Constitutional Corner – A Brief History of Virginia’s State Constitution

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If you want an introduction to the philosophy of government as understood by America’s Founders, don’t read the U.S. Constitution, instead read a Declaration of Rights from one of the original thirteen states, especially those of Virginia, Pennsylvania or Maryland.  Instead of first laying out a plan of government, as the U.S. Constitution does and as the state constitutions eventually do, these state Declarations of Rights explain “why” we have government and what its true goals should be.  Reading these will be time well spent.

As dismal is the typical American’s knowledge of the U.S. Constitution, greater still is their ignorance of their state’s constitution.  Yet, at one point in our country’s history the state constitutions were all that governed Americans.  For five years, from 1776 to 1781, the Articles of Confederation remained unratified; Maryland refused to complete the unanimous consent required to put them into effect. Finally, France threatened to pull out of a treaty and Maryland finally relented.  Even in 1781, however, the thought of a truly national constitution was still a misty dream in the minds of a select few men.

From its founding in 1607 up to 1776, Virginia was governed by a series of proprietary and then royal charters.  In 1619, Virginia’s House of Burgesses was established, creating the first representative government in the colonies and “the oldest continuous law-making body in the New World.”[1]  The House of Burgesses would operate over the next 157 years, governing the people of Virginia until the call for independence went out.

Virginia’s Declaration of Rights was also the first in our nation’s history. Both New Hampshire and South Carolina adopted Constitutions before Virginia, in early 1776, but those documents were published, at least initially, without Declarations of Rights. The Virginia Declaration of Rights was adopted June 12, 1776, and the new Constitution followed on June 29. This original declaration of rights, with a few additions, still forms Article 1 of Virginia’s Constitution today.

In begins with these words:

“That all men are by nature equally free and independent and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.”

Isn’t that a beautiful paragraph? Don’t you wish the U.S. Constitution began with something similar? So did James Madison.

Madison tried unsuccessfully to add something similar to this wonderful proclamation to the preamble of the U.S. Constitution as he drafted what would become the new Bill of Rights.  Unfortunately, this introduction was left on the cutting room floor. Madison knew the paragraph well; he had been appointed to represent Orange County at the convention in Williamsburg and had worked on George Mason’s drafting committee, where he made a major contribution to religious liberty by insisting on a change to one of the later articles (that we’ll discuss in a moment). The only quibble I have with this paragraph is Mason’s choice of the word “inherent.” “Inherent” can be construed to mean “part of the human condition,” and this meaning avoids assigning these rights to a transcendent source, i.e. God. In the Declaration of Independence, Thomas Jefferson framed these “inherent” rights much better, as an inalienable endowment of our “Creator.” Jefferson’s construction comports better with the thoughts of Locke, Blackstone and others.

Speaking of Jefferson, had he been given the choice, he would have opted to remain in Williamsburg writing Virginia’s Constitution rather than represent his state at the Continental Congress in Philadelphia. But I believe history confirms that the Virginia Assembly made the right choice in sending him northward. As proof that his heart was still in Williamsburg, after arriving in Philadelphia, Jefferson sent his ideas for the new state constitution down to Williamsburg. Unfortunately, they arrived too late to be incorporated. But part of what he sent was used; if you read Virginia’s original preamble to their Declaration of Rights it is clear that what Jefferson sent them included a copy of at least the “complaints” section of his draft Declaration of Independence. Virginia’s version closely follows Jefferson’s draft. At that time in our history, plagiarism was considered a sincere form of flattery.

Another of my favorite passages in Virginia’s Declaration, one I’ve written about on numerous occasions, is Section 15:

“That no free government, or the blessings of liberty, can be preserved to any people, but by a firm adherence to justice, moderation, temperance, frugality, and virtue, and by frequent recurrence to fundamental principles.”

America is a nation with amnesia. We have forgotten our rich history of self-government and individual freedom. We are being pushed and prodded instead towards collectivism and socialism. Do you want America to survive as a free republic? easy; have everyone frequently review our nation’s “fundamental principles.” I’ve written about these principles in numerous essays; they can be found in the Declaration of Independence, the Constitution, even in the Articles of Confederation and the Northwest Ordinance of 1787. By an act of Congress, these four documents form our country’s “Organic Law,” so it behooves us to know what they say, what principles they contain, and how these principles should inform our actions as a self-governing people.

A final passage from the Declaration of Rights that I should discuss is Article 16:

“That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practice Christian forbearance, love, and charity toward each other.”

This passage interests me for several reasons.  First, my favorite Founder, James Madison played an important role in “tweaking” the wording of this section to provide for greater religious freedom in the state.  Mason’s original draft called for “toleration” of religious views; Madison argued that did not go far enough and his wording was adopted instead. Second, as you see, according to our Constitution, Virginians of all faiths have a “mutual duty” to practice Christian forbearance, love and charity towards each other. Kind of neat, huh?

When they ratified the U.S. Constitution in June of 1788, Virginia sent Congress a copy of their Declaration of Rights and suggested it help form a new Bill of Rights for the Constitution. In March of 1789, newly elected James Madison, representing Virginia’s Fifth Congressional District, took his seat in the Congress.  He found Virginia’s suggestions for a Bill of Rights waiting his arrival, along with those of several other states.

Of the approximately twenty-six separate rights secured in the ten Amendments that eventually made up the U.S. Bill of Rights, Virginia’s 1776 declaration covered seventeen of them. Notably absent from Virginia’s declaration were:

  • Any prohibition of an established state religion. What became the First Amendment only prevented Congress from declaring a national religion, state religions were OK and most states had one. The Church of England was the established church in Virginia. It would eventually be disestablished and the prohibition against an established state church would be added to the Virginia’s Declaration of Rights in 1830 and expanded in 1971.
  • Any protection of free speech. This would not be added to the Virginia’s Constitution until 1971, as would freedom of assembly, and the right to keep and bear arms.
  • Virginians from 1776-1791 (when the Bill of Rights went into effect) had no right of due process and no right of the assistance of counsel. These would also be added later.
  • The only glaring deficiency of the present Virginia Constitution when compared with the U.S. Bill of Rights is that there is, to this day, no assurance of a grand jury indictment when charged with a capital crime. Virginians are of course assured of such an indictment today by virtue of the U.S. Bill of Rights and the Constitution’s Supremacy Clause.

Standing opposite these omissions, Virginia’s Declaration of Rights includes several statements which indicate Mason’s drafters were a cautious lot who understood the danger of a too-powerful government; they added statements nowhere to be found in the U.S. Constitution or its Bill of Rights.  They include:

  • That all power is vested in, and consequently derived from, the people (it’s nice to be reminded of this).
  • That magistrates should at all times be amenable to the people (i.e., willing to accept suggestions).
  • That government is instituted for the common benefit, protection, and security of the people, nation or community (how easily this is forgotten today).
  • That a majority of the community has a right to reform, alter or abolish their government (and they have from time to time).
  • That no individual or group is entitled to exclusive or separate benefits or privileges from the community (a later amendment was added to Virginia’s Declaration which would seem to do precisely that. See the 2010 amendment discussed below).
  • That citizens should evidence a permanent common interest in, and attachment to, their community before being allowed to vote (although no legislation was ever passed to put this into action).
  • That citizens are not bound by any law to which they have not assented through their representatives or which is not for the public good.
  • That citizens have duties as well as rights.
  • That there should be an effective system of public education (I wonder if today’s system qualifies as “effective?”)
  • That no government separate from, or independent of, the government of Virginia, ought to be erected within the state. (Review the creation of West Virginia)
  • That the state has no power to suspend the execution of laws without the people’s consent.

As you can see, there many protections found in Virginia’s Constitution that are missing from the U.S. Bill of Rights.

In 1783, Jefferson sent his friend “Jemmy” a draft of a new state constitution in which he proposed “fixes” for the weaknesses he saw in the 1776 version.  One of those weaknesses lay in limiting the right to vote to property owners, which essentially meant only men of wealth could vote.

This limitation proved a perpetual irritant, as did discordant representation of the western counties, whose thinner populations left them under-represented and thus dominated by the Tidewater region. A constitutional convention was finally called in 1829–1830[2] to fix these two problems. Seventy-eight year old James Madison was invited to attend, as were “giants of the revolution” James Monroe and John Marshall.  Madison urged wider suffrage, but his voice was so weak he could hardly be heard. The new constitution expanded suffrage somewhat but retained the property requirement; it left the representation problem unresolved. Note: The 1829 Constitution was the first to be ratified by a popular vote; 1776’s had been adopted without putting it to a vote of the citizens.

Another new Constitution in 1851[3] finally eliminated the property requirement for voting, resulting in extending the vote to all white males of a certain age. The 1851 Constitution also established popular election for the Governor, the newly created office of Lieutenant Governor, and all Virginia judges.

After seceding from the union in April 1861[4] and ratifying the Constitution of the Confederate States of America in June, Virginia’s Confederate government proposed changes to the state constitution, such as changing “United States” to “Confederate States.” The citizens rejected them.

During the war, citizens upset at Virginia’s secession from the Union formed the “Restored Government of Virginia,”[5] situated in Fredericksburg, and in 1864 they drafted and “passed” a new state Constitution. Due to doubts over its legality, it is not considered valid and is not listed in Virginia’s constitutional history.

After the war, while under military rule, another new constitution was drafted in 1867/68. Opponents called the result the “Underwood Constitution” or the “Negro Constitution”, since it gave freed slaves the vote (the Fifteenth Amendment would not be ratified until 1870). The new constitution expanded suffrage to all male citizens over the age of 21, it established a state public school system, and provided for judges to be elected by the General Assembly rather than by popular vote. The Governor was granted full veto power and a constitutional amendment and revision procedure was established.

By the turn of the 20th century, despite the Fourteenth and Fifteenth Amendments to the U.S. Constitution, many Southern states had essentially eliminated their black vote through use of poll tests. Pressure mounted among whites in Virginia to do the same. The 1901 constitutional convention[6] met in this climate. Delegates focused on how to restrict black voting rights without violating the Fifteenth Amendment or disfranchising poor whites in the process. The convention created the requirement for poll taxes and a literacy test — an exemption was granted for military veterans (of either Union or Confederate Armies) and their sons.

The prospective voter, before he or she could even register, had to prove “able to read any section of this Constitution submitted to him by the officers of registration and to give a reasonable explanation of the same…” I wonder how many of Virginia voters could do this today? (Note: any persons who had fought a duel or accepted the challenge of a duel were prohibited from voting.) This change effectively disfranchised many black voters, though many illiterate whites were similarly affected. In the years which followed, Virginia’s electorate was reduced by half.

Other significant provisions of the 1901 Constitution were the creation of racial segregation in public schools and abolishment of the county court system. Due to concern over African-American opposition, the proposed constitution was not put to a popular vote and the Virginia Supreme Court upheld this action in 1903.

In 1926, a commission was appointed to recommend further changes to Virginia’s Constitution and the proposed changes were submitted to a vote of the people in 1928. New limits in how the legislature could incur debt for capital improvements and a prohibition on taxing real estate or tangible personal property were approved. The State Treasurer, the Superintendent of Public Instruction and the Commissioner of Agriculture were now to be appointed by the Governor.

A limited Convention was held in 1945 for the sole purpose of ensuring that members of the armed services would not be prevented, by registration and poll-tax requirements, from voting in state elections in 1945.

In response to the Supreme Court’s 1954 Brown vs Board of Education decision (which ruled segregated schools unconstitutional), another limited convention was held in 1956 to amend Section 141 and allow for the expenditure of public funds for the education of students at private, non-sectarian schools (i.e. all-white schools).  This was part of a massive resistance[7] Virginia put up to the Brown decision.

In 1968, the Virginia General Assembly established a commission to revise the constitution once again. The Commission on Constitutional Revision presented its recommendations to the Governor and the General Assembly the following year. The proposed Constitution was overwhelmingly approved by the voters and took effect on July 1, 1971. This remains Virginia’s Constitution today.[8] As I’ve noted, several changes were made to the Declaration of Rights.  Since then, the constitution has been amended at least twelve times.

  • An amendment in 1972 reduced the voting age to eighteen (the 26th Amendment, lowering the voting age to eighteen in national elections, had been ratified the previous year).
  • In 1976, an amendment modified the state’s residency requirements. 1980 and 1994 amendments set procedures for reconvening the General Assembly.
  • A 1994 amendment brought the constitution in compliance with the new national Motor Voter Act.
  • A 1996 amendment established rights for victims of crime.
  • A 2000 amendment established that all the state’s residents had a right to hunt, fish and harvest game.
  • In 2002, amendments were approved which concerned claims of actual innocence presented by convicted felons and allowed local governing bodies to grant tax exemptions for property used for charitable and certain other purposes.
  • A 2004 amendment established decennial redistricting and added a list of persons who may serve as Acting Governor.
  • In 2006, an amendment was approved by 60% of the voters prohibiting same-sex marriage (ostensibly nullified by Obergefell v Hodges).
  • A 2010 amendment provided property tax relief for certain persons with income and/or financial worth limitations and certain veterans. This almost certainly violated the earlier constitutional provision that “That no individual or group is entitled to exclusive or separate benefits or privileges from the community.” Another amendment set a maximum amount for the Revenue Stabilization Fund.
  • Reacting to the Supreme Court’s Kelo v City of New London decision, a 2012 amendment prohibited the taking or damaging of private property for public purposes.
  • In 2014, the people approved an amendment to exempt surviving spouses of soldiers killed in action from paying property tax.
  • Finally, in 2016, a similar property tax exemption for spouses of certain emergency services providers was approved.

We can see from Virginia’s constitutional history that a constitution can at times be used as a weapon.  Democrats controlled the Virginia legislature from at least the mid-1800s until 2000,[9] an amazing 150-year stretch (except for a short period of military rule during re-construction).  During the Jim Crow era, they used the state constitution to, first, suppress the black vote, and then to extend de-facto segregation by facilitating segregated schools.

In their 1981 book “The Constitutional Convention as an Amending Device,” editors Kermit Hall, Harold Hyman and Leon Sigal identify a great disparity in American constitutionalism, namely, Americans show great interest in “tweaking” their state constitutions, sometimes by amendment, sometimes by complete replacement. Conversely, they seem to reluctant to replace or even amend the U.S. Constitution. “Between 1776 and 1976 some 226 state constitutional conventions were convened, 136 constitutions ratified, and more than 5,000 amendments adopted.”[10] Virginia itself has had five Constitutions since 1776.  Yet the U.S. Constitution, never replaced, has been amended only 27 times since its ratification in 1788 (18 times if you count the first ten amendments as a block) and the last amendment was 25 years ago.  Why the disparity?

Perhaps we revere our national constitution too much (or our state constitutions too little).  Given that the U.S. Constitution is today a shell of its former self in terms of limiting the national government, creating a government that today “can do most anything in this country,” perhaps it is time we reassess our reluctance to consider long overdue amendments that will help put the national government “back in its box.”  Perhaps we should take a lesson from our state experiences and once again make the U.S. Constitution serve the people who provide its political power. Just saying.

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[1] https://en.wikipedia.org/wiki/Virginia_General_Assembly#History

[2] https://en.wikipedia.org/wiki/Virginia_Constitutional_Convention_of_1829%E2%80%931830

[3] http://vagovernmentmatters.org/primary-sources/519

[4] http://www.janus.umd.edu/Feb2002/Cote/01.html

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

[6] https://www.encyclopediavirginia.org/Constitutional_Convention_Virginia_1901-1902

[7] http://www2.vcdh.virginia.edu/xslt/servlet/XSLTServlet?xml=/xml_docs/solguide/Essays/essay13a.xml&xsl=/xml_docs/solguide/sol_new.xsl&section=essay

[8] http://hodcap.state.va.us/publications/Constitution-01-13.pdf

[9] https://en.wikipedia.org/wiki/Virginia_House_of_Delegates

[10] The Constitutional Convention as an Amending Device, Kermit Hall, Harold Hyman & Leon Sigal, ed., American Historical Association, 1981, p.69.

Constitutional Corner – The War in the Courts

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In his 1833 Commentaries on the Constitution,[1] the eminent jurist Joseph Story wrote:

“The truth is, that, even with the most secure tenure of office, during good behavior, the danger is not, that the judges will be too firm in resisting public opinion, and in defence of private rights or public liberties; but, that they will be ready to yield themselves to the passions, and politics, and prejudices of the day.”

It is no secret that the Left has declared war on Donald Trump. From his election on November 8th onward it has been “open season” on all things Trump, whether rampant vandalism[2] at his various commercial properties to perpetual protests to snide remarks over Melania’s choice of apparel at official functions.[3]

It is also no secret that certain federal judges have “yield[ed] themselves to the passions, and politics, and prejudices of the day.” Not content with that, some seem to have actively enlisted in the Left’s “army.” While rank-and-file Progressives can only don sackcloth, wail and gnash their teeth over Trump’s dismantling of the Progressive edifice Obama labored eight years to erect, progressive federal judges are actually in a position to act with effect.

Not that they should be. Alexander Hamilton, in one of his most famous statements, called the judiciary the “least dangerous branch.” How wrong he was. Today, federal judges are the “go-to guys” for bypassing representative government; helping Progressives achieve in the courtroom what they have no chance of achieving in the Congress. But this is the doctrine the American people have been lulled into embracing:

“To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy,” said Jefferson.

Progressives seem quite comfortable with “despotism of an oligarchy” – particularly when the oligarchs share their own progressive views.

Which brings us to District Judge Mark A. Goldsmith.

Judge Goldsmith, nominated by Barack Obama, has ordered a temporary injunction[4] against the Justice Department’s attempts to deport hundreds of illegal immigrants they either have in custody or whose locations are known.  Judge Goldsmith believes that the courts should have a say in whether a particular alien should or should not be deported. He even carved out a new Constitutional duty for the courts: “Constitutional First Responders:” “Under the law, the federal district courts are generally the ‘first responders’ when rights guaranteed by the Constitution require protection.” Really? I’ve searched Article III high and low; neither the term “First Responder” nor the concept are to be found therein. I can’t think of a better example of a “judicial activism.”

“First Responder?”Congress takes a different view. The law in question, Title 8 U.S. Code § 1227, prohibits interference in deportation cases; it flat out says:

“No court shall have jurisdiction to review a [deportation] decision of the Attorney General to grant or deny a waiver …”

This is called “jurisdiction stripping,” a power the Congress was granted in Article 3, Section 2:

“In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” (Emphasis added)

This little-known provision of the Constitution has even been tested in the Supreme Court. During the Reconstruction period, Congress withdrew jurisdiction from a case the U.S. Supreme Court was in the process of adjudicating (ex parte McCardle).[5] They had heard oral arguments but had not yet rendered a decision. Upon being informed of the bill Congress had just passed limiting their jurisdiction in the matter at hand, lo and behold, the high court shut down the case mid-stream. Congress has the power and the Supreme Court agrees.  Or you could say: the people, through their elected representatives, have the power, the courts must follow orders. Abraham Lincoln would agree:

“We the people are the rightful masters of both Congress and the courts, not to overthrow the Constitution but to overthrow the men who pervert the Constitution.” (Emphasis added)

One might argue that judicial stripping only applies to the Supreme Court, since that is the only court mentioned in the clause, that it does not apply to the federal courts below. But recall that the Constitution requires only “one supreme Court, and … such inferior Courts as the Congress may from time to time ordain and establish.” All these “inferior” courts exist at the pleasure of Congress; Congress created them and Congress can dissolve them through a simple act of Congress (provided the bill survives a Presidential veto). Sort of like the angry Mom saying to the up-start child: “I brought you into this world, I can take you out.” Does it make sense that the lower courts would enjoy a power denied the Supreme Court?

Apparently Judge Goldsmith believes this feature of the Constitution is, well, unconstitutional. To be clear, he admitted he was not completely certain whether or not he had jurisdiction in deportation matters, but he then went on to announce that it was up to him to decide this question! Say what? To give him time to figure it out, he ordered a stay to the deportations. Wrong answer, judge.

Certainly when Judge Goldsmith went through law school he was exposed to a legal principle called: “Nemo judex in causa sua;” which translates to “no man should be a judge in his own cause.”  This is a universal principle of justice; the saying itself was first attributed to Sir Edward Coke in the 17th century. Rendered another way: “no person should judge a case in which they have an interest.”

So what do we the people do when we have federal judges “going rogue,” making indefensible decisions, judging their own jurisdiction in a matter?  The word that comes to mind is “impeachment.”  In Federalist 65, Alexander Hamilton calls impeachment “a method of national inquest into the conduct of public men.”

Can you impeach a judge for an improper decision?  That’s where it gets tricky.

We’ve impeached a bunch of federal judges and justices over the years.  Wikipedia puts the count at sixty-one as of 2003.[6] But none of these were impeached for their decisions, only for misbehavior. There’s an unwritten rule – a sort of “gentlemen’s agreement” — to help keep the courts separate from partisan politics, judges (and justices) will not be impeached for their decisions.

But where is the line between a horrendous decision and judicial malpractice?  Dred Scott, Plessy v. Ferguson, Roe v. Wade, and few other decisions come to mind.

Over the years Congress has impeached (and the Senate convicted) federal judges for all sorts of misbehavior; Drunkenness, graft/corruption, Tax evasion, to name just a few. There have also been judges impeached for “abuse of power.”  The impeachment of district Judge James H. Peck[7] provides an example.  Peck was impeached for “usurping a power which the laws of the land did not give him.”  He was subsequently acquitted, but “usurping power” sounds suspiciously similar to “deciding one’s own jurisdiction.”

If there is any good news to this story, it is that there are over a hundred vacancies in the federal court system (120) and Trump has begun to fill them, with conservatives.  The only wrinkle is an archaic Senate rule that requires both of a state’s senators to agree to advance a judicial nomination of someone from their state by forwarding what are called “Blue Slips.”[8]  No “Blue Slips,” no nomination.  To their credit, Republicans have threatened to revoke the rule if Democrats start using it to stop otherwise qualified nominations.  Like the filibuster, time to get rid of another archaic Senate rule.

If you are upset by any of this, what can you do? Term limits on federal judges might solve some of the problem, or at least minimize the chances for continued judicial malpractice, but even that could backfire.  Might a judge facing a limited term be even more tempted to misbehave knowing he has only a short time to do so and face any consequences?

Opening up impeachment in response to decisions which clearly do not respect the original understanding of the Constitution (its not that hard to discern) would be another remedy.  One or two impeachment proceedings would send a strong message to judges that it’s time to dust off those old copies of Federalist.

And of course you can ask your two Senators whether they intend to use the Blue Slip method to block judicial appointments.

The last remedy I’ll mention comes from my co-commentator on my radio show: “We the People – the Constitution Matters,”[9] Phil Duffy. Phil is convinced that Article 3 was drafted in haste and is woefully deficient in delineating the powers of the judiciary.  It is hard to argue given the problems we’re experiencing today with these black-robed tyrants. Article 3 begs a complete re-write.  That would require either an Article V convention or a full-blown Constitutional Convention, both extremely high hurdles in today’s environment.

America has to come to grips with what the federal judiciary has become. It is not what the Framers intended. Both sides of the aisle are guilty of “judge-shopping” and that only exacerbates the problem. Only judges who pledge to interpret the Constitution in the context of its original meaning should sit on the federal bench.

The American people need to step up to the plate and once again become “the rightful masters of both Congress and the courts.”  Just saying.

[1] https://en.wikipedia.org/wiki/Commentaries_on_the_Constitution_of_the_United_States

[2] http://www.newsweek.com/donald-trump-vandalism-golf-courses-walk-fame-star-567057

[3] http://www.westernjournalism.com/melania-trumps-fashion-choice-at-wounded-warrior-event-makes-waves-on-social-media/

[4] http://www.washingtontimes.com/news/2017/jul/12/judge-rules-courts-can-stop-trump-deportations/

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

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

[7] http://tinyurl.com/y99vts4h

[8] https://www.getamericapraying.com/blog/senate-blue-slip-procedure-and-judicial-appointments/

[9] http://www.1180wfyl.com/programs.html

Constitutional Corner – Yes, Tear Down This Wall!

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Suggested reading List:

“Original Intent,” 2000, by David Barton.

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

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

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

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

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

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

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

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

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

[4] Runkel v. Winemuller (1799)

[5] The People v. Ruggles (1811)

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

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

Constitutional Corner – Mr. Gorsuch, Tear Down This Wall!

Constitutional Corner – Mr. Gorsuch, Tear Down This Wall![1]

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In the years immediately before and especially after the Civil War, Catholics began making up an increasingly large percentage of immigrants coming to the U.S.

“The Catholic citizens of Italy, Poland, parts of Germany, and the Eastern European kingdoms of what are now Slovakia and the Czech Republic began to cast their eyes towards America. The country had a growing world reputation for democratic ideals and work opportunity. For these peoples, as well as for French Canadian Catholics to the north of the United States and Mexican Catholics to the south, the chance for a new life free of poverty and oppression was too good to pass up. Millions of sons, fathers, and later whole families left behind their former lives and possessions and boarded crowded ships sailing for New York.”[2]

In 1850, Catholics were only five percent of the U.S. population. By 1906, they made up seventeen percent (14 million out of 82 million people)—and had become the single largest religious denomination in the country.[3]

Protestantism, however, with its many denominations, was still the dominant faith and was thoroughly infused in the public schools of the time. Each school day began with prayer and bible reading, from a Protestant version of the Bible, of course. Soon, Catholics and Jews began objecting to being excluded from this decidedly Protestant activity and began forming schools of their own. It was not long before Catholics began asking for (and getting) public funding of their schools similar to that provided the “common schools.”

In an 1875 speech to a veteran’s meeting, President Ulysses S. Grant called for a Constitutional amendment that would mandate free public schools and prohibit the use of public money for any and all “sectarian” (i.e. Catholic or other denomination-run) schools. Grant declared that “Church and State” should be “forever separate.” Religion, he said, should be left to families, churches, and private schools unsupported by public funds.[4]

In response to the President’s call, Republican Congressman James Blaine of Maine (say that three times, fast) proposed Grant’s amendment. It passed with a vote of 180 to 7 in the House of Representatives, but failed the 2/3 requirement by four votes in the Senate and thus was not sent to the States for ratification.

The proposed Amendment read:

“No State shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof; and no money raised by taxation in any State for the support of public schools, or derived from any public fund therefor, nor any public lands devoted thereto, shall ever be under the control of any religious sect; nor shall any money so raised or lands so devoted be divided between religious sects or denominations.”

Essentially, this would have extended the First Amendment’s Establishment Clause to the States[5] as well as address Grant’s school funding concern.[6]  Remember, this occurred prior to the 17th Amendment, when States still appointed and thus controlled their Senators. Given its overwhelming support in the House when compared with that of the Senate, pressure exerted by State legislatures on their appointed Senators seems the likely cause of the Senate-failure.

Seeing the amendment fail in Congress, States took the hint and began incorporating what would come to be called “Blaine Amendments” in their state constitutions; Missouri would do so in 1875, forming Section 7 of their Bill of Rights, which read (and reads today):

“That no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion, or in aid of any priest, preacher, minister or teacher thereof, as such; and that no preference shall be given to nor any discrimination made against any church, sect or creed of religion, or any form of religious faith or worship.”

Fast forward to the present.

One week ago, Judge Neil Gorsuch, formerly a judge on the 10th Circuit Court of Appeals in Denver, was finally confirmed by the U.S. Senate to sit on the U.S. Supreme Court. Democrats were determined to block the confirmation any way they could, partly in hope that a more liberal judge would be nominated to replace Gorsuch and partly out of hatred for having Judge Merrick Garland, President Obama’s choice, blocked by Republicans using their majority position in the Senate. To prevent a filibuster from derailing the nomination, Republicans were forced to fall back on a rule change made in 2011 by then Majority Leader Harry Reid. Republicans used a parliamentary maneuver to interpret Reid’s rule change to have included Supreme Court nominations and not just federal judges.

It is always interesting and somewhat amusing to see those on the Left, champions of democracy, don sackcloth and ashes when that same democracy fails them.

On Monday, April 10th, Associate Justice Gorsuch took his oath (two of them to be precise) and immediately plunged into the study of the fourteen cases that remain to be settled in the Court’s Fall 2016 schedule; three of them will heard on Monday the 17th.

The majority of these cases are pretty mundane.  Here’s an example: on April 26th the Court will hear Amgen Inc. v. Sandoz Inc.  At Issue is: “whether a biosimilar applicant is required by Title 42 of the U.S. Code Section somethingorother to provide the reference product sponsor with a copy of its biologics license application and related manufacturing information, which the statute says the applicant “shall provide;” and whether, where an applicant fails to provide that required information, the sponsor’s sole recourse is to commence a declaratory judgment under Title 42 Section whocares and/or a patent-infringement action under Title neverheardofit of the U.S.Code.” (minor license taken with the text)

Everyone still with me? Pretty exciting stuff, eh?

But there is one case on the docket with a connection to the previous discussion.  On Wednesday, April 19th the Court will hear Trinity Lutheran Church of Columbia v. Comer.  On the docket, the issue is framed as: “Whether the exclusion of churches from an otherwise neutral and secular aid program violates the Free Exercise and Equal Protection Clauses when the state has no valid Establishment Clause concern.”

Here’s what happened: A preschool and daycare affiliated with Trinity Lutheran Church of Columbia, Missouri, was denied a grant from the state of Missouri that would have provided public funds to the daycare center to purchase rubberized material (shredded used tires) with which to resurface their playground. The state’s rationale for denying the grant was based on, you guessed it, Section 7 of the Missouri Bill of Rights, quoted earlier.

The Church argued that the funds would be used for a purely secular purpose, protecting the safety of the children playing on the playground, clearly not a religious purpose.

If you’re interested, you can find the whole history of this case on Alliance Defending Freedom’s website,[7] (they are defending the church), and you can read, at last count, thirty-eight amici briefs on the SCOTUSBlog website,[8] some in support, some arguing against the church’s position.

On its face, the Missouri Constitution’s provision in question is self-contradictory and blatantly discriminatory against religion – all religion in fact: “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, section or denomination of religion.” Yes, but: “no… discrimination [shall be] made against any church, sect or creed of religion?”

Public money will be dispensed, for clearly secular purposes, but no religious institution can avail itself of these funds simply because it is a religious institution.

Before we go further here, I should point out that some claim our public schools are decidedly religious enterprises, that they espouse the religion of secular humanism and inculcate unassuming children in that religion’s tenets. If that be the case, and we wanted to apply Missouri’s Blaine Amendment fairly, no public money should go to any public school. Obviously that view, while I support it, is not held by a majority of Americans, even many professing Christians.

But the question must be asked: Is everything a church does an exercise of religion? First Corinthians 10:31 proclaims “… whether you eat or drink or whatever you do, do it all for the glory of God.”[9] Yes, everything we do should be done in such a manner that it will please God, but does that command alone make everything a religious activity? Should I brush my teeth in a manner that pleases God? Is there even a way to brush your teeth that pleases God, and a way that does not? I think that is a stretch. Brushing one’s teeth is, to my view, a secular activity.[10] There is no guidance in the Bible (that I’m aware of) that instructs us in how (or even whether) to do this.

Likewise, I believe there are completely secular activities that a church performs that cannot or at least should not, be viewed as religious. Keeping their parking lots clean — is this a religious activity? If you take 1 Corinthians 10:31 literally, I suppose it could be. But if a church allows their parking lot to be encumbered with trash, I think we would find it proper for the city to order them to clean it up. Keeping publically-accessible property clean is a completely secular, non-religious activity, subject, I think, to appropriate civil oversight. So would be maintaining a safe playground for their children. And if the playground contained hazardous or poorly maintained equipment that provoked injury to a child who used it, the church should expect to be sued, in civil court.

So here’s the nub: if there are public funds available to assist organizations in maintaining playgrounds upon which the community’s children (as well as the church’s) are allowed to play, money provided by taxes to which the church’s members along with the non-church public both contribute,[11] why can a church not avail itself of those funds for what is clearly a non-religious purpose?

I can understand the concern over the use of public funds to print Bibles, or pay ministers, or rent tents for an outdoor evangelistic campaign; that would clearly not be proper, those activities are fundamentally religious.

I’m also cognizant of the “slippery-slope theory.” If the Missouri Constitution’s provision is deemed excessively hostile to religion in general (which I think it is) and some church use of public funds is to be allowed, where to you draw the line?

The Preamble to the Missouri Constitution, approved in 1821, reads:

“We the people of Missouri, with profound reverence for the Supreme Ruler of the Universe, and grateful for His goodness, do establish this constitution for the better government of the state.”[12]

This statement comports nicely with President George Washington’s first Thanksgiving Proclamation, which read:

“… 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 favor …”[13]

It would appear Missourians are grateful to God, but not too keen about His churches.

At their core, Blaine Amendments were discriminatory in intent, to allow Protestantism to maintain its dominant position in public education. But thanks to the efforts of men like Horace Mann, John Dewey and others, Christianity has been successfully banished from public schools; even Christmas Carols are banned from the “winter holiday” program.[14] In this atmosphere, Blaine Amendments have been turned into a weapon in the secularists’ arsenal. What began as a cudgel to beat down Catholics has become sledge to exclude any and all religions from enjoying the fruits of general taxation, and such amendments serve to feed the rising tide of hostility towards all religion in this country.[15]

But wait, isn’t there to be an impenetrable wall of separation between Church and State?

The Supreme Court famously said so in 1947’s Everson vs. Board of Education:

“The ‘establishment of religion’ clause of the First Amendment means at least this: …[n]either a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation between Church and State.”[16]

As more eloquent commentators that I have said, an impenetrable, bi-directional wall was not what Jefferson had in mind as he penned his infamous letter to the Danbury Baptists.  Space doesn’t permit a detailed analysis – perhaps another day. For the impatient, see here[17] and here.[18]

I believe most Americans understand the vital role that religion, Christianity particularly, played in the formation of this country. I’m convinced that without Christianity there would have been no revolution of 1776, period – end of story. “Independence was boldly preached from Scripture throughout the thirteen original States during the American Revolution.”[19] “The Revolution was effected before the war commenced. The Revolution was in the minds and hearts of the people; a change in their religious sentiments of their duties and obligations.”[20]  Without Christianity being the dominant religion in the decades leading to 1776, I think we would be speaking today with a slightly different accent.  Is there a debt owed here?

So the question before us is whether we are to have this impregnable, insurmountable wall between church and state; a wall contrived by a contorted interpretation of a single phrase found in a single letter of a single American President; or whether we are to acknowledge that churches, like individuals, contribute to the common good, pursue both secular and religious activities; and that their secular functions should be eligible to compete for public funds on an equal footing with secular non-profit organizations.

I propose we make a statement that all children should enjoy safe playgrounds and that we the taxpayers should help make it so.

There are those who will argue (and have) that the Supreme Court should never have taken this case; they should have called this is a state issue to be worked out at that level.  But are “Blaine Amendments” constitutional?  Do they conflict with the spirit and intent of the First Amendment?  That is a question only the high Court can decide.

Others insist that the Scrap Tire Program is immoral: taking from one set of citizens to give to another, and that the church should abstain from participating on those grounds. That’s certainly the church’s choice, I would not begrudge it. While we’re on the subject or government programs, I do not believe the federal government should have gotten involved in retirement planning (Social Security) or healthcare (Medicare), but I’m not turning away the benefits my payroll withholding helped create.

I think Justice Gorsuch will side with me; but I don’t know which side of a certain 5-4 split he will find himself on. Based on his 10th Circuit opinions in Yellowbear v. Lampert, Hobby Lobby Stores, Inc. v. Sebelius, and American Atheists Inc. v. Davenport, I think he will conclude that the Missouri Constitution’s Blaine Amendment is overly hostile to religion and that granting public funds for this purpose does not create a conflict with the Constitution’s Establishment Clause.

Missouri’s Scrap Tire Grant Program has a secular purpose; awarding Trinity Lutheran the use of public funds for this purpose does not advance or establish their religion.

What say you, Justice Gorsuch? Should we start tearing down the wall?

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[1] With apologies to Ronald Reagan, Berlin, June 12, 1987.

[2] http://www.nationalhumanitiescenter.org/tserve/nineteen/nkeyinfo/nromcath.htm

[3] Ibid.

[4] https://en.wikipedia.org/wiki/Blaine_Amendment

[5] Notice also that the Blaine Amendment, coming as it did seven years after ratification of the 14th Amendment, clearly shows that those in Congress who passed the 14th did not understand that it should be interpreted to incorporate the Bill of Rights against the states.

[6]  The Establishment Clause would not be incorporated against the States by the 14th Amendment until 1947 in Everson v. Board of Education.

[7] http://www.adfmedia.org/News/PRDetail/8831

[8] http://www.scotusblog.com/case-files/cases/trinity-lutheran-church-of-columbia-inc-v-pauley/

[9] 1 Corinthians 10:31 NIV

[10] Yes, we are to “pray without ceasing,” even while brushing our teeth; so I suppose the case could be made that brushing one’s teeth includes religious activity.

[11] The money is collected from a fee placed on tire disposal.

[12] http://www.moga.mo.gov/preamble.htm

[13] http://avalon.law.yale.edu/18th_century/gwproc01.asp

[14] http://www.huffingtonpost.com/2010/10/06/ban-on-school-christmas-c_n_751839.html

[15] http://www.frc.org/hostilityreport

[16] https://www.law.cornell.edu/supremecourt/text/330/1

[17] http://www.albatrus.org/english/goverment/church_&_state/false_separation_church_state.htm

[18] http://www.christianity.com/church/church-history/timeline/1801-1900/the-truth-about-the-wall-of-separation-11630340.html

[19] Library of Congress historian Catherine Millard in “Preachers and Pulpits of the American Revolution,” found at http://christianheritagemins.org/articles/Preachers%20and%20Pulpits%20of%20the%20American%20 Revolution.pdf

[20] John Adams, Letter to Hezekiah Niles, 13 February 1818.

Constitutional Corner – Sanctuary Cities and the Constitution

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On January 25, 2017, Donald Trump carried through on a campaign promise and signed Executive Order 13768[1] which declared sanctuary jurisdictions across the United States to be in willful violation of Federal law. Attorney General Jeff Sessions promised to enforce it.[2] Section 2(c) of the Order sets out to ”ensure that jurisdictions that fail to comply with applicable Federal law do not receive Federal funds, except as mandated by law.” The Order also contained a list of types of illegal aliens that are to be “promptly” deported. These include aliens who:

  • Have been convicted of any criminal offense;
  • Have been charged with any criminal offense, where such charge has not been resolved;
  • Have committed acts that constitute a chargeable criminal offense;
  • Have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency;
  • Have abused any program related to receipt of public benefits;
  • Are subject to a final order of removal, but who have not complied with their legal obligation to depart the United States; or
  • In the judgment of an immigration officer, otherwise pose a risk to public safety or national security.

In response, the list of U.S. cities declaring that they are sanctuaries, which began growing even during the Obama administration, increased dramatically. There are now estimated to be nearly 300 such cities, counties and even states[3] that have made such declarations. Several states are offering illegal aliens state driver’s licenses. Going one step further, Chicago offered “undocumented” immigrants money for legal fees to fight federal deportation. To see if your locality is a sanctuary, the most well maintained list I’ve found is here.[4]

So what are we to make of sanctuary cities and, if California carries through on its recent threat: sanctuary states?

There is nothing unlawful[5] in a city declaring itself a sanctuary city; the declaration is not the problem, the actions which may follow are. Usually, all a sanctuary city is asserting is that their city’s resources will not be utilized in helping the federal government enforce federal law, something the Supreme Court has said the federal government cannot force a state or city to do (refusing to cooperate is called “anti-commandeering”).[6]

However, it is a federal felony, punishable by five years in prison for each violation, for any person to conceal, harbor, or shield from detection any illegal alien. The word “harbor” is defined as any conduct that tends to substantially facilitate an alien’s remaining in the U.S. illegally.

The Supreme Court rejected arguments (in Reno v. Condon) that a state or local government’s refusal to supply information requested by the federal government should be protected. Providing requested information was not seen by the court as “enforcing” a federal statute.

Furthermore, the 1996 Illegal Immigration Reform and Immigrant Responsibility Act prohibited any Federal, State or local government entity or official from restricting any other government entity or official from sending to, or receiving from, the [Department of Homeland Security] information regarding the citizenship or immigration status, lawful or unlawful, of any individual.”[7] To get around this, sanctuary localities make it a point not to determine an apprehended person’s immigrant status; they can’t provide information they don’t have, right? Sort of “Don’t ask, don’t … ask?”

So it appears the sanctuary cities do not have much legal “wiggle room.” They can’t be forced to detain individuals at INS request; they can’t be forced to apprehend illegal immigrants who have committed no other crime, but that’s about it. They can be prosecuted for refusing to provide information on aliens in their custody, and they can be prosecuted for shielding aliens they do apprehend, provided they know the alien’s status.  But can the federal government withhold funds solely on the basis of a sanctuary declaration?

As a Reuters study points[8] out, there is a lot of money at stake; tens of billions of dollars.  Here’s a chart[9] that will put the funding in perspective for you.

The problem for Mr. Trump is that in some cases Congress expressly authorizes specific amounts to specific locations, in others the Executive branch is given great discretion in terms of where and how the funds are to be allocated. Some examples of programs where funds could conceivably be cut: the Community Oriented Policing Services program (COPS) provides grants to pay for school resource officers; the Edward Byrne Memorial Justice Assistance Grant Program (JAG) funds a variety of state and local law enforcement expenses, including court, crime prevention and education programs; the State Criminal Alien Assistance Program (SCAAP) funds a program that helps local police departments with incarcerated undocumented immigrants fund their corrections facilities and the salaries of their officers.

Faced with the potential loss of critical law enforcement funds, some localities have had second thoughts or have even reversed an earlier declaration.  Other localities have protested vigorously when their name has shown up on a sanctuary list.

If it weren’t for America’s history regarding slavery, the sanctuary issue would be much simpler.

The Constitution states[10] that: “No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.” A 1793 law made it a crime for slaves to escape from a slave state to one where slavery had been banned. Finally, the Fugitive Slave Law of 1850 expanded the authority of federal law enforcement officials in apprehending fugitive slaves. As a result, the Underground Railroad[11] was born.  As many as 100,000 escaped slaves may have been “transported” to freedom.

Are today’s sanctuary cities and the Underground Railroad morally equivalent? Is a fugitive slave the same as a fugitive illegal immigrant? Some think so; I think not. The slave did not choose his slavery (although he did choose to escape), the immigrant chose to enter the country illegally or overstay his visa.

While harboring a fugitive from justice is often claimed to be an act of conscience, as we have seen, it is also illegal and the offender is subject to prosecution. Because of this, Catholic churches have been urged[12] to use caution before leaping into the sanctuary pool. As lawyer and Jesuit Father Bryan Pham points out in On Becoming a Sanctuary: Five Points For Catholic Institutions To Consider: “The housing of undocumented people is not necessarily covered under the First Amendment.”

Some in the sanctuary movement, members of other Christian denominations, point to the “cities of refuge” discussed in the Bible:[13] There it says: “Speak to the people of Israel and say to them, ‘When you cross the Jordan into the land of Canaan, then you shall select cities to be cities of refuge for you, that the manslayer who kills any person without intent may flee there.’ The cities shall be for you a refuge from the avenger, that the manslayer may not die until he stands before the congregation for judgment.” (Emphasis added)

Notice that refuge cities were established for one circumstance: inadvertent manslaughter.  Any “run-of-the-mill” criminal could not claim refuge. Even an inadvertent manslayer could claim refuge only until a trial was conducted (or the High Priest died before a trial could be conducted).

Some Christian churches in America have a long history[14] of receiving and housing true refugees from oppression, at times even smuggling them into this country. The problem here is determining who are the true refugees from violence or oppression and who are simple economic immigrants; how do you determine who is which? Illegal immigrants know exactly what to say if/when they are apprehended?  Even then, the smuggling of true refugees remains a problem.

Pointing to their “venerable role in human history,” Associate Professor of English at UC Irvine, Elizabeth Allen, pleads in an LA Times OpEd[15] that sanctuary cities must continue to exist since they have “long been an escape valve for society.” “The sanctuary cities of the 2000s are part of this American tradition.” Tellingly, Professor Allen wastes no ink recounting the economic effect of illegal immigration.[16]

I think the religious or moral case for providing sanctuary to illegal immigrants is very weak, and thus far I haven’t noticed anyone trying to make a Constitutional case for sanctuary cities, perhaps there’s a lesson there.

“Sanctuary Cities” sounds all lofty and moral, and may even give some citizens a warm-fuzzy that they are “doing their part for the oppressed.” But if you are an official in such a city, don’t be surprised if you are prosecuted for harboring aliens, and don’t complain if you’re incarcerated for doing so. Just saying.

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

[2] www.washingtontimes.com/news/2017/mar/27/jeff-sessions-says-hell-punish-sanctuaries-cities.

[3] http://www.washingtonexaminer.com/map-over-200-sanctuary-cities-in-32-states-and-d.c./article/2567880.

[4] http://www.ojjpac.org/sanctuary.asp.

[5] https://townhall.com/columnists/judgeandrewnapolitano/2016/12/08/are-sanctuary-cities-legal-n2256429.

[6] In Prigg v. Pennsylvania (1842), the Court ruled that the federal government could not force states to implement or carry out the Fugitive Slave Act of 1793. In Printz v. United States (1997) the Court ruled that localities could not be forced to administer part of a firearm background check program.

[7] 8 U.S.C. § 1371(a).

[8] https://www.alipac.us/f12/reuters-largest-10-%91sanctuary-cities%92-may-lose-%242-27-billion-federal-funding-342683/.

[9] http://tinyurl.com/kpj3ra7.

[10] Article 4, Section 2.

[11] https://en.wikipedia.org/wiki/Underground_Railroad.

[12] https://www.ncronline.org/news/justice/becoming-sanctuary-five-points-catholic-institutions-consider.

[13] Numbers 35 (and other scriptures).

[14] http://99percentinvisible.org/episode/church-sanctuary-part-1/.

[15] http://www.latimes.com/opinion/op-ed/la-oe-allen-sanctuary-cities-20150917-story.html.

[16] https://en.wikipedia.org/wiki/Economic_impact_of_illegal_immigrants_in_the_United_States.

Constitutional Corner – The Right of Self Preservation

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In 1775, Alexander Hamilton wrote:

“The sacred rights of mankind are not to be rummaged for, among old parchments, or musty records. They are written, as with a sun beam, in the whole volume of human nature, by the hand of the divinity itself; and can never be erased or obscured by mortal power.”[1]

We should not seek out our rights in “musty old” Constitutions, we should look for them in the world around us; as an expression of natural law they are “written on our hearts.”[2] But what is their source, who wrote them there?

John Dickinson represented Pennsylvania in the Second Continental Congress in 1776, although he refused to sign the Declaration of Independence. Eleven years later he represented Delaware at the Constitutional Convention (where he did sign the document). He answers the question:

“Kings or parliaments could not give the rights essential to happiness… We claim them from a higher source – from the King of kings, and Lord of all the earth.  They are not annexed to us by parchments and seals. They are created in us by the decrees of Providence, which establish the laws of our nature. They are born with us; exist with us; and cannot be taken from us by any human power without taking our lives. In short they are founded on the immutable maxims of reason and justice.”[3]

Who would deny that each human being has a natural right to preserve their own life? Self-preservation is an almost universal, natural response of living organisms. Upon recognizing a threat to its life, nearly any aware creature will move away from the perceived threat or, if movement is impossible, do whatever is possible to neutralize or minimize the threat to its life. It seems as if this response is hardwired into us. Might this be because it is both a natural response and a natural right?

All the great natural rights philosophers recognized a right of self-preservation. Thomas Hobbes put the right of self-preservation at the top of his catalog of laws of nature that constitute the “true moral philosophy.”[4] He wrote in “Leviathan:”

“The Right Of Nature , which Writers commonly call Jus Naturale , is the Liberty each man hath, to use his own power, as he will himself, for the preservation of his own Nature; that is to say, of his own Life; and consequently, of doing any thing, which in his own Judgement, and Reason, he shall conceive to be the aptest means thereunto.” (Emphasis added)

John Locke took it a step further; not only could we defend ourselves, we could wreak havoc on whomsoever or whatever threatens us:

“Self-preservation [is] a duty to God…I should have a right to destroy that which threatens me with destruction: for, by the fundamental law of nature, man being to be preserved as much as possible, when all cannot be preserved, the safety of the innocent is to be preferred: and one may destroy a man who makes war upon him, or has discovered an enmity to his being, for the same reason that he may kill a wolf or a lion.[5]

Notice that to Locke (and others, as we’ll soon see) we have a duty to preserve ourselves; but the duty is owed not to ourselves but to our Creator. Do we have a similar duty to protect the lives of others?

“Every one, as he is bound to preserve himself… so by the like reason, when his own preservation comes not in competition, ought he, as much as he can, to preserve the rest of mankind, and may not, unless it be to do justice on an offender, take away, or impair the life, or what tends to the preservation of the life, the liberty, health, limb, or goods of another.”

Jean-Jacques Burlamaqui, the great French philosopher, wrote:[6]

“God is therefore willing, that everyone should labor for his own preservation and perfection, in order to acquire all the happiness, of which he is capable according to his nature and state…”

“For, man being directly and primarily charged with the care of his own preservation and happiness, it follows therefore that, in a case of entire inequality, the care of ourselves ought to prevail over that of others…”

“If a particular manner of acting appears to me evidently fitter than any other for my preservation and perfection, fitter to procure my bodily health and the welfare of my soul; this motive alone obliges me to act in conformity to it.” (Emphasis added)

The Founders took a similar view:

“Among the natural rights of the Colonists are these: First, a right to life; Secondly, to liberty; Thirdly, to property; together with the right to support and defend them in the best manner they can. These are evident branches of, rather than deductions from, the duty of self-preservation, commonly called the first law of nature.[7]

“In the human body the head only sustains and governs all the members, directing them, with admirable harmony, to the same object, which is self-preservation and happiness;[8]

Self-preservation is the first principle of our nature. When our lives and properties are at stake, it would be foolish and unnatural to refrain from such measures as might preserve them because they would be detrimental to others.[9]

The right of self defense is the first law of nature.”[10] (Emphasis added in all)

Since natural law and revealed law (the Bible) have the same source, we should find them in harmony. But the Bible takes a more nuanced view, especially when we encounter the New Testament.  But first the Old:

“Thou shalt not murder” makes it clear that we can have an expectation that no one should threaten our life. But does this give us the right to actively defend our life?

In Psalm 82:4, we find an obligation to protect all who are in danger:

“Rescue the weak and needy; Deliver them out of the hand of the wicked.”

In Ezekiel 33 we encounter an obligation to warn others of approaching danger, and if we do not, any harm that comes to them will be our responsibility:

“…’But if the watchman sees the sword coming and does not blow the trumpet, and the people are not warned, and a sword comes and takes a person from them, he is taken away in his iniquity; but his blood I will require from the watchman’s hand.”

Numerous verses[11] demonstrate that murdering another person results in the forfeiture of the life of the murderer. Does it not follow that to prevent someone from forfeiting their life we should do what we can to prevent or neutralize their attack on our person?

For what are we preserving by doing so? Yes, our life; but to whom do we own our life? Are we not God’s “property?” Is it not God’s property we are ultimately protecting?

Or know ye not that your body is a temple of the Holy Spirit which is in you, which ye have from God? and ye are not your own; for ye were bought with a price: glorify God therefore in your body.[12]

Returning to “Thou shalt not murder;” can we justify taking the life of an attacker in defending our self? Jesus’ command to “turn the other cheek” certainly presents us with a challenge. Must we “turn the other cheek” when our life, and something more than a slap on the face, is in the bargain? In John 15:13, we are shown it is an act of love to lay down our own life for a friend. Sacrificing one’s self when others are imperiled, subordinating our right of self-preservation to the preservation of someone else, is the ultimate act of love. We honor those who choose this path; but it remains a choice.

Yet, Jesus confirms there is still a time and place for weapons of defense: “he who has no sword, let him sell his garment and buy one.”[13] When Peter imprudently cuts off the ear of the high priest’s servant while trying to protect Jesus, Peter is told to put his sword back in its sheath, not discard it.[14]

So if the Right of Self-Preservation was universally recognized by moral philosophers and the Founders, subordinating that right counted as the ultimate sacrifice, why was this right not enumerated in the Constitution?

Perhaps one reason has to do with the limits of language.  Madison noted that:

“[T]here is great reason to fear that a positive declaration of some of the most essential rights could not be obtained in the requisite latitude. I am sure that the rights of conscience in particular, if submitted to public definition would be narrowed much more than they are likely ever to be by an assumed power.”[15]

Translation: if you do not describe the right you are trying to secure with “the requisite latitude,” that is, precisely enough, there is danger that it will not be secured correctly or adequately. And if the public is allowed to define the right, they will likely do so in an even narrower sense than the government might.

Considering Madison’s example: how would you describe the Right of Conscience? To what beliefs would it extend – anything and everything, or only religiously-focused beliefs? If you believe it is morally wrong to kill animals should you be able to enunciate and act upon that belief? Of course, but not to the point that your actions infringe on the right of others to eat meat if they choose (PETA take note).

How would you describe the Right of Self-Preservation in a short sentence or paragraph so that it would be appropriately protected by your government? The “Stand Your Ground Laws” found in several states are a step in that direction, but do they cover all circumstances where self-preservation comes into play? Certainly not. Does a terminally ill patient have a right to take experimental drugs or therapies not yet approved by the FDA if doing so offers a chance of preserving their life? So called “Right to Take” legislation is attempting to secure precisely that right.[16] Would you have included that in your description of the Right of Self-Preservation?  I would probably have overlooked it.

While Madison chose not to enumerate a Right to Self-Preservation, most likely because the right went without saying, he did provide for it. In arguing for the Bill of Rights on the floor of Congress, Madison said:

“It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration, and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the general government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that may be guarded against. I have attempted it, as gentlemen may see by turning to (what would later become the Ninth Amendment).”

“The Ninth Amendment is the repository for natural rights,” writes Leonard W. Levy in Origins of the Bill of Rights.[17] But, Levy cautions: “no evidence exists to prove that the Framers intended the Ninth Amendment to protect any particular natural rights…we can only guess what the Framers had in mind.

The problem with the Ninth Amendment is that the rights it is to protect must be “teased out of it.” And who should do the “teasing:” five lawyers in black robes, or the rightful owners of the Constitution, i.e., the people? Clearly the people are the ultimate authority over what the Constitution says and means; in my view they are the only rightful agency with the authority to identify new rights which are to be protected by the Ninth Amendment. “To say that the Framers did not intend the Court to act as a constitutional convention or to shape public policies by interpreting the Constitution is…to assert historical truth.”[18]

As Levy points out, until 1965, the Ninth Amendment was considered an indecipherable mystery by the court, akin to an “ink blot.” In 1965, the five lawyers “teased out” a right to privacy over the use of contraceptives;[19] eight years later they extended this newly discovered privacy right to the killing of babies in the womb.  In the 2015 case of Obergefell v. Hodges, while the Court claimed to discover a right to homosexual “marriage” in the Fourteenth Amendment’s Due Process Clause, they could just as easily have discovered this “right” in the Ninth. “Within fifteen years [after Griswold] the Ninth Amendment…was invoked in more than twelve hundred state and federal cases in the most astonishing variety of matters.”[20]

Let us presume then that a Right of Self-Preservation is a natural right deserving of protection by the government; by what means is this right to be acted upon? Is it logical that a right to preserve one’s life when confronted by some armed with a weapon should involve the use of a weapon at least equal in lethality? I think so.

Locke reminds us that: “The state of nature has a law of nature to govern it, which obliges every one: and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions.”[21] (Emphasis added)

No one ought to wish to harm us, but some do. Some people have no compulsion against killing their fellow man and even inflicting great pain in the act. Paraphrasing Jesus: like the poor, given the fallen nature of man, we will always have such people with us.

As I noted earlier, Locke states: “I should have a right to destroy that which threatens me with destruction: for, by the fundamental law of nature, man being to be preserved as much as possible, when all cannot be preserved, the safety of the innocent is to be preferred: and one may destroy a man who makes war upon him, or has discovered an enmity to his being, for the same reason that he may kill a wolf or a lion.

Defending yourself against someone who threatens to take your life with a gun logically requires a gun of your own. And the Founders would agree:

“The right of the citizens to bear arms in the defense of themselves shall not be questioned.” James Wilson

”Arms in the hands of individual citizens may be used at individual discretion for the defence of the country, the over-throw of tyranny, or in private self-defense.” John Adams

“…[T]he people have a right to bear arms for the defense of themselves and their own State, or the United States… and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals.” Pennsylvania Ratifying Convention

In Thomas Jefferson’s Commonplace Book we find him quoting Cesare Beccaria’s book, On Crimes and Punishment.[22] Jefferson found this quote of Beccaria worth remembering: “Laws that forbid the carrying of arms … disarm only those who are neither inclined nor determined to commit crimes… Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.”

In 1859, a court, albeit a state court, finally proclaimed forthrightly what everyone, certainly everyone of the time, knew to be true: “The right of a citizen to bear arms, in lawful defense of himself or the State, is absolute. He does not derive it from the State government. It is one of the “high powers” delegated directly to the citizen, and is excepted out of the general powers of government.’ A law cannot be passed to infringe upon or impair it, because it is above the law, and independent of the lawmaking power.”[23]

Turning to the Second Amendment, much has been made of its prefatory clause which can be read to imply that keeping and bearing arms is only permitted for militia duty. This is clearly an important reason for having arms, but I hope you see by now that it is not the only reason.

As Robert Natelson explains in The Founders and the 2nd Amendment:[24]

“History makes it clear that the Second Amendment is designed to serve four principal purposes.

First, it guarantees the states militia power of their own to balance the military power of the federal government;

Second, it promotes the God-given right of personal self defense;

Third, it enables the citizenry to repel foreign invasion; and

Fourth, it enables the citizenry to overthrow domestic tyrants and intimidate or discipline those who otherwise would be tyrants.”

Each of these purposes deserves more elaboration, but space this day does not permit it.

Let us be clear: the second Amendment grants no rights, it only protects a preexisting right from government infringement (and the infringement that has been allowed thus far is also a story for another time). The Supreme Court’s decision in Heller v. District of Columbia,[25] although decried by Progressives, demonstrated conclusively that a right of individual self-defense/preservation is appropriately exercised by keeping and bearing arms.

There are those who will insist, however, that an individual gives up his natural right of self-preservation when entering into a social contract; i.e., the government assumes responsibility for our protection. This brings to mind the meme: “when seconds count, the police are only minutes away.” It should also come as no surprise that police have no responsibility to protect individual citizens from harm.[26] So then there’s that.

To conclude: the Right of Self-Preservation is a natural right with a long pedigree. The ability to use appropriate weapons, including guns, when exercising that right should be as protected as the right itself. The right to keep and bear arms does not hinge exclusively or even predominately on duty in a militia.

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[1] Alexander Hamilton, The Farmer Refuted, 1775.

[2] Romans 2:15.

[3] John Dickinson, An Address to the Committee of Correspondence in Barbados, 1766.

[4] Leviathan, xv, ¶40.

[5] Second Treatise on Government, Section 16.

[6] Jean-Jacques Burlamaqui, The Principles of Natural And Politic Law, 1748.

[7] Samuel Adams, The Rights of the Colonists, The Report of the Committee of Correspondence to the Boston Town Meeting. November 20, 1772.

[8] John Dickinson, A Speech Against Independence, 1776.

[9] Alexander Hamilton, A Full Vindication, December15, 1774.

[10] Henry St. George Tucker (in Blackstone’s Commentaries).

[11] Exodus 21:14, Deuteronomy 19:11, Numbers 35:16.

[12] 1Corinthians 6:19-20, American Standard Version.

[13] Luke 22:36.

[14] John 18:11.

[15] Annals of Congress, 8 June 1789.

[16] https://www.usnews.com/news/articles/2014/11/18/right-to-try-laws-allowing-patients-to-try-experimental-drugs-bypass-fda.

[17] Leonard Levy, Origins of the Bill of Rights, Yale University Press, 1999, p. 254.

[18] Ibid, p. 243.

[19] Griswold v. Connecticut, 381 U.S. 479 (1965),

[20] Levy, p. 242.

[21] John Locke, Second Treatise on Government, Chapter 1, Section 6.

[22] http://www.constitution.org/cb/crim_pun.htm.

[23] Cockrum v. State, 24 Tex. 394, at 401-402.

[24] http://tenthamendmentcenter.com/2013/04/01/the-founders-and-the-2nd-amendment/.

[25] District of Columbia v. Heller, 554 U.S. 570 (2008).

[26] Castle Rock v. Gonzales, 545 U.S. 748 (2005).

Constitution Corner – The Right of Conscience

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“… there is great reason to fear that a positive declaration of some of the most essential rights could not be obtained in the requisite latitude. I am sure that the rights of conscience in particular, if submitted to public definition would be narrowed much more than they are likely ever to be by an assumed power.”[1]

Despite Madison’s initial reluctance to add a Bill of Rights to the Constitution, he finally succumbed to the arguments of Jefferson, Mason, Henry and others, and then fought vigorously for its addition.  Nevertheless, as he warned Jefferson, if the rights to be secured are not described “in the requisite latitude” they will likely not receive the protection they deserve.

So how do you describe the right of conscience?

You start by understanding what conscience is and why it is part of the human condition.

Every person is born with a conscience; it has been called “a gift of God to mankind.”  This gift manifests itself as the “still, small voice” in our spirit that speaks as we contemplate a particular action:  “And your ears shall hear a word behind you, saying, ‘This is the way, walk in it,’ when you turn to the right or when you turn to the left.”[2]  We may not hear a verbal “word” behind us, but we know the guidance is there; that guidance, based on the laws of God, is “written upon our hearts.”

Notice that conscience guides actions as well as thoughts; we are to “walk it its light.”  Thoughts or beliefs are a first step, but insufficient; they are impotent if they cannot also be acted upon.

In 1778, Theophilus Parsons warned: “We have duties, for the discharge of which we are accountable to our Creator and benefactor, which no human power can cancel. What those duties are, is determinable by right reason, which may be, and is called, a well informed conscience. What this conscience dictates as our duty, is so; and that power which assumes a control over it, is an usurper….”[3]  “Duty” implies action.

Based on the suggestion of New Hampshire as they ratified the Constitution, and his own inclinations, Madison tried to explicitly secure such a right.

He had observed, first-hand, the ill-treatment afforded Baptist ministers in nearby Culpepper County, Virginia.  Arrested for preaching without the required license from the state (which they were unable to obtain since the Church of England was the established state church), they were thrown in the “goal” and treated harshly; one account has a jailer urinating into their cell through the bars.  Hearing of this and apparently visiting and speaking with them, Madison pleaded in a letter to his college friend William Bradford: “…[P]ity me and pray for Liberty and Conscience to revive among us.”

It was the ministers’ freedom to act upon their beliefs of conscience that had Madison most concerned.  The beliefs themselves were, “in the main … very orthodox.”[4]

Madison’s “Memorial and Remonstrance against Religious Assessments on June 20th, 1785 reminds us that:

“[t]he Religion … of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate… It is the duty of every man to render to the Creator such homage and such only as he believes to be acceptable to him. This duty is precedent, both in order of time and in degree of obligation, to the claims of Civil Society. Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governour of the Universe: And if a member of Civil Society, who enters into any subordinate Association, must always do it with a reservation of his duty to the General Authority; much more must every man who becomes a member of any particular Civil Society, do it with a saving of his allegiance to the Universal Sovereign. We maintain therefore that in matters of Religion, no mans (sic) right is abridged by the institution of Civil Society and that Religion is wholly exempt from its cognizance. True it is, that no other rule exists, by which any question which may divide a Society, can be ultimately determined, but the will of the majority; but it is also true that the majority may trespass on the rights of the minority.[5] (emphasis added)

New Hampshire suggested: “Congress shall make no laws touching religion, or to infringe the rights of conscience.”  Madison added his own thoughts and came up with: “The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.”  The Senate removed the conscience reference altogether and left us with what we have today.

So to what “objects” does the right of conscience extend?  Here’s where Madison’s warning about “requisite latitude” comes into focus.  Conscience clearly begins with religious thought and action.  Any fair study of the right of conscience during the founding period must conclude that freedom of religion was the driving force behind this right.  From the Pilgrims to the Puritans, to the formation of Connecticut, Rhode Island, Pennsylvania and Maryland, religious liberty and the freedom to act on Christian conscience has been central to the American experience.

Accommodations have indeed been made to allow people (and even corporations) to align their actions with their specific religious beliefs:

For-profit companies as well as religious organizations are not forced to cover contraceptives in their healthcare plans. [6]

A woman can voluntarily quit her job over a requirement to work on the Sabbath without losing her right to unemployment benefits.[7]

A Jehovah’s Witness cannot be denied unemployment benefits after quitting his job at a weapons plant over objection to manufacturing weapons of war.[8]

The Amish cannot be forced to send their children to compulsory public school.[9]

But does right of conscience extend only to religious tenets and beliefs?

No!  In two cases,[10] the Supreme Court decided that “conscientious objection” beliefs did not have to be religiously based to be valid and deserving of respect and accommodation; they could be based on personal codes of morality.

Pharmacists in Illinois have been granted the freedom to not dispense abortificants (the “Plan B Pill”) if doing so conflicted with their objections to abortion.[11]

So a person cannot be forced to serve in the military when he or she believes war to be morally wrong, but apparently a florist can be forced to sell flowers which will be used to celebrate a homosexual wedding,[12] a baker forced similarly to bake a cake for such a wedding,[13] and a photographer forced to photograph it.[14]  If they refuse to provide these services because they believe homosexual marriage to be morally wrong or Biblically condemned, they will be sued, fined, forced out of business and almost certainly sent to “diversity training”[15] to align their “aberrant” beliefs with public policy.

America, what a country!

It should go without saying that a Jewish or Muslim butcher will never be compelled in this country to sell pork, a black carpenter compelled to build crosses for the KKK, or a lesbian print shop owner compelled to print posters for the Westboro Baptist Church.

It should be clear by now that Christian business owners and only they are being systematically targeted, with one intent: to drive them out of business if they refuse to support the LGBT agenda.  They will be forced to celebrate homosexual marriage along with everyone else, or find a different line of work!

So what is God’s view of homosexuality and homosexual “marriage?”

“While the Bible does address homosexuality, it does not explicitly mention gay marriage/same-sex marriage. It is clear, however, that the Bible condemns homosexuality as an immoral and unnatural sin. Leviticus 18:22 identifies homosexual sex as an abomination, a detestable sin. Romans 1:26-27 declares homosexual desires and actions to be shameful, unnatural, lustful, and indecent. First Corinthians 6:9 states that homosexuals are unrighteous and will not inherit the kingdom of God. Since both homosexual desires and actions are condemned in the Bible, it is clear that homosexuals “marrying” is not God’s will, and would be, in fact, sinful.

Whenever the Bible mentions marriage, it is between a male and a female. The first mention of marriage, Genesis 2:24, describes it as a man leaving his parents and being united to his wife. In passages that contain instructions regarding marriage, such as 1 Corinthians 7:2-16 and Ephesians 5:23-33, the Bible clearly identifies marriage as being between a man and a woman. Biblically speaking, marriage is the lifetime union of a man and a woman, primarily for the purpose of building a family and providing a stable environment for that family.”[16]

James Madison called conscience “the most sacred of all property.”  “Government is instituted to protect property of every sort;” he wrote, “as well that which lies in the various rights of individuals… that alone is a just government which impartially secures to every man whatever is his own.”[17]

Just as government is taking an increasingly dim view of personal property in this country,[18] they are taking an equally dim view of the rights of conscience, at least when the beliefs in question do not align with those of the progressive Left.

Rather than being secure, liberty of conscience finds itself under attack by those who feel we must all think and act alike on certain issues.  While there have been occasional victories, liberty of conscience still finds itself, at least on the subject of homosexual marriage, very much on the defensive.  We hope and pray that soon-to-be Justice Neil Gorsuch will help bring sanity to this pitiable situation.

Liberty of conscience, at the very heart of the settlement and formation of America, must be preserved if America is to remain America.  Samuel Adams told those gathered in the State House in Philadelphia on August 1, 1776, “…[f]reedom of thought and the right of private judgement, in matters of conscience, driven from every other corner of the earth, direct their course to this happy country as their last asylum.”[19]

No longer.

“If there be a government then which prides itself in maintaining the inviolability of property; which provides that none shall be taken directly even for public use without indemnification to the owner, and yet directly violates the property which individuals have in their opinions, their religion, their persons, and their faculties; … such a government is not a pattern for the United States.  If the United States mean to obtain or deserve the full praise due to wise and just governments, they will equally respect the rights of property, and the property in rights: they will rival the government that most sacredly guards the former; and by repelling its example in violating the latter, will make themselves a pattern to that and all other governments.”[20] (emphasis added)

As “James Madison” tells the school kids I visit, if you do not know your rights and/or are not willing to defend and assert them, you effectively have no rights and are on the road to slavery.  If Americans, and particularly Christian Americans, don’t stand united against this oppression, as Ronald Reagan once said: …”we will wake up one day telling our children and our children’s children what it was once like in the United States where men were free.”

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[1] James Madison letter to Thomas Jefferson, 17 Oct 1788.

[2] Isaiah 30:21.

[3] http://press-pubs.uchicago.edu/founders/documents/v1ch4s8.html

[4] From James Madison to William Bradford-24 January 1774

[5] http://press-pubs.uchicago.edu/founders/documents/amendI_religions43.html

[6] Hobby Lobby Stores & Conestoga Wood Specialties Corp. v. Burwell, Little Sisters of the Poor v. Burwell.

[7] Sherbert v. Verner 374 U.S. 398 (1963)

[8] Thomas v. Review of Indiana Employment Security Division 450 U.S. 707 (1981)

[9] Wisconsin v. Yoder 406 U.S. 205 (1972)

[10] Seeger v. United States (1965) and Welsh v. United States (1970)

[11] https://aclj.org/pharmacists-victory-illinois-seven-year-fight-conscience-rights

[12] http://www.adfmedia.org/News/PRDetail/8608

[13] http://www.wnd.com/2016/07/christian-baker-takes-compulsion-of-speech-case-to-supremes/

[14] http://www.adfmedia.org/News/PRDetail/5537

[15] http://www.christianpost.com/news/christian-business-owner-gay-pride-t-shirts-diversity-training-148793

[16] https://www.gotquestions.org/gay-marriage.html

[17] http://press-pubs.uchicago.edu/founders/documents/v1ch16s23.html

[18] https://en.wikipedia.org/wiki/Kelo_v._City_of_New_London

[19] http://www.revolutionary-war-and-beyond.com/american-independence-speech-by-samuel-adams-august-1-1776.html

[20] http://teachingamericanhistory.org/library/document/property/

Constitution Corner – The Rights of Illegal Aliens

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Let’s say a Mexican national decides to illegally enter America and is successful in doing so, but he then unfortunately steps into a quicksand pit and is slowly being sucked down despite his efforts to extricate himself.

A passerby, an American citizen, observes the man’s predicament.   Does the citizen first ascertain whether or not the man is a U.S. citizen, or even in the country legally, before deciding whether or not to throw him a lifeline?  Of course not; as Jefferson said, or implied: We are all created equal in the sight of God and are equally entitled to the enjoyment of certain unalienable rights endowed to us by our Creator; among which are the right to pursue happiness, enjoy liberty, and escape from quicksand, or something like that.

I think all Americans would agree that every human being should enjoy these unalienable, natural rights.  Obviously, many Americans do not.  Many Americans believe that until a person has first filled their lungs with air, and for some, even after that time, they can be killed, murdered, terminated, have their little spinal cord snipped or cranium crushed, whatever, all for the convenience of the person who carries them, or moments ago carried them, in their womb.

So as we approach the subject of rights for illegal aliens, we must realize that we as a nation have a long way to go before claiming Jefferson’s ideal of equality at creation, and that some in our country are far more willing to extend certain rights to lawbreakers than they are to the unborn.

Whether I think, or you think, or any American thinks illegal aliens should enjoy any of the rights secured by our Constitution, is, in the end, not that important.  What matters, at least in the near-term, is what does the Supreme Court think?  We’ll get to that in a moment.

I know, even as I say those words concerning the court, that I’ve committed an heresy , and even contradicted statements I’ve made in the past: the Supreme Court doesn’t have the final say on anything Constitutional, the people do.  But until the people act on the authority they have, the Court does.  That, unfortunately, is what our system of government has become.

Ever since Marbury v. Madison, when Chief Justice John Marshall carved out this special privilege the Court now enjoys, Americans have generally yielded to the Court’s opinion on any matter, even when the Court has been clearly wrong.

When the Court ruled, in 1896,[1] that separate bathrooms and drinking fountains for blacks were entirely proper and constitutional, it took nearly 60 years[2] for the people to say they disagreed, and “encourage” the Court to agree with them.

So here’s a question: in 1865, when Congress began working on what became the 14th Amendment, did they intend to have the privileges it extends and the protections it provides cover aliens in this country illegally?  The answer has to be clearly and unequivocally: no – for two reasons.  First, the focus at that time was clearly on slavery and how to rid the United States of it and its effects.[3]  Second, in 1865, the concept of an illegal alien was unknown.

Prior to the 14th Amendment Congress passed the Civil Rights Act of 1866,[4] guaranteeing citizenship to all Americans without regard to race, color, or previous condition of slavery or involuntary servitude. The Act was a direct attack on the infamous “Black Codes” that were passed by most of the southern states after the War for Southern Independence.  Black Codes restricted the movement of blacks, controlled the type of labor contracts they could enter into, prohibited them from owning firearms, and prevented them from suing or testifying in court.

When the Civil Rights Act reached his desk, President Andrew Johnson vetoed it.  Johnson objected to the fact that, at the time, 11 of 36 states were not yet represented in the Congress; he also thought the Act discriminated against whites and in favor of African-Americans.  Even after overriding Johnson’s veto, there were concerns in Congress whether the Act was constitutional.  In response, they drafted the 14th Amendment, and forced the southern states to ratify it or face continued martial law.

The 14th Amendment’s Section 1 states:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The critical clause for our discussion is the last one.  What did Congress mean by “any person?”  Did they mean to extend these protections to all “persons,” i.e., all human beings, regardless of their legal status in our country?  They distinguished between “citizens” and “persons” but did not consider a “person’s” lawful status.

Until 1875, there was no such thing as an “illegal alien.” Anyone in the country who had not become a citizen was simply an “alien.”  Aliens entered and left America at will.  If they stayed long enough to meet the rules for naturalization, they could voluntarily apply for citizenship, or not; if they choose not to become citizens, they could stay indefinitely as nothing more than an “alien.”

The Page Act of 1875[5] was the first attempt by Congress to control who would be allowed to legally immigrate to America.  That year it became illegal to enter the country if you were Asian, and you were coming to America to be a forced laborer, were intent on engaging in prostitution, or were considered to be a convict.  The “illegal alien” was born.

In 1921, Congress established the first immigration quotas[6] based on country of origin. Quotas based on national origin continued until 1965 when the Immigration and Nationality Act of 1965[7] initiated a system of preferences based on immigrants’ skills and family relationships with U.S. citizens or U.S. residents (while retaining by-country limits).

In “Yes, illegal aliens have constitutional rights,”[8] immigration activist and political consultant Raoul Contreras cites none other than James Madison in claiming that aliens should have the full protection of the Constitution.

In the Report of 1800, Madison wrote:[9]

“…Aliens are not more parties to the laws, than they are parties to the constitution; yet it will not be disputed, that as they owe on one hand, a temporary obedience, they are entitled in return, to their protection and advantage.”

According to Madison, “aliens” are entitled to “protection and advantage.”  But which aliens, those who are in the country legally, or illegally?  And which “protections and advantages.”

Would James Madison have extended his undefined “protection and advantage” to aliens in the country legally?  I think so.  Would Madison have extended these protections to aliens in the country illegally?   I think not, but I’m willing to be convinced otherwise.  And just what specific protections would Madison extend to aliens in either category?  We can’t know for sure.

After citing Madison, Contreras discusses several Supreme Court decisions which he says support his contention that illegal aliens enjoy “the full panoply of constitutional protections American citizens have with three exceptions: voting, some government jobs and gun ownership (and that is now in doubt).”  So what has the court said?

In the 2001 case of Zadvydas v. Davis,[10]  the Court decided that the Due Process Clause of the 14th Amendment applies to all aliens in the United States whether their presence here is “lawful, unlawful, temporary, or permanent.”

In 1982, in Plyler v. Doe,[11] the court said: “The illegal aliens who are … challenging the state may claim the benefit of the Equal Protection clause which provides that no state shall ‘deny to any person within its jurisdiction the equal protection of the laws.’ Whatever his status under immigration laws, an alien is a ‘person’ in any ordinary sense of the term.”

So thus far the Court has granted due process and equal protection provisions of the 14th Amendment to illegal aliens, based on the unrefined definition of “person.”  But then we encounter a problem with Mr. Contreras’ interpretation of Supreme Court opinions.

Almeida-Sanchez v. United States (1973)[12] centered on the warrant-less search of an automobile, 20 miles from the U.S. border, belonging to a Mexican national with a valid work permit to be in the U.S.  The search, conducted by the Border Patrol to determine whether illegal aliens were being carried in the car, instead found a large quantity of marijuana.  Almeida-Sanchez was convicted of the marijuana trafficking and the 9th Circuit Court of Appeals affirmed the conviction.  But the Supreme Court found the warrant-less search to be unreasonable and reversed the lower court.

According to Contreras, the Court decided that “all criminal charge-related elements of the Constitution’s amendments contained in the First, Fourth, Fifth, Sixth and the 14th, such as search and seizure, self-incrimination, and trial by jury, protected all non-citizens, whether in the country legally or illegally.”  Unfortunately for Mr. Contreras, the court reached no such conclusion (don’t take my word for it, read the opinion).[13]  Instead, the (6-3) majority ends by stating: “those lawfully within the country, entitled to use the public highways, have a right to free passage without interruption or search unless there is known to a competent official, authorized to search, probable cause for believing that their vehicles are carrying contraband or illegal merchandise.”  So while the Court affirmed the protection of the 4th Amendment for those aliens lawfully in the country it extended no such protection to those in the country unlawfully, nor do I find evidence that it found that any other protections of the Bill of Rights should be applied.

Based on this evidence, it seems clear that, in the eyes of the Court, at least the “due process” and “equal protection” provisions of the 14th Amendment apply to illegal aliens.  Aliens legally in the country enjoy additional protections as well, at least those of the 4th Amendment, perhaps extending to much of the Bill of Rights.

So I return to my earlier question: in 1865, when the 14th Amendment was drafted, did Congress see its protections extending to “persons” who had broken the law to arrive here?  I think not.  But as I have stated in the past, it is not so much what the drafters of a Constitution, Amendment or Statute intended, it is what they achieved that counts.  The drafters of the 14th Amendment used the word “person” in a general sense without discriminating between “lawful” and “unlawful” persons.  In 1865, no such distinction of aliens even existed; that came ten years later.  Had such a distinction existed, would the drafters have been more elaborative? One would hope.

In the eyes of the Court, perhaps this question is settled; but is it settled with the owners of the Constitution?  In that regard, I think the jury is still out. What do you say, America?  What rights should illegal aliens enjoy?  Are you content with those that have already been extended to them or would you like to see more, or fewer? If you think the Court erred in its use of the 14th Amendment’s “person,” you need to let someone know (and who would that be?).  Or you could just sit back and let the Supreme Court continue to dictate the policy of the United States.  I’m just saying…

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[1] Plessy v. Ferguson, 163 US 537 (1896).

[2] Brown v. Board of Education of Topeka, 347 U.S. 483 (1954)

[3] Slaves were freed by the 13th Amendment.

[4] https://en.wikipedia.org/wiki/Civil_Rights_Act_of_1866

[5] https://en.wikipedia.org/wiki/Page_Act_of_1875

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

[7] https://en.wikipedia.org/wiki/Immigration_and_Nationality_Act_of_1965

[8] http://thehill.com/blogs/pundits-blog/immigration/255281-yes-illegal-aliens-have-constitutional-rights

[9] https://founders.archives.gov/documents/Madison/01-17-02-0202

[10] https://en.wikipedia.org/wiki/Zadvydas_v._Davis

[11] https://en.wikipedia.org/wiki/Plyler_v._Doe

[12] https://en.wikipedia.org/wiki/Almeida-Sanchez_v._United_States

[13] https://www.law.cornell.edu/supremecourt/text/413/266

Constitution Corner – Has Trump Violated the Constitution?

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Is Donald Trump receiving an “emolument” by allowing his hotels and other properties to rent rooms or office space to foreign governments, or their employees?  Is he “increasing his compensation” through his organization receiving tax breaks from the State of New York?  Some on the Left think the answer to both questions is “Yes,” and that such actions are a violation of the Constitution.  Some even call for impeachment.[1]  Are they right?

Citizens for Responsibility and Ethics in Washington,[2] or CREW has brought suit against the President.  Their suit, which does not seek any monetary damages, asks a federal court in New York to order the President to stop taking payments at his properties from foreign governments. This includes payments at Trump hotels and golf courses; loans for his office buildings from certain banks controlled by foreign governments; and leases with tenants like the Abu Dhabi tourism office, a government enterprise.

They claim doing so violates the “Emoluments Clause” of the Constitution, sometimes also referred to as the “Titles of Nobility Clause,” for reasons which are obvious upon reading Article I, Section 9:

“No title of nobility shall be granted by the United States: and no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.”

What constitutes a “present, emolument, office, or title” and why is the receipt of such things from “any king, prince, or foreign state” such a problem?

As Alexander Hamilton explained in Federalist No. 22: “One of the weak sides of republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption.”  Foreign influence was an area of great concern to the Framers of the Constitution and continued to be so in the eyes of the nation at large for many, many years.

We think the nation is divided today; in the first 20 years after the Constitution was ratified the nation was equally divided between Anglophiles and Francophiles.  Anglophiles, naturally, retained affection for the “mother country,” while Francophiles retained gratification for France’s timely aid in the American Revolution.  Neither side totally trusted the other, both charging that “foreign influence” was behind their words and actions.

You might wish that Mr. Trump’s opponents operated from the highest motives and were truly worried that such hotel rents might influence American foreign or even domestic policy.  You are free to wish that; this is a free country, what remains of it; but you are naïve to think so.  There is no doubt that such suits will be an everyday occurrence over the next 4-8 years; expect them.  The Left intends to confront this President at every turn.

If you consult the standard expositories on the Constitution you find almost nothing written about the Emoluments Clause.  The Annotated Constitution, which includes all pertinent court cases affecting the interpretation of each clause of the Constitution, mentions absolutely nothing concerning the emoluments portion of the clause, only the Titles of Nobility portion.

Warning: you will find constitutional scholars coming down on both sides of this question.  The leftist Brooking Institute,[3] concluded that the situation is indeed a violation, and every progressive website jumped on the bandwagon.  Then there’s a paper published in the University of Iowa College of Law Review[4] which argues that those bringing the suit have interpreted the clause too broadly, relying on a secondary dictionary definition.

Webster’s 1828 Dictionary says this:

EMOL’UMENT, noun [Latin emolumentum, from emolo, molo, to grind. Originally, a toll taken for grinding.]

And then it provides both a primary and a secondary meaning:

  1. The profit arising from office or employment; that which is received as a compensation for services, or which is annexed to the possession of office, as salary, feels and perquisites.
  2. Profit; advantage; gains in general.

Which definition should be used?  The narrower one (1) or the broader one (2)?

When determining the meaning of a Constitutional word it is usually safe to look for other uses of that word in the document.  We find “emolument” used two other times.  First, in Article 1 Section 6:

“No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.” (emphasis added)

Clearly the meaning of the word in this clause comes from the primary definition, the “salary, feels and perquisites” of a particular office.

During Hillary Clinton’s time as a Senator, the pay of the Secretary of State was increased.  She was thus ineligible to take the appointment.  In order for her to be confirmed and take that office after appointment by President Obama, she had to accept the original pay level of Secretary of State that was in effect when she became a Senator.  This was, I expect, gladly agreed to, given the alternative.

This “out” is known in Congress as the “Saxbe Fix,” after Senator William Saxbe who was confirmed as Attorney General in 1973 after Congress reduced the position’s salary to the level it had been before Saxbe’s term as Senator began.

So the question becomes: does the actions by the Trump Corporation somehow affect the pay of the President (Trump has declined his $400,000 salary and has instead accepted a $.01/year salary), or the perquisites or other benefits of the office.  Clearly no.

What about gifts as emoluments?

Congress, by statute, allows government employees to accept gifts from foreign governments worth less than $390 received as a souvenir or mark of courtesy.  Congress also allows more valuable gifts to be accepted, such as scholarships, medical treatment, food, lodging, travel arrangements when it appears that to refuse the gift would likely cause offense or embarrassment.  This is all spelled out in the Foreign Gifts and Decorations Act, Title 5 U.S.C. §7342.[5]

There is also a Congressional Research Service Report on this subject, Report R43660,[6] entitled: “The Receipt of Gifts by Federal Employees in the Executive Branch.”  You’re probably seeing a trend here: the focus is on gifts. But, like everything, “gifts” must be defined. “Gift” expressly includes, says the report, “any gratuity, favor, discount, entertainment, hospitality, load, forbearance, of other item having monetary value.”  Is renting a hotel room at fair-market value a “gift?”  Clearly no.

The late Saudi King Abdullah[7] gave President Obama and his family gifts valued at more than $1.3 million. They included an $18,000 watch for the president and a “diamond and emerald jewelry set including earrings, necklace, ring, brooch, and wristwatch” for Obama’s daughters, Sasha and Malia, estimated to cost $80,000.

Various Chinese officials have also been generous: President Xi Jinping gave Obama two computer tablets during a time his government is believed to have been carrying out large-scale hacking of American computer systems, including the database of federal employees.

Other government officials get gifts too. Gifts given to CIA Director John O. Brennan had the donors’ names removed because they might “affect United States intelligence sources or methods.” Brennan appears to have kept many of the gifts, including a “small decorative sword,” “for official use.”

Republican Senators Lindsey Graham and John McCain both received 4′ x 6′ rugs worth $4,000 from the attorney general of Qatar, and promptly deposited them with the secretary of the Senate.

Some nameless soul in the government has the interesting job of registering all these gifts; the justification noted for each of them: “non-acceptance would cause embarrassment to the donor and the U.S. Government.”

The CRS Report states: “Because of the considerations relating to the conduct of their offices, including those of protocol or etiquette, the President and the Vice President may accept any gift on his own behalf or on behalf of a family member, provided that such acceptance does not violate  §2635.202(c)(a) or (2), 18 USC §201(b) or 201(c)(3), or the Constitution of the United States.”

Supporters of the President point out that Mr. Trump is not renting these rooms, his corporation is.

Eric Trump, an Executive vice president of the Trump Organization, said Trump Enterprises has already taken more steps than required by law to avoid legal entanglements.  They have set up procedures to donate any profits collected at Trump-owned hotels that come from foreign government or guests, to the United States Treasury.  Is there even a “profit” from a single hotel room if the hotel, as a whole, lost money that night, if the corporation itself is losing money?

The president’s legal team argued that the Emoluments Clause does not apply to fair-market payments, such as a standard hotel room bill.  Echoing what I just concluded, they say the clause is only intended to prevent federal officials from accepting a special consideration or gift from a foreign power.

Of course Congress could defuse this issue immediately by passing a non-binding “Sense of the Congress” resolution stating that it views renting of hotel rooms or office space to foreign governments or entities to be in compliance with the Emoluments Clause.  But I doubt this Congress will do that.  There seem to be as many Republicans in Congress willing to “slow-roll” this President as support him.

There is another occurrence of “Emolument” in the Constitution.  It is found in Article 2, Section 1, Clause 7, and reads:

“The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.”

Notice the term: “United States” is used to mean both the national government as well as the States.

Critics of Trump point out that his corporation has in the past received close to $1 billion in tax breaks from New York State alone. These critics argue that if New York continues to offer such breaks, they will qualify as emoluments. If other states follow suit with their own tax benefits for Trump Enterprise projects, those will also be a problem.

One problem with all these suits against the President is standing, the plaintiffs have to demonstrate that they have been harmed by Trump’s action.  Have they?

The Citizens for Responsibility and Ethics in Washington argues that the President’s action has forced them to, quote: “divert essential and limited sources” from its regular government watchdog role and that they “will essentially be forced into the role of litigating and educating the public regarding (Trump’s) Foreign Emoluments Clause violations,” or so goes the complaint.

There is an expression in the Air Force pilot world that goes by the euphemism, YGBSM, which I will not explain here, but which expresses exactly how I view the group’s charge that they have been “forced” to bring this suit.  A watchdog group being forced to act as a watchdog? Pllleeeassseee!

Comedian Flip Wilson’s favorite excuse of long, long ago comes to mind: “The devil made me do it.”  Which translates in this case to: “We hate Donald Trump so thoroughly and completely that we intend to find any excuse whatsoever to obstruct his agenda and tie him up in court.”

I predict that if CREW or another group is somehow granted standing, and it is doubtful they will be, they will lose their case simply because of the steps the Trump organization has taken to isolate the President himself from any financial gain.  But what do I know?  Federal judges can be found to do anyone’s bidding these days.

But we should also note that Mark Cuban is being touted as a possible opponent for Trump in 2020.  Businessman versus businessman, mano a mano.  Yet, no one on the Left seems concerned about Cuban’s extensive business holdings, and I suspect that if he does emerge as the leading Democrat contender, some convenient excuse will be offered for why the Emoluments Clause is suddenly no longer a problem.

If there is a silver lining here it is that the American people are getting a good dose of Constitutional education, and it is likely to continue through the next four years.  Keep your seat belts fastened.

To hear the views of my other commentators on “We the People – the Constitution Matters” as we discussed this issue on 17 February 2017, download or listen to the podcast[8] of the show.

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

[1] http://www.acslaw.org/acsblog/%E2%80%9Cif-discovered-he-may-be-impeached%E2%80%9D-president-trump-and-the-foreign-emoluments-clause

[2] http://www.citizensforethics.org/

[3] https://www.brookings.edu/wp-content/uploads/2016/12/gs_121616_emoluments-clause1.pdf

[4] https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2902391

[5] https://www.gpo.gov/fdsys/granule/USCODE-2011-title5/USCODE-2011-title5-partIII-subpartF-chap73-subchapIV-sec7342/content-detail.html

[6] https://fas.org/sgp/crs/misc/R43660.pdf

[7] http://www.usnews.com/news/blogs/data-mine/2015/12/02/the-king-of-saudi-arabia-gave-over-13m-in-gifts-to-the-obamas-last-year

[8] http://www.1180wfyl.com/we-the-people-2017.html

Constitution Corner – The 17th Amendment Should Be Repealed

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Note: On “We the People – The Constitution Matters” for 6 January we discussed repeal of the 17th Amendment with our guest, Andrew Langer, President of Institute for Liberty.[1]  There just wasn’t sufficient time to cover all the nuances of that issue; hence this essay.

On December 5, 1933, the necessary 36th state (Utah) ratified the 21st Amendment, bringing to an end 13 years of national prohibition and proving beyond doubt that Americans are able to detect and correct errors they have made in their Constitutional order.  If only we were so observant today.

It had not taken long for Americans to realize the folly of trying to modify human behavior by Constitutional amendment; prohibition laws were openly flaunted and juries often refused to convict those accused of violating the law — Americans were determined to drink alcohol.

The 18th Amendment, which created prohibition, had been ratified in 1919 only six years after the 17th Amendment was added to the Constitution; and the 17th came only two months after the 16th.  America had gone nearly 40 years since the 15th Amendment to the Constitution was added and suddenly we were amending with great frequency.

The 17th Amendment, which changed Senators from being appointed to the Senate by their state legislatures to being elected instead by the citizens of the state, was seen by some as anticlimactic; many states had already begun allowing their citizens to elect their Senators, if not directly, at least through a non-binding primary election.  For these people, the amendment only confirmed a fait accompli.

Yet the effort to change the appointment of Senators actually goes back to at least 1826, when New York Representative Henry Storrs first proposed an amendment to provide for popular election. Similar amendments were introduced in 1829, 1855 and 1868.

By the 1890s, support for the introduction of direct election for the Senate began to accelerate, primarily due to the efforts of the Populist Party, which added direct election of Senators to its party platform.  In 1908, Oregon became the first state to base its selection of Senators on a popular vote.  Nebraska soon followed.

William Randolph Hearst threw his weight behind the movement for direct election by publishing a series of articles in his 1906 Cosmopolitan Magazine, attacking “The Treason of the Senate.” “Muckraking” journalists described Rhode Island Senator Nelson Aldrich as the principal “traitor” among the “scurvy lot,” who controlled the Senate through “theft, perjury, and bribes which corrupted the vote in the legislature to gain their election.”

Gradually, more state legislatures began to petition the Congress for direct election of Senators. The House soon had the two-thirds vote necessary to pass just such an amendment; when the joint resolution reached the Senate, however, it failed year after year.  By 1910, 31 state legislatures had petitioned Congress to pass and send the amendment for ratification, while 28 of them applied to Congress for an Article V convention for drafting such an amendment.  This was only three applications short of the threshold that would have required Congress to convene such a convention.  That same year, ten Republican Senators who were opposed to the change were “unelected,” sending a further “wake-up call to the Senate.”  Two years later the Senate finally passed the joint resolution and the proposed amendment was sent to the states for ratification.

The amendment reads: “The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures…”  The amendment concludes by specifying how vacancies in a Senate seat will be filled.

The framers of the Constitution could have specified election by the people.  In the Convention, James Wilson of Pennsylvania had been the sole advocate for popularly electing Senators; but his proposal to do so was soundly defeated, 10–1.  The Virginia Plan proposed the Senate be elected by the members of the “lower House.” So why did the Framers of the Constitution choose appointment by the state legislatures instead?

Perhaps the reason can be summed up by a familiar Madisonian statement: “Power lodged as it must be in human hands, will forever be liable to abuse.”  In other words: “Checks and balances” were needed.  The people would exert their political power in the House of Representatives, the states would exert theirs in the Senate, and the two bodies would provide a check on each other to prevent excesses.  The interests of the people in the House would be, must be, balanced by the interests of the state governments in the Senate.

Madison confirmed in Federalist #45: “The Senate will be elected absolutely and exclusively by the State legislatures.”

In Federalist #63, Madison discussed the importance of the role of a Senate elected by state legislatures rather than the people:

“To a people as little blinded by prejudice or corrupted by flattery as those whom I address, I shall not scruple to add, that such an institution [a Senate elected by the state legislatures] may be sometimes necessary as a defense to the people against their own temporary errors and delusions. … so there are particular moments in public affairs when the people, stimulated by some irregular passion, or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be the most ready to lament and condemn.”

“In these critical moments, how salutary will be the interference of some temperate and respectable body of citizens, in order to check the misguided career, and to suspend the blow meditated by the people against themselves, until reason, justice, and truth can regain their authority over the public mind?”(emphasis added)

If the Senate could provide a check against the people, it could also provide a check against the Executive, particularly given its unique role in confirming executive appointments and ratifying treaties; especially if the state governments were able to instruct their Senators.

So what has been the result of direct election of Senators?

Here’s where the argument for repeal falters a bit; it is always difficult to state with certainty what would have happened in any situation, “if only.”  But it is not too hard to see some of the effects:

For starters, the states are well on their way to being considered mere administrative units of the national government.  As former Senator Tom Coburn explains in this interview,[2] the federal government has grown to the point where it dominates the states.  As Mr. Langer pointed out on our radio interview, the vast majority of this growth took place after the 17th Amendment was ratified.  We might rightfully ask: would this growth have taken place if the states still controlled the Senate?

State governments rightfully claim responsibility over matters of taxation, education, employment, disaster relief, public safety, transportation, health care, marriage, and property rights, to name just a few.  Yet in all those issues, and many more, the federal government mandates, regulates, or directs policy, and the states are usually forced to obey.  Although state governments bear much of the responsibility for their citizens, they enjoy greatly reduced authority to do anything about the issues they face.  A reinvigoration of state power[3] is long overdue.

A third effect of popular election of Senators was that states, especially those which did not ratify the 17th, lost the “equal suffrage” in the Senate guaranteed by Article 5.  Senators now represent the people who elected them, and the states no longer have a controlling vote in the Senate; they have arguably lost their suffrage.  “But there remain two Senators for every state, every state is therefore equally represented,” comes the refrain.  Because Senators can no longer be recalled by the state legislatures, they no longer must vote as a state delegation, they now “vote their conscience.”  This leads to a hundred individual votes in the Senate instead of what used to be, in essence, one vote per state.  One could argue (and, no doubt, some will) that Senators could always “vote their conscience,” and this must be conceded; but the “persuasiveness” attendant to instructing Senators how their state government views an upcoming measure cannot be dismissed.  Because the dominant party in the state legislature would likely have appointed Senators from that party, Senators would normally share the party’s political philosophy and could be expected to vote alike on most issues.  Today there is even the potential for the two Senators to come from different parties.  Thirteen states in our last Congress, in fact, had Senators from opposing parties.  On strongly partisan issues, their votes could be expected to nullify each other.

Virginia M. McInerney has posted on the LONANG[4] website a well-reasoned article[5] explaining why the 17th should be repealed.  It is worth the read.  She points out: “The national government, having taken on too much power, is unable to properly administer all the areas it has arrogated unto itself. On the other hand, the state governments are impotent in legislating and executing the will of the people because they are subject to unpredictable subjugation by the national government.”

But repeal of the 17th Amendment face several challenges.[6]  The American people have become accustomed to electing “their” Senators, and few Americans today understand or could explain the reasoning behind the original design.

The next challenge is found in the mechanism of repeal.  According to Article V there are two ways to amend the Constitution: Congress can propose the necessary amendment, as they did with the 17th, or the states can petition for an Article V convention to do so.  The first method is problematic; it is almost certain that a repeal amendment will ever gain the necessary 2/3 vote in the Senate; today’s Senators have become accustomed to the corporate donations to their re-election campaigns.  This money would dry up overnight once Senators were once again appointed by their states.  That leaves an Article V convention as the only mechanism with any chance of success.  Due to a perceived risk of untoward results, the Article V Convention method is being fought tooth and nail, most vehemently by conservatives themselves.

In Feb 2016, the Utah Senate passed a resolution[7] calling on their Congressional delegation to push for repeal of 17th Amendment.  I’ve not discovered if this actually happened; if it did, no one took much notice.  Georgia Senator Zell Miller[8] famously tried every year he was in the Senate to pass a repeal measure through that chamber, each time unsuccessfully.

Some, however, urge caution.  David Gordon, writing on Mises.org points out that Repealing the 17th Amendment Won’t Fix the Senate.[9]  Merely repealing the 17th might only place the issue back in the hands of the state legislatures where some could continue to let their citizens elect Senators if they so choose.  “A fundamental problem of the Senate has long been the fact that Senators do not vote as representatives of a state delegation, but as independent legislators.  The status quo should be abandoned in favor of allowing each state delegation only a single vote in the Senate, and that vote should be interpreted as the member state’s position.”  Such a change: one vote per state, could be included in a repeal amendment.  Unless a repeal amendment also gave the state legislatures specific power to recall the Senators, there would be no incentive for Senators to follow their state’s instructions.  The repeal amendment should also address the issue of long-vacant seats, which was an occasional problem prior to the 17th when state legislatures could not agree on who should represent them.

Many on the Left will also fight the idea.  Some worry that repealing the 17th will lead to much stronger republican control of the Senate.  With 68 percent of the 98 partisan state legislative chambers in the U.S. now controlled by Republicans,[10] it seems likely they are right — at the moment.  But remember, only a third of Senators are elected each two years; the composition of Republican vs Democrat control of state legislatures could change dramatically over the next six years.

If you would like to register your opinion on this matter, go to debate.org,[11] where you’ll find an online anonymous poll.  When I registered my vote, 60% of respondents had said “Yes” to repeal, while 40% had said “No.”

In conclusion, just as the American people recognized their error in enacting prohibition, and correcting that error, they will, hopefully, one day realize their error in disrupting the Framers’ plan for a balance of power in the Congress – and repeal the 17th Amendment.  If you agree the 17th should be repealed, if you would like to restore true federalism,[12] speak with your state legislators.

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[1] http://www.instituteforliberty.org/

[2] http://www.conventionofstates.com/tom_coburn_the_federal

[3] http://usconservatives.about.com/od/conservativepolitics101/a/The-Conservative-Case-For-Returning-Government-Power-To-The-States.htm

[4] Laws of Nature and Nature’s God Institute

[5] http://lonang.com/commentaries/conlaw/federalism/repeal-seventeenth-amendment/

[6] http://blog.constitutioncenter.org/2016/05/repealing-the-17th-amendment-would-be-no-small-task/

[7] http://www.standard.net/Government/2016/02/24/Utah-Senate-passes-resolution-to-repeal-17th-Amendment-in-states-rights-push

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

[9] https://mises.org/blog/repealing-17th-amendment-wont-fix-Senate

[10] http://www.cnsnews.com/news/article/barbara-hollingsworth/after-winning-7-more-seats-gop-dominance-state-legislatures-all

[11] http://www.debate.org/opinions/should-the-u-s-repeal-the-17th-amendment

[12] http://www.restorefederalism.org/