right.

He had observed, first-hand, the ill-treatment afforded Baptist ministers in nearby Culpepper County, Virginia.  Arrested for preaching without the required license from the state (which they were unable to obtain since the Church of England was the established state church), they were thrown in the “goal” and treated harshly; one account has a jailer urinating into their cell through the bars.  Hearing of this and apparently visiting and speaking with them, Madison pleaded in a letter to his college friend William Bradford: “…[P]ity me and pray for Liberty and Conscience to revive among us.”

It was the ministers’ freedom to act upon their beliefs of conscience that had Madison most concerned.  The beliefs themselves were, “in the main … very orthodox.”[4]

Madison’s “Memorial and Remonstrance against Religious Assessments on June 20th, 1785 reminds us that:

“[t]he Religion … of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate… It is the duty of every man to render to the Creator such homage and such only as he believes to be acceptable to him. This duty is precedent, both in order of time and in degree of obligation, to the claims of Civil Society. Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governour of the Universe: And if a member of Civil Society, who enters into any subordinate Association, must always do it with a reservation of his duty to the General Authority; much more must every man who becomes a member of any particular Civil Society, do it with a saving of his allegiance to the Universal Sovereign. We maintain therefore that in matters of Religion, no mans (sic) right is abridged by the institution of Civil Society and that Religion is wholly exempt from its cognizance. True it is, that no other rule exists, by which any question which may divide a Society, can be ultimately determined, but the will of the majority; but it is also true that the majority may trespass on the rights of the minority.[5] (emphasis added)

New Hampshire suggested: “Congress shall make no laws touching religion, or to infringe the rights of conscience.”  Madison added his own thoughts and came up with: “The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.”  The Senate removed the conscience reference altogether and left us with what we have today.

So to what “objects” does the right of conscience extend?  Here’s where Madison’s warning about “requisite latitude” comes into focus.  Conscience clearly begins with religious thought and action.  Any fair study of the right of conscience during the founding period must conclude that freedom of religion was the driving force behind this right.  From the Pilgrims to the Puritans, to the formation of Connecticut, Rhode Island, Pennsylvania and Maryland, religious liberty and the freedom to act on Christian conscience has been central to the American experience.

Accommodations have indeed been made to allow people (and even corporations) to align their actions with their specific religious beliefs:

For-profit companies as well as religious organizations are not forced to cover contraceptives in their healthcare plans. [6]

A woman can voluntarily quit her job over a requirement to work on the Sabbath without losing her right to unemployment benefits.[7]

A Jehovah’s Witness cannot be denied unemployment benefits after quitting his job at a weapons plant over objection to manufacturing weapons of war.[8]

The Amish cannot be forced to send their children to compulsory public school.[9]

But does right of conscience extend only to religious tenets and beliefs?

No!  In two cases,[10] the Supreme Court decided that “conscientious objection” beliefs did not have to be religiously based to be valid and deserving of respect and accommodation; they could be based on personal codes of morality.

Pharmacists in Illinois have been granted the freedom to not dispense abortificants (the “Plan B Pill”) if doing so conflicted with their objections to abortion.[11]

So a person cannot be forced to serve in the military when he or she believes war to be morally wrong, but apparently a florist can be forced to sell flowers which will be used to celebrate a homosexual wedding,[12] a baker forced similarly to bake a cake for such a wedding,[13] and a photographer forced to photograph it.[14]  If they refuse to provide these services because they believe homosexual marriage to be morally wrong or Biblically condemned, they will be sued, fined, forced out of business and almost certainly sent to “diversity training”[15] to align their “aberrant” beliefs with public policy.

America, what a country!

It should go without saying that a Jewish or Muslim butcher will never be compelled in this country to sell pork, a black carpenter compelled to build crosses for the KKK, or a lesbian print shop owner compelled to print posters for the Westboro Baptist Church.

It should be clear by now that Christian business owners and only they are being systematically targeted, with one intent: to drive them out of business if they refuse to support the LGBT agenda.  They will be forced to celebrate homosexual marriage along with everyone else, or find a different line of work!

So what is God’s view of homosexuality and homosexual “marriage?”

“While the Bible does address homosexuality, it does not explicitly mention gay marriage/same-sex marriage. It is clear, however, that the Bible condemns homosexuality as an immoral and unnatural sin. Leviticus 18:22 identifies homosexual sex as an abomination, a detestable sin. Romans 1:26-27 declares homosexual desires and actions to be shameful, unnatural, lustful, and indecent. First Corinthians 6:9 states that homosexuals are unrighteous and will not inherit the kingdom of God. Since both homosexual desires and actions are condemned in the Bible, it is clear that homosexuals “marrying” is not God’s will, and would be, in fact, sinful.

Whenever the Bible mentions marriage, it is between a male and a female. The first mention of marriage, Genesis 2:24, describes it as a man leaving his parents and being united to his wife. In passages that contain instructions regarding marriage, such as 1 Corinthians 7:2-16 and Ephesians 5:23-33, the Bible clearly identifies marriage as being between a man and a woman. Biblically speaking, marriage is the lifetime union of a man and a woman, primarily for the purpose of building a family and providing a stable environment for that family.”[16]

James Madison called conscience “the most sacred of all property.”  “Government is instituted to protect property of every sort;” he wrote, “as well that which lies in the various rights of individuals… that alone is a just government which impartially secures to every man whatever is his own.”[17]

Just as government is taking an increasingly dim view of personal property in this country,[18] they are taking an equally dim view of the rights of conscience, at least when the beliefs in question do not align with those of the progressive Left.

Rather than being secure, liberty of conscience finds itself under attack by those who feel we must all think and act alike on certain issues.  While there have been occasional victories, liberty of conscience still finds itself, at least on the subject of homosexual marriage, very much on the defensive.  We hope and pray that soon-to-be Justice Neil Gorsuch will help bring sanity to this pitiable situation.

Liberty of conscience, at the very heart of the settlement and formation of America, must be preserved if America is to remain America.  Samuel Adams told those gathered in the State House in Philadelphia on August 1, 1776, “…[f]reedom of thought and the right of private judgement, in matters of conscience, driven from every other corner of the earth, direct their course to this happy country as their last asylum.”[19]

No longer.

“If there be a government then which prides itself in maintaining the inviolability of property; which provides that none shall be taken directly even for public use without indemnification to the owner, and yet directly violates the property which individuals have in their opinions, their religion, their persons, and their faculties; … such a government is not a pattern for the United States.  If the United States mean to obtain or deserve the full praise due to wise and just governments, they will equally respect the rights of property, and the property in rights: they will rival the government that most sacredly guards the former; and by repelling its example in violating the latter, will make themselves a pattern to that and all other governments.”[20] (emphasis added)

As “James Madison” tells the school kids I visit, if you do not know your rights and/or are not willing to defend and assert them, you effectively have no rights and are on the road to slavery.  If Americans, and particularly Christian Americans, don’t stand united against this oppression, as Ronald Reagan once said: …”we will wake up one day telling our children and our children’s children what it was once like in the United States where men were free.”

“Constitutional Corner” is a project of the Constitution Leadership Initiative, Inc.  To unsubscribe from future mailings by Constitution Leadership Initiative, click here

[1] James Madison letter to Thomas Jefferson, 17 Oct 1788.

[2] Isaiah 30:21.

[3] http://press-pubs.uchicago.edu/founders/documents/v1ch4s8.html

[4] From James Madison to William Bradford-24 January 1774

[5] http://press-pubs.uchicago.edu/founders/documents/amendI_religions43.html

[6] Hobby Lobby Stores & Conestoga Wood Specialties Corp. v. Burwell, Little Sisters of the Poor v. Burwell.

[7] Sherbert v. Verner 374 U.S. 398 (1963)

[8] Thomas v. Review of Indiana Employment Security Division 450 U.S. 707 (1981)

[9] Wisconsin v. Yoder 406 U.S. 205 (1972)

[10] Seeger v. United States (1965) and Welsh v. United States (1970)

[11] https://aclj.org/pharmacists-victory-illinois-seven-year-fight-conscience-rights

[12] http://www.adfmedia.org/News/PRDetail/8608

[13] http://www.wnd.com/2016/07/christian-baker-takes-compulsion-of-speech-case-to-supremes/

[14] http://www.adfmedia.org/News/PRDetail/5537

[15] http://www.christianpost.com/news/christian-business-owner-gay-pride-t-shirts-diversity-training-148793

[16] https://www.gotquestions.org/gay-marriage.html

[17] http://press-pubs.uchicago.edu/founders/documents/v1ch16s23.html

[18] https://en.wikipedia.org/wiki/Kelo_v._City_of_New_London

[19] http://www.revolutionary-war-and-beyond.com/american-independence-speech-by-samuel-adams-august-1-1776.html

[20] http://teachingamericanhistory.org/library/document/property/

Constitution Corner – The Rights of Illegal Aliens

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Let’s say a Mexican national decides to illegally enter America and is successful in doing so, but he then unfortunately steps into a quicksand pit and is slowly being sucked down despite his efforts to extricate himself.

A passerby, an American citizen, observes the man’s predicament.   Does the citizen first ascertain whether or not the man is a U.S. citizen, or even in the country legally, before deciding whether or not to throw him a lifeline?  Of course not; as Jefferson said, or implied: We are all created equal in the sight of God and are equally entitled to the enjoyment of certain unalienable rights endowed to us by our Creator; among which are the right to pursue happiness, enjoy liberty, and escape from quicksand, or something like that.

I think all Americans would agree that every human being should enjoy these unalienable, natural rights.  Obviously, many Americans do not.  Many Americans believe that until a person has first filled their lungs with air, and for some, even after that time, they can be killed, murdered, terminated, have their little spinal cord snipped or cranium crushed, whatever, all for the convenience of the person who carries them, or moments ago carried them, in their womb.

So as we approach the subject of rights for illegal aliens, we must realize that we as a nation have a long way to go before claiming Jefferson’s ideal of equality at creation, and that some in our country are far more willing to extend certain rights to lawbreakers than they are to the unborn.

Whether I think, or you think, or any American thinks illegal aliens should enjoy any of the rights secured by our Constitution, is, in the end, not that important.  What matters, at least in the near-term, is what does the Supreme Court think?  We’ll get to that in a moment.

I know, even as I say those words concerning the court, that I’ve committed an heresy , and even contradicted statements I’ve made in the past: the Supreme Court doesn’t have the final say on anything Constitutional, the people do.  But until the people act on the authority they have, the Court does.  That, unfortunately, is what our system of government has become.

Ever since Marbury v. Madison, when Chief Justice John Marshall carved out this special privilege the Court now enjoys, Americans have generally yielded to the Court’s opinion on any matter, even when the Court has been clearly wrong.

When the Court ruled, in 1896,[1] that separate bathrooms and drinking fountains for blacks were entirely proper and constitutional, it took nearly 60 years[2] for the people to say they disagreed, and “encourage” the Court to agree with them.

So here’s a question: in 1865, when Congress began working on what became the 14th Amendment, did they intend to have the privileges it extends and the protections it provides cover aliens in this country illegally?  The answer has to be clearly and unequivocally: no – for two reasons.  First, the focus at that time was clearly on slavery and how to rid the United States of it and its effects.[3]  Second, in 1865, the concept of an illegal alien was unknown.

Prior to the 14th Amendment Congress passed the Civil Rights Act of 1866,[4] guaranteeing citizenship to all Americans without regard to race, color, or previous condition of slavery or involuntary servitude. The Act was a direct attack on the infamous “Black Codes” that were passed by most of the southern states after the War for Southern Independence.  Black Codes restricted the movement of blacks, controlled the type of labor contracts they could enter into, prohibited them from owning firearms, and prevented them from suing or testifying in court.

When the Civil Rights Act reached his desk, President Andrew Johnson vetoed it.  Johnson objected to the fact that, at the time, 11 of 36 states were not yet represented in the Congress; he also thought the Act discriminated against whites and in favor of African-Americans.  Even after overriding Johnson’s veto, there were concerns in Congress whether the Act was constitutional.  In response, they drafted the 14th Amendment, and forced the southern states to ratify it or face continued martial law.

The 14th Amendment’s Section 1 states:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The critical clause for our discussion is the last one.  What did Congress mean by “any person?”  Did they mean to extend these protections to all “persons,” i.e., all human beings, regardless of their legal status in our country?  They distinguished between “citizens” and “persons” but did not consider a “person’s” lawful status.

Until 1875, there was no such thing as an “illegal alien.” Anyone in the country who had not become a citizen was simply an “alien.”  Aliens entered and left America at will.  If they stayed long enough to meet the rules for naturalization, they could voluntarily apply for citizenship, or not; if they choose not to become citizens, they could stay indefinitely as nothing more than an “alien.”

The Page Act of 1875[5] was the first attempt by Congress to control who would be allowed to legally immigrate to America.  That year it became illegal to enter the country if you were Asian, and you were coming to America to be a forced laborer, were intent on engaging in prostitution, or were considered to be a convict.  The “illegal alien” was born.

In 1921, Congress established the first immigration quotas[6] based on country of origin. Quotas based on national origin continued until 1965 when the Immigration and Nationality Act of 1965[7] initiated a system of preferences based on immigrants’ skills and family relationships with U.S. citizens or U.S. residents (while retaining by-country limits).

In “Yes, illegal aliens have constitutional rights,”[8] immigration activist and political consultant Raoul Contreras cites none other than James Madison in claiming that aliens should have the full protection of the Constitution.

In the Report of 1800, Madison wrote:[9]

“…Aliens are not more parties to the laws, than they are parties to the constitution; yet it will not be disputed, that as they owe on one hand, a temporary obedience, they are entitled in return, to their protection and advantage.”

According to Madison, “aliens” are entitled to “protection and advantage.”  But which aliens, those who are in the country legally, or illegally?  And which “protections and advantages.”

Would James Madison have extended his undefined “protection and advantage” to aliens in the country legally?  I think so.  Would Madison have extended these protections to aliens in the country illegally?   I think not, but I’m willing to be convinced otherwise.  And just what specific protections would Madison extend to aliens in either category?  We can’t know for sure.

After citing Madison, Contreras discusses several Supreme Court decisions which he says support his contention that illegal aliens enjoy “the full panoply of constitutional protections American citizens have with three exceptions: voting, some government jobs and gun ownership (and that is now in doubt).”  So what has the court said?

In the 2001 case of Zadvydas v. Davis,[10]  the Court decided that the Due Process Clause of the 14th Amendment applies to all aliens in the United States whether their presence here is “lawful, unlawful, temporary, or permanent.”

In 1982, in Plyler v. Doe,[11] the court said: “The illegal aliens who are … challenging the state may claim the benefit of the Equal Protection clause which provides that no state shall ‘deny to any person within its jurisdiction the equal protection of the laws.’ Whatever his status under immigration laws, an alien is a ‘person’ in any ordinary sense of the term.”

So thus far the Court has granted due process and equal protection provisions of the 14th Amendment to illegal aliens, based on the unrefined definition of “person.”  But then we encounter a problem with Mr. Contreras’ interpretation of Supreme Court opinions.

Almeida-Sanchez v. United States (1973)[12] centered on the warrant-less search of an automobile, 20 miles from the U.S. border, belonging to a Mexican national with a valid work permit to be in the U.S.  The search, conducted by the Border Patrol to determine whether illegal aliens were being carried in the car, instead found a large quantity of marijuana.  Almeida-Sanchez was convicted of the marijuana trafficking and the 9th Circuit Court of Appeals affirmed the conviction.  But the Supreme Court found the warrant-less search to be unreasonable and reversed the lower court.

According to Contreras, the Court decided that “all criminal charge-related elements of the Constitution’s amendments contained in the First, Fourth, Fifth, Sixth and the 14th, such as search and seizure, self-incrimination, and trial by jury, protected all non-citizens, whether in the country legally or illegally.”  Unfortunately for Mr. Contreras, the court reached no such conclusion (don’t take my word for it, read the opinion).[13]  Instead, the (6-3) majority ends by stating: “those lawfully within the country, entitled to use the public highways, have a right to free passage without interruption or search unless there is known to a competent official, authorized to search, probable cause for believing that their vehicles are carrying contraband or illegal merchandise.”  So while the Court affirmed the protection of the 4th Amendment for those aliens lawfully in the country it extended no such protection to those in the country unlawfully, nor do I find evidence that it found that any other protections of the Bill of Rights should be applied.

Based on this evidence, it seems clear that, in the eyes of the Court, at least the “due process” and “equal protection” provisions of the 14th Amendment apply to illegal aliens.  Aliens legally in the country enjoy additional protections as well, at least those of the 4th Amendment, perhaps extending to much of the Bill of Rights.

So I return to my earlier question: in 1865, when the 14th Amendment was drafted, did Congress see its protections extending to “persons” who had broken the law to arrive here?  I think not.  But as I have stated in the past, it is not so much what the drafters of a Constitution, Amendment or Statute intended, it is what they achieved that counts.  The drafters of the 14th Amendment used the word “person” in a general sense without discriminating between “lawful” and “unlawful” persons.  In 1865, no such distinction of aliens even existed; that came ten years later.  Had such a distinction existed, would the drafters have been more elaborative? One would hope.

In the eyes of the Court, perhaps this question is settled; but is it settled with the owners of the Constitution?  In that regard, I think the jury is still out. What do you say, America?  What rights should illegal aliens enjoy?  Are you content with those that have already been extended to them or would you like to see more, or fewer? If you think the Court erred in its use of the 14th Amendment’s “person,” you need to let someone know (and who would that be?).  Or you could just sit back and let the Supreme Court continue to dictate the policy of the United States.  I’m just saying…

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[1] Plessy v. Ferguson, 163 US 537 (1896).

[2] Brown v. Board of Education of Topeka, 347 U.S. 483 (1954)

[3] Slaves were freed by the 13th Amendment.

[4] https://en.wikipedia.org/wiki/Civil_Rights_Act_of_1866

[5] https://en.wikipedia.org/wiki/Page_Act_of_1875

[6] https://en.wikipedia.org/wiki/Emergency_Quota_Act

[7] https://en.wikipedia.org/wiki/Immigration_and_Nationality_Act_of_1965

[8] http://thehill.com/blogs/pundits-blog/immigration/255281-yes-illegal-aliens-have-constitutional-rights

[9] https://founders.archives.gov/documents/Madison/01-17-02-0202

[10] https://en.wikipedia.org/wiki/Zadvydas_v._Davis

[11] https://en.wikipedia.org/wiki/Plyler_v._Doe

[12] https://en.wikipedia.org/wiki/Almeida-Sanchez_v._United_States

[13] https://www.law.cornell.edu/supremecourt/text/413/266

Constitution Corner – Has Trump Violated the Constitution?

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Is Donald Trump receiving an “emolument” by allowing his hotels and other properties to rent rooms or office space to foreign governments, or their employees?  Is he “increasing his compensation” through his organization receiving tax breaks from the State of New York?  Some on the Left think the answer to both questions is “Yes,” and that such actions are a violation of the Constitution.  Some even call for impeachment.[1]  Are they right?

Citizens for Responsibility and Ethics in Washington,[2] or CREW has brought suit against the President.  Their suit, which does not seek any monetary damages, asks a federal court in New York to order the President to stop taking payments at his properties from foreign governments. This includes payments at Trump hotels and golf courses; loans for his office buildings from certain banks controlled by foreign governments; and leases with tenants like the Abu Dhabi tourism office, a government enterprise.

They claim doing so violates the “Emoluments Clause” of the Constitution, sometimes also referred to as the “Titles of Nobility Clause,” for reasons which are obvious upon reading Article I, Section 9:

“No title of nobility shall be granted by the United States: and no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.”

What constitutes a “present, emolument, office, or title” and why is the receipt of such things from “any king, prince, or foreign state” such a problem?

As Alexander Hamilton explained in Federalist No. 22: “One of the weak sides of republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption.”  Foreign influence was an area of great concern to the Framers of the Constitution and continued to be so in the eyes of the nation at large for many, many years.

We think the nation is divided today; in the first 20 years after the Constitution was ratified the nation was equally divided between Anglophiles and Francophiles.  Anglophiles, naturally, retained affection for the “mother country,” while Francophiles retained gratification for France’s timely aid in the American Revolution.  Neither side totally trusted the other, both charging that “foreign influence” was behind their words and actions.

You might wish that Mr. Trump’s opponents operated from the highest motives and were truly worried that such hotel rents might influence American foreign or even domestic policy.  You are free to wish that; this is a free country, what remains of it; but you are naïve to think so.  There is no doubt that such suits will be an everyday occurrence over the next 4-8 years; expect them.  The Left intends to confront this President at every turn.

If you consult the standard expositories on the Constitution you find almost nothing written about the Emoluments Clause.  The Annotated Constitution, which includes all pertinent court cases affecting the interpretation of each clause of the Constitution, mentions absolutely nothing concerning the emoluments portion of the clause, only the Titles of Nobility portion.

Warning: you will find constitutional scholars coming down on both sides of this question.  The leftist Brooking Institute,[3] concluded that the situation is indeed a violation, and every progressive website jumped on the bandwagon.  Then there’s a paper published in the University of Iowa College of Law Review[4] which argues that those bringing the suit have interpreted the clause too broadly, relying on a secondary dictionary definition.

Webster’s 1828 Dictionary says this:

EMOL’UMENT, noun [Latin emolumentum, from emolo, molo, to grind. Originally, a toll taken for grinding.]

And then it provides both a primary and a secondary meaning:

  1. The profit arising from office or employment; that which is received as a compensation for services, or which is annexed to the possession of office, as salary, feels and perquisites.
  2. Profit; advantage; gains in general.

Which definition should be used?  The narrower one (1) or the broader one (2)?

When determining the meaning of a Constitutional word it is usually safe to look for other uses of that word in the document.  We find “emolument” used two other times.  First, in Article 1 Section 6:

“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; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.” (emphasis added)

Clearly the meaning of the word in this clause comes from the primary definition, the “salary, feels and perquisites” of a particular office.

During Hillary Clinton’s time as a Senator, the pay of the Secretary of State was increased.  She was thus ineligible to take the appointment.  In order for her to be confirmed and take that office after appointment by President Obama, she had to accept the original pay level of Secretary of State that was in effect when she became a Senator.  This was, I expect, gladly agreed to, given the alternative.

This “out” is known in Congress as the “Saxbe Fix,” after Senator William Saxbe who was confirmed as Attorney General in 1973 after Congress reduced the position’s salary to the level it had been before Saxbe’s term as Senator began.

So the question becomes: does the actions by the Trump Corporation somehow affect the pay of the President (Trump has declined his $400,000 salary and has instead accepted a $.01/year salary), or the perquisites or other benefits of the office.  Clearly no.

What about gifts as emoluments?

Congress, by statute, allows government employees to accept gifts from foreign governments worth less than $390 received as a souvenir or mark of courtesy.  Congress also allows more valuable gifts to be accepted, such as scholarships, medical treatment, food, lodging, travel arrangements when it appears that to refuse the gift would likely cause offense or embarrassment.  This is all spelled out in the Foreign Gifts and Decorations Act, Title 5 U.S.C. §7342.[5]

There is also a Congressional Research Service Report on this subject, Report R43660,[6] entitled: “The Receipt of Gifts by Federal Employees in the Executive Branch.”  You’re probably seeing a trend here: the focus is on gifts. But, like everything, “gifts” must be defined. “Gift” expressly includes, says the report, “any gratuity, favor, discount, entertainment, hospitality, load, forbearance, of other item having monetary value.”  Is renting a hotel room at fair-market value a “gift?”  Clearly no.

The late Saudi King Abdullah[7] gave President Obama and his family gifts valued at more than $1.3 million. They included an $18,000 watch for the president and a “diamond and emerald jewelry set including earrings, necklace, ring, brooch, and wristwatch” for Obama’s daughters, Sasha and Malia, estimated to cost $80,000.

Various Chinese officials have also been generous: President Xi Jinping gave Obama two computer tablets during a time his government is believed to have been carrying out large-scale hacking of American computer systems, including the database of federal employees.

Other government officials get gifts too. Gifts given to CIA Director John O. Brennan had the donors’ names removed because they might “affect United States intelligence sources or methods.” Brennan appears to have kept many of the gifts, including a “small decorative sword,” “for official use.”

Republican Senators Lindsey Graham and John McCain both received 4′ x 6′ rugs worth $4,000 from the attorney general of Qatar, and promptly deposited them with the secretary of the Senate.

Some nameless soul in the government has the interesting job of registering all these gifts; the justification noted for each of them: “non-acceptance would cause embarrassment to the donor and the U.S. Government.”

The CRS Report states: “Because of the considerations relating to the conduct of their offices, including those of protocol or etiquette, the President and the Vice President may accept any gift on his own behalf or on behalf of a family member, provided that such acceptance does not violate  §2635.202(c)(a) or (2), 18 USC §201(b) or 201(c)(3), or the Constitution of the United States.”

Supporters of the President point out that Mr. Trump is not renting these rooms, his corporation is.

Eric Trump, an Executive vice president of the Trump Organization, said Trump Enterprises has already taken more steps than required by law to avoid legal entanglements.  They have set up procedures to donate any profits collected at Trump-owned hotels that come from foreign government or guests, to the United States Treasury.  Is there even a “profit” from a single hotel room if the hotel, as a whole, lost money that night, if the corporation itself is losing money?

The president’s legal team argued that the Emoluments Clause does not apply to fair-market payments, such as a standard hotel room bill.  Echoing what I just concluded, they say the clause is only intended to prevent federal officials from accepting a special consideration or gift from a foreign power.

Of course Congress could defuse this issue immediately by passing a non-binding “Sense of the Congress” resolution stating that it views renting of hotel rooms or office space to foreign governments or entities to be in compliance with the Emoluments Clause.  But I doubt this Congress will do that.  There seem to be as many Republicans in Congress willing to “slow-roll” this President as support him.

There is another occurrence of “Emolument” in the Constitution.  It is found in Article 2, Section 1, Clause 7, and reads:

“The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.”

Notice the term: “United States” is used to mean both the national government as well as the States.

Critics of Trump point out that his corporation has in the past received close to $1 billion in tax breaks from New York State alone. These critics argue that if New York continues to offer such breaks, they will qualify as emoluments. If other states follow suit with their own tax benefits for Trump Enterprise projects, those will also be a problem.

One problem with all these suits against the President is standing, the plaintiffs have to demonstrate that they have been harmed by Trump’s action.  Have they?

The Citizens for Responsibility and Ethics in Washington argues that the President’s action has forced them to, quote: “divert essential and limited sources” from its regular government watchdog role and that they “will essentially be forced into the role of litigating and educating the public regarding (Trump’s) Foreign Emoluments Clause violations,” or so goes the complaint.

There is an expression in the Air Force pilot world that goes by the euphemism, YGBSM, which I will not explain here, but which expresses exactly how I view the group’s charge that they have been “forced” to bring this suit.  A watchdog group being forced to act as a watchdog? Pllleeeassseee!

Comedian Flip Wilson’s favorite excuse of long, long ago comes to mind: “The devil made me do it.”  Which translates in this case to: “We hate Donald Trump so thoroughly and completely that we intend to find any excuse whatsoever to obstruct his agenda and tie him up in court.”

I predict that if CREW or another group is somehow granted standing, and it is doubtful they will be, they will lose their case simply because of the steps the Trump organization has taken to isolate the President himself from any financial gain.  But what do I know?  Federal judges can be found to do anyone’s bidding these days.

But we should also note that Mark Cuban is being touted as a possible opponent for Trump in 2020.  Businessman versus businessman, mano a mano.  Yet, no one on the Left seems concerned about Cuban’s extensive business holdings, and I suspect that if he does emerge as the leading Democrat contender, some convenient excuse will be offered for why the Emoluments Clause is suddenly no longer a problem.

If there is a silver lining here it is that the American people are getting a good dose of Constitutional education, and it is likely to continue through the next four years.  Keep your seat belts fastened.

To hear the views of my other commentators on “We the People – the Constitution Matters” as we discussed this issue on 17 February 2017, download or listen to the podcast[8] of the show.

“Constitutional Corner” is a project of the Constitution Leadership Initiative, Inc.  To unsubscribe from future mailings by Constitution Leadership Initiative, click here

[1] http://www.acslaw.org/acsblog/%E2%80%9Cif-discovered-he-may-be-impeached%E2%80%9D-president-trump-and-the-foreign-emoluments-clause

[2] http://www.citizensforethics.org/

[3] https://www.brookings.edu/wp-content/uploads/2016/12/gs_121616_emoluments-clause1.pdf

[4] https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2902391

[5] https://www.gpo.gov/fdsys/granule/USCODE-2011-title5/USCODE-2011-title5-partIII-subpartF-chap73-subchapIV-sec7342/content-detail.html

[6] https://fas.org/sgp/crs/misc/R43660.pdf

[7] http://www.usnews.com/news/blogs/data-mine/2015/12/02/the-king-of-saudi-arabia-gave-over-13m-in-gifts-to-the-obamas-last-year

[8] http://www.1180wfyl.com/we-the-people-2017.html

Constitution Corner – The 17th Amendment Should Be Repealed

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Note: On “We the People – The Constitution Matters” for 6 January we discussed repeal of the 17th Amendment with our guest, Andrew Langer, President of Institute for Liberty.[1]  There just wasn’t sufficient time to cover all the nuances of that issue; hence this essay.

On December 5, 1933, the necessary 36th state (Utah) ratified the 21st Amendment, bringing to an end 13 years of national prohibition and proving beyond doubt that Americans are able to detect and correct errors they have made in their Constitutional order.  If only we were so observant today.

It had not taken long for Americans to realize the folly of trying to modify human behavior by Constitutional amendment; prohibition laws were openly flaunted and juries often refused to convict those accused of violating the law — Americans were determined to drink alcohol.

The 18th Amendment, which created prohibition, had been ratified in 1919 only six years after the 17th Amendment was added to the Constitution; and the 17th came only two months after the 16th.  America had gone nearly 40 years since the 15th Amendment to the Constitution was added and suddenly we were amending with great frequency.

The 17th Amendment, which changed Senators from being appointed to the Senate by their state legislatures to being elected instead by the citizens of the state, was seen by some as anticlimactic; many states had already begun allowing their citizens to elect their Senators, if not directly, at least through a non-binding primary election.  For these people, the amendment only confirmed a fait accompli.

Yet the effort to change the appointment of Senators actually goes back to at least 1826, when New York Representative Henry Storrs first proposed an amendment to provide for popular election. Similar amendments were introduced in 1829, 1855 and 1868.

By the 1890s, support for the introduction of direct election for the Senate began to accelerate, primarily due to the efforts of the Populist Party, which added direct election of Senators to its party platform.  In 1908, Oregon became the first state to base its selection of Senators on a popular vote.  Nebraska soon followed.

William Randolph Hearst threw his weight behind the movement for direct election by publishing a series of articles in his 1906 Cosmopolitan Magazine, attacking “The Treason of the Senate.” “Muckraking” journalists described Rhode Island Senator Nelson Aldrich as the principal “traitor” among the “scurvy lot,” who controlled the Senate through “theft, perjury, and bribes which corrupted the vote in the legislature to gain their election.”

Gradually, more state legislatures began to petition the Congress for direct election of Senators. The House soon had the two-thirds vote necessary to pass just such an amendment; when the joint resolution reached the Senate, however, it failed year after year.  By 1910, 31 state legislatures had petitioned Congress to pass and send the amendment for ratification, while 28 of them applied to Congress for an Article V convention for drafting such an amendment.  This was only three applications short of the threshold that would have required Congress to convene such a convention.  That same year, ten Republican Senators who were opposed to the change were “unelected,” sending a further “wake-up call to the Senate.”  Two years later the Senate finally passed the joint resolution and the proposed amendment was sent to the states for ratification.

The amendment reads: “The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures…”  The amendment concludes by specifying how vacancies in a Senate seat will be filled.

The framers of the Constitution could have specified election by the people.  In the Convention, James Wilson of Pennsylvania had been the sole advocate for popularly electing Senators; but his proposal to do so was soundly defeated, 10–1.  The Virginia Plan proposed the Senate be elected by the members of the “lower House.” So why did the Framers of the Constitution choose appointment by the state legislatures instead?

Perhaps the reason can be summed up by a familiar Madisonian statement: “Power lodged as it must be in human hands, will forever be liable to abuse.”  In other words: “Checks and balances” were needed.  The people would exert their political power in the House of Representatives, the states would exert theirs in the Senate, and the two bodies would provide a check on each other to prevent excesses.  The interests of the people in the House would be, must be, balanced by the interests of the state governments in the Senate.

Madison confirmed in Federalist #45: “The Senate will be elected absolutely and exclusively by the State legislatures.”

In Federalist #63, Madison discussed the importance of the role of a Senate elected by state legislatures rather than the people:

“To a people as little blinded by prejudice or corrupted by flattery as those whom I address, I shall not scruple to add, that such an institution [a Senate elected by the state legislatures] may be sometimes necessary as a defense to the people against their own temporary errors and delusions. … so there are particular moments in public affairs when the people, stimulated by some irregular passion, or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be the most ready to lament and condemn.”

“In these critical moments, how salutary will be the interference of some temperate and respectable body of citizens, in order to check the misguided career, and to suspend the blow meditated by the people against themselves, until reason, justice, and truth can regain their authority over the public mind?”(emphasis added)

If the Senate could provide a check against the people, it could also provide a check against the Executive, particularly given its unique role in confirming executive appointments and ratifying treaties; especially if the state governments were able to instruct their Senators.

So what has been the result of direct election of Senators?

Here’s where the argument for repeal falters a bit; it is always difficult to state with certainty what would have happened in any situation, “if only.”  But it is not too hard to see some of the effects:

For starters, the states are well on their way to being considered mere administrative units of the national government.  As former Senator Tom Coburn explains in this interview,[2] the federal government has grown to the point where it dominates the states.  As Mr. Langer pointed out on our radio interview, the vast majority of this growth took place after the 17th Amendment was ratified.  We might rightfully ask: would this growth have taken place if the states still controlled the Senate?

State governments rightfully claim responsibility over matters of taxation, education, employment, disaster relief, public safety, transportation, health care, marriage, and property rights, to name just a few.  Yet in all those issues, and many more, the federal government mandates, regulates, or directs policy, and the states are usually forced to obey.  Although state governments bear much of the responsibility for their citizens, they enjoy greatly reduced authority to do anything about the issues they face.  A reinvigoration of state power[3] is long overdue.

A third effect of popular election of Senators was that states, especially those which did not ratify the 17th, lost the “equal suffrage” in the Senate guaranteed by Article 5.  Senators now represent the people who elected them, and the states no longer have a controlling vote in the Senate; they have arguably lost their suffrage.  “But there remain two Senators for every state, every state is therefore equally represented,” comes the refrain.  Because Senators can no longer be recalled by the state legislatures, they no longer must vote as a state delegation, they now “vote their conscience.”  This leads to a hundred individual votes in the Senate instead of what used to be, in essence, one vote per state.  One could argue (and, no doubt, some will) that Senators could always “vote their conscience,” and this must be conceded; but the “persuasiveness” attendant to instructing Senators how their state government views an upcoming measure cannot be dismissed.  Because the dominant party in the state legislature would likely have appointed Senators from that party, Senators would normally share the party’s political philosophy and could be expected to vote alike on most issues.  Today there is even the potential for the two Senators to come from different parties.  Thirteen states in our last Congress, in fact, had Senators from opposing parties.  On strongly partisan issues, their votes could be expected to nullify each other.

Virginia M. McInerney has posted on the LONANG[4] website a well-reasoned article[5] explaining why the 17th should be repealed.  It is worth the read.  She points out: “The national government, having taken on too much power, is unable to properly administer all the areas it has arrogated unto itself. On the other hand, the state governments are impotent in legislating and executing the will of the people because they are subject to unpredictable subjugation by the national government.”

But repeal of the 17th Amendment face several challenges.[6]  The American people have become accustomed to electing “their” Senators, and few Americans today understand or could explain the reasoning behind the original design.

The next challenge is found in the mechanism of repeal.  According to Article V there are two ways to amend the Constitution: Congress can propose the necessary amendment, as they did with the 17th, or the states can petition for an Article V convention to do so.  The first method is problematic; it is almost certain that a repeal amendment will ever gain the necessary 2/3 vote in the Senate; today’s Senators have become accustomed to the corporate donations to their re-election campaigns.  This money would dry up overnight once Senators were once again appointed by their states.  That leaves an Article V convention as the only mechanism with any chance of success.  Due to a perceived risk of untoward results, the Article V Convention method is being fought tooth and nail, most vehemently by conservatives themselves.

In Feb 2016, the Utah Senate passed a resolution[7] calling on their Congressional delegation to push for repeal of 17th Amendment.  I’ve not discovered if this actually happened; if it did, no one took much notice.  Georgia Senator Zell Miller[8] famously tried every year he was in the Senate to pass a repeal measure through that chamber, each time unsuccessfully.

Some, however, urge caution.  David Gordon, writing on Mises.org points out that Repealing the 17th Amendment Won’t Fix the Senate.[9]  Merely repealing the 17th might only place the issue back in the hands of the state legislatures where some could continue to let their citizens elect Senators if they so choose.  “A fundamental problem of the Senate has long been the fact that Senators do not vote as representatives of a state delegation, but as independent legislators.  The status quo should be abandoned in favor of allowing each state delegation only a single vote in the Senate, and that vote should be interpreted as the member state’s position.”  Such a change: one vote per state, could be included in a repeal amendment.  Unless a repeal amendment also gave the state legislatures specific power to recall the Senators, there would be no incentive for Senators to follow their state’s instructions.  The repeal amendment should also address the issue of long-vacant seats, which was an occasional problem prior to the 17th when state legislatures could not agree on who should represent them.

Many on the Left will also fight the idea.  Some worry that repealing the 17th will lead to much stronger republican control of the Senate.  With 68 percent of the 98 partisan state legislative chambers in the U.S. now controlled by Republicans,[10] it seems likely they are right — at the moment.  But remember, only a third of Senators are elected each two years; the composition of Republican vs Democrat control of state legislatures could change dramatically over the next six years.

If you would like to register your opinion on this matter, go to debate.org,[11] where you’ll find an online anonymous poll.  When I registered my vote, 60% of respondents had said “Yes” to repeal, while 40% had said “No.”

In conclusion, just as the American people recognized their error in enacting prohibition, and correcting that error, they will, hopefully, one day realize their error in disrupting the Framers’ plan for a balance of power in the Congress – and repeal the 17th Amendment.  If you agree the 17th should be repealed, if you would like to restore true federalism,[12] speak with your state legislators.

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[1] http://www.instituteforliberty.org/

[2] http://www.conventionofstates.com/tom_coburn_the_federal

[3] http://usconservatives.about.com/od/conservativepolitics101/a/The-Conservative-Case-For-Returning-Government-Power-To-The-States.htm

[4] Laws of Nature and Nature’s God Institute

[5] http://lonang.com/commentaries/conlaw/federalism/repeal-seventeenth-amendment/

[6] http://blog.constitutioncenter.org/2016/05/repealing-the-17th-amendment-would-be-no-small-task/

[7] http://www.standard.net/Government/2016/02/24/Utah-Senate-passes-resolution-to-repeal-17th-Amendment-in-states-rights-push

[8] https://en.wikipedia.org/wiki/Zell_Miller

[9] https://mises.org/blog/repealing-17th-amendment-wont-fix-Senate

[10] http://www.cnsnews.com/news/article/barbara-hollingsworth/after-winning-7-more-seats-gop-dominance-state-legislatures-all

[11] http://www.debate.org/opinions/should-the-u-s-repeal-the-17th-amendment

[12] http://www.restorefederalism.org/

Constitutional Corner – Celebrate Your Rights

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Today, December 15th, we celebrate Bill of Rights Day, the day, in 1791 (coincidentally, a Thursday), when the Virginia Assembly added its ratification of the proposed articles of amendment to the U.S. Constitution; bringing the tally to eleven ratifications, representing three-quarters of the then fourteen states, and putting Articles Three through Twelve into effect as the First through Tenth Amendments.  It would take an additional 200 years before college student Gregory Watson convinced enough other states to ratify the dormant Article Two for it to become our Twenty-Seventh Amendment.

As I tell students whose classrooms I visit dressed as (and echoing) James Madison: Your rights, both the alienable ones granted by your government, such as the right to vote, and the unalienable ones endowed by our Creator, such as the right to speak freely, are your most precious form of personal property; with your right of conscience being the most precious of all.  According to Mr. Jefferson, it is government’s sole task to secure those rights for you.

There was great disagreement in 1787 as to whether a Bill of Rights was necessary in the new Constitution; perhaps one would even be dangerous.  Virginia’s Colonel George Mason wished the document be prefaced by a Bill of Rights; it would give “great quiet” to the people to have one.  As the principal author of the Virginia Declaration of Rights of 1776, Colonel Mason knew, better than most, that one could be prepared in short order.  Roger Sherman of Connecticut pointed out that the state constitutions, most containing declarations of rights, were not being repealed by the new Constitution and would thus continue to provide the necessary protection; a motion for a committee to draft a bill of rights failed and the convention went on to address other matters.

It was not until states began expressing a reluctance to ratify the new Constitution without an attendant Bill of Rights that forty-year old James Madison finally came around to see the political necessity, if not the philosophical need for one.  The urgings of Thomas Jefferson and others had finally taken root.

In the election of 1789, a slim margin of 336 votes sent young Madison to the first Congress instead of his friend and neighbor, James Monroe, providing an early example of the phrase: “elections have consequences.”  It was Madison’s single-handed determination to carry through on his promise to draft a Bill of Rights, as he had helped George Mason do in 1776,  that gave us those first ten amendments; the Federalist-dominated Congress was not particularly interested in Mr. Madison’s “summer-project.”

In 1776, John Adams suggested in a letter to Abigail that we celebrate the second day of July, the day Richard Henry Lee’s resolution for independence passed the Congress, with “pomp and parade, shows, games, sports, guns, bells, bonfires and illuminations, from one end of this continent to the other, from this time forward forever.”  We instead moved the celebration back two days, to the day the wording of the Declaration of Independence was approved, but the sentiment remained the same.  Is it not equally fitting that we take a moment today, perhaps short of more “bonfires and illuminations,” to celebrate our rights, both civil and natural, alienable and unalienable, and to reflect on the great pains that many fine gentlemen and ladies have taken to make those rights secure?

I think so.

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Constitutional Corner – The Great Confusement or, The Fiction of a National Popular Vote

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There seems to be great disagreement as to whether “confusement” is a recognized word or not; my spell-checker seems to think not; but it just sounds like it should be, so I’ve used it.

There is great – no – make that enormous confusement in this country over the Electoral College.  I keep having to answer the same questions over and over again on Quora.com, so I thought I’d sit down and lay this out for everyone, hopefully for the last time.

There is no such thing, constitutionally speaking, as a national popular vote.  There is no mention of it in the Constitution; there is no requirement that one be tallied; it was not anticipated by those who designed what we’ve come to call the Electoral College.  A national popular vote was not even officially tallied until 1824 and even then it was incomplete since not all states were allowing their citizens to participate.  Yet somehow we managed to elect five Presidents without the tallying this fictitious vote.

The other fiction is that, in the United States, the people elect the President and Vice-President.  At best, it can be said that you help your state elect the two officials; and you should feel fortunate that your state even allows you to help; there is no constitutional requirement that they do so.

Neither is there such a thing as a single “national” election for the President; instead there are 51 separate state/District of Columbia elections for President which just so happen, by act of Congress, to take place on the same day.

In the very first presidential election, in 1788-89, four of the ten states that participated appointed their electors directly; their citizens got to stay home that day.  It wasn’t until after the Civil War that every state in the union allowed its citizens to participate in the selection of electors.  Yet all those many Presidents, elected without the participation of all the American people, still managed to do their job.  Amazing!

I hope you are beginning to see that a “national popular vote” tally is meaningless information, only of interest to people fixated on yet another fiction: that America is a democracy.  Same with the number of “counties and county equivalents” that Trump won compared to Clinton; interesting, but an otherwise useless bit of information.

This election has been a real eye-opener for me.  I never thought those on the Left could be so downright hateful, spiteful and vengeful — all at once.  It has been an amazing thing to watch; and it will continue, I predict, until at least January 20th, maybe even for the next four years.

For those who’ve been away in Swaziland, there is an ongoing, “no-holds-barred” effort by the babies on the Left to convince enough presidential electors to abandon their pledges so that Trump will not receive the 306 electoral votes he has earned.  Yes, that’s right, earned.  Electors are being threatened with bodily harm, harassed, cajoled, pleaded with; people have promised to pay any fines and/or legal costs they incur if their state decides to prosecute them for not carrying through with their pledged vote.  The behavior will only get worse the closer we get to December 19th.

If, on December 19th, Trump retains 270 or more electoral votes, I predict the Left will then turn to the Congress and demand they somehow de-certify the votes when they are counted on January 6th.  Watch.

This is despicable, un-American, childish behavior, pure and simple; and it speaks volumes about progressivism and the values of the Left.  I expect it will leave a lasting impression on “the other half” of America for years to come.  I know it will on me.

But please don’t remain among the confused; rise up and reject confusement!  The states elect the President and I’m thankful my state allows me to play a role, any role, in that process.

Now, is there anything else we can talk about?

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Constitutional Corner – Musings on the Article V Convention Simulation

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Although I would have much preferred to have been able to observe the Article V Convention simulation last week[1] from on site, the livestream of the event had to suffice; alas, I have no official affiliation with Convention of States.  But I will admit upfront to being a big fan.  Our nation suffers from a myriad of problems; some of them can only be remedied through amending the Constitution.

I know the words “amend the Constitution” send shivers up the spines of some.  “How could you even consider such a thing?”  After all, the Constitution is the “the most wonderful work ever struck off at a given time by the brain and purpose of man,”[2] is it not?  I answer: “Yes, it was, and no, it is no longer.”

The Constitution has suffered serious injury in the hands of the Supreme Court (and through the people’s neglect).  It no longer represents the limitation, the constraint on government that was intended by the Framers.  Instead, the federal government today can, in the eloquent words of former California Congressman Peter Stark: “do most anything in this country.”[3]

The most convincing evidence of this ability is our nearly $20 Trillion in debt.  “Do[ing] most anything in this country” means spending money with abandon, much of which we didn’t have and which we had to literally print.  But thanks to the Supreme Court, whose decisions have rendered the Commerce Clause, the General Welfare Clause and other key provisions into grants of plenary power over, respectively, business and, well, everything else, the Congress and its executive agency minions can regulate any aspect of business in America, and spend money for any purpose it deems to fit its own definition of “general welfare.”

I don’t care how many conservatives you elect to Congress, nothing is going to change this paradigm.  Short of a rewording of the two relevant clauses, forcing them back to their Founding Era meaning, Congress and the rest of the federal government will continue to do what they do best: drive this country towards economic ruin.

Now, we could sit back and wait for Congress to select “Option One” of Article V.  Those hundreds of “Constitutional Conservatives” we intend to elect, someday, could indeed propose amendments which restore the original intent of both clauses, stripping themselves, the Congress, of near-plenary power over the American economy in the process — but I’m not holding my breath.  There’s a greater chance of Colin Kaepernick getting booted out of the NFL, restoring honor to a sport millions of Americans schedule their lives around.  But, actually, that’s not going to happen either.

No, the only way to return those two clauses to their original intent, their original strength, and restore these two original “chains” on government,[4] is to have the states, in convention, propose modifications to the Constitution’s wording, utilizing “Option 2” of Article V.

“But a convention called under Article V is way too dangerous,” claim the skeptics, whose paranoia over safety inexplicably still allows them to drive on public highways.  “A whole new Constitution could result.  We know such a document is laying in a dusty drawer somewhere awaiting its opportunity to save our nation from itself.”  Poppycock!

As vividly demonstrated last Thursday and Friday at the Williamsburg Lodge in historic Williamsburg (both James Madison and Patrick Henry made appearances), a convention of the states, conducted under the auspices of Article V, will likely be a controlled, measured, ruled, even sometimes boring affair.  Certainly no “running away” or even running around was in evidence.  Instead, the commissioners from 50 states crafted eight well-thought-out changes to our Constitution that would either impose long overdue fiscal restraints on the federal government, reduce the enormous power and horizon-to-horizon jurisdiction of the federal government, or impose limits on the terms of some of its “serving essentially for life” officials — the three criteria which would have been found in the applications of 34 states who insisted Congress call such a convention and, presumably, in the instructions the commissioners carried.

The second day of this two-day event was livestreamed to the Williamsburg Public Library (and thousands of other locations and individual computers around the country).  We witnessed commissioners grappling with the exact meaning of words and the looming specter of “the Law of Unintended Consequences.”  Only six of the eight proposed amendments passed with a majority floor vote of the convention, the remainder being declared “only half baked.”  And even those that passed often underwent drastic modification from their committee versions before a majority of state delegations were happy with them.  Of course, this was merely a simulation, a demonstration for effect, a chance to show that rules for such an event could be promulgated, agreed to, and followed with respect and decorum. 

And they were.  I cringed as the poor parliamentarian and convention president had to sort out layers upon layers of motions to amend the amended amendments.  But it was all done with style and grace and no one was told to “go to the corner,” or “shut up and color.”

Now yes, all these commissioners were there because they believed in the potential efficacy of such an event, even the commissioners from what we consider “hard-core” liberal states.  In the real event (when it occurs — and it must) the discourse is certain to be more rancorous, the debates more strident, and the output perhaps even more sparse, knowing that real changes are being proposed to a real 200+ year old document.

But let’s return to the central question: Do we continue down the path we are on, with a federal government exploiting limitless power, overburdening American businesses, spending money like there’s no tomorrow, with hundreds of unelected judges and career politicians serving essentially “for life,” protected either by the words of the Constitution itself or returned to their elected offices by the sheer power of corporate donations?  Do we continue this way until the “whole house of cards” collapses of its’ own ungovernable weight? 

Or do we pull from the remnants of our tattered Constitution: “Option 2” of Article V? — an option placed there with exquisite foresight, the Framers knowing full well that “a fondness for power is implanted, in most men, and it is natural to abuse it, when acquired.”[5]

Ultimately the choice is ours.  We can work hard to persuade the remaining holdouts that this is our best and perhaps our last chance to restore Constitutional sanity before the Debt Clock implodes, or we can turn back to watching Dancing with the Stars, and hope for the best. 

Which will it be?[6]

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[1] http://www.conventionofstates.com/cossim

[2] William Gladstone, four time British Prime Minister,  (1809-1898)

[3] Stated at a Town Hall meeting, Hayward California, July 24, 2010.

[4] Thomas Jefferson, fair copy of the draft of the Kentucky Resolution of 1798

[5] Alexander Hamilton, The Farmer Refuted, 1775

[6] For more information of the Convention of States Project, see www.conventionofstates.com.

Constitution’s Week in Review – 27 August 2016

Article 1, Section 2.  Apportionment

The original Constitution set Congressional representation at 1 Representative for every 30,000 persons.[1]  If this formula had remained in effect, the House of Representatives would today contain over 10,000 members.

What would have been the original first amendment had it been ratified in 1791 would have gradually increased the apportionment formula until it reached 1 Representative for each 50,000 persons.  Even at 1 to 50,000, the House would today contain about 6400 members.[2]

Back when communication was somewhat less than globally instantaneous, and telepresence still a science fiction, a legislative body of these proportions seemed unmanageable, and so the Reapportionment Act of 1929 was passed which capped the number of Representatives at 435.  In 1929, when the U.S. population stood at 121.8 Million, this meant each Representative must represent 280,000 persons.  Today, the average Representative must represent the interests of 750,000 individuals.  Good luck with that.

Providing the basis for this apportionment was an enumeration or census, to be conducted every 10 years:

“The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct.”

Our country’s first official census was conducted in 1790[3] and the last in 2010.[4]  The 2020 census is beginning to come onto political radar screens and looks to be as controversial as any previous.  What should be a simple counting project has proven to be anything but.

Certain elements of the U.S. government attempt to use the census to gain additional socio-demographic information they can use to shape their programs.  This means asking census questions that go well beyond a simple “enumeration” and intrude into personal information that some feel the government has no need to know or right to demand.

With apportionment, however, comes political power — 15 states are projected to gain or lose districts as a result of the 2020 census — and that means politically-motivated groups will seek ways to influence the outcome.  It should come as no surprise then to learn that certain political groups hope to influence the 2020 census to gain political advantage.

The Open Society Foundation, founded by George Soros, is funding key progressive groups[5] with the goal of attempting to “influence appropriations for the (U.S.) Census Bureau.” while pushing to change the methods by which racial categories are counted.  One big issue: do you count incarcerated individuals as residents of the jail/prison location or are they residents of their pre-incarceration domiciles?   With U.S. prisons bursting at the seams, this becomes an important question.  Watch for more on this as we get closer to the actual census.

First Amendment. A Win for Religious Liberty?

Genesis 1:27 tells us that God created humans as either male or female.  Although biologists point to several factors involved in determining gender during conception, gender, once set, is set; the idea that someone could actually change their gender after birth is of very recent vintage.  Only advances in cosmetic surgery have made the idea even approachable.  Of course, at the genetic level the idea is preposterous.  Despite all external attempts to portray oneself as the opposite sex, chromosomes have proven more resistant to change.

But now that the issue of homosexual marriage appears to have been settled, in the eyes of many, if not most Americans, gender identity is the new battleground.  Bathroom/shower-room use in the public schools gets a lot of the attention (as a side note: a Texas Federal Judge has blocked the Department of Education’s attempt to inflict gender confusion on the nation’s schoolkids).[6]  But trans-genderism is creating other controversies as well.  For instance, must an employer accommodate an employee’s announcement of gender “transition” at face value and retain that employee in their job?

A U.S. District Judge in Michigan has decided the answer to that question is “No,”[7] the employer can not only fire such an individual, they and can base their decision on their firmly held religious values, even if the business involved is not a church or other religiously-oriented organization.  I’ve no doubt this decision will be appealed and I fully expect it to reach the Supreme Court, where, based on our Society’s emerging hostility to religion, I predict the Court will strike down the decision and state that a firing decision cannot be based on religious views of gender.  But we’ll see.

Two Wins for Religious Liberty in One Week, What’s Happening Here?

The following story shows the strength of grass-roots efforts when properly marshalled.

The California legislature was set to pass SB1146.[8] Among its provisions was one preventing low-income students from receiving Cal Grants, California’s system of need-based education aid, if they attended colleges which restrict campus bathroom use based on biological sex.  Thanks to “hundreds and hundreds of phone calls,” Senator Ricardo Lara, a Democrat  and the bill’s sponsor, agreed to remove the offending clauses.

Kudos to the Becket Fund for Religious Liberty and the Southern Baptist Convention’s Ethics and Religious Liberty Commission which mobilized their members.  It can work!

Why Does the Federal Government Own So Much State Land?

In previous posts and in my seminar I complain about the extent of state land claimed by the federal government: 85% of Nevada, 70% of Alaska, 57% of Utah, and so on.  Article 4, Clause 2 gives Congress the power to “dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.”  Notice the words “dispose of.”  These imply that federal territory will not be held in perpetuity, only temporarily until it is either sold off or made into a state.  Environmentalists, of course, have no problem with the federal government sequestering such land from development and keeping it as wilderness “for the people;” otherwise, cash-hungry states would just sell it off to developers, and then “good bye Yellowstone!”  Now we learn there are a considerable number of conservatives[9] who see things the same way.  Apparently willing to put aside the issue of big government, they see these lands as a “national birthright” and demand they be protected from economic development, principally by keeping them under federal ownership.  What’s a Republican platform-writer to do?

Upcoming Events:

Note for those in the Hampton Roads area: On Tuesday, 6 September, our Natural Law Discussion Group, having finished a look at Natural Law, will undertake an abridged version of Institute On The Constitution’s Duty of the Jury Course.  This course explores the traditional power of juries and how it has changed over the years.  In the colonial period and even into the 1860s, juries routinely exercised the power to judge both the law and the facts.  Not so much today; primarily because juries are routinely and specifically instructed by judges that they do not have this power.  The discussion group is (and has always been) open to anyone with an interest in studying what we’re studying.  The group meets from 6:30-8:30 pm in the Oyster Point area of Newport News, VA.  For the address details, send an email to: gary@constitutionleadership.org.

12 Sep, Lessons in Liberty – The Electoral College

The functioning of the Electoral College today bears little resemblance to the Framers’ intentions.  But rather than completely eliminate the “College” with an amendment, which would be the “constitutional” thing to do, groups like National Popular Vote have decided a final end-run is all that’s needed.  Can the Framers’ intent be restored?  Come find out on Monday, 12 September, 7-9pm at the Foundation for American Christian Education in Chesapeake, VA.  For those outside the local area, the presentation will be livestreamed.  Registration is $10 either way at www.face.net.

19 Sep, Christian Financial Concepts Webinar – The Electoral College Once Again

The following Monday, I give a one-hour abbreviated version of my Electoral College presentation for the Christian Financial Concepts[10] webinar series.  Participation is free, but this will by necessity be a more truncated view of the subject.

WFYL Radio: We the People, the Constitution Matters.  Having completed a look at the principles of the Declaration of Independence, our intrepid commentators take on the topic of “Progressivism in America.”  Join us Friday mornings from 7-8am beginning 26 August, as we cover the sordid history of Progressivism, how it gained a foothold in America, the damage it has already done and where its acolytes plan to take this country given the chance after November.

The “Constitution’s Week in Review” is a project of the Constitution Leadership Initiative, Inc.  To unsubscribe from future mailings by Constitution Leadership Initiative, click here.

[1] The word “residents” is not used, however, giving rise to the question of whether representation was intended to be based on “residents,” however temporary may be their residency, or “citizens,” or some other designation.

[2] For more on ratifying the original first amendment today see: https://americaagain.net/

[3] The U.S. population in 1790 was 3,929,214.

[4] The U.S. population in 2010 was 309,300,000.

[5] http://www.breitbart.com/big-government/2016/08/22/leaked-doc-soros-open-society-seeks-reshape-census-electoral-districts/

[6] http://patriottribune.com/44167/texas-judge-blocks-transgender/

[7] http://www.gopusa.com/?p=13949?omhide=true

[8] http://dailysignal.com/2016/08/12/what-conservatives-did-to-pull-off-religious-liberty-win-in-california/?utm_source=TDS_Email&utm_medium=email&utm_campaign=Top5&mkt_tok=eyJpIjoiWmpRME5qSTRPR001TTJNdyIsInQiOiJFbE9iRSsyekZicFlMNzByTUMza2xVQzlmSm1MOTdRSEpCY3NFNU5reVBzclI2QU5hRm5KSk1SNHB0WUtTcEVIcElLZXhEcW5wMTVyMmtnZXJyZ0lST1JEdHd6QnZxWHQyR25jOUxqTGFicz0ifQ%3D%3D

[9] https://www.yahoo.com/news/conservatives-split-over-u-land-transfers-western-states-104946810–finance.html

[10] http://www.christianfinancialconcepts.com/webinars.php