Constitutional Corner: Natural Law Today – A Question of Rights

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We hold these truths to be sacred and undeniable (as Jefferson wrote in his first draft of the Declaration), that all men are created equal, that they are endowed (i.e., gifted/supplied/blessed) by their Creator (that would be God) with certain unalienable (i.e., non-transferable/inherent/innate/implicit) rights, among which are (at least the right to) life, (the right to enjoy) liberty, and (the freedom to pursue) happiness.

Webster’s 1828 dictionary tells us truth is “Conformity to fact or reality; exact accordance with that which is, or has been, or shall be.”  Sacred meant “Entitled to reverence; venerable, inviolable.” Undeniable? That speaks for itself.

The Supreme Court in 1897 called Mr. Jefferson’s little 1300-word essay “the thought and spirit of our government,” relegating the Constitution itself to merely the “body and letter” of our government.[1]  I (and others) contend that the Constitution can only be rightly understood and interpreted in the illumination provided by the Declaration.

But let’s not take Jefferson’s view on the matter; it is, after all, rather sparse. You might prefer Alexander Hamilton’s more expansive view:

Good and wise men, in all ages, … have supposed that the deity, from the relations we stand in to himself and to each other, has constituted an eternal and immutable law, which is indispensably obligatory upon all mankind, prior to any human institution whatever. This is what is called the law of nature … Upon this law depend the natural rights of mankind: the Supreme Being gave existence to man, together with the means of preserving and beatifying that existence. He endowed him with rational faculties, by the help of which, to discern and pursue such things, as were consistent with his duty and interest, and invested him with an inviolable right to personal liberty, and personal safety … 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.”[2]

Too verbose? Something more succinct? Perhaps that of John Adams:

“You have rights antecedent to all earthly governments; rights that cannot be repealed or restrained by human laws; rights derived from the Great Legislator of the Universe.”[3]

Declaration of Independence and Constitution signer, and drafter of the Articles of Confederation, John Dickinson, put it this way:

“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.”[4]

Or perhaps from Jefferson’s Notes on the State of Virginia:

“[C]an the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties (i.e. rights) are the gift of God? That they are not to be violated but with his wrath? Indeed I tremble for my country when I reflect that God is just: that his justice cannot sleep for ever.”[5]

The Founders who proclaimed their belief in natural law/natural rights are too numerous to list.  As Chester Antieau writes in an essay entitled Natural Rights and the Founding Fathers – The Virginians, “It would be amazing if any Revolutionary leader of the Commonwealth could be found who did not subscribe to the doctrines of natural law and right.  Moreover, the doctrine was widely held and continually expressed by the popular assemblages throughout the Commonwealth during Revolutionary days.”[6]

As Thomas West argues in his new book The Political Theory of the American Founding: Natural Rights, Public Policy, and the Moral Conditions of Freedom, “the founders shared a ‘theoretically coherent understanding’ of politics rooted in natural rights philosophy.”

So is this essay about law or rights?  Both; law begets rights and natural law begets natural, unalienable rights. The Founders understood this, nearly to a man.

As Jefferson would write late in life, the thoughts he expressed in the Declaration were nothing more than the “harmonizing sentiments of the day…an expression of the American mind.”[7]

The dual concepts of natural law and natural rights were not discovered by the Founders, these ideas had been expounded upon for millennia. Plato (427–347 B.C.), Aristotle (384–322 B.C.), Cicero (106–43 B.C.), St Thomas Aquinas (1225 – 1274), William of Ockham (1280–1349), Richard Hooker (1554–1600), Hugo Grotius (1583-1645), Thomas Hobbes (1588–1679) and Matthew Hale (1609-1676), all these men contributed to natural law thought long before John Locke (1632 –1704) — upon whom Jefferson largely relied — took up his pen. Frenchman Baron de Montesquieu (1689–1755) and Swiss thinker Emmerich de Vattel (1714-1767) later added to the assembled wisdom. The Founders studied them all.

But another set of “enlightened” political philosophers: David Hume, Jean-Jacques Rousseau, Immanuel Kant and others, were hard at work during this same timeframe dismantling the classical-traditional view of natural rights. These philosophers of the Enlightenment (who inspired the bloody French Revolution) rejected God as the author of the Natural Law, or at least diminished His significance, and elevated human reason, the “general will” that was found in legislative majorities, to the pinnacle of authority. The Enlightenment philosophers, in the words of noted historian Carl Lotus Becker, “deified nature and denatured God. Since Nature was now the new God, source of all wisdom and righteousness, it was to Nature that the eighteenth century looked for guidance, from Nature that it expected to receive the tablets of the law; and it was just as necessary now as ever for the mind of the rational creature to share in the mind of this new God, in order that his conduct, including the ‘positive laws of particular states,’ might conform to the universal purpose.”[8]

But the Founders rejected this notion. For them, natural law was “antecedent to all earthly governments,” it preceded even the creation of man; and it gave rise to natural, unalienable rights. Around that concept they built our government.

They agreed with Sir William Blackstone (1723-1780), who wrote in his Commentaries on the Laws of England, published in America in 1771:[9]

This will of [man’s] maker is called the law of nature. For as God, when he created matter, and endued it with a principle of mobility, established certain rules for the…direction of that motion; so, when he created man, and endued him with freewill to conduct himself in all parts of life, he laid down certain immutable laws of human nature, whereby that freewill is in some degree regulated and restrained, and gave him also the faculty of reason to discover the purport of those laws….Such among others are these principles: that we should live honestly, should hurt nobody, and should render to every one his due.”[10]

Ergo, Jefferson’s “Laws of nature and Nature’s God” which gave the colonists the right to “assume among the powers of the earth, the separate and equal station” to which they felt entitled.

But was natural law enough? Was Blackstone’s “faculty of reason” sufficient “to discover the purport of those laws?”

Blackstone himself conceded it was not. He added:

“[D]ivine providence… in compassion to the frailty, the imperfection, and the blindness of human reason, hath been pleased, at sundry times and in diverse manners, to discover and enforce its laws by an immediate and direct revelation. The doctrines thus delivered we call the revealed or divine law, and they are to be found only in the holy scriptures.”

Which leads us to the Law of Moses, i.e. the Ten Commandments.

When God inscribed: “Thou shalt not murder” on a block of stone it became “revealed or divine law,” in Blackstone’s view, and this particular commandment enshrined a right to the preservation of one’s life. “Thou shalt not steal” affirmed a right to retain property, “Thou shalt not bear false witness against thy neighbor” affirmed a right to receive honest testimony.

But did the Israelites or even we today really need an inscription in stone to confirm that murder and lying are wrong, that human life should be preserved? When Cain slew Abel, 1500 years before Moses delivered the two tablets, did Cain really need God to personally come and tell him he had violated natural law? Abel’s blood is said to have cried out from the very ground upon which it had poured. Cain needed no reminder of the gravity of his action, as Romans 2:15 reminds us, the natural law was written on his heart, as it is ours.  But due to the “frailty” of our ability to naturally discover the natural law purely through reason, some key features had to be revealed to us.

And this was the view of the Founders.

But as we all “know,” Jefferson and the others of his time were writing in what is today considered “Founders’-speak,” a “dead language” consigned to the “dustbin of history” along with Koine Greek and Babylonian, the language of an “unenlightened age” where men had only recently cast off the geocentric theory of the solar system and still owned slaves. Or so the critics of natural rights theory would have us believe.

Today we know better, they say. “There is no god and there is no soul. Hence, there is no need for the props of traditional religion. With dogma and creed excluded, then immutable truth is dead and buried. There is no room for fixed and natural law or permanent moral absolutes,”[11] wrote Father of the modern public school, John Dewey.

Despite these attacks, the idea of natural law and unalienable rights still persisted.  In his January 1961 Inaugural Address, John F. Kennedy reminded us that:

“The world is very different now. [M]an holds in his mortal hands the power to abolish all forms of human poverty and all forms of human life. And yet the same revolutionary beliefs for which our forebears fought are still at issue around the globe—the belief that the rights of man come not from the generosity of the state, but from the hand of God.”

Two years after Kennedy’s inaugural speech, Dr. Martin Luther King Jr. wrote in his famous “Letter from a Birmingham Jail:” “We have waited for more than 340 years for our … God-given rights,… To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law.” As we will see, Dr. King is merely reciting Blackstone.

Though he did not live to enjoy the final fruits, King’s movement achieved its long-awaited goal: unjust laws were repealed and God-given rights restored. Why? Because the rights they sought were grounded in natural, immutable law — they were unalienable.

In 1991, when Clarence Thomas was nominated to replace Thurgood Marshall on the Supreme Court, the New York Times noted that Thomas was “the first Supreme Court nominee in 50 years to maintain that natural law should be readily consulted in constitutional interpretation.”

His confirmation hearing put natural law back in the spotlight, with Joe Biden calling it a “dangerous” view.

For more recent evidence of this “enlightened” view we can turn to noted “political philosopher” (and lawyer) Chris Cuomo of CNN, who proclaimed recently: “Our rights do not come from God, your honor (he told Alabama Chief Justice Roy Moore), and you know that. They come from man… Our laws come from collective agreement and compromise.”[12]

Did you notice Cuomo’s slight-of-hand there? He begins his statement speaking of rights and ends up talking about laws. At least he sees the connection; but since in Cuomo’s world (and many today join him in so thinking) there is no such thing as natural law, there is no such thing as a natural right. If a civil, man-made law doesn’t create a right, the right simply does not exist. Cuomo’s thinking is a natural outgrowth of the Enlightenment.

Instead of natural rights we have substituted, ala Cuomo, rights created by civil law. The rights mentioned in the Bill of Rights have become a “gift” of the Constitution. As proof: for the last ten years at least, the Whitehouse website proudly proclaims: “The 2nd Amendment gives citizens the right to bear arms.

Now, to be fair, we must admit that civil law can indeed create rights, I would call these civil rights, although that term is also sometimes used to describe natural rights.  But there certainly are rights created by the consent of the governed. If we are honest we will also acknowledge that “what the government giveth, the government can taketh away.”  Civil, man-made rights, are clearly alienable; here today and perhaps gone tomorrow.  Rights bestowed by those representating the “will of the majority.”

If there is no natural law, as Thomas Aquinas put it in Summa Theologiae,, “Whatever the Prince wills, is the law.”

But let’s approach that idea with caution.  As James Madison warned: “In Republics, the great danger is, that the majority may not sufficiently respect the rights of the minority.“ Madison called the Declarations of Rights of his time, “Parchment Barriers,” which had been violated “by overbearing majorities in every State” whenever they were “opposed to a popular current.”

If our rights are nothing more than an expression of civil law, then one moment it can be: “You have a right to life,” and the following moment it can be “We’ll decide whether life-prolonging medical care will be provided you.” One year it can be “you have a right to property” the next “you have a right to retain some portion of your property.” Your rights become whatever a majority in Congress deem important at that moment, they are neither enduring nor immutable. This is wonderful as long as your view of what’s important happens to align with that of the majority; but what if you find yourself in the minority?  What then?

So where has been the legal profession in all this?

Many, if not most lawyers of the founding period, and there were about 30 of them in the Constitutional Convention, held to Blackstone’s view.  They were called “Blackstone Men” if they did so. There were more copies of Blackstone’s Commentaries sold in America than in England.

But I would contend that most lawyers today, if asked, would not subscribe to Blackstone’s view of the law. Our nation’s law schools and a British import, legal positivism, are to blame.[13]

Enter English jurist and philosopher, Jeremy Bentham (1748 – 1832).  Bentham, a contemporary of some of the Founders,[14] is generally regarded as the founder of the British legal positivist movement. Bentham’s “fundamental axiom” was: “It is the greatest happiness of the greatest number that is the measure of right and wrong.” In other words, morality, and the rights attendant to it, is determined by majority rule.

The tenets of legal positivism include:

  • There are no divine absolutes in law, or if there are, they are irrelevant to a modern legal system.
  • Law is constructed – not discovered or revealed.
  • Law evolves as man evolves.
  • Judges guide the evolution of law through their decisions.
  • To study law the scientific way, go to the original sources, i.e., the decisions of judges.

Christopher Columbus Langdell, Dean of Harvard Law School, having studied in England with Bentham’s acolytes, is credited with bringing legal positivism to American law schools. From Harvard, it quickly spread.  Today’s law schools, with a few exceptions, teach natural law in their History of Law course.  It is certainly not studied as a living, breathing part of contemporary law.

A final point: is there a relationship between natural law and civil law. We heard Dr. King insist that “An unjust law is a human law that is not rooted in eternal law and natural law.”  Sounds a lot like Blackstone, who wrote: “This law of nature…is of course superior to any other…. No human laws are of any validity, if contrary to this: and such of them as are valid derive all their force…from this original.”[15]

Let that last point sink in:  No man-made law is valid unless it comports with natural law.  And since natural law and revealed law have the same “adorable source,”[16] it follows that no man-made law is valid if it contradicts revealed law found in the Bible in any way.  What does this imply about “laws” which allow for the killing of the unborn?

Like the rest of God’s creation, natural law and natural rights remain with us, in the background perhaps, waiting to be rediscovered and returned to their rightful place of prominence in our society.

If you are content to have your rights decided by a vote of the majority, to have the majority decide whether you may speak freely, whether or not you can assemble or associate, whether you may follow your conscience, then there is nothing further to do. That is the path our society is on. But if you prefer to have natural rights, as determined by the Creator of the Universe, the One who brought mankind into existence, the One whose image we bear, then there is work to do.

And here are the “marching orders,” not from a Founding Father, but a Founding Mother. In 1805, Mercy Otis Warren, sister of the great patriot James Otis, Jr., wrote: “It is necessary for every American, with becoming energy to endeavor to stop the dissemination of principles evidently destructive of the cause for which they have bled. It must be the combined virtue of the rulers and of the people to do this, and to rescue and save their civil and religious rights from the outstretched arm of tyranny, which may appear under any mode or form of government.”  Translated from “Founder-speak” this means we must stop teaching or otherwise promoting a false view of natural rights and natural law.

That is our charge today, the charge to every freedom-loving American: to stop the dissemination of principles, wherever they are found being promoted, that are destructive of the cause for which the Founders bled, the preservation of their rights as Englishmen.

Does natural law exist today?  It’s really a question of rights.[17]

 

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[1] GULF, C. & S. F. R. CO. v. ELLIS ,  165 U.S. 150 (1897)

[2] The Farmer Refuted, February 23, 1775

[3] A Dissertation on the Canon and Feudal Law, 1765

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

[5] Notes on the State of Virginia, Query 18, 1781

[6] http://scholarlycommons.law.wlu.edu/cgi/viewcontent.cgi?article=3506&context=wlulr

[7] Letter to Richard Henry Lee, 1825

[8] Carl Lotus Becker, The Declaration of Independence, A Study in the History of Political Ideas, p. 51.

[9] More copies of Blackstone’s Commentaries were sold in the American colonies than in the rest of the British Empire.

[10] Commentaries on the Laws of England, Introduction, Section the Second

[11] John Dewey, “Soul-Searching,” Teacher Magazine, September 1933, p. 33

[12] http://www.cnsnews.com/blog/curtis-kalin/cnn-anchor-our-rights-do-not-come-god

[13] https://en.wikipedia.org/wiki/Legal_positivism.

[14] Bentham died only three years after James Madison.

[15] Commentaries on the Laws of England, Book 1, Chapter 2

[16]The law of nature and the law of revelation are both Divine: they flow, though in different channels, from the same adorable source. It is indeed preposterous to separate them from each other.” Declaration of Independence and Constitution signer James Wilson, Law of Nature, 1804.

[17] For further reading on this subject I recommend two books: “Written on the Heart” by J. Budziszewski, and “Retrieving the Natural Law” by J. Daryl Charles.

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

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

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

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

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

In begins with these words:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Constitutional Corner – “With a Firm Reliance on the Protection of Divine Providence”

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On “We the People – The Constitution Matters,” my Friday morning radio show on WFYL AM1180 radio, we’ve been picking apart and discussing each of the principles of government we find imbedded in the Declaration of Independence.  It has been a wonderful, rewarding project.  We studied each and every principle we discovered, whether part of Jefferson’s original thoughts or a result of the final “wordsmithing” by the Congress.  These foundational principles are easy to discern, and it is equally easy to see their importance to the success of republican government.  On the other hand, it has been quite disconcerting to realize the extent to which we have departed from these principles and, as we look around the American landscape today, to see the results of doing so.

These many principles of government, principles that even define our human existence, are as true today as they were in 1776; principles, like John Adams’ facts, are “stubborn things.”  During the Founding Period the principles were readily accepted – they were interwoven into American society.  You encountered them in letters, speeches, essays, and newspaper articles of the time.  Today — not so much.  Today, they have largely been replaced by the principles of humanism, progressivism and globalism.

Although some of these principles were hotly debated at the time, such as whether a strong national government or a loose confederation of sovereign states, or some combination of both, was the better form of government for the united States, other principles were accepted as self-evident truths, such as that God was the source of unalienable rights and that He oversaw the affairs of men.

We knew there would come a time when we would find ourselves at the end of the document; it was inevitable; that is where I find myself today.

After laying out the colonists’ philosophy of government, rehashing the complaints the colonists had repeatedly expressed to King and Parliament, and showing how a break in their political bands was both necessary and appropriate, the Declaration concludes with these words:

“And for the support of this Declaration, with a firm reliance on the Protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.”

But as presented to Congress by the committee on 28 June, the second clause (“with a firm reliance… “) was absent.  It had not been in Jefferson’s rough draft, nor had it been added by anyone on the committee.  Jefferson had written:

“And for the support of this Declaration, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.”

While Jefferson later in life complained that Congress had “mangled” his work, in this specific case, I believe the additional clause was a great improvement.  The added clause contains a key principle of colonial thought and deserves discussion even today.

But if Mr. Jefferson did not intend the colonists to proclaim “a firm reliance on the Protection of Divine Providence,” who did?  There are fifty-one candidates.

Perhaps it was New Jersey delegate and Presbyterian minister John Witherspoon, whose 1776 sermon “The Dominion of Providence over the Passions of Men,” widely published in the colonies, brought him enough attention to be appointed a delegate to this Second Continental Congress.  Serving as President of the College of New Jersey (later, Princeton) from 1768 to 1779, Witherspoon had taught such prominent men as future President James Madison, future Vice-President Aaron Burr, nine cabinet officers, 21 senators, 39 congressmen, three justices of the Supreme Court, and 12 state governors.

Perhaps it was Massachusetts delegate Robert Treat Paine, who would go on to serve as a military chaplain during the war.  Perhaps it was Georgia delegate and ordained minister, Lyman Hall.  New Jersey delegate Francis Hopkinson was a church music director and choir leader who had edited a famous American hymnbook.  I could see him suggesting the new clause.  Connecticut delegate Roger Sherman had trained as a minister and had written the doctrinal creed for his denomination, a creed that no doubt contained a similar sentiment.  Pennsylvania delegate Benjamin Rush began the first Sunday School in America and founded the country’s first Bible Society; his co-delegate, James Wilson, was trained as a clergyman before leaving Scotland for the new world.  In fact, at least 29 of the Declaration’s signers had been educated in schools whose primary and declared purpose was the preparation of Christian ministers.  But the phrase need not have been suggested by someone with a strong Christian faith. A belief in divine providence was commonplace.

Whoever added the clause will forever remain a mystery, since no notes survived of the day’s deliberations.  But what of the thought the clause contains?  Did the fifty-six men who signed the Declaration indeed share a “firm reliance on the protection of divine providence?”

Jefferson called his essay “an expression of the American Mind,” an amalgamation of the “harmonizing sentiments of the day.”  The entire Congress had participated in the editing.  If the protection of divine providence had not been a widely shared sentiment, it is unlikely it would have been suggested, or retained.  I believe it safe to conclude that these men did indeed feel it appropriate to call on God’s protection in this way.

Were they justified in doing so?

An honest appraisal of early American history is replete with examples of individuals and groups calling upon God for favor, guidance and protection, from the first settlers to the first Congress.  The settlers were, by and large, Christians who understood their covenantal relationship with the Creator of the universe.  They asked for, they expected, and they received, God’s protection.

The first official act of the Jamestown settlers in 1607 was to erect a cross at Cape Henry and thank God for their successful crossing.

The first session of the First Continental Congress in 1774 opened with this prayer:

“O Lord! our  heavenly Father, high and mighty, King of kings, and Lord of lords, who dost from thy throne behold all the dwellers on earth, and reignest with power supreme and uncontrolled over all kingdoms, empires, and governments. Look down in mercy, we beseech thee, on these our American States who have fled to thee from the rod of the oppressor, and thrown themselves on thy gracious protection, desiring to be henceforth dependent only on thee … All this we ask in the name, and through the merits of Jesus Christ thy Son and our Savior.  Amen”

Protection or provision, both were part and parcel of God’s providential care.

There was perhaps no greater single beneficiary of that providence than General George Washington himself.  Whether it took the form of an inexplicable fog that enabled the successful withdrawal of his forces from Long Island, the sudden snowstorm that kept Hessian troops hunkered down in their quarters at Trenton, or the run of shad that fed his desperate troops at Valley Forge, Washington experienced repeated examples of divine providence. In a 1778 letter to Thomas Nelson, he wrote: “The Hand of providence has been so conspicuous in all this, that he must be worse than an infidel that lacks faith, and more than wicked, that has not gratitude enough to acknowledge his obligations.”[1]

We do not have the time here to recount the many, many examples of divine providence in the history of colonial America.  I refer you to books like: “America’s Providential History,” by Stephen McDowell and Mark Beliles; “The Light and the Glory,” by Peter Marshall and David Manuel; “The Christian History of the American Revolution,” By Verna M Hall, and “What Hath God Wrought” by Dr. William P. Grady, to cite just a few.

Suffice it to say that to the Americans of the Founding Period, God’s providence was an ever present fixture of their lives — kept there by frequent prayer.

Another question comes to mind: For whose benefit was this clause added?  Parliament’s?  The King’s?  Their “Brittish (sic) brethren?”  I think not.  Neither the King nor the Parliament would care much one way or the other whether these “rebels” invoked the name of God in their action.  I submit the clause was added instead with the American people in mind, to reassure them that the step their leaders were about to take would not fall outside the will of God, but lay wholly within it.  This was the message Americans had heard from the pulpits of colonial America for the previous 15-20 years: they had a Christian duty to resist tyrannical government.  And now that the fateful day had arrived, it would have been comforting for the people to see that their leaders were not so “puffed up” as to think they could pull of so momentous an act without divine partnership.

As President, George Washington would proclaim: “It is the duty of all Nations to acknowledge the providence of Almighty God, to obey his will, to be grateful for his benefits, and humbly to implore his protection and favors.”[2]

In 1816, First Chief Justice of the Supreme Court summed it nicely by writing: “Providence has given to our people the choice of their rulers, and it is the duty, as well as the privilege and interest of our Christian nation to select and prefer Christians for their rulers.  National prosperity can neither be obtained nor preserved without the favor of Providence.”[3] (emphasis added)

Pledging their “lives, their fortunes and their sacred honor” certainly signaled the gravity of the situation, but these were finite resources pledged by finite men.  By contrast, the  signers were also asking the One who owned “the cattle on a thousand hills” to bring His infinite resources to bear.

So where is God’s Providence today?

“I am the Lord, I change not.”[4]  I think we can safely affirm that God’s providential hand is as available today as it was in 1776.  Yet, American society today, at least publically, sees no need to ask for God’s providential help. Under these circumstances, can we expect God to provide it?  God promises in 2nd Chronicles 7:14[5] to heal the land if His people will but humble themselves, pray, seek His face and turn from their wicked ways.  And certainly many American Christians have responded to this admonition. But how many more of our 320 Million Americans must do so before God will act?

In Rev John Witherspoon’s 1776 sermon: “The Dominion of Providence Over the Passions of Men,” referenced earlier, he concludes: “Nothing is more certain than that a general profligacy and corruption of manners make a people ripe for destruction. A good form of government may hold the rotten materials together for some time, but beyond a certain pitch, even the best constitution will be ineffectual, and slavery must ensue.”

America can move forward with a firm reliance on the protection of divine providence, or we can “roll the dice” and see what we can do on our own; the choice is ours.

At the end of the radio show on August 19th my two commentators and I discussed what topic to explore next; there are so many topics relevant to the problems America faces.  We decided to take on the topic of “Progressivism” and its effects on America.  What were the origins of progressive thought?  Who were the great expositors of that thought?  And what have been the effects?  I hope you’ll join us as we begin this new discussion on Friday, August 26th at 7-8am.  We’d love to hear your view.

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

[1] letter to Thomas Nelson, August 20, 1778.

[2] Thanksgiving Proclamation, 1789.

[3] October 12, 1816.

[4] Malachi 3:6 KJV.

[5] “If my people, which are called by my name, shall humble themselves, and pray, and seek my face, and turn from their wicked ways; then will I hear from heaven, and will forgive their sin, and will heal their land.”

Constitution’s Week in Review – 20 August 2016

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

12 Sep Lessons in Liberty – The Electoral College

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

19 Sep Christian Financial Concepts Webinar – The Electoral College

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

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

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

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

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

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

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

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

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

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

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

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

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

 

Constitutional Corner – Right of Petition

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“In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury.”

Petitioning for a redress of grievances was an integral part of British politics and had been for hundreds of years.  The right of petition traced its lineage back at least to the first Magna Carta (1215), perhaps earlier. Through its acceptance by King John, Magna Carta implicitly affirmed a right of petition.  In addition, the document contained these words:

“If we, our chief justice, our officials, or any of our servants offend in any respect against any man, or transgress any of the articles of the peace or of this security, and the offence is made known to four of the said twenty-five barons, they shall come to us – or in our absence from the kingdom to the chief justice—to declare it and claim immediate redress.” (Emphasis added)

Thus the barons reserved a right to petition to make known certain “transgressions” of the peace and claim their redress.

The 1628 Petition of Right presented to King Charles I was another early exercise of the right.  The petition was once again reluctantly accepted by the King (he had little choice – Charles desperately needed the funding that would follow).

In 1669, Parliament recognized the right of every British subject to petition Parliament, and the 1689 English Bill of Rights, which followed the “Glorious Revolution” of 1688, explicitly affirmed the “right of the subjects to petition the king.”[1]

When it came time for their own revolution, the colonists set about it much as their British brethren had – by the petition process.

In the colonies, the 1641 Massachusetts Body of Liberties was the first document to explicitly affirm a right of petition:

“12. Every man whether Inhabitant or foreigner, free or not free shall have liberty to come to any public Court, Counsel, or Town meeting, and either by speech or writing to move any lawful, seasonable, and material question, or to present any necessary motion, complaint, petition, Bill or information, whereof that meeting hath proper cognizance, so it be done in convenient time, due order, and respective manner.” (Emphasis added)

Five other colonies eventually enacted similar guarantees.

Petitions played an important role in early American history as novice legislatures worked to establish their stride, define their powers, and help the struggling colonists meet basic survival needs. “[The petition] process originated more bills in pre-constitutional America than any other source of legislation.”[2]

Petitions also played a revolutionary role as well.  King James II assumed the throne of England in 1685 and quickly alienated many of his subjects, both at home and in the colonies, with his statements affirming the divine right of kings and favoritism shown to his co-religionists: the Catholics.  James imposed strict authority over the colonies and ordered a consolidation of several northern colonies under the autocratic rule of a new governor, Sir Edmund Andros. Andros imposed new taxes, abolished colonial assemblies, and abridged long-standing citizens’ rights.

On April 18, 1689, after learning that the King had fled England  the previous November (as a result of the Glorious Revolution of 1688), Bostonians stormed the fort of Boston and demanded the ouster of Andros. Anxious to avoid mob violence, a group of Boston merchants and other “first citizens,” presented a petition calling on the Governor to step down from office. After being imprisoned on Castle Island, the Governor escaped to Rhode Island, was re-captured, and sent to England for trial.  In London,  the agents for Massachusetts refused to sign documents listing the charges against Andros, so he was summarily acquitted, released and subsequently appointed as governor of both Virginia and Maryland.

1765 saw the first truly collective colonial petitions.  The Stamp Act Congress, with nine colonies represented, sent Parliament a “Declaration of Rights and Grievances.” The thirteenth of those rights read:

“That it is the right of the British subjects in these colonies, to petition the king or either house of parliament.” (Emphasis added)

Nine years later, on October 14, 1774, the First Continental Congress sent Parliament a “Declaration and Resolves,” which read in part:

“Resolved, … That they have a right peaceably to assemble, consider of their grievances, and petition the King; and that all prosecutions, prohibitory proclamations, and commitments for the same, are illegal.”  (Emphasis added)

After settling on this statement of rights, Congress immediately sent a similar petition to the King himself.

On July 5, 1775, a little over two months after Lexington and Concord, the Second Continental Congress approved the “Olive Branch Petition.”  And the very next day approved “A Declaration on the Causes and Necessity of Their Taking Up Arms,” which documented that:

“A Congress of delegates from the United Colonies was assembled at Philadelphia, on the fifth day of last September. We resolved again to offer an humble and dutiful petition to the King, and also addressed our fellow-subjects of Great-Britain:”

Once they arrived in England, the King refused to receive either document.  Those hoping for a reconciliation watched their chances wither.

The next year, the resumed Second Congress made clear that they had exhausted all means of peaceful petition by affirming: “Our repeated Petitions have been answered only by repeated injury.”

Why go to such lengths – repeated petitions to be precise – just to state your case?

The Colonists saw petitions as an implementation of due process.  Before effecting a political separation, they determined they must show their efforts at reconciliation had been repelled.

And so the separation – and the revolution – began.  But as John Adams was careful to point out much later, the true revolution had begun long, long before.

“But what do we mean by the American Revolution? Do we mean the American war? The Revolution was effected before the war commenced. The Revolution was in the minds and hearts of the people; a change in their religious sentiments of their duties and obligations.”[3]

Likewise, Benjamin Rush noted that the revolution did not conclude with the last musket shot:

“The American war is over; but this [is] far from being the case with the American revolution. On the contrary, nothing but the first act of the drama is closed. It remains yet to establish and perfect our new forms of government, and to prepare the principles, morals, and manners of our citizens for these forms of government after they are established and brought to perfection.”[4]

At the Virginia Ratifying Convention on June 26, 1788, the delegates responded to the lack of a Bill of Rights in the proposed Constitution by forwarding 20 rights articles and 20 additional amendments.  The bulk of the suggested Bill of Rights articles were copied verbatim from the 1776 Virginia Bill of Rights; but the following suggested article was new:

“15th. … [T]he people have a right peaceably to assemble together to consult for the common good, or to instruct their representatives; and that every freeman has a right to petition or apply to the Legislature for redress of grievances.”

Interestingly, the Virginia delegates were ready to give the new nation’s citizens a right their own state’s residents did not then enjoy.  As we know, this right was incorporated into what became the First Amendment.  During debate on the amendment, an early draft stating that people had a “right to instruct their representatives” was defeated due to the overbearing inference.  Still, members affirmed the legislatures’ obligation to receive and consider such petitions, even if they would not be bound by them.  Finally came the familiar words:

“Congress shall make no law … abridging the freedom of … the people peaceably to assemble, and to petition the Government for a redress of grievances.”

But what does this right entail today?  Must citizens first assemble in order to petition?  The amendment can be read that way.  To whom and how are petitions to be addressed?  Must those petitions be received and responded to?  And what if no “redress” results; what is to happen if those petitions are, as they were 240 years ago, met by repeated injury?  So many unanswered questions.

After the Constitution went into effect, citizens regularly petitioned the Congress for the passage of specific legislation and “redress of grievances.”  However, the first wide-spread exercise of the right was in advocating the end of slavery in the mid-1830s. Congress had enacted rules of order whereby each business day began with state delegations reading petitions they had received.  In 1837 and 1838, Congress received 130,000 petitions related to slavery alone.  The deluge soon became unmanageable and threatened the ability of Congress to accomplish other needful work; many Congressmen pondered the correct response:

“If the people have a right to petition their representatives it is our duty to receive their petitions.”[5]

Receive them, yes, but to what end?  The House of Representatives adopted a rule that tabled such petitions, meaning that they would “lay upon the table” and receive no other attention.  But abolitionists such as John Quincy Adams, were eventually successful in repealing this rule, arguing that it was contrary to the people’s right of petition.

But petitioning the government can sometimes lead to unexpected results.  During WWI, petitions suggesting repeal of the new espionage and sedition laws sometimes resulted in imprisonment.[6]

Today, no one disputes the right to petition the government, at any level, for a redress of grievances.  But still, the sparse words of the First Amendment provide us no further guidance as to how, when, where.

And so enter the courts.  Case law concerning the right of petition is thin, but still significant.

In 1875,[7] the Supreme Court declared “The right of the people peaceably to assemble for the purpose of petitioning Congress for a redress of grievances, or for anything else connected with the powers or duties of the National Government, is an attribute of national citizenship, and, as such, under the protection of and guaranteed by the United States.” (Emphasis added)

In 1954,[8] the Court ruled Congress can require registration of paid lobbyists.

In 1963,[9] the right of petition was incorporated against the states for the first time.

In 1985,[10] the Court held that the right to petition does not provide absolute immunity to petitioners; it is subject to the same restrictions as other First Amendment rights,  i.e., there is no immunity from liability over what you say in the petition.

In 1980,[11] the court upheld a military regulation requiring that military members get permission from their base commander before circulating petitions to Congress on base.  The Court ruled the regulation did not infringe the individual right to petition.

In 1988,[12] the Court ruled that states could not bar groups from hiring individuals to circulate petitions in support of a ballot measure.

In 1999,[13] the Court ruled that states could not require petition circulators to be registered voters, wear name badges, or disclose information about themselves and their salaries.

In 2010,[14] the Supreme Court ruled that the government’s disclosure of the names of voters who signed a referendum petition did not violate the First Amendment.

When compared with other first amendment rights, this is indeed a sparse set of controversies.

“Under modern Supreme Court jurisprudence, the right to petition has been almost completely collapsed into freedom of speech.”[15]

Exactly.  Where does your right of speech end and your right of petition begin?  In today’s world of instant communication, petition and speech become hopelessly intertwined.  Today, we can pick up the phone and talk with a staff member in our Congressman’s office (good luck getting connected directly to the member, they are out of their offices more than in).  We can send our representatives a letter or an email, either from our own mail system or through the member’s website.  If we have the time and energy, we can make an appointment and speak directly with our Congressman in their Washington, D.C. or district office.  All of these methods are available to groups as well.

We have all seen the numerous emails from special interest groups imploring us to “flood Congressman X’s office with emails concerning issue XYZ, or this or that pending legislation” (normally accompanied by an appeal for donations).  Do these petitions work?

The Congressional Management Foundation,[16] was established to “work[] directly with Members of Congress and staff to enhance their operations and interactions with constituents.  CMF works directly with citizen groups to educate them on how Congress works, giving constituents a stronger voice in policy outcomes.  The results are: a Congress more accountable, transparent, and effective; and an informed citizenry with greater trust in their democratic institutions.”

On the subject of “Communicating with Congress,” CMF provides a series of informative reports[17] you can download and study at your leisure.

Tim Hysom is the Director for Communications and Technology Services at CMF.  He was asked by one group: “Does sending emails to Congress still work?”  His response:

“Sending your views to Members of Congress does work, no matter what format they arrive in. Senators and Representatives want to know how their votes affect their constituents. One thing people always ask me is, “How many messages does a Member of Congress need to receive in order to change their mind?” There are as many answers to that question as there are Members of Congress: 541.[18] Sometimes a Member can be swayed by a single heartfelt and articulate message from a constituent. Sometimes it’s the sheer volume of communications that they receive that persuades them. One important note, however, is that congressional offices do like postal communications because it is easy to see that the constituent took the time to write a handwritten letter, but email is far easier for them to process and will ensure that your message arrives more quickly. The bottom line is that, yes, emails still work, but they are generally most effective if they are personal messages rather than form messages.”[19]

Here are some suggestions[20] when writing a letter to a Congressman.

Today, many people don’t bother communicating with their Congressional Representatives; they conclude theirs is but one voice in a sea of voices.  They should reconsider.

Also bound up with the right of petition is the right to peaceably assemble to do so.  But when does protest or demonstration depart from the right of peaceable assembly?  I think the answer is in the word: “peaceably.”  “Peaceable” normally also mean lawful, which means protests must follow laws set up to ensure the rights of others are not infringed by those desiring to protest or assemble.  Notice that Jefferson emphasized that the colonists’ petitions had used “the most humble terms.”  Even if no action was taken in Parliament, many members of Parliament took note of and expressed thanks for the colonists’ tone.

Recent “protests” in Ferguson, Missouri, and elsewhere over the shooting of Michael Brown obviously crossed the line and became riots, with predictable police response.  These serve no societal good.  Allowing people to “vent” their anger, at the expense of another’s private or commercial property, ultimately serves no greater purpose.

When Benjamin franklin answered: “A republic, Madam, if you can keep it,” he was telling us all that a republic is something that requires “care and feeding.”  Among other responsibilities, that means engagement.  The people are the true sovereigns in a republic, government employees work for them.  If the people don’t take the time to communicate their hopes as well as their grievances, who will?

Repeated petitions to the British government to leave the European Union were seen by  candidate for Prime Minister David Cameron as a rising groundswell of support.  As part of his platform he promised if elected to support a referendum vote on the matter.  As we know, that vote finally took place this month and resulted in 52% of the votes being cast in favor of exit (the turnout was 72% of the electorate, the highest turnout in a UK-wide vote since the 1992 general election).[21]

Seeing the success of the British citizens efforts, 261,159 Austrian citizens (4.12 percent of the electorate) signed a petition demanding that their government hold a similar vote on whether to remain in the EU.  As a result of the petition, ministers are obliged to at least discuss the possibility of holding a referendum vote on the issue.

As with any right, your right to petition can be abused.  Persistent petitioners who disrupt civil order sometimes encounter opposition and even legal action.  An Iowa state law prohibiting convicted sex offenders from circulating petitions was enacted specifically to limit the efforts of a certain Rapid City man whose incessant petition solicitations were disrupting court business.

Is the right of petitioning limited to the powers available for redress?  That is, can you only petition for or against something within the power of Congress (or the party petitioned) to address?  For a clear answer we need only turn to the current White House publicity stunt, the “We the People” petition.  President Obama ordered that a section of the whitehouse.gov website be set aside for petitioning the current administration’s policy experts. Petitions that garner 100,000 or more signatures[22] must be reviewed by officials in the Administration and official responses issued, (there are some exceptions).

Roughly 70 percent of current petitions ask that individual states — like Texas[23] — be allowed to peacefully secede.  In other words, most petitions request actions the Executive branch has no power to effect.

Although most petitions are serious, some are not.  In November 2012, a petition was created urging the government to create an actual Star Wars-style Death Star as an economic stimulus and job creation measure.  The petition gained more than 25,000 signatures, enough to qualify (at that time) for an official response. The official (tongue-in-cheek) response released in January 2013 noted that the cost of building a real Death Star was estimated at $852 quadrillion.  At the current rates of steel production, the weapon would not be ready for more than 833,000 years.  The response also noted that “the Administration does not support blowing up planets” and questions funding a weapon “with a fundamental flaw that can be exploited by a one-man starship.”  Other less-than-serious petitions have requested the deportation of British-born CNN host Piers Morgan (not a bad idea), the designation and protection of the Sasquatch as an indigenous species, and nationalization of the Twinkie.  The Atlantic Monthly magazine[24] called the petition site a “joke” (but also the future of democracy).

I recommend not wasting one’s time on the We The People petition website, but I do think you should take your individual and collective right of petition seriously and exercise it often.  To be effective, realize that this will require you to keep track of pending legislation in Congress, study the legislation, and then communicate to your elected representatives how you recommend they vote on the matter.  This is republican government in action.

Or, you could pay no attention to what is happening in Washington, D.C. and hope for the best.  Hey, this is America, “Land of the Free,”[25] you can do whatever you want!

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[1] That it is the right of the subjects to petition the king, and all commitments and prosecutions for such petitioning are illegal;

[2] Stephen A. Higginson, “A Short History of the Right to Petition Government for a Redress of Grievances,” Yale Law Journal, Vol. 91, No. 1, (Nov 1986), p. 142.

[3] Letter to Hezekiah Niles, 13 February 1818.

[4] Address to the People of the United States, January 1787.

[5] Record of the Senate, 1836.

[6] The Supreme Court A to Z, 3rd Edition, Kenneth Jost, ed., 2003, p. 312.

[7] United States v. Cruikshank, 92 U.S. 542 (1875).

[8] United States v. Harriss, 347 U.S. 612 (1954).

[9] Edwards v. South Carolina, 372 U.S. 229 (1963).

[10] McDonald v. Smith, 472 U.S. 479 (1985).

[11] Secretary of Navy v. Huff, 444 U.S. 453 (1980).

[12] Meyer v. Grant, 486 U.S. 414 (1988).

[13] Buckley V. American Constitutional Law Foundation, 525 U.S. 182 (1999) .

[14] Doe v. Reed, 561 U.S. 186 (2010).

[15] The Heritage Guide to the Constitution, 2nd Ed., 2014, David F. Forte, Sr. Ed., Matthew Spalding, Ex Ed., p. 415.

[16] http://www.congressfoundation.org.

[17] http://www.congressfoundation.org/projects/communicating-with-congress.

[18] This figure includes non-voting representatives of Guam, etc.

[19] http://fcnl.org/resources/newsletter/janfeb10/communicating_with_congress/.

[20] http://usgovinfo.about.com/od/uscongress/a/letterscongress.htm.

[21] https://en.wikipedia.org/wiki/United_Kingdom_European_Union_membership_referendum,_2016.

[22] The threshold started out at a measly 5,000.

[23] http://theweek.com/articles/469839/11-ridiculous-white-house-petitions.

[24] http://www.theatlantic.com/technology/archive/2013/01/the-white-house-petition-site-is-a-joke-and-also-the-future-of-democracy/267238/.

[25] For perhaps a little while longer.

Constitutional Corner – Toilette Tyranny

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The quest to fundamentally transform America continues unabated.  Doesn’t that just warm the cockles of your heart?  Not content to glide out the remaining months of the President’s eight-year reign as our supreme leader, the Obama administration has effectively ordered all the nation’s public schools to allow gender-confused school kids to use whatever bathroom and shower-room facilities they choose to “identify” with.

Here’s the background: On February 22nd, the City of Charlotte, North Carolina, passed an ordinance prohibiting businesses from discriminating against LGBT individuals.  The ordinance also ordered businesses to allow such individuals to use any public bathroom they choose.

In a one-day special session on March 23rd, the North Carolina legislature passed HB2, with the support of 11 Democrats, I might add, which made it illegal for any municipality to expand upon the state’s existing anti-discrimination laws, which is essentially what Charlotte and a few other cities had done.  The new law contained a list of classes of people who are to be protected against discrimination, they included race, religion, color, national origin, age, handicap or biological sex as designated on a person’s birth certificate.  “Sexual orientation” and “gender transition” were conspicuously absent from the list.

The homosexual community vowed a court fight.  But before that could be mounted the Obama Administration filed a civil rights suit against the state and the state countersued.  Then came the bombshell, last week, on Friday the 13th no less, the Department of Education issued a “Dear Colleague” letter which stated that the Department expects any school receiving federal funding (hint) to allow transgender students to use whatever bathroom and locker room facilities they request to use.

Contemporaneous with the North Carolina issue is a controversy taking place right up the road from me in Gloucester County, VA.   A female student at Gloucester High School, Gavin Grimm, has self-identified as a boy.  With the support of her parents, Gavin is taking hormone treatments to facilitate a presumed future “transition” through gender surgery.  Grimm was offered the use of a unisex bathroom at the school and things were fine for awhile, until she apparently decided this accommodation was unacceptable and sued the school district.  Initial judgement went against Grimm and her parents appealed (I wonder who is financing their suit?).  A three-judge panel of the 4th Circuit ordered the district to allow Grimm the use of whatever facilities she requests and the district responded by asking for an en banc review by the entire Circuit.  How the DOE directive impacts the 4th Circuit ruling is unclear.

So “Can the federal government constitutionally order the nation’s schools to allow gender-confused kids to use any bathroom or locker-room, and, we assume, shower-room, that they “identify” with?”  That is the legitimate question that we will explore today.

There are several constitutional issues attached to this, beginning with why we have a Department of Education at the federal level when the Constitution grants no specific power to establish one nor empowers it to set policy over education for the country’s public schools.  The Northwest Ordinance of 1787, which is a full 25% of our country’s organic law, says that “Religion, morality and knowledge being necessary to good government, schools and the means of education will forever be encouraged” – encouraged, not controlled.  So the constitutionality of the Department of Education is one issue.

Next is the issue of delegation of legislative authority by the Congress to this unconstitutional executive department.  According to John Locke, that power cannot be delegated unless the people say so, and to my knowledge they have not.  But according to the Supreme Court in Mistretta v. U.S. (1989) such delegation is not only authorized, it is absolutely necessary in today’s complex world.  Hogwash!  We can only fix that by electing Congressmen and women who understand the Constitution.

My own Congressman told me that Congress sees itself as setting the broad policy guidelines and then lets the executive agencies “fill in the details.”  To my mind that is a dereliction of duty, a failure to support and defend the Constitution, and an impeachable misdemeanor in and of itself.  But that’s just my opinion.  Regardless, if Congress sets the policy guidelines, where does the Department of Education find the authority to change those guidelines at will?

Congress passed Title IX of the Education Amendments  in 1972.  Title IX reads:  “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.”

In 1972, the word “sex” meant only one thing: biological sex.  But today there are people who want to redefine the word sex, just as they successfully (at least in the eyes of the Supreme Court) redefined the word “marriage.”

“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.”[1] (emphasis added)

In 2014, the Department of Education issued guidelines stating that transgender students were to be allowed to attend sex-segregated classes based on their professed “identity,” not their genetics.  There was no mention of bathrooms; what a difference two years make.

Martin Luther King is owed an apology for the way Attorney General Lynch couched this whole affair in civil rights terms and some in the Black Community have protested.  Fighting for the right to be free of discrimination based on something you can’t control, like the color of your skin, is quite different from claiming a supposed right to use whatever public bathroom you choose because today you decide you’re a member of the opposite sex.  By no means is this a civil rights issue, this is yet another attempt by this lawless administration to bypass the will of the people expressed in the Congress, and cram the LGBT agenda down American’s throats.

The ultimate goal of that movement has nothing to do with “equality.”  It is aimed at destroying the traditional American family, pure and simple.  They don’t aim to destroy Christianity, I think they recognize the futility of that, they only want to render the Christian church irrelevant, which the church has already accomplished, without outside help.  The church is sticking its head in the sand and hoping this will all blow over.  It will not.  Bathrooms and locker rooms are merely the next logical step in erasing all distinctions between men and women.  In an article entitled: “We’ll Win the Bathroom Battle When the Binary Burns,”[2] a homosexual activist says the real goal is to kill the notion of male and female altogether; to eradicate what he calls our “heterobinary structure.”  If only God had created us as male, female and “other,” we wouldn’t have this mess, right?  😉

While the focus is on the schools, the Department of Health and Human Services quietly issued a proposed rule change (and rule changes do have the force of law) in which “sex discrimination” in health care was unilaterally rewritten to include “gender identity.”  HHS is demanding that the entire health care industry include gender transition treatment as part of their services.  Refuse, they warn, and kiss your Medicare and Medicaid dollars goodbye. The rule doesn’t includes no religious exemption, which is not surprising for this administration — so much for hospitals run by religious organizations.

If only all states followed Utah’s lead in at least considering severing their educational system from federal educational funding and the extortion that comes with it.  As I said on a local radio show recently, it is long past time for states to regain control of their educational systems; yes, state taxes will have to go up, that is the price of independence.  But we were willing to pay a price for independence in 1776; we should be today as well.

To their credit, 73 Congressmen have sent a letter[3] to the Attorney General asking her to explain “why schools must disregard the privacy, ‘discomfort,’ and emotional strain imposed on other students during use of bathroom, showering, and changing facilities and overnight accommodations as these schools comply with this guidance.”  The letter also asks General Lynch to explain what will happen to “a teacher, school administrator, educator, school contractor, or person volunteering at a school who does not comply with this guidance.”  Whooptedo!  These are softball questions.  Finally, the letter gets to the heart of the matter, it asks AG Lynch to: “delineate the statutory authority under which the ED and DOJ issued this guidance.”  Now we’re talking!

To put a stop to this silliness all Congress need do is pass a clarification to the Title IX legislation which makes it clear gender refers to sex at birth.  Or make the clarification in the Dictionary Act.[4]  Will they do that?  Not unless the people demand it.

In the meantime, every parent needs to be talking with their child’s principal and learn what he or she intends to do about this.  Is the school going to roll over and implement this policy with the mere threat of the loss of funding, or will they choose to protect the safety and privacy of the 99.9% of the school’s students?

Pastors need to be talking about this with their congregations, but most won’t.  Most will don their cultural blinders and “re-double their efforts to win souls for the Kingdom,” fiddling while Rome burns.  Lest I be misunderstood: bringing souls into the Kingdom is important, but so is leaving a legacy of freedom for our kids and grandkids.

Ten other states have joined – you guessed it – Texas, in suing the Obama Administration[5] over this issue.  We can rightfully ask: What’s wrong with the other 39 states?

I believe this is the issue that parents can and should use to take back control of their local educational systems, recognizing that God holds parents and parents alone accountable for that education and all that it entails.  Parents have an equal responsibility for the safety of their children, both psychological and physical, and this movement intentionally violates both.  Moving your children from public school into Christian school is something that all Christian parents should consider, but this is only a partial answer; the children that remain in public school will continue to be harmed, and our tax dollars will facilitate it.  This must be stopped.

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

[1] http://sabian.org/looking_glass6.php

[2] http://www.advocate.com/commentary/2016/4/29/well-win-bathroom-battle-when-binary-burns

[3] http://dailysignal.com/2016/05/18/breaking-73-house-republicans-sign-letter-demanding-answers-on-obamas-bathroom-directive/

[4] https://www.law.cornell.edu/uscode/text/1/1

[5] https://www.washingtonpost.com/news/post-nation/wp/2016/05/25/texas-governor-says-state-will-sue-obama-administration-over-bathroom-directive/

 

Constitutional Corner – Restoring the Electoral College

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The 2000 presidential election put the Electoral College squarely in the gunsights of the Left; how could a candidate (Al Gore) get 500,000 more popular votes and not attain the Executive Office? This just won’t do, time to get rid of the Electoral College once and for all!

In 2004, the New York Times editorial staff called the Electoral College “a ridiculous setup, which thwarts the will of the majority.”[1]

Just a year ago, University of Maryland sophomore Tyler Lewis attempted to make the case once again.[2]

Yet the Electoral College survives, barely, in form if not in function. Actually, it’s on life-support.

Understanding the difficulty of amending the Constitution to replace the Framers’ preferred election process, the National Popular Vote project is attempting to use state-level legislation to change the way Electors cast their ballots. Thanks to a growing love affair with “democracy” (however ill-understood), they are making great progress in the state legislatures. Their National Popular Vote bills will ensure whichever candidate secures the greatest number of votes nationally will also obtain all of that state’s electoral votes. Bingo; problem solved, without Constitutional amendment; all perfectly legal. The Electoral College’s days are truly numbered, despite being the preferred method of electing the President in a 2002 poll of political scientists.[3]

More than 700 proposals for changing the Electoral College system have been introduced over the years in Congress — some even received committee hearings — but none received the requisite 2/3 vote in both Houses in order to be sent to the states for ratification. In 1956 and again in 1969 proposed amendments passed the House but died in the Senate. The last time any changes were made constitutionally to the Electoral College was in 1804 (with the 12th Amendment).[4]

Although various schemes to select the Chief Executive were debated throughout the summer of 1787, what we now know as the Electoral College was not added to the draft Constitution until 4 September, 1787, two weeks before adjournment. The final plan was mostly the brainchild of the Committee on Detail. The initial proposal for the Executive (in the Virginia Plan) had the President appointed by the Legislature. But this was rejected because it might render the President too dependent on Congress. How about direct election by the people? During debate on this question, several delegates expressed concern over the ability of the general electorate (i.e., the people) to identify “worthy” presidential candidates. One need only canvass this season’s Presidential hopefuls, and the excitement some generate, to see that the American people have lost complete sight of what qualities a Chief Executive should have. Seriously, are there no Washingtons, Adams, Jeffersons, or Madisons to call upon today?

Add to this paucity of statesmanship and decorum in the candidates, the fact that only a third of today’s voters are able to name the three branches of government; America is in deep trouble. But I digress.

Here’s how the Electoral College was intended to work (and worked well for all of two elections): Electors equal to a state’s combined total of Representatives and Senators were selected through a process devised by each state. They could be elected by the citizens of the state or appointed by the state legislature or some combination of process. Qualifications of the Electors were to be the same as Electors of the “most populous house” of the state legislature (i.e., anyone allowed to vote for their state assemblyman could qualify as an Elector), but to render them totally independent, they also could not be a U.S. Senator or Representative, or hold any “Office of Trust or Profit under the United States.”

On a given day the Electors would meet, in their states (“safe from interference from Congress and national cabals”), and each Elector would nominate two individuals to the office of president, one of whom had to reside in another state than the Elector himself. Each nomination represented a vote for that person. The nominations were recorded and sent to the U.S. Senate. The President of the Senate (i.e., the Vice-President of the U.S.) opened the ballots from each state, tallied the nominations/votes for each nominee, and declared the person with the most votes, provided a majority of the Electors had voted for him, to be the President. Whoever received the second-most votes became the Vice-President. The Electors never met in a “college,”[5] instead they met in 13 state “colleges.” The design of the Electoral College system made it clear that “the President was to be, like the Senate, a creature of the states and not of Congress”[6] (or, I might add, the people).

As Hamilton explains in Federalist 68, the process was meant to ensure “that every practical obstacle should be opposed to cabal, intrigue and corruption.”[7]

As I said, this worked well for two elections. Once Washington decided against a third term, flaws in the design soon became evident. In the election of 1796, John Adams and Thomas Jefferson received the most and second-most votes respectively (Adams received one vote more than needed for a majority) and thus became the President and Vice-President. Problem: by that time political parties had arisen and Adams and Jefferson were affiliated with different parties, leading Adams to essentially ignore his Vice-President (as he himself had been largely ignored by Washington, for different reasons), which lead Jefferson to conclude he was wasting his time in Washington and that tending to his vines at Monticello would be more productive.

The election of 1800 revealed yet another flaw, this time it could not be ignored: since Electors nominated/voted for two people, if all the Electors of one political party voted for the same two people, those two people would end up with the same number of votes. A tie in the most number of votes threw the election into the House of Representatives. To settle the tie, the House delegations would choose the President from one of the top five nominees, voting by state. A majority of the state votes would settle the matter, unless no candidate obtained a majority of the state votes, which was precisely what happened.

A flaw in the execution of the plan of the Democrat-Republican Electors to seat Jefferson as President and running mate Aaron Burr as Vice-President resulted in a tie vote for both, a tie vote the lame-duck Federalists in the House of Representatives saw no reason to resolve. Thirty-five ballots later, the recalcitrant Federalists would still not budge and neither candidate had received the nine state votes needed. Alexander Hamilton was finally able to work a deal that broke the tie in Jefferson’s favor, much to Aaron Burr’s chagrin. The animosity this produced was at least partly responsible for Burr and Hamilton’s later “interview” on the Heights of Weehawken, which resulted in Hamilton’s untimely death.

The 12th Amendment reduced the likelihood of a tie by requiring Electors to cast separate ballots for President and Vice-President. Despite the high theater created by the 1800 election, the idea behind the 12th Amendment was still very contentious and did not gain sufficient political support until the imminent election of 1804 provided sufficient to push it through Congress and out to the states for ratification.

Today, however, the operation of the Electoral College little resembles the original. Instead of Electors nominating candidates from a potential pool of 213 million persons,[8] as they would following the original design, political parties nominate candidates through primary elections and a convention. Even though the name of the party’s candidate appears on the ballot, citizens are in fact voting for Electors who have previously committed themselves to a particular candidate. The original action of Electors as “screeners and selectors” of Presidential candidates has been obliterated.

About the only thing retained from the original design is that a successful candidate must receive a majority (270) of the total electoral votes available (538).[9] Due to the fact that a candidate need generally only win 50.1% of the popular vote in a state to receive that state’s electoral votes, it is possible for a candidate to receive the most popular votes nationally[10] and still win insufficient electoral votes to gain the office. Indeed this is what happened in 2000.

In the 2000 election, Bush/Cheney received 50,456,002 popular votes (47.9% of the total), but carried a majority of votes in 30 states and thus received their combined 271 electoral votes (notice, only one more electoral vote than needed). The Gore/Liebermann ticket received 50,999,897 popular votes (48.4% of the total)[11] but only carried 20 states (+ District of Columbia) and were awarded only 266 electoral votes. Gore’s large vote margins in New York (1,704,323), California (1,293,774) and Illinois (569,605) contributed greatly to his popular vote victory, but were meaningless in the electoral vote count.

The lesson of this election was that you only needed to win 50.1% of the popular vote in any state, any more than that has no effect on the electoral vote count (wasted?).

In Florida, a 537 vote margin for Bush gave him the Presidency! Ralph Nadar took 97,488 Floridians’ votes, presumably away from Gore; Pat Bucahnan took 17,484 votes (presumably) from Bush, and Libertarian Harry Browne garnered 16,415 votes, which either major party would have loved to have. Even the 1,371 votes of Constitution Party candidate Howard Phillips or the 2,281 votes cast for Natural Law Party candidate John Hagelin would have been enough to change the outcome in the state and thus nationally; so would have the 3,028 votes cast for write-ins. Who says one vote (or even 537 votes) isn’t important? After the election, the Supreme Court stopped the dubiously legal recount of Florida votes and the rest, as they say, is history. The Left is yet to recover, leading to the “National Popular Vote” movement, discussed earlier.

So why not chuck the Electoral College and elect the President solely through a popular vote?

First and foremost, the Framers saw the office of President far differently than we do today. Today the President is “the leader of the free world,” the “Commander in Chief of the most powerful military in the world.”[12] In addition, Presidents in the modern era have worked hard to create the “Imperial Presidency” (the subject of next week’s essay, so I won’t dwell on it here).

In 1789 however, one did not “run” for the Presidency, one was pushed into it, sometimes reluctantly. Anyone actively seeking the office would have been viewed with suspicion. George Washington has often been called “The Reluctant President,”[13] as has John Quincy Adams.[14] Some are calling Barack Obama such,[15] but they focus very narrowly on his foreign and wartime policy. Obama showed no reluctance in setting about to “fundamentally transform America.”

The Framers saw a very limited role for the President: faithfully executing the laws, negotiating treaties, and protecting the nation from attack. When you read Article 2, that’s about all you encounter, save some administrative responsibilities. Thus, candidates for the office were expected to be good administrators as well as proven statesmen,[16] but they were not expected to be flamboyant or self-aggrandizing. People with such qualities would have been ignored by the Electors.

Make no mistake, the movement to replace the Electoral College with a National Popular Vote is not just a move to replace an archaic or overly complicated methodology, it is not an attempt to replace a system that is today not operating in harmony with its original intent, this movement is part and parcel of a scheme to replace our constitutional republic with a pure democracy.

But could we still go back to the original Electoral College process (or something close to it)?

Imagine this: On Election Day, Electors are selected, by name, in a popular vote of the people. The Electors were nominated by their state legislatures for their life experience, maturity, and sound judgement. The ballot contains only a brief resume of each person to guide the people’s votes, but no party affiliation is shown.

A day after the election, the results of the voting are announced (at this point the Electors would be advised to disconnect their home phones, for their sanity). On a prescribed day in December, Virginia’s 13 Electors meet in Richmond (as other state’s Electors meet in their state capitols) and each Elector writes down the names of two men or women they think are qualified to hold the high offices of President and Vice-President of the United States, respectively — “statesmen who had proven themselves through service and dedication to their communities, states, and country.”[17] The guidance from the Bible is similar: “But select capable men from all the people–men who fear God, trustworthy men who hate dishonest gain…”

Political parties would have been allowed to nominate preferred candidates if they wished, but the Electors would have no pressure or commitment to choose any party’s nominee. The names the Elector’s nominees will eventually become public, so each Elector would be prepared to explain/defend their choices. Electors not taking their responsibility seriously would expect to face the wrath of the community upon their return from nominating.

The Electors’ nominations are forwarded to the U.S. Senate, which opens them on a designated day a few days later. The nominations for each office are tallied and, in the unlikely event that a single nominee obtains votes from a majority of the Electors, they automatically become the President or Vice-President, providing they are found to meet the qualifications found in Article 2 of the Constitution. A more likely outcome is that no person achieves a majority of the Electors’ votes for their office. In this case, the House of Representatives immediately convenes and, from the three individuals[18] receiving the highest number of votes for President, chooses the President, voting by states, one vote per state.  The Senate does likewise for the Vice-President.

We could re-instill this process in short order, without Constitutional amendment. In many states, legislation governing how Electors are required to vote would have to be modified.

Notice that the people are still involved, in two significant ways: by voting for the Electors, as well as selecting their Representatives and Senators (unless we also repeal the 17th Amendment) who will likely cast the deciding votes for President and Vice-President respectively. The states are involved by selecting the potential Electors and, through their Congressional delegations, in actually selecting the President and Vice-President. The Electors themselves are under great public scrutiny for nominating individuals of integrity and experience.

The influence of political parties over at least the two highest offices in the land would be broken; such influence would remain in races for the Senate and House; presidential debates would be unnecessary, presidential elections would cost a few thousand dollars (the expense of bringing the Electors to the capitol) instead of millions; robocalls (for President at least) would cease; Presidential candidate “promises” would be a thing of the past – the only promise would be made during the swearing in: to “preserve, protect and defend the Constitution of the United States.” Political parties could continue to hold primaries and/or conventions if they wished, but the importance of these would be greatly diminished, there would be no assurance that their candidate would be even considered by the Electors. Of course, the individuals voted into office by the House and Senate, once notified, would retain the right to decline to serve. Doing so would move the selection to the candidate receiving the next highest state votes in each Chamber.

The President and Vice-President would be watched carefully by the public to see that they are honestly working together for the good of the nation, or they would be impeached and replaced in accordance with the rules of the Constitution. Impeachment for mal-administration would become a real constitutional remedy again, no longer suppressed by partisanship. The Executive “team” would have to work together to achieve consensus and gain the support of Congress.

Aren’t you tired of the endless “low theater” that characterizes presidential campaigns and debates today? Aren’t you tired of Presidents breaking their campaign promises? Aren’t you tired of the bitter partisan fights between the Executive and Congress? Aren’t you tired of the billions spent on electing the President? Aren’t you tired of the robocalls? I am.

It’s time we returned to the original Electoral College.

We will be discussing this topic on “We the People, The Constitution Matters” on WFYL radio Friday morning, 12 March, 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] “Making Votes Count: Abolish the Electoral College,” August 29, 2004.

[2] http://www.huffingtonpost.com/tyler-lewis/why-we-should-abolish-the_1_b_8961256.html

[3] Paul D. Schumaker and Burdett A. Loomis, “Choosing A President,” 2002, Chatham House Publishers, p. 176.

[4] Ibid, p. 2.

[5] Derived from the Latin: collegium, meaning an association or guild.

[6] Ibid, p. 39.

[7] Alexander Hamilton, Federalist 68, March 14, 1788.

[8] The voting age population of 2012, minus the 535 members of Congress and the approximately 2.2 million federal employees..

[9] Maine and Nebraska allow electoral votes to be split between parties based on district voting. In both states, two electoral votes are awarded to the winner of the statewide race and one electoral vote is awarded to the winner of each congressional district. Maine has only two congressional districts while Nebraska has three, thus neither state makes a meaningful contribution to the total. In 2000, Gore took all of Maine’s electoral votes and Bush took all of Nebraska’s.

[10] Until 1828 a national vote was not even tallied since some states still allowed the state legislature to select the Electors.

[11] Note that neither team received a majority of the popular votes cast, Gore only obtained a plurality.

[12] Despite these glowing accolades, Forbes magazine named Barack Obama as only the third most powerful person in the world in 2015, behind Vladimir Putin and Angela Merkel. See http://www.forbes.com/powerful-people/

[13] http://www.smithsonianmag.com/history/george-washington-the-reluctant-president-49492/

[14] http://archive.wilsonquarterly.com/book-reviews/reluctant-president

[15] See: http://www.nationalbcc.org/news/beyond-the-rhetoric/2546-the-reluctant-president

[16] As opposed to first-term Senators.

[17] Gary & Carolyn Alder, “The Evolution and Destruction of the Original Electoral College” 2011, GCA Ventures, LLC. p. 6.

[18] Reduced from five to three by the 12th Amendment.

 

Constitutional Corner – America’s Fundamental Principles: One Nation Under God

Constitutional Corner – America’s Fundamental Principles: One Nation Under God.

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“I pledge allegiance to the Flag of the United States of America, and to the Republic for which it stands, one Nation under God, indivisible, with liberty and justice for all.”

Some Americans have been saying most of this pledge since 1892, and all of us since Congress adopted it as our official pledge in 1942, no doubt giving author Francis Bellamy, a Baptist minister, and Christian socialist, enormous pride – except for the fact that Bellamy had already been dead eleven years. Oh well. Often the “Bellamy salute” included something reminiscent of the Nazi arm salute, until WWII made that less appealing.

As many of you probably know, the pledge, as initially adopted, did not contain the words “under God,” those came later in 1954 when recently baptized President Dwight D. Eisenhower urged Congress to add them.

But even before the words “under God” were added, the pledge was under assault; Jehovah’s Witnesses, who considered any pledge a form of idolatry, demanded that their children be excused from recitation in school. Initially the Supreme Court ruled they could be compelled to recite the pledge,[1] and three years later changed its mind.[2] Go figure.

In 2002, the 9th Circuit Court of Appeals actually ruled the phrase “one nation under God” to be an unconstitutional infringement on the Establishment Clause of the 1st Amendment.[3] The Supreme Court decided there was a procedural discrepancy (standing) and overturned the decision. While three of the eight Justices (Justice Scalia recused himself) disagreed that the plaintiff did not enjoy standing, these three all found that the phrase did not offend the Constitution. While the ruling was not definitive on the Constitutional question, the Court sent a clear message that future challenges would fail.

Today, the pledge is taken pretty much for granted and recited at many public gatherings, both governmental and casual (at least at the gatherings of social groups who consider patriotism still in vogue). We recite the pledge so often it becomes rote, and possibly even meaningless.

Let’s review.

What does it mean to be “one nation under God?”

The one nation part is pretty easy, we’re arguably not; at least not precisely. The socialist Bellamy certainly wished we would consider ourselves a single nation, as many today do, but the fact is we remain a union of 50 sovereign states and not a single nation, despite the claim of the Pledge. Madison made this point clear in Federalist 39:

“That [establishing the Constitution] will be a federal and not a national act, as these terms are understood by the objectors; the act of the people, as forming so many independent States, not as forming one aggregate nation, is obvious from this single consideration, that it is to result neither from the decision of a majority of the people of the Union, nor from that of a majority of the States. It must result from the unanimous assent of the several States that are parties to it.” (Emphasis added)

But the fact remains we do have a single government presiding over those 50 states, a government endowed with both national and federal properties. Later in Federalist 39 Madison concludes: “The proposed Constitution (and the government it created) therefore is in strictness neither a national nor a federal constitution; but a composition of both.”

The character of America as “one nation” faced its severest test in 1861 when the southern states were forcibly prevented from peacefully leaving the union. “Horray, Lincoln saved the Union!” we say, but we nearly always forget the cost in lives and constitutional affronts caused by Lincoln’s action.[4] Some believe the war settled the question of secession. I say it settled nothing of the sort. All the war settled was that with a President named Abe Lincoln, states would not be permitted to unilaterally secede.

Could they today? I see nothing preventing it, particularly if the seceding state(s) could convince Congress and their neighbors to agree. It would still be “one nation” for the remaining states, just slightly smaller. For this reason, the word “indivisible” from the pledge tends to stick in my throat each time I say it (but I do say it).

Let’s turn our attention to the “under God” part of the pledge; what does it mean for a people to declare themselves to be “under God.”

First, it is clear that such talk gives atheists a severe case of hives. Apparently, even hearing the word “God” is more than they can bear. They want the word removed from our currency, pledges and banished from public view or public hearing. And there are plenty of public places they will encounter this public recognition of God; from the first words of a Supreme Court session; to the start of every day in Congress; to the marble frieze on the south wall of the Supreme’s courtroom, which features Moses holding the Ten Commandments; to Jefferson’s words carved into his memorial. The aluminum capstone that crowns the Washington Monument, the first piece of property in Washington, D.C. touched by the rising sun, is inscribed on the east face with “LAUS DEO,” Latin for “Praise be to God.” These public acknowledgments shouldn’t surprise us: “We are a religious people whose institutions presuppose a Supreme Being.”[5]

None of these, of course, constitute America’s first acknowledgements, as a people, of being “under God.” The very first charter granted to settle America, the Virginia charter of 1606, announced one of the goals of the colony to be “in propagating of Christian Religion to such People, as yet live in Darkness and miserable Ignorance of the true Knowledge and Worship of God, and may in time bring the Infidels and Savages, living in those parts, to human Civility, and to a settled and quiet Government.” Where did Virginia’s settlers get the idea that God wanted them to propagate Christianity? Numerous Bible verses command it; Acts 1:8 being one example, where Jesus proclaims his followers: “will be my witnesses in Jerusalem, and in all Judea and Samaria, and to the ends of the earth.”

The Mayflower Compact of 1620 proclaimed: “Having undertaken, for the Glory of God, and advancements of the Christian faith and honor of our King and Country, a voyage to plant the first colony in the Northern parts of Virginia…”

The Pilgrims believe they were establishing a covenant with God “for His glory.” They had covenanted together as they left England for Holland, now they were entering a covenant, a solemn agreement, with Almighty God for his guidance and protection. As long as they modeled their lives after His commandments, they felt God would in return bless their endeavor.

One can argue that some colonies, such as Virginia, while acknowledging God in its charter, did not formally establish a covenant, such as did the Pilgrims. But one would be wrong. A charter is not the only mechanism for covenant. Pastor Robert Hunt clearly dedicated the Jamestown settlement to God when they first came ashore at Cape Henry.   Can the prayer of a single pastor in 1607 place an entire nation in covenant with God? I think that’s up to God, don’t you?

The story of the founding of Pennsylvania is also instructive.[6] Twelve-year old William Penn had a dramatic conversion to the Quaker religion. Quakers were a persecuted sect in a country where the Church of England was the only recognized religion. Arrested and jailed multiple times for illegal “street preaching,” Penn’s eventual trial is a great example of jury nullification, but that’s another story for another day. Penn eventually inherited his wealthy father’s estate and in exchange for cancellation of a £16,000 debt owed the estate by the British government, Penn was able to secure from King Charles II title to 28,000,000 acres of land in America, which became Pennsylvania (literally, Penn’s Woods). Soon thereafter, Penn wrote:

“There may be room [in Pennsylvania ] for such a Holy Experiment. For the nations want a precedent and my God will make it the Seed of a Nation, that an example may be setup to the Nations, that we may do the thing that is truly wise and just.”

In his first Constitution for the colony, a Frame of Government, Penn concludes a lengthy explanation of the purpose of government by declaring:

“To carry this evenness is partly owing to the constitution and partly to the magistracy; where either of these fail, government will be subject to convulsions; but, where both are wanting, it must be totally subverted; then where both meet, the government is like to endure. Which I humbly pray and hope God will please to make the lot of this of Pennsylvania. Amen.”[7]

Sounds like a request for covenant to me. So we have Virginia in the south, Massachusetts in the north and Pennsylvania in the center, all believing themselves in covenant with God.

Pennsylvania would of course become the “seed of the nation” when its capitol, Philadelphia, hosted the 2nd Continental Congress in 1776, who declared our independence, and eleven years later, the “Grand Convention” of 1787, which gave us our Constitution. So Penn’s prayer that his colony be made the “seed of the nation” would appear to have been answered, in spades.

Recall that the Declaration of Independence concludes with the delegates stating:

“And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.”

With its three other open references to God, the Declaration is among our most religious founding document. But could the delegates even ask for the protection of Divine Providence if they did not consider themselves in covenant relationship with God? And mind you, this was not the Deist god, who had created the world and then essentially said “have fun with it,” this was the God of Abraham, Isaac, and Jacob, the God of Israel.

There is open debate to this day as to whether the Constitution describes a covenantal relationship with God. It does, however, tangentially acknowledge several tenets of the Christian faith.[8]

In “God’s Covenant with America,”[9] Bill Hunter describes the many events in early American history which point to the establishment of a covenant with God. The trilogy[10] written by Peter Marshall and David Manuel contain even more references.

On December 11, 1776, Congress declared:

“Therefore the Congress hereby Resolve, That it be recommended to all the States, as soon as possible to appoint a day of solemn Fasting and Humiliation, to implore of Almighty God the forgiveness of the many sins prevailing among all ranks, and to beg the countenance and assistance of his Providence in the prosecution of this just and necessary war.” (Emphasis added)

Why would people who did not believe they were in covenant relationship with God bother begging his “countenance and assistance?”[11]

Every one of the original 13 State Constitutions, in its freedom of religion clause or in its preamble, placed the state in some sort of subservient relationship to God, and nearly always it was crystal clear that this was the God of the Bible. The remaining 37 states would follow suit. A sampling:

Massachusetts: “to promote their happiness and to secure the good order and preservation of their government, the people of this commonwealth have a right to invest their legislature with power to…make suitable provision…for the institution of the public worship of God, and for the support and maintenance of public Protestant teachers of piety, religion and morality.”

Virginia: “all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practice Christian forbearance, love, and charity towards each other.”

Connecticut: “The People of this State being by the Providence of God, free and independent, have the sole and exclusive Right of governing themselves as a free, sovereign, and independent State;…”

If the atheists and secularists are to be successful in obliterating references to God from the public square, they really have their work cut out for them – but they are truly a persistent lot; Freedom from Religion Foundation and American United for Separation of Church and State have learned how to work the legal system, and FFRF in particular has sympathetic contacts in the Pentagon who have made great progress in turning the very regimented environment of the U.S. military into a “religion-free zone.”

As Gary DeMar makes clear in this essay, however, the phrases “One Nation Under God” and “In God We Trust” are not necessary to establish the truth of either phrase. All nations on the earth are under God, whether they acknowledge this fact or not; it is a feature of the creation. Psalms 22:28 states: “For the kingdom is the Lord’s, and He rules over the nations.” In Acts 17: 24-26 we read: “The God who made the world…gives to all life and breath and all things; and He made…every nation…, having determined their appointed times, and the boundaries of their habitation…”

Americans who deny this fact or fight to edit it out of history books or public view do not change it. So taking the phrases out of the pledge or off our currency would not change an eternal truth.

The Bible is replete with examples of God dealing with people as nation-groups. God judges the collective behavior of nations and renders judgement upon that behavior. “Nations are judged in our lifetime, not in eternity.”[12]

But is there some advantage or requirement for a people to publically acknowledge that they exist “under God?” And do they derive any benefit in doing so? Does God?

Luke 12: 8 tells us:

“…whoever publicly acknowledges me before others, the Son of Man will also acknowledge before the angels of God.”

This reciprocity is typically seen as an individual commandment to publically acknowledge faith in Christ, but could it also have a collective component, a national component?

II Chronicles 7:14 declares:

“If my people, who are called by my name, will humble themselves and pray and seek my face and turn from their wicked ways, then I will hear from heaven, and I will forgive their sin and will heal their land.”

“If…then,” a familiar statement to computer programmers, and a guarantee that if the “if” conditions are met, we can expect the “then” response.

Let’s step into the way-back machine and ask some Founders what they think: do they think it appropriate for a nation to acknowledge God and/or His providence.

George Washington, perhaps the chief beneficiary of God’s providence during the Revolutionary War, proclaimed as President: “It is the duty of all Nations to acknowledge the providence of Almighty God, to obey his will, to be grateful for his benefits, and humbly to implore his protection and favors.” Thanksgiving Proclamation, 1789

In his Thoughts on Government, John Adams wrote: “It is the duty of all men in society, publicly, and at stated seasons, to worship the SUPREME BEING, the great Creator and Preserver of the universe.”

In his request for prayer at the Constitutional Convention, feisty self-proclaimed-Deist Ben Franklin proclaimed:

“God governs in the affairs of men, and if a sparrow cannot fall to the ground without his notice, is it probable that an empire can rise without his aid? We have been assured, Sir, in the sacred writings, that “except the Lord build the House they labour in vain that build it.” I firmly believe this; and I also believe that without his concurring aid we shall succeed in this political building no better than the Builders of Babel: We shall be divided by our little partial local interests; our projects will be confounded, and we ourselves shall become a reproach and bye word down to future ages. And what is worse, mankind may hereafter from this unfortunate instance, despair of establishing Governments by Human Wisdom and leave it to chance, war and conquest.”

By the way, if this was the speech of a Deist, Franklin was clearly unaware of the tenets of his faith.

In Federalist No. 2, John Jay wrote:

“I often note with equal pleasure that God gave this one connected country to one united people — a people descended from the same language, professing the same religion, attached to the same principles of government, very similar in manners and customs, who by their joint counsels, arms, and efforts, fighting side by side through a long bloody war, have nobly established general liberty and independence.”

Samuel Adams issued this Proclamation as Governor of Massachusetts on October 13, 1795:

“That God would be pleased to guide and direct the administration of the Federal government, and those of the several states, in union, so that the whole people may continue to be safe and happy in the constitutional enjoyment of their rights, liberties and privileges, and our governments be greatly respected at home and abroad.”

Elias Boudinot, President of Congress:

“Let us enter on this important business under the idea that we are Christians on whom the eyes of the world are now turned… [L]et us earnestly call and beseech Him, for Christ’s sake, to preside in our councils. . . . We can only depend on the all powerful influence of the Spirit of God, Whose Divine aid and assistance it becomes us as a Christian people most devoutly to implore. Therefore I move that some minister of the Gospel be requested to attend this Congress every morning . . . in order to open the meeting with prayer.”[13] (emphasis added)

I could fill several pages with similar quotations. I think you get the picture; the Founders were not reticent in acknowledging their connection to the God of the Bible, and encouraging their fellow citizens to do likewise.

So let’s suppose for the moment that early American settlers were successful in establishing a covenantal relationship with the God of the Bible. Are we still in such a relationship yet today?

Deuteronomy 28:1: “Now it shall be, if you diligently obey the LORD your God, being careful to do all His commandments which I command you today, the LORD your God will set you high above all the nations of the earth. Another “if…then” statement. How well have we kept our end of the covenant? How well have we kept God’s commandments?

Not well at all. We’ve murdered 50 million of our unborn; we have racked up unimaginable debt and made totally unfulfillable promises to our citizens; we celebrate sexual immorality and castigate those who speak against it; we redefine a millennia-old institution created by God (marriage), with impunity. We send our children off to government-run schools without care for what they are being taught – our values or someone elses’? A good portion of our citizenry has even abandoned the basic concept of God.[14] If there was ever a nation that failed to live up to its covenantal responsibilities it is the United States of America.

Despite our consistent failure, has God kept his end of the Deuteronomy 28:1 covenant? In many ways America has indeed been “set high above all the nations of the earth;” but there is ample evidence we will not stay there forever, or even much longer.

The Bible demonstrates the fate of a nation that turns its back on their God; the Jewish nation discovered this more than once. In “God’s Final Warning to America,”[15] John McTernan, outlines a litany of natural disasters which he believes reveal God trying to get our attention. We as a people have rejected God, failed miserably to keep His commandments, and generally fulfilled the words of Judges 17:6.[16]

Nevertheless, the Bible also shows us the infinite forgiveness of God, provided there is true repentance. But how does this repentance occur? What is the spark?

America has seen many revivals in the past[17] and some have had great impact on both the people and the direction of their government (Many of the Founders were influenced by the First Great Awakening of 1740).[18] We desperately need another.

How much longer will God wait to come to the aid of America? Perhaps a better question would be: “How much longer will we wait to turn back to God?” A final question, equally pertinent, would be: “What will it look like if/when God withdraws from the Covenant?” In the opinion of John McTernan: “If God destroyed America tomorrow, He could not be accused of being too harsh.”[19]

Americans face a difficult choice: proclaim in their official pledge a relationship which they disbelieve, or affirm in the pledge a relationship which they believe to be true, but which is very much not in evidence as you look across this great land.

It is not too late to preserve this unique nation we call America, to restore the relationship we had with the God of Covenant, to truly become once again “One nation under God;” but the longer we wait, the more we flirt with our judgement.

 

We will be discussing this topic on “We the People, The Constitution Matters” on WFYL radio Friday morning, 19 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. 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] Minersville School District v. Gobitis, 310 U.S. 586 (1940)

[2] West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943)

[3] Elk Grove Unified School District v. Newdow, 542 U.S. 1 (2004)

 

[4] For a fuller discussion of this topic see: “The Real Lincoln” by Thomas J. DiLorenzo. (2002, Three Rivers Press).

[5] Zorach v. Clauson, 343 U.S. 306 (1952).

[6] The fuller version of this story can be found in “The Seed of a Nation – Rediscovering America” by Darrell Fields (2008, Morgan James Publishers).

[7] http://www.constitution.org/bcp/frampenn.htm.

[8] Keeping the Sabbath (Article I, Section 7, Clauses 2 and 3); Two witnesses required (Article 3, Section 3, Clause 1); the First Amendment’s reference to “religion,” which any fair reading of the debate in Congress will reveal reflected a desire not to establish any one Christian denomination as a national religion; and the Subscription Clause, which used the Judeo-Christian method of dating.

[9] Book 1 is subtitled: “From Birth through the Nineteenth Century,” Book 2 is subtitled: ”The Dawn of a New Day.”

[10] “The Light and the Glory”, “Sounding Forth the Trumpet,” “From Sea to Shining Sea.”

[11] http://lincoln.lib.niu.edu/cgi-bin/philologic/getobject.pl?c.27968:1.amarch

[12] Olivia M. McDonald, Acknowledging God in the Decisions of State, 2nd Edition: A Treatise on Biblical Statesmanship, p.1.

 

[13] Elias Boudinot, The Age of Revelation, or the Age of Reason Shewn to be An Age of Infidelity (Philadelphia: Asbury Dickins, 1801), p. xv, from his “Dedication: Letter to his daughter Susan Bradford.”

[14] http://www.pewforum.org/2015/05/12/americas-changing-religious-landscape/

[15] 1996, published by the author.

[16]In those days there was no king in Israel; every man did what was right in his own eyes.” (NASB)

[17] http://www1.cbn.com/cbnnews/us/2013/June/American-Revivals-Key-to-Shaping-US-History

[18] http://constitutionleadership.org/essays/The_First_Great_Awakening-Impact_on_the_Founding_Fathers.pdf

[19] “God’s Final Warning to America, p. 178.