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/

Constitutional Corner – Secession

One headline reads: “Siskiyou County [California] supervisors vote to pursue seceding from state.”  Another reads: “Group calls for western Md. counties to secede.”  Yet another: “Northern Colorado Secession: Most In Favor Of 51st State At First Public Meeting.”  Finally: “What if Texas Really Does Secede?”

Headlines such as these seem to almost be a weekly occurrence these days.  Is America coming apart at the seams?  All this talk of secession, is it just that – talk?

Supporters attending a meeting of the Siskiyou County Board of Supervisors proposed the county form a new state — called “Jefferson” (cute!).  They would invite other counties in Northern California and Southern Oregon to join them.  “Many proposed laws are unconstitutional and deny us our God-given rights.”  “We … have this enormous bureaucracy of unelected officials making decisions for us” were some complaints.

This is not the first time California has seen such talk.  As recently as 2011, Riverside County officials discussed a proposal to secede and establish a new state called “South California.”

Back in Maryland, Republicans in the five western-most counties complain that their views are being ignored in the Democrat-controlled state.  Critics point out it would create “a pencil-necked nano-state that would be poorer, more rural, less educated and much whiter than the Free State as currently constituted.”  The reason for the friction?  Maryland Democrats gerrymandered the state’s congressional districts after the 2010 Census, setting up Republican incumbent Roscoe Bartlett, who had represented western Maryland for 20 years, to be defeated.  Of the state’s eight congressional districts, Republicans now control just one, on the Eastern Shore.  Isn’t democracy just great?  Not if you’re the lamb voting with the two wolves over what’s for dinner.

A couple of years ago, I mentioned the idea of secession to a friend of mine.  There had been some new rumblings down in Texas I seem to recall.  I said that the Constitution really doesn’t say that a State can’t secede it merely sets rules for new states joining the union.  His reply: “I think the Civil War settled that issue.”  He was speaking, of course, of “The War for Southern Independence” (if that doesn’t get me a kudo here, nothing will).  Is the issue really settled?  Maybe, maybe not.

Article 4, Section 3, Clause 1 of the Constitution states:

“New States may be admitted by the Congress into this Union; but no new States shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.”

These words didn’t prevent West Virginia from being formed within the jurisdiction of the state of Virginia.  As the Civil War loomed, the people of western Virginia rejected Richmond’s decision to secede from the Union.  They announced themselves as the legitimate government of Virginia and gave themselves permission to secede from the rest of the state, forming the State of West Virginia.  President Abraham Lincoln immediately recognized the new state; Congress took a little longer.  The Supreme Court cemented things in 1871 (in Virginia v. West Virginia).

So you can see that the Constitution doesn’t prevent the good folks of northern California or western Maryland forming a new State, they merely need “the consent of the legislatures of the States concerned as well as of the Congress.”  Good luck with that, in either instance.  But then, West Virginia didn’t need the consent of Virginia did they?

Historian Kenneth M. Stampp, in his book “The Imperiled Union,” maintains that it is impossible to say that secession is illegal because of the ambiguity of the original Constitution as to state sovereignty and the right of secession.  Before they ratified the proposed Constitution the thirteen states were sovereign entities, voluntarily confederated.  Did the states give up their full sovereignty in ratifying the Constitution?  Hardly!  So how much sovereignty did they give up, how much do they retain, and to what actions or “objects” (as Madison would say) does that sovereignty extend?  There’s the rub.

In the 1869 case of Texas v. White (note, this is after the Civil War), the Supreme Court suggested that the Constitution ordained the “perpetuity and indissolubility of the Union”. The court did allow some possibility of divisibility “through revolution, or through consent of the States.

In their 1788 letter of transmittal announcing ratification of the Constitution, Virginia’s convention made a veiled threat to a right of secession by stating that if the powers they were giving up to the new national government were ever “perverted to [the people of Virginia’s] injury or oppression” those powers would be “resumed by them.”   Most recently, Texas Governor Rick Perry suggested that Texas might consider secession (and then retracted the statement).  A 2008 Zogby International poll revealed that only 22% of Americans believe a state or region has the right to peaceably secede and become an independent republic.

In summary, it seems to be settled law that the Constitution does not permit unilateral secession: a state or group of states cannot simply leave the Union over the objections of the national government.  However, the arguments that led to this understanding are hardly beyond challenge: the Constitution is probably best read as permitting the mutually agreed upon departure of one or more states (or perhaps even the forming of “The State of Jefferson”).

© 2013 The Constitution Leadership Initiative, Inc.  This essay first appeared in the Yorktown Crier-Poquoson Post on 26 September 2013.  Reproduction for non-profit purposes is hereby given.

The Constitution’s Week in Review – 1 Apr 2016

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

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

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

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

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

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

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

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

Meanwhile in the States:

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

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

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

Upcoming Events.

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

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

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

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

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

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

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

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

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

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

Constitutional Corner – When Governments Take Your Taxes

Is there anything more American than a good tax protest?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[3] Matthew 22:17-21

[4] Romans 13:6-7

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

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

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

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

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

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

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

[12] Kentucky and Tennessee.

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

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

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

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

The Constitution’s Week in Review – 5 March 2016

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

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

Article 3. Replacing Scalia

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

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

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

Seventeenth Amendment

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

 Constituting America 90-Day Study

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

Upcoming Events.

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

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

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

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

Constitutional Corner – America’s Fundamental Principles: Economic Freedom.

Open as PDF

Our last entry in the fundamental principle “sweepstakes” is the principle of economic freedom. Economic freedom encompasses several sub-principles: the freedom to acquire and use property; the freedom to engage in economic activity, i.e. buying and selling; freedom of contract, and others.

Economic Freedom was very much a part of the overall call for liberty in the colonies; for more than a hundred years Parliament had been passing laws which made life more difficult for America’s merchants and indeed for most citizens, as certain goods become the subject of protective tariffs (protective of British merchants in England and the West Indies mostly) and thus more expensive.

Beginning with the Navigation Acts of 1630 and ending with the nefarious Townsend duties on glass, lead, paints, paper and tea in 1767, the colonies had become England’s “cash cow” and the colonists didn’t appreciate the status one bit. Duties, imposts and taxes all served to deprive the colonists of a portion of their property, and this without true representation in Parliament.

“Pennsylvania Farmer” John Dickinson put it this way: “[W]e cannot be free, without being secure in our property … we cannot be secure in our property, if, without our consent, others may, as by right, take it away …”[1]

Supreme Court Justice William Paterson expressed a similar view in 1795. “No man would become a member of a community, in which he could not enjoy the fruits of his honest labour and industry.”

The Declaration of Rights and Grievances of the Stamp Act Congress (October 19, 1765) complained of Parliament’s incessant imposition of duties and proclaimed that it was “unreasonable and inconsistent with the principles and spirit of the British constitution, for the people of Great Britain to grant to his majesty the property of the colonists.”

The Declaration and Resolves of the First Continental Congress (October 14, 1774) had stated the colonists were entitled to “life, liberty and property: and they have never ceded to any foreign power whatever, a right to dispose of either without their consent.”[2]

The Declaration of the Causes of Taking-up Arms of the Second Continental Congress stated the colonists had taken up arms for: “the protection of our property, acquired solely by the honest industry of our fore-fathers and ourselves, against violence actually offered.”

To top it off, several of the complaints Jefferson made in the Declaration of Independence sprang from economic arguments the colonists had been making for years.

A war of independence ensued — hazarding their “lives, fortunes and sacred honor” — all to protect economic and other freedoms.

The Freedom To Acquire And Use Property.

The private ownership of property was seen by the Founders as fundamental to the concept of ordered liberty and was among the rights most consistently stated by the Founders. It is perhaps best elucidated in the Virginia Declaration of Rights, which comprises Article 1 of the Virginia Constitution: “That all men are by nature equally free and independent and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.” Other state Constitutions contained similar provisions.[3]

Yet the Founders recognized that this view was not a permanent fixture of society; in his Defence of the Constitutions of Government of the United States, John Adams stated: “The moment the idea is admitted into society that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence. If ‘Thou shalt not covet’ and ‘Thou shalt not steal’ were not commandments of heaven, they must be made inviolable precepts in every society before it can be civilized or made free.”

Adams’ reference to the “commandments of heaven” reveals the source of this foundational truth: the Bible. If “Thou shalt not steal” does not equate to a right to own property, it has no meaning at all.

“The Bible offers 500 verses on prayer, less than 500 verses on faith, but more than 2,000 verses on money and possessions.”[4] Until the last century there was a traditional connection between economics and Christian thought, most notably found in the Summa Theologica of Thomas Aquinas and John Calvin’s Institutes of the Christian Religion, both of which contain whole sections devoted to economic questions.

Because man is created in the image of God, we are rational beings capable of choosing in a marketplace of competing products and services, including competing ideas. Because we are commanded to have dominion over the earth we can lay claim to property as a means of exerting that dominion.

Conversely, the Bible’s clear description of man’s sinful nature warns us, and government, to be on guard for selfishness, greed, and particularly, economic exploitation; thus we need to be wary of the concentration of power, whether in government or in private industry (i.e., monopoly).

From the Declaration, we know that the purpose of government is to secure our inalienable rights, so how does government go about doing so? How does government secure my right to acquire and possess property without infringing on the right of others to equally do so? And once I have acquired this property to what extent can government legitimately interfere with my right to enjoy it? To what extent can the government take my property for legitimate public purposes? The Founders and Framers wrestled with these questions, and more.

Take this simple test. Do I have the individual power to order my neighbor to not build a fence beyond a certain height? No, clearly I have no such power. So if government, including local government, obtains all its “just powers” from the “consent of the governed,” how in the world does my county government obtain the right to tell my neighbor or myself what height we can or cannot build a fence? How can I delegate to government a power I do not possess? Government’s power to control the use of property is often illegitimate.

Nevertheless, we find several legitimate protections of property in the Constitution:

First and foremost, the concept of a government limited to certain enumerated powers erects some protection, or did initially, over government illegitimately taking property through unjust means (this “wall” has taken some hits over the years).

Article 1, Section 8, Clause 8 granted Congress the power to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” This clause not only promoted “the progress of science,” it secured the intellectual property of the creator, at least for a specified timeframe. Notice that such protection was intended for “limited times;” some argue that today’s granting of copyright protection for “a term lasting for the author’s life plus an additional 70 years[5] establishes, in effect, a monopoly.

Elsewhere in Section 8 we find the power to “regulate Commerce with foreign Nations, and among the several States , and with the Indian Tribes ” (Clause 3); enact “uniform Laws on the subject of Bankruptcies” (Clause 4), to regulate the Value [of money], and … fix the Standard of Weights and Measures (Clause 5), punish counterfeiting (Clause 6), and punish “Piracies” (Clause 10); all these clauses provide Congress other opportunities to protect private property.

Taxes were to be uniform so as not to jeopardize anyone’s property unfairly: “A just security to property is not afforded by that government, under which unequal taxes oppress one species of property and reward another species.”[6]

Property was also protected (in the original Constitution, at least) through non-interference with contracts: “No State shall … pass any … Law impairing the Obligation of Contracts.[7]

Conversely, we also have the ominous 5th Amendment, which gives the federal government the right to take private property for “public use,” with “just compensation.”[8]

The Founders were not laissez-faire capitalists. First, because “capitalism” had only recently been introduced (though not by that name, that came later) through publication of Adam Smith’s Wealth of Nations,[9] but also because the Founders were still in the midst of abandoning the principles of British mercantilism, which Smith had argued should be replaced. Wealth of Nations was published in 1776, so by 1787 its arguments were still being absorbed.[10]

The Framers and Ratifiers saw a definite role for government in promoting trade and supporting the success of business, thus protecting the property of those businesses. Tariffs, imposts and excises were judiciously used in the years after the Constitution went into effect.

In “Founders: Property Rights, Free Markets, and Sound Money,” a well-written and comprehensive essay, Thomas G. West argues that while the Founders often had disagreements over the extent to which the government should influence the economy, they didn’t waver in their agreement on these three main points concerning private property: “the legal right to own and use property in land and other goods; the right to sell or give property to others on terms of one’s own choosing (market freedom); and government support of sound money.” Let’s examine West’s last point.

“Government Support of Sound Money.”

Thanks to inflation caused by the Federal Reserve’s money policy, a dollar today buys less than 5% of what a dollar did 100 years ago. Our money system works today only because most Americans are too ignorant to understand how they are being manipulated by the “money changers.”

The Founders’ experience with money demonstrates that there were times when principle gave way to pragmatism.   Specie money (i.e. coin) was often scarce due to a perpetual imbalance in trade — colonists imported far more than they sold overseas, not unlike our current situation.

According to the eminent historian Forrest McDonald, the bulk of the Founders’ reading was in histories. During the Constitutional Convention, the delegates made nearly 400 references to history to justify their positions.[11] This reliance on history provided them abundant examples of both good and bad money policy. They knew of the Roman practice of devaluing their coins by reducing their alloy and the Founders themselves had seen the pernicious effects of “clipping.” They knew that the Chinese originated paper currency in the eleventh century, with disastrous results. Yet like a moth to the flame, from 1690 onward, the colonists resorted to the issuance of paper money to satisfy the insatiable demand for currency.

One of the few wise acts of the British Parliament in the pre-revolutionary period was the 1751 passage of The Currency Act, which prohibited the New England colonies from printing paper money. During the Revolutionary War, however, the Confederation Congress, unable to raise necessary funds through voluntary state requisitions, had no recourse but to print fiat currency, leading to the phrase: “Not worth a Continental,” and Washington’s 1779 lament: “A wagon of money will not buy a wagon of goods.”

Despite this lesson, with their post-war economies in shambles, Massachusetts and other states (including Virginia) succumbed to the demands of their citizens and printed their own paper money, with the predicable effect on its value.

In January 1787, as he pondered whether to accept Virginia’s invitation to become part of its delegation at Philadelphia that May, George Washington summed up his view of fiat money in a letter to Jabez Bowen: “Paper money will invariably operate in the body of politics as spirit liquors on the human body. They prey on the vitals and ultimately destroy them. Paper money has had the effect in your state that it will ever have, to ruin commerce, oppress the honest, and open the door to every species of fraud and injustice.”[12]

Jefferson owned: “That paper money has some advantages, is admitted. But that its abuses also are inevitable, and, by breaking up the measure of value, makes a lottery of all private property, cannot be denied. Shall we ever be able to put a constitutional veto on it?”[13]

Does the Constitution permit paper currency? Some claim that the phrase to “coin money” in the Constitution’s Article 1, Section 8, prohibits Congress from ordering the printing of paper money at all. Others (and I share this view) believe the phrase should be (and was) interpreted as in “coining” a phrase. The Founders were certainly aware of this usage, as Webster’s Dictionary confirms, but during the Grand Convention they actually disapproved resolutions that would have given them the power to print money. Other resolutions, however, that would have overtly prohibited the power to print money were equally voted down. They denied the states the power to emit Bills of Credit and to declare anything but silver and gold to be legal tender. Robert Natelson sums the situation up by stating: “Congressional power to ‘coin money’ and to ‘regulate…foreign Coin’ included money forged in any medium, not merely metallic coin – a point repeatedly affirmed during the ratification debates.” [14]

Let’s consider one final feature of economic freedom:

Free Markets.

“The Constitution created the largest contiguous area of free trade in the world.”[15] Until the first Congress met, we might add.

While the Founders knew the value of economic liberty, they had differing views as to the role of government in achieving it. The contrasting views were no better exemplified than in Thomas Jefferson and Alexander Hamilton. Jefferson as Washington’s Secretary of State, and Hamilton, as Secretary of the Treasury, found themselves on opposite sides of the issue of whether the government should interfere in the economy.

“A wise and frugal Government,” said Jefferson, “which shall restrain men from injuring one another, shall leave them otherwise free to regulate their own pursuits of industry and improvement.”[16]

Hamilton argued that: “True liberty, by protecting the exertions of talent and industry, tends more powerfully than any other cause to augment the mass of national wealth,”[17] but the means to that liberty, in Hamilton’s mind, was a strong central government acting in the interests of commerce and industry.

Hamilton won.

After independence, while under the Articles of Confederation, states had often imposed tariffs on each other’s goods, disrupting the already fragile wartime economy further and eventually causing creation of the Constitution’s Commerce Clause. “Regulating Commerce” gave Congress considerable power, and they used it right off the block. “The federal government would exercise functions the colonists had conceded to London. The states would retain those functions the founders had claimed for the colonial assemblies.”[18] “Duties, Imposts and Excises” were soon imposed, while being careful to observe the Constitution’s requirement that they be “uniform throughout the United States.”[19]

The Tariff Act of 1789 imposed rates on different goods ranging from 5% to 50%. This “temporary” tax did what it was intended to do. The United States collected 80 to 95% of its revenue from foreign imports. Few complained.

While the United States has never enjoyed a completely free market, the economy was markedly less regulated during the Founding Period than today. Today, while we tout our economy as based on free-market capitalism, the truth reveals a highly regulated economy with few differences from those of European socialist countries. (By the way, the entrance of Socialist Senator Bernie Sanders into the 2016 presidential race has brought a much-needed conversation on socialism to the forefront.)

Richard Williams, writing in the The Fiscal Times,[20] argues we have neither capitalism nor socialism in the United States today but rather “regulism.” “Regulism is characterized not by the state owning firms but rather by the state making all of the key decisions for firms. The most obvious example includes firms that have been designated by regulators as “too big to fail.’” “In an economy that is based primarily on capitalism, when firms close, it’s because they aren’t efficient, they don’t keep costs under control or they fail to meet the needs of customers. But in an economy characterized by regulism, with the government making the key decisions, it’s just as likely caused by government decisions as by poor business practices… In socialism, when firms fail, everyone knows it’s the government’s fault because they run the business. In an economy run by regulators, no one ever knows if it’s the government’s fault. As long as government regulators escape scrutiny for their bad performance, they can continue to drive the economy into the ground with no one being the wiser.”

In “Over-regulated America – The home of laissez-faire is being suffocated by excessive and badly written regulation,” Forbes staff writers argue that “America needs a smarter approach to regulation.”[21] Over the last eight years, the U.S. has fallen from the 6th freest economy in the world to 11th place.[22] Forbes writer Bill Frezza estimates the annual cost of regulation in the U.S. to be about $1.8 Trillion. “Any regulation that is expected to cost over $100 million is supposed to get a cost-benefit analysis. Obama added $20 billion in new regulatory costs just last year. Every year there are over 3,500 new rules that come out of the federal government. … [H]ow many rules got a cost-benefit analysis last year? Fourteen!”[23]

How did we reach this over-regulated state? I lay the blame at the feet of Congress, exacerbated by the Supreme Court’s sanction of Congress’ delegation of legislative power.[24]

For our first 100+ years Americans enjoyed the greatest amount of economic freedom of any nation on earth. It was never truly a free market, but the closest thing to it. Abundant resources, the avoidance of crippling wars, and a people intent on using the talents God had given them, lead us to rise to the pinnacle of world power and prestige. Today, however, the federal government smothers business large and small in needless and costly regulations, takes a large portion of our economic property in taxes to re-distribute to others, imposes onerous environmental regulations on our property, saddles succeeding generations with unimaginable debt, and wastes $25 Billion annually on frivolous projects (see: Solyndra). Unless we recapture the spirit of economic freedom in this country, and address our other defects, I fear America is headed for a fall of Biblical proportions.

We will be discussing this topic on “We the People, The Constitution Matters” on WFYL radio Friday morning, 26 February, 7-8am. You can “Listen Live” at www.1180wfyl.com, or, if you are fortunate enough to live in the station’s broadcast area, on the radio as you drive to work that morning.

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

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

[1] “A Warning to the Colonies,” in The Political Writings of John Dickinson, Esq. 1804.

[2] Notice the labeling of Parliament as a “foreign power.”

[3] Pennsylvania, 1776, Art. 1; Vermont, 1777, Art. 1; Massachusetts, 1780, Art. 1; New Hampshire, 1784, Art. 2; Delaware, 1792, Preamble. found in The Federal and State Constitutions, ed. Francis Newton Thorpe

(Washington: U.S. Government Printing Office, 1909).

[4] http://www.preachingtoday.com/illustrations/1996/december/410.html.

[5] For anonymous works the term is “95 years from first publication or 120 years from creation.”

[6] James Madison, Essay on Property, 1792.

[7] Article 1, Section 10, Clause 1. This protection is no longer in effect; in 1934, the Supreme Court upheld a Minnesota law that temporarily restricted the ability of mortgage holders to foreclose on their mortgages. The Court found the law to be a valid exercise of the state’s Police Power. It explained that the temporary nature of the contract modification and the emergency caused by the Great Depression, justified the law.

[8] The 2005 case of Kelo v. City of New London so broadened the meaning of “public use” as to render it essentially meaningless.

[9] Long title: An Inquiry into the Nature and Causes of the Wealth of Nations.

[10] In 1790, Jefferson wrote in a letter to Thomas Mann Randolph stating: “… in political economy I think Smith’s wealth of nations the best book extant …”

[11] Forrest McDonald, A Founding Father’s Library.

[12] Letter to Jabez Bowen, January 9, 1787.

[13] Letter to Dr. Josephus B. Stuart, May 10, 1817.

[14] Robert Natelson, The Original Constitution, What It Actually Said and Meant, 3rd Edition, 2014, p. 112.

[15] Forrest McDonald, The Founding Fathers and the Economic Order, found at: http://oll.libertyfund.org/pages/forrest-mcdonald-the-founding-fathers-and-the-economic-order

[16] Thomas Jefferson, First Inaugural Address, 1801.

[17] Defense of the Funding System,” July 1795.

[18] Natelson, p. 112.

[19] Article 1, Section 8, Clause 1.

[20] Found at: http://www.thefiscaltimes.com/2015/10/15/Capitalism-vs-Socialism-Why-Both-Clinton-and-Sanders-Are-Wrong

[21] http://www.economist.com/node/21547789

[22] http://www.cnsnews.com/commentary/anthony-b-kim/us-falls-sixth-freest-economy-world-eleventh-obama-took-office

[23] http://www.forbes.com/sites/billfrezza/2014/05/02/how-to-ease-the-crushing-costs-of-federal-regulations/#4eea68744d75

[24] Mistretta v. United States :: 488 U.S. 361 (1989)

 

The Constitution’s Week in Review – 5 Feb 16

Article 2. Natural Born Citizen Clause.

As I’ve said before, this one’s not going away anytime soon, and until there is a permanent resolution, I’ll continue to report developments.

Lost in the news of Ted Cruz’ victory in Iowa was the fact that he also received a favorable decision from the Illinois Board of Elections, which confirmed his U.S. citizenship met the state’s primary ballot requirements. The Board announced:

“The Candidate is a natural born citizen by virtue of being born in Canada to his mother who was a U.S. citizen at the time of his birth,” he “did not have to take any steps or go through a naturalization process at some point after birth.”

I hesitate to point out that the Board of Elections is not the Supreme Court; nevertheless, a small victory for Cruz, but certainly not the definitive opinion he will eventually need.

Article 3.

“The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Article 3, Section 1, Clause 1.

As we all know, the Constitution itself only created a single court, the Supreme Court; but it also authorized Congress to establish a system of inferior courts, which they began to do in 1789. The Judiciary Act of 1789 was followed by others over the years and gradually the court system expanded and took form. Today there are 94 District Courts across the U.S., with at least one district court in each state, as well as the District of Columbia. The 94 federal judicial districts are organized into 11 regional circuits, each with a court of appeals (plus one each for the District of Columbia and a Federal Circuit makes 13 Courts of Appeals).   Due to the appointment of liberal federal judges by certain liberal Presidents (with confirmation by the Senate, of course) some Courts of Appeal have tended to reflect decidedly liberal viewpoints, particularly the 9th Circuit Court of Appeals. The eight states which make up the 9th Circuit run the gamut of liberal (ex: California, Oregon) to conservative (ex: Arizona, Alaska). Arizona, tired of unfavorable rulings from the 9th Circuit judges, wants out, and is preparing to petition the Congress to create a 12th regional circuit consisting of Nevada, Arizona, Montana, Idaho, and Alaska. As this article points out, 78% of the 9th Circuit’s decisions have been overturned on appeal to the Supreme Court; not a very good track record. You would think the 9th Circuit judges would realize they are out of touch with the Supreme Court, if not mainstream America; but no, I suspect they are unconcerned. Good luck, Arizona!

Speaking of judicial nominations, after not answering questions about abortion the way some on the Senate Judiciary Committee were hoping they would, two of Obama’s nominations to federal judge positions failed to secure an up vote from the Committee (in the picture, that’s Senator Mike Lee of Utah over Senator Chuck Grassley’s left shoulder, you’ll hear about him in a moment). Good on Senator Grassley for applying some pressure, what little can be brought to bear.

I don’t consider myself a “court watcher,” but I’m glad we have people who do pay close attention to what the court is doing. Alliance Defending Freedom is one such group (there are others, of course) and they have put together a list of five important cases the Supreme Court has agreed to take up this term. Several religious freedom cases, a freedom of conscience case and one on abortion should make for an interesting term.

1st Amendment.

Free Speech. When I report on a controversy I like to then keep people abreast of subsequent developments. I’ve reported more than once on the continuing saga of Bob Wilson, one of Central Radio’s owners in Norfolk VA. What began as an eminent domain fight morphed into a free speech fight (I reported on both aspects) when Norfolk City Council objected to the way Central radio was protesting their actions (Central erected a 375-square-foot sign on the side of their building). Victory came this week in a 3-0 decision in the U.S. Fourth Circuit Court of Appeals (remember those 13 Circuits?) which decided that Norfolk’s sign ordinance discriminated based on content (content which it obviously found embarrassing) and that is an abridgement of free speech.  Occasionally the good guys win one.

Freedom of Religion. Our public schools never cease to amaze me. Naiveté concerning Islam is hard to excuse these days, so I can only believe this teacher had his students recite the words of the shahada in order to pull them surreptitiously into the religion of Islam.   When a student balked at reciting this religious oath she was failed, and the parents sued.

What made the school district’s actions most egregious was their blatant attempt to deceive the parents through use of near-duplicate history books, “one of which contained the Islamic teachings and which students were required to leave at school,…[t]he other, which did not contain the teachings, was allowed to be taken home,” as the article explains. “The school also excised the Islamic teachings from the course syllabus.” Amazing.

Do you monitor the textbooks of your public school student? You should, but it also looks like you need to ask your kid whether certain materials have been restricted from parental view.

2nd Amendment.

Two items to discuss. Virginia’s Attorney General Mark Herring, the same man who refused to defend Virginia’s Constitutional prohibition of homosexual marriage, shocked everyone in December by announcing that Virginia would no longer grant reciprocity to 25 other states’ concealed carry permits, meaning the citizens of those states would have to leave their weapons at home if traveling in or through Virginia. Herring had found a “loophole” in a statue passed by the Virginia Assembly, and with Governor Terry Mcauliffe looking for some way to repay Michael Bloomberg for the millions in anti-gun money Bloomberg had spent to try to flip the Virginia Assembly into Democrat hands (unsuccessfully as it turned out, the Assembly stayed Republican) it appeared to be the best that Mcauliffe could do.

The Virginia Assembly Republicans sprang into action and came up with a compromise that will restore CHP reciprocity in exchange for the addition of totally-voluntary background checks for private sellers at gun shows (there are some other details in the deal, such as persons subject to a permanent domestic violence protection order will be prohibited from possessing firearms until the order expires). The Virginia State Police will now be required to set up a booth at all gun shows and run the checks for any seller who requests them. The infamous “gun-show loophole” has been closed (with voluntary compliance).

This next item tripped my cow-pie detector (check out the article’s headline). Barack Obama obviously couldn’t be so naïve to think an Executive Order limiting Americans to three guns would remain unopposed. But it appeared to come from ABC News (but check the URL carefully), a reputable if not reliable news source, so I investigated and found the claims to be –– totally bogus, a deliberate hoax. Back to whatever you were doing, folks. But don’t relax, if the President thought he could get away with such restrictions through Executive Order, they would already be in place.

4th Amendment.

We’ve all heard it: “Congress is a bunch of crooks, they’re all scoundrels with no respect for the Constitution.” Not true, by any stretch. I divide Congressmen into three groups: Patriots, The Nice People But Uninformed, and, yes, The Scoundrels. Senator Mike Lee of Utah is the Patriot’s Patriot. Not only is his book “Our Lost Constitution” a must-read, he fights tirelessly to champion individual liberty. Lee is promoting Senate Bill 356, also known as the Electronic Communications Privacy Amendments Act, a provision of which would require government officials to get a warrant or court order before they access private citizen emails, just as they currently do to search our snail mail or enter our homes. If you like this idea, perhaps a call or email of support to your senator would be in order. Almost makes me want to move to Utah just to be able to call this guy my Senator. Lee is certainly a better Senator than either of mine.
The Administrative State. Ever heard of the Lacey Act? Few have. Ask Gibson Guitars about this act and you’ll get an earful (it didn’t help that Gibson was a Republican donor while their chief competitor, Fender Guitars, donated primarily to Democrat candidates).

We have a company headquartered nearby, Lumber Liquidators, which markets and installs hardwood flooring. Various wood varieties are normally available, both domestic and foreign-grown.

Lumber Liquidators was convicted of violating the Lacey Act by importing Mongolian oak that had been farmed from an area in eastern Russia that serves as the last known wild habitat of Siberian tigers. Who knew? I’m sure Lumber Liquidators didn’t, nor should they have had to ask.

Thanks to the Lacey Act, it is no longer safe to just meet a foreign supplier, find out what they offer, and make your order. You now have to investigate, on your own dime, where and how the supplier obtained his products and whether any foreign or international laws were transgressed in the process. If you wonder why your foreign product is so expensive, perhaps there is a link to the army of lawyers and investigators a company must pay to become expert in the laws of every country in which they do business.

Yes, Lumber Liquidators’ antenna should have gone up when their supplier provided “Mongolian oak” ostensibly sourced in “Germany.”

Who looks for violations of the Lacey Act? I’d start with the Rhinoceros and Tiger Conservation Fund and the National Fish and Wildlife Foundation, who stand to benefit richly from this conviction.

Reforming Government. We’ve heard the sad refrain all too often: “No one in Washington cares about what is happening to the country.” Well, now we learn there is someone, several actually, who care – deeply about our broken government; and they aim to do something about it. I encourage you to listen to this entire video discussing the Article 1 Project. You will be encouraged.

Upcoming Events

Constitutional Conversations – 8 February. For my local subscribers, the next “Constitutional Conversations” will be coming up at 7pm on Monday, 8 February, at Christopher Newport College, Newport News, VA (Freeman Center Room 201). The topic: “Freedom of Speech.” Nowhere is Freedom of Speech more imperiled today than on college campuses, thus I hope for a good turnout and a lively discussion. Hope to see you there.

Lessons in Liberty – 15 February. For those both local and not, on Monday, 15 February you will have a wonderful opportunity to hear Pastor David Whitney, Senior Instructor at the Institute on the Constitution, speak on the subject: “The Most Powerful Vote You Will Ever Cast – Your Vote As A Juror.” The presentation will be held at the Foundation for American Christian Education classroom but will also be Livestreamed to anywhere you happen to be. Cost to attend, either locally or via Livestream is a whopping $10. Most Americans know little to nothing of the real power of a jury, and judges have a vested interest in seeing it stay that way. You should become informed in case you are ever called to serve. Go to www.face.net to register.

Constitution Seminar – 26 March. Mark your calendars; I’ll be holding a Constitution Seminar on Saturday, 26 March from 9am to 6pm, here in York County, VA. Space will be limited. Cost is $30 per adult, which gets you a 150-page student workbook, pocket Constitution, box lunch and a whole lot of Constitutional knowledge. Reserve your spot by sending me an email or calling.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A tentative list of contents would include:

Chapter 1: The principle of one nation under god

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

Chapter 3: The principle that all men are created equal

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

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

Chapter 6: The principles of republicanism & limited government

Chapter 7: The principle of constitutionalism

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

Chapter 9: The principles of abolishing and reforming government

Chapter 10: The principles of capitalism and free markets

Chapter 11: (TBD)

Chapter 12: Where Do We Go From Here?

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

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

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

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

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

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

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

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

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

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