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

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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  Today, they have largely been replaced by the principles of humanism, progressivism and globalism.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 – 16 July 16

Article 1 – The Legislature: Separation of Powers.

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

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

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

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

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

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

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

(D) without observance of procedure required by law;

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

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

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

the reviewing court.”

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

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

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

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

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

Article 2 – The Executive: The Candidates and the Constitution

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

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

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

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

Article 3 – The Judiciary

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

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

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

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

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

1st Amendment – Right of Conscience

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

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

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

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

2nd Amendment – Is it a Right for Everyone?

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

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

Recommendations and Events:

We The People – The Constitution Matters Radio Show.

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

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

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

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

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

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

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

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

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

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

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

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

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

The Constitution’s Week in Review – 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 – 9 Apr 2016

Article 1, Section 2: Apportionment Clause.

“Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.”  What does the phrase “whole Number of free Persons” mean?  This week the Court told us: it includes illegal aliens.  “Representatives serve all residents, not just those eligible or registered to vote,” said Justice Ginsberg, writing for the majority.[1]  This will make a big difference during re-districting in states where illegals abound.

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

Results of Court of Law and Board of Election decisions concerning Ted Cruz and his Natural Born Citizen status continue to dribble in, but there was nothing significant this week, so I thought I’d summarize the results so far (thanks to a website that had already done so):

Board of Election or Secretary of State Administrative Challenges

Illinois:  Joyce v. Cruz and Graham v. Cruz:  “The hearing officer found that the Candidate is a ‘natural born citizen’ by virtue of having been born in Canada to a United States citizen, thereby not causing the Candidate to have to take any steps or undergo naturalization process to become a United States citizen.”

Indiana: Carter v. Cruz, and Kern v. Cruz: A decision was rendered to permit Cruz’ appearance on ballot but the reasoning has not been made available.

New Hampshire: Elliot v. Cruz, and Booth v. Cruz “…the commission is limited to a review of the sufficiency of the filing of a candidate. After such a review, and absent such a showing, there is absolutely no basis to reject…(a candidate’s)…declaration of candidacy or to deny him a place on the…Presidential Primary Ballot.,, Applying that precedent and principle to the present challenge, no obvious defect in the filing of Senator Cruz has been presented to the Commission, and nothing to dispute the reasonableness of the Secretary of State in accepting the filing.  Clearly, there is no final decision on the meaning of “natural born citizen,” and this Commission is not the appropriate forum for the determination of major Constitutional questions.”

New York: Fischer v. Cruz, Gallo v. Cruz, Laity v. Cruz. A decision was rendered to permit Cruz’ appearance on ballot but the reasoning has not been made available.

Court Challenges

Federal Courts

Green v. Cruz (AL): filed 3 February 2016: Still pending.

Librace v. Martin (AR): dismissed on 29 February 2016: Claimant lacked standing, no evidence of injury.

Booth v. Cruz (NH): dismissed on 2 February 2016: Claimant lacked standing, no evidence of injury.

Fischer v. Cruz (NY): filed 11 March 2016: Still pending.

Schwartz v. Cruz (TX):  filed Feb. 3, 2016, Motion to Dismiss hearing scheduled for April 13.

Wagner v. Cruz (UT): dismissed on 18 March 2016: Claimant lacked standing, no evidence of injury.  Appealed to Supreme Court.  Will they grant Cert?

State Courts

Voeltz v. Cruz (Broward County, Fla. Circuit Ct.): dismissed on 4 March 2016 for lack of standing.  Judge noted a further error in not listing Florida Secretary of State as a defendant.

Joyce v. Cruz (Illinois): dismissed on 1 March 2016 because complainant failed to serve proper notice on Cruz and Election Board.

Korman v. New York State Board of Elections (New York County, Supreme Ct.): On 24 March, the New York State Supreme Court, Appellate Division, agreed with the lower court that the challenge to Ted Cruz’ spot on the New York Republican presidential primary ballot was filed too late.

Farrell v. Cruz (Pennsylvania): dismissed on 11 March, appealed to PA Supreme Court on 29 March, affirmed on 31 March: Cruz’ claim that this was a political question was denied.  But, “Having extensively reviewed all articles cited in this opinion, as well as many others, this Court holds, consistent with the common law precedent and statutory history, that a ‘natural born citizen’ include any person who is a United States citizen from birth.  Accordingly, because he was a citizen of the United States from birth, Ted Cruz is eligible to serve as President…”

Paige v. Vermont (Washington Civil Div., Vt. Supreme Court): Pending.

Summary: You will note that the majority of these decisions based their ruling on technicalities and avoided ruling on the merits of the complaints.  I’ll report on the remaining cases as results become available.
Article 2. Executive Authority.

The Court heard oral arguments this week in “UNITED STATES OF AMERICA, ET AL, v. STATES OF TEXAS, ALABAMA, ARIZONA, ARKANSAS, FLORIDA, GEORGIA, IDAHO, INDIANA, KANSAS, LOUISIANA, MONTANA, NEBRASKA, NEVADA, NORTH DAKOTA, OHIO, OKLAHOMA, SOUTH CAROLINA, SOUTH DAKOTA, TENNESSEE, UTAH, WEST VIRGINIA, and WISCONSIN, (plus their Governors, don’t you just love some of these citations?)” which contends that President Obama’s actions via Executive Order to not deport an entire class of illegal immigrants was a violation of his constitutional authority.  Forty-three Senators filed an amicus brief[2] in support of the states, which you can download here.  I predict yet another loss for the President.  Even a tie in the Supreme Court would leave intact a lower court ruling against the President.

 

First Amendment.  Those looking for a summary which shows the unprecedented hostility to the faith community by this administration, need look no further.  Alliance Defending freedom has put one together for you.[3]  Read and weep.

On a brighter note, the Court (not the administration) seems to be looking for a way to accommodate the religious convictions of the Society of Little Sisters[4] in their fight over being forced to provide contraceptive and abortifacient coverage in their Obamacare-compliant health policies.  After hearing oral arguments on March 23rd,  the Court this week issued an unusual order directing the parties to submit supplemental briefs by April 12th that show how the contentious coverage might still be obtained by the employees of religious objectors’ in a way that would leave the objectors out of the process.  The 4-4 tie that observers predicted in the case (which would mean a loss for the Sisters) apparently does not sit well with the Court and they seem to be looking for a win-win solution.  Hopefully, someday we’ll find out who on the Court was persuasive in seeking this alternative.

Sixth Amendment.  “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”  But what if the government has seized all your assets and made it impossible for you to hire a lawyer to defend yourself?  Must you then accept a public defender?  This week, the Supreme Court said seizing “untainted” assets[5] violates the meaning of the 6th Amendment.  Even though the only originalist left on the bench, Justice Clarence Thomas joined the 5-3 majority (who says the court can’t get business done with eight justices?), I don’t see this as a very “originalist” ruling.  Fair perhaps, but not originalist.  Nothing in the sparse words of the Assistance of Counsel Clause[6] implies you must be free to hire your own lawyer, only that you must be allowed the assistance of one.  Lots of defendants who are unableto hire their own lawyers, for whatever reason,  are provided one free of charge, and we think that’s just fine.  It is a great temptation to view a court decision as solely requiring fairness; isn’t it about “justice?”  No, not in the case of the Constitution.  Constitutional decisions should be based on what the document meant to those who ratified it and nothing else.  If that produces an “unfair” circumstance, then the people should amend Constitution to produce the outcome they desire.

Meanwhile in the States:

Standing.  “Standing,” as a legal term, is “the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party’s participation in the case”[7] (see the Ted Cruz “birther” cases). The California Supreme Court has  ruled[8] that companies in that state can’t make you stand at work even if that is the major way you perform your duties.  California state labor regulations apparently require employers in that state to provide workers with “suitable seats” when the nature of their work “reasonably” permits the use of seats.  This now means that cashiers and tellers must be accommodated.  I suspect that other states have similar regulations.  If you don’t own stock in a company that makes stools, now would be a good time to buy that stock (I have no idea what companies those would be and this is obviously not investment-grade information).  Take note: this was not a Court looking for an opportunity to meddle in the operation of businesses, someone, tired of standing while doing a job that was probably advertised as requiring standing, filed suit.  Our litigious society strikes again.

Privacy.  (Since there is no “Privacy Amendment” in the Constitution, privacy being a “right” kludged together by the Court from “emanations from penumbras” of the Constitution, I didn’t know how else to label this).  I used to think a stingray was either a deadly sea creature capable of killing a man (“September 4, 2006: ‘Crocodile Hunter’ Steve Irwin killed by stingray while filming TV show”) or a wickedly fast car made by Chevy, now we add a third meaning: cell phone tower simulators that enable the police to track your whereabouts (as long as you are carrying a cellphone, that is).  A Maryland court has ruled[9] that police may not just set up such devices and start collecting information on the whereabouts of anyone and everyone, they must “disclose their intent to use a cell-site simulator to a judge and obtain a probable cause warrant,” presumably listing a certain individual they wish to find.  Good to know.

Upcoming Events.

Lessons in Liberty. This Monday, 11 April, come can hear E.W. Jackson present on: “America, The Last Beacon of Hope” at the Foundation for American Christian Education.  Attend in person at FACE in Chesapeake, VA, or attend online via Livestream.com.  Either will cost a $10 fee.  Register at www.face.net.

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

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

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.washingtontimes.com/news/2016/apr/4/supreme-court-illegals-count-apportionment/

[2] http://www.cnsnews.com/blog/terence-p-jeffrey/43-senators-tell-court-obama-trying-change-law-extra-constitutional-assertion

[3] http://www.adfmedia.org/files/obamareligiousfreedomattacks.pdf?ct=t(NEC_Roger_Gannam_20160405_20160402)&mc_cid=aa79f5d448&mc_eid=a25ec4da59

[4] http://www.breakingchristiannews.com/articles/display_art.html?ID=17927

[5] http://dailysignal.com/2016/03/31/supreme-court-hands-down-big-sixth-amendment-win/?utm_source=TDS_Email&utm_medium=email&utm_campaign=CapitolBell&mkt_tok=3RkMMJWWfF9wsRonu6TJc%2B%2FhmjTEU5z16uwtWqS2gIkz2EFye%2BLIHETpodcMTcRm

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

[7] https://en.wikipedia.org/wiki/Standing_%28law%29.

[8] http://losangeles.cbslocal.com/2016/04/04/court-employers-must-allow-workers-to-sit-if-they-prefer-while-on-the-job/

[9] https://theintercept.com/2016/03/31/maryland-appellate-court-rebukes-police-for-concealing-use-of-stingrays/