Constitutional Corner – The War in the Courts

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

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

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

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

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

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

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

Which brings us to District Judge Mark A. Goldsmith.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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










Constitution Corner – Has Trump Violated the Constitution?

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Is Donald Trump receiving an “emolument” by allowing his hotels and other properties to rent rooms or office space to foreign governments, or their employees?  Is he “increasing his compensation” through his organization receiving tax breaks from the State of New York?  Some on the Left think the answer to both questions is “Yes,” and that such actions are a violation of the Constitution.  Some even call for impeachment.[1]  Are they right?

Citizens for Responsibility and Ethics in Washington,[2] or CREW has brought suit against the President.  Their suit, which does not seek any monetary damages, asks a federal court in New York to order the President to stop taking payments at his properties from foreign governments. This includes payments at Trump hotels and golf courses; loans for his office buildings from certain banks controlled by foreign governments; and leases with tenants like the Abu Dhabi tourism office, a government enterprise.

They claim doing so violates the “Emoluments Clause” of the Constitution, sometimes also referred to as the “Titles of Nobility Clause,” for reasons which are obvious upon reading Article I, Section 9:

“No title of nobility shall be granted by the United States: and no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.”

What constitutes a “present, emolument, office, or title” and why is the receipt of such things from “any king, prince, or foreign state” such a problem?

As Alexander Hamilton explained in Federalist No. 22: “One of the weak sides of republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption.”  Foreign influence was an area of great concern to the Framers of the Constitution and continued to be so in the eyes of the nation at large for many, many years.

We think the nation is divided today; in the first 20 years after the Constitution was ratified the nation was equally divided between Anglophiles and Francophiles.  Anglophiles, naturally, retained affection for the “mother country,” while Francophiles retained gratification for France’s timely aid in the American Revolution.  Neither side totally trusted the other, both charging that “foreign influence” was behind their words and actions.

You might wish that Mr. Trump’s opponents operated from the highest motives and were truly worried that such hotel rents might influence American foreign or even domestic policy.  You are free to wish that; this is a free country, what remains of it; but you are naïve to think so.  There is no doubt that such suits will be an everyday occurrence over the next 4-8 years; expect them.  The Left intends to confront this President at every turn.

If you consult the standard expositories on the Constitution you find almost nothing written about the Emoluments Clause.  The Annotated Constitution, which includes all pertinent court cases affecting the interpretation of each clause of the Constitution, mentions absolutely nothing concerning the emoluments portion of the clause, only the Titles of Nobility portion.

Warning: you will find constitutional scholars coming down on both sides of this question.  The leftist Brooking Institute,[3] concluded that the situation is indeed a violation, and every progressive website jumped on the bandwagon.  Then there’s a paper published in the University of Iowa College of Law Review[4] which argues that those bringing the suit have interpreted the clause too broadly, relying on a secondary dictionary definition.

Webster’s 1828 Dictionary says this:

EMOL’UMENT, noun [Latin emolumentum, from emolo, molo, to grind. Originally, a toll taken for grinding.]

And then it provides both a primary and a secondary meaning:

  1. The profit arising from office or employment; that which is received as a compensation for services, or which is annexed to the possession of office, as salary, feels and perquisites.
  2. Profit; advantage; gains in general.

Which definition should be used?  The narrower one (1) or the broader one (2)?

When determining the meaning of a Constitutional word it is usually safe to look for other uses of that word in the document.  We find “emolument” used two other times.  First, in Article 1 Section 6:

“No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.” (emphasis added)

Clearly the meaning of the word in this clause comes from the primary definition, the “salary, feels and perquisites” of a particular office.

During Hillary Clinton’s time as a Senator, the pay of the Secretary of State was increased.  She was thus ineligible to take the appointment.  In order for her to be confirmed and take that office after appointment by President Obama, she had to accept the original pay level of Secretary of State that was in effect when she became a Senator.  This was, I expect, gladly agreed to, given the alternative.

This “out” is known in Congress as the “Saxbe Fix,” after Senator William Saxbe who was confirmed as Attorney General in 1973 after Congress reduced the position’s salary to the level it had been before Saxbe’s term as Senator began.

So the question becomes: does the actions by the Trump Corporation somehow affect the pay of the President (Trump has declined his $400,000 salary and has instead accepted a $.01/year salary), or the perquisites or other benefits of the office.  Clearly no.

What about gifts as emoluments?

Congress, by statute, allows government employees to accept gifts from foreign governments worth less than $390 received as a souvenir or mark of courtesy.  Congress also allows more valuable gifts to be accepted, such as scholarships, medical treatment, food, lodging, travel arrangements when it appears that to refuse the gift would likely cause offense or embarrassment.  This is all spelled out in the Foreign Gifts and Decorations Act, Title 5 U.S.C. §7342.[5]

There is also a Congressional Research Service Report on this subject, Report R43660,[6] entitled: “The Receipt of Gifts by Federal Employees in the Executive Branch.”  You’re probably seeing a trend here: the focus is on gifts. But, like everything, “gifts” must be defined. “Gift” expressly includes, says the report, “any gratuity, favor, discount, entertainment, hospitality, load, forbearance, of other item having monetary value.”  Is renting a hotel room at fair-market value a “gift?”  Clearly no.

The late Saudi King Abdullah[7] gave President Obama and his family gifts valued at more than $1.3 million. They included an $18,000 watch for the president and a “diamond and emerald jewelry set including earrings, necklace, ring, brooch, and wristwatch” for Obama’s daughters, Sasha and Malia, estimated to cost $80,000.

Various Chinese officials have also been generous: President Xi Jinping gave Obama two computer tablets during a time his government is believed to have been carrying out large-scale hacking of American computer systems, including the database of federal employees.

Other government officials get gifts too. Gifts given to CIA Director John O. Brennan had the donors’ names removed because they might “affect United States intelligence sources or methods.” Brennan appears to have kept many of the gifts, including a “small decorative sword,” “for official use.”

Republican Senators Lindsey Graham and John McCain both received 4′ x 6′ rugs worth $4,000 from the attorney general of Qatar, and promptly deposited them with the secretary of the Senate.

Some nameless soul in the government has the interesting job of registering all these gifts; the justification noted for each of them: “non-acceptance would cause embarrassment to the donor and the U.S. Government.”

The CRS Report states: “Because of the considerations relating to the conduct of their offices, including those of protocol or etiquette, the President and the Vice President may accept any gift on his own behalf or on behalf of a family member, provided that such acceptance does not violate  §2635.202(c)(a) or (2), 18 USC §201(b) or 201(c)(3), or the Constitution of the United States.”

Supporters of the President point out that Mr. Trump is not renting these rooms, his corporation is.

Eric Trump, an Executive vice president of the Trump Organization, said Trump Enterprises has already taken more steps than required by law to avoid legal entanglements.  They have set up procedures to donate any profits collected at Trump-owned hotels that come from foreign government or guests, to the United States Treasury.  Is there even a “profit” from a single hotel room if the hotel, as a whole, lost money that night, if the corporation itself is losing money?

The president’s legal team argued that the Emoluments Clause does not apply to fair-market payments, such as a standard hotel room bill.  Echoing what I just concluded, they say the clause is only intended to prevent federal officials from accepting a special consideration or gift from a foreign power.

Of course Congress could defuse this issue immediately by passing a non-binding “Sense of the Congress” resolution stating that it views renting of hotel rooms or office space to foreign governments or entities to be in compliance with the Emoluments Clause.  But I doubt this Congress will do that.  There seem to be as many Republicans in Congress willing to “slow-roll” this President as support him.

There is another occurrence of “Emolument” in the Constitution.  It is found in Article 2, Section 1, Clause 7, and reads:

“The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.”

Notice the term: “United States” is used to mean both the national government as well as the States.

Critics of Trump point out that his corporation has in the past received close to $1 billion in tax breaks from New York State alone. These critics argue that if New York continues to offer such breaks, they will qualify as emoluments. If other states follow suit with their own tax benefits for Trump Enterprise projects, those will also be a problem.

One problem with all these suits against the President is standing, the plaintiffs have to demonstrate that they have been harmed by Trump’s action.  Have they?

The Citizens for Responsibility and Ethics in Washington argues that the President’s action has forced them to, quote: “divert essential and limited sources” from its regular government watchdog role and that they “will essentially be forced into the role of litigating and educating the public regarding (Trump’s) Foreign Emoluments Clause violations,” or so goes the complaint.

There is an expression in the Air Force pilot world that goes by the euphemism, YGBSM, which I will not explain here, but which expresses exactly how I view the group’s charge that they have been “forced” to bring this suit.  A watchdog group being forced to act as a watchdog? Pllleeeassseee!

Comedian Flip Wilson’s favorite excuse of long, long ago comes to mind: “The devil made me do it.”  Which translates in this case to: “We hate Donald Trump so thoroughly and completely that we intend to find any excuse whatsoever to obstruct his agenda and tie him up in court.”

I predict that if CREW or another group is somehow granted standing, and it is doubtful they will be, they will lose their case simply because of the steps the Trump organization has taken to isolate the President himself from any financial gain.  But what do I know?  Federal judges can be found to do anyone’s bidding these days.

But we should also note that Mark Cuban is being touted as a possible opponent for Trump in 2020.  Businessman versus businessman, mano a mano.  Yet, no one on the Left seems concerned about Cuban’s extensive business holdings, and I suspect that if he does emerge as the leading Democrat contender, some convenient excuse will be offered for why the Emoluments Clause is suddenly no longer a problem.

If there is a silver lining here it is that the American people are getting a good dose of Constitutional education, and it is likely to continue through the next four years.  Keep your seat belts fastened.

To hear the views of my other commentators on “We the People – the Constitution Matters” as we discussed this issue on 17 February 2017, download or listen to the podcast[8] of the show.

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









Constitutional Corner – Impeaching Hillary


Andrew McCarthy has an article in the latest National Review magazine entitled “Impeach Her” – the “Her” of course refers to none other than Hillary Clinton.[1]  McCarthy argues: “If the government were functioning properly, Congress would impeach Hillary Clinton, not refer her misconduct to the same administration that indulged it in the first place.”  While I highly respect McCarthy’s impressive track record of fighting corruption and terrorist threats, on this constitutional point, I believe he’s wrong.

Impeachment had been a part of English politics and law for centuries (at least since 1376).  Under the British Constitution, Parliament could (and still can) impeach anyone for any crime, even after they had left office.  Fortunately, Parliament doesn’t seem to have run amok with this unrestrained power.  In fact, it appears Parliament has impeached fewer officials than has the U.S. Congress.[2]

If you read Madison’s notes of the Grand Convention and/or Hamilton’s two Federalist essays which address the subject,[3] you clearly see that impeachment in the U.S. Constitution was intended by the Framers as a way to remove someone from federal office.  It follows therefore that someone no longer in federal service can’t be (or shouldn’t be) impeached.  Unfortunately for that theory, Congress has indeed impeached at least one federal official who was no longer in office.

In 1876, the Secretary of War, William W. Belknap, was accused of graft and corruption.  As articles of impeachment were being prepared in the House of Representatives, Belknap, knowing this, tendered his resignation to President Grant, literally hours before the House was scheduled to vote.  Instead of dropping the matter, as later Congresses would do when the accused party resigned,[4] the 1876 Congress continued with their impeachment.  Belknap was acquitted in his Senate trial.

I hesitate to point out that just because Congress does a thing doesn’t make it Constitutional.   I hope we can all agree on that point.  Just because the 1876 Congress failed to view impeachment correctly (in my opinion) and continued with a proceeding intended to discover, apparently, if now-citizen Belknap should be “removed from office,” this doesn’t make their action constitutional.

The eminent jurist, Joseph Story, seems to back me up, stating in his 1833 Commentaries on the Constitution that the impeachment power should be confined to “persons holding office.”[5]  In another place Story writes: “If, then, there must be a judgement of removal from office, it would seem to follow, that the constitution contemplated, that the party was still in office at the time of the impeachment.  If he was not, his offence was still liable to be tried and punished in the ordinary tribunals of justice.  And it might be argued with some force, that it would be a vain exercise of authority to try a delinquent [6]for an impeachable offence when the most important object, for which the remedy was given, was no longer necessary, or attainable.”[7]

But let’s recall that there are actually two penalties connected to impeachment in our Constitution: removal from office, AND “disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States” (Article 1, Section 3, Clause 7).  As written, imposition of the first penalty is clearly intended to precede imposition of the second.  But can an impeachment proceed for the sole purpose of imposing the second penalty?  The Constitution is silent on this question, so I’ll admit it resides in a gray area.  But I believe it would violate the whole tenor of impeachment to proceed on the basis of the “disqualification” penalty alone.

By the way, of nineteen Congressional impeachments of federal officials (excluding two Presidents), only two of the eight removed from office were additionally disqualified from future office-holding; Congress seems reluctant to permanently penalize someone removed from federal office.

A similar question came up recently on Quora,[8] with an important difference.  The requester asked “Could Hillary Clinton’s mismanagement of highly classified information be grounds for Day One impeachment proceedings against her?”  While it might be improper and unconstitutional to impeach Hillary now, as a private citizen, could she be impeached once she is re-established in federal service, even as President?

In other words, are the actions sparking the impeachment linked in some way to the office the individual held or are they attached to the individual herself (in this case)?

Most of the respondents on Quora said “No,” she couldn’t (or shouldn’t) be impeached.  But they based their opinion on the fact that Hillary was not indicted by the Justice Department (acting on the recommendation of the FBI).  No one approached the question from a Constitutional perspective.

Constitutional impeachment is appropriate when “High Crimes and Misdemeanors” have been committed.  “Crimes” are the violation of statute law and “misdemeanors” are maladministration or misconduct falling short of criminal activity.  Either, committed by a “high” official, constitutes grounds for impeachment.  The FBI decided only that Hillary was not guilty of criminal wrongdoing because she did not display criminal intent (mens rea).  They did not address (because it wasn’t their responsibility) whether Hillary was guilty of committing a “high misdemeanor” in the context of impeachment.

If Hillary Clinton was still performing as Secretary of State, it is clear she could and, I think, should be impeached, despite the FBI’s findings.  As long as she remains out of federal service I think she remains unimpeachable.

But what happens when Hillary resumes federal service in a capacity other than Secretary of State?  Does she then become impeachable?  Clearly she becomes impeachable, but on what charges?  Would her misconduct, her gross negligence in handling classified information of several years prior still be impeachable?  Obviously there is no statute of limitations on “High Crimes and Misdemeanors.”

Given the sparse words of the Constitution and a compliant Court, Congress now has the power to do most anything it wants, and I’m sure the Supreme Court would find the impeachment of a President Hillary Clinton, for her failures as Secretary of State Hillary Clinton, to be non-justicable.  So in the end, the judgment of propriety would fall on the owners of the Constitution: the people.  For a Republican-dominated Congress to proceed this way would be political suicide.

It is indeed unfortunate that Hillary Clinton’s recklessness with the handling of classified information, information she knew to be classified, even to the Special Access Program level, information almost certainly now in the hands of foreign governments and/or independent hackers, did not come to light until after she had left office.  Had the sequence been different I think it likely she would have, and should have been impeached and at least removed from office, if not disqualified from further office for that egregious breach of trust.  But I think the impeachment ship has sailed.

If you want to “impeach” Hillary, you’ll have to do so at the ballot box.  And that means you’ll have to show up; there is no sitting this one out.

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

[1] Note: I can’t seem to locate the article on National Review Online, but a slightly modified version is found here:


[3] Federalist #65 and #66.

[4] In 1926, Congress stopped impeachment proceedings when federal Judge George English resigned.  In 1974, the Senate terminated impeachment of President Richard Nixon when he resigned the office, and in 2009, Congress once again terminated proceedings when federal Judge Samuel Kent resigned.

[5] Joseph Story, Commentaries on the U.S. Constitution, 1833, §788.

[6] “One who fails to perform his duty, particularly a public officer who neglects his duty; an offender; one who commits a fault or crime.” Webster’s 1828 Dictionary

[7] Joseph Story, Commentaries on the U.S. Constitution, 1833, §801


The Constitution’s Week in Review – 2 July 16

Happy Birthday America!

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

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

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

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

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

Article 3 – The Judiciary

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

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

1st Amendment – Right of Conscience

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

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

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

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

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

2nd Amendment – Never Let a Shooting Go To Waste

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

 Recommendations and Events:

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

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

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

The cost to attend, either in the classroom or online, is $10.  Register at

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

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

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



[3] George Washington, Farewell Address, 1796.





The Constitution’s Week in Review – 18 June 16

Article 2 – Impeachment

We traditionally link impeachment to the Presidency, for good reason: impeachment is discussed in the Constitution in Article 2, which covers the Executive Branch, and we have indeed impeached two presidents (and almost a third).  But over the years we’ve impeached far more lesser officials, nearly all judges and justices.

Calls to impeach IRS Commissioner John Koskinen appear to have petered out, but there remains an effort to censure the man for his agency’s abuse of power and his obfuscation in the face of Congress’ attempts to investigate that abuse.

On 15 June, the House Oversight and Government Reform Committee voted on a censure resolution of Koskinen.[1]  The committee passed the resolution (HR 737) out of committee (23-15) to the full House for a vote.

 1st Amendment – Free Speech and Right of Conscience

Climate change proponents are becoming increasingly apoplectic when they encounter individuals (or companies) who would rather believe the science than the hysteria.  There are increasing calls for censoring anyone who is not yet convinced that man is going to destroy all life on earth if allowed to exhale willy-nilly (I’m only exaggerating slightly).  20 Democrat Attorneys General have banded together to make thinking differently about climate change and acting on those opinions a crime.  New York, California and the Virgin Islands are taking aggressive action using RICO statutes.

Break-break. In a bit of good news, on 14 June the House passed HR 5053: Preventing IRS Abuse and Protecting Free Speech Act.  The bill amends the Internal Revenue Code to prohibit the IRS from requiring a tax-exempt organization to include in annual returns the name, address, or other identifying information of any contributor.  Its fate in the Senate is unknown.

2nd Amendment – Never Let a Shooting Go To Waste

The reaction to the Orlando shooting has predictably been focused on the guns instead of the shooter.  It appears to be a complete mystery to some on the Left why an Islamist would want to kill homosexuals (see Quran (7:80-84) and Abu Dawud (4462)).

Barack Obama[2] and then Hillary Clinton[3] called for greater restrictions or renewal of a ban on “assault weapons” (no one in their right mind would use an AR-15 semi-automatic to assault anything if there were a true assault weapon available, but gun-grabbers are not easily deterred by definitions).

Not to be outdone, Homeland Security Chief Jeh Johnson called gun control a Homeland Security issue.  “We need to do something to minimize the opportunity for terrorists to get a gun in this country.”  Fine, although I would reword it slightly to say: “We need to do something to minimize the opportunity for terrorists already in this country to get a gun.”  But then who are the terrorists and how, really, are you going to “minimize” their opportunity to obtain a gun (this presumes they don’t already have one or more already)?  Johnson then suggested that people who find themselves on no-fly lists for some reason (like Fox News contributor Stephen Hayes did a couple of years ago) should not be able to purchase a weapon.  Assuming the list contained no errors, which we know is not the case, that would make sense and it appears Republicans are going to accede to the request.  More troubling, however, was Johnson’s inclusion of “various other lists” to screen purchase requests (What lists exactly? The IRS’ list of Tea party groups?).

Meanwhile, California continues to lead the nation in disarming its citizens.  Last week the 9th Circuit ruled[4] that California counties can require people who request concealed carry permits to show a specific reason why one is needed.   The judges didn’t bother to say what reasoning should be persuasive.  Since it is illegal to open-carry a weapon, loaded or unloaded, in most parts of California, the ruling would effectively leave most Californians (but not most criminals) unable to defend themselves outside their homes.  But hey, it’s becoming easier to have food and other goods delivered right to your doorstep, so soon the problem will solve itself.

Since the 9th Circuit’s ruling conflicts with those of other Circuit Courts it is likely the Supreme Court will be called upon to eventually settle the matter.  If Obama appointee Judge Merrick Garland is sitting on the bench by that time, I predict concealed carry will be disavowed as a 2nd Amendment protection.

Finally, we encounter Rolling Stone magazine’s call to repeal the 2nd Amendment.[5]  We knew this was coming.  Once the White House configured their website to read: “The Second Amendment gives citizens a right to keep and bear arms,” I knew it was only a matter of time before we would hear calls for repeal.  So fine, repeal the 2nd Amendment, and then show me where the Constitution grants the federal government the power to “infringe” gun ownership in any way.  It does not.  But alas, I forget; we long ago abandoned a Constitution of limited and enumerated powers in favor of one that, among other things, gives the Congress the power to define “General Welfare” any way they want.  Most Americans are oblivious of this point, however, and seem content to prefer a government that can provide their every need.

Towards the end of the week came news of the shooting of a British Member of Parliament, in supposedly gun-free Britain.

If any good comes from the Orlando tragedy it might take the form of a new awareness by homosexuals of their increasing vulnerability in light of the forced immigration of Muslims who have no intent to assimilate into American culture but who instead insist that Sharia govern both their lives and ours.   It appears homosexuals are getting the message.[6]  Wake up America!

p.s. As they noted on “The Five” after the shooting, if Mateen had tried to take on a biker bar instead of a gay bar, the outcome would certainly have been different.  Have you expressed your view of the 2nd Amendment to your elected officials recently?

4th Amendment – Search and Seizure: Civil Asset Forfeiture

In an amazing “Sicilian salute” to the 4th Amendment, the Oklahoma Highway Patrol (OHP) has purchased devices[7] that can empty gift cards you happen to be carrying if they suspect you have committed some crime.  Emphasis on the word “suspect.”   Due process of law is becoming a thing of the past at least in Oklahoma.

Note at the bottom of the linked article on this issue that the company providing OHP with the devices gets 7.7% of all money seized.  Hmmm.  One Oklahoma lawmaker promises to prohibit the devices in next year’s session, but we wonder how many Oklahoma citizens will suffer warrantless seizure in the meantime.

Recommendations:  I have a couple of books written or co-written by Brion McClanahan and I share his viewpoint on much of our current political mess.  Brion offers a neat little e-book on the “Forgotten Founders,” available as a free download, at:  I also encourage you to listen to his podcast: “Episode 22: Article V and the States.”

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

Lessons in Liberty.  It’s not too late to sign up for the next Lessons in Liberty presentation, 20-23 June, by Dr. Gai Ferdon of Liberty University.  Dr. Ferdon will speak on the topic of “The Welfare State: $20 Trillion Dollars Later.”  Participants may attend either in the FACE classroom or online via Livestream (7-9pm EDT).  The cost for the four-day seminar is $35, but if you want to only attend 1-2 evenings registration will be $10 per night.  Register at

STAND Awakening Conference.  I often describe Bishop E. W. Jackson as the “Energizer Bunny” of the awakening movement.  I’m glad I don’t have to keep his schedule.  He is now hosting a weekly radio show, has national conference calls a couple times each week and now is conducting a Conference[8] on 1-3 July here in Chesapeake, VA, that is chock full of good speakers.  I’ll see you there.

Principles of the Declaration.  For the next several  Friday mornings, 7-8 am EDT, we will be discussing the principles of the Declaration of Independence on my radio show: “We The People – The Constitution Matters.”  The topics for next week are the twin principles that government is formed for the simple and sole purpose of making unalienable rights secure, and that government obtains its just power to do so from the consent of the governed. You can listen live at  We’d love to entertain your questions or comments on the air (610-539-8255).


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









Constitutional Corner – Impeaching Obama

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

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

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

We begin with Article 2 Section 4, which reads:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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