Constitutional Corner – The Left’s War on Speech

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The Progressive Left is engaged in a war on free speech. Don’t take my word for it, the headlines are ubiquitous: “Attack on conservative speaker stuns Middlebury College,” from the Boston Globe; “Commencement speakers: Conservatives need not apply” from the LA Times; “Protesters disrupt town-hall healthcare talks,” from Reuters.

If these articles don’t convince you, read a couple of books on the topic, one by a liberal herself. Kirsten Powers, whose liberal credentials are impeccable even if she does appear on Fox News, has written “The Silencing: How the Left is Killing Free Speech.” Another recommendation is “The Intimidation Game: How the Left Is Silencing Free Speech,” by Kimberley Strassel. Another is “Shut up, America – The End of Free Speech” by Brad O’Leary. I’ve not read Powers’ or O’Leary’s books, I only glanced at them on Amazon, but I have read Strassel’s, and it’s a real eye-opener.

If these books don’t convince you, check out British commentator Jonathan Pie on YouTube. The segment is called “How and Why” and I warn you right now that Pie’s language is not for the faint of heart. Through his profanity he reveals “how and why” Donald Trump got elected, in his view of course, and he minces no words.

Here are a few of Pie’s G-rated quotes: “We have made people unable to articulate their positions for fear of being shut down.” “Every time someone on the Left says ‘You mustn’t say that’ they are contributing to this culture [of being shut down].” “It’s time to stop silencing your opponents… Engage in the debate; talk to people who think differently to you and persuade them of your argument.” Even with 3.3 Million views, it is obvious that most on the Left have either not listened to Pie’s YouTube rant, or have, and have dismissed it out of hand and gone back to business as usual.

I’m certainly not the first to use the “War on Speech” phrase, and I doubt I’ll be the last.  The war takes place on many fronts and involves many tactics but the most common tactic is intimidation. Intimidate public speakers into silence, intimidate people and businesses into abstaining from making political contributions. In short, intimidate everyone who believes differently than you. Force them to shut up, lock their doors and stay out of politics.

Brendan Eich worked for years as Mozilla’s Chief Technology Officer. In 2008, he gave $1,000 in support of California’s Proposition 8. Proposition 8, you may recall, amended the California Constitution to affirm marriage to be between a man and woman.  This was in response to passage of Proposition 22, which made the same affirmation through a simple resolution, but which the California’s Supreme Court had struck down. Prop 8 passed with 52% of the vote and California’s Constitution was amended.

Six years later, Brendan Eich was appointed Mozilla’s CEO. Immediately, an online “shaming” began over his then six-year old contribution to the Prop 8 campaign. Eich lasted 11 days as CEO before being forced to step down.

Eich was fortunate all he lost was his job. Other Californians were less fortunate once the Prop 8 contributors list was made public. Leftists could now use Google Maps to search for neighbors who had contributed, and then the “fun” began:

  • A restaurant manager made a modest $100 donation in support of the proposition. Bad move. The restaurant suffered a boycott, trash-talking reviews on the internet, and mobs who blocked their doors and shouted “Shame on you” to arriving customers. Restaurant owners were forced to cut hours and lay off employees, some of them, ironically, homosexuals.
  • Activist groups launched boycotts of the Sundance Film Festival, based in Utah, solely because some Prop 8 donations had come from that state.
  • The owner of a chain of small grocery stores noticed flyers appeared under the windshield wipers of customers, maligning him for his donation. Three different Facebook pages sprang up urging a boycott of the store. Protestors occupied the entrance to the store, handed out flyers and demanded people not shop there. Customers were harangued to sign boycott petitions. One activist loaded up a shopping cart full of groceries and, once it was rung up at the register, refused to pay. The owner of the stores had to install security cameras over fear of product tampering.
  • Lawyers who had worked on the Prop 8 campaign naturally received hate emails and phone calls, including recommendations to “Burn in hell.”
  • A New York artist who donated and who, ironically, made her living by painting drag queens and gay parades suddenly found two reporters waiting outside her house asking why she contributed. Reviews of her art took on a new tone.
  • A teacher who supported Prop 8 was told by activists that they would call all the parents of students in her school and inform them of her “despicable” action.
  • Flyers appeared on trees in the neighborhoods of contributors telling neighbors of their support. A flyer was wrapped around a brick and thrown through the window of a Lutheran church.
  • A statue of Mary was defaced on the eve of the election. Car windows were smashed, cars keyed, tires deflated, all because people had the audacity to “speak” through their political contributions.

Realize that these were not donations to a candidate or his campaign; there was no possibility of encouraging corruption or gaining a quid-pro-quo; this intimidation sent a simple message: don’t donate to, i.e., don’t speak politically about causes with which we disagree.

Of course, the homosexual lobby got their ultimate revenge when the Supreme Court struck down all constitutional restrictions over same-sex marriage in the Obergefell v Hodges decision.

But lest you think this is all about Prop 8, it certainly is not.

Conservative and even some liberal speakers are routinely dis-invited to College campuses when some “offended” group complains. Those that are allowed to speak encounter infantile disruptions by groups and individuals who attempt to shout them down. Even the Chancellor of Berkeley, Nicholas Dirks, whose liberal credentials we can assume are also impeccable, was prevented from holding a campus forum on Civility.  “Civility? We don’t need no stinking civility, we be college students.”  Unfortunately, this group of babies will one day be in leadership positions.

Riots in Berkeley over a scheduled talk by homosexual conservative Milo Yiannopoulos caused hundreds of thousands worth of damage and the same was promised if Ann Coulter was allowed to speak.  She was given the opportunity to speak when few students would be available.  She declined.

TV host and transgender-rights activist Janet Mock, conservative writer Ben Shapiro, Illinois state attorney Anita Alvarez, writer Charles Murray, Palestinian activist Bassem Eid, rapper Action Bronson, Massachusetts General Hospital physician Emily Wong, then CIA Director John Brennan, black conservative Jason Riley, and many, many others have all been uninvited to speak or disrupted when they tried.

One of the complaints of these children-in-adult-bodies is that they are only trying to stop “speech that hurts.” The problem here is that, much to these people’s chagrin, there is no constitutional right to not be hurt or offended by something. If you think you’ll be offended by what someone has to say, don’t go to hear them. As author Salman Rushdie points out, people who declare they were offended after reading a 600-page book “have done a lot of work to be offended.”

We’ve all seen videos of the Townhall meetings disrupted by boos and catcalls when a Congressman says something the Left dislikes. If these people think their behavior is going to win them converts and grow their base, I think they have misjudged. As near as I can tell, such thuggish behavior only serves to further polarize a community.

Then there is the growing movement to shut down those who entertain reservations about climate-change and/or whether it is man-caused. Some state Attorneys General as well as the US Justice Department under Obama were talking about charging Exxon Corporation and individuals under the Racketeer Influenced and Corrupt Organizations Act, otherwise known as RICO. Their crime? Exercising their collective right to speak.

In the 1970s, scientists told us to fear global cooling and warned about the coming ice age. In 1970 alone, The New York Times, The Washington Post, The Boston Globe and the Los Angeles Times all published stories with headlines like “Scientists See Ice Age in the Future.Time magazine’s cover story on January 31, 1973 (still posted on the magazine’s website) was entitled: “The Big Freeze.”  In the last two decades it was “global warming.” When that was disproven it became undefined “climate change.” What will “science” claim in 2030?

Next to feel the heat are those who choose to speak out about the risks of mandatory vaccinations.

Anti-Vaxxers… please die in a fire” read one headline. A recent outbreak of measles among guests who had attended Disneyland created a stir. Of the 34 Disneyland guests who contracted measles and who reported their vaccination history, six said they had already been vaccinated against measles. Obviously measles vaccinations don’t always protect. Conversely, from 2004-2015, there were 108 deaths reportedly due to the vaccination itself.[1]

Of course, we all remember the attempt by the Obama administration to keep the Tea Party movement from speaking out, or at least slow it down until after the 2012 election by delaying their tax-exempt applications at the IRS. The President blamed it on some overzealous Cincinnati staffers, which proved to be a bald-face lie after IRS emails were released. Lois Lerner remains uncharged.

Corporations that contribute to Republican politicians or conservative causes also become the target of intimidation. Here’s how it works:

The American Legislative Exchange Council provided Florida with model “Stand Your Ground” legislation, which Florida’s legislature passed. Trayvon Martin was killed accosting George Zimmerman and, due to Florida’s new “Stand your Ground” law, Zimmerman was not prosecuted. Thanks to Florida’s contribution disclosure laws, the leftist group Color of Change discovered that credit card company, Visa, Inc. contributed to ALEC. Color of Change then demanded that Visa stop contributing to ALEC or risk derogatory radio ads in the hometown of every Visa board member, holding each of them accountable for Martin’s death. Similar threat letters were received at McDonald’s, John Deere, Coca-Cola, Pepsi, Amazon, Wendy’s and Proctor & Gamble — ALEC contributors all. What message did this send?

Where disclosure laws exist, all this is completely legal — unethical perhaps[2] — but legal. Where such laws are lacking, the Left is usually successful in getting contributor lists leaked. Shutting down corporate “political speech” by reversing or nullifying Citizens United is a long-shot, so the Left intends to get all the mileage they can from intimidation. And since the high Court sustained the requirement for disclosure in the Bipartisan Campaign Reform Act of 2002, law at question in the case, the Left has all the information they need to inflict their favorite weapon.  For more on the issue of the Court and anonymous “speech,” my friend Rob Natelson has written this great article.

Perhaps the most despicable action to suppress individual speech, actually just to punish those who hold different views and have the audacity to express them, has been the action taken against the Benham brothers whose TV show “Flip It Forward,” was set to premiere on HGTV last October. The noble focus of the show was to help families purchase homes they otherwise could not afford. To punish David Benham for leading a 2012 prayer rally outside the Democratic National Convention and speaking his views on homosexuality, their show was cancelled when the homosexual lobby started calling.

Chip and Joanna Gaines, hosts of HGTV’s popular “Fixer Upper” show, are under similar fire because their pastor preached that homosexuality is a sin, the implication being that if the Gaines attend that church they must feel the same way. And if they do they can’t be allowed to succeed in cable TV. Of course, some on the Right pointed to a similar connection between Barack Obama and Reverend Jeremiah Wright; the Left saw no problem: Wright had it right.

Finally, the Left’s war on “speech they find offensive” has been extended to individual words. Seattle police can no longer call suspects, “suspects” in their written reports, they must now be called: “community members.” That is going to make for some absolutely hilarious police reports. In utopian Washington State, prisons are told to phase out the word “offender” and replace it with terms like “individual,” “student,” or “patient.” In several states, most recently Pennsylvania, the word “sex” is being quietly and administratively redefined in the statutes to include “gender expression.”

“When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’ ’The question is,’ said Alice, ‘whether you can make words mean so many different things.’ ’The question is,’ said Humpty Dumpty, ‘which is to be master — that’s all.”

Some of this would be funny if it weren’t so sad. Even sadder is the typical American who says nothing in the face of this blatant intimidation. The typical American doesn’t speak out about much of anything, but some still feel strongly enough about an issue to support it financially. That is unlikely to continue once their cars are keyed or rocks thrown through windows — message received loud and clear.

George Washington once said: “If freedom of speech is taken away, then dumb and silent we may be led, like sheep to the slaughter.” Benjamin Franklin added: “Whoever would overthrow the liberty of a nation must begin by subduing the freeness of speech.”

Conclusion: We need to nip this “war” in the bud.

Justice Oliver Wendell Holmes famously said that “Free speech does not give you the right to shout fire in a crowded theater.” That’s fine, I understand that there is a safety risk accompanying some speech. The problem today is that our entire society has been turned into a crowded theater, and talking about any controversial topic is equivalent to shouting “Fire.”

Here are my suggestions:

  • Read the books mentioned above.
  • Search out other essays on the topic.
  • Read and understand the Citizens United opinion, particularly Justice Thomas’ concurring opinion.
  • Fight against disclosure laws wherever they are proposed. Transparency is a worthy goal, but intimidation will be the result.
  • Defend those who bravely speak the truth.
  • Show up at Town Hall meetings, the other side will.

Yes, I think we can all agree that there is too much money in politics, but, like it or not, the Courts have found political contributions to be “speech,” so we must consider all the second-order effects of “regulating” it.  The Left has found intimidation to work, it will continue.

The Left’s “War on Speech” must be vigorously opposed or soon the government will be telling you what you may say and what you may not. Is this the America we want? If it is not, we have some work to do.

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[1] http://healthimpactnews.com/2015/zero-u-s-measles-deaths-in-10-years-but-over-100-measles-vaccine-deaths-reported/

[2] Got to be careful, the Right likes to pressure Leftist-cause contributors as well.

 

Constitutional Corner –100 Days of Trump — and the Constitution

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Well, Mr. Trump has survived his first 100 days in office — many on the Left were hoping otherwise — but at least two American cities are now formally calling for his impeachment.[1] What has he accomplished? Better yet, what has he done to deserve calls for impeachment after such a short period? And how does all this relate to the Constitution?

I’m sure you, my alert readers, realize that there is nothing magic about a President’s first 100 days in office; the milestone is an artificial contrivance, totally arbitrary, and essentially worthless in determining the effectiveness of a President and/or his administration. In fact, that we are even stopping to perform an assessment of the President, no matter what the timeframe, points to a hopelessly warped perspective on the office. Did the Founders take time to assess Washington’s, or Adams’ or Jefferson’s first 100 days in office? Of course not; such would be a complete waste of time, as will this one. Part of me wants to stop right here and instead discuss something of actual importance to the future of America. But the precedent has set (first suggested by FDR) and the various media organizations have each filed their reviews, so why don’t I do so as well? Besides, it is doubtful that any of the “professional” assessments will compare Trump’s performance with his Constitutional duties: who cares what the Constitution says anyway?  Why is that even relevant?

But Trump did set himself up for this by announcing a 100-Day Plan[2] on October 23, 2016, as previous Presidents have done. I was surprised to find there’s even a Wikipedia page[3] devoted to this subject, and a similar one on Obama;[4] but apparently none on earlier Presidents. (Spoiler Alert: as might be expected, there is a decidedly negative tone to Trump’s Wiki page when compared to Obama’s).

The Economist, The Wall Street Journal, CBS, NBC, ABC and Fox all did assessments; even the White House posted one.[5]

Today, we see the President as the leader of the government, even those who should know better. On election night, November 2, 2010, Rep. John Boehner, celebrating the Republican victory in Congress, said: “while our new majority will serve as your voice in the people’s House, we must remember it is the president who sets the agenda for our government.” [emphasis added].  The Founders would disagree. To the Founders, Congress, as, to quote Boehner, the “voice of the people,” should set the agenda for the government, not the President.

But before we ask: “How’d Trump do?” Let’s first ask: “What should he have done?” To paraphrase Hamilton: “Why get all excited about someone with the “confined authorities of a President of the United States?”[6]

Presidential Activity

The President’s Constitutional powers are found in Articles 1 and 2 of the Constitution. I’m not going to take the time to list those few powers there; I encourage you to review them.  But I will mention what I feel is the President’s most important duty beyond keeping the country safe from sudden attack: he is to “take care that the laws be faithfully executed.”

You’ll notice in reviewing the President’s powers and responsibilities that there is no mention of issuing Executive Orders, giving speeches, firing officials he has appointed, etc. Although some scholars insist that the mention of “executive power” in Article II Section 1 grants the President no specific power, the Courts have decided the phrase implies certain “traditional powers of executives,“ among them being the power to issue orders that direct the activities of executive agencies, i.e. Executive Orders.

So, assuming Executive Orders to be a legitimate implied power of the President, how has Mr. Trump done in this category?

First, you can find an explanation of each of the twenty-four Executive Orders issued by Mr. Trump in his first 100 days here.[7] This was the most EOs issued in the first 100 days by any President since FDR.

Trump also signed 22 presidential memoranda, 20 presidential proclamations, and signed 33 bills into law. About a dozen of those bills rolled-back regulations finalized during the last months of Barack Obama’s presidency using the authorization provided by the 1996 Congressional Review Act.[8] Here’s a report[9] which concludes the Congressional Review Act could even be used to reverse actions going back to the beginning of the Obama administration. The report concludes: “every regulation, policy statement, and the like that in Congress’s opinion has not yet been properly submitted for its review remains open for invalidation…”

Of the twenty-four EOs, four bear mention:

Trump’s very first order, signed on his first day as President and responding to a campaign pledge, ordered the Secretary of Health and Human Services (Secretary) and the heads of all other executive departments and agencies having authorities and responsibilities under Obamacare, to “exercise all authority and discretion available to them to waive, defer, grant exemptions from, or delay the implementation of any provision or requirement of the Act that would impose a fiscal burden on any State or a cost, fee, tax, penalty, or regulatory burden on individuals, families, healthcare providers, health insurers, patients, recipients of healthcare services, purchasers of health insurance, or makers of medical devices, products, or medications.” Translation: find ways to waive Obamacare’s mandates.  Did Trump have the authority to issue this order? Remember, his foremost duty is to take care that the law is faithfully executed. Fortunately for Trump (and Obama before him), the law was written to allow the Secretary of HHS enormous discretion in granting waivers; the Obama administration set precedent by granting waivers to politically favored groups and businesses.

Perhaps Trump’s most controversial orders were his two efforts to impose a temporary ban on issuing visas for immigrants from, first seven, then six predominantly Muslim countries. Both orders were halted by federal courts on patently specious reasoning that the temporary bans amounted to bans on Muslims.

Last week we were entreated to listen to oral arguments broadcast on CSPAN from the 4th Circuit Court of Appeals, which had been asked by the administration to overturn a nationwide injunction placed on the EO by a federal district judge in Maryland. From the judges’ questions of first, Acting Solicitor General Jeffrey Wall (who did an amazing job, in my view) and then ACLU lawyer Omar Jadwat, it quickly became clear that several of the judges had already decided that statements made by then-candidate Trump established the irrevocable motivation for the Order, and that it amounted to a ban on Muslims — period.

That the EO does not amount to a ban on Muslims is easily shown by the fact that Christians, Jews, Animists, even Atheists from the six listed countries are as affected as are Muslims from those listed countries, while Muslims from any of the scores of the other predominately-Muslim countries around the world not listed in the ban are not affected. In the face of this argument, how anyone can still insist that the order is a ban on Muslims is beyond me. Yet the Left clings to that accusation like a child clinging to his “blankey.” Sad. And a sad commentary on the health of political debate in this country. Perhaps the most revealing testimony during the 4th Circuit hearing was the admission by Omar Jadwat that Trump’s EO would likely be constitutional – if it had been issued by President Hillary Clinton!

Another controversial order is Executive Order 13768,[10] signed on January 25, 2017. It directed the Justice Department to review federal funding given to cities and other localities which declare themselves as sanctuaries for illegal immigrants. I discussed this EO in a previous essay[11] so I won’t go further than to mention that, sure enough, the EO was challenged in court[12] and a partial injunction issued.

The last EO I’ll mention, technically issued two days after the “100 Days” ended on May 1st, is a bit more problematic.  It attempts an end-run around what is called the Johnson Amendment,[13] put in place by then-Senator Lyndon B. Johnson to make sure ministers who opposed his re-election would be prevented from doing so, at least from their pulpits.  The amendment empowered the IRS to revoke the 501(c)(3) tax-exempt status of any church which takes a position in favor of or in opposition to any candidate for office.  Rarely invoked,[14] the amendment is widely mis-understood by ministers across the country and results in a silencing of even permissible political speech from the pulpit.

The Order directs all executive departments and agencies to “respect and protect the freedom of persons and organizations to engage in religious and political speech.” In particular, the Secretary of the Treasury is restricted from taking “any adverse action against any individual, house of worship, or other religious organization on the basis that such individual or organization speaks or has spoken about moral or political issues from a religious perspective, where speech of similar character has … not ordinarily been treated as participation or intervention in a political campaign on behalf of (or in opposition to) a candidate for public office …”  The President was immediately sued by the Freedom from Religion Foundation, which argued that the order was unconstitutional because it grants preferential treatment to religious organizations while requiring secular non-profit organizations to still abide by the law. Since there is nothing in the Constitution which prohibits the federal government from favoring a religion or even religion over non-religion, I would hope the argument gets thrown out. But it is more likely that FFRF will find a favorable judge to hear their complaint and Trump will gain yet another nationwide injunction.

The problem I have with this particular EO is that it amounts to an order to “take care that the laws not be faithfully executed.”  A better approach would be to pursue something like the Free Speech Fairness Act (H.R. 781/S. 264)[15] or just urge Congress to repeal the Johnson Amendment outright. Instead, the President chose to use an EO to effectively repeal the amendment. The President is thus legislating in place of Congress. Barack Obama was rightfully criticized for not enforcing illegal immigrant deportation law; Trump can and should be similarly criticized.

Congressional Activity

Presidential candidates can and do make outlandish pledges during their campaigns, promises they have no hope of delivering, at least not by themselves; but that’s politics. A successful President, even one whose party enjoys a majority in Congress, must still propose legislation that a majority in Congress will support. Given that, Trump’s pledge to “repeal and replace” Obamacare was on shaky ground from the outset since some Republicans in Congress were bent on outright repeal, others on replacement, while the Democrats in Congress insisted on retaining the current law despite its many faults and impending failure. The first version of “repeal and replace” in the House failed while the second passed, only to arrive DOA on the Senate floor. Who knows what the final version will look like?

Nevertheless, Congress has been otherwise busy since January 20th. The 115th Congress has passed 33 bills that have been signed into law, 13 of them revoking rules passed by the Obama administration. By contrast, the 114th Congress passed only 11 bills during its first 100 days, none invoking the CRA. This difference is largely due to whether the Congress and President were members of the same party. But compare this with the 111th Congress which, in the first 100 days of Barack Obama’s first term, revoked not a single rule passed in the waning days of the Bush administration.

The other major accomplishment of the administration’s first 100 days was passage of a budget which avoided a government shutdown. But how much of the spending in this budget was constitutional and how much was not? The vast majority of Americans appear to have accepted the claim that everything Congress spends money on is constitutional, and from a Court perspective they are right. Two decisions in the 1930s[16] gave Congress the authority to spend money on anything which enhanced the “general welfare” – as Congress defined it! Perhaps we’ll examine the details of the budget in a future essay.

Judicial Activity

President Trump’s greatest success in the judicial arena had to be his successful nomination and confirmation of Judge Neil Gorsuch to fill Antonin Scalia’s empty seat on the Supreme Court. In unprecedented fashion, the appointment was opposed en masse by Senate Democrats as retribution for Senate Republicans not proceeding with a confirmation hearing for Obama appointee Judge Merrick Garland. Justice Gorsuch has already made his mark on the Court, joining Justice Alito in not participating in a traditional sharing of law clerks to pool their resources in deciding which cases to hear or deny from the thousands of petitions that are sent to the high court every year. This means Gorsuch’s law clerks will be tasked with reviewing every petition in search of cases warranting the high court’s notice. As a former clerk of Justice Kennedy,[17] Gorsuch is very familiar with the process.

Gorsuch joined the court in time to hear the last 14 cases on the Court’s docket, including one important case for religious freedom proponents: Trinity Lutheran Church vs. Comer.

Of concern now for the President, will be filling the 129 federal judgeships that remain open and by doing so provide some balance for the overwhelmingly liberal federal judiciary.

A list of the opinions rendered by the Court this term can be found here.[18]

A President’s first 100 days may in fact provide a useful measuring stick for some; I’m not impressed. There are 1360 days remaining in Trump’s (first?) term; plenty of time for great success — and great failure.

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[1] http://www.nbcbayarea.com/news/local/Richmond-City-Council-Passes-Resolution-Calling-for-Trump-Impeachment–414514223.html

[2] https://www.usatoday.com/story/news/politics/elections/2016/10/22/trumps-gettysburg-address-outlines-first-100-days/92596734/

[3] https://en.wikipedia.org/wiki/First_100_days_of_Donald_Trump%27s_presidency

[4] https://en.wikipedia.org/wiki/First_100_days_of_Barack_Obama%27s_presidency

[5] https://www.whitehouse.gov/100-days

[6] Federalist 71

[7] https://www.whitehouse.gov/briefing-room/presidential-actions/executive-orders

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

[9] http://www.heritage.org/government-regulation/report/the-reach-the-congressional-review-act?utm_source=THF_Email&utm_medium=email&utm_campaign=TheAgenda&mkt_tok=eyJpIjoiTWpKbU1HUmpORE16WldVeiIsInQiOiJjdzFNcW8yV0dZdHA1MmRIQW1HOVFyXC9nMkFLUU96eHpcLzZIdTBuSERuS1dsd1hZYU9pa1IyVTB4ekM0b0FuTFI4UDIxVUFOMXY3NExTcVJyTVhydjJqcFlKQmZhT1B4R0d2Tys4SXBFdElMNUpjWlRGK1FWZFRoSHNRZFpFU002In0%3D

[10] https://www.federalregister.gov/executive-order/13768

[11] http://constitutionleadership.org/2017/04/09/constitutional-corner-sanctuary-cities-and-the-constitution/

[12] http://www.cnn.com/2017/04/25/politics/sanctuary-cities-injunction/

[13] https://en.wikipedia.org/wiki/Johnson_Amendment

[14] Only one church is known to have lost its tax-exempt status as a result of the law, and then only temporarily.

[15] https://www.congress.gov/bill/115th-congress/house-bill/781

[16] U.S v. Butler (1936), Helvering v. Davis (1937)

[17] Gorsuch clerked for Justice Anthony Kennedy

[18] https://www.supremecourt.gov/opinions/slipopinion/16

Constitutional Corner – Musings on the Article V Convention Simulation

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Which will it be?[6]

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

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

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

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

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

[5] Alexander Hamilton, The Farmer Refuted, 1775

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

Constitutional Corner – “With a Firm Reliance on the Protection of Divine Providence”

Open as PDF

On “We the People – The Constitution Matters,” my Friday morning radio show on WFYL AM1180 radio, we’ve been picking apart and discussing each of the principles of government we find imbedded in the Declaration of Independence.  It has been a wonderful, rewarding project.  We studied each and every principle we discovered, whether part of Jefferson’s original thoughts or a result of the final “wordsmithing” by the Congress.  These foundational principles are easy to discern, and it is equally easy to see their importance to the success of republican government.  On the other hand, it has been quite disconcerting to realize the extent to which we have departed from these principles and, as we look around the American landscape today, to see the results of doing so.

These many principles of government, principles that even define our human existence, are as true today as they were in 1776; principles, like John Adams’ facts, are “stubborn things.”  During the Founding Period the principles were readily accepted – they were interwoven into American society.  You encountered them in letters, speeches, essays, and newspaper articles of the time.  Today — not so much.  Today, they have largely been replaced by the principles of humanism, progressivism and globalism.

Although some of these principles were hotly debated at the time, such as whether a strong national government or a loose confederation of sovereign states, or some combination of both, was the better form of government for the united States, other principles were accepted as self-evident truths, such as that God was the source of unalienable rights and that He oversaw the affairs of men.

We knew there would come a time when we would find ourselves at the end of the document; it was inevitable; that is where I find myself today.

After laying out the colonists’ philosophy of government, rehashing the complaints the colonists had repeatedly expressed to King and Parliament, and showing how a break in their political bands was both necessary and appropriate, the Declaration concludes with these words:

“And for the support of this Declaration, with a firm reliance on the Protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.”

But as presented to Congress by the committee on 28 June, the second clause (“with a firm reliance… “) was absent.  It had not been in Jefferson’s rough draft, nor had it been added by anyone on the committee.  Jefferson had written:

“And for the support of this Declaration, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.”

While Jefferson later in life complained that Congress had “mangled” his work, in this specific case, I believe the additional clause was a great improvement.  The added clause contains a key principle of colonial thought and deserves discussion even today.

But if Mr. Jefferson did not intend the colonists to proclaim “a firm reliance on the Protection of Divine Providence,” who did?  There are fifty-one candidates.

Perhaps it was New Jersey delegate and Presbyterian minister John Witherspoon, whose 1776 sermon “The Dominion of Providence over the Passions of Men,” widely published in the colonies, brought him enough attention to be appointed a delegate to this Second Continental Congress.  Serving as President of the College of New Jersey (later, Princeton) from 1768 to 1779, Witherspoon had taught such prominent men as future President James Madison, future Vice-President Aaron Burr, nine cabinet officers, 21 senators, 39 congressmen, three justices of the Supreme Court, and 12 state governors.

Perhaps it was Massachusetts delegate Robert Treat Paine, who would go on to serve as a military chaplain during the war.  Perhaps it was Georgia delegate and ordained minister, Lyman Hall.  New Jersey delegate Francis Hopkinson was a church music director and choir leader who had edited a famous American hymnbook.  I could see him suggesting the new clause.  Connecticut delegate Roger Sherman had trained as a minister and had written the doctrinal creed for his denomination, a creed that no doubt contained a similar sentiment.  Pennsylvania delegate Benjamin Rush began the first Sunday School in America and founded the country’s first Bible Society; his co-delegate, James Wilson, was trained as a clergyman before leaving Scotland for the new world.  In fact, at least 29 of the Declaration’s signers had been educated in schools whose primary and declared purpose was the preparation of Christian ministers.  But the phrase need not have been suggested by someone with a strong Christian faith. A belief in divine providence was commonplace.

Whoever added the clause will forever remain a mystery, since no notes survived of the day’s deliberations.  But what of the thought the clause contains?  Did the fifty-six men who signed the Declaration indeed share a “firm reliance on the protection of divine providence?”

Jefferson called his essay “an expression of the American Mind,” an amalgamation of the “harmonizing sentiments of the day.”  The entire Congress had participated in the editing.  If the protection of divine providence had not been a widely shared sentiment, it is unlikely it would have been suggested, or retained.  I believe it safe to conclude that these men did indeed feel it appropriate to call on God’s protection in this way.

Were they justified in doing so?

An honest appraisal of early American history is replete with examples of individuals and groups calling upon God for favor, guidance and protection, from the first settlers to the first Congress.  The settlers were, by and large, Christians who understood their covenantal relationship with the Creator of the universe.  They asked for, they expected, and they received, God’s protection.

The first official act of the Jamestown settlers in 1607 was to erect a cross at Cape Henry and thank God for their successful crossing.

The first session of the First Continental Congress in 1774 opened with this prayer:

“O Lord! our  heavenly Father, high and mighty, King of kings, and Lord of lords, who dost from thy throne behold all the dwellers on earth, and reignest with power supreme and uncontrolled over all kingdoms, empires, and governments. Look down in mercy, we beseech thee, on these our American States who have fled to thee from the rod of the oppressor, and thrown themselves on thy gracious protection, desiring to be henceforth dependent only on thee … All this we ask in the name, and through the merits of Jesus Christ thy Son and our Savior.  Amen”

Protection or provision, both were part and parcel of God’s providential care.

There was perhaps no greater single beneficiary of that providence than General George Washington himself.  Whether it took the form of an inexplicable fog that enabled the successful withdrawal of his forces from Long Island, the sudden snowstorm that kept Hessian troops hunkered down in their quarters at Trenton, or the run of shad that fed his desperate troops at Valley Forge, Washington experienced repeated examples of divine providence. In a 1778 letter to Thomas Nelson, he wrote: “The Hand of providence has been so conspicuous in all this, that he must be worse than an infidel that lacks faith, and more than wicked, that has not gratitude enough to acknowledge his obligations.”[1]

We do not have the time here to recount the many, many examples of divine providence in the history of colonial America.  I refer you to books like: “America’s Providential History,” by Stephen McDowell and Mark Beliles; “The Light and the Glory,” by Peter Marshall and David Manuel; “The Christian History of the American Revolution,” By Verna M Hall, and “What Hath God Wrought” by Dr. William P. Grady, to cite just a few.

Suffice it to say that to the Americans of the Founding Period, God’s providence was an ever present fixture of their lives — kept there by frequent prayer.

Another question comes to mind: For whose benefit was this clause added?  Parliament’s?  The King’s?  Their “Brittish (sic) brethren?”  I think not.  Neither the King nor the Parliament would care much one way or the other whether these “rebels” invoked the name of God in their action.  I submit the clause was added instead with the American people in mind, to reassure them that the step their leaders were about to take would not fall outside the will of God, but lay wholly within it.  This was the message Americans had heard from the pulpits of colonial America for the previous 15-20 years: they had a Christian duty to resist tyrannical government.  And now that the fateful day had arrived, it would have been comforting for the people to see that their leaders were not so “puffed up” as to think they could pull of so momentous an act without divine partnership.

As President, George Washington would proclaim: “It is the duty of all Nations to acknowledge the providence of Almighty God, to obey his will, to be grateful for his benefits, and humbly to implore his protection and favors.”[2]

In 1816, First Chief Justice of the Supreme Court summed it nicely by writing: “Providence has given to our people the choice of their rulers, and it is the duty, as well as the privilege and interest of our Christian nation to select and prefer Christians for their rulers.  National prosperity can neither be obtained nor preserved without the favor of Providence.”[3] (emphasis added)

Pledging their “lives, their fortunes and their sacred honor” certainly signaled the gravity of the situation, but these were finite resources pledged by finite men.  By contrast, the  signers were also asking the One who owned “the cattle on a thousand hills” to bring His infinite resources to bear.

So where is God’s Providence today?

“I am the Lord, I change not.”[4]  I think we can safely affirm that God’s providential hand is as available today as it was in 1776.  Yet, American society today, at least publically, sees no need to ask for God’s providential help. Under these circumstances, can we expect God to provide it?  God promises in 2nd Chronicles 7:14[5] to heal the land if His people will but humble themselves, pray, seek His face and turn from their wicked ways.  And certainly many American Christians have responded to this admonition. But how many more of our 320 Million Americans must do so before God will act?

In Rev John Witherspoon’s 1776 sermon: “The Dominion of Providence Over the Passions of Men,” referenced earlier, he concludes: “Nothing is more certain than that a general profligacy and corruption of manners make a people ripe for destruction. A good form of government may hold the rotten materials together for some time, but beyond a certain pitch, even the best constitution will be ineffectual, and slavery must ensue.”

America can move forward with a firm reliance on the protection of divine providence, or we can “roll the dice” and see what we can do on our own; the choice is ours.

At the end of the radio show on August 19th my two commentators and I discussed what topic to explore next; there are so many topics relevant to the problems America faces.  We decided to take on the topic of “Progressivism” and its effects on America.  What were the origins of progressive thought?  Who were the great expositors of that thought?  And what have been the effects?  I hope you’ll join us as we begin this new discussion on Friday, August 26th at 7-8am.  We’d love to hear your view.

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

[1] letter to Thomas Nelson, August 20, 1778.

[2] Thanksgiving Proclamation, 1789.

[3] October 12, 1816.

[4] Malachi 3:6 KJV.

[5] “If my people, which are called by my name, shall humble themselves, and pray, and seek my face, and turn from their wicked ways; then will I hear from heaven, and will forgive their sin, and will heal their land.”

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/#!

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 – 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

The Constitution’s Week in Review – 14 May 2016

Article 2:  Qualifications of the President.

Now that Ted Cruz has suspended his presidential campaign, the lawsuits will probably cease, leaving us to continue to guess what the phrase “natural born citizen” means today, and what it meant in 1787.

Article 2:  Abuse of Executive Power

On Monday 23 May, at 8pm I’ll be speaking on a webinar sponsored by Christian Financial Concepts on the topic of “Abuse of Executive Power.”  While researching that subject for the presentation, it came as no surprise to encounter new instances of such abuse by the Obama Administration.

Article 1, Section 9 states, in part, that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.”  Because of this clause, which requires that every penny the government spends be authorized in an appropriations bill, annual appropriations bills are a big deal and always a challenge getting passed on time; Continuing Resolutions (CRs) are often needed to keep the government operating.   Now we learn that the Obama administration thinks it does not need a Congressional appropriation in order to spend money.

Congress “zeroed-out” the appropriation for certain “cost-sharing” payments to Obamacare insurers.  The administration continued to make the payments anyway.

Congress learned of the payments and sued the administration and a federal judge has ordered[1] that this abuse of power must stop, although U.S. District Court Judge Rosemary Collyer immediately stayed her decision while an appeal proceeds.

Congress has what we commonly call the “power of the purse.” The Executive may not like the way Congress appropriates money, but, in the end, it is the people’s money and the Executive branch must follow the law.  I’m predicting yet another loss for the administration when this reaches the Supreme Court.

BTW, to register for my webinar on Executive Power Abuse go to: https://www1.gotomeeting.com/register/104506275.

Fifth Amendment: Remaining Silent:

The Supreme Court ruled (in Berghuis v. Thompkins, 560 U.S. 370 (2010)) that a person must positively and verbally assert their “right to remain silent,” that merely keeping silent is not evidence that you are employing your right against self-incrimination.

There will always be 10% who never get the word, even among lawyers, and many citizens have decided to go mute when confronted by police, even when there is no accusation that a law has been broken. I do not endorse this tactic.  Still, neither the lawyer nor the police involved in this incident[2] handled the situation well.  The lawyer failed to verbally assert her right to “remain silent,” and an inadequately trained policeman charged her with obstruction for that silence.

Actually, there is no right called “remaining silent” secured by the Constitution; as most of you know it is a right to not be compelled to testify against yourself, located as one of five protections in the Fifth Amendment.  It states: “No person shall be … compelled in any criminal case to be a witness against himself.”

Notice two elements here: there must be an element of compulsion – the police must be trying to force you or coerce you into saying something that could incriminate you, and it must be a criminal matter, not a civil matter.

There is, of course, a natural right to remain silent; you can’t be compelled to physically say anything, anytime, to anyone; that is a simple matter of biology.  But will there be repercussions if you decide to do so when interacting with police?

What we now call the “Miranda Warning” came from a 1966 case where the Court decided that anytime you are in police custody you must be apprised that anything you say, whether inculpatory or exculpatory, could be presented as evidence in a court of law.  Interestingly, Mr. Miranda was not advised of his right to counsel, which is a 6th Amendment protection, and he ended up signing a confession, thereby “testifying” against himself, which is a 5th Amendment protection.  The “Miranda Warning” thus combines elements of both 5th and 6th Amendments.

Secession

I’ve been following the on-again, off-again talk of secession in Texas for some time.  Apparently it’s on, again.  This week, the Platform Committee of the Texas Republican Party voted[3] to put a Texas independence resolution up for a vote at this week’s GOP convention.  As the linked article concludes: the independence resolution is unlikely to succeed. But that’s what a lot of people said about Donald Trump.

Meanwhile, in the states: “Fight’s On!” 

For the uninitiated, “Fight’s On!” is the expression we use in the Air Force as we prepare to engage in aerial combat training.  It alerts both sets of aircrew to the fact that an aerial engagement is imminent, be ready.

North Carolina passed their “Bathroom Bill” stating that the state’s residents must use public bathrooms that agree with their sex as documented on their birth certificate instead of the sex they may now “identify” with.  The Obama Administration has countered by both filing a so-called “civil rights” suit as well as threatening to withhold all federal education and public safety.  And North Carolina has countersued.  Fight’s on!

The warning for other states is clear: toe the line on declared federal policy or risk going broke.  And now every state in the union is asking itself whether this is worth fighting over or whether they must allow confused (or not so confused!) boys use the girl’s shower room.  In common parlance this is called extortion.

Using federal funding to force the state’s compliance with some federal policy is not new, it’s been going on for a long, long time (remember the mandatory 55 mph speed limit?).  And as long as states are willing to accept federal funding, indeed become dependent on it, such extortion will continue.  Congress is equally complicit; they wrote the law and appropriated the money that the Obama Administration is now holding hostage.

Forcing the states to accommodate the transgender community’s demands over bathrooms is merely the tip of the iceberg here.  Much more is coming.  Until the states “get a spine” and reject federal funds and the policies that come with them, the states can expect to be the target of continued extortion by this lawless administration.

Upcoming Events:

Lessons in Liberty.  Last chance to register! On May 16th join us to hear Dr. Jim Davids speak on “Choosing Godly Representatives,” from 7-9pm at the Foundation for American Christian Education.  Attend in person or online.  $10 either way.  Register at http://www.face.net/.

Constitution Seminar in Norfolk, VA.   You are also running out of time to register for a free Constitution Seminar next weekend in Norfolk! Sponsored by Concerned Veterans for America,  the seminar will be held from 8:30am-5:30pm (note new times) at the VFW Post 4809, 5728 Bartee St, Norfolk, VA 23502 (next to Military Circle Mall).  There is no charge but pre-registration is required through this Eventbrite link. There is no better deal around.

Constitution Seminar in Williamsburg, VA.  Hampton Roads residents will have a second opportunity to learn what their Constitution says and means by coming to a CLI Saturday Seminar on 11 June in Williamsburg, VA.  The seminar will be held from 9:00am-6:00pm at 133 Waller Mill Road, Williamsburg, Va.  Due to room size, this seminar is limited to 10 participants.  Pre-registration is required via email to: gary@constitutionleadership.org.

Constituting America continues to post new essays in their 90-Day Challenge.

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://constitution.com/oh-yeah-judge-rules-someone-overstepped-authority/

[2] http://www.nydailynews.com/news/national/lawyer-busted-staying-quiet-traffic-stop-files-lawsuit-article-1.2626245

[3] http://www.motherjones.com/politics/2016/05/texas-republicans-gop-secession-resolution

The Constitution’s Week in Review – 7 May 2016

Article 2:  Qualifications of the President.

On Friday, April 29, The Arizona Republic newspaper posted in their online edition two opposing viewpoints on the question of Ted Cruz’ eligibility as president.  The opinion opposing Cruz’ eligibility,[1] by Scottsdale resident Alan Korwin, stakes its claim on Vattel’s Law of Nations, which, as I’ve discussed in previous posts is flimsy support, at best.  Yes the Framers esteemed Vattel’s book, but why would they turn to international law to define an entirely domestic issue, particularly when they had readily at hand a long-standing definition under British law?  Even though Korwin quotes from John Jay’s letter to Washington on avoiding “foreign influence” in the office, he fails to see the implications of Jay’s opinion.  If Jay’s opinion/letter provides the justification for using Vattel’s definition, it automatically excludes Jay’s three foreign-born children from eligibility, something it seems unlikely Jay would have intended.  “The idea that a court must speak because the Founders didn’t define the term is nonsense.”  No, Mr. Korwin, because the Founders (actually the Framers would be more precise) didn’t define the term, we, in this case the Courts, must.

The alternate view[2], by Anthony Gaughan, an associate professor of law at Drake University, takes the position that although Cruz was clearly a Canadian citizen at birth under Canadian law, he was equally an American citizen at birth under American law.  Gaughan fails to point out that Canada did not recognize dual citizenship at the time of Cruz’ birth, but this is immaterial, the U.S. did.  Gaughan notes that the First Congress defined the term (in the 1790 Naturalization Act, which he doesn’t name), but fails to point out that five years later the Fourth Congress amended the law and removed the reference to “natural-born citizen.”  If the First Congress defined “Natural Born Citizen” then the Fourth Congress undefined it.  Which must we believe?

So, understanding the need for short succinct “online-friendly” articles, in my opinion neither writer did a very good job of providing us a complete, compelling argument.   If Cruz is successful as the Republican nominee there will be a strong Democrat challenge that is certain to reach the Supreme Court, and then we’ll know what the phrase means – at least what it means today.

Article 2:  Abuse of Executive Power.

Hope you caught our discussion of the grounds for impeaching Barack Obama on Friday morning’s “We the People” show.  In case you didn’t, the podcast of the show should be posted sometime Monday.  This president is not going to be impeached, and he knows it.  The House is not going to impeach when they know in advance that the Senate is not going to convict, and they are not.  That shouldn’t dissuade us, however, from becoming as literate as possible on the subject.  Could you persuade an unbiased observer that the President has committed impeachable offenses?

While we’re on the subject of executive power abuse, Randy Barnett, author of “Our Republican Constitution,” published this short essay[3] on the separation of powers problem.

Article 5: Amending the Constitution.

Want to know how many times the states have applied to Congress for a convention under Article 5 to draft amendments to the Constitution?  A lot more than the 34 needed to require a convention.  Why hasn’t Congress called one?  Lists are kept here[4] and here[5] for your reading pleasure.

Of course we could just keep on keeping on, hoping that the next set of Congresspeople arrive in Washington D.C. with their clue bucket more full than the last bunch as to what the Supreme Court has done to the Constitution’s original limited powers.  Just saying.

Fourth or Fifth Amendment, You Decide:

Can a federal judge order someone[6] to place their finger on their iPhone and thus provide their fingerprint to unlock the device?  Does ordering this constitute an illegal search or does it violate your right not to “testify” against yourself?  Interesting question; let’s extend it to other examples.  Can the government compel you to unlock your safe in order to inspect its contents or must they be required to use their own means to gain access (lock-picker, explosives, etc)?  Can the government administer a “truth serum” to get you to reveal the location of your secret cache of survival supplies?

The California judge in the present case has precedent: two years ago, a federal judge in Virginia issued a similar order.[7]

I would be interested in hearing your thoughts on this.

Meanwhile, in the states:

You may recall my reporting not too long ago that the Chief Justice of the Alabama Supreme Court, Judge Roy Moore, had ordered Alabama judges to ignore the Supreme Court’s Obergefell v. Hodges ruling, which purported to make homosexual marriage “legal” in the United States.  Well, the homosexual lobby has had their revenge: Judge Moore has been suspended[8] pending an investigation of ethics complaints over his action.  The linked article contains an interesting photo: a protester holding up a sign saying that the judge’s job is to “uphold the law, not make it.”  The protester is seems to ignore the possibility that the Supreme Court did just that.

Upcoming Events:

Lessons in Liberty.  If you read Mr. VandHei’s criteria for a presidential candidate in the first article I linked to, you may have finished feeling “Isn’t there more we want in a president than that he or she ‘be authentic and capable of having a rolling, candid, transparent conversation with voters on social and conventional media?’”  On May 16th join us to hear Dr. Jim Davids speak on “Choosing Godly Representatives,” from 7-9pm at the Foundation for American Christian Education.  Attend in person or online.  $10 either way.  Register at http://www.face.net/.

Constitution Seminar in Norfolk, VA.   Hampton Roads residents can learn what their Constitution says and means by coming to a CLI Saturday Seminar on 21 May sponsored by Concerned Veterans for America.  The seminar will be held from 8:30am-5:30pm (note new times) at the VFW Post 4809, 5728 Bartee St, Norfolk, VA 23502 (next to Military Circle Mall).  There is no charge for this event, but pre-registration is required through this Eventbrite link. Participants will receive a 150-page Student workbook, Pocket Constitution, and lunch.  There is no better deal around.  In an 1820 letter to William C. Jarvis, Thomas Jefferson wrote: “The people themselves,… their discretion [informed] by education, [are] the true corrective of abuses of constitutional power.”  This class will equip you to identify and correct those abuses.

Constitution Seminar in Williamsburg, VA.  Hampton Roads residents will have a second opportunity to learn what their Constitution says and means by coming to a CLI Saturday Seminar on 11 June in Williamsburg, VA.  The seminar will be held from 9:00am-6:00pm at a location to be announced shortly.  Participants receive a 150-page Student workbook, Pocket Constitution, lunch and a chance to win valuable door prizes.  The seminar will cost $40 per person, but registrations prior to 7 June receive a $10 discount.  Due to room size, this seminar is limited to 10 participants.  Pre-registration is required via email to: gary@constitutionleadership.org.

Constituting America continues to post new essays in their 90-Day Challenge.  Hope you are enjoying this peak into American history. Friday’s essay looked at “Eugene Debs’ Socialism and the U. S. Constitution.”  Given the amazing popularity of Socialist Bernie Sanders, perhaps Americans need a lesson on this subject.

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.azcentral.com/story/opinion/op-ed/2016/04/27/ted-cruz-eligible-president-korwin/81413724/

[2] http://www.azcentral.com/story/opinion/op-ed/2016/04/27/ted-cruz-eligible-president-gaughan/83540368/

[3] http://dailysignal.com/2016/04/28/the-rise-of-the-executive-administrative-state/?utm_source=TDS_Email&utm_medium=email&utm_campaign=MorningBell&mkt_tok=eyJpIjoiT1RrNFlURTJOV0ptTkRjMCIsInQiOiJVXC9ORjVJMlJcL2JKSkdQWktoZHZrNkFORUVJYXFFdTBBNW5JQ1lDVk44YmZJYXFVMjdSZkVJTGF6ZHhRcHV1SHdPMTNRTTVMRkpoZWR6V2c0REZGN21mYTJnU2d2dVRmaDM1RDZTU1grWTNJPSJ9

[4] http://www.article-5.org/file.php/1/Articles/Table_Summarizing_State_Applications.htm

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

[6] http://abcnews.go.com/Technology/federal-judge-orders-woman-unlock-iphone-fingerprint/story?id=38813344

[7] http://mashable.com/2014/10/30/cops-can-force-you-to-unlock-phone-with-fingerprint-ruling/#wGt1nMNIluqF

[8] https://www.yahoo.com/news/alabamas-top-judge-faces-ethics-charges-over-gay-053358096.html?ref=gs

The Constitution’s Week in Review – 23 Apr 2016

Article 2:  Faithfully Execute the Laws.

All eyes were on the Supreme Court on Monday as oral arguments were heard in the case of Texas v. U.S. over whether President Obama overstepped his authority in issuing instructions to defer deportation of a whole class of illegal immigrants, amounting to about 4.3 million persons.  To courtroom observers,[1] the Justices questions appeared to reveal a 4-4 split.  Such a decision will leave intact the injunction against the President’s action imposed by a District Court Judge and sustained by the 5th Circuit Court of Appeals.

The chickens have flown the coop, the horses have fled the barn, and Elvis has left the building, but apparently House Republicans think it is finally time to investigate the President’s flagrant abuses of the Constitution.[2]  Some will say: “Better late than never.”  Perhaps.  It will be an interesting summer in more ways than one.

First Amendment:  Establishment Clause.

The Tennessee legislature voted to designate[3] the Bible as the state’s “official book.”  The Governor vetoed the bill and the legislature failed to muster the votes to override the veto, even though the bill initially passed with an apparent veto-proof majority.  Was the Holy Bible being “demeaned” by such an act or merely being recognized for its impact in the formation of our republic and states?  Would declaring the Bible as the state’s official book “establish” Christianity as an official state religion?  Does the First Amendment prevent a state from declaring an official state religion? (Careful on this one!)  You decide.

Fourth Amendment: Illegal Search?

On Wednesday, 20 April, the U.S. Supreme Court heard oral arguments[4] in the case of Birchfield v. North Dakota. That case will determine whether a state can penalize a driver who asserts a Fourth Amendment constitutional right not to have his blood drawn or breath analyzed without his consent.

Is driving a car on a public road a right or a privilege?  The states of North Dakota and Minnesota think it is a privilege which entails forfeiting your 4th Amendment right against warrantless search and seizure.  Those states (and others) enacted laws making refusal of a breathalyzer or blood test a crime, allowing for immediate arrest. Those laws are now being challenged.

A 4-4 tie vote is likely in this case, leaving intact the lower court decision which upheld the constitutionality of the state laws.

Fifth Amendment:  A Government Land Grab?  You and your wife buy an attractive plot of land along the St. Croix River,[5] put a vacation cottage on it, and then buy an adjacent lot as an investment, hoping to sell or develop the second lot later.  The state then changes the rules on lot development making it impossible to develop the second lot, by either you or a future buyer.  The state has effectively “taken” your property by rendering your investment worthless, right?  You are due just compensation for this taking, right?  But then the state announces it will not recompense you for making the second lot nearly worthless because it considers both your lots as one, not two.  Folks, you can’t make this stuff up.  But this is what happens when you vote people into office who have no idea what is the purpose of government.  The Supreme Court has agreed to hear Murr V. State Of Wisconsin and St. Croix County.  Perhaps they will bring reason to the fore.

14th Amendment:  Coming to a School Near You.  Gloucester County, Virginia, school district has been ordered[6] by a 4th Circuit Court of Appeals panel (2-1) to allow a gender-confused female to use the boy’s bathroom at her school. The panel concluded that Title IX of the Education Amendments of 1972, which prohibits discrimination on the basis of sex—should be interpreted as prohibiting discrimination on the basis of gender identity, as a Department of Education letter suggested in 2015.  The school board has asked the full 4th Circuit[7] to review the panel’s decision en banc (meaning by the full court).  I’ll keep you posted.  Seriously, if you think your local school district is somehow going to avoid this issue, you are mistaken.  It is coming and you better prepare to defend what you believe in.

Meanwhile, in the states:  I’ve discussed thie issue of secession several times in the past in some detail (re-posted here), so I won’t elaborate once again, but if the November election puts a Democrat in the White House, expect talk in Texas to get serious.[8]  Just saying.

Other states are putting in place some significant safeguards for individual freedom:

The Tennessee legislature blocked any attempt[9] by the federal government to attempt an end-run around the 2nd Amendment through international law or treaties.
Nebraska ended civil asset forfeiture[10] in that state.

The Illinois Senate voted unanimously[11] to prohibit police spying through use of “stingray” devices (AKA “cell site simulator”). The measure still has to pass the House, but this is pretty huge, in my book.

The Louisiana Senate voted to allow some raw milk sales[12] in the state.

Upcoming Events:

Lessons in Liberty.  On May 16th you can hear Dr. Jim Davids speak on “Choosing Godly Representatives” from 7-9pm at the Foundation for American Christian Education.  Attend in person or online.  Register at http://www.face.net/.

Constitution Seminar in Norfolk, VA.   Hampton Roads residents can learn what their Constitution says and means by coming to a CLI Saturday Seminar on 21 May sponsored by Concerned Veterans for America.  The seminar will be held from 8:30am-5:30pm at the VFW Post 4809, 5728 Bartee St, Norfolk, VA 23502 (next to Military Circle Mall).  There is no charge for this event, but pre-registration is required through Eventbrite. Participants will receive a 150-page Student workbook, Pocket Constitution, and lunch.  There is no better deal around.  .  In an 1820 letter to William C. Jarvis, Thomas Jefferson wrote: “The people themselves,… their discretion [informed] by education, [are] the true corrective of abuses of constitutional power.”  This class will equip you to identify and correct those abuses.

Constitution Seminar in Williamsburg, VA.  Hampton Roads residents will have a second opportunity to learn what their Constitution says and means by coming to a CLI Saturday Seminar on 11 June in Williamsburg, VA.  The seminar will be held from 9:00am-6:00pm at a location to be announced shortly.  Participants receive a 150-page Student workbook, Pocket Constitution, lunch and a chance to win valuable door prizes.  The seminar will cost $40 per person, but registrations prior to 7 June receive a $10 discount.  Due to venue size, this seminar is limited to 10 participantsPre-registration is required via email to gary@constitutionleadership.org.

We’re halfway through the Constituting America 90-Day Challenge.  Hope you are enjoying this peak into American history.

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://ca.news.yahoo.com/fate-obamas-immigration-plan-hands-u-supreme-court-041425066.html

[2] http://eaglerising.com/32701/house-republicans-introduce-resolution-to-investigate-obama-for-high-crimes-and-misdemeanors/

[3] http://www.srnnews.com/tennessee-lawmakers-to-vote-on-override-of-bible-bill-veto/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+SrnNewsUs+%28SRN+News+%C2%BB+U.S.%29

[4] http://cnsnews.com/commentary/robert-j-olson/drive-car-waive-your-constitutional-rights

 

[5] http://www.wnd.com/2016/04/supremes-weigh-government-grab-of-private-land/

[6] http://www.richmond.com/news/virginia/article_7ec45a28-5b5f-585f-a200-b7aba2cdd940.html

[7] http://www.richmond.com/news/virginia/article_fffed187-0d52-58db-9ee1-1414a6414b93.html

[8] https://www.washingtonpost.com/news/the-fix/wp/2016/04/19/the-texas-secession-movement-is-getting-kind-of-serious/

[9] http://blog.tenthamendmentcenter.com/2016/04/signed-by-the-governor-new-tennessee-law-sets-stage-to-reject-gun-control-by-international-law-or-treaty/

[10] http://blog.tenthamendmentcenter.com/2016/04/signed-by-the-governor-new-nebraska-law-takes-on-policing-for-profit-via-asset-forfeiture/

[11] http://blog.tenthamendmentcenter.com/2016/04/illinois-senate-votes-57-0-to-prohibit-warrantless-stingray-spying-hinder-federal-surveillance-program/

[12] http://blog.tenthamendmentcenter.com/2016/04/louisiana-senate-passes-bill-to-legalize-some-raw-milk-sales-foundation-to-nullify-federal-prohibition/