Constitutional Corner – Healthcare and the Constitution

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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




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










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 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 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  (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

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.









Constitutional Corner – Toilette Tyranny

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The quest to fundamentally transform America continues unabated.  Doesn’t that just warm the cockles of your heart?  Not content to glide out the remaining months of the President’s eight-year reign as our supreme leader, the Obama administration has effectively ordered all the nation’s public schools to allow gender-confused school kids to use whatever bathroom and shower-room facilities they choose to “identify” with.

Here’s the background: On February 22nd, the City of Charlotte, North Carolina, passed an ordinance prohibiting businesses from discriminating against LGBT individuals.  The ordinance also ordered businesses to allow such individuals to use any public bathroom they choose.

In a one-day special session on March 23rd, the North Carolina legislature passed HB2, with the support of 11 Democrats, I might add, which made it illegal for any municipality to expand upon the state’s existing anti-discrimination laws, which is essentially what Charlotte and a few other cities had done.  The new law contained a list of classes of people who are to be protected against discrimination, they included race, religion, color, national origin, age, handicap or biological sex as designated on a person’s birth certificate.  “Sexual orientation” and “gender transition” were conspicuously absent from the list.

The homosexual community vowed a court fight.  But before that could be mounted the Obama Administration filed a civil rights suit against the state and the state countersued.  Then came the bombshell, last week, on Friday the 13th no less, the Department of Education issued a “Dear Colleague” letter which stated that the Department expects any school receiving federal funding (hint) to allow transgender students to use whatever bathroom and locker room facilities they request to use.

Contemporaneous with the North Carolina issue is a controversy taking place right up the road from me in Gloucester County, VA.   A female student at Gloucester High School, Gavin Grimm, has self-identified as a boy.  With the support of her parents, Gavin is taking hormone treatments to facilitate a presumed future “transition” through gender surgery.  Grimm was offered the use of a unisex bathroom at the school and things were fine for awhile, until she apparently decided this accommodation was unacceptable and sued the school district.  Initial judgement went against Grimm and her parents appealed (I wonder who is financing their suit?).  A three-judge panel of the 4th Circuit ordered the district to allow Grimm the use of whatever facilities she requests and the district responded by asking for an en banc review by the entire Circuit.  How the DOE directive impacts the 4th Circuit ruling is unclear.

So “Can the federal government constitutionally order the nation’s schools to allow gender-confused kids to use any bathroom or locker-room, and, we assume, shower-room, that they “identify” with?”  That is the legitimate question that we will explore today.

There are several constitutional issues attached to this, beginning with why we have a Department of Education at the federal level when the Constitution grants no specific power to establish one nor empowers it to set policy over education for the country’s public schools.  The Northwest Ordinance of 1787, which is a full 25% of our country’s organic law, says that “Religion, morality and knowledge being necessary to good government, schools and the means of education will forever be encouraged” – encouraged, not controlled.  So the constitutionality of the Department of Education is one issue.

Next is the issue of delegation of legislative authority by the Congress to this unconstitutional executive department.  According to John Locke, that power cannot be delegated unless the people say so, and to my knowledge they have not.  But according to the Supreme Court in Mistretta v. U.S. (1989) such delegation is not only authorized, it is absolutely necessary in today’s complex world.  Hogwash!  We can only fix that by electing Congressmen and women who understand the Constitution.

My own Congressman told me that Congress sees itself as setting the broad policy guidelines and then lets the executive agencies “fill in the details.”  To my mind that is a dereliction of duty, a failure to support and defend the Constitution, and an impeachable misdemeanor in and of itself.  But that’s just my opinion.  Regardless, if Congress sets the policy guidelines, where does the Department of Education find the authority to change those guidelines at will?

Congress passed Title IX of the Education Amendments  in 1972.  Title IX reads:  “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.”

In 1972, the word “sex” meant only one thing: biological sex.  But today there are people who want to redefine the word sex, just as they successfully (at least in the eyes of the Supreme Court) redefined the word “marriage.”

“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.”[1] (emphasis added)

In 2014, the Department of Education issued guidelines stating that transgender students were to be allowed to attend sex-segregated classes based on their professed “identity,” not their genetics.  There was no mention of bathrooms; what a difference two years make.

Martin Luther King is owed an apology for the way Attorney General Lynch couched this whole affair in civil rights terms and some in the Black Community have protested.  Fighting for the right to be free of discrimination based on something you can’t control, like the color of your skin, is quite different from claiming a supposed right to use whatever public bathroom you choose because today you decide you’re a member of the opposite sex.  By no means is this a civil rights issue, this is yet another attempt by this lawless administration to bypass the will of the people expressed in the Congress, and cram the LGBT agenda down American’s throats.

The ultimate goal of that movement has nothing to do with “equality.”  It is aimed at destroying the traditional American family, pure and simple.  They don’t aim to destroy Christianity, I think they recognize the futility of that, they only want to render the Christian church irrelevant, which the church has already accomplished, without outside help.  The church is sticking its head in the sand and hoping this will all blow over.  It will not.  Bathrooms and locker rooms are merely the next logical step in erasing all distinctions between men and women.  In an article entitled: “We’ll Win the Bathroom Battle When the Binary Burns,”[2] a homosexual activist says the real goal is to kill the notion of male and female altogether; to eradicate what he calls our “heterobinary structure.”  If only God had created us as male, female and “other,” we wouldn’t have this mess, right?  😉

While the focus is on the schools, the Department of Health and Human Services quietly issued a proposed rule change (and rule changes do have the force of law) in which “sex discrimination” in health care was unilaterally rewritten to include “gender identity.”  HHS is demanding that the entire health care industry include gender transition treatment as part of their services.  Refuse, they warn, and kiss your Medicare and Medicaid dollars goodbye. The rule doesn’t includes no religious exemption, which is not surprising for this administration — so much for hospitals run by religious organizations.

If only all states followed Utah’s lead in at least considering severing their educational system from federal educational funding and the extortion that comes with it.  As I said on a local radio show recently, it is long past time for states to regain control of their educational systems; yes, state taxes will have to go up, that is the price of independence.  But we were willing to pay a price for independence in 1776; we should be today as well.

To their credit, 73 Congressmen have sent a letter[3] to the Attorney General asking her to explain “why schools must disregard the privacy, ‘discomfort,’ and emotional strain imposed on other students during use of bathroom, showering, and changing facilities and overnight accommodations as these schools comply with this guidance.”  The letter also asks General Lynch to explain what will happen to “a teacher, school administrator, educator, school contractor, or person volunteering at a school who does not comply with this guidance.”  Whooptedo!  These are softball questions.  Finally, the letter gets to the heart of the matter, it asks AG Lynch to: “delineate the statutory authority under which the ED and DOJ issued this guidance.”  Now we’re talking!

To put a stop to this silliness all Congress need do is pass a clarification to the Title IX legislation which makes it clear gender refers to sex at birth.  Or make the clarification in the Dictionary Act.[4]  Will they do that?  Not unless the people demand it.

In the meantime, every parent needs to be talking with their child’s principal and learn what he or she intends to do about this.  Is the school going to roll over and implement this policy with the mere threat of the loss of funding, or will they choose to protect the safety and privacy of the 99.9% of the school’s students?

Pastors need to be talking about this with their congregations, but most won’t.  Most will don their cultural blinders and “re-double their efforts to win souls for the Kingdom,” fiddling while Rome burns.  Lest I be misunderstood: bringing souls into the Kingdom is important, but so is leaving a legacy of freedom for our kids and grandkids.

Ten other states have joined – you guessed it – Texas, in suing the Obama Administration[5] over this issue.  We can rightfully ask: What’s wrong with the other 39 states?

I believe this is the issue that parents can and should use to take back control of their local educational systems, recognizing that God holds parents and parents alone accountable for that education and all that it entails.  Parents have an equal responsibility for the safety of their children, both psychological and physical, and this movement intentionally violates both.  Moving your children from public school into Christian school is something that all Christian parents should consider, but this is only a partial answer; the children that remain in public school will continue to be harmed, and our tax dollars will facilitate it.  This must be stopped.

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







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:

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.


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

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:

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.




The Constitution’s Week in Review – 16 Apr 2016

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

As I reported last week, many of the challenges to Ted Cruz’ claim to be a natural-born citizen and thus eligible to assume the presidency have been dismissed by courts and election commissions on the grounds that the plaintiffs lacked standing.  In the eyes of the court, this means the plaintiff could not prove he or she would be personally harmed should they lose the case.

A Washington, D.C. law professor found a way to remedy the problem of standing: he decided to run for President himself.  By filing suit as a co-contender for the office[1] rather than a “lowly” citizen, Victor Williams, who teaches law at Catholic University, hoped the court will agree that he would suffer “a direct and concrete injury if an unqualified candidate were to be allowed” to run.  He was right, but his victory was short-lived.  An administrative law judge in New Jersey, Judge Jeff Masin, heard arguments on Monday and on Tuesday announced[2] that Cruz is indeed a natural-born citizen under the U.S. Constitution and therefore can run in the June 7 New Jersey primary.

The Judge further agreed with what I’ve been saying all along on this issue: that the NBC question “can never be entirely free of doubt, at least barring a definitive ruling” by the U.S. Supreme Court.

“Absolute certainty as to this issue is only available to those who actually sat in Philadelphia and themselves thought on the issue” Amen.  Stay tuned.

Article 3.  Replacing Scalia

By a vote of 92-0, the U.S. Senate confirmed Waverly D. Crenshaw Jr.[3] on Monday to be a U.S. district judge for the Middle District of Tennessee. Crenshaw is the sixth judicial nominee confirmed in 2016, bringing President Barack Obama’s total to 324, just two shy of the total number of confirmations during President George W. Bush’s entire eight-year term.  Who says the Senate is stonewalling?

First Amendment. 

I found this article[4] interesting: turns out the Bible is among the ten most challenged books in school libraries these days (holding down position #6), ostensibly for its depictions of “sex and violence,” charges that are obvious smokescreens for the real complaint: that it is a book of religious faith, which an increasing number of atheists find “offensive.”  I predict that those who wish to remove the Bible from all public view will eventually succeed.  Why?  Because they want their result more than those who revere the Bible want it to remain in the public eye.  The opportunity to speak up is slowly slipping away.

The backlash against attempts by some states which have taken steps to protect the religious faith of their citizens and their right to act in accordance with that faith has been nothing short of breathtaking.  Mississippi, Georgia and North Carolina are now in the LGBT community’s cross-hairs over attempts to pass Religious Freedom Restoration bills and so-called “bathroom bills,” which attempt to keep gender-confused individuals from using a bathroom of preference.  “Offended” states have begun prohibiting their employees from traveling to those states in question, companies are promising to take their business elsewhere and, finally, rock stars are now cancelling concerts.[5]

Personally, I find the rock stars’ actions inconsequential, I have more important uses for my time than going to rock concerts, but I know that some of these performers enjoy large followings and thus their actions will undoubtedly have some effect.  Reaction from the Christian community which sought the bills in question? Crickets.

Second Amendment

In an ominous turn, a state judge has decided[6] that a lawsuit filed against Remington Arms, Corporation, the firm that made one of the weapons ostensibly used in the Sandy Hook Elementary School shooting, can proceed despite a 2005 federal law prohibiting such lawsuits.  The families pursuing the suit argued that an exemption feature of the Protection of Lawful Commerce in Arms Act,[7] Section 4, Paragraph (5)(A) (ii), covers their suit.  This paragraph allows suits brought under charges that a gun manufacturer engaged in “negligent entrustment or negligence per se” in allowing the AR-15 weapon to be sold on the open market.   In her decision, Connecticut State Judge Barbara Bellis said the broad immunity granted by the 2005 law to the gun industry doesn’t mean this particular case can’t be heard in court.  I think the judge can be rightfully be criticized for wasting the court’s valuable time; the charge of “negligent entrustment” seems to me to be nearly impossible to prove.  But naturally, gun control advocates will grasp at any straw. The judge’s decision brought Congress’ 2005 law back into the spotlight, with Hillary Clinton supporters pointing to her promise to repeal the law if elected.[8]  I note that absent from Clinton’s promise was an explanation of how a President can unilaterally repeal a law of Congress.  If Clinton, however, were to be elected President and Democrats placed back in the majority in both Houses of Congress, it is likely the act will be repealed, and then the deluge of suits will force many gun manufacturers, perhaps all of them, out of business.  It is also likely that this unfortunate constellation will herald the end of freedom in America.

Fifth Amendment

When confronted by the police, when does your right to remain silent take effect?  According to this case reported in a Richmond newspaper,[9] the criteria is whether or not you are officially in custody.  Portsmouth, Virginia resident Wayne McClellan learned that the act of asking for an attorney or even saying you’d like to remain silent does not force police to end an interview.  Why? In the eyes of the police, McClellan was never in custody, he was not under arrest, he was free to leave at any time.  McClellan apparently didn’t see it that way and eventually confessed to the crime of murder.  In the 2013 case of Salinas v. Texas[10] the Supreme Court said that your right to remain silent must be verbally invoked.  If you simply remain silent without stating your reason for doing so, this act can be presented as evidence against you.

So in summary: If confronted by police, ask whether or not you are under arrest.  If not, insist on your right to leave or resume your travel.  If you are placed under arrest, verbally indicate you are asserting your 5th Amendment right to remain silent and then actually do so.  Also note that the Supreme Court decided in 2012 that Miranda warnings[11] are not required when a person is not in custody.  So don’t expect them until you’ve been placed under arrest.

Government waste:

The 2016 version of the Pig Book[12] is out.  Read and weep.

In a somewhat related announcement, it has been discovered at the Department of Housing and Urban Development (HUD) that an employee, even an intern, can’t be fired for work-related misconduct without being first convicted of a crime.  Meanwhile, as the cited article points out, over at the Veterans Administration, they have decided that being tried and convicted of criminal activity does not disqualify you from continuing as an employee.  You can’t make this stuff up.

 Upcoming Events:

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.













The Constitution’s Week in Review – 12 March 2016

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

Another suit[1] challenging Ted Cruz’s eligibility and another suit dismissed on a technicality, this time for missing a New York filing deadline. Still no ruling on the merits of the case.

Article 3. Replacing Scalia

Judge Robert L. Wilkins’ name wasn’t on the first list I saw of possible replacements for Antonin Scalia. This article[2] reads like someone is suggesting the President consider Wilkins.

He was nominated by President Obama to a District Court position in 2010 and unanimously confirmed, but three years later, when Obama tried to elevate Wilkins and two others to the District of Columbia Appeals Court, Republicans in the Senate blocked all three nominees, arguing that the court didn’t have sufficient workload to justify filling its three open positions (there are anywhere from 6 [1st Circuit] to 29 [9th Circuit] seats on an appeals court but cases are normally only heard by three-judge panels instead of “en banc,” meaning by the entire court).

Republicans actions infuriated Democrats enough that Harry Reid exercised what’s became known as the “nuclear option,” changing the Senate rules so that only 51, rather than 60, votes were needed to advance a nomination. Wilkins was ultimately confirmed, 55 to 43, a reasonably close vote. This would indicate that, were he to be nominated to the high bench and actually given a confirmation hearing, he would come under close scrutiny.

Apparently not taking the hint over Wilkins, later in the week it was leaked[3] that the President had narrowed his list of potential nominees to five. Surprise, surprise, four of the five donated to his election campaign. Federal judges Sri Srinivasan ($4,250), Jane Kelly ($1,500), Paul Watford ($1,000) and Ketanji Brown Jackson ($450) were all donors. Judge Merrick Garland apparently had enough sense not to do so. I wonder whether these judges could be impartial when hearing a case challenging executive orders. Hmmm.

First Amendment. “It’s not over till its over”

 Those concerned with the Supreme Court’s ruling in Obergefell v. Hodges (homosexual marriage) can take heart in the Alabama Supreme Court’s opinion this week that Alabama judges are bound to follow existing Alabama law, which prohibits the issuance of marriage licenses to homosexual couples, rather than the U.S. Supreme Court’s Obergefell opinion. The decision, although lengthy, should be read in its entirety and may be downloaded here.[4] Justice Moore quotes extensively from Chief Justice John Roberts dissent in Obergefell[5] (which you should also have read by now)

Justice Moore’s ruling (and the Supreme Court’s Obergefell ruling) can be best summed by this statement from Moore’s opinion: “That a majority of the [U.S. Supreme] Court may identify an “injustice” that merits constitutional correction does not dispense with the means the Constitution has provided in Article V for its own amendment. Although the Court could suggest that the Constitution would benefit from a particular amendment, the Court does not possess the authority to insert the amendment into the Constitution by the vehicle of a Court opinion and then to demand compliance with it.”

Please help ensure that Justice Moore’s opinion is passed to all who you think are (or should be) interested. Perhaps other states will take similar action.

 The Gall! I had never encountered the word “hubris[6] before the word was used derogatorily of the last Bush administration.   Now that I know what the word means, I see examples of it all the time, principally in the way the Obama administration acts towards “mere citizens.”

But this takes the cake: apparently the Justice department has held discussions[7] (and may still be doing so, for all I know) over whether it would be appropriate to bring civil charges against those speaking out against “climate change.” Freedom of thought and speech be damned, there is only one “truth” for this administration, and it will be enforced!

Property Rights. Want to build a pond on your land? Have all the state permits required? Be careful before you start digging, the EPA demands you also get their OK. Good luck with that.

The EPA and Army Corps of Engineers make tens of thousands of determinations each year that private property contains wetlands protected under the Clean Water Act (CWA). On March 30th, the Supreme Court will hear oral arguments in U.S. Army Corps of Engineers v. Hawkes Co. The case will decide whether landowners have access to the courts to challenge EPA rulings that their property contains such wetlands and thus makes them subject to federal regulation.

This coming Monday, March 14, from 12:00pm – 1:30pm, the CATO Institute will host Shauneen Werlinger, Legal Fellow at the Pacific Legal Foundation; and Steven Eagle, Professor at George Mason University School of Law to discuss this issue, focusing on the question: What recourse do landowners have when federal agencies decide that private property contains wetlands?

Thirty states are now suing to overturn the newest CWA rule expanding power over “waters of the United States,” but invalidating that rule won’t change existing federal control over individual landowners if the agencies continue to assert similarly overbroad judicial review authority. If you are concerned about this issue I encourage you to tune in to the CATO live event. I’m concerned, I’ll see you there.

 Constituting America’s 90-Day Study

There’s talk of the Republicans having a “contested” nominating convention this summer. Ever wonder how political party nominating conventions got their start? This essay by Professor Joseph Postell answers that question, as well as who encouraged the strengthening of the two-party system.

Upcoming Events.

Redefining Humans. It’s not too late to register for Dr. Mark Jumper’s presentation Monday night, 14 March, as part of the Foundation for American Christian Education’s Lessons in Liberty series. $10 will get you into the FACE classroom in Chesapeake, VA or provide you with the online streaming link to watch the presentation from the comfort of home. From the flyer:

“Our times have seen revolutionary changes in the norms of sexual and social beliefs and practices that, far from just changing norms, alter the very definition of human beings and of social structure. Dr. Jumper will name and analyze these trends and propose redemptive Christian responses, both of thought and of practice.” to register.

Constitution Seminar for adults – 26 March. Mark your calendars; I’ll be holding a Constitution Seminar for adults on Saturday, 26 March from 9am to 6pm here in York County, VA. Space will be limited. Cost is $30 per adult, which gets you a 150-page student workbook, pocket Constitution, 150-page workbook and a whole lot of Constitutional knowledge. Email to register.

Constitution Seminar for Youth – 9 April. The Constitution seminar scheduled for March 5th has been postponed to permit more 10-15 year olds to attend. Same time (9-5), same location (Foundation for American Christian Education classroom in Chesapeake, VA), same focus (Juliette Turner’s “Our Constitution Rocks”). Register through email to

Constitution Seminar – 16 April. On Saturday, 16 April, I hope to be in the Valley Forge, PA, area presenting another Constitution Seminar in conjunction with WFYL Radio. Valley Forge was CLI’s inaugural 1-day seminar, the success of which led me to adopt the format as my standard. Save the date if you live in that area; details later.

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.








The Constitution’s Week in Review – 5 March 2016

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

Ted Cruz survived another legal challenge over his NBC status. An Illinois suit was dismissed by the judge on a technicality: the petitioner, Lawrence Joyce, had failed to properly serve Cruz and members of the Illinois State Board of Elections, as required by law.  Suits in Alabama, Texas and New York continue.

Article 3. Replacing Scalia

It appears that Senate Judiciary Committee Chairman Charles Grassley is sticking to his guns on no confirmation hearings for any Scalia replacement until after the election. The President’s ploy, of floating the name of Eighth Circuit judge Jane L. Kelly, an Iowa resident like Grassley, will die on the vine. Senator Grassley gave a key address at the Conservative Political Action Conference in Washington this week in which he pointed out some of the freedoms that would be imperiled were a liberal allowed to replace Scalia, specifically 1st and 2nd Amendment rights would be on the chopping block. Meanwhile Organizing for America is marketing a lovely line of “Don’t Be A Robe Block” T-shirts. Get it?

In somewhat related news, the death of Justice Antonin Scalia appears to have been a catalyst; for the first time in 10 years, Associate Justice Clarence Thomas (may he live forever) asked, not just one, but several question from the bench, startling most court watchers.

As this article points out, replacing Antonin Scalia could signal the start of “a ferocious battle for ideological control of the U.S. Supreme Court that could drag on for years.” It will be so because the American people have sat back and allowed the Court to become the preferred instrument for social change in this country, definitely not what the Founders intended. As the article makes clear, the next President will likely have the opportunity to replace several Justices and thus set the political tone of the Court for 20-30 years. Fight’s on.

Seventeenth Amendment

As I’ve said in numerous essays, if we want to restore the balance of power that existed in Congress when the Constitution was put into operation in 1789, we must repeal the 17th Amendment. Senator Zell Miller tried to get a repeal amendment passed in the Senate each year he served, to no avail. Antonin Scalia was in favor of repeal. Now Utah has come out in favor, passing a resolution urging the state’s congressional delegation to push for an amendment. They face an uphill battle. Marshaling widespread support for repeal will be difficult; the Left, enamored by democracy and direct elections, will fight tooth and nail; and most Americans in the center don’t care enough to learn what all the fuss is all about. The 18th Amendment was recognized as a bad idea and repealed; we should repeal another bad one.

 Constituting America 90-Day Study

I hope everyone continues to enjoy Constituting America’s 90-Day Study. As the writers traipse though the history of presidential elections, they are about to leave the era of the Founders with the reelection of Founding Father James Monroe in 1820. Did you notice that instead of reading the essays you can also listen to them being read? Here’s the current one.

Upcoming Events.

Constitution Seminar for adults – 26 March. Mark your calendars; I’ll be holding a Constitution Seminar for adults on Saturday, 26 March from 9am to 6pm here in York County, VA. Space will be limited. Cost is $30 per adult, which gets you a 150-page student workbook, pocket Constitution, 150-page workbook and a whole lot of Constitutional knowledge. Email to register.

Constitution Seminar for Youth – 9 April. The Constitution seminar scheduled for March 5th has been postponed to permit more 10-15 year olds to attend. Same time (9-5), same location (Foundation for American Christian Education classroom in Chesapeake, VA), same focus (Juliette Turner’s “Our Constitution Rocks”). Register through email to

Constitution Seminar – 16 April. On Saturday, 16 April, I hope to be in the Valley Forge, PA, area presenting another Constitution Seminar in conjunction with WFYL Radio. Valley Forge was CLI’s inaugural 1-day seminar, the success of which lead me to adopt the format as my standard. Save the date if you live in that area; details later.

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.

Constitutional Corner – Educating America

Open as PDF

I’ve written often of the need to teach Americans about their Constitution and the fundamental principles upon which it is built. This simply must be done, there is no choice in the matter, and our present resources are wholly inadequate for the job. But there are occasional glimmers of hope. So, instead of dissecting a Constitutional topic, as I usually do on these pages, I’d like instead to tell you about a great organization doing yeoman’s work to teach America’s youth about their Constitution.

There are a few organizations (that I’m aware of) working to wake up Americans and get them familiar with their Constitution. The American View, The National Center for Constitutional Studies, Thomas Jefferson Center for Constitutional Restoration, Constitution Clubs, and my own organization, Constitution Leadership Initiative. I’m certain there are others. We need many more.

One such organization is Constituting America (CA). I had the pleasure of recently interviewing Founder and Co-Director (with Cathy Gillespie) Janine Turner as well as her daughter and CA National Youth Director: Juliette Turner. The interview will air this Friday morning, 12 February, on “We the People – The Constitution Matters.” If you can’t listen to the interview “live” on Friday morning, you will be able to download the podcast later that day or listen later in the weekend to one of the re-broadcasts.

Some of you may be fans of Janine without realizing it. She played the character Maggie O’Connell in the television series Northern Exposure, which earned her both Emmy and Golden Globe nominations, and, more recently, appeared as Dr. Dana Stowe on the Lifetime original series “Strong Medicine.” Janine has worked with Sylvester Stallone, Anthony Hopkins and (a very young) Demi Moore, among other big names. She’s an author, screenwriter, director, composer, musician, radio talk show host and, finally, Constitutionalist.

For the last five years, Constituting America has sponsored an annual contest aimed at rewarding young musicians, writers and videographers who create songs, Public Service Announcements, videos, and essays (there are several more categories, but you get the picture) extolling the Constitution and why we Americans must know what it says and, more importantly, what it means. Winners in the several age-group contests receive all-expense paid trips to meet mentors in their artistic field, whether in Hollywood, Nashville, or Washington, D.C.

Called “We the Future,” the contest ends, fittingly, on Constitution Day: 17 September 2016. Contest rules and entry procedures can be downloaded here. On CA’s website you’ll find videos of past winner trips so you can see the exciting time the kids have: meeting Gary Sinese, jamming with Vince Gill in his home studio, – simply amazing! And to think, your child or grandchild might be the next winner – but only if someone introduces them to the contest.

CA has not ignored adults. Beginning on Monday, 15 February (by no small coincidence, President’s Day) CA begins a 90-Day study of the Constitution by way of examining each of the Presidential elections we have had since 1789. Along the way you will encounter changes to the Constitution caused by these elections and other events in the Presidency. For instance, did you know we have the 12th Amendment because of a debacle that occurred in the 1800 election?   We have the 22nd Amendment because of FDR’s death in office.

What a fitting preparation for what may turn out to be the most critical election in American history this November. A host of Constitutional scholars will be writing and posting a daily essay that can be either read or listened to being narrated in a podcast. I saw the list of scholars and recognized a lot of their names, having read their books and other essays. I’ve decided to “take the 90-day challenge” and I encourage you to do likewise.

It was one such 90-Day study several years ago that led Juliette Turner to write her ground-breaking book: “Our Constitution Rocks.” Juliette was only 14 at the time and so the book’s content and layout are geared to kids. I liked the format of the book so much I created a seminar for kids using the book as a text; either Janine or Juliette joins each class live for a short “inspirational message” using Google Hangouts. Juliette’s second book, “Our Presidents Rock” is just as well done (I’m told, I have yet to order my copy). And now comes yet another book from this precocious 18-year-old: “That’s Not Hay in My Hair,” a short novel based on real-life adventures Juliette has had on their 300-acre ranch in Texas (it pays to have a mom with a successful film career).

Folks, here’s the deal: we have to get more Americans, particularly young Americans, involved with their foundational documents, and Constituting America has discovered a way to do it. But they need your help. CA is a 501(c)(3), so donations go to a good cause AND get a tax break. But what they need most are more young (and older) Americans to participate in the 90-Day Study and/or enter the “We the Future” contest.

How about passing this information on to everyone you know and let’s make this year’s contest the biggest ever.

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