Constitutional Corner – Yes, Tear Down This Wall!

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“[The wall of separation] metaphor is based on bad history, a metaphor which has proved useless as a guide to judging.  It should be frankly and explicitly abandoned.”[1]  So said Chief Justice of the Supreme Court William Rehnquist essentially concurring with Associate Justice Byron Stewart, who in a preceding opinion, wrote: “[Resolving complex constitutional controversies] “is not responsibly aided by the uncritical invocation of metaphors like the “wall of separation,” a phrases nowhere to be found in the Constitution.[2]

But Rehnquist’s and Stewart’s companions on the bench had no problem with the metaphor: it suited their purposes – it was ambiguous enough to mean whatever they wanted it to mean, and imposing enough to quash ill-informed dissent.

Besides, given Jefferson’s “well-known” hostility to organized religion, this must be what he meant, an impregnable wall, right?  Well, except for the fact that Jefferson attended organized religious services his whole life, including attending, the day after penning his letter to the Danbury Baptists, church services in the U.S. Capitol building, of all places; and considering that he contributed financially his whole life to multiple churches and their ministers, I guess you could say that he was “hostile” to organized religion, in a blatantly supporting sort of way.

Read the concerns of the Baptists and Jefferson’s reply, in context, and you easily see that Jefferson wished to assure the Baptists that the federal government (the only one for which he spoke) had no intention of interfering in their beliefs, even if (or especially if) they differed from the official state church of Connecticut: the Congregational Church.

But in 1947, Democrat Klansman Hugo Black, the most senior justice on the Court, appointed by FDR, desperately needed a metaphor.  So he purloined a hundred forty-six year old phrase from a private Jefferson letter (confident, it would seem, that Jefferson would not object) to prove that the Constitution, a document that Jefferson had no part in since he was serving in France during its drafting, required this absolute separation — except when it didn’t.

You see, even though the Court erected this “impregnable” wall in Everson v. Board of Education, Black ruled that the Catholic parents who sought reimbursement for the cost of public buses that took their kids to Catholic schools (parochial schools as we used to call them back in the day) should get it.  So Black becomes the hero to Catholic parents for sustaining the New Jersey law at question, he becomes the hero of all American Atheists for creating a weapon that could be used to keep those “Christian fanatics” at bay.

Mind you this decision was delivered in 1947, after more than a hundred years of American courts saying almost exactly the opposite thing.

In 1799, the Supreme Court of Maryland saw no conflict with the First Amendment in a naturalization oath which included a declaration of belief in the Christian religion.[3] Indeed, the Maryland state Constitution began with the words: “We the people of the state of Maryland, grateful to Almighty God for our civil and religious liberty…” That year the same court stated that: “By our form of government, the Christian religion is the established religion, and all sects and denominations of Christianity are placed upon the same equal footing and are equally entitled to protection in their religious liberty.”[4]

In 1811, a Mr. Ruggles was found guilty of public blasphemy. The New York Supreme Court sustained the conviction: “[T]o revile the religion professed by almost the whole community is an abuse of that right (of religious opinion).  We are a Christian people and the morality of the country is deeply engrafted upon Christianity and not upon the doctrines or worship of those other imposters.”[5]

In 1844, the U.S. Supreme Court took a stand. A Mr. Girard stipulated in his will that his remaining estate be used to establish a public school, but one from which ministers or any religious instruction would be excluded.  Justice Joseph Story wrote the majority opinion which forcefully stated that “Christianity is not to be maliciously and openly reviled and blasphemed against to the annoyance of believers of the injury of the public.”[6]

In case after case the courts affirmed a close relationship between the Christian church and the law.  Did any of this establish some denomination as the official religion of the United States?  No. these and other cases only affirmed the existing reality: we considered ourselves a Christian nation. Our laws and mores were rooted in the Bible; not the Koran, the saying of Buddha, Pantheism or any other belief system.

But by 1947, things had changed in this country; secular humanism now formed the core of the public school curriculum. Although Bible reading and morning prayer was still allowed in those schools, that was about to change as well, along with released time for religious instruction. All these accommodations of Christianity would soon be discarded. Why not? There was a “Wall” to enforce.

Atheists were flexing their muscles and had the perfect tool. But there was a problem: Christianity was too well connected with our public infrastructure for a complete and utter separation. The connection would have to be chipped away, one small issue at a time. How could you ignore our national motto (In God we Trust) and its appearance on all our money? Outlaw Chaplains in the military and Congress? Don’t even think of it. Amend the Constitution to no longer give the President Sunday off when considering whether to sign a bill? To hard.

All these “entanglements” would be allowed. Of the others, some would take considerable time and effort. Prohibit all display of the Ten Commandments, the basis for our laws, from schools and courtrooms? Though it took scores of years, even that would ultimately prevail.

Christians remained embarrassingly silent while public expressions of their faith continued to be chipped away by the Courts; aided and abetting by obliging Presidents (particularly our last). An “open-door” policy was extended to groups like “Freedom from Religion Foundation” and “American United for Separation of Church and State,” They were able to identify even the most minor of “affronts.”

On the other side, groups like Alliance Defending Freedom, American Center for Law and Justice, Family Research Council and many others rose up to meet the atheists and agnostics in court. Thanks to a few victories, the “Wall” is showing signs of age and its original shaky foundation.

A significant chunk of the wall may soon to be dismantled as the Court rules on Trinity Lutheran v. Comer. The case was heard on Wednesday, April 19th and both audio and written transcripts of the session can be downloaded here.[7]

Questions from both liberal and conservative justices hinted that the court is ready to declare these so-called “Blaine Amendments” unconstitutional as in conflict with the 14th Amendment’s Equal Protection provision.

Both sides choose to frame the argument in First Amendment terms, either the Establishment Cause or Free Exercise Clause or, at times, both. It was not until 38 minutes into the discussion (page 39 of the transcript) that Justice Elena Kagan, finally framed the argument as what she called “a constitutional principle as strong as any…that there is.” She continued: “[W]hen we have a program of funding – and here we’re funding playground surfaces – that everybody is entitled to that funding,…whether or not they exercise a constitutional right (religion); in other words,…whether or not they are a religious institution doing religious things. As long as you’re using the money for playground services, you’re not disentitled from that program because you’re a religious institution doing religious things.” Yes, equal protection of the laws, that’s it. There is no entanglement with religion, there is no establishment of religion, but the church is definitely penalized for being a church.

(If you’ve never listened to or read Supreme Court oral arguments, I encourage you to do so. At times you will scratch your head and wonder what is the Justice asking? The poor litigant advocates!)

Blaine Amendments should never have been placed in 39 state Constitutions; they grew out of religious bigotry – anti-Catholic bigotry to be precise, and America’s Protestants should be embarrassed by them.  We should want to see them stricken as much as we struck, eventually, the last vestiges of slavery.

But what else can be done to chip away at the “Wall?” Join us on “We the People – the Constitution Matters on Friday, 28 April, 7-8am EDT (www.1180wfyl.com) as we finish up this discussion.

Suggested reading List:

“Original Intent,” 2000, by David Barton.

“Bring Down That Wall,” 2014, by Nicholas F. Papanicolaou.

“Backfired, A nation founded on religious tolerance no longer tolerates its founders religion,” 2012, by William J. Federer.

“The Separation of Church and State, Has America lost its moral compass?” 2001, by Stephen Strehle.

“The Assault on Religion,” 1986, Russel Kirk.

“The Separation Illusion, A Lawyer Examines the First Amendment,” 1977, by John Whitehead.

“The Separation of Church and State,” 2004, by Forrest Church.

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[1] Chief Justice William Rehnquist, Wallace v. Jaffree (1985) dissenting

[2] Associate Justice Byron Stewart, Engel v. Vitale (1962) dissenting

[3] John M’Creery’s Lessee v. Allender (1799)

[4] Runkel v. Winemuller (1799)

[5] The People v. Ruggles (1811)

[6] Vidal v. Girard’s Executors (1844)

[7] https://www.supremecourt.gov/oral_arguments/audio/2016/15-577

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 – Securing the Blessings

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Part of the Constitution’s goals, stated in the Preamble, is to “secure the Blessings of Liberty to ourselves and our Posterity.”   In 1776, General George Washington implored his officers and men to fight for “the blessings of Liberty”[1]  What are these “blessings,” how does the Constitution secure them, and who, exactly, is our “posterity?”

If asked to enumerate the “blessings of liberty,” I doubt any two Founding Fathers would have come up with precisely the same list, but these lists would have nevertheless had much in common.  Liberty and its blessings had been the topic of essays, correspondence, sermons and tracts for decades leading to the revolution.

Winning the war for independence had been a great first step, but the Founders soon found that more than a loose confederation of independent states was needed to secure this hard-fought-for liberty and to ensure the states themselves did not trample on the liberties of their own citizens.[2]  They hoped and prayed that with the Constitution they “got it right.”  Delaware delegate John Dickinson admonished them to keep the long view[3] and they did, yet they could only hope they had arrived at the right mix of law and liberty.

Unfortunately, the Preamble’s lofty goal has been imperiled by nearly a hundred years of neglect by the American citizenry, and purposeful manipulation of the document’s original constraints by Executive and Legislative branches alike, facilitated by the Judiciary.

Many of the “blessings of liberty” that the Founders enjoyed no longer exist, and as John Adams warned, might not be recoverable:  “A Constitution of Government once changed from Freedom, can never be restored. Liberty, once lost, is lost forever.”[4]

In this case, I think Adams was wrong, one of the few times I’ve been willing to say that.  But Adams wrote those words in 1775, prior to the Constitution and, most importantly, prior to the inclusion in that Constitution of its fifth article.  Although there certainly are other means of restoring lost liberty – even normal statute law can be useful – Article V provides “We the People” a means of restoring lost liberty in a way that is far more secure from future usurpation.

But before we can secure the blessings of liberty, to either ourselves or our posterity, it behooves us to know what these blessings comprise and how best to secure them.

Webster’s 1828 dictionary breaks the term into its main component parts: natural liberty, civil liberty, political liberty, and religious liberty.  To this I would add economic liberty.  The Preamble certainly does not constrain itself to any one or any combination of these and we should not either; liberty in every sense should be pursued.  A complete discussion of the liberties in each category is well beyond the scope of this short essay.  And it is easy to discover those rights/liberties secured by the Constitution by perusing the first eight amendments  as well as some provisions of Article 4.  But don’t overlook Amendments 9, 13-15 and a few others.

Conversely, complete liberty, the total lack of restraint in any dimension of life, was not the Founder s’ (or the Constitution’s) goal; nor should it be ours.  Such a state would necessarily lead to anarchy and, ironically, the loss of that same liberty.

No, “ordered liberty” would be the better term: maximum liberty of action and thought that does not infringe on the liberty of others.  To borrow from Jefferson: the ability to pursue individual happiness, cognizant of, and respectful of the similar pursuits of others.  Fisher Ames put it this way: “Liberty is not to be enjoyed, indeed it cannot exist, without the habits of just subordination; it consists, not so much in removing all restraint from the orderly, as in imposing it on the violent.”[5]  To Founder (and Framer) George Mason, the “blessings of liberty” could not be preserved to any people “but by a firm adherence to justice, moderation, temperance, frugality, and virtue, and by frequent recurrence to fundamental principles.”[6]

One truth the Founders would all agree upon is that government is necessary to achieve ordered liberty, but that “limited government” should be the watchword.  Government sufficient – again borrowing from Jefferson – to “secure our rights,” and not much else.  In this, we Americans have reached an amazingly horrible condition: we have permitted government to grow beyond reasonable bounds and intrude upon our “ordered liberty,” almost ad nauseam.  We have permitted our government to accumulate such debt (remember economic liberty?) and make such unrealistic promises that the “blessings of liberty,” indeed the survival of posterity itself, is imperiled.  At least some of this has been due to our abandonment of the first principle of government: self-government.  Americans today have no idea what is meant by the term, and unless they have taken certain Constitution seminars which teach it, they never will.

Some will no doubt be surprised at charges of liberty lost; America is still the freest country in the world – right?  Just try expounding conservative views on some college campuses, just try digging a pond in your own backyard (even with all required state permits in hand), just try growing corn next door to a farm using Monsanto-supplied GMO seed, just try holding up an “animal rights” sign at a rodeo, just try disparaging Woodsy the Owl or his slogan “Give a hoot, don’t pollute, ” just try a whole host of things that Americans of fifty years ago could do, and see whether your federal government objects.  The 1787 Constitution described four federal crimes, today there are more than 4500, nearly every one a symbol of liberty lost.

I should be quick to point out that our loss of liberty has not been the fault of the Constitution itself.  Although the Framers can be rightfully faulted for their use of overly ambiguous language, it is we, through our elected officials and our courts, who have chosen to take unwarranted advantage of that language to expand government beyond reasonable bounds.  The legacy we are currently handing to posterity is not one worthy of pride.  Yes, the republic survives, and has survived longer that those of antiquity; but, in my view, it hangs by a thread.  Liberty, in nearly every dimension, has been greatly reduced, and we are handing this imperiled republic to a “posterity” ill-equipped to “keep” it.

“Let the American youth never forget, that they possess a noble inheritance, bought by the toils, and sufferings, and blood of their ancestors; and capacity, if wisely improved, and faithfully guarded, of transmitting to their latest posterity all the substantial blessings of life, the peaceful enjoyment of liberty, property, religion, and independence,” wrote the eminent jurist Joseph Story.[7]

Do you suppose today’s American youth, the most immediate inheritors of the “blessings of liberty,” understand the sacrifices that procured their liberty, or what remains of it?    Even while Standards of Learning (SOLs) insist they must receive this knowledge, polls consistently show they do not, or, if they do, that it such knowledge is retained not a millisecond longer than necessary to pass the appropriate tests.  And these young people, who cannot name their own congressional representatives, are now or will soon be voting.  One young 20 year-old I interviewed this last Bill of Rights Day (you do know when that is, don’t you?) told me she always votes: “for whoever (sic) my Dad tells me to.”  Lovely.

There are, however, a few rays of sunshine in this otherwise gloomy picture.

The “We the People Contest” sponsored by the Center for Civic Education has been sponsoring annual debates of Constitutional questions for 29 years.  Middle and Senior High-based teams compete in local, regional and, finally, national competitions, judged by Constitutional scholars, professors and retired judges.

In 2003, former Congressional staffer Cathy Travis re-wrote the Constitution in language that today’s youth would better understand.  Now if they will only read it.

And then there’s Constituting America (CA).

Constituting America, formed a mere five years ago by actress Janine Turner and activist Cathy Gillespie, takes a unique approach: mix kids and media to generate excitement about the Constitution.  CA sponsors an annual contest series entitled “We the Future”[8]  that awards kids for producing the best essay, short film, speech, Public Service Announcement (PSA), original art, etc., focused on some Constitutional theme; there’s even a contest to come up with the best marketing plan to promote the “We The Future” contest itself.  Having separate categories for Elementary, Middle School, High School, College, Law/Grad School and Adults levels the playing field.  Winners are feted with all-expense paid trips to Nashville, Hollywood, Washington, D.C., etc., depending on their category.  There they meet musicians, actors, celebrities and/or politicians — people who have demonstrated success in the arts and/or politics. For instance, last year’s music winners got to jam with Vince Gill in his home studio near Nashville, while video winners got to meet actor Gary Sinise and receive a VIP tour of Disneyland Studios. If you have a child or grandchild you would like to see get excited about America’s unique governing document, download and send them a contest application (what’s keeping you from submitting an adult essay?)

Janine’s daughter, Juliette Turner, has become a “rock star” in her own right.  Named CA’s National Youth Director, Juliette is the youngest person to have ever addressed the Mount Vernon Ladies Association (a video of the address is on CA’s webpage), and a best-selling author.  Juliette turned a series of essays she had written about various parts of the Constitution into the book: “Our Constitution Rocks,” published by Zondervan Publishing Company.  The book breaks down the sometimes archaic language of the Constitution in ways today’s kids will understand by asking (and answering) questions such as “Why Should I Care?” and “What’s (this part of the Constitution) Done for Me Lately?”

Seminars based on Juliette’s book are now becoming available in some areas.

If Ronald Reagan was right when he said:  “Freedom is never more than one generation away from extinction,” then Constituting America, and a few other organizations are determined to see that the flame of freedom never grows dim.

They have their work cut out for them.  The next generation is being handed a weakened Constitution, a fiscal time bomb, and an “instruction manual” with many of the pages missing.

“Those who expect to reap the blessings of freedom, must, like men, undergo the fatigues of supporting it,” wrote Thomas Paine.[9]  The present generation took the lazy man’s approach.  Sending improperly vetted representatives to Congress, not monitoring them closely enough, and not studying the Constitution well enough to know when its constraints were being violated.  Whether the “blessings of liberty” remain secure for our posterity – well, I think the jury’s still out.

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[1] General Orders, August 23, 1776

[2] See “Vices of the Political System of the United States,” by James Madison.

[3] “We are not forming plans for a day, month, year or age, but for an eternity.”

[4] in a July 7, 1775 letter to Abigail Adams

[5] Essay on Equality, 1801

[6] Virginia Declaration of Rights, Section XV [1776]

[7] Commentaries on the Constitution, 1833

[8] Previously called “We the People 9/17”

[9] The American Crisis, Sept. 12, 1777

The Constitution’s Week in Review – 1 Apr 2016

In a startling announcement yesterday at the White House, President Barack Obama indicated he would step down from the office of President, effective  June 1, 2016.  Citing undisclosed “personal reasons,” the two-term President declared he and his family would re-locate to the Island of Maui and “kick back for awhile.”

Sources close to the President, who wished to remain anonymous, indicated that the growing controversy over Ted Cruz’ status as a Natural Born Citizen has renewed interest in whether the current President qualifies, leading some Congressmen to add this to a growing list of Articles of Impeachment.

In accordance with Article 2 of the Constitution, Vice-President Joe Biden will assume the office of President on that date and, in accordance with the 25th Amendment, is expected to nominate a replacement for the position of Vice President. (You started to believe it, right?)

Article 2. Natural Born Citizen Clause (to be continued until it is definitively settled).

Another week, another NBC suit.[1]  This time a New York appeals court upheld a lower court’s dismissal of a suit seeking to remove Republican presidential candidate Ted Cruz from the state’s primary ballot due to his birth status.  Once again, there was no ruling on the merits of the case; the lower court dismissal was on a technicality (plaintiffs missed the deadline for filing their objection by nearly three weeks!).  The appeals court said: “Yep, shore enough missed it, by jimminy!” (or the legal equivalent).  Other suits remain pending in other states.
Article 3. Replacing Scalia

As more and more analysts find time to sift through each of Merrick Garland’s previous opinions, more conclusions come to the fore.  This one[2] concludes that “In Criminal Rulings, Garland Has Usually Sided With Law Enforcement.”  That should all make us sleep better at night.

Shortly after the death of Justice Scalia, I discussed the potential impact of his vacancy, including the potential for 4-4 tie votes.  Well, it happened this week.[3]  We can be nearly certain that Scalia would have provided the fifth vote necessary to overturn the appeals court ruling that California teachers must still pay fees to their union even when those funds are then used to support candidates and political issues with which some teachers disagree.[4]

A 4-4 tie leaves intact the lower court decision and establishes no precedent for the rest of the country.  Chief Justice Roberts could have delayed the opinion until such time as Scalia’s seat is filled and had the case re-argued, but decided against that for some reason.

Meanwhile in the States:

Fifth Amendment.  “Progress” trundles on.  What city, including North Saint Louis,[5] wouldn’t like to improve its appearance and increase its tax revenue?  The opportunity for federal dollars makes the idea even more alluring.  Too bad some homeowners have the misfortune of living in the way of that “progress.”

The National Geospatial-Intelligence Agency is apparently thinking of moving it headquarters, and North St. Louis wants to make them a deal it can’t refuse.  Since no decision has been made to actually move the headquarters, the city’s eminent domain action seems a bit pre-mature.  And then there’s the issue of low-balling the value of the homes.  Thanks to the Supreme Court’s Kelo v. City of New London, cities require very little justification for the taking of private property.

Eighth Amendment.  The Eighth Amendment to the US Constitution prohibits excessive bail (among other protections). What’s excessive?  There have been many, many court decisions[6] over what is excessive, but each case brings particular circumstances.  Two Texas mothers driving through Louisiana had the misfortune of being charged with a crime they say they didn’t commit: eating two hot dogs, milkshakes and an icee at a convenience store without paying.  They were certain surveillance video would clear them but the officer who arrested them didn’t want to take the time to investigate, so he took them into custody.  When they couldn’t initially make bail (relatives were 400 miles away) the women had to spent five days in jail instead.  Reading this account one wonders what happened to common sense in this country.

Upcoming Events.

Constitution Seminar for Youth – 9 April.  Don’t you want your kids (or grandkids) to understand their Constitution better?  Here’s an opportunity.  On 9 April I’ll teach from  Juliette Turner’s “Our Constitution Rocks” at the Foundation for American Christian Education classroom in Chesapeake, VA.  There is a nominal $5 charge for students and parents are encouraged to attend as well.  Register through email to gary@constitutionleadership.org

Constitution Seminar – 16 April.  On Saturday, 16 April, I will be teaching the Constitution at Pottstown, PA, co-sponsored by WFYL Radio.  Valley Forge, PA was CLI’s inaugural 1-day seminar, the success of which led me to adopt the format as my standard.  $30 per person until 13 April then tuition goes to $40.  If you live in the Philadelphia area, please come join us.  Register for this event via email: gary@constitutionleadership.org.

Constitution Seminar – 21 May.  Southside Hampton Roads residents can learn what their Constitution says and means by coming to a CLI Saturday Seminar on 21 May sponsored by Concerned Veterans for America.  There will be no charge for this event and participants will receive a 150-page Student workbook, free pocket Constitution, and lunch.  There is no better deal around.  Location TBD.

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[1] http://www.newsmax.com/Headline/cruz-canadian-birth-suit/2016/03/24/id/720759/

[2] http://mobile.nytimes.com/2016/03/23/us/politics/merrick-garland-supreme-court-nominee.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=second-column-region&region=top-news&WT.nav=top-news&_r=3&referer=

[3] http://us4.campaign-archive1.com/?u=f6eb78f457b7b82887b643445&id=8526f4c9bf&e=5fdac00100

[4] The teachers can opt out from paying these fees but must re-initiate the opt-out each year.

[5] http://dailysignal.com/2016/03/18/st-louis-residents-are-battling-the-city-to-keep-their-homes/?utm_source=heritagefoundation&utm_medium=email&utm_campaign=saturday&mkt_tok=3RkMMJWWfF9wsRonu6rPd%2B%2FhmjTEU5z16uwtWqS2gIkz2EFye%2BLIHETpodcMTcRhNL3YDBceEJhqyQJxPr3NLtQN191pRhLiDH3rhbLOWYxceLV9yOhlovn9jDc%3D

[6] https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases_involving_constitutional_criminal_procedure#Eighth_Amendment.27s_Excessive_Bail_Clause

Constitutional Corner – Dismantling Leviathan

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In the Bible, the word “Leviathan,” a transliteration of the Hebrew word, livyathan, meaning “twisted,” “coiled,” is used to describe a powerful sea creature.[1]  Thomas Hobbes adopted the word for the title of his 1651 book, written near the end of the English Civil War, to describe a great commonwealth to which each citizen’s allegiance was total and complete.[2]  Hobbes’ commonwealth was ruled by an absolute sovereign, responsible for both protecting the commonwealth from external threats and ensuring internal civil peace and security.  For Hobbes, the need for Leviathan was clear: in the alternative, the state of nature, life is so horrible (“nasty, brutish, and short”), that human beings would naturally seek security in government, and the best way to achieve security was to construct “Leviathan” through social contract.

Today the word has come to describe an all-powerful central government which expects our total subservience, a government of immense size and near limitless power; in short: the U.S. Government.

But the good ship “U.S.S. Leviathan” now threatens its own survival and with it, the survival of its citizens.  Our official national debt, currently just north of $18 trillion, has nearly doubled since Barack Obama entered the White House.  The President says “[w]e don’t have an immediate crisis in terms of debt,”[3] but has not taken the time to explain why that declaration should comfort us.  Still, for all but two of the last eight years Republicans were in control of Congress and were thus responsible for the appropriation of every dime of the citizen’s dollars.  According to the Congressional Budget Office, our debt is expected to climb to almost $27.3 trillion within the next 10 years.[4]  Despite considerable rhetoric over this problem, there is no plan to curtail what amounts to $100 million in new debt every hour of every day.  Financial experts agree, it is not a matter of if, but when the economy crashes; the social upheaval will be extreme, to say the least.[5]

Our unofficial debt, consisting of unfunded promises we have made to ourselves, is well north of $128 Trillion, seven times our current GDP.  Put another way, we have promised to pay our citizens (and those illegal immigrants posing as citizens) seven times the value of everything produced in America in a year. In short: the path we are on is unsustainable.

I hope this does not come as a surprise to anyone; authors have been warning of this for a decade or more.  A sampling of book titles from my library:

William Bonner & Addison Wiggin: The New Empire of Debt, 2006

Charles H. Coppes: America’s Financial Reckoning Day, 2007.

Martin L. Gross: National Suicide, 2009.

Glenn Beck: Broke, 2010.

John Samples: The Struggle to Limit Government, 2010.

Another of my books, The Day America Crashed,[6] describes the stock market crash of 1929.  There will soon be another book by this title — it will not be about 1929.

So, do we sit idly by and wait for the inevitable economic collapse or, like the heroin addict who “sees the light,” do we voluntarily enter a “treatment program?”  I vote for the later simply because I don’t want my loved ones to have to go through the former.

But before we go ripping out major chunks of our federal government and sending thousands of employees packing, it would serve us well to understand what led us to this point, and no, it was not simply that Congress spent more than it received in revenue; that’s the economic answer but not the more important constitutional one.  In my opinion, what got us in this mess were three things: one, we lost sight of the purpose of government; two,  we became disengaged from our government and the Constitution which guides it; and three, we allowed the Supreme Court to hand Congress the equivalent of an “American Express™ Black Card.”

Jefferson made clear in his Declaration that the purpose of government is to make secure our rights, that was it, in his view.  And for much of our first 150 years government was indeed limited to that pretty much the role.  Beginning in the 1930s, however, under President Franklin D. Roosevelt we began to look to government to provide our needs in addition to securing our rights.  There was one big problem: the Constitution gave the federal government neither the responsibility nor the power to provide the needs of individual Americans.  Answer: “fix” the Constitution.

Throughout much of the Great Depression, the Supreme Court routinely struck down FDR’s New Deal legislation — until Roosevelt threatened the Court with liberal augmentation;[7] — then, voila! What had been unconstitutional was now exactly the opposite.  Although 1937’s Helvering v. Davis[8] opinion decided that the wealth redistribution program we call Social Security was a valid use of Congress’s spending power under the General Welfare Clause, the previous year’s United States v. Butler[9] opened the door to such an interpretation.  Once these decisions gave Congress the authority to interpret “General Welfare” any way Congress wanted, it was only a matter of time before they would find a compelling reason to study the effects of Swedish massage on rabbits,[10] and worse.

How many of our 325 Million citizens know that Congress was given the power to spend money on anything its little heart desired?  A handful perhaps; only those who follow the Court or study the Constitution understand this important change to our Supreme Law of the Land.  The average American is completely oblivious; most citizens remain disconnected from their government, the Constitution and have no idea what the Court has turned the Constitution into – and they could care less.

It was not always this way.  In the 1830s Alexis De Tocqueville found a vastly different American, one “taught…the history of [their] country, and the leading features of its Constitution.  … [I]t is extremely rare to find a man imperfectly acquainted with all these things, and a person wholly ignorant of them is sort of a phenomenon.”  Now it is “sort of a phenomenon” to find anyone who can name the three branches of government.

So, back to 1937:  Apparently, a Supreme Court decision makes it right to spend money with abandon?  Legal perhaps, but not necessarily right.  If you believe the Supreme Court always gets it right I would suggest you read Dred Scott and Plessy v. Ferguson, for starters.  Bottomline: the Court has often gotten it wrong.  On occasion, they have recognized as much and self-corrected (even if it took 52 years, as in Plessy).  There is no sign the Court sees anything wrong with Helvering or Butler.

We could send to Washington a whole bunch of new Congressmen and women who promise to return government to constitutional limits, if we could only find such people.

We could set out to educate the American people about what has happened to their Constitution – but they have other things more pressing on their schedules.

So, how do we begin to “dismantle Leviathan?”

Note: America has many ills, some social, some economic, some governmental.  We desperately need a spiritual revival in this country, for instance.  I’ll leave revival to others for the moment.  This essay will focus on those remedies which are governmental.

“When eating an elephant take one bite at a time.”[11]

Let’s re-phrase the question that lies at the heart of the preceding statement: “How do you safely dismantle a federal government whose size, complexity, cost and all-too-frequent ineptitude threatens the survival of the nation itself?  In other words, how do we return to the federal government of limited and enumerated powers designed by the Framers without precipitating the very collapse that is inevitable if we do nothing?  It’s a classic case of “damned (possibly) if we do, damned (almost certainly) if we don’t.”

I’m not going to sit here and suggest there is an easy fix, or that the way ahead will not involve some discomfort, even great pain; but we simply must do this for the sake of the greatest experiment in self-government the world has ever known.  Otherwise, we will vividly demonstrate to the rest of the world that the Founders’ experiment was a complete failure.

In short, we must put the federal government on a diet[12] and even consider radical surgery.  As with human obesity, there are diets/operations that will kill you and those that will help.  We must be wise enough to discern the difference.

But here’s how I would proceed:

Step 1. Phase out Social Security and Medicare over the next 10 years.

This is the 800-pound gorilla in the room, the “closest alligator to the canoe.” But before you go look up my phone number to berate me for my abject inhumanity, please take ten deep breaths and remember that America got along just fine without either program for 148 years and 176 years respectively, so clearly we could do so again.  And, truth in lending, as a soon-to-be 70-year old (in June), I’m receiving both Social Security and Medicare benefits myself, so I have some skin in this game – and something to loose with my proposal.  But neither program comports with the Constitution as originally conceived.[13]

I’m certainly not the first to recommend this,[14] others, have recommended it for some time.  Most suggest phasing it out over much longer periods.  What if we don’t have that much time?   Social Security and Medicare are only considered touchstones today because they have become so ingrained in our social structure that we can no longer conceive of life without them.  During our wage-earning years we know both programs will be there and because of this we don’t save properly; only 1 in 3 Americans has anything saved for retirement.[15] Instead, we live “la dolce vita” and try to keep up with the Joneses.

Restructuring these programs while retaining them as government programs, fixes nothing, in my view.  To keep them economically viable you would have to either delay the onset of benefits appreciably or reduce benefits to the point of meaninglessness.  Eliminate them, as I suggest, and take a bold step back towards constitutional government and self-reliance.

This would also force us to reexamine the principle of family.  Prior to Social Security, seniors unable to financially care for themselves were traditionally brought under the protection of their extended families.  Eliminating Social Security again would serve to strengthen our nation’s social fabric.  The Bible commands us to “honor your mother and father.”  Here’s one way to do so.

If we as a people just can’t stand to get rid of these programs, they must be privatized.  Their present method of funding is wasteful by a factor of 12.  To see how these programs can be retained, I recommend “Hey, Where’s the Other Hand? How America Can Use God’s Economic Principles to Immediately Solve our Unsustainable Fiscal Path,” by Davis Jackson.

Step 2.  Phase out all welfare programs and farm subsidy programs over 5 years

Wow, now I’m certain to get phone calls, and perhaps even worse.  I’ll start checking under my truck before I take my first trip in the morning.  But once again we must confront unconstitutional government programs, at least from the Framers point of view.  The previously mentioned Helvering case provided Congress the ability to spend money on anything they wanted, anything that served the “general welfare,” as Congress defined it, the Court said.  And so they do: doling out the tax-payers money to those who come begging, literally, at Congress’ door.  Altogether, there are roughly 80 different “welfare” programs, and they comprise the single largest item in the federal budget — larger than even Medicare, Social Security, or national defense.”[16]

The government should never have gotten into the business of welfare.   “In practice, welfare must be family-based.  Primarily, the family meets the most basic welfare needs of society, and the church serves as a secondary welfare ministry.”[17]  As late as 1887, President Grover Cleveland vetoed a $10,000 relief bill for farmers in Texas[18] with the explanation that “I can find no warrant for such an appropriation in the Constitution; and I do not believe that the power and duty of the General Government ought to be extended to the relief of individual suffering which is in no manner properly related to the public service or benefit.”  Where is President Cleveland today?

Step 3.  Eliminate all other non-constitutional federal programs over 2 years.

Read Article 1, Section 8.  Those are the legitimate powers of Congress (with a handful of exceptions found outside that section).  If it is not found in the Constitution, and we want Congress to have the power for such a task, we should amend the Constitution; instead we take the lazy way out and let the Supreme Court rewrite the Constitution through their opinion.  We should eliminate all federal programs and agencies whose existence cannot be found firmly rooted in the Constitution.  Two years gives their employees ample time to find other employment.  Which agencies?  The list is long, but I would start with the Department of Education (see next item).

Step  4.  Get the federal government out of public education.

This is not an economic step — it won’t save much money[19] — but it is just as necessary, in my view.  It goes to the heart of how we ended up in this mess: our public education system failed us.  It not only stopped teaching first principles, including economic principles, it actually started glorifying socialism, to the point where kids today see nothing wrong with demanding a free college education and other perks.  They have no concept of how an economy works.

I think this deficiency can be fixed quickly by returning public education to complete local control and getting the federal government out of the education “business” completely.

There are a few other things we should also consider, like repealing the 16th and 17th Amendments, replacing the current tax system with a flat tax and reducing the corporate tax to the international norm.  This would help unleash the power of the American entrepreneur and businessman.  I’ve written previously on this so I won’t belabor the point.

It comes down to this: as Clint Eastwood says in Dirty Harry, “Do you feel lucky?”  How many more years can we keep racking up more debt before those countries which have been loaning us money say “Enough’s enough?”  How long would you like the Federal Reserve to continue to diminish the value of your present dollars by printing more to fund the remainder of the debt?

There will be a crash.  And out of it will likely come demands for an entirely new Constitution, one not as “antiquated,” one more in fitting for a “modern” society.  Those demands will be met (because our old Constitution will have clearly “failed” us) and then there will be no need to study the Founders and Framers any more.  I’ll be able to discard a lot of books from my library.

We need revival in this land, both spiritually and constitutionally.  You can either be part of the problem or the solution; which will it be?

We discussed this issue last week on WFYL Radio.  If you want to learn the views of my two co-commentators, please download or listen to the podcast, available here.[20]

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

[1] See Isaiah 27:1, Job 41:1, and others.

[2] http://www.gutenberg.org/files/3207/3207-h/3207-h.htm

[3] http://abcnews.go.com/blogs/politics/2013/03/president-obama-there-is-no-debt-crisis/

[4] http://www.cato.org/publications/commentary/medicare-social-security-tabs-coming-due

[5] http://www.silverdoctors.com/gold/gold-news/what-america-will-look-like-following-the-collapse-five-things-you-can-count-on-happening/

[6] Tom Shachtman, The Day America Crashed, G.P.Putnam, 1979.

[7] http://www.history.com/this-day-in-history/roosevelt-announces-court-packing-plan

[8] https://en.wikipedia.org/wiki/Helvering_v._Davis

[9] https://en.wikipedia.org/wiki/United_States_v._Butler

[10] http://www.washingtontimes.com/news/2014/oct/22/government-waste-includes-swedish-massages-rabbits/

[11] General Creighton Williams Abrams.

[12] I don’t wish to ignore the state governments; many of them have similar problems and need similar solutions.

[13] For a complete explanation of how Social Security is patently unconstitutional read “The Dirty Dozen, How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom,” by Robert A. Levy & William Mellor.

[14] http://freedomoutpost.com/plan-phase-abolish-social-security/

[15] http://losangeles.cbslocal.com/2016/03/21/not-as-many-americans-saving-up-for-retirement-study-finds/

[16] http://www.heritage.org/research/reports/2014/12/federal-spending-by-the-numbers-2014

[17] Joel McDurmon, Restoring America One County at a Time,American Vision, Inc. 2012.

[18] http://www.independent.org/publications/article.asp?id=1329

[19] The Department of Education’s budget request for 2017 is only $69.4 billion

[20] http://www.1180wfyl.com/podcasts.html

Constitutional Corner – The Founders’ Worldview

Last week’s essay dealt with corruption in politics and, despite the historic and continued presence of such corruption, evidence that not everyone in the current Congress has fallen prey to this corruption. The evidence, for me at least, came from discussions we had during last month’s WallBuilders Pastors’ Briefing with certain members of Congress.

As I reported last week, the percentage of Christians in Congress is growing; the Congressional Prayer Caucus, one of the largest, is co-chaired by Senator Jim Lankford (R-OK) and Representative Randy Forbes (R-VA); and the Bi-Partisan Congressional Pro-Life Caucus is purported to be the largest in Congress. Forty of sixty new freshman legislators were reported to be committed Christians.

Last Friday morning, we discussed the essay on WFYL radio’s weekly show: “We The People…The Constitution Matters” with host Michael Levins and Constitution teacher Philip Duffy (our other regular panelists were unavailable).

During that discussion I brought up the statistic, also mentioned in the essay, that 92% of the current members of Congress identify themselves as Christian, up from 90% in the 113th Congress. Nationwide, however, only 78.4% of Americans call themselves Christian. So why do we see a significantly larger percentage of Christians in Congress? Could it be that as Americans we still recognize the need for our elected representatives to have a “moral anchor?” We expect our elected officials to be men and women of honor and integrity, as did the Founders, and we associate these values with religious faith.

When I brought up the 92% Christian figure during our discussion, host Mike Levins expressed surprise, saying something to the effect that “How could there be so many Christians in Congress and yet there seems to be such support for abortion?” How indeed? The present estimate is 56 Million babies aborted since 1973’s Roe v. Wade decision opened the floodgates – nearly 3700 abortions each and every day. Why has a Congress which identifies as 92% Christian not done anything to place limits on this killing of innocent life?

The obvious answer is that calling oneself a Christian does not make it so (see Matthew 7:21-23). Walking through the doors of a Christian church does not make one a Christian any more than walking into a barbershop makes one a barber. Second, even Christians who have confessed faith in Christ do not necessarily see the world through a Biblical “lens.”   A profession of faith in Christ must be followed by a period of discipleship and Bible study whereby a young Christian learns what the Bible has to say, and thus what God expects, about other aspects of life beyond mere salvation. If that discipleship does not take place, you have what Wallbuilders founder David Barton calls “saved heathens” — persons whose Christian faith goes no deeper than their initial salvation experience. We were told in the Pastors’ Conference that there definitely are some in Congress (we weren’t told who) whose profession of faith in Christ does not seem reflected in their voting record. Some will even confess, we were told, that they say they purposefully keep their “religious life” separate from their “political life.” Such a “City of God – City of Man” view, first popularized by Saint Augustine (A.D. 354–430), is actually quite common and accounts for some of the political schizophrenia we see today.

We call a comprehensive view of the world around us a “worldview.” Like navels, everyone has one. They result, primarily, from our formal education, but also our later life experiences. Our worldview is constantly changing as we are exposed to new information.

While many view the Bible as merely a book of morality and religion, it is much, much more. The Bible contains political, economic, educational and social as well as religious guidance. Indeed, the Bible, since it is a product of the Author of Life, has something to say about nearly every aspect of life, and someone whose view of life comports with that of the Bible has what we commonly call a “Biblical worldview.”

The Founders held a Biblical worldview primarily because the Bible played such a central role in their primary, secondary and even college education and because it continued to play a central role in the public life of the day. That doesn’t mean they all agreed on every question of law, government or society (to name just three categories); they in fact held quite different views on some questions. But they definitely looked to the Bible for guidance – and found it! Evidence of their worldview can clearly be found imbedded in the Declaration of Independence and other founding documents. In the Constitution, the Presentment Clause and Subscription Clauses reflect a Biblical worldview and there are many other, less obvious examples (such as the Treason Clause). As I tell my Constitution Seminar students: if you want to truly understand our founding documents you should first try to understand the Founders’ worldview.

Speaking of which, on Monday, May 18th, I’ll be giving a presentation at the Foundation for American Christian Education, 4225 Portsmouth Blvd #102, Chesapeake, VA entitled: “Do You Have a Founders’ Worldview?” The presentation (from 6:30-8:30pm EDT) will be livestreamed and thus available to those outside the local area. There is a nominal charge to attend. You can sign up by going to: http://www.face.net/event/FoundersWorldview. In the presentation I will explore how one’s worldview can be measured or assessed and, if we had the Founders with us today, what their worldview might look like. It promises to be an interesting presentation.

One reason we have a national government today of such immense size, cost and intrusiveness, is because we have lost sight of the Founders’ view of law and government. We have replaced their view of a government of limited and carefully enumerated powers with one which sees the national government as the solution to each and every problem we face. We have allowed, even encouraged the national government to take over responsibilities that rightfully belong to state government, local government, church government, family government and even self-government. Even the eminent “constitutional scholar” Eleanor Roosevelt was able to discern: “….our system is founded on self-government, which is untenable if the individuals who make up the system are unable to govern themselves.”

There are many patriots who yearn for a return to the Founders’ view of law and government, as expressed in the original Constitution. I contend that a return to such a condition of government must be accompanied by a diligent attempt to understand as well: The Founders’ Worldview.

The WFYL “Constitution Matters” panel will be discussing this issue Friday morning, 7-8am EDT. You can listen to the live broadcast via www.1180wfyl.com. Click on “Listen Live.”

Gary Porter is Executive Director of the Constitution Leadership Initiative, Inc., a project to inform Americans about the Founders’ view of their Constitution. Comments on this essay and ideas for future essays should be sent to constitutionlead@gmail.com.

Constitution Corner – Pastors and Politics

In 1954, Senator Lyndon B. Johnson found himself being opposed for re-election by certain pastors in his home state of Texas.  Johnson got his revenge by having inserted into the IRS Code what became known as The Johnson Amendment.  The amendment inserted into Section 501(c)(3) the words that entities who are exempt from federal income tax cannot:

“Participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of – or in opposition to – any candidate for public office.”

 To violate this provision puts at risk the organization’s tax-exempt status, and groups such as Americans United for Separation of Church and State and Freedom From Religion Foundation now fiercely look for violations.  Since a church’s tax-exempt status and thus the ability of its contributors to deduct their donations on their tax return is viewed as so precious, few pastors are willing to say anything that touches political topics.  It was not always this way.

During the colonial period, especially the 20-40 years leading up to independence, pastors routinely delivered “political” messages from their pulpits.  A sampling:  Rev. Johathan Mayhew (1750): “Unlimited Submission and Non-Resistance to the Higher Powers (which actually argues in favor of the opposite);” Rev. Samuel Cooke (1770): “The True Principles of Civil Government;” Rev. William Gordon (1774): “The Christian Duty of Resistance to Tyrants;”  Rev. Samuel Langdon (1775): “The Right of Self-Government is From God;”  Rev. Samuel West (1776): “The True Principles of Government;” and Rev. Phillips Payson (1778): “The True Spirit of Liberty.”

These and similar sermons can be found in: Political Sermons of the American Founding Era: 1730-1805.

To be sure, these sermons did not argue for or against the election of certain individuals; but many spoke to the traits that a candidate worthy of election should embody.  They ensured that the congregations which heard them (or those individuals who read the inevitable printed version) understood the biblical view of law and government, and the imperative of resistance to tyranny.  Library of Congress historian Catherine Millard wrote: “Independence was boldly preached from Scripture throughout the thirteen original States during the American Revolution.”

Part of the reticence of today’s pastors comes from lack of understand the actual IRS guidelines.  The twenty-seven words of the Johnson Amendment have been “interpreted” by the IRS to mean:

Prohibited activities:

  •  Contributing financially to political campaigns.
  • Making public statements of position (verbal and written) in favor of or in opposition to candidates for office.
  • Inviting only one candidate in a political campaign to address the congregation.
  • Distributing voters guides containing questions demonstrating a bias on certain issues.
  • Endorsing certain candidates.
  • Campaign activities by employees within the context of their employment.
  • Failing to “disavow” the campaign activities of persons operating under “apparent authorization” from the church.
  • Engaging in fund raising on behalf of a candidate.
  • Newspaper ads urging voters to vote for or against a candidate.
  • Posting on church web sites information either supporting or opposing candidates for public office.
  • Posting on church web sites links to candidate-related material, if the facts and circumstances indicate that one or more candidates are being supported or opposed.

Permitted activities (according to the IRS):

  •  Providing a forum for all candidates to address the church.
  • Public comments made by ministers and other church employees in connection with political campaigns if not made at church facilities or in church publications, and if accompanied by a statement that the comments are strictly personal and not intended to represent the church.
  • Inviting all candidates for a political office to address the congregation.
  • Providing an opportunity for a candidate to speak in a non-candidate capacity.
  • Distributing a compilation of voting records of all members of Congress on major legislative issues involving a wide range of subjects.
  • Neutral voter registration drives.

As you can see, there is wide latitude here for pastors to act and speak “politically.”  But aren’t any restrictions at all on ministers an infringement of their First Amendment rights?  What happened to that “Wall of Separation” thing?  Secularists don’t want government to be influenced in any way by religion, but they certainly don’t mind telling pastors what they can and cannot do.  Yes, pastors can be influential, but I suspect Miley Cyrus influences more people in a single concert than some pastors do in their lifetime.

The “Speak Up” movement views the restrictions as decidedly unconstitutional and urges pastors around the country to purposefully violate the guidelines as an act of defiance.

Atheists, of course, become apoplectic over this.  They recently sued the IRS, arguing that a lack of specific procedures kept the IRS from enforcing the guidelines.  The suit was dropped when the IRS promised to become more aggressive.

Even if you accept the IRS prohibitions as valid, there is still much pastors can do to educate and energize their congregations, to encourage them to engage in the political process.  To what end?  To help preserve a culture that was, at one time, thoroughly Christian in character; to resist cultural trends that are demonstrably un-Christian.  As former Attorney General Ed Meese put it: “Pastors can lead the way in motivating the faithful to wise stewardship of their citizenship responsibilities.”

But what of a related issue: pastors themselves in politics.

Early Virginia law (as well as other states) actually prohibited clergy from holding public office, a prohibition that was soon repealed.  Pastors immediately began running for office and demonstrating that they were not interested in turning the state into a theocracy.

As late as 1978, the U.S. Supreme Court acted (in McDaniel v. Paty) to reverse the judgment of the Supreme Court of Tennessee and strike down Tennessee’s remaining statute barring clergy from elected office (in this case being a delegate to a state constitutional convention).

Today there is a national effort to get even more clergy into elected offices at all levels.  Evangelical activist David Lane, leader of The American Renewal Project, hopes to encourage 1,000 evangelical pastors to run for office in 2016.  This brings to mind Proverbs 29:2, which states “When the righteous are in authority, the people rejoice: but when the wicked beareth rule, the people mourn.”

In my view, pastors should carefully reevaluate the claimed benefits of tax-exempt status for their church.  Christians should as well re-evaluate whether tax-deductibility should be the determining factor in deciding whether to tithe or even contribute to their church.  In my view, without the unnecessary  encumbrance and entanglement of 501(c)(3) incorporation, pastors would be more free to preach with the liberty that God requires of them.

Gary Porter is Executive Director of the Constitution Leadership Initiative, Inc., a project to inform Americans about the Founder’s view of their Constitution.  This essay appeared on 29 January in the Fairfax Free Citizen and Yorktown Crier and was discussed on WFYL Radio on 30 January.

© 2015 Constitution Leadership Initiative, Inc.  Permission to reproduce for educational purposes is hereby provided.

Constitution Corner – Federalism and Nullification

Constitution Corner – Federalism and Nullification

Any solitary word that people can write whole books about, is obviously too complex to thoroughly discuss in a simple essay, and “federalism” is no exception.  Yet few Americans understand the term; ask ten average citizens what the word means and nine of them will have no idea what you’re talking about.

With all due respect to Justice Kennedy, who in 1995 wrote that “Federalism was our Nation’s own discovery,” the idea of federalism would appear to have been invented by none other than God himself.  In Exodus 18: 21-22, Moses is commanded by God to “select from all the people able men, such as fear God, men of truth, hating covetousness; and place such over them to be rulers of thousands, rulers of hundreds, rulers of fifties, and rulers of tens. … So it will be easier for you, for they will bear the burden with you.” The people of Israel had become too numerous to be ruled/governed by one man, and a shared system of governance had to be put in place, with the power necessary to make decisions and keep order distributed to each level.  Such is political federalism (as differentiated from covenantal federalism): the sharing of political power between vertically stratified governments.

In America, the Articles of Confederation, ratified in 1781, established shared power between the 13 states and the Confederation Congress; with the chief deficiency being the inadequate level of power bestowed upon the Congress.  This deficiency, combined with the economic turmoil which resulted from the revolutionary war, led to social and political unrest and localized insurrection – Shay’s Rebellion being the “poster-child” – and ultimately led to the convention of 1787.

The delegates at the 1787 convention understood that federalism would be necessary to govern so large a nation and they vigorously debated where/how to place the dividing line between state and federal responsibilities/powers.  They decided, because there really was no effective alternative, to leave the line largely undefined and thus subject to the ebb and flow of subsequent political “tug-of-war.”  As to the federal government, powers assigned to each of the three branches of government were enumerated but not precisely defined.  As to the states, while a few specific powers were denied in Article 4, those that remained in place were left undefined.  As stated in the 10th Amendment, all powers not delegated to the federal government were reserved to the states (the phrase “or to the people” was tacked on almost as an afterthought).

Over the years since, the philosophy of the Supreme Court has largely set the placement of the dividing line between state/federal powers.  Chief Justice John Marshall, an ardent nationalist, ensured that the line fell to the advantage of the federal government during his 34 years on the bench, leading President Thomas Jefferson to see the jurists “sappers and miners” of the Constitution.  Marshall was followed by Chief Justice Roger Taney who for the next 28 years pushed the dividing line back towards the states.  From 1937 to 1992 SCOTUS decisions pulled the line towards the federal government while from 1992 onwards it has haltingly inched slightly back towards the states.

Even while the federalism dividing line has moved back and forth over the years, the   concept of federalism ensures that there remains an unavoidable “tension” between state and federal powers, and cases which highlight this tension continue to arise.

For instance, there is no provision in Article 1 of the Constitution which vests Congress with power to mandate that individual Americans purchase health insurance; if such a power existed at all it would seem to rest with the states.  Yet Congress made this a key feature of The Patient Protection and Affordable Care Act (aka “Obamacare”).  When the challenge of the Act reached the Supreme Court, the federal government argued, in National Federation of Independent Business v. Sebelius, that the Commerce Clause provided the requisite power.  The Supreme Court disagreed (while at the same time affirming the government could effect the mandate under their taxing power).

But even before the final vote on the Patient Protection and Affordable Care Act (aka “Obamacare”) was taken in the Congress, several states enacted so-called “nullification acts” declaring the mandate to have no effect in their states.  This is an example of the “rivalship” that Alexander Hamilton spoke of in the 1788 New York Ratification Convention when he said: “This balance between the National and State governments … forms a double security to the people. If one encroaches on their rights they will find a powerful protection in the other. Indeed, they will both be prevented from overpassing their constitutional limits by a certain rivalship, which will ever subsist between them.”

 None other than Thomas Jefferson and James Madison themselves provided us with the original nullification examples by way of the Kentucky and Virginia Resolutions, respectively.  These resolves, which Jefferson and Madison ghost-wrote (Jefferson was the sitting Vice-President of the United States at the time) declared the nefarious Sedition Act of 1798 to be null and void due to its blatant conflict with the First Amendment.  The two resolves were passed around to the other states but gained little traction among the Federalist-dominated state legislatures, so they died an untimely death “for want of a second,” as the saying goes.

The Supreme Court rejected the idea of nullification in Ableman v. Booth, which declared that Wisconsin did not have the power to nullify the Fugitive Slave Act of 1850, and Cooper v. Aaron, which declared that the Arkansas state legislature lacked the power to amend the state constitution in order to oppose desegregation.  It will be interesting to see whether the Court will be called on to decide on the Oamacare nullification efforts.

In summary, while federalism is what makes the American experiment in government work in our “large republic” (as Madison termed it), it brings with it inevitable and unending conflicts over where the dividing line between contending powers is to be drawn.  Nullification would seem to provide protection for the states from federal over-reach, but it’s success rate in the courts leaves its efficacy much in doubt.

© 2013 The Constitution Leadership Initiative, Inc.  This essay first appeared in the Yorktown Crier-Poquoson Post on 5 September 2013.  Reproduction for non-profit purposes is hereby given.

 

 

 

Vol 1 No 34 – Restoring the Founders Dream

Last Saturday my wife and I attended a seminar in Mechanicsville, Virginia, entitled “Restoring the Founder’s Dream,” the last of a four-part series of seminars presented by the Thomas Jefferson Center for Constitutional Studies.  I highly recommend everyone attend this seminar series if they are concerned about the direction of our country and interested in concrete steps they can take to help turn things around.  The series will begin again in January with one seminar presented roughly each quarter.  Cost is $39 for each of the single day, 9am-5pm events.  The next series will likely be presented at Randolph-Macon College (as most of the previous seminars have been held) just north of Richmond, but there is a possibility that we could have our own series here in Tidewater if there were sufficient interest.  The seminars are presented by Dr. Glenn Kimber or his associates.  Dr. Kimber is a veritable fountain of constitutional knowledge.

Seminar 1 covers the founding of America and the process of building it into the great nation we once were.  Seminar 2 examines the U.S. Constitution from the viewpoint of the Founders and the timeless principles it embodies.  Seminar 3 looks at the people, organizations and groups who have purposefully changed the direction of American in order to serve their own special self-interests.

Saturday’s seminar provided examples of some constitutional actions, such as repealing the 17th and 25th Amendments which would go far in restoring the Founder’s understanding of the way the document was intended to operate; but it also emphasized the importance of restoring the integrity and proper functioning of the American family.  Civil government, you see, is only one of four forms of government necessary to freedom and prosperity: the others being family government, church government and self-government.  Restoring civil government to its original operation without also addressing the others will not get us where we need to go as a nation.  For more information on the seminars, see http://www.thomasjeffersoncenter.com/

It is easy to become despondent seeing headline after headline describe the mess we are in as a nation, even more so if one has taken the time to study where we have been in earlier times of prosperity — back when we didn’t face gargantuan national debt, moral erosion, and a dysfunctional federal government.  And I’ll confess that I yield to frustration far too often, particularly when I see just how unconcerned most Americans seem to be with our situation or what they can do to help turn things around.  The public’s greatest concern during the recent government “shutdown,” beyond the annoyance of not being able to visit some of our favorite national parks and monuments, seemed to focus on whether government checks and EBT funding would continue to flow.  Sad.  The fact that few noticed the absence of nearly 17% of our government’s employees should cause us to question whether they are really that necessary.  If they were really “non-essential” shouldn’t we be able to permanently do without them without great national harm?

So, look for notices in in your area announcing the start of a TJCCS seminar series and make room in your busy schedules to attend.