Constitutional Corner – Healthcare and the Constitution

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There is not a single word in the Constitution which gives the federal government the authority to design and deliver a healthcare system, whether we are talking about Medicare, Medicaid or the Un-Affordable Care Act – there are two words; they are: “general welfare.”

Now that I have your attention, let me clarify: I don’t believe for one moment that the Framers envisioned a national government that would be in the business of providing healthcare to all its citizens or any part of them. To the Framers, providing medical care was not the purpose of government; the purpose of government was, and remains today, securing our rights.

Aw, but what if healthcare is indeed a right, as some people insist. Doesn’t that give the government the authority, even the responsibility to be involved?

In 1765, Sir William Blackstone indeed wrote that a person has a right to the preservation of their health, and protection “from such practices as may prejudice or annoy it.”[1] Does being unable to afford health insurance “prejudice” your health?  Certainly.  Is being unable to afford health insurance a “practice” which prejudices your health? Certainly not.  Besides, Blackstone appears to stand alone among early British political philosophers in declaring the preservation of health to be a right.

“The right to adequate medical care and the opportunity to achieve and enjoy good health” was part of Franklin Roosevelt’s Second Bill of Rights, which he proposed during his 1944 State of the Union message to Congress, along with a right to “a useful and remunerative job, the right to earn enough to provide adequate food and clothing and recreation (even if you have no skills apparently). If you were a farmer, FDR thought you had a right to raise and sell your products at a return which gave you and your family a decent living; if you were a businessman, you had a ”right” to conduct your business without “unfair” competition; you had a right to a “decent home,” a good education, and protection from the economic fear of old age, sickness, accident, and unemployment.

Roosevelt felt confident proposing these new “rights” because he had seven years earlier effectively neutered the Supreme Court in the infamous “Court Packing” affair. He wouldn’t have any problem getting the high court to see these as new rights hidden in the 9th Amendment. Unfortunately, a little more than a year later FDR was dead and the idea of a second Bill of Rights died with him.

Had this Second Bill of Rights somehow become part of the Constitution, can’t you imagine the avalanche of cases that would ensue as the courts were called upon to decide what a “decent” home was, what “unfair” competition consisted of, what a “useful” job meant and what “adequate” food and clothing comprised as the government struggled to provide these benefits to those lacking them?

But we all know there are people walking around today, and a growing number of them, who believe providing our essential needs is precisely why we have government. Organizing For America, Obama’s post-presidency cheerleading organization, believes healthcare to be a right and they are aggressively fundraising based on the threat of Obamacare’s repeal.[2] Once healthcare insurance is determined by a majority of Americans to be a right, and last week’s vote on the Republican replacement, the American Healthcare Act, suggests that it may have already become such, there will be no putting that genie back in the bottle. Think of all the poor people who will die if you take away their health insurance, you heartless Republican you.

All this is thanks to two Supreme Court cases in 1936 and 1937: U.S. v Butler and Helvering v. Davis. In the former the Supreme Court decided that the General Welfare Clause was a separate grant of spending authority given to Congress.

Madison and others had repeatedly said, No! The phrase general welfare was not a separate grant of power, it was instead a constraint, a limitation on the enumerated powers. Spending on the enumerated powers would only be legitimate if it contributed to the welfare of all Americans, not the welfare of specific individuals, groups or classes of citizens. But in U.S. v. Butler the Court thumbed its collective nose at Madison, and said Congress could spend willy-nilly on “general welfare.” But what was considered general welfare and what was not? The year after Butler, the court delivered its Helvering decision over the constitutionality of Social Security.[3] In a 5-4 decision, the Court said the line between general and specific welfare would not be determined by the courts; it was up to Congress to decide. So now, anything Congress spends money on is clearly general welfare and not specific welfare, because if it was specific welfare, Congress would not have spent the money on it! See the logic?  There is no effective limit to what Congress can spend money on.  And neither do they have to have cash on hand to do so, as our $20 Trillion in debt demonstrates.

The Congressional Research Service, in a 2010 report called “Health Care: Constitutional Rights and Legislative Powers[4] agreed that there is no explicit right to health care set forth in the original Constitution. However, they note the growing sense by many Americans that today there should be.[5] In 2009, Congressman Jesse Jackson introduced a bill that would amend the Constitution to explicitly guarantee that, quote: “[a]ll persons shall enjoy the right to health care of equal high quality” and that” [t]he Congress shall have power to enforce and implement this article by appropriate legislation.”

Jackson’s proposed amendment didn’t go anywhere, Congress hasn’t been in the mood to amend the Constitution for 40 years. But why do they need to, in this case the “right” is already there in essence.

On July 30, 1965, President Lyndon B. Johnson signed H.R. 6675, creating Medicare. Former President Harry Truman, who had first proposed the idea of a national health insurance program to Congress, was issued the very first Medicare card during the ceremony.

In 1972, President Richard M. Nixon signed into the law the first major change to Medicare, expanding coverage to individuals under the age of 65 with long-term disabilities and individuals suffering from end-stage renal disease (ERSD).

Medicare and Medicaid coverage have been expanding ever since, with Parts C & D added to the original Parts A & B and disability coverage now including those with amyotrophic laterals sclerosis, aka, Lou Gehrig’s Disease.

In 2015, the Kaiser Family Foundation reported the number of Americans on Medicare as just over 55 million or 15% of the population. Another 65 Million, or 20%, are receiving Medicaid benefits. Add to this the people participating in CHIP and veterans’ health care programs and you find there is nearly 50% of the American public on some form of socialized health insurance plan or subsidy.

Why shouldn’t the government get involved in supplying healthcare?  Let me count the ways.

In 2015, a Government Accountability Office report[6] found that $60 billion —10% of Medicare’s budget — was lost to waste, fraud, abuse or improper payments. Among the worse problems, the GAO found 23,400 fake or bad addresses on Medicare’s list of providers — providers, not recipients. In other words, Medicare paid out $60 Billion for benefits claimed to have been delivered by providers who either didn’t exist or couldn’t be reached. And we want more socialized medicine?

Although you’ll find a few reports here[7] and there[8] that insist Medicare is not going bankrupt, you’ll find more which claim it is.[9],[10],[11] Despite this, many are demanding the government provide “Medicare for all.”[12]

With Obamacare imploding[13] and enough Republicans in Congress not willing to rescue it with the AHCA, it is only a matter of time before the American people demand that their “right” to affordable health insurance be supplied by a new single-payer system, like Medicare.

The lesson here, and Barack Obama knew this better than anyone: is once you give someone a government benefit it is probably there to stay; you are not likely to be successful in ending it. Americans love their benefits, even if it is bankrupting them.

Obamacare is indeed on life support. Thoughtco.com recently published a list of the top ten reasons Obama’s signature initiative is imploding.[14] Skyrocketing cost increases have caused some insurers to pull out of state exchanges, in some cases leaving a single insurer still operating. Insurers are responding to these increased costs by raising rates alarmingly. People not qualifying for subsidies will soon be unable to afford their premiums. We all knew this would happen, even those who designed the ACA knew it; Obamacare was designed to fail in order to lead to the demand for single-payer.

Single-payer, as we’ve seen with Medicare and Medicaid, will most certainly bankrupt us. It is almost as though these people want America to collapse in order to create their dream utopia on its ashes.

If you’re concerned about where this issue is going, if you’d like to see the ACA not be replaced with the AHCA, don’t you think it is time you had a talk with your Congressional representatives?

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[1] Commentaries on the Laws of England, Book 1. P. 130.

[2] https://www.ofa.us/its-no-accident/?email=gport%40aol.com&zip=23693&utm_medium=email&utm_source=obama&utm_content=2+-+httpsmyofausHealthCareIsARight&utm_campaign=em_x_aca_20170330_x_x_jl_remainder&source=em_x_aca_20170330_x_x_jl_remainder&refcode=em_x_aca_20170330_x_x_jl_remainder

[3] http://archive.lewrockwell.com/orig3/attarian7.html

[4] http://www.ncsl.org/documents/health/LegPowers.pdf

[5] The referenced report contains a good summary of key healthcare-related opinions of the Court.

[6] http://www.investors.com/politics/commentary/medicare-and-medicaid-are-both-in-a-sickly-state-at-50/

[7] http://www.cbpp.org/research/health/medicare-is-not-bankrupt

[8] https://www.medicareadvocacy.org/fact-vs-fiction-medicare-is-not-going-bankrupt/

[9] https://www.rpc.senate.gov/policy-papers/medicare-remains-on-fast-track-to-bankruptcy-

[10] https://www.forbes.com/sites/aroy/2012/04/23/trustees-medicare-will-go-broke-in-2016-if-you-exclude-obamacares-double-counting/#237f21d83d00

[11] http://www.cnbc.com/id/100780248

[12] http://www.medicareforall.org/pages/Home

[13] http://www.washingtontimes.com/news/2016/oct/30/obamacares-implosion/

[14] https://www.thoughtco.com/reasons-obamacare-is-and-will-continue-to-be-a-failure-3303662

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).

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…

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

[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

The Constitution’s Week in Review – 23 July 16

Article 1 – The Legislature: Apportioned Representation

I discussed on my radio show not too long ago and in these pages the fact that there is at least one proposed Constitutional Amendment floating around out there without a time limit for ratification.  Just as the original 2nd Amendment became, 200 years later, our 27th Amendment, so could the original 1st Amendment become our 28th.  David Zuniga, of America Again.net is proposing we ratify that old amendment and begin restoring truly representative government to America.  Communications technology has advanced to the point where it is feasible to have telepresence meetings of thousands of participants.  Imaging only having to drive a few minutes to sit down with your Congressman in a district office, instead of communicating with them in a distant Washington, D.C. office.

Well, I was investigating a Quora question recently when I chanced upon this article[1] from a few years ago which argues that the original First Amendment was indeed ratified by the requisite number of the states back in 1789.  Evidence came to light recently that both Connecticut and Kentucky may have ratified the Amendment but failed to send their ratification instrument to Congress and thus their ratification was never recorded.

What would this Amendment do if put into effect?  It would permit the ratio of representation in America to change from the average of 1 to 750,000 residents to 1 to 50,000 residents.  The House of Representatives could grow to around 6400 members.

Congress would have to revoke the Congressional Reapportionment Act of 1929 that set the current limit at 435 Representatives, but that is a simple (?) legislative process.

The discoverer of the lost documents, Frederick John LaVergne, has taken his case to court and lost, so it is likely the original ratifications will never be judged sufficient, but that does not prevent the Amendment from being ratified today by the additional states needed to bring the total to 38, as college student Gregory Watson discovered with the original 2nd Amendment in the late 1980s.

One complaint I have with the linked article is that the version they cite of what is commonly called the Congressional Apportionment Amendment (originally titled Article the First) is not the final version passed by the joint houses of Congress but rather the version passed in the House alone, as this Wikipedia article[2] makes clear.  The substitution in the final version of the word “more” for the word “less” changes the effect substantially, but not fatally.

According to the linked article, an opinion piece published in 2010 in the New York Times complained that “Americans today are numerically the worst-represented group of citizens in the country’s history.”

You can’t argue with the math, but what do you think of the proposed solution?  How about chatting with your representative and see what he or she thinks?

Article 2 – The Executive: The Candidates and the Constitution

On Friday, we had a great discussion of character as it relates to Presidential candidates.  The show gets rebroadcast on Sunday, 24 July at 2pm and I expect the podcast to be posted sometime Monday on the station’s podcast page.[3]

Article 3 – The Judiciary

Sometimes the decisions of courts seem to defy logic.  Usually this is due to the abject politicization of judges.  It would appear that a federal judge in Michigan succumbed to this common ailment.[4]  Michigan had been one of only ten states that offered citizens the opportunity to vote for a straight partisan ticket, i.e. mark their ballet with a single stroke to record a vote for all Democrat or Republican candidates in a particular election.  In my view, this panders to those too ignorant or lazy to walk into a polling station informed of the candidates, their respective parties, and the issues at stake.

The Michigan legislature passed and Governor Synder signed into law a measure striking down this feature of Michigan balloting, but U.S. District Court Judge Gershwin A. Drain ruled instead this would place a “disproportionate burden on African Americans’ right to vote.”  Right.  That says more about African American voters in Michigan than it does the legislature’s actions.

Cultural Issues in the Courts.  Here’s Focus on the Family’s latest review.[5] A new update was posted Friday.

1st Amendment – Right of Conscience

You may recall I’ve followed the plight of a Colorado baker, Jack Phillips, who was convicted of violating Colorado’s anti-discrimination laws by the Colorado Civil Rights Commission and sentenced (and his staff) to “re-education” classes.

On Friday, Phillips, with the help of Alliance Defending Freedom, petitioned the Supreme Court to hear an appeal of his case: Masterpiece Cakeshop v. Colorado Civil Rights Commission.[6]  ADF’s website[7] contains a nice synopsis of the case.

4th Amendment – Illegal Search

The government of Highland, California has decided[8] they can inspect the apartments and rental homes of the city’s landlords at will to determine their compliance with city ordinances.  Hmmm.  A long time ago, in a galaxy far, far away, there used to be a country where your “persons, houses, papers, and effects” were secure against warrantless search and seizure.  Perhaps no more, at least for the residents of Highland, CA.  One more reason to “Come East, young man!”

Recommendations and Events:

Christian Financial Concepts Presentation – The Constitution as Solution

Monday night, 25 July from 8-9pm EDT, I’ll be presenting a webinar on the topic of “The Constitution as a Solution to Problems.”

Few Americans take time to reflect on the fact that the Constitution was not created ab initio, it was created within a historical context.  That we have a Constitution at all illustrates that the Articles of Confederation had proven inadequate.  Although the Articles had been designed to make amendment difficult (unanimous consent was needed), in the end needed improvements proved impossible to enact.   Conditions in the thirteen states deteriorated to the point where talk of splitting the federation into three began to be heard.  Something had to be done, and the result was the Constitution of 1787.

But what exactly had been deficient about the Articles and what problems did this create?  By studying and understanding the problems created by the Articles we will better understand the solutions proposed by the Constitutional Convention to fix those problems.

What was Shay’s Rebellion and what role did it play?  Who sat down and analyzed the deficiencies in the Articles to prepare himself for the “Grand Convention?”  Did American troops really mutiny and march on Congress?  What did America’s Founding Fathers have to say during this period?  These questions and more will be answered in this exciting presentation.

Go to https://attendee.gotowebinar.com/register/7811182755684673537 to register for this free event.

We The People – The Constitution Matters Radio Show.

On Friday, 29 July, we will discuss the next paragraph we encounter in the Declaration of Independence; here Jefferson recounts the attempts of the colonists to enlist the aid of their “Brittish Brethren,” to no avail.  If you have complaints or petitions for the government, to what extent should you make those known and should you try to enlist the help of fellow citizens?  Please join the discussion by browsing to www.1180wfyl.com  (Friday, 7-8am EDT). If you miss the recorded show, aim for the re-broadcast Saturday at 11am and Sunday at 2pm or download the podcast at leisure.

Lessons in Liberty – Preserving America’s Religious Liberty.

On August 18th, the Foundation for American Christian Education’s Lessons in Liberty series will play host to Mrs. Victoria Cobb, President of the family Foundation of Virginia, located in Richmond, Virginia.  Victoria will speak on “How We Can Preserve America’s Religious Liberty.  How do Christians navigate a world trying to redefine marriage and even gender?  Victoria will discuss how we got to where we are with these issues and how Christians should respond.  The event, as all Lessons in Liberty presentations, will be livestreamed to those who register. Registration and cost information can be found on the FACE website at www.face.net.

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] http://www.thenewamerican.com/usnews/constitution/item/14223-article-the-first-is-congress-ignoring-an-amendment-ratified-by-the-states

[2] https://en.wikipedia.org/wiki/Congressional_Apportionment_Amendment

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

[4] http://www.gopusa.com/?p=12881?omhide=true

[5] http://www.focusonthefamily.com/socialissues/understanding-the-issues/cultural-issues-in-the-courts-2016/cultural-issues-in-the-courts-july-2016-update?utm_campaign=Supreme+Disappointment+on+Abortion&utm_medium=email&utm_source=nl_thrivingvalues

[6] http://adflegal.org/detailspages/case-details/masterpiece-cakeshop-v.-craig

[7] http://adflegal.org/detailspages/blog-details/allianceedge/2016/07/22/5-reasons-the-u.s.-supreme-court-should-agree-to-hear-christian-cake-artist-jack-phillips%27-case?sourcecode=05K30001

[8] http://www.wnd.com/2016/07/city-surrender-4th-amendment-rights-or-else/#!

Constitutional Corner – The Character of a Prince

Open as PDF

“A Prince whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.”

As I pointed out in my last essay, the English government of the late 1700s would hardly be called tyrannical or despotic by an impartial, dispassionate judge.  The twenty-seven “abuses and usurpations” that Jefferson levies against the King and parliament struck at the heart of colonial expectations of self-government, but those actions could hardly be called tyrannical by modern standards (see North Korea, Soviet Russia, etc.).  Nevertheless, King George III was a useful and necessary target for the opening salvo of the Declaration’s “long train of abuses,” with repeated references to: “He has refused…, He has forbidden…, He has dissolved…, He has obstructed….,” and so on.  Jefferson had an admittedly tough assignment: convince colonial Americans, many of them firmly devoted to their King, to instead seek independence.  A tyrant was needed and so a tyrant the King became, at least from the Declaration’s perspective.

Yet a different picture of George emerges from other voices.  The blogger “Mad Monarchist” writes:

“King George III was as far from being a cruel, despotic tyrant as any man could be. He was, in fact, an upright, generous man of simple tastes, extremely devoted to his family and could, with relatively little opposition I think, be considered the most able and admirable monarch of the Hanoverian dynasty of Britain. This monarch who came to be so hated in America was very popular in Britain, even beloved.”[1]

Once the American Revolution was over, the King re-established diplomatic relations with his rebellious former subjects (you may recall the depiction of George receiving newly appointed Ambassador John Adams in the HBO movie, “John Adams”).  He also worked to ensure the United States remained a major trading partner of the British Empire.

The fact that two distinctly different portraits of George III exist is illustrative of the dilemma we face in judging the character of candidates for elective office today: good character does not equate to effective leadership and success in government.

Jimmy Carter is widely regarded as a sincere man of faith; generous and compassionate.  His Christian witness was readily apparent before, during and after his single term of office.  Yet his four years as Chief Executive are generally regarded as a policy disaster;[2] inflation ran into double digits yet economic growth stagnated, leading to the coining of the term “stagflation;” long lines were the norm at gas stations across the country; the Shah of Iran was removed from power, transforming the most progressive Muslim country in the Middle-East into the leading sponsor of Islamic terrorism; the Panama Canal, built with American dollars and technology was given away.

How could a good man be such a failure as a President that he was denied a second term?

How could George III, devoted father and husband, make such horrible decisions as King that he lost from his empire what eventually became the world’s leading economic power?

To one writer,[3] “being the American President is all about character.”  If that is the case, then Jimmy Carter had a fabulous presidency.

No, it is clear that good character is a necessary but not a sufficient condition for success as President, or as King; capability – capability that produces results – is equally important.

So, as Americans prepare to select a new President this fall (as well as 33 Senators and 435 Representatives), perhaps a review of Presidential character would be in order.

Christians are familiar with the guidance Jethro gives Moses in the Book of Exodus concerning the men to be chosen for Israel’s first republic: “able men, such as fear God, men of truth, hating covetousness”[4]

In Deuteronomy, the guidance is complimentary: “wise and discerning and experienced men.”[5]

This is admittedly not a lot to guide us.   But there is still more we can glean from the Biblical record.  Once the people of Israel demanded that Samuel appoint a king over them, “like all the nations,” the people soon found out (though they were warned[6]) that their experience with kings would generally not be favorable.  It appears from this listing of the kings of Israel and Judah[7], the people of Israel got the bulk of the “bad” kings while the people of Judah had a few good experiences.

Fortunately, our Constitution creates a President, not a king.  While Alexander Hamilton’s “British Plan” included a Chief Executive serving essentially for life (“during good behavior”), the Framers knew enough about man’s fallen nature to guard against a “President for Life.”[8]

There was little talk in the Constitutional Convention concerning the character sought in a Chief Executive — qualifications, yes, but discussion of character was handled with kid-gloves; the heir-apparent, George Washington, “the first character in the world,” was sitting before them on the dais.  While George III may not have been the perfect picture of a tyrant, America’s first president is generally regarded as the perfect picture of a gentleman.  Which other President, as a child, drafted Rules of Civility — and tried to follow them the rest of his life?

By the time of the Constitutional Convention, Washington’s character had reached near-mythic proportions and was well beyond reproach.  Nevertheless, Dr. Franklin observed that even if the President were not to receive a salary, the country “shall never be without a sufficient number of wise and good men to undertake and execute well and faithfully the office [of President].”

George Mason cautioned, however, that a way of removing an “unfit magistrate” was made necessary by “the fallibility of those who [elect the Executive],” as well as by “the corruptibility of the man chosen.”  Washington’s reaction on hearing these words is undocumented.

On the question of whether to give the Executive the power of a complete legislative veto, Roger Sherman was against it because “no one man could be found so far above all the rest in wisdom.”

The U.S. President enjoys nothing approaching the powers of King George III; the Framers were intent on that.  A relatively weak chief executive becomes a problem, however, when Americans start viewing their President as a King.  In such circumstances, he is doomed to fail; he finds he is powerless to produce the reforms the people demand or those he foolishly promised.  Then, out he goes, hat in hand after a single term.

Over the years, Americans have elected some enormously flawed Presidents, but should we celebrate those flaws as this article from the Washington Post[9] suggests?

The upcoming election is shaping up to be as much about character as policy, perhaps even more so.

Hillary Clinton’s behavior during her eight years as First Lady, eight years as Senator and four years as Secretary of State has provided ample opportunity for her character to be questioned.

The list of books and videos discussing flaws in Clinton’s character is long.  Therein she is variously described as “ruthless,” “vindictive,” “mendacious,” “venal,” “sneaky,” “ideological,” “intolerant,” “deceitful,” and an “inveterate liar.”  Some writers take pride in pointing out that Hillary was the first First Lady to come under criminal investigation during her stay in the White House. You can find an analysis of Hillary Clinton’s character/personality here.

Donald J. Trump, on the other hand, has been variously described as “ambitious,” “racist,” “sexist,” “narcissistic” (also said of Hillary), “arrogant,” “haughty,” “patronizing,” “obnoxious braggart,” “contemptuous,” “borderline psychotic,” and many others unfit to print.  One analysis of Donald Trump’s personality can be found here.

What character traits would I prefer to see in someone charged with leading the world’s most powerful military force?  They include the following:

Honesty.  First and foremost, we must be able to trust, explicitly, everything the President says, or every word and deed becomes suspect, including words about….

Faith.  Despite the words of Article VI, Clause 3 (“no religious test”), the President of a predominantly Christian nation should be one himself.  And so far, all but a few[10] of our forty-three presidents (Grover Cleveland served twice) have been church-going Christians.  Faith in a universe-creating omnipotent God produces humility and compassion (or it should), two essential traits for such a high office.

Fidelity.  No, not marital, although that is necessary as well; rather I feel a President should have fidelity to the Founders’ Constitution.  He should understand and be willing to uphold the principles of the Declaration of Independence as well as the Constitutional limitations of his office.  These principles, by the way, are incompatible with democratic socialism.

Bravery.  Not necessarily bravery in battle — although that should be seen as a “force multiplier”– but bravery when confronting difficult decisions, decisions that will affect the lives of millions of Americans, born and unborn.

Well spoken.  The President must be a communicator, and a superior one, and not just when reading teleprompters.  He must have sufficient command of the English language and the pertinent facts to speak clearly and forcefully — extemporaneously.

The character of our “Prince” is exceptionally important to our success as a nation.  I encourage all citizens to spend time over the next three months identifying and then pondering the character traits they feel should be exemplified by the next President of the United States of America, the greatest nation the world has yet seen.

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

[1] http://madmonarchist.blogspot.com/2009/07/monarch-profile-king-george-iii.html.

[2] http://www.americanthinker.com/articles/2007/08/jimmy_carters_human_rights_dis.html.

[3] http://www.forbes.com/sites/rickungar/2015/07/24/donald-trump-and-the-decline-of-american-character-a-cautionary-tale/#6d97af521557.

[4] Exodus 18:21, KJV.

[5] Deuteronomy 1:13 KJV.

[6] 1 Samuel 8:10-18.

[7] http://www.ldolphin.org/kings.html.

[8] For a great example of “President for Life” look up Idi Amin.

[9] https://www.washingtonpost.com/lifestyle/magazine/presidents-are-every-bit-as-flawed-as-all-of-us-lets-celebrate-that/2015/02/05/56d7e834-86d9-11e4-a702-fa31ff4ae98e_story.html.

[10] http://www.pewresearch.org/fact-tank/2016/02/12/almost-all-u-s-presidents-have-been-christians/.

The Constitution’s Week in Review – 16 July 16

Article 1 – The Legislature: Separation of Powers.

Republicans in Congress made great hoopla[1] over passage in the House on Friday of HR-4768, aka the ‘‘Separation of Powers Restoration Act of 2016.’’  The bill makes a seemingly innocuous change to Section 706 of Title 5 of the U.S. Code[2] which will give courts greater leeway in determining when executive agency actions have exceeded the scope of the legislation that Congress passed and presented to the Executive to enforce.  The relevant section of code reads (new wording inserted in brackets and bolded):

“To the extent necessary to decision and when presented, the reviewing court shall decide [de novo] all relevant questions of law, [including the] interpret[ation of all] constitutional and statutory provisions [and rules], and determine the meaning or applicability of the terms of an agency action. The reviewing court shall—

(1) compel agency action unlawfully withheld or unreasonably delayed; and

(2) hold unlawful and set aside agency action, findings, and conclusions found to be—

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(B) contrary to constitutional right, power, privilege, or immunity;

(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;

(D) without observance of procedure required by law;

(E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this

title or otherwise reviewed on the record of an agency hearing provided by statute; or

(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by

the reviewing court.”

The key words “de novo” mean that the reviewing court will not use previous court precedent to guide their decision but is charged with looking at the laws “afresh.”  The new wording also makes it clear that “rules” are what is to be reviewed, not just “statutory provisions.”

Under what is called the “Chevron Doctrine” (from the 1984 case in which it was devised), the court typically gives deference to an agency’s interpretation of its actions in implementing the provisions of a law (i.e., the agency, and not Congress, knows best).  This is indeed a terrible doctrine and HR-4768 is an attempt by Congress to essentially nullify it.

As predicted, Democrats denigrated the bill as one removing discretion from the judges and potentially delaying “life-saving” rules (gotta have a “crisis,” right?).  They also warned this could lead to “activist” judging.  Coming from a group that has relied on and benefitted greatly from activist judges since the Warren Court, this charge seems disingenuous.

In my opinion, HR-4768, while helpful, attacks the problem from the wrong direction.  Yes, Progressives have done great damage to the republic through unrestrained agency rule-making; and while the court never should have devised the “Chevron Doctrine” to start with, the true problem is executive agencies who are allowed to write rules that have the force of law – period – that is the separation of powers violation at play here.  This legislation does nothing to change that paradigm.  Instead it permits Congress to continue to write overly vague laws and allow executive agencies to “fill-in the details.”  It nearly insures that agencies will continue to do as they please, subject only to someone bringing suit in a court of law, an arduous and expensive process that will not be pursued except when Congress or the states can’t abide the political heat for doing nothing in response to a rogue agency rule.

Since Mistretta v. Smith, executive agencies have been allowed to act as a legislative body, and this Act does nothing to change that.  If someone sees more good in this than I do, please enlighten me.  In a Congress desperate to find something to be proud of, this seems to fall far, far short.  Nevertheless, I encourage you to listen to the Judiciary Committee proceedings on their website as the Committee discusses the Act: partisan politics at its best.  I applaud Chairman Goodlatte for bringing this legislation to a successful vote, but there is much more to do.  Finally, unless Congress can find a way to attach this to some piece of “must pass” legislation, I predict the President will veto it.

Article 2 – The Executive: The Candidates and the Constitution

The ACLU is supposed to be non-partisan, that comes with their 501(c)(3) status.  They even affirm that on their website.  But they slyly created a parallel 501(c)(4) organization that allows them considerably more latitude.  The ACLU’s 501(c)(4) organization has issued an analysis of the “constitutionality” of Donald Trump’s policy positions.  They even warn us: “The ACLU Is Non-Partisan, but We Have to Take Action When So Much Is at Stake.”  You can download the paper here.  As you might expect from the most liberal legal organization in America, they are not too complimentary of Mr. Trump.  Trump positions on immigration, surveillance of Muslims, torture, libel, mass surveillance and abortion are analyzed and, in their eyes, found wanting.

The ACLU’s argument against the constitutionality of Trump’s announced ban on Muslims is sophomoric at best, declaring that it violates the Establishment Clause of the First Amendment, which forbids establishing a national religion or prohibiting the free exercise of religion.  Trump’s proposed ban would do neither.  There’s an even more fundamental question at stake: How the Constitution’s protections apply to people who are neither American citizens nor even resident in America remains unexplained.

The ACLU report cites Larson v. Valente, 456 U.S. 228 (1982) as justification for their opinion.  Unfortunately, Larson v. Valente focused on “whether a Minnesota statute, imposing certain registration and reporting requirements upon only those religious organizations that solicit more than fifty percent of their funds from nonmembers, discriminates against such organizations in violation of the Establishment Clause of the First Amendment.”

I note two things:  1) the ACLU has published (as yet) no similar analysis of Hillary Clinton’s policy positions (I wonder if they even intend to.  Perhaps it was in a deleted email.),  and 2) everyone should realize that what a Presidential candidate says in the run up to the election is simply, well, talk.  The President’s constitutional powers are quite limited.  Yes, nearly every President, including President Obama, has sought ways to expand that power and “rule by decree,” and yes, the American people have turned a blind eye to egregious violations of these powers in the past, but the President’s success depends more on whether the Congress and Courts go along.  Donald Trump or Hillary Clinton, whichever one takes the oath next, will find, as have all other Presidents, that their ability to get anything done depends more on their powers of persuasion than the soundness, or even constitutionality, of their policy positions.

Article 3 – The Judiciary

Associate Justice Ruth Bader Ginsburg got herself in hot water this week by breaking a cardinal rule that says justices and judges should refrain from commenting on partisan politics.  Ginsburg called Trump a “Faker” and wondered why he had not released his tax returns.  Trump fired back, suggesting the 83-year old Justice resign.  Certainly if this election were to somehow end up in the lap of the High Court, in the manner of 2000, Ginsburg would be expected to recuse herself, but probably would not. A judicial ethics code binds lower-court judges, but not Supreme Court justices; it forbids judges from endorsing or even speaking about political candidates.

Natural News[3] chalked up the Justice’s bizarre behavior (and similar incidents) as evidence of “chemo-brain” a common aliment resulting from chemotherapy, associated with Ginsburg’s 2009 bout with pancreatic cancer.

After none other than the “Gray Lady” herself, the New York Times, published a “smack-down,”[4] the Justice walked her statement back by expressing regret.[5]

The “non-politicization” of the Supreme Court is a standing joke, everyone in America realizes the court crossed that threshold a long, long time ago.  Nevertheless, what constitutes “High Crimes and Misdemeanors” remains undefined.  Did Ginsburg cross the line?

Cultural Issues in the Courts.  Here’s Focus on the Family’s latest take.[6]

1st Amendment – Right of Conscience

Apparently, quoting the Bible’s has become a “crime against humanity,” or will soon be if the Ugandan homosexual plaintiffs win their case against the American pastor who had the audacity to do so.[7]  Hopefully the American judge will not revert to or reference international law in deciding the case.

Progressives have become apoplectic over the First Amendment Defense Act , H.R.2802,[8] which “Prohibits the federal government from taking discriminatory action against a person on the basis that such person believes or acts in accordance with a religious belief or moral conviction that: (1) marriage is or should be recognized as the union of one man and one woman, or (2) sexual relations are properly reserved to such a marriage.”  Has your Congressman co-sponsored the bill?  Why not?

The House Oversight and Government Reform Committee held hearings on the bill this week, and several homosexuals testified that they agreed in principle that no one should be fired, as Atlanta’s fire chief was, over their personal view on this issue, they didn’t think the FADA was the right legislation to enact that protection.  “OK, you draft a bill that will do so,” is what I’d have said to the witnesses if I were the Committee Chairman.

A similar piece of legislation concerning personal views on abortion, H.R.4828, The Conscience Protection Act of 2016,[9] has passed the House In a bipartisan 245-182 vote, and now faces a tough battle in the Senate.

2nd Amendment – Is it a Right for Everyone?

Gun control fanatics will grasp at any straws to limit the possession of firearms by law-abiding citizens.  The latest comes from Illinois,[10] one of the biggest gun-grabber” states.  If you and your spouse hope to adopt a foster child in that state, prepare to give up any weapons you may own if you don’t wish to render them incapable of being used for home defense.  What will they think of next?

The problem here is that while you may have an unalienable right to “keep and bear” firearms, there is no similar unalienable right to adopt a child, that is something we’ve allowed to come under the complete control of the state.  I’m predicting that the couple will lose at the lower court level and only prevail (maybe) if the decision is appealed all the way to the Supreme Court.

Recommendations and Events:

We The People – The Constitution Matters Radio Show.

On Friday, 22 July, we will discuss these words from the Declaration of Independence: “A Prince whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.”  Which of America’s “Princes” have turned out to be unfit to be “the ruler of a free people?”  What should be our criteria in choosing a President in the future?

I invite you to browse to www.1180wfyl.com  (7-8am EDT) and then join the discussion by calling in.  If you miss the recorded show, aim for the re-broadcast Saturday at 11am and Sunday at 2pm or download the podcast at leisure.

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] https://judiciary.house.gov/press-release/goodlatte-marino-ratcliffe-applaud-passage-bill-restore-balance-branches-government/?utm_source=The+Gavel+Newsletter&utm_campaign=0b47a438e3-July_15_Newsletter7_15_2016&utm_medium=email&utm_term=0_e2a6777f0f-0b47a438e3-41345745

[2] https://www.gpo.gov/fdsys/pkg/USCODE-2011-title5/pdf/USCODE-2011-title5-partI-chap7-sec706.pdf

[3] http://www.naturalnews.com/054650_Ruth_Bader_Ginsburg_chemo_brain_Donald_Trump.html

[4] http://conservativebyte.com/2016/07/ny-times-editorial-board-smacks-down-justice-ginsburg/

[5] https://www.washingtonpost.com/politics/ginsburg-expresses-regret-over-remarks-criticizing-trump/2016/07/14/f53687bc-49cc-11e6-bdb9-701687974517_story.html?wpisrc=nl_most-draw7&wpmm=1

[6] http://www.focusonthefamily.com/socialissues/understanding-the-issues/cultural-issues-in-the-courts-2016/cultural-issues-in-the-courts-july-2016-update?utm_campaign=Supreme+Disappointment+on+Abortion&utm_medium=email&utm_source=nl_thrivingvalues

[7] http://www.wnd.com/2016/07/criticizing-homosexuality-now-crime-against-humanity/#!

[8] https://www.congress.gov/bill/114th-congress/house-bill/2802

[9] http://www.catholicnews.com/services/englishnews/2016/us-house-members-in-bipartisan-vote-pass-conscience-protection-act.cfm

[10] http://www.theblaze.com/stories/2016/07/14/illinois-family-wants-to-adopt-foster-child-but-may-be-forced-to-give-up-their-second-amendment-rights-to-do-so/?utm_source=Sailthru&utm_medium=email&utm_campaign=Firewire%20Morning%20Edition%20Recurring%20v2%202016-07-15&utm_term=Firewire_Morning_Test

The Constitution’s Week in Review – 9 July 16

Article 1 – The Legislature

A few of you may not subscribe to National Review magazine.[1]  That is unfortunate because NR has some of the best contributing writers in the conservative world.  Each issue is chock-a-block full of interesting articles.  Senator Mike Lee has written a particularly fitting one in the current issue entitled: “The Incredible Shirking Congress[2] (I know, it is easy to read the title as the “Incredible Shrinking Congress” at first glance).

Lee lays out a persuasive argument that our mess in Washington is largely Congress’ fault and won’t be fixed until Congress steps up to the plate and resumes the dominant role the Founders intended them to have in the national government.  Congress writes overly vague laws and allows executive branch agencies to “fill in the details,” which the unelected bureaucrats in those agencies are more than happy to do.  Lee points out that Congress passed and President Obama signed 3,291 pages of new legislation in 2014; but that same year executive agencies issued 79,066 pages of new regulations!  Congress also has abandoned regular order in the authorization and appropriate process.  Despite the President’s desire for deficit spending, Congress must appropriate every penny spent, so the blame for our $20 Trillion in official national debt sits on Congress’ shoulders alone.  Federal programs are routinely re-appropriated which have exceeded their authorized mandate and the annual “Pig Book[3] demonstrates that millions, if not billions, of wasteful spending takes place each year.

I encourage you to read the article in full, and then purchase a copy of Senator Lee’s book: “Our Lost Constitution,”[4] which more expansively lays out the problems that must be solved to return to true constitutional order in this country.

Article 3 – The Judiciary

Cultural Issues in the Courts.  I’ve been commenting on court cases with cultural impact for quite some time.  This week I learned of a website that does essentially the same thing and perhaps even better.  So I’m going to include a link to that site[5] in all future essays and hope you take the time to read their articles.

Here’s a nice analysis[6] of the impact my favorite Justice, Clarence Thomas, has had on the Supreme Court.

1st Amendment – Right of Conscience

More “Bias” Response Groups Appear.

Another “Bias Response Group[7] springs up, this time at Skidmore College, a liberal arts college in Saratoga Springs, New York.  Joining our police and firemen as “first responders,” the groups attempt to point out the obvious: we all have biases.  I’m biased (hopefully consistently) in favor of good over evil.  That is a bias we should wish on everyone.  But the Bias Response Groups are not interested in promoting “good” bias, only calling out “bad” bias (as they define it).

It was news to me to learn that writing the phrase: “Make America Great Again” on a college whiteboard reflects a “bad” bias (rather than support for Donald Trump).  Perhaps we are intended to take from this is that support for Donald Trump himself reflects a “bad” bias.

Regardless, you can see how quickly this can, and has gotten out of hand.  I wonder whether eight years ago a Bias Response Group would have come running if “Fundamentally Transform America” was found surreptitiously written on a college whiteboard.  These are not really Bias Response Groups, as anyone can plainly see; they are “Politically Incorrect Bias Response Groups.”  And Free Speech continues its slow but inexorable death in America.

Representative John Fleming [R-LA-4] and Senator James Lankford, [R-OK] have introduced the Conscience Protection Act of 2016 (H.R.4828 in the House, S.2927 in the Senate)

These bills (and similar ones) will provide legal protection for healthcare workers and organizations that do not wish to participate in or support the abortion industry in any way.  Although there is an email floating around stating that the House bill will be voted on on Wednesday, 13 July, the current House and Senate websites show both bills still tied up in either committee or subcommittee.  Nevertheless, if you support these bills, contacting the members of the committees or your own representatives would be an appropriate way to register your support.

The Effort To Destroy Christian Doctrine Continues.

The effort to push Christianity from the public square continues unabated.  Dating sites, like ChristianMingle.com,[8] with a publically Christian focus must now grant access to homosexuals seeking relationships with their same sex[9] even if that runs counter to the organization’s firmly held biblical standards.

Freedom of conscience continues to be transformed in America.  Soon you’ll be able to think whatever you want, privately.  If you try to express certain beliefs publically, or, heaven forbid, act on them, you will find yourself on the wrong side of the law.  Even some Supreme Court Justices, such as Associate Justice Sam Alito, are becoming alarmed at the mounting anti-Christian bias in the courts.

And Christian pastors remain silent.  Nothing to see here folks, move along.  Where does your pastor stand on this?  Do they deserve your continued support?

2nd Amendment –  Where Do We Go From Here?

Dallas. The tragedy in Dallas, overshadowing the two civilian deaths at the hands of policemen that preceded it (and which may indeed have sparked it), deserves more than a passing remark.

Reactions will be predictable: from the Left: disarm the public, who have demonstrated that they can’t be trusted to resolve anger without the use of firearms; from the Right: arm everyone and prosecute groups, like Louis Farrakhan’s Nation of Islam, which advocate violence against anyone, particularly the police.  Neither of these responses addresses the root problem: racial distrust.

In the wake of Dallas, the Minnesota officer’s reaction to the innocuous movement of hands by a black man who had just told the officer he was armed, takes on a new perspective.  Why would any armed white policeman fear a routine traffic stop with a black motorist (over a broken tail light, no less) enough to fire his weapon at the slightest movement of the motorist’s hands?  Is there any better illustration of the state of race relations in this country?  We have heard repeatedly that blacks fear confrontations with white policemen, now we see there is equal fear in white policemen over confrontations with black motorists.

Certainly the nation’s policemen, in the days and weeks which follow, have reason to be cautious, on or off the job, as further shootings of policemen have demonstrated.  And just as certainly, motorists and pedestrians alike must learn to calmly and explicitly comply with an officer’s instructions, avoiding any appearance of confrontation.

These events have revealed deeply ingrained opinions, whether right or wrong, whether justified or not, about other races, which points to the urgent need for dialogue.  We have to come together, talk to one another, and try to better understand each other’s point of view, each other’s prejudices.  We have to understand how these preconceived notions were created in the first place.  And then we need to develop better methods of resolving complaints.

Our nations’ churches are the most obvious and the best place for this dialogue to occur, and no doubt some courageous pastors have already taken steps to facilitate these discussions.  But many will not; many pastors have become so fearful of offending someone, anyone, so fearful of driving away a potential contributor, that they are paralyzed by their own fear.  They will boldly preach the Gospel, but purposefully avoid addressing cultural issues.  This must stop.

Is it a “No-Fly” or a “No-Buy” List?  More information continues to dribble out about individuals unfortunate enough to share a name with a known terrorist and end up on the FBI’s infamous “No-Fly List.”[10]  It is not so much that occasional but inevitable mistakes might be made by nameless unelected bureaucrats, it is the arduous, sometimes years-long process of rectifying the situation and getting your name removed from the list.  If you don’t enjoy the political pull of a Congressman or a state elected official, good luck.  It is called the “law of unintended consequences” and it works in conjunction with the 2nd Amendment as well.

4th Amendment.

I reported on this issue barely a month ago (4 June 16); it refuses to go away.

Could someone tell me why it takes “four years, two congressional hearings, and countless pleas to the IRS and Justice Department” to convince the IRS to return property it never should have taken in the first place?[11]  Pity the poor citizen who doesn’t think to involve his Congressional representatives in staring down this out-of-control agency.

The issue is “structuring,” a term applied to depositing or withdrawing your own money from your own bank account in a way that the IRS believes is intended to avoid mandatory reporting of transactions – such reporting becomes required at the “magic” $10,000 mark.  Disregard the fact that you may be keeping transactions below $10K merely to keep your bank from having to go through the rigamarole, the time and expense, of submitting what you see as unnecessary or even unconstitutional reports.

To the IRS you’re a drug dealer, pure and simple, there could be no other reason for your behavior, so, chucking your right of due process in the dustbin, the IRS seizes your bank account, all of it, apparently so you don’t try to withdraw the money and flee the country.

I’m sure there are many fine upstanding citizens working for the IRS.  I’m equally sure are many partisan apparatchiks trying their best to use the power of their office for partisan ends.  I reported recently (18 June 16) that the House Oversight and Government Reform Committee passed a “Contempt of Congress” resolution against IRS Commissioner John Koskinen.  I suspect Speaker Paul Ryan will refuse to bring the resolution to the floor for a vote.  If you agree with the Speaker’s action, do nothing; if you feel that is shirking a duty, the Speaker’s office awaits your letter, phone call or email.

Recommendations and Events:

Constitution Seminars.

I am now scheduling Constitution Seminars for the month of October.  If you want one for your church or community group, please let me know ASAP.

Last Call: Lessons in Liberty.  On Monday, July 11, from 7:00-9:00 p.m. EDT, The Foundation for American Christian Education’s Lessons in Liberty series will welcome Jim Wallis, who will speak on the topic: Was Jesus a Socialist?  You can attend in the FACE classroom in Chesapeake, Virginia, or live online via Livestream.

The lecture will explore the divergence of both Christianity and the Jewish people from their covenantal, Hebraic roots, and will take on related questions such as: “Was the early church communal in the modern Marxist sense?” and “How about the Moses/Joshua Hebrew model, was it a republic or a theocracy?”

The cost to attend, either in the classroom or online, is $10.  Register at http://www.face.net/.

We The People – The Constitution Matters Radio Show.

 

On Friday, 15 July, we will discuss the principle of “petitioning the government for a redress of grievances.”  This principle, mentioned in the Declaration of Independence, had a long history in English law and the colonists felt a moral obligation to use it before claiming the right of separation.  Parliament and the King ignored their petitions and forced both sides into a costly war.  In 1789, James Madison ensured we would continue to enjoy the right by securing it in the First Amendment.

 

I invite you to browse to www.1180wfyl.com  (7-8am EDT) and then join the discussion by calling in.  If you miss the recorded show, it is re-broadcast each Saturday at 11am and Sunday at 2pm.

 

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] https://www.nationalreview.com/magazine

[2] https://www.nationalreview.com/magazine/2016-07-11-0100/legislative-judicial-branch-powers-warped

[3] http://www.cagw.org/reporting/pig-book

[4] https://www.amazon.com/Our-Lost-Constitution-Subversion-Americas/dp/159184777X

[5] http://www.focusonthefamily.com/socialissues/understanding-the-issues/cultural-issues-in-the-courts-2016/cultural-issues-in-the-courts-july-2016-update?utm_campaign=Supreme+Disappointment+on+Abortion&utm_medium=email&utm_source=nl_thrivingvalues

[6] http://dailysignal.com/2016/07/01/25-years-later-clarence-thomas-transformed-supreme-court/?utm_source=TDS_Email&utm_medium=email&utm_campaign=Top5&mkt_tok=eyJpIjoiWXpGalpUSm1aVEE0TUdSaSIsInQiOiJMVmZNMk12VktHM3hjVHI5Um1CZ1JUb3RjMVhKRnBteUtHb0xtYko4WDRMdXZaOVhweGwrWWs1NG4xXC85ZXFoblZKR29iRWlpSmoyM2hSRFc0MWlxbzY4XC82U1ZrN3o0R2loSEpkdGpYSjM0PSJ9

[7] http://eaglerising.com/34732/read-the-messages-left-on-college-whiteboards-that-were-deemed-to-be-racialized-targeted-attacks/

[8] https://www.christianmingle.com/

[9] http://www.theblaze.com/stories/2016/07/03/several-faith-based-dating-sites-now-required-to-allow-users-to-search-for-same-sex-matches/324760/?utm_source=Sailthru&utm_medium=email&utm_campaign=Firewire%20Morning%20Edition%20Recurring%20v2%202016-07-04&utm_term=Firewire_Morning_Test

[10] http://dailysignal.com/2016/07/03/fbi-flagged-this-congressman-as-a-terrorist-why-he-opposes-a-new-gun-ban/?utm_source=TDS_Email&utm_medium=email&utm_campaign=MorningBell&mkt_tok=eyJpIjoiWm1VNVpHSTVPVFF5T0dNMSIsInQiOiJPclV2b0NDSXJSbTZtT2IwOWRxRWpTSDRidmxXSW1JTFNsOFJ6NFwvbXFSMVwveWh2aGZPTFwvSkQ5WklZVFk4clptRXoxUWdhRkp3RVwvYTd1RDloZVlPZ2E2REszMExFMm56WnpwTllHb3liWGs9In0%3D

[11] http://dailysignal.com/2016/06/29/irs-to-return-30k-it-seized-from-maryland-dairy-farmers/?utm_source=TDS_Email&utm_medium=email&utm_campaign=Top5&mkt_tok=eyJpIjoiWXpGalpUSm1aVEE0TUdSaSIsInQiOiJMVmZNMk12VktHM3hjVHI5Um1CZ1JUb3RjMVhKRnBteUtHb0xtYko4WDRMdXZaOVhweGwrWWs1NG4xXC85ZXFoblZKR29iRWlpSmoyM2hSRFc0MWlxbzY4XC82U1ZrN3o0R2loSEpkdGpYSjM0PSJ9

The Constitution’s Week in Review – 2 July 16

Happy Birthday America!

Most people associate July 4th with our nation’s “birth” (the day was declared a national holiday after all), overlooking the fact (or perhaps they’ve never been taught) that it was two days earlier, on July 2nd, when the Continental Congress actually voted to pass Virginia’s resolution calling for independence.  Writing the next day to Abigail, John Adams gushed:

“The Second Day of July 1776 will be the most memorable Epocha, in the History of America.  I am apt to believe that it will be celebrated by succeeding generations as the great anniversary festival.  It ought to be commemorated as the day of deliverance, by solemn acts of devotion to God Almighty.  It ought to be solemnized with Pomp and Parade, with Shews, Games, Sports, Guns, Bells, Bonfires, and Illuminations from one End of this Continent to the other from this Time forward forever more.”

The day after Adams wrote those words, the draft of the Declaration was “wordsmithed” and finally approved, leading to our national holiday being recognized on that day instead.  The story of the passing of Lee’s resolution is full of drama and intrigue.  Enjoy the read.[1]

While it is fitting and proper to wish the nation a “happy birthday,” it is also fitting and proper to note the precarious situation the country finds itself in.  Immense challenges: economic, cultural and constitutional, threaten our future prosperity and freedoms.

Take time to celebrate – and then get back to work reversing the wounding of our great nation that has taken place over the last eight years.

Article 3 – The Judiciary

Showing us in vivid detail the value of term limits for federal judges, Judge Richard Posner of the 7th Circuit declared study of the original Constitution to be a complete waste of time,[2] at least for judges: “I see absolutely no value to a judge of spending decades, years, months, weeks, day, hours, minutes, or seconds studying the Constitution, the history of its enactment, its amendments, and its implementation,” waxed the jurist, who was appointed to the bench in 1981 by President Ronald Reagan (who probably regrets the appointment).   I agree in part with the judge, however.  The Supreme Court has indeed turned the Constitution into a system of common law, judge-made law, departing from the idea of a fixed standard of law, to be modified only by “amendment in the way which the Constitution designates.”[3]

The judge’s amazing statement joins a host of equally controversial ones in the past that make it unlikely (in the eyes of some at least) that the judge would ever be nominated to the Supreme Court.  Condemning Justice Antonin Scalia for making politically charged public statements[4] while doing the same hardly enlarges one’s credibility.  So, since Congress seems unwilling to propose a term limits amendment, even one focused exclusively on jurists, and since the Article V Convention project is still being rabidly fought by some on the Right, it appears unlikely that we will ever have access to a mechanism for removing jurists whose opinions make them unsuitable for continued service.  Oh well.

1st Amendment – Right of Conscience

As I’ve hinted numerous times in these pages, if you want a chance to express your right of conscience, you best do it soon – the right may not be around much longer.

If you care to let your conscience peek out on the campus of the University of Northern Colorado, at least in some non-politically correct way, you might find yourself the subject of an inquisition by the “Bias Response Team.”[5]  At the moment, the teams seems content to merely point out apparently unperceived “bias” (translation: anything the Left does not believe in); but how long will it be before an unfavorable ruling by the “bias police” results in disciplinary action or worse for some unlucky college student?

In related news, the Mississippi state legislature’s attempt to provide some protection to their citizens to act within the limits of their conscience came screeching to a halt as  a U.S. District Judge ruled[6] that Mississippi’s House Bill 1523,[7] violated the U.S. Constitution.  The Bill was an attempt to pushback against last year’s Obergefell v. Hodges decision legalizing homosexual “marriage.”  LGBT groups applauded the ruling.

Hopefully, the ruling will be appealed but at the moment that is not certain.

So the question remains: is there any aspect of Christian faith/Christian conscience which should be allowed to inform your public actions?  What do you think?

2nd Amendment – Never Let a Shooting Go To Waste

Sensing a change in the mood of the American public over whether persons on the government’s “no-fly” list should be allowed to purchase guns, Congressional Democrats are preparing to turn their “sit-in demonstration” into a road-show.  If you are comfortable with people who find themselves, for whatever reason, on a secret government list being denied the ability to purchase a gun, than go about your business, nothing to see here.  I see potential problems.

 Recommendations and Events:

Constitution Seminars.  I have no Constitution Seminars scheduled at the moment.  If you have a group of 10 or more individuals within a day’s drive of Yorktown, Virginia, and would like one presented, let me know via email to: gary@constitutionleadership.org.   Keep in mind that I’ll be unavailable from 1 August to 18 September.

Lessons in Liberty.  On Monday, July 11, from 7:00-9:00 p.m. EDT, The Foundation for American Christian Education’s Lessons in Liberty series will welcome Jim Wallis, who will speak on the topic: Was Jesus a Socialist?  You can attend in the FACE classroom in Chesapeake, Virginia, or live online via Livestream.

This lecture explores the divergence of both Christianity and the Jewish people from their covenantal, Hebrew roots. And will take on a related questions such as, “Was the early church communal in the modern Marxist sense?” and “How about the Moses/Joshua Hebrew model, was it a republic or a theocracy?”

The cost to attend, either in the classroom or online, is $10.  Register at http://www.face.net/.

On Friday, 8 July, we’ll begin a new feature on “We the People, the Constitution Matters” that I will call, for lack of a better term: Constitutional Tennis.  Just after the break at the midpoint of each show, one of our three commentators will pose a question about the Constitution, to be answered by any caller who knows the answer.  The first caller to answer the question correctly will be allowed, in turn, to pose a question of their own to any of our commentators.  If the question can’t be answered on the spot that commentator will be assigned the task of researching and answering the question at the start of the following week’s show.  “Team Listener” will get a point for each correctly answered question and “Team Scholar” will get a point for each on-the-spot question answered correctly.  We’ll announce the running point total each week.

You can listen to “We the People, the Constitution Matters” at www.1180wfyl.com each Friday from 7-8am EDT.  The recorded show is also re-broadcast each Saturday at 11am and Sunday at 2pm.

On 8 July, we’ll resume our continuing discussion of the principles of the Declaration of Independence by examining the principle that a “long train of abuses and usurpations, pursuing invariably the same Object evince[ing] a design to reduce them under absolute Despotism” is a necessary precondition for a people to legitimately change their form of government.   We will also contrast what comprised that “long train” in 1776, with what we are experiencing today.  It should be an interesting comparison.

[1] http://udspace.udel.edu/bitstream/handle/19716/4467/article3.pdf;jsessionid=6CF19E9A57FD05120A914311C63B1D7C?sequence=1

[2] http://www.americanthinker.com/blog/2016/06/has_richard_posner_committed_an_impeachable_offence.html

[3] George Washington, Farewell Address, 1796.

[4] http://abcnews.go.com/Politics/OTUS/supreme-court-justice-antonin-scalias-political-outbursts/story?id=16694778

[5] http://www.gopusa.com/?p=11819?omhide=true

[6] https://mississippitoday.org/2016/06/30/federal-judge-strikes-down-house-bill-1523/

[7] http://billstatus.ls.state.ms.us/documents/2016/html/HB/1500-1599/HB1523SG.htm

The Constitution’s Week in Review – 25 June 16

Article 1, Section 5, Clause 2: Each House may determine the Rules of its Proceedings

Our Infantile Congressmen (some of them at least)

House Rule XXIII: “A Member, Delegate, Resident Commissioner, officer, or employee of the House shall behave at all times in a manner that shall reflect creditably on the House.”[1]

Democrats, upset at not being allowed to vote on gun control legislation they have proposed, threw a childish temper tantrum[2] on Wednesday by “occupying” the floor of the House.  Taking their cue from the Occupy Wall Street and Black Lives Matter movements, the Congressmen and women attempted to shut down House business and were ruled out of order.  I suspect they will not be censured for their violation of rules of decorum.

Article 3 – The Judiciary

On Thursday, the Supreme Court announced opinions in five cases.

In what was described as a “crushing blow” to the Obama administration, the court’s 4-4 opinion in United States v. Texas left intact a lower court ruling that the Obama administration had exceeded its authority in deferring the deportation of millions of illegal immigrants.[3]  Scalia’s vote would have made this 5-4, with the same immediate result, although the tie vote allows the court to revisit the decision after they fill the empty seat.

The Court affirmed the lower court in Fisher v. University of Texas at AustinThis allows the University of Texas to continue discriminating against qualified applicants in the name of diversity without having to demonstrate whether that diversity is needed or has improved the educational experience.  Interestingly, when I heard the decision announced on the radio driving around town Thursday there was great confusion over whether Justice Kagan had recused herself; some thought she had, some that she had not.  The 4-3 decision reveals she did, in fact, recuse herself and SCOTUSBlog confirms.  Kagan’s vote would almost certainly have made it 5-3 with the same result.  Scalia would have brought it up to 5-4 but that would not have changed things.

In three related cases,[4] the Justices ruled that imposing criminal penalties for refusing to take a breath test when suspected of drunk driving is OK but that criminal penalties for failing to take a blood test violate the Constitution.  I’ve not yet had time to read the decisions to see what logic produced the different results, but I suspect the intrusive nature of the blood test over the largely non-intrusive breath test was the discriminator.

1st Amendment – Right of Conscience

We experienced an amazing four-day mini-course at the Foundation for American Education this week as Dr. Gai Ferdon of Liberty University spoke on “The Welfare State – $20 Trillion Later.”  I anticipate FACE will make recordings of the four sessions available in the near future, and you should consider purchasing after-the-fact access.  Dr. Ferdon, covered all the history and the principles of good government that have been violated over the years as the U.S. has moved inexorably to The Welfare State.  A related topic, covered on the last night, is the wholesale violation of Right of Conscience. Right of Conscience is supposedly secured by the First Amendment and Dr. Ferdon took us through some of the arguments that helped shape the exposition of the right during the Founding Period.

Right of Conscience is dying a slow death in this country, as I discussed on my radio show this morning (the podcast should be up on Monday or you can listen to a re-broadcast on Saturday (11:00 am) or Sunday (2:00pm).  Now comes news that California (who’d have guessed?) is requiring churches to pay for abortions[5] for staff members.

2nd Amendment – Never Let a Shooting Go To Waste

The Supreme Court rejected an opportunity[6] to address a state “assault gun” ban, leaving New York’s and Connecticut’s onerous bans in place.  This was most likely done because Chief Justice Roberts foresaw an expected 4-4 tie that would have left the lower court ruling in place.

The quest for a “compromise” bill to prohibit the purchase of guns by those on the No fly List continued this week with Senator Susan Collins (R-ME) introducing a supposedly “bi-partisan” bill[7].  Question: was Omar Mateen on the nation’s No-fly List?  I’ve not seen anything that suggests he was, so this is just one more attempt at gun control unrelated to recent incidents.  The linked article contains a point-by-point rebuttal of the features of Collins’ bill.

Recommendations:

Constitution Seminars.  I have no Constitution Seminars scheduled at the moment.  If you have a group of 10 or more individuals within a day’s drive of Yorktown, Virginia, and would like one presented, let me know via email to: gary@constitutionleadership.org.   Keep in mind that I’ll be unavailable from 1 August to 18 September.

Lessons in Liberty.  On Monday, July 11, from 7:00-9:00 p.m. EDT, The Foundation for American Christian Education’s Lessons in Liberty series will welcome Jim Wallis, who will speak on the topic: Was Jesus a Socialist?  You can attend in the FACE classroom in Chesapeake, Virginia, or live online via Livestream.

This lecture explores the divergence of both Christianity and the Jewish people from their covenantal, Hebrew roots. And will take on a related questions such as, “Was the early church communal in the modern Marxist sense?” and “How about the Moses/Joshua Hebrew model, was it a republic or a theocracy?”

The cost to attend, either in the classroom or online, is $10.  Register at http://www.face.net/.

STAND Awakening Conference.  Those of you who live in the Tidewater area should try not to miss the STAND Awakening Conference, 1-3 Jul,y here in Chesapeake, VA.  I’ll see you there.

We the People – The Constitution Matters.  On July 1st, I’ll be interviewing Denver, Colorado lawyer and author Jenna Ellis about her recent book: The Legal Basis for a Moral Constitution.  In the book, Jenna lays out a rock-solid case that the Constitution is a moral document and must be interpreted as such.   You can listen to the pre-recorded interview at www.1180wfyl.com on Friday from 7-8am EDT.  On 8 July, we’ll resume our discussion of the principles of the Declaration of Independence.

 

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] Rules of the House of Representatives, One Hundred Fourteenth Congress, January 6, 2015.

[2] http://www.washingtonexaminer.com/dems-shut-down-house-floor-to-protest-for-gun-control/article/2594589

[3] http://kfor.com/2016/06/23/supreme-court-announces-split-decision-on-controversial-immigration-programs/

[4] Birchfield v. North Dakota, Bernard v. Minnesota, and Beylund v. Levi

[5] http://www.lifenews.com/2016/06/21/obama-administration-forces-california-churches-to-pay-for-abortions

[6] http://www.reuters.com/article/us-usa-court-guns-idUSKCN0Z61JE

[7] http://townhall.com/tipsheet/katiepavlich/2016/06/22/the-susan-collins-gun-control-bill-is-a-nightmare-for-innocent-americans-n2182134

Constitutional Corner – Death by a Thousand Cuts – Our Constitution of “Reasonableness”

I listened to a radio show recently where two supposed conservatives were discussing the Orlando shooting.  One brought up Australia where forced confiscation of certain (but not all) guns has led to a supposed decrease in gun-related crimes.[1]  One commentator suggested that a repeal of the 2nd Amendment could produce similar results.  Had the radio program a call-in option I would have expressed the following view:

The 2nd Amendment did not and does not create a right to “keep and bear firearms.”  The opinion that it does is prevalent among many on both the left and right, but especially among what I will affectionately call “gun-grabbers.”  Even today you will find on the Whitehouse.gov website the statement: “The Second Amendment gives citizens the right to bear arms.”[2]  Were this true, the obvious way to negate or reverse this apparently positive right would be to repeal the 2nd Amendment.  Thus we see calls for exactly that following nearly every mass shooting in recent history.  “Get rid of the 2nd and you can get rid of guns, which will save all these people from slaughter,” goes the meme.

What the 2nd Amendment actually accomplishes is quite different than grant a positive right, it prohibits the federal government (and through the Supreme Court’s contrived “Incorporation” doctrine, the States) from infringing on a pre-existing right to bear arms in defense of self and home.  Long before the 2nd Amendment came along the Founders were affirming this right of bearing arms in strong terms.

The Founders recognized that the right to defend one’s self and home, with appropriate weapons, is a right under natural law, and would exist with or without the 2nd Amendment.  A Texas Court in Cockrum v. State (1859) said it best: “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.”

The 2nd Amendment should not have been necessary.  One of the chief arguments in 1787 against adding a “Bill of Rights” was that the federal government was provided with very limited and enumerated powers.   “For why declare that things shall not be done which there is no power to do?”  says Alexander Hamilton in Federalist 84.  No power was delegated the national government to regulate speech, control the press, conduct unreasonable searches, or… control the ownership of guns.  The preamble to the “Bill of Rights” states the purpose of these amendments was simply to prevent misconstruction of the Constitution and abuse of its powers.  There is no mention of granting positive rights.  Since the Constitution provides the federal government no power whatsoever (that I can find) to regulate firearms, except as concerns their use in the military (Article 1, Section 8, Clauses 12 & 16) or as incidental to interstate commerce (Article 1, Section 8, Clause 3), the right to keep and bear arms as private citizens should be thought of as being secured first by the Ninth Amendment, and then by the Second, reinforced by the Tenth.

While I see the 2nd Amendment as a redundant protection; I nevertheless would not countenance its repeal.  Opposed by people with seemingly little appreciation for true liberty or how our Constitution was intended to work, those who wish to have the means to defend themselves from evildoers (or their government) need all the protection they can get.

That’s where the argument should end, but it doesn’t.  We have turned our Constitution of limited and enumerated powers instead into a Constitution of “reasonableness.”  Is it reasonable to try to keep firearms out of the hands of felons and the mentally deranged?  Is it reasonable to restrict the ownership of flamethrowers, Gatling guns, bazookas and other such weapons?  Of course it is.  But the constitutional power to do so is completely missing.  So instead of modifying the Constitution to provide the government with power we the people deem to be necessary and proper, we sit idly by while the government assumes that power without our consent, with or without the court’s acquiescence.  And thus the Constitution suffers yet another “cut.”

The Death of a Thousand Cuts, practiced in China from the tenth century until its abolition in 1905, was a horrible way to die.  But that is precisely the death our Constitution is suffering.  Soon, there will be no limitations left.  Many feel we have reached that point already.  The Constitution then becomes a charming artifact of a bygone era, pleasant-looking when hung on a wall or ensconced under glass, but no longer of practical use – irrelevant.  That’s where we are headed unless “We the People” wake up and decide to take ownership of our document.

[1] It is highly disputed whether Australia’s confiscation and accompanying buy-back program led to the decline.

[2] www.whitehouse.gov/our-government/the-constitution