Constitutional Corner – The War in the Courts

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

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

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

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

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

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

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

Which brings us to District Judge Mark A. Goldsmith.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Constitutional Corner – The Left’s War on Speech

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Here are my suggestions:

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

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

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

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

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

 

Constitutional Corner – Yes, Tear Down This Wall!

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Suggested reading List:

“Original Intent,” 2000, by David Barton.

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

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

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

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

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

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

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

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

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

[4] Runkel v. Winemuller (1799)

[5] The People v. Ruggles (1811)

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

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

Constitutional Corner – Sanctuary Cities and the Constitution

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[7] 8 U.S.C. § 1371(a).

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

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

[10] Article 4, Section 2.

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

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

[13] Numbers 35 (and other scriptures).

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

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

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

Constitutional Corner – Healthcare and the Constitution

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[2] https://www.ofa.us/its-no-accident/?email=gport%40aol.com&zip=23693&utm_medium=email&utm_source=obama&utm_content=2+-+httpsmyofausHealthCareIsARight&utm_campaign=em_x_aca_20170330_x_x_jl_remainder&source=em_x_aca_20170330_x_x_jl_remainder&refcode=em_x_aca_20170330_x_x_jl_remainder

[3] http://archive.lewrockwell.com/orig3/attarian7.html

[4] http://www.ncsl.org/documents/health/LegPowers.pdf

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

[6] http://www.investors.com/politics/commentary/medicare-and-medicaid-are-both-in-a-sickly-state-at-50/

[7] http://www.cbpp.org/research/health/medicare-is-not-bankrupt

[8] https://www.medicareadvocacy.org/fact-vs-fiction-medicare-is-not-going-bankrupt/

[9] https://www.rpc.senate.gov/policy-papers/medicare-remains-on-fast-track-to-bankruptcy-

[10] https://www.forbes.com/sites/aroy/2012/04/23/trustees-medicare-will-go-broke-in-2016-if-you-exclude-obamacares-double-counting/#237f21d83d00

[11] http://www.cnbc.com/id/100780248

[12] http://www.medicareforall.org/pages/Home

[13] http://www.washingtontimes.com/news/2016/oct/30/obamacares-implosion/

[14] https://www.thoughtco.com/reasons-obamacare-is-and-will-continue-to-be-a-failure-3303662

Constitutional Corner – The Right of Self Preservation

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In 1775, Alexander Hamilton wrote:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Founders took a similar view:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[2] Romans 2:15.

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

[4] Leviathan, xv, ¶40.

[5] Second Treatise on Government, Section 16.

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

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

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

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

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

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

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

[13] Luke 22:36.

[14] John 18:11.

[15] Annals of Congress, 8 June 1789.

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

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

[18] Ibid, p. 243.

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

[20] Levy, p. 242.

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

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

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

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

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

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

Constitutional Corner – The Right of Protest

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Constitution Corner – The Right of Conscience

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

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

So how do you describe the right of conscience?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

America, what a country!

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

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

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

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

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

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

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

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

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

No longer.

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

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

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

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

[2] Isaiah 30:21.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Constitution’s Week in Review – 16 July 16

Article 1 – The Legislature: Separation of Powers.

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

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

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

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

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

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

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

(D) without observance of procedure required by law;

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

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

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

the reviewing court.”

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

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

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

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

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

Article 2 – The Executive: The Candidates and the Constitution

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

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

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

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

Article 3 – The Judiciary

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

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

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

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

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

1st Amendment – Right of Conscience

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

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

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

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

2nd Amendment – Is it a Right for Everyone?

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

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

Recommendations and Events:

We The People – The Constitution Matters Radio Show.

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

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

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

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

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

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

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

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

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

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

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

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

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

Constitutional Corner – Impeaching Obama

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I’ll try to keep this short; I’ve written about impeaching the President in the past and there’s not much more to say about the matter.  But Barack Obama continues to press the boundaries of presidential powers, and, even though he is not going to be impeached, it is still important for you, indeed all Americans, to understand the process and the circumstances under which impeachment is appropriate.  Besides, lower officials can be impeached as well, and so when impeachable offenses occur at their level, we need to keep pressure on Congress to do its duty.

“[T]he president doesn’t have the authority to simply ignore Congress and say, we’re not going to enforce the laws…,” so said Barack Obama in January 2012.  That was then, this is now, apparently.  Just as Hillary was against homosexual marriage before she was for it, the President was against ignoring the Constitution before he was for it.

Before I launch into a discussion of why I think this president has earned impeachment let’s ensure you understand the landscape.

We begin with Article 2 Section 4, which reads:

“The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

Two facts of note here: impeachment and subsequent conviction can only result in removal from office, and “disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States,” no other penalty is available under the Constitution itself.  This does not prevent a separate prosecution in civil or criminal court if a statute law was violated.

Second, impeachment can only proceed under charges of treason, bribery or “other high Crimes and Misdemeanors.”  The meaning of treason is itself defined in the Constitution in Article 3, Section 3, but what constitutes “levying War against” the United States, “adhering to the Enemies” of the United States,” or “giving Aid and Comfort” to the enemies of the United States, leaves much to be interpreted.

Congress has impeached judges for bribery in the past and what constitutes bribery is reasonably straight forward.  In 1981, Congress impeached[1] Judge Alcee Hastings, sitting as a U.S. District Judge for the Southern District of Florida, and removed him from the bench (he had been acquitted in a criminal trial of accepting a $150,000 bribe in exchange for a defendant’s lenient sentence, among other charges).  Once off the bench, the citizens of Florida’s 23rd District amazingly sent Hastings to Congress as their Representative.  I’m not making this up!  How was Hastings able to hold the “high office” of Representative after being impeached?  Although disqualification can be a penalty of impeachment, it is not automatic, and the Senate did not so vote, so to Washington Hastings went.

But what in the world are “high Crimes and Misdemeanors?”  The Framers didn’t take the time to be more specific.  The phrase has a long history, going back to the 14th Century and it clearly has two components: crimes, that is, violations of criminal law by a high official are one aspect; and “misdemeanors” by a high official make up the other.  But what is a misdemeanor?  It is not the same as a misdemeanor under criminal law, this “term of art,” as it is considered, encompasses a very broad scope of misbehavior that does not result in actually breaking a law.

In 1868, President Andrew Johnson was impeached on eleven counts.  These ranged from dismissing the sitting Secretary of War, to conspiring to unlawfully prevent the old Secretary from continuing in office, to conspiring to “seize, take, and possess the property of the United States in the Department of War.”  The final charge against Johnson was “Making three speeches to the citizens of the U.S. with intent to show disrespect for the Congress.”  Wow!

If you examine the eleven charges carefully at becomes evident that most are just a restatement of a single affront: not doing what Congress had ordered in the Tenure of Office Act.  Johnson survived his trial in the Senate, and thus retained his office, by a single vote.  He had believed the Tenure of Office Act was an unconstitutional infringement on the powers of the President and had acted accordingly.  One more than 1/3 of the Senators agreed.

In 1974, impeachment articles were being prepared when Richard Nixon resigned the office.  There were three charges: obstruction of justice, abuse of power and contempt of Congress, all sparked by the President‘s involvement in the Watergate affair.  It was clear that the votes were present to convict him and when Senator Barry Goldwater brought this sad news to the White House, Nixon jumped on “Marine One” for the last time.  Nixon proclaimed his innocence until his death in 1994, but in a famous 1977 interview, he uttered one of the most amazing statements by any U.S. President: “When the President does it that means it isn’t illegal.”

In 1998, President Bill Clinton was impeached over the Monica Lewinsky Affair.  The charges: perjury before a grand jury, obstruction of justice, a second count of perjury concerning the Paula Jones case and abuse of power.  Only the first two charges passed in the House.  Clinton was acquitted of the two charges by 12 and 17 votes respectively.

From these examples we can see that lying under oath, obstructing justice and abusing the power of the Presidency have been the primary focus of impeachment in the past.  What has this president done that fits these criteria, and should other criteria be considered?

Proposed (and lengthy) articles of impeachment[2] can readily be found on several webpages.

Some complain of the President’s actions in trying to disarm the American people; in refusing to protect our borders and by refusing to deport illegal immigrants.  Others focus on his abuse of power in unleashing the IRS on conservative groups (and if you believe the IRS’s actions were merely the result of overzealous agents in Cincinnati, I have a bridge I’d like you to look at).

Some believe the President should be impeached for signing into law the Patient Protection and Affordable Care Act, an unconstitutional bill in several respects (despite the “opinion” in NIFB v. Sebelius).

I think the President’s most important power is one only obliquely  mentioned in Article 2: as Commander in Chief, the President is responsibe to keep the country safe from attack and/or invasion.   What is happening on our southern border is nothing less than an invasion; an invasion with a simple, political purpose: to fundamentally transform America by keeping Democrats in power.  The President has not only not carried out the will of the people as expressed in current law; the administration has even encouraged this invasion.

Although the President’s actions may not fit the legal definition of treason, in my view they come as close as one can without crossing that line.  Mexico is not formally our enemy and this is probably the only factor preventing the crossing of that line.  But it is clearly a violation of the President’s oath to preserve, protect and defend the Constitution, by placing party politics above our citizens’ security.

Connected to this, of course, is the President’s refusal to enforce an act of Congress by deporting those illegal immigrants who are caught.  Although I have not read the legislation in question myself, I’m reasonably confident you will not find the phrase “catch and release” on its pages.

So why hasn’t Barack Obama already been impeached?  In 2013, Representative Steve Stockman (R-TX) gave every member of Congress a copy of Aaron Klein’s book:  “Impeachable Offenses: The Case for Removing Barack Obama from Office.[3]  The response: crickets!

Obama hasn’t been and will not be impeached simply because the votes are not there to convict in the Senate.  “The votes weren’t there in 1998 and yet the House impeached Bill Clinton,” you may retort, and you would be right; but politics sits on ever shifting sands, and today’s Republicans in Congress apparently feel more harm than good will come from a failed impeachment.  Besides, polls show that 2/3 of Americans do not favor impeachment of this president.[4]

But what about other administration officials? For one, I think Eric Holder should have been impeached.  Instead, Congress was reportedly preparing[5] a contempt citation when Holder stepped down.  How about impeaching the IRS Commissioner for the continued harassment of conservative groups applying for non-profit status?

In Federalist 51, James Madison wrote: “A dependence on the people is no doubt the primary controul (sic) on the government.”  I concur.

It comes down, as I think it should, to the American people.  But rather than speaking with one voice, on this and other important issues, we speak with a multitude of different voices.  As I’ve written before: we have never been so fractured in this country — culturally, morally and politically — as we are today; thus we will continue to muddle along in this sort of “constitutional confusion.”

Americans must become educated about their Supreme Law of the land and begin exerting the sovereignty that originates in “We the People.”

“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.senate.gov/artandhistory/history/common/briefing/Impeachment_Hastings.htm

[2] http://www.impeachobamacampaign.com/articlesofimpeachment/

[3] http://www.amazon.com/Impeachable-Offenses-Removing-Barack-Office/dp/1938067193

[4] http://www.newsmax.com/Newsfront/CNN-Obama-Palin-impeachment/2014/07/25/id/584827/

[5] http://www.cbsnews.com/news/republicans-prepare-contempt-citation-against-eric-holder-over-fast-and-furious/