Constitutional Corner – The Mind of James Madison, Part 1

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I had the pleasure of interviewing on my weekly radio show last Friday, author and professor, Colleen Sheehan of Villanova University.[1] Her recent book, “The Mind of James Madison, The Legacy of Classical Republicanism,”[2] deals with Madison’s “Notes on Government” project, a little known effort he took in early 1791[3] to put to paper his thoughts on what republican government is all about, at least certain of its features. The podcast of the show is available for download here. [4]

Sheehan’s book fills a critical void in understanding the political philosophy that Madison espoused. We can glean some of his ideas from the twenty-nine Federalist essays he contributed to Hamilton’s effort to get the New York convention to ratify the Constitution. But these were, by necessity, limited to those connected in some way to features of the Constitution. We know other ideas from the nineteen “Party Press” essays[5] he sent to college-chum Phillip Freneau’s fledgling National Gazette newspaper in Philadelphia, most of them based on the “Notes.” And we encounter others, as well as his combative style, in the Pacificus-Helvidius debate series[6] against friend-turned-political adversary, Alexander Hamilton (Jefferson wrote Madison: “For god’s sake, my dear Sir, take up your pen, select the most striking heresies, and cut [Hamilton] to pieces in the face of the public.” This, Madison proceeded to do). But these are mostly snippets; until “Notes on Government,” Madison had never taken time to sit down and organize his political philosophy in a methodical way, which is understandable given his near-continuous life of public service from 1776 to his election to the First Congress in 1789. This was a busy man.

The “Notes” were never published, indeed, they were never even finished; some chapters, such as “The Influence of Education on Government,” remained blank. But they covered some unique ground not addressed elsewhere.

Perhaps the most important chapter in the “Notes,” and one to which Sheehan devotes a major portion of her book, dealt with the influence of public opinion on government.

In Federalist 49, Madison stated that “All governments rest on opinion,” which Professor Sheehan notes might be a recapitulation by Madison of British philosopher David Hume’s “governors have nothing to support them but opinion.”[7] Madison describes public opinion as the “real sovereign” in a free government. One new revelation that struck me was Madison’s belief that governments are sometimes bound to obey public opinion, but that they can also influence public opinion. As Madison put it: “As there are cases where the public opinion must be obeyed by the Government, so there are cases, where, not being fixed, it may be influenced by the Government.”

In today’s climate of “fake news” — information designed expressly to skew public opinion — one wonders to what extent government, if it indeed is shaped by opinion, reflects a true expression of the public? One also wonders to what extent opinion is being shaped by the government itself – and how? Townhall meetings thus take on a new importance; not only do they allow the people to express their opinions to their elected representatives, they also, if used properly, allow the representatives to provide a “reality check” on the unrealistic expectations of their constituents. The American people, many of them at least, have created in their minds a false image of the purpose of government and, more importantly, its capabilities.  Townhalls, if attended, can help correct these false and unrealistic expectations.  “Whatever facilitates a general intercourse of sentiments, as good roads, domestic commerce, a free press, and particularly a circulation of newspapers through the entire body of the people, and Representatives going from, and returning among every part of them, is … favorable to liberty,” says Madison in an essay drawn from the “Notes.”

Sheehan’s book forms a great resource: it includes a full copy of the “Notes” as well as other related material, such as his famous “Vices of the Political System of the United States,” and a letter he wrote Jefferson in France to explain some of the features of the newly drafted Constitution. The Appendix takes up nearly half the book.

During our hour-long interview, Professor Sheehan and I explored other features of the “mind of James Madison” beyond those contained in the “Notes,” such as his view of religion, the church/state question and his personal view of slavery. Madison criticizes the existence of slavery in the “Notes,” noting that where it is condoned in a country or state, this can produce, over time, an aristocracy in which, at least in the example he gives of Virginia, can result in only about a quarter of the population having any real political power. Yes, Madison grew up among slaves, used them as his personal valets throughout his life, and inherited responsibility for Montpelier’s slaves upon the death of his father in 1801. Yet he did not free any of them in his will, as some men at the time did. Why? It is my belief, and the Professor’s, that the financial hardship imposed by Madison’s spendthrift adopted son, John Payne Todd, who found himself more than once in debtor’s prison, kept Madison so financially “off balance” that freeing his slaves would have placed the entire estate, and the well-being of his devoted wife, Dolley, in peril, something he could not bring himself to do. As it was, after Madison’s death in 1836, Dolley Madison was still left in severe financial hardship for the remainder of her life, having to sell her husband’s papers to Congress just to get by. Paul Jennings, Madison’s personal valet in the White House, was purchased and allowed to work for his freedom by none other than Daniel Webster. In his memoirs, Jennings writes of frequently being directed by Webster to drop off food and other goods at Dolley’s apartment in Washington.

We also discussed the issue of Free Speech that is being so contested today and how Madison might have viewed the controversy. If public opinion is so inexorably tied to government, anything that inhibits the free exchange of ideas and information can only be a detriment to the ultimate success of that government.

The Mind of James Madison, The Legacy of Classical Republicanism, is a great help to understanding this complex Founding Father. It is well worth the read. In future essays we will explore other aspects of “the mind of James Madison.” Stay tuned.

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

[1] http://www1.villanova.edu/villanova/artsci/psc/facstaff/biodetail.html?mail=colleen.sheehan@villanova.edu

[2] https://www.amazon.com/Mind-James-Madison-Classical-Republicanism/dp/1107029473

[3] Sheehan makes a compelling case that the Notes were mostly written between the adjournment of Congress on March 2, 1791 and the assumption of some extended travel with his friend Jefferson in late April of that year.

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

[5] http://teachingamericanhistory.org/newsletter/201007-2/

[6] http://teachingamericanhistory.org/library/document/the-pacificus-helvidius-debate/

[7] Madison almost certainly had a copy of Hume’s Political Discourses

Constitutional Corner – The Left’s War on Speech

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Here are my suggestions:

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

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

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

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

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

 

Constitutional Corner – The Right of Protest

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Wikipedia[1] says “[t]he right to protest is a perceived human right arising out of a number of recognized human rights. While no human rights instrument or national constitution grants the absolute right to protest, such a right to protest may be a manifestation of the right to freedom of assembly, the right to freedom of association, and the right to freedom of speech.”

I could stop right there, because that is a nice succinct way of answering the question of whether there is indeed a right of protest, but that just wouldn’t be fun, so let’s proceed:

Wikipedia’s answer is fine as far as it goes, but it fails to address the distinction between natural versus civil rights a distinction Americans of the founding period easily explain. We are endowed natural, unalienable rights by our Creator, we are granted civil, alienable rights by our government.

Could a right of protest be a natural right? In its most generic sense, certainly. In a state of nature you can certainly protest anything you want: the taste of food, the weather, anything is fair game. But in a political sense, a right of protest makes no sense at all.

The Oregon ACLU[2] appears to harbor no doubt, however, stating on their website: “You have a constitutionally protected right to engage in peaceful protest in “traditional public forums” such as streets, sidewalks or parks.” Really?  Constitutionally-protected?

As Wikipedia rightly points out, but which the Oregon ACLU  apparently doesn’t realize, no national constitution, including our own, establishes such a right.

A Right of Protest might have been contemplated in the Ninth Amendment; protests were certainly a well-known feature to colonial Americans. The colonists took to the streets in droves to protest the Sugar Act of 1764, the Stamp Act of 1765, the Townshend Acts of 1767, the Tea Act of 1773 and, finally, the Intolerable Acts of 1775.

Some protests turned violent, particularly in Boston, but certainly not all of them; some protests were purely economic in nature – boycotts of British-made goods. James Madison recounted in a letter to his father how he and fellow college students participated in a subdued protest of New York merchants who chose to not take part in a boycott of British liquor urged by their brethren in beleaguered Boston.

An 1861 anti-war protest in Baltimore, Maryland resulted in both citizen and military deaths when protesters tried to block the movement of southbound Massachusetts troops going from one train station to another. It was actually the first blood spilled in the war.

From July 13–16, 1863, protests in New York City over the Union Army draft quickly turned violent, leading to 120 deaths and at least 2,000 people injured. After the Battle of Gettysburg, President Abraham Lincoln had to send several regiments of militia and volunteer troops to control the city. Protests of the National Conscription Act took place in other cities and states across the North.

The “Bonus Army” protest of 1932 resulted in 2 dead; 1,086 injured.[3]

And then how can we forget the many protests of the Vietnam War and some attendant acts of terrorism by the Students for a Democratic Society and the Weather Underground.

Some today have likened our current anti-Trump protests to the Boston Tea Party, as though there was some sort of moral equivalence. Balderdash! The Boston Tea Party was a calm and orderly affair, focused exclusively on the tea (a broken ship’s lock was immediately replaced and, eventually the more than a million dollars of tea was paid for). I can see the disclaimer now: “No ships were damaged nor crews assaulted in the taking of this tea.”

Contrast this with the violent protests on January 20th in which businesses, including an immigrant-owned limousine were torched. If there is good news here, it is that the more than 200 protesters who were arrested that day face 10 years imprisonment and up to a 250,000 fine.

Going back to the Wikipedia description, “such a right to protest may be a manifestation of the right to freedom of assembly, the right to freedom of association, and the right to freedom of speech.” “May be?” So if we combine these three natural rights somehow a right of protest springs out of them? It reminds me of the right of privacy assembled by the high court in Griswold v. Connecticut from “bits and pieces” of inferences of privacy found in the 4th and 5th Amendments, and others.

But as I repeatedly say to groups: I have no problem with creating a right to privacy or any right at all, and securing it in the Constitution; but who rightfully has the authority to create and define those rights: five unelected lawyers, or the 300 million owners of the Constitution – i.e., the American people? Because the process of amending the Constitution to create such a right requires a bit of work on our part, we seem to be more inclined to let lawyers in black robes do our work for us. Need a right to privacy? No problem. Need a right to kill your unborn child? No problem. Need a right for two homosexuals to “marry?” No problem. Give the job to the courts, they can do anything.

Our current Court, which seems to show no reticence to creating new rights, is not willing to give citizens the right to protest or even exercise their free speech right on the court’s very own steps.[4] But that’s not a obstacle to a determined protester. Protesters upset with the Citizens United decision have now taken their obnoxiousness inside the Supreme Court’s chamber,[5] even to the point of interrupting the Chief Justice.

The Supreme Court itself has never claimed there was a right to protest, per se; they have instead viewed protest-related cases as free-speech issues:

In 1969, (Tinker v. Des Moines) high school student protesters were told they could wear black armbands as a free speech right.

In the 1989 case of Texas v. Johnson, the court decided that burning the U.S. flag in protest of the government’s actions was to be considered a free speech issue. Flag burning joined the ever-increasing list of “symbolic speech” that was to be protected.

In 2011, the Westboro Baptist Church won the right to protest military funerals after claiming free speech.[6]

In 2014, in McCullen v. Coakley,[7] the Court unanimously held that Massachusetts’ 35-feet buffer zones to keep abortion protesters from interfering with women seeking abortions violated the First Amendment because it limited free speech too broadly.

So, I’m going to go out on a limb here and say that there is no such thing as a political right to protest. You have a right to petition the government for a redress of grievances, you even have a right to assemble for that purpose as well as to freely speak your grievances. But when your use of any of those rights infringes on my right to freely travel in my car, or damages my property, or disturbs my peace, we have a problem, and I’m going to demand that the law be enforced against you.

The criminals who defaced a putting green on a Trump golf course[8] last week need to be rounded up, fined and imprisoned.

The holligans who are preventing businessman Peter Thiel from enjoying his home[9] and neighborhood should be disbursed and arrested if they return.

Protesters who disrupt a Congressman’s Town Hall meeting[10] should be arrested for incitement. Let them convince a judge their actions were otherwise.

Any protests which turn into riots and property destruction where it can be proved that George Soros or anyone else funded the event should result in the arrest of those financiers for inciting riot.

The training sessions conducted by the ACLU[11] should be monitored for the same purpose and if any instructions can be interpreted as inciteful, the director of the ACLU should be similarly arrested.

Quoting from the federal government’s website on the subject of riot, we find:

Government officials cannot simply prohibit a public assembly in their own discretion,[4] but the government can impose restrictions on the time, place, and manner of peaceful assembly, provided that constitutional safeguards are met.[5] Time, place, and manner restrictions are permissible so long as they “are justified without reference to the content of the regulated speech, … are narrowly tailored to serve a significant governmental interest, and … leave open ample alternative channels for communication of the information.”

The First Amendment does not provide the right to conduct an assembly at which there is a clear and present danger of riot, disorder, or interference with traffic on public streets, or other immediate threat to public safety or order.[13] Statutes that prohibit people from assembling and using force or violence to accomplish unlawful purposes are permissible under the First Amendment.[14]

So there it is: you may peacefully petition the government for a redress of your grievances, you may even do so in a group; and you may speak your mind in any public place (except the Supreme Court’s steps). But please don’t insist that you have a constitutionally-protected right of protest.  Further, if you do not allow other Americans to enjoy their equal rights while exercising yours, don’t claim you stand on the moral high ground.  Just saying.

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

[2] http://aclu-or.org/content/your-right-protest

[3] https://en.wikipedia.org/wiki/Bonus_Army

[4] https://www.washingtonpost.com/politics/courts_law/protesters-have-no-free-speech-rights-on-supreme-courts-front-porch/2015/08/28/f79ae262-4d9e-11e5-bfb9-9736d04fc8e4_story.html

[5] http://www.cnn.com/2015/01/21/politics/supreme-court-protests-citizens-united/index.html

[6] http://www.washingtonpost.com/wp-dyn/content/article/2011/03/03/AR2011030304124.html

[7] http://www.scotusblog.com/case-files/cases/mccullen-v-coakley/

[8] https://www.washingtonpost.com/news/post-nation/wp/2017/03/12/video-shows-environmental-activists-defacing-popular-trump-golf-course/?utm_term=.0972b18e88da

[9] http://www.sfgate.com/bayarea/article/Pro-immigrant-demonstrators-rally-outside-Peter-10995442.php

[10] http://www.sbsun.com/general-news/20160304/protesters-disrupt-logistics-town-hall-meeting-in-san-bernardino

[11] https://aclufl.org/2017/02/24/aclu-to-host-the-resistance-training-an-aclu-town-hall-in-miami/

Constitution’s Week in Review – 27 August 2016

Article 1, Section 2.  Apportionment

The original Constitution set Congressional representation at 1 Representative for every 30,000 persons.[1]  If this formula had remained in effect, the House of Representatives would today contain over 10,000 members.

What would have been the original first amendment had it been ratified in 1791 would have gradually increased the apportionment formula until it reached 1 Representative for each 50,000 persons.  Even at 1 to 50,000, the House would today contain about 6400 members.[2]

Back when communication was somewhat less than globally instantaneous, and telepresence still a science fiction, a legislative body of these proportions seemed unmanageable, and so the Reapportionment Act of 1929 was passed which capped the number of Representatives at 435.  In 1929, when the U.S. population stood at 121.8 Million, this meant each Representative must represent 280,000 persons.  Today, the average Representative must represent the interests of 750,000 individuals.  Good luck with that.

Providing the basis for this apportionment was an enumeration or census, to be conducted every 10 years:

“The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct.”

Our country’s first official census was conducted in 1790[3] and the last in 2010.[4]  The 2020 census is beginning to come onto political radar screens and looks to be as controversial as any previous.  What should be a simple counting project has proven to be anything but.

Certain elements of the U.S. government attempt to use the census to gain additional socio-demographic information they can use to shape their programs.  This means asking census questions that go well beyond a simple “enumeration” and intrude into personal information that some feel the government has no need to know or right to demand.

With apportionment, however, comes political power — 15 states are projected to gain or lose districts as a result of the 2020 census — and that means politically-motivated groups will seek ways to influence the outcome.  It should come as no surprise then to learn that certain political groups hope to influence the 2020 census to gain political advantage.

The Open Society Foundation, founded by George Soros, is funding key progressive groups[5] with the goal of attempting to “influence appropriations for the (U.S.) Census Bureau.” while pushing to change the methods by which racial categories are counted.  One big issue: do you count incarcerated individuals as residents of the jail/prison location or are they residents of their pre-incarceration domiciles?   With U.S. prisons bursting at the seams, this becomes an important question.  Watch for more on this as we get closer to the actual census.

First Amendment. A Win for Religious Liberty?

Genesis 1:27 tells us that God created humans as either male or female.  Although biologists point to several factors involved in determining gender during conception, gender, once set, is set; the idea that someone could actually change their gender after birth is of very recent vintage.  Only advances in cosmetic surgery have made the idea even approachable.  Of course, at the genetic level the idea is preposterous.  Despite all external attempts to portray oneself as the opposite sex, chromosomes have proven more resistant to change.

But now that the issue of homosexual marriage appears to have been settled, in the eyes of many, if not most Americans, gender identity is the new battleground.  Bathroom/shower-room use in the public schools gets a lot of the attention (as a side note: a Texas Federal Judge has blocked the Department of Education’s attempt to inflict gender confusion on the nation’s schoolkids).[6]  But trans-genderism is creating other controversies as well.  For instance, must an employer accommodate an employee’s announcement of gender “transition” at face value and retain that employee in their job?

A U.S. District Judge in Michigan has decided the answer to that question is “No,”[7] the employer can not only fire such an individual, they and can base their decision on their firmly held religious values, even if the business involved is not a church or other religiously-oriented organization.  I’ve no doubt this decision will be appealed and I fully expect it to reach the Supreme Court, where, based on our Society’s emerging hostility to religion, I predict the Court will strike down the decision and state that a firing decision cannot be based on religious views of gender.  But we’ll see.

Two Wins for Religious Liberty in One Week, What’s Happening Here?

The following story shows the strength of grass-roots efforts when properly marshalled.

The California legislature was set to pass SB1146.[8] Among its provisions was one preventing low-income students from receiving Cal Grants, California’s system of need-based education aid, if they attended colleges which restrict campus bathroom use based on biological sex.  Thanks to “hundreds and hundreds of phone calls,” Senator Ricardo Lara, a Democrat  and the bill’s sponsor, agreed to remove the offending clauses.

Kudos to the Becket Fund for Religious Liberty and the Southern Baptist Convention’s Ethics and Religious Liberty Commission which mobilized their members.  It can work!

Why Does the Federal Government Own So Much State Land?

In previous posts and in my seminar I complain about the extent of state land claimed by the federal government: 85% of Nevada, 70% of Alaska, 57% of Utah, and so on.  Article 4, Clause 2 gives Congress the power to “dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.”  Notice the words “dispose of.”  These imply that federal territory will not be held in perpetuity, only temporarily until it is either sold off or made into a state.  Environmentalists, of course, have no problem with the federal government sequestering such land from development and keeping it as wilderness “for the people;” otherwise, cash-hungry states would just sell it off to developers, and then “good bye Yellowstone!”  Now we learn there are a considerable number of conservatives[9] who see things the same way.  Apparently willing to put aside the issue of big government, they see these lands as a “national birthright” and demand they be protected from economic development, principally by keeping them under federal ownership.  What’s a Republican platform-writer to do?

Upcoming Events:

Note for those in the Hampton Roads area: On Tuesday, 6 September, our Natural Law Discussion Group, having finished a look at Natural Law, will undertake an abridged version of Institute On The Constitution’s Duty of the Jury Course.  This course explores the traditional power of juries and how it has changed over the years.  In the colonial period and even into the 1860s, juries routinely exercised the power to judge both the law and the facts.  Not so much today; primarily because juries are routinely and specifically instructed by judges that they do not have this power.  The discussion group is (and has always been) open to anyone with an interest in studying what we’re studying.  The group meets from 6:30-8:30 pm in the Oyster Point area of Newport News, VA.  For the address details, send an email to: gary@constitutionleadership.org.

12 Sep, Lessons in Liberty – The Electoral College

The functioning of the Electoral College today bears little resemblance to the Framers’ intentions.  But rather than completely eliminate the “College” with an amendment, which would be the “constitutional” thing to do, groups like National Popular Vote have decided a final end-run is all that’s needed.  Can the Framers’ intent be restored?  Come find out on Monday, 12 September, 7-9pm at the Foundation for American Christian Education in Chesapeake, VA.  For those outside the local area, the presentation will be livestreamed.  Registration is $10 either way at www.face.net.

19 Sep, Christian Financial Concepts Webinar – The Electoral College Once Again

The following Monday, I give a one-hour abbreviated version of my Electoral College presentation for the Christian Financial Concepts[10] webinar series.  Participation is free, but this will by necessity be a more truncated view of the subject.

WFYL Radio: We the People, the Constitution Matters.  Having completed a look at the principles of the Declaration of Independence, our intrepid commentators take on the topic of “Progressivism in America.”  Join us Friday mornings from 7-8am beginning 26 August, as we cover the sordid history of Progressivism, how it gained a foothold in America, the damage it has already done and where its acolytes plan to take this country given the chance after November.

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

[1] The word “residents” is not used, however, giving rise to the question of whether representation was intended to be based on “residents,” however temporary may be their residency, or “citizens,” or some other designation.

[2] For more on ratifying the original first amendment today see: https://americaagain.net/

[3] The U.S. population in 1790 was 3,929,214.

[4] The U.S. population in 2010 was 309,300,000.

[5] http://www.breitbart.com/big-government/2016/08/22/leaked-doc-soros-open-society-seeks-reshape-census-electoral-districts/

[6] http://patriottribune.com/44167/texas-judge-blocks-transgender/

[7] http://www.gopusa.com/?p=13949?omhide=true

[8] http://dailysignal.com/2016/08/12/what-conservatives-did-to-pull-off-religious-liberty-win-in-california/?utm_source=TDS_Email&utm_medium=email&utm_campaign=Top5&mkt_tok=eyJpIjoiWmpRME5qSTRPR001TTJNdyIsInQiOiJFbE9iRSsyekZicFlMNzByTUMza2xVQzlmSm1MOTdRSEpCY3NFNU5reVBzclI2QU5hRm5KSk1SNHB0WUtTcEVIcElLZXhEcW5wMTVyMmtnZXJyZ0lST1JEdHd6QnZxWHQyR25jOUxqTGFicz0ifQ%3D%3D

[9] https://www.yahoo.com/news/conservatives-split-over-u-land-transfers-western-states-104946810–finance.html

[10] http://www.christianfinancialconcepts.com/webinars.php

 

Constitution’s Week in Review – 20 August 2016

As I watched some of the Olympics coverage this week I couldn’t help reflect on the central role “rules” play in an ordered society.  Image if two soccer teams showed up for their match and the refs announced that the rules were mere “guidelines,” that the public expected them (the refs) to “keep up with the times.” “In the end,” says the Head Ref, “the final score will be determined by how well we think each team played.”

I suspect: “Say what?” would be the mildest of the reactions from the players.

Yet the American public seems to not care much whether our government plays by the rules of the Constitution or not.  Just saying.

It Seems To Be All About The First Amendment This Week.

Can a church operate on Biblical beliefs? I wonder how many states, besides Iowa, have a “Civil Rights Commission.”  My guess is that most do.  Does your state?  If so, you might want to start monitoring it to see if its members intend to follow the lead of Iowa’s Commission (ICRC).

In 2007, the Iowa legislature expanded the state’s Civil Rights Act to make it illegal to discriminate based on sexual orientation and gender identity.  The ICRC then issued an online brochure[1] that stated churches would “sometimes” be held accountable for the guidelines.  Naturally, this caused great confusion among the state’s churches, with some charging that the ICRC was forcing gender-neutral bathrooms on them[2] and even that the ICRC intended to monitor sermons for compliance.  Those on the Left called it a non-issue.[3]  With the help of Alliance Defending Freedom, other churches filed suit to have the brochure clarified.[4]

It appears the ICRC has no intention, for now, of filing complaints against churches for failing to allow gender-confused individuals to use the bathroom of their choice or for preaching bible-based admonitions against homosexuality.  But there remains great confusion over whether churches must become “members-only” in order to be totally immune.

How’s gender-confusion being dealt with in your state?

Mosques vs Churches.  Does the First Amendment require government at every level to accommodate every religion equally?  I know what the Framers of the Constitution would have said.  We’ll soon find out what today’s courts think.

Muslims of Sterling Heights, Michigan, asked for a zoning waiver that would allow them to build a second mosque in the city, and were turned down.  Claiming bigotry, the Muslims filed suit[5] and, rather than wait for the suit to be resolved, the Obama administration jumped into the fray and launched their own investigation of the claim.

If a Christian Church had instead been denied a zoning variance for similar reasons, I doubt the result would be a lawsuit.  But the way things are going in this country, with Christians being told to “shut up and color,” I won’t be surprised to see churches being similarly restricted and reacting similarly.  But back to the central question: must government, in this case city government, treat all religions equally?  If a variance is given to one religion or denomination must it then be given to all?  Can there still be valid reasons for turning down a zoning request?  Or to avoid any hint of bias, must we allow Muslims in America to erect mosques wherever they desire?  The landscape of America is changing, and the pace of that change is quickening.  At some point Americans will have to decide whether they wish to retain some sort of a national identity.  What do you think?

What does Free Speech Include?  People often point to Canada as our “enlightened neighbor to the north.”  Sporting a nationalized healthcare (from which the wealthy flee to obtain their care in America) and a bold, brash young Prime Minister, it is easy to overlook the “dark side” of Canadian life.  Like this:  would we be comfortable in America with unelected commissioners dispensing fines when comedians’ jokes start crossing imaginary lines in the sand?

Quebec’s Human Rights Tribunal fined a Canadian comedian[6] $42,000 for joking about a disabled boy.  Unfortunately, the boy he chose to joke about really existed and was sort of a national icon; that certainly didn’t help.  But I think we can all agree that while such a joke is clearly in poor taste, we’re headed down a steep, steep slope if we start prosecuting people for poor taste.  On the bright side, the aisles of Walmart would quickly empty,[7]

That Nasty Bible Again.  Mikey Weinstein[8] of the Military Religious Freedom Foundation continues to wage his one-man crusade against Christianity in the Air Force, this time complaining about a Bible left in plain view on an Air Force Major’s desk.[9]  Official Air Force policy says Bibles on desks is acceptable, but that didn’t stop Mr. Weinstein, who hoped to capitalize on a ruling last week by the U.S. Court of Appeals for the Armed Forces which upheld the bad conduct court-martial of a Marine who displayed Bible verses on her computer workstation.  Weinstein’s complaint will fail, but I predict the publicity-hungry ex-Air Force officer (you don’t know how much it pains me to acknowledge Weinstein was such) will not be dissuaded.

Upcoming Events: It is shaping up to be a busy Fall.  I will be putting on at least one Constitution Seminar in either September or October in the Tidewater area, but the date and location are not yet certain.

On Tuesday, 6 September, our Natural Law Discussion Group, having finished a look at Natural Law, at least for the moment, will undertake an abridged version of Institute On The Constitution’s Duty of the Jury Course.  This course explores the traditional power of juries to judge both the law and the facts.  In the colonial period and even into the 1860s, juries routinely exercised this power.  Not so much today; primarily because juries are routinely and specifically instructed by judges that they do not have this power.  The discussion group is (and has always been) open to anyone with an interest in studying what we’re studying.  The next bi-monthly meeting will be 6 September from 6:30-8:30 pm in the Oyster Point area of Newport News, VA.  For the exact address, send an email to: gary@constitutionleadership.org.

12 Sep Lessons in Liberty – The Electoral College

The functioning of the Electoral College today bears little resemblance to the Framers’ intentions.  Rather than complete its death blow with a Constitutional Amendment, groups like National Popular Vote have decided a final end-run is all that’s needed.  Can the Framers’ intent be restored?  Come find out on Monday, 12 September, 7-9pm at the Foundation for American Christian Education in Chesapeake, VA.  For those outside the local area, the presentation will be livestreamed.  Registration is $10 either way at www.face.net.

19 Sep Christian Financial Concepts Webinar – The Electoral College

The following Monday, I give a one-hour abbreviated version of my Electoral College presentation for the Christian Financial Concepts[10] webinar series.  Participation is free, but this will by necessity be a more truncated view of the issues involved.

WFYL Radio: We the People, the Constitution Matters.  Having completed a look at the principles of the Declaration of Independence, our intrepid commentators take on the topic of “Progressivism in America.”  Join us Friday mornings from 7-8am beginning 26 August, as we cover the sordid history of Progressivism, how it gained a foothold in America, the damage it has already done and where its acolytes plan to take this country in the very near future.

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

[1] http://www.christianpost.com/news/churches-sex-segregated-bathrooms-transgender-feel-unwelcome-closed-to-public-iowa-commission-166167/

[2] http://thefederalist.com/2016/07/06/iowa-bureaucrats-force-trans-bathrooms-on-churches-forbid-non-pc-preaching/

[3] https://stream.org/iowa-civil-rights-commission-spokesperson-urges-churches-trust-wont-target-sermons-religious-practices/

[4] http://www.adfmedia.org/News/PRDetail/10015

[5] http://www.freep.com/story/news/local/michigan/macomb/2016/08/10/muslims-sue-sterling-heights-mosque/88526616/

[6] http://heatst.com/culture-wars/comedian-fined-42000-for-telling-a-joke/

[7] https://www.youtube.com/watch?v=rj0QGecsg3Y

[8] http://www.christiannewswire.com/news/38272018.html

[9] http://www.washingtontimes.com/news/2016/aug/18/air-force-orders-investigation-bible-officers-desk/

[10] http://www.christianfinancialconcepts.com/webinars.php

 

The Constitution’s Week in Review – 14 May 2016

Article 2:  Qualifications of the President.

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

Article 2:  Abuse of Executive Power

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

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

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

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

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

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

Fifth Amendment: Remaining Silent:

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

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

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

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

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

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

Secession

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

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

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

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

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

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

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

Upcoming Events:

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

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

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

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

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

[1] http://constitution.com/oh-yeah-judge-rules-someone-overstepped-authority/

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

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

Constitutional Corner – Abuse of Executive Power

Open as PDF

“[T]he president doesn’t have the authority to simply ignore Congress and say, we’re not going to enforce the laws…,” so said Barack Obama in January 2012.  Look at him now.

American presidents have been “stretching” and outright abusing their constitutional powers since our first president took office.  They have done so, I believe, because they discover, once elected, that the legitimate constitutional power of the office leaves them powerless to do the “good” that they feel must be done.

The American people, generally lacking an understanding of the legitimate powers granted the President under the Constitution, have turned a blind eye to most of these abuses.  As long as the president’s actions seem logical, particularly if they seem designed to produce something beneficial, to some group or another, the average American seems willing to give the President the benefit of the doubt.

Even among constitutional scholars, however, there is doubt as to the limits of presidential power intended by the framers, primarily due to the development of two distinct ways of interpreting Section 1 of Article 2 of the Constitution.  One interpretation, encountered in The Heritage Guide to the Constitution, holds that Article 2, Section 1, known generally as the “Executive Vesting Clause” (there are similar clauses in Articles 1 and 3), provides the President with a broad range of powers inherent to “executives.”

“The Executive Vesting Clause grants the president the executive power traditionally associated with chief executives.”[1]

Unfortunately, what these inherent powers consist of must be conjectured since they are not to be found in the vesting clause itself, which reads:

“The executive Power shall be vested in a President of the United States of America…”

What indeed is the “executive power?”

King George III was the chief executive of Britain and enjoyed great power, including the unilateral power to make war.  But the king’s powers were certainly not unlimited, they were limited by certain acts of Parliament, by the English Bill of Rights, Magna Carta, and other documents; nevertheless, they were still clearly the powers of a king.  Were these the powers the Framers intended?  Clearly, no.  An “elective monarch” was discussed at the Constitutional Convention and rejected, for obvious reasons.  Yet the possibility that a monarchy could still have been the outcome of the convention sparked the famous exchange between Benjamin Franklin and an unnamed woman he encountered as he left Independence Hall about “keeping” the republic.[2]

In 1787, each state had a governor and usually an executive council as well; should we look to these examples as our guide for what constitutes “executive power?”  If so, we will find that many, perhaps most of these chief executives had greatly reduced powers.

Standing opposite the “vesting clause” argument is the contention that this clause only designates the title of the president, which it clearly does, and that any specific powers vested in the president are to found later in Article 2, which they are.  This is the position taken by Constitutional scholar Rob Natelson in his book: “The Original Constitution, What it Actually Said and Meant.”  This interpretation is also consistent with legal document construction of the time, and thus I find it more persuasive.

Alexander Hamilton uses ten essays (#67-77) in The Federalist to explain the office of the President, the last five focusing exclusively on the powers of the President, each time discussing one or more of the powers specifically mentioned in Article 2.  Hamilton does not argue that there is some unenumerated inherent executive power to be found lurking in “emanations from penumbras” (so to speak) in Article Two’s “vesting clause.”[3] At least not in 1788.

A mere five years later, however, writing the first of the Pacificus Letters, Hamilton argues that Washington’s Neutrality Proclamation sprang from just such inherent powers (“the more comprehensive grant contained in the general clause”) .[4]

To settle the confusion, the Supreme Court declared that the vesting clause does provide the President with at least these inherent powers:

  • Removal and supervisory powers over executive officers[5]
  • Law enforcement power[6]
  • Power over foreign affairs[7]
  • Control of prosecutions[8]

Is the Supreme Court the final say on how to interpret the Constitution?  As I’ve said in numerous essays: emphatically, no!  But we have to realize that the average American thinks otherwise.  They have “drunk the kool-aid” and believe, with Chief Justice Earl Warren, that, “the federal judiciary is supreme in the exposition of the law of the Constitution.” Or perhaps they side with Associate Justice Charles Evans Hughes, who said:  “We are under a Constitution, but the Constitution is what the judges say it is.” Alexander Hamilton thought and wrote otherwise, concluding that the people should be the final arbiters.

Nevertheless, when we examine what the Court has had to say about the non-enumerated powers of the Executive we find something less than rock-solid.

Erwin Chemerinsky asserts in “Controlling Inherent Presidential Power: Providing a Framework for Judicial Review”[9] that an inconsistent approach by the Supreme Court in deciding the limits of inherent power (when the President is acting outside the scope of clearly enumerated powers) has left the lower courts to flounder on their own.  Chemerinsky posits these questions as examples:

Can the President unilaterally freeze Iranian government assets in the United States?  Can he unilaterally rescind a treaty with Taiwan?  May he impound funds appropriated by Congress?  May he keep executive correspondence secret from Congress?  Can he conduct warrantless wiretaps of domestic organizations to protect national security?  “Although in each of these controversies the fundamental issue is identical, the Court has failed to use a consistent approach in dealing with the issue of inherent executive power.”

Chemerinsky concludes that “[t]he Supreme Court’s ad hoc, unprincipled approach to this power and the confused responses of the lower courts as they attempt to follow the Supreme Court’s cases, have contributed greatly to the development of an ‘Imperial Presidency’” (borrowing the phrase from the title of Arthur Schlesinger’s award-winning book).

And an “Imperial President” is precisely what some in America seem to want.  When Barack Obama threatened to exceed his constitutional powers and act if Congress did not, Congressional Democrats actually gave him a standing ovation.  I was astounded.  Confusion over the limits of presidential power is understandable; disdain for them is not.

So, into these murky waters we plunge: what are the legitimate powers of our Chief Executive, when can we know they are being abused, and what remedies do “We the People” have when this occurs.

The Legitimate Powers of the President.

The Legitimate Powers of the President are not hard to find, they are spelled out in Sections 2 and 3 of Article 2, and a few select clauses in other parts of the Constitution.

Section 2.  The president has power to:

  • Be Commander-in-Chief of the United States military, and of the militia of the several States, when they are called into the service of the United States.
  • Request the opinion of executive officers.
  • Grant pardons.
  • Negotiate and make treaties with foreign countries.
  • Appoint ambassadors and other ministers, judges and officers of the government, with the advice and consent of the Senate.
  • Make temporary appointments to these positions when Congress is in recess.

Section 3.  The president has the responsibility to:

  • Periodically advise Congress on the state of the union.
  • Recommend legislation that he deems “necessary and expedient.”
  • Convene, on extraordinary occasions, one or both houses of Congress.
  • Adjourn Congress if both houses can’t agree on when to do so.
  • Receive ambassadors and other public ministers.
  • Commission all the officers of the United States military.

Powers Found Outside Article 2.

Article I, Section 7 grants the President the power to veto bills and resolutions passed by Congress, but also the responsibility to make his objections to such bills known to Congress so that Congress can either make changes to meet the President’s objections or vote to override the veto.

Besides these specifically enumerated powers, and the dubious inherent powers that the Supreme Court has endorsed, it is generally recognized that the President has hat least these other powers:

  • the implied power to issue orders as necessary and proper to carry into execution his enumerated powers.
  • the implied power to spend the money appropriated by Congress.
  • the implied power to remove administrators from their offices, even those confirmed by the Senate, unless such removal power is limited by public law.
  • the implied responsibility as Commander in Chief to protect the nation from attack.

Examples of Executive Power Abuse

The previously mentioned 1793 Neutrality Proclamation of President Washington warned U.S. citizens “to avoid all acts which may in any manner tend to [go against] this [proclamation].”  Where did Washington find power in the Constitution to proscribe the actions of private citizens?

For that matter, where did President Thomas Jefferson obtain the constitutional authority to purchase foreign territory (Louisiana) from the French?

Andrew Jackson defied the Supreme Court and had the Cherokee nation forced onto reservations in Oklahoma.

Abraham Lincoln ordered citizens arrested, proclaimed martial law, seized private property, censored newspapers, emancipated southern slaves, and blockaded southern ports in violation of the Law of Nations.

Warren G. Harding had his “Teapot Dome Scandal”.

Harry Truman tried (unsuccessfully) to seize the nations steel mills to break up a 1952 strike that threatened war production.

Progressives like Teddy Roosevelt and Franklin D. Roosevelt have been called: “serial violators of the Constitution.”  Teddy saw himself as a one-man government with little use for Congress or the Supreme Court.  He said: “My belief was that it was not only [the President’s] right but his duty to do anything that the needs of the nation demanded unless such action was forbidden by the Constitution or by the laws.”

FDR treated constitutional restraints on his office as challenges to overcome. When the Court was not seeing things his way, he tried to pack the court with six new justices who would see things differently.   He ordered the roundup and detention of thousands of Japanese-American citizens.  Even though the Supreme Court sanctioned the action,[10] it stands today as a blight on both the Presidency and the Court.  FDR also abused executive authority in order to regulate wages, create federal agencies, and criminalize the possession of gold.

Richard Nixon’s famous quote: “When the President does it, it isn’t illegal,” should say it all.  But he also instituted wage and price controls through executive order, created a list of political enemies and used governmental authority to harass them.

Ronald Reagan’s “Iran-Contra Scandal” tainted his presidency.

Bill Clinton’s abuse of presidential power is legendary, and not just among interns.

George Bush was challenged over taking the nation to war in Iraq, the use of waterboarding, and for the provisions in the Patriot Act, among others.

If we look hard enough, we can find abuse of power in nearly every presidency.

So what remedies do we have when “Presidents Go Wild?”

Remedies.  When Presidents exceed their legitimate powers, what are the remedies?

First, there are the courts.  Theoretically, any breach of constitutional power should provide the basis for impeachment, but realistically, many abuses don’t rise to that level.  So we sue.  Not “We the People” unfortunately.  The Courts typically throw out individual challenges of the president’s actions due to lack of standing.  It’s a silly, obnoxious concept, and we the people shouldn’t allow it, but we do.  But the states (and some individuals) occasionally have economic grounds to sue the administration if a decision produces expenses for them, and this grants them standing, so they sue.

The Supreme Court struck down the Obama administration’s “recess” appointments to the National Labor Relations Board, conducted while the Senate was formally in session, and the NLRB v. Noel Canning decision, as it was called, marked the 12th time the Supreme Court unanimously ruled against the Obama administration on the issue of executive power.

But lawsuits are expensive and only states or plaintiffs with deep-pockets can typically afford them.  And suits don’t prevent the next abuse; only impeachment can potentially do that.

We’ve impeached two presidents, Andrew Johnson and Bill Clinton, and were preparing to impeach a third, Richard Nixon, when he vacated the office.

Andrew Johnson (our 17th President) was impeached in 1868 for ignoring the Tenure of Office Act and instead replacing Secretary of War Edwin Stanton with Major General Lorenzo Thomas (there were 16 other articles of impeachment).  He was acquitted in the Senate trial by a single vote.

Bill Clinton (our 42th President) was impeached in 1998 for perjury and obstruction of justice arising from the Monica Lewinsky Scandal.  He was acquitted in the Senate on the first charge by 22 votes and on the second by 17 votes.

Section 4 of Article 2 describes a limited set of conditions for impeachment to proceed: “Treason, Bribery, or other high Crimes and Misdemeanors.”  What are “high Crimes and Misdemeanors?”  The Framers left that to us to decide.  I believe Barack Obama should have been impeached long ago, despite his being the first mixed-race president of the U.S., but apparently a majority of Congressmen do not agree.  Even though impeachment articles against Barack Obama were prepared long, long ago, this Congress has shown that it lacks the political will to impeach this man.  The House of Representatives is reluctant to impeach when it is clear they lack the votes to convict in the Senate.

A third remedy is to refuse to re-elect the President.  The 2012 election showed us how hard it is to un-elect a president who enjoys a wide base of progressive support, no matter how egregious his disdain for constitutional limits.

Many today feel frustrated by having a president who ignores the limitations on his power yet seems immune to impeachment for his actions.

My recommendations, if you are concerned and feel frustrated by what you’ve read here:

First, read your Constitution and particularly study Article 2.  Study the conversations concerning the presidency in James Madison’s notes and the ratification debates.  Ensure you can support a discussion on this topic.

Second, there are several good books out on the subject of the president and abuse of power, and many essays on the web.  Find them; read them.

Third, sit down and talk with your Congressman about your concerns.  Find out whether he or she would ever support articles of impeachment and, if not, why not?

Fourth, lend support to one of the groups promoting impeachment, they are not hard to find.

Fifth, help America better screen its presidential candidates.  Encourage debate moderators to stop asking the wrong questions and start asking the right ones, like: “Explain your view of the limits of the President’s power in the Constitution.”  And: “what would you do if Congress refuses to pass legislation that you think is vitally important to the nation’s future success?”  How about (of a Congressman): “Would you be willing to use impeachment to remove a President who abuses his power?”

Finally, pray for your country and its leaders — all of them.

Join us on WFYL’s “We the People, the Constitution Matters” radio show on Friday, 6 May, 7-8am EDT.  We will discuss some specific abuses of executive authority that the Obama administration has committed..  Go to www.1180wfyl.com and click on “Listen Live.”

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

[1] Heritage Guide to the Constitution, David F. Forte and Matthew Spalding, ed., Regnery Publishing, 2014, p. 237.

[2] “Good Sir, what have you given us: a Monarchy or a Republic? A Republic, Madam, if you can keep it.”

[3] “…what would be … feared from an elective magistrate of four years’ duration, with the confined authorities of a President of the United States? Federalist #71.

[4] http://teachingamericanhistory.org/library/document/the-pacificus-helvidius-debate/

[5] Myers v. United States (1926)

[6] Nixon v. Fitzgerald (1982)

[7] American Insurance Ass’n v. Garamendi (2003)

[8] Morrison v. Olsen (1988)

[9] “Controlling Inherent Presidential Power: Providing a Framework for Judicial Review,”  Southern California Law Review, Vol 56, pp 863-911.

[10] https://en.wikipedia.org/wiki/Korematsu_v._United_States

The Constitution’s Week in Review – 30 Apr 2016

Article 2:  Qualifications of the President.

The Constitution is not a terribly complex document: seven articles and twenty-seven amendments.  At most, it takes perhaps a half hour to read.  Jim VandeHei, owner of the website Politico, says in a Wall Street Journal article[1] this week: “I have spent the past two decades in the Washington, D.C., bubble—the heart of Establishment America—covering politics and building a company, Politico, focused solely on politics.”  Apparently none of that political immersion required Mr. VandeHei read the U.S. Constitution.

One of the most basic pieces of constitutional information concerns the qualifications for elected office: Representatives must be 25 years old, Senators 30 and the President 35.  Representatives must have been a citizen of the U.S. for 7 years, Senators for 9 and the President a “resident” for 14.  See the progression meant to ensure increased experience and maturity in each office of higher responsibility?  These criteria are not that hard to remember once you’ve been exposed to them.  Mr. VandHei has not.  Yet despite his ignorance he plunged into the fray to promote Mark Zuckerberg, age 31, Gazillionaire owner of Facebook, as a potential third-party candidate for president.  The “good news” is that Zuckerberg will be eligible by 2020.

I’ll be sending Mr. VandeHei an invitation to attend my next seminar, absolutely free of charge, in Norfolk on May 21st (sponsored by Concerned Veterans for America; and its absolutely free to everyone, not just Mr. VandeHei, sign up here[2]).

Article 2:  Abuse of Executive Power.

We had a great time discussing this topic Friday on We the People, The Constitution Matters.  The podcast has already been posted[3] for your listening and/or download pleasure.

Article 5: Amending the Constitution.

March 23, 1971, was the last time Congress proposed an amendment to the U.S. Constitution and sent it to the States for ratification (the 26th).  That was 45 years ago (warning: math in public).  That 45 year period is not the longest we have gone without amending the document (from the 12th Amendment in 1804 to the 13th in 1865 was 61 years) but the current period recently moved into second place (the 15th Amendment was ratified in 1870 and the lovely 16th Amendment in 1913: 43 years).  Many say the Constitution is long overdue for an “upgrade.”

Washington has grown into a bloated, tyrannical, bankrupt mess, thanks to the “Supreme” Court’s successful demolition of the Constitution’s original limits.  Today we “enjoy” a federal government that “can do most anything in this country” (thank you Representative Peter Stark for those honest words).  Electing better representatives will not fix this mess; the vast majority of potential representatives have no idea what the root problem is or what needs fixing.  Nullification will not fix this; nullification is at best a temporary, limited measure.

The problem is the plenary power of the federal government and the only way to fix that is to restore what Jefferson called “the chains of the Constitution.”  Those “chains” no longer exist, but could be restored with targeted amendments.

Will Congress ever take on the task of reining in their own power, imposing fiscal restraints on themselves, imposing limits to the number of terms they may serve or the terms of federal judges?  Clearly, No!  We will wait in vain for such changes, each time hoping that maybe the next election will provide us a glimmer of hope.  Such “romantics” delude themselves.

This week, Oklahoma became the seventh State to realize that waiting for Congress to act is a pipe dream.  The Oklahoma legislature passed a resolution[4] calling for a convention under Article 5 of the Constitution, joining Florida, Alaska, Georgia, Alabama, Tennessee and Indiana.  Only 27 more states to go.

If you have a better plan to fix Washington, I’d like to hear it.  And by “plan” I mean an actual plan; you know, something that has been committed to paper, with funding, personnel, a timetable and an actual chance of success.  That’s what I call a plan.

While you contemplate what you can do to support the Convention of States effort, please enjoy this short video[5] explaining the federal government’s view of the debt limit.

First Amendment:  Establishment Clause.

Can a church be given state grant money to upgrade its playground equipment as are secular organizations?  At issue is the safety of children at play, at least that was the purpose of the grant program, certainly not the establishment or advancement of religion.  But objections were raised about violating the “Supreme” Court’s contrived “Wall of Separation” doctrine.  Apparently this doctrine trumps the safety of a church’s children. The Court has agreed to hear Lutheran Church v. Pauley[6] and is accepting amicus curiae briefs, such as one recently filed by the Family Research Council[7], to prepare them for oral arguments, not yet scheduled.  If you’ve never read amicus briefs, you should.  Read at least one from each side of the argument.

Meanwhile, in the states:

Civil Asset Forfeiture.  Carrying large amounts of cash is becoming evidence of a crime in this country, so be careful when you do so.  Some Sheriffs have called civil asset forfeiture “pennies from heaven.”[8]  I call it highway robbery.  You should not need an excuse to carry cash, even large amounts if you want to.  But time after time, citizens and foreign visitors get caught up in this thievery.  Sometimes there is a happy ending, as in this article[9] about a Christian musician who had $53,000 seized because it was “evidence of drug dealing,” Right.  Couldn’t be anything else?  Civil Asset Forfeiture Laws[10] should be removed from the law books of each state.  Do you know what the situation is in your state? Update: Nebraska and New Mexico recently passed laws that prohibit civil asset forfeiture until a conviction has been obtained.

As a side note: be sure you know your rights concerning warrantless searches of your car on a public road.  In this case I’m certain the police preyed upon the good nature of a Christian musician unfamiliar with the law.  Unless a drug dog alerts at the side of your car or the police can see clear evidence of illegal goods or activities through the car windows, they must first obtain a warrant to conduct a search.  Don’t know your rights?  See the seminars discussed below.

Speaking of Constitutions, I’ll bet some of you didn’t know we have a Constitution Party[11] in this country.  It’s been around since 1992 and it secured a whopping 122,388 votes for its presidential ticket in 2012, partly because only about 50% of the country’s voters even saw the party nominees appear on their state’s ballot.  Their 2016 candidates, Darrell Castle for President and Scott Bradley for Vice-President, will appear on only 23 state ballots this November.  Check out the party’s platform[12] and see if you could subscribe to it.

Upcoming Events:

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

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

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

Constituting America continues to post new essays in their 90-Day Challenge.  Hope you are enjoying this peak into American history.

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

[1] http://www.wsj.com/articles/bring-on-a-third-party-candidate-1461624062

[2] http://cli-cva-constitution.eventbrite.com/

[3] http://www.1180wfyl.com/podcasts.html

[4] http://www.tulsaworld.com/news/capitol_report/oklahoma-joins-call-for-convention-of-the-states-on-balanced/article_d11daf38-96e8-51b2-bf29-0f991a27a0ce.html

[5] http://www.conventionofstates.com/video_managed_debt_like_the_federal_government

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

[7] http://www.christiannewswire.com/news/5329877775.html

[8] https://www.youtube.com/watch?v=ipHUN-xLLms

[9] http://dailysignal.com/2016/04/25/police-seized-53k-from-christian-band-fundraised-for-orphanage-school/?utm_source=TDS_Email&utm_medium=email&utm_campaign=Top5&mkt_tok=eyJpIjoiTVRVek9UYzVZMkl4WkRNNSIsInQiOiIzNktPeGE4ZW5JSDl0UURwalY0a1wvVEhsT2ttVEJwQUJlS2ZNdTU4UnhJWnpmVHZmVmxNQUZUemR6WllqTmhkSUJBSHlKcjA1NmRScSt5Rk9wYVZESUVxRnczbGI0RXJNd2cyMGxjZUhPM001U2tMcVRMYlJnd1wvQm1Hb1F4UUxwIn0%3D

[10] https://en.wikipedia.org/wiki/Civil_forfeiture_in_the_United_States

[11] http://www.constitutionparty.com/

[12] http://www.constitutionparty.com/our-principles/platform-and-resolutions/

Constitutional Corner – Why Every American MUST Learn Their Constitution

Open as PDF

There are multiple reasons why every American should know their Constitution, and they are not hard to discern.  I open my Constitution Seminar with a discussion of ten such reasons.  One that usually gets a chuckle is when I say: “There are almost 20 Trillion reasons for knowing the Constitution,” which is to say that, if you needed no other motivation, our unsustainable national debt should provide sufficient interest.  There is a reason we have $20 Trillion in official debt, and it has nothing to do with the fact that the federal government spent more than it received in revenue, it is rooted directly in the Constitution and its current interpretation.

Another reason is suggested by the Preamble’s first three words:  “We the People.”

“What right had they to say, We, the people?… The people gave them no power to use their name,” boomed Patrick Henry on 4 June 1788 as the Virginia Ratifying Convention picked up steam.  Henry was right, of course:  “the people” weren’t asked if they subscribed to that opening, it was the brainchild of Gouverneur Morris, who really had no other practical choice.  But the words were used and the rest, as they say, is history.  Nevertheless, “We the People” conveys great import.  “Whose document is it,” I ask my students.  “Is it the President’s, the Congresses’, the Courts, or does it belong to each and every one of you – the People?”  Certainly something that is ours, something we established and ordained, something we have an ownership right to, as the Preamble suggests, should be known by all its owners, as intimately as we know any of our property.

In 1821, in the case of Cohens v. Virginia, Chief Justice John Marshall wrote: “The people made the Constitution, and the people can unmake it.  It is the creature of their will, and lives only by their will.”  This normally elicits surprise in my seminars.  The commonly held view is that the states drafted the document, that it represents a compact of the states.  Henry would certainly have wished it that way.  But Marshall was right, “the people” made the document.  By that he meant that, although the states, acting through their delegates in Philadelphia, drafted the Constitution, it was the people, acting through 13 ratifying conventions (14 if you count both of North Carolina’s) who “breathed life” into the document.  Before then it was mere words on parchment; the people made it a living document,[1] just as it is the signature of the testator which brings a will to life.  The Constitution is the people’s document, their property, and they should know what it says and means.

Future Federalist writer and first Chief Justice of the Supreme Court, John Jay, was asked to deliver a “charge” to the Grand Jury of Ulster County on 9 September 1777.  He said:  “Every member of the State ought diligently to read and to study the constitution of his country and teach the rising generation to be free.  By knowing their rights, they will sooner perceive when they are violated, and be the better prepared to defend and assert them.”   Mind you, this was ten years before the U.S. Constitution was drafted and four years before even the Articles of Confederation went into effect.   What “constitution of his country” was Jay speaking of?  The same one that Thomas Jefferson referred to in the Declaration of Independence.  Jefferson had written the previous year that “(King George III) has combined with (Parliament) to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:”  (Emphasis added)

By 1776, the American colonies operated under an unwritten constitution that had come together over the previous 157 years of self-government.[2]  The features of this constitution can be discerned by studying the complaints Jefferson makes in the middle of the Declaration: taxing only with consent of the people being one of those features.  But notice the reason John Jay gives for both reading and studying (two separate activities) the “constitution of (our) country:” you will then be equipped to teach the rising generation to be free.  “But isn’t this the job of the schools?” you ask.  Not according to Jay.  “Every member of the State” has this responsibility, not just professional teachers.  Frankly, I think parents are better equipped for this job than “professionals.”  Teaching the rising generation to know, defend and assert their rights is far more effective when taught from a personal than an institutional perspective.  We each have a unique story, a unique perspective to bring to this “classroom.”

I next point to Article 6 of the Constitution where the document self-proclaims to be the “Supreme Law of the Land.”  Since the “rule of law” is so critical to republican society, it behooves us to know what the Supreme Law of the Land contains.  The Founders knew well the importance of law.  In a 1794 essay published in the American Daily Advertiser, Alexander Hamilton writes: “If it be asked, What is the most sacred duty and the greatest source of our security in a Republic? The answer would be, an inviolable respect for the Constitution and Laws — the first growing out of the last. … A sacred respect for the constitutional law is the vital principle, the sustaining energy of a free government.”[3]  But is the Constitution “and the laws of the United States which shall be made in pursuance thereof” in fact the “Supreme Law of the Land?”  Not according to British jurist Sir William Blackstone, political philosopher Locke and others that the Founders knew well.  “This law of nature, being [co-existent] with mankind and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, … from this original.”  In Blackstone’s view, no civil law, no matter how “constitutional,” deserves our obedience if it is not in harmony with natural law.  As Blackstone makes clear, Natural Law is the true “Supreme Law of the Land.”

The very next clause of Article 6 provides more justification for knowing the Constitution: “The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution…”  I normally confess to my classes that when I took this oath as an Air Force officer I had only a vague notion of what I was agreeing to “support and defend.”  My bad.  I should have diligently studied what I was about to “support” and perhaps,  ultimately, lay my life down for.  Knowing the Constitution better would not have changed my decision to accept commissioning, but it would have definitely made me a better, more informed officer.  Many citizens have never been called upon to take such an oath, but many have and many more will in the future.

I next point to the apparent contradiction of the following two statements: in 1788, as James Madison tried to convince the Virginia Ratifying Convention to accept the document on behalf of the good people of the state, he fought desperately to counter the Anti-federalist argument that the Constitution gave the new central government too much power.   “[T]he powers of the federal government are enumerated; it can only operate in certain cases; it has legislative powers on defined and limited objects.”  Other Founders, in other conventions, echoed this view.  Yet in 2010, (former) Representative Peter Stark (D-CA) was asked in a Townhall meeting: “If [Congress] can [pass the Affordable Care Act with its individual mandate], what can’t they do?  His answer: “The federal government, yes, can do most anything in this country” was met with jeers and catcalls.  But Stark spoke the truth, today the federal government can indeed do most anything it desires.  You will understand how this view of a Constitution of limited and enumerated powers changed to one of near plenary power once you begin to study the document, including the 200+ years of Supreme Court decisions which followed.

I conclude my seminar discussion with this question: “How can someone make sense of today’s headlines without an understanding of the Constitution?”  “NSA eavesdropping program ruled unconstitutional” read the headline.  Was it?  Did the NSA’s bulk collection of raw phone numbers called from and to (not the content of each call) actually violate the meaning of the Constitution?  A federal court thought so, so that settles it, right?  Perhaps, if you believe that the Constitution’s interpretation by the courts is sacrosanct, infallible and immutable.  But there were well-informed constitution scholars who came down on both sides of this issue, so I don’t believe it is as clear cut as the headline’s sparse words reveal.  Don’t the owners of the document get a say?  How can they even form an opinion without first knowing the Constitution?

Our country has never been more fractured, more polarized than perhaps the War for Southern independence.  Voices on both the Left and the Right complain of an “out of control” government, one seemingly disconnected from the people it was designed to serve; and certainly our out-of-control debt provides evidence.  I’ve yet to meet a citizen who feels they consented to being placed in such economic bondage (or who agreed to place subsequent generations in such debt).

There is a constitutional reason we have such debt.  There is a constitutional reason for the opposing views of Representatives Madison and Stark.  There is a constitutional reason why we today have more than 4500 federal crimes when the original Constitution describes only four.[4] Do we really need a federal statute making it a federal crime to pretend to be a member of a 4-H Club, or to disrupt a rodeo?

We have lost our way as a people, we have lost our mooring, our anchor.  I don’t care how you characterize it, we no longer know what the Constitution says or means.  It wasn’t always this way in this country, but it is now – and it must be fixed.

When I began to consider holding classes on the Constitution, I naively thought I would be turning people away at the door, trying to keep the class size small and manageable – conducive to vibrant discussion.  Now it seems no one can be bothered to take time to learn their “Supreme Law of the Land.”  This does not bode well for a republic that must be “kept” by the exertions of the people.[5]  There are plenty of people today willing to shout and contend for their “rights.”  Yet sixty-four percent of those people can’t name all three branches of government.[6]

“Every government degenerates when trusted to the rulers of the people alone.  The people themselves, therefore, are its only safe depositories.  And to render even them safe, their minds must be improved …” wrote Thomas Jefferson in his Notes on the State of Virginia.  The American people need to improve their minds with a knowledge of their Constitution, and soon.

If you can’t make up your mind which reason cited above makes more sense for you, call me.

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

[1] No, I don’t believe in the “Living Constitution.”

[2] Measured from 1619 when Virginia convened the first representative government in the colonies.

[3] You’ll search in vain on Brainy Quotes™ for even a single quote on law from the Founders, apparently the views of the likes of Susan Rice and Julian Assange are far more important.  Founders’ quotes abound elsewhere.

[4] Counterfeiting, Piracy, Treason, and Bribery.

[5] Ben Franklin, 17 September 1787: “A republic, Madam, if you can keep it.”

[6] https://www.washingtonpost.com/blogs/govbeat/wp/2014/09/18/only-36-percent-of-americans-can-name-the-three-branches-of-government/

The Constitution’s Week in Review – 1 Apr 2016

In a startling announcement yesterday at the White House, President Barack Obama indicated he would step down from the office of President, effective  June 1, 2016.  Citing undisclosed “personal reasons,” the two-term President declared he and his family would re-locate to the Island of Maui and “kick back for awhile.”

Sources close to the President, who wished to remain anonymous, indicated that the growing controversy over Ted Cruz’ status as a Natural Born Citizen has renewed interest in whether the current President qualifies, leading some Congressmen to add this to a growing list of Articles of Impeachment.

In accordance with Article 2 of the Constitution, Vice-President Joe Biden will assume the office of President on that date and, in accordance with the 25th Amendment, is expected to nominate a replacement for the position of Vice President. (You started to believe it, right?)

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

Another week, another NBC suit.[1]  This time a New York appeals court upheld a lower court’s dismissal of a suit seeking to remove Republican presidential candidate Ted Cruz from the state’s primary ballot due to his birth status.  Once again, there was no ruling on the merits of the case; the lower court dismissal was on a technicality (plaintiffs missed the deadline for filing their objection by nearly three weeks!).  The appeals court said: “Yep, shore enough missed it, by jimminy!” (or the legal equivalent).  Other suits remain pending in other states.
Article 3. Replacing Scalia

As more and more analysts find time to sift through each of Merrick Garland’s previous opinions, more conclusions come to the fore.  This one[2] concludes that “In Criminal Rulings, Garland Has Usually Sided With Law Enforcement.”  That should all make us sleep better at night.

Shortly after the death of Justice Scalia, I discussed the potential impact of his vacancy, including the potential for 4-4 tie votes.  Well, it happened this week.[3]  We can be nearly certain that Scalia would have provided the fifth vote necessary to overturn the appeals court ruling that California teachers must still pay fees to their union even when those funds are then used to support candidates and political issues with which some teachers disagree.[4]

A 4-4 tie leaves intact the lower court decision and establishes no precedent for the rest of the country.  Chief Justice Roberts could have delayed the opinion until such time as Scalia’s seat is filled and had the case re-argued, but decided against that for some reason.

Meanwhile in the States:

Fifth Amendment.  “Progress” trundles on.  What city, including North Saint Louis,[5] wouldn’t like to improve its appearance and increase its tax revenue?  The opportunity for federal dollars makes the idea even more alluring.  Too bad some homeowners have the misfortune of living in the way of that “progress.”

The National Geospatial-Intelligence Agency is apparently thinking of moving it headquarters, and North St. Louis wants to make them a deal it can’t refuse.  Since no decision has been made to actually move the headquarters, the city’s eminent domain action seems a bit pre-mature.  And then there’s the issue of low-balling the value of the homes.  Thanks to the Supreme Court’s Kelo v. City of New London, cities require very little justification for the taking of private property.

Eighth Amendment.  The Eighth Amendment to the US Constitution prohibits excessive bail (among other protections). What’s excessive?  There have been many, many court decisions[6] over what is excessive, but each case brings particular circumstances.  Two Texas mothers driving through Louisiana had the misfortune of being charged with a crime they say they didn’t commit: eating two hot dogs, milkshakes and an icee at a convenience store without paying.  They were certain surveillance video would clear them but the officer who arrested them didn’t want to take the time to investigate, so he took them into custody.  When they couldn’t initially make bail (relatives were 400 miles away) the women had to spent five days in jail instead.  Reading this account one wonders what happened to common sense in this country.

Upcoming Events.

Constitution Seminar for Youth – 9 April.  Don’t you want your kids (or grandkids) to understand their Constitution better?  Here’s an opportunity.  On 9 April I’ll teach from  Juliette Turner’s “Our Constitution Rocks” at the Foundation for American Christian Education classroom in Chesapeake, VA.  There is a nominal $5 charge for students and parents are encouraged to attend as well.  Register through email to gary@constitutionleadership.org

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

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

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

[1] http://www.newsmax.com/Headline/cruz-canadian-birth-suit/2016/03/24/id/720759/

[2] http://mobile.nytimes.com/2016/03/23/us/politics/merrick-garland-supreme-court-nominee.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=second-column-region&region=top-news&WT.nav=top-news&_r=3&referer=

[3] http://us4.campaign-archive1.com/?u=f6eb78f457b7b82887b643445&id=8526f4c9bf&e=5fdac00100

[4] The teachers can opt out from paying these fees but must re-initiate the opt-out each year.

[5] http://dailysignal.com/2016/03/18/st-louis-residents-are-battling-the-city-to-keep-their-homes/?utm_source=heritagefoundation&utm_medium=email&utm_campaign=saturday&mkt_tok=3RkMMJWWfF9wsRonu6rPd%2B%2FhmjTEU5z16uwtWqS2gIkz2EFye%2BLIHETpodcMTcRhNL3YDBceEJhqyQJxPr3NLtQN191pRhLiDH3rhbLOWYxceLV9yOhlovn9jDc%3D

[6] https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases_involving_constitutional_criminal_procedure#Eighth_Amendment.27s_Excessive_Bail_Clause