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

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

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

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

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

In begins with these words:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The proposed Amendment read:

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

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

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

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

Fast forward to the present.

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

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

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

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

Everyone still with me? Pretty exciting stuff, eh?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“… it is the duty of all nations to acknowledge the providence of Almighty God, to obey His will, to be grateful for His benefits, and humbly to implore His protection and favor …”[13]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[3] Ibid.

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

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

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

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

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

[9] 1 Corinthians 10:31 NIV

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

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

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

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

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

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

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

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

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

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

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

Constitution Corner – The 17th Amendment Should Be Repealed

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Constitution’s Week in Review – 2 July 16

Happy Birthday America!

Most people associate July 4th with our nation’s “birth” (the day was declared a national holiday after all), overlooking the fact (or perhaps they’ve never been taught) that it was two days earlier, on July 2nd, when the Continental Congress actually voted to pass Virginia’s resolution calling for independence.  Writing the next day to Abigail, John Adams gushed:

“The Second Day of July 1776 will be the most memorable Epocha, in the History of America.  I am apt to believe that it will be celebrated by succeeding generations as the great anniversary festival.  It ought to be commemorated as the day of deliverance, by solemn acts of devotion to God Almighty.  It ought to be solemnized with Pomp and Parade, with Shews, Games, Sports, Guns, Bells, Bonfires, and Illuminations from one End of this Continent to the other from this Time forward forever more.”

The day after Adams wrote those words, the draft of the Declaration was “wordsmithed” and finally approved, leading to our national holiday being recognized on that day instead.  The story of the passing of Lee’s resolution is full of drama and intrigue.  Enjoy the read.[1]

While it is fitting and proper to wish the nation a “happy birthday,” it is also fitting and proper to note the precarious situation the country finds itself in.  Immense challenges: economic, cultural and constitutional, threaten our future prosperity and freedoms.

Take time to celebrate – and then get back to work reversing the wounding of our great nation that has taken place over the last eight years.

Article 3 – The Judiciary

Showing us in vivid detail the value of term limits for federal judges, Judge Richard Posner of the 7th Circuit declared study of the original Constitution to be a complete waste of time,[2] at least for judges: “I see absolutely no value to a judge of spending decades, years, months, weeks, day, hours, minutes, or seconds studying the Constitution, the history of its enactment, its amendments, and its implementation,” waxed the jurist, who was appointed to the bench in 1981 by President Ronald Reagan (who probably regrets the appointment).   I agree in part with the judge, however.  The Supreme Court has indeed turned the Constitution into a system of common law, judge-made law, departing from the idea of a fixed standard of law, to be modified only by “amendment in the way which the Constitution designates.”[3]

The judge’s amazing statement joins a host of equally controversial ones in the past that make it unlikely (in the eyes of some at least) that the judge would ever be nominated to the Supreme Court.  Condemning Justice Antonin Scalia for making politically charged public statements[4] while doing the same hardly enlarges one’s credibility.  So, since Congress seems unwilling to propose a term limits amendment, even one focused exclusively on jurists, and since the Article V Convention project is still being rabidly fought by some on the Right, it appears unlikely that we will ever have access to a mechanism for removing jurists whose opinions make them unsuitable for continued service.  Oh well.

1st Amendment – Right of Conscience

As I’ve hinted numerous times in these pages, if you want a chance to express your right of conscience, you best do it soon – the right may not be around much longer.

If you care to let your conscience peek out on the campus of the University of Northern Colorado, at least in some non-politically correct way, you might find yourself the subject of an inquisition by the “Bias Response Team.”[5]  At the moment, the teams seems content to merely point out apparently unperceived “bias” (translation: anything the Left does not believe in); but how long will it be before an unfavorable ruling by the “bias police” results in disciplinary action or worse for some unlucky college student?

In related news, the Mississippi state legislature’s attempt to provide some protection to their citizens to act within the limits of their conscience came screeching to a halt as  a U.S. District Judge ruled[6] that Mississippi’s House Bill 1523,[7] violated the U.S. Constitution.  The Bill was an attempt to pushback against last year’s Obergefell v. Hodges decision legalizing homosexual “marriage.”  LGBT groups applauded the ruling.

Hopefully, the ruling will be appealed but at the moment that is not certain.

So the question remains: is there any aspect of Christian faith/Christian conscience which should be allowed to inform your public actions?  What do you think?

2nd Amendment – Never Let a Shooting Go To Waste

Sensing a change in the mood of the American public over whether persons on the government’s “no-fly” list should be allowed to purchase guns, Congressional Democrats are preparing to turn their “sit-in demonstration” into a road-show.  If you are comfortable with people who find themselves, for whatever reason, on a secret government list being denied the ability to purchase a gun, than go about your business, nothing to see here.  I see potential problems.

 Recommendations and Events:

Constitution Seminars.  I have no Constitution Seminars scheduled at the moment.  If you have a group of 10 or more individuals within a day’s drive of Yorktown, Virginia, and would like one presented, let me know via email to: gary@constitutionleadership.org.   Keep in mind that I’ll be unavailable from 1 August to 18 September.

Lessons in Liberty.  On Monday, July 11, from 7:00-9:00 p.m. EDT, The Foundation for American Christian Education’s Lessons in Liberty series will welcome Jim Wallis, who will speak on the topic: Was Jesus a Socialist?  You can attend in the FACE classroom in Chesapeake, Virginia, or live online via Livestream.

This lecture explores the divergence of both Christianity and the Jewish people from their covenantal, Hebrew roots. And will take on a related questions such as, “Was the early church communal in the modern Marxist sense?” and “How about the Moses/Joshua Hebrew model, was it a republic or a theocracy?”

The cost to attend, either in the classroom or online, is $10.  Register at http://www.face.net/.

On Friday, 8 July, we’ll begin a new feature on “We the People, the Constitution Matters” that I will call, for lack of a better term: Constitutional Tennis.  Just after the break at the midpoint of each show, one of our three commentators will pose a question about the Constitution, to be answered by any caller who knows the answer.  The first caller to answer the question correctly will be allowed, in turn, to pose a question of their own to any of our commentators.  If the question can’t be answered on the spot that commentator will be assigned the task of researching and answering the question at the start of the following week’s show.  “Team Listener” will get a point for each correctly answered question and “Team Scholar” will get a point for each on-the-spot question answered correctly.  We’ll announce the running point total each week.

You can listen to “We the People, the Constitution Matters” at www.1180wfyl.com each Friday from 7-8am EDT.  The recorded show is also re-broadcast each Saturday at 11am and Sunday at 2pm.

On 8 July, we’ll resume our continuing discussion of the principles of the Declaration of Independence by examining the principle that a “long train of abuses and usurpations, pursuing invariably the same Object evince[ing] a design to reduce them under absolute Despotism” is a necessary precondition for a people to legitimately change their form of government.   We will also contrast what comprised that “long train” in 1776, with what we are experiencing today.  It should be an interesting comparison.

[1] http://udspace.udel.edu/bitstream/handle/19716/4467/article3.pdf;jsessionid=6CF19E9A57FD05120A914311C63B1D7C?sequence=1

[2] http://www.americanthinker.com/blog/2016/06/has_richard_posner_committed_an_impeachable_offence.html

[3] George Washington, Farewell Address, 1796.

[4] http://abcnews.go.com/Politics/OTUS/supreme-court-justice-antonin-scalias-political-outbursts/story?id=16694778

[5] http://www.gopusa.com/?p=11819?omhide=true

[6] https://mississippitoday.org/2016/06/30/federal-judge-strikes-down-house-bill-1523/

[7] http://billstatus.ls.state.ms.us/documents/2016/html/HB/1500-1599/HB1523SG.htm

Constitutional Corner – When Governments Take Your Taxes

Is there anything more American than a good tax protest?

From the Boston “Tea Party” on 16 December 1773, to the nine other colonial “tea parties” which followed it,[1] to the 1794 Whiskey Rebellion, to the 1828 “Tariff of Abominations, to the 2009 protests which gave birth to the modern Tea Party movement, Americans have repeatedly and vividly demonstrated their love affair with tax protests.

Last week we examined the constitutionality of eminent domain as a means governments have of taking your property and the restrictions placed on that power by the Takings Clause of the Fifth Amendment; today we will examine the more “traditional” method governments use to extract your wealth, your property: taxes.

Let’s be clear; as long as there is to be government, a government which provides legitimate, Constitutional services and which keeps its citizens safe from attack, that government requires revenue. “Money is the nerve – the life and soul of a government.”[2]

Conservatives, particularly Tea Party types, are often unfairly accused of rejecting the whole concept of taxes.  I don’t think anyone disputes the necessity of taxes, or the futility of trying to completely avoid them.  In a 1789 letter to Jean-Baptiste Leroy, Benjamin Franklin wrote: “Our new Constitution is now established, and has an appearance that promises permanency; but in this world nothing can be said to be certain, except death and taxes.

Taxes, in some form or another, are unavoidable if we are to have a functioning government.  The dispute lays principally in what is the proper level of taxation, i.e. how much revenue does government actually need to perform its constitutional duties, what form of taxes will it employ, and how and from whom are these taxes to be collected?   One final concern is expressed in Thomas Jefferson’s view in the Virginia Statute of Religious Freedom that: “To compel a man to furnish contributions of money [i.e. taxes] for the propagation of opinions which he disbelieves and abhors, is sinful and tyrannical.”

We should note that, under the Constitution, taxes are only one means our government has to raise revenue; they can set the value of money so as to make a profit on its creation, they can sell stamps at a profit, and, as we will see shortly, in Article 1, Section 8, Clause 1 they can also set duties, imposts and excises on imports and other goods, which were the primary means the federal government used to fund its activities up until the Civil War.

The Bible contains guidance on both the administration of as well as the payment of taxes. Exodus 30: 11-15 provides for a “half a shekel” capitation tax on everyone 20 years or older. This was not a progressive tax; it was a “flat tax” (in today’s parlance).  Verse 15 states: “The rich shall not give more and the poor shall not give less than half a shekel.”  Ezekiel 46:18 condemns the idea of an inheritance tax, such as we have today.  Both Jesus[3] and Paul[4] supported the idea of paying justly due taxes.

Today’s federal government is bloated with unconstitutional agencies, functions and services, requiring a level of taxation that many Americans find objectionable. Why should anyone have to work until “Tax Freedom Day”[5] before they are truly working for themselves?

The U.S. has nearly the highest corporate tax in the world;[6] the highest among the 34 nations that make up the Organization for Economic Co-operation and Development.  In 1952, the U.S. personal income tax rate reached a high of 92% (back down to 35% today).  Unfortunately, our current level of progressive taxation does not provide the revenue that Congress has appropriated to be spent (that is a separate story), requiring the government to borrow vast sums, unimaginable sums, which will likely never be repaid.  Furthermore, due to the great number of Americans who pay no income taxes and receive services nevertheless, many today see the taxation system as a wealth re-distribution system in disguise, taking from the “rich” to give to the “poor.”

In the colonial period, taxes imposed by the British Parliament without the accompanying representation of the colonies in Parliament, were of course one of the main reasons, but not the only reason for the colonies seeking independence; “Imposing Taxes on us without our Consent” was only one of twenty-nine complaints Jefferson listed in the Declaration.

The inability of the Articles of Confederation Congress to tax the states (they could only ask for “contributions”), and the hardship this imposed on the war effort, led to the several provisions we have today in the body of the Constitution dealing with taxes (ignoring the 16th Amendment for the moment).  These include (emphasis added):

Article 1 Section 8, Clause 1, which states: “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.”

Article 1, Section 9, Clauses 1, 4 and 5 state: “The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.

No Tax or Duty shall be laid on Articles exported from any State.”

Let’s discuss these provisions one at a time.  The clear reading of Section 8, Clause 1 shows taxes were intended to be simply a revenue-raising mechanism; and the revenue thus raised to only be used to “pay the debts and provide for the common Defence and general Welfare of the United States.”  Over the years, the Supreme Court, in addition to corrupting the original meaning of “general Welfare,” also relaxed previous rulings that taxes should be used solely for raising revenue.  Although the idea of using taxes to discourage consumption was discussed at the 1787 Convention,[7] in 1937 (Steward Machine Co. v. Davis), the Court allowed taxes whose sole purpose was to “encourage” states to adopt laws for funding the unemployment compensation feature of Social Security.  In 2012’s infamous Obamacare case (National Federation of Independent Business v Sebelius), Chief Justice John Roberts allowed the individual mandate’s non-compliance penalty to be sustained as a tax, a “tax” clearly designed to “encourage” people to purchase health insurance and punish those who do not.

Section 9, Clause 1 allowed a tax not exceeding $10 to be assessed on imported slaves even though the slave trade itself could not be prohibited for twenty years — which it was, the moment Congress was free to do so.

Clause 4 requires that a capitation (literally, a tax on each person) or otherwise direct tax on individuals can only be assessed against the states if it is proportioned with respect to the population in each state.  If Virginia had 15% of the total U.S. population they would be required to come up what amounted to 15% of the total tax to be collected.  This is somewhat analogous to the requisition-scheme during the Articles of Confederation period where the amount asked of each state was related to the land values in that state.

Clause 5 prohibits Congress from levying any tax or duty on goods exported from a State.

And then we come to the 16th Amendment.  For long periods of our nation’s history, “no citizen saw a tax collector of the United States unless that citizen was in the business of importing foreign goods.”[8] Until the onset of the Civil War, the federal government obtained most of the revenue it needed from tariffs on imports (one reason the “Tariff of Abomination” became such an issue).  Tariff income was insufficient to fight a war, however.  To pay for the cost of the Civil War, Congress passed the Revenue Act of 1861. It consisted of a flat tax of 3% on annual incomes above $800 ($22,200 in today’s dollars). The following year, the Revenue Act of 1862 substituted a graduated tax of 3–5% on income above $600.  The 1862 act expired in 1866 and the government was back to tariffs, imposts and excises.

Various interest groups advocated re-adoption of an income tax in 1887 and 1892.[9] The Income Tax Act of 1894 (aka the Wilson-Gorman Tariff of 1894) imposed income taxes on any “gains, profits and incomes” in excess of $4,000 (taxed at 2%).  The following year, in Pollock v. Farmers’ Loan & Trust Company,[10] the Supreme Court ruled that unapportioned income taxes, like those in the 1894 statute, were, in effect, direct taxes, and were unconstitutional because of the requirement that all direct taxes be apportioned.

And there things stood until 1909: Congress could not raise revenue by taxing income, it would take a Constitutional Amendment.

On June 16, 1909, President William Howard Taft addressed Congress and proposed a 2% federal income tax on corporations by way of an excise tax (remember that).  He also proposed a constitutional amendment to implement his idea.  Less than a month later, on July 12, 1909, Congress passed a resolution proposing the Sixteenth Amendment and submitted the amendment to the states for ratification.  On February 25, 1913, Secretary of State Philander Knox proclaimed that the amendment had been ratified by the required three-fourths of the states.  Had it?  That is the subject of The Law That Never Was, which you can buy in book form or find around the web in abridged form.

The book’s author, Bill Benson, contends that the 16th Amendment was never legally ratified.  He claims:

Seven states[11] did not ratify the amendment, and this fact was reported accurately.

Two states[12] did not ratify the amendment, but Secretary of State Philander Knox reported that they did.

Eight states[13] were reported by Secretary Knox as having ratified the amendment, but the States actually have missing or incomplete records of the ratification procedures or votes, and there is no conclusive record that they ratified the amendment or reported any ratification to the Secretary of State.

Six states[14] did approve the amendment, but the Governor or another official who was required by their respective state constitutions to sign the legislation into law did not sign the legislation.

In twenty-five states[15] the legislature violated a provision of its state constitution during the ratification process.

Twenty-nine states[16] violated their state law or procedural rules during the ratification process.

Unfortunately, the Supreme Court has been unwilling to accept the argument that the Amendment was not properly ratified; the many people who have taken this argument into court have lost every time.  Since the Constitution is silent as to what constitutes a proper amendment ratification, the Court has said the issue sits with Congress, and Congress accepted the certifications of Secretary of State Knox, discrepancies and all.  Case closed, at least on this issue.

There is another issue surrounding the 16th Amendment however: the commonly held belief that the 16th Amendment requires everyone to pay taxes on their income “from whatever source derived.”  First we should note that the 16th Amendment, by itself, did not make taxing anything lawful, Congress still needed to pass statute law setting up a tax structure.

And that’s where things get interesting.  Peter Eric Hendrickson has studied carefully what Congress actually passed in our tax code and he contends, in “Cracking the Code- The Fascinating Truth About Taxation In America,” that the vast majority of Americans have been dutifully paying taxes on “income” that they shouldn’t have.  Unfortunately, no one in the government is going to say: “You’re doing it wrong,” they are more than happy to have the “contributions.”   I’m not going to try to explain all the reasoning behind Hendrickson’s claims, because I confess to not understanding all of it myself.  But this document and Hendrickson’s book are worth the read (I’ve read the book).  The author sums his whole argument by stating:  “As written, the ‘income tax’ remains a proper excise, and as such, doesn’t apply to the earnings of most Americans.”  Read the book and decide for yourself.

Moving on; nearly everyone agrees that our current tax code (whether the 16th Amendment is being interpreted correctly or not) is a complete disaster and in need of reform.  At 60,000 pages it is obviously too complex, written in language that only a tax accountant or lawyer can understand, and contains so many loopholes that many corporations and individuals alike pay no tax whatsoever.  There have been near non-stop attempts by the Congress to reform the tax code – both the Senate and House have committees at work year round – without any meaningful reform emerging.  The reason for this lack of progress is clear: no one wants to give up their hard-fought-for tax advantage.

In his superb book: “By the People, Rebuilding Liberty Without Permission,” Charles Murry shows why we are unlikely to ever completely abandon our present tax structure in favor of a Flat Tax or Fair Tax (the two main contenders to replace the current system — here’s a comparison of them): “institutional sclerosis.”  Institutional sclerosis results in advanced democracies like ours (don’t shoot me, I know we have a republic, not a democracy, I’m using Murray’s terminology) becoming unable to make significant changes due to “the dynamics of collective action.”  These dynamics are easy to illustrate but beyond the scope of this essay.  Suffice it to say that, despite widespread agreement that the tax system is “broken,” the present system nevertheless contains some feature or another, some deduction, some benefit, that each of us will fight to retain, be it the home mortgage deduction, or the educational deduction, or the charitable deduction, or whatever. (I’ll have more to say about Murray’s book in a later essay – it is a book every American should read.  Get a head start by buying or borrowing a copy now.)

On tomorrow’s “We the People” radio show we’ll be discussing our current tax fiasco and we will devote the second half of the show to an analysis of both the Flat Tax and Fair Tax proposals (as we understand them).  I encourage you to call in to tell us what you think Congress should do.  You may also use this simple survey to tell us what should be done (note: only one response per computer is allowed).

Of course, nothing’s going to happen until sufficient Americans are willing to communicate with their Congressmen and women and demand the system be fixed.  I guarantee Congress will act once enough people demand they act.

[1] See Ten Tea Parties; Patriotic Protests That History Forgot, by Joseph Cummins, Quirk Books, Philadelphia, 2010.

[2] Edmund Randolph, 7 June 1788, at the Virginia Ratifying Convention.

[3] Matthew 22:17-21

[4] Romans 13:6-7

[5] Defined as “the day when the nation as a whole has earned enough money to pay its total tax bill for the year,” April 24th this year.

[6] The third highest general top marginal corporate income tax rate in the world at 39.1 percent, exceeded only by Chad and the United Arab Emirates.

[7] The Original Constitution, What it Actually Said and Meant, by Robert Natelson, Tenth Amendment Center, 2011, p. 88.

[8] http://www.thenewamerican.com/culture/history/item/14268-before-the-income-tax

[9] The Socialist Labor Party in 1887, and the Populist Party in 1892.

[10] Pollock v. Farmers’ Loan & Trust Company, 157 U.S. 429 (1895).

[11] Connecticut, Florida, Oregon, Pennsylvania, Rhode Island, Utah, Virginia.

[12] Kentucky and Tennessee.

[13] Delaware, Michigan, Nevada, New Hampshire, South Dakota, Tennessee, Vermont and Wyoming.

[14] Idaho, Iowa, Kentucky, Minnesota, Missouri, Washington.

[15] Arizona, Arkansas, California, Colorado, Georgia, Idaho, Illinois, Kansas, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Mississippi, Missouri, Montana, New Jersey, New Mexico, North Dakota, Tennessee, Texas, Vermont, Washington, West Virginia and Wyoming.

[16] Arizona, Arkansas, California, Colorado, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Maryland, Massachusetts, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Jersey, New Mexico, New York, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Vermont, West Virginia and Wyoming.

Constitutional Corner – Educating America

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

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

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

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

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

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

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

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

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

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

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

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

Constitutional Corner – America’s Fundamental Principles: Start the Conversation.

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“Let [the Constitution] be taught in schools, in seminaries, and in colleges, let it be written in primers, in spelling books and in almanacs, let it be preached from the pulpit, proclaimed in legislative halls, and enforced in courts of justice. And, in short, let it become the political religion of the nation.” – Abraham Lincoln

I must confess up-front that I put off the writing of this essay until the last moment. Since the middle of last November we’ve been writing and speaking about America’s fundamental principles, those principles imbedded in our Constitution and Declaration of Independence that, combined, have made America the greatest, most powerful nation in the world. What facilitated that national success has been the unparalleled freedom that America’s citizens have enjoyed; freedom to venture, to try, to fail, and to try again; freedom to do these things with a conscience equally free.

Now it came time to discuss how to make these principles once again part of our national dialogue. That they are not, at least not with much regularity, is evidenced by the following quote from Democracy in America, by Alexis de Tocqueville. In 1830, Tocqueville observed:

“If you question [an American] respecting his own country … he will inform you what his rights are and by what means he exercises them…. You will find that he is familiar with the mechanism of the laws…. The American learns to know the laws by participating in the act of legislation…. The great work of society is ever going on before his eyes, and, as it were, under his hands. In the United States, politics are the end and aim of education.”

This is clearly no longer the case in America of 2016. The average American struggles to name the three branches of his government, let alone how they function, or should function. Nevertheless, most young Americans can talk endlessly about popular culture, describing the lives of their favorite celebrities in intimate detail. Their fathers can often cite years of sports statistics and talk of their favorite teams equally endlessly. But talk of fundamental principles of freedom? Outside an occasional Tea Party meeting, you’ll not hear much talk on that subject.

In my view, the chief culprit in this obvious decline in awareness of the precepts of liberty is our public education system. There are certainly great, dedicated teachers in that system, but all too frequently we see reports of absolutely bone-headed reactions to “pop-tarts chewed into the shape of a gun,” US Flag T-shirts, blatant Islamic and socialistic indoctrination, etc. The system as a whole has earned our scrutiny. Despite Standards of Learning which require the teaching of what used to be known as civics, high school graduates appear, in poll after poll, video after video, to know nothing of these principles. Once again, in the 1830s:

“… every citizen is taught…the history of his country, and the leading features of its Constitution. … it is extremely rare to find a man imperfectly acquainted with all these things, and a person wholly ignorant of them is sort of a phenomenon.” Today, to encounter someone “wholly ignorant” of these principles is the standard, and to find someone conversant in them is “sort of a phenomenon.”

I’ll venture that if you catch a student today coming out of their AP Government class they might be able to cogently discuss these topics, but catch them a month after graduation and the results will be quite different.

Today we’ve lost sight of the principles that have made us great. They are still imbedded in our structure of government, but that structure is slowly being changed in such a way that the principles are becoming obscured. They are dying by what the Chinese would call: “death by a thousand cuts.” When Orwell’s 1984 so famously missed its prediction everyone went on about their business. But we continue to move in that direction, if somewhat slower than Orwell predicted.

“Although all men are born free, slavery has been the general lot of the human race. Ignorant – they have been cheated; asleep – they have been surprised; divided – the yoke has been forced upon them. But what is the lesson? …the people ought to be enlightened, to be awakened, to be united, that after establishing a government they should watch over it…. It is universally admitted that a well-instructed people alone can be permanently free.”

James Madison warns us that we should “watch over” our government and, by implication, the principles of freedom it secures. Franklin warned us that the republic required “keeping.” Weren’t they saying the same thing?

The principles are there, but they must be acknowledged, reinforced, refreshed, and transmitted to new generations. Our freedom simply cannot be preserved any other way.

But there’s the rub – how do we start a discussion of these principles in the national dialogue? Such a dialogue is not going on at the moment, and needs to.

It’s my own fault; I chose the topic, but soon realized what a monumental challenge this will be.

A few things stand out at first blush: such a dialogue can’t be forced – it can’t involve the force of law. You may force a high school student to memorize a few dates and other facts long enough to pass a test, perhaps you can even help him or her to see the long term value of this knowledge; but you cannot force a student (or adult) to internalize or embrace these principles of freedom. That must come willingly and freely, i.e. voluntarily. And this process will be much easier if parents, on whom God places the primary responsibility for the education of their children, would set the stage for understanding these principles at an early age. It can be done.

Second, you’re going to need a patron, a patron who is also a patriot. Any effort to establish a national dialogue, on any topic, will have to involve the national media in all its various forms, and this will take money – lots of it. There are only so many Public Service Announcements these folks are willing to play for free.

People are unlikely to want to get together to just talk, aimlessly, even on such important topics, so there should be something to help facilitate discussion, and standardize it a bit.

Thus the idea: a book with accompanying Study/Discussion Guide. We’ll call it: “Start the Discussion: America’s Fundamental Principles.” Each of the 12-13 chapters (fits in a typical Sunday School cycle) will be devoted to the discussion of a separate fundamental principle. The book will transmit the core knowledge on that principle and the Study Guide will be used to facilitate discussion and include space for people to take notes.

A tentative list of contents would include:

Chapter 1: The principle of one nation under god

Chapter 2: The principle of self-government (including the principle of virtue)

Chapter 3: The principle that all men are created equal

Chapter 4: The principle of inalienable rights: life, liberty & property

Chapter 5: The principle of political power derived from the people

Chapter 6: The principles of republicanism & limited government

Chapter 7: The principle of constitutionalism

Chapter 8: The principle of the rule of law (including natural law)

Chapter 9: The principles of abolishing and reforming government

Chapter 10: The principles of capitalism and free markets

Chapter 11: (TBD)

Chapter 12: Where Do We Go From Here?

Maybe a kids’ version with a colonial period hero and his dog, no?

As the book nears its publishing date there will need to be a promotional project to get it into the public’s eye: interviews on radio/TV, videos which explain its importance, celebrity endorsements, etc.

If we can time the release to coincide with an election year, it might receive some attention in candidate debates, which would be great, and would gel nicely with the books purpose. For those too timid to lead live discussion, there could be a DVD series that takes the students through the highlights of each chapter and poses questions for discussion.

Just think of the effect if we could get large groups of adults and students holding these discussions across the nation. The President comes on TV, perhaps at a White House news conference, and explains how important this dialogue is to the nation’s future.

The book’s authors are presented the Presidential Medal of Freedom and feted at the annual awards banquet in Washington, D.C.

At about this point I wake up from my dream and realize how grandiose this project really is and how resource-less is my organization. Nice idea though.

Beyond this I have no earthly idea what it will take to get people to start talking about the principles of freedom and liberty; perhaps a national calamity is necessary. Yes, that normally brings us together as Americans, but at great initial cost.

We will be discussing this topic on “We the People, The Constitution Matters” on WFYL radio Friday morning, 5 February, 7-8am. You can “Listen Live” at www.1180wfyl.com, or, if you are fortunate enough to live in the station’s broadcast area, on the radio as you drive to work that morning. I’m lead to believe that at least one of my co-commentators has a somewhat radical idea to propose.

You can later download the podcast of the show and listen at your leisure, or you can listen to one of the rebroadcasts during the weekend. I would love to hear your ideas on this topic, including your critique of “Start the Conversation.” Hope you’ll join us.

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