Constitutional Corner – The War in the Courts

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

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

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

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

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

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

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

Which brings us to District Judge Mark A. Goldsmith.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Constitutional Corner – The Left’s War on Speech

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Here are my suggestions:

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

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

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

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

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

 

Constitutional Corner – Healthcare and the Constitution

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Constitution’s Week in Review – 30 July 16

Meanwhile in the States, it’s all about voting:

To review: There is no natural, unalienable right to vote; instead, voting is a civil right extended by society to certain citizens, as the society sees fit.  The Constitution does not create the right, it presumes it already exists as a function of representative, republican government and only proscribes limits on voting based on “race, color, or previous condition of servitude” (15th Amendment), sex (19th Amendment), inability to pay a poll tax (24th Amendment) and a certain age range (26th Amendment).  Outside these amendments, voting requirements are a function of state law.

A Governor’s Slapdown

Virginia Governor Terry McAuliffe attempted to grant pardons (and thus restore voting rights) to 200,000+ Virginia felons in a brazen move to gain Democrat votes in November.  Republicans in the Virginia Assembly sued and this week won a ruling by the Virginia Supreme Court that the Governor’s move was unconstitutional, such pardons can only be extended on a case-by-case basis.  Undaunted, the Governor announced[1] that those pardons already granted under his order (some 13,000 felons had already registered to vote) would be expedited and then he would proceed to grant the rest, one-by-one.  That’s a lot of signatures.  I don’t see what Virginia Republicans can do at this point.  The liberal press, of course, painted the Court’s decision as a great travesty of justice.

A State’s Slapdown

The 4th Circuit Court of Appeals struck down North Carolina’s new Voter ID Law, ruling it was intentionally discriminatory[2] and reversing a District Court that had sustained it.  With echoes of Justice Scalia, the Appeals court said: “In holding that the legislature did not enact the challenged provisions with discriminatory intent, the [District] court seems to have missed the forest in carefully surveying the many trees.”

Here’s what happened:  In 2013, the day after the U.S. Supreme Court removed the requirement for certain states to get pre-clearance by the Justice Department for any new voting laws (in Shelby County v. Holder), the Republican leader of the NC Legislature announced he would propose an “omnibus” bill to simplify the state’s voter ID law.  The new law[3] removed many types of IDs from the “acceptable” list (along with making some other changes).  The types of ID allowed under the new bill included:

  1. A North Carolina driver’s license, including a learner’s permit or a provisional license.
  2. A special identification card issued to non-drivers.
  3. A United States passport.
  4. A United States military identification card.
  5. A Veterans Identification Card.
  6. A tribal enrollment card issued by a federally recognized tribe or a tribe recognized by NC.
  7. A driver’s license or non-operators identification card issued by another state, the District of Columbia, or a territory or commonwealth of the United States (with certain restrictions).

Despite these multiple options of ID, the Appeals Court found that African-Americans disproportionately lacked IDs on the new list and thus were disproportionately denied access to the polls.  Apparently, there could have been no other motive of the legislature in enacting the law than voter discrimination.  In reaching its decision the Court placed great weight on the types of historical voting data the legislature requested as they crafted and passed the new bill; circumstantial evidence at best.

To give an idea of the significance of this case, read the list of organizations and states submitting amici briefs on both sides.  If this ruling is not appealed to the Supreme Court and overturned it will certainly open up challenges of similar Voter ID laws in other states.

As you can see in this article,[4] there are other challenges to Voter ID laws underway in other states, all timed to be complete before November.  North Carolina was a key swing state that a candidate hoping to attain the Presidency simply must win.  Texas (Veasey v. Abbott)[5] is as well.  I’ll let you draw your own conclusions.

The two voter-related decisions featured today (VA and NC) both rested on politically appointed judges; in the Virginia case a judge appointed by the Republican-controlled Assembly cast the decisive vote; in the 4th Circuit it was federal judges appointed by President Obama that made the difference.

As I’ve said before and will say again, the election in November will decide the fate of liberty in this country for the next 30 years; somewhere from 2 to 4 Supreme Court Justices will be replaced by the next President.  To quote Senator Lindsey Graham: “elections have consequences.”  If you intend to sit this one out, think again.

Here’s a well-written essay by Richard Epstein of the Hoover Institute[6] which takes on the question: “Are Voter ID Laws Racist?”  Epstein discusses a lot of the relevant Supreme Court decisions. His focus is the 5th Circuit’s decision in Veasey v. Abbott.  He forecasts: “[i]f Veasey survives [on appeal to the Supreme Court], it will be exceedingly difficult for any photo ID law to pass muster in the United States, at least in the absence of heavily documented instances of fraud, and perhaps not even then.

What can you do?  If you are concerned about opportunities for voter fraud, if you wish to keep voting as a privilege of citizenship and believe the concept “one-man(or woman)-one-vote” has value, then you best sit down with your state Senator and or Delegate and express your view.  Make no mistake, there are people and groups in this country who believe removing any and all restrictions on voting is the key to winning elections.

Secession Anyone?

On Friday, 29 July, on “We the People,” we discussed the portion of the Declaration where Jefferson complains that appeals to the British people, accompanying those sent to the British government, went unanswered, ignored.  In his original draft of the Declaration (the sentence didn’t make the cut) he implies that the British citizens should have tried to unseat or otherwise remove those members of Parliament who were causing the colonies the most trouble.  Instead the voters returned them to office.  In my comments, I pointed to contemporary complaints from all around the U.S. over the leadership by certain Republicans in Congress, yet the constituents of these gentlemen keep returning them in office as well.   History repeats itself, particularly if you ignore it.  At what point do you stop warning your fellow citizens and just go for the separation, vis-à-vis 1776?

Jefferson points out the principle:  a people contemplating separation from their government have a responsibility to communicate their frustrations and complaints to that government as well as to the general public.

This agrees with the guidance found in Matthew 18 (which Pastor David Whitney mentioned on the show) concerning the handling of complaints; we have a responsibility to communicate our grievances in an increasingly more public way.

Thus I’m waiting with baited breath to hear the complaints of the people of Texas, California and other states talking of seceding from the Union, their efforts have been invigorated by the successful BREXIT vote.

An article this week in Fortune magazine[7] outlines some of the more prominent secessionist movements, surprisingly found in states as diverse as California and Texas, Alaska and Vermont.  If Clinton wins in November, the movements in Alaska and Texas will probably grow in strength, while if Trump wins, it will be movements in California and Vermont that benefit.  The article cites Texas v. White where the Court ruled that a state couldn’t unilaterally leave the union, while hinting that a “negotiated” secession would be viewed as constitutional.

What do you think?  Can there come a point where continuing to remain part of the Union becomes untenable?  Can a state or even a portion of a state secede, or did the Civil War settle that question?  I’d love to hear from my readers on that question.  Leave comments on Fairfax Free Citizen or send me an email.

Recommendations and Events:

Book Recommendation – “American Underdog,” by Congressman Dave Brat

Those fed up with establishment politics will find the recounting of Congressman Dave Brat’s upset victory over House Majority Leader Eric Cantor in the 2014 election edifying.  And although the retelling of his come-from-behind victory makes interesting reading, the greater value of his book is not just in seeing that the people of Virginia’s Seventh District were able to “buck the machine” and send someone to Washington, but that Brat understands and respects the principles that made America successful as a nation.  Those can be organized into three categories: our Judeo-Christian tradition and all it entails,  the rule of law/constiutionalism, and free market economics.

I’ve been taking the time on my radio show to discuss the numerous principles we find in the Declaration of Independence and, before that, in a series on “American’s Fundamental Principles,” because I truly believe that the mess we find our country in today is largely if not completely the result of ignoring those principles.  If I’m right, true reform and prosperity will only come through re-incorporation of those principles into the way we run our governments, at all levels.  Congressman Dave Brat agrees.

But how do you do that without completely upsetting the apple cart?  How do you restore these principles to full operability?  Ah, there’s the rub.  But Brat has a plan, and a scant twelve years to make it work (he has pledged to be a 6-term Congressman, no more).  Get the book and see what he has in mind.

 We The People – The Constitution Matters Radio Show.

On Friday, 5 August, Pastor David Whitney will host “We the People – the Constitution Matters” as I recover from some surgery.  The scheduled topic is the phrase in the Declaration which reads: “Appealing to the Supreme Judge of the world for the rectitude of our intentions…”  I hate to miss that one, but I’m confident David and Phil will cover the ground admirably.  Perhaps I’ll call in if I feel well enough  Please join the discussion by browsing to www.1180wfyl.com  (Friday, 7-8am EDT). If you miss the recorded show, aim for the re-broadcast Saturday at 11am or Sunday at 2pm, or download the podcast at leisure.

Lessons in Liberty – Preserving America’s Religious Liberty.

On August 18th, the Foundation for American Christian Education’s Lessons in Liberty series will play host to Mrs. Victoria Cobb, President of the Family Foundation of Virginia, located in Richmond, Virginia.  Victoria will speak on “How We Can Preserve America’s Religious Liberty.”  How do Christians navigate a world trying to redefine marriage and even gender?  Victoria will discuss how we got to where we are and how she believes Christians should respond.  The event, as all Lessons in Liberty presentations, will be livestreamed. Registration and cost information can be found on the FACE website at www.face.net.

 Lessons in Liberty – Preserving America’s Religious Liberty.

Looking ahead a bit further, on Monday, 12 September, I’ll be the Lessons in Liberty presenter, speaking on: “The Genius of the Electoral College.”  More details later.

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

[1] http://townhall.com/tipsheet/mattvespa/2016/07/24/mcauliffe-to-circumvent-va-supreme-court-ruling-on-felon-voter-rights-will-issue-200000-clemency-grants-n2196994

[2] http://www.ca4.uscourts.gov/Opinions/Published/161468.P.pdf

[3] http://www.ncleg.net/EnactedLegislation/SessionLaws/PDF/2013-2014/SL2013-381.pdf

[4] http://campaign.r20.constantcontact.com/render?m=1116329745763&ca=d2a2bff2-b8a8-46ee-9240-f49798745a55

[5] http://www.ca5.uscourts.gov/opinions%5Cpub%5C14/14-41127-CV1.pdf

[6] http://www.hoover.org/research/are-voter-id-laws-racist

[7] http://fortune.com/2016/07/25/us-state-secession-brexit-election/

The Constitution’s Week in Review – 12 March 2016

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

Another suit[1] challenging Ted Cruz’s eligibility and another suit dismissed on a technicality, this time for missing a New York filing deadline. Still no ruling on the merits of the case.

Article 3. Replacing Scalia

Judge Robert L. Wilkins’ name wasn’t on the first list I saw of possible replacements for Antonin Scalia. This article[2] reads like someone is suggesting the President consider Wilkins.

He was nominated by President Obama to a District Court position in 2010 and unanimously confirmed, but three years later, when Obama tried to elevate Wilkins and two others to the District of Columbia Appeals Court, Republicans in the Senate blocked all three nominees, arguing that the court didn’t have sufficient workload to justify filling its three open positions (there are anywhere from 6 [1st Circuit] to 29 [9th Circuit] seats on an appeals court but cases are normally only heard by three-judge panels instead of “en banc,” meaning by the entire court).

Republicans actions infuriated Democrats enough that Harry Reid exercised what’s became known as the “nuclear option,” changing the Senate rules so that only 51, rather than 60, votes were needed to advance a nomination. Wilkins was ultimately confirmed, 55 to 43, a reasonably close vote. This would indicate that, were he to be nominated to the high bench and actually given a confirmation hearing, he would come under close scrutiny.

Apparently not taking the hint over Wilkins, later in the week it was leaked[3] that the President had narrowed his list of potential nominees to five. Surprise, surprise, four of the five donated to his election campaign. Federal judges Sri Srinivasan ($4,250), Jane Kelly ($1,500), Paul Watford ($1,000) and Ketanji Brown Jackson ($450) were all donors. Judge Merrick Garland apparently had enough sense not to do so. I wonder whether these judges could be impartial when hearing a case challenging executive orders. Hmmm.

First Amendment. “It’s not over till its over”

 Those concerned with the Supreme Court’s ruling in Obergefell v. Hodges (homosexual marriage) can take heart in the Alabama Supreme Court’s opinion this week that Alabama judges are bound to follow existing Alabama law, which prohibits the issuance of marriage licenses to homosexual couples, rather than the U.S. Supreme Court’s Obergefell opinion. The decision, although lengthy, should be read in its entirety and may be downloaded here.[4] Justice Moore quotes extensively from Chief Justice John Roberts dissent in Obergefell[5] (which you should also have read by now)

Justice Moore’s ruling (and the Supreme Court’s Obergefell ruling) can be best summed by this statement from Moore’s opinion: “That a majority of the [U.S. Supreme] Court may identify an “injustice” that merits constitutional correction does not dispense with the means the Constitution has provided in Article V for its own amendment. Although the Court could suggest that the Constitution would benefit from a particular amendment, the Court does not possess the authority to insert the amendment into the Constitution by the vehicle of a Court opinion and then to demand compliance with it.”

Please help ensure that Justice Moore’s opinion is passed to all who you think are (or should be) interested. Perhaps other states will take similar action.

 The Gall! I had never encountered the word “hubris[6] before the word was used derogatorily of the last Bush administration.   Now that I know what the word means, I see examples of it all the time, principally in the way the Obama administration acts towards “mere citizens.”

But this takes the cake: apparently the Justice department has held discussions[7] (and may still be doing so, for all I know) over whether it would be appropriate to bring civil charges against those speaking out against “climate change.” Freedom of thought and speech be damned, there is only one “truth” for this administration, and it will be enforced!

Property Rights. Want to build a pond on your land? Have all the state permits required? Be careful before you start digging, the EPA demands you also get their OK. Good luck with that.

The EPA and Army Corps of Engineers make tens of thousands of determinations each year that private property contains wetlands protected under the Clean Water Act (CWA). On March 30th, the Supreme Court will hear oral arguments in U.S. Army Corps of Engineers v. Hawkes Co. The case will decide whether landowners have access to the courts to challenge EPA rulings that their property contains such wetlands and thus makes them subject to federal regulation.

This coming Monday, March 14, from 12:00pm – 1:30pm, the CATO Institute will host Shauneen Werlinger, Legal Fellow at the Pacific Legal Foundation; and Steven Eagle, Professor at George Mason University School of Law to discuss this issue, focusing on the question: What recourse do landowners have when federal agencies decide that private property contains wetlands?

Thirty states are now suing to overturn the newest CWA rule expanding power over “waters of the United States,” but invalidating that rule won’t change existing federal control over individual landowners if the agencies continue to assert similarly overbroad judicial review authority. If you are concerned about this issue I encourage you to tune in to the CATO live event. I’m concerned, I’ll see you there.

 Constituting America’s 90-Day Study

There’s talk of the Republicans having a “contested” nominating convention this summer. Ever wonder how political party nominating conventions got their start? This essay by Professor Joseph Postell answers that question, as well as who encouraged the strengthening of the two-party system.

Upcoming Events.

Redefining Humans. It’s not too late to register for Dr. Mark Jumper’s presentation Monday night, 14 March, as part of the Foundation for American Christian Education’s Lessons in Liberty series. $10 will get you into the FACE classroom in Chesapeake, VA or provide you with the online streaming link to watch the presentation from the comfort of home. From the flyer:

“Our times have seen revolutionary changes in the norms of sexual and social beliefs and practices that, far from just changing norms, alter the very definition of human beings and of social structure. Dr. Jumper will name and analyze these trends and propose redemptive Christian responses, both of thought and of practice.” www.face.net to register.

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

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

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

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

[1] http://www.newsmax.com/Politics/judge-dismisses-ted-cruz/2016/03/08/id/718156/

[2] http://www.srnnews.com/possible-supreme-court-pick-championed-black-history-museum/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+SrnNewsUs+%28SRN+News+%C2%BB+U.S.%29

[3] http://eaglerising.com/31371/the-most-corrupt-administration-ever-just-announced-their-shortlist-for-the-supreme-court-and-the-list-will-infuriate-you/

[4] http://lc.org/PDFs/030416OrderDismissingPetitionsandMotionswConcurrence.pdf

[5] http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf

[6] http://www.merriam-webster.com/dictionary/hubris

[7] http://cnsnews.com/news/article/melanie-hunter/ag-lynch-doj-has-discussed-whether-pursue-legal-action-against-climate

Constitutional Corner – Restoring the Electoral College

Open as PDF

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.

 

The Constitution’s Week in Review – 5 March 2016

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

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

Article 3. Replacing Scalia

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

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

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

Seventeenth Amendment

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

 Constituting America 90-Day Study

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

Upcoming Events.

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

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

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

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

The Constitution’s Week in Review – 20 Feb 16

Article 2. Natural Born Citizen Clause (continued, ad nauseam).

Folks continue to come out of the woodwork, many with stellar conservative credentials, who think the case of Ted Cruz’ citizenship is a “slam dunk.” As I’ve said before in these pages, until the Supreme Court steps in, everyone is entitled to their opinion, but each will remain just that, an opinion. The Framers flat-out didn’t tell us what they meant by the phrase and all the circumstantial evidence remains circumstantial.

As this article points out we may soon have a judicial opinion from an Illinois judge, but if that opinion goes against Cruz he will surely appeal, and the appeals process will take some time. Meanwhile, the other three lawsuits proceed apace.

Article 3.

The world of law, indeed much of America, was shaken this week with the untimely death (at the brisk age of 79) of Supreme Court Associate Justice Antonin Scalia. With Scalia gone the court sits with three conservatives (Robert, Alito, and Thomas) one moderate swing vote (Kennedy) and four dyed-in-the-wool liberals (Ginsburg, Kagan, Sotomayer, and Breyer). As this article points out, the Court has also lost its Chief Mirth-Maker. Note: listening to oral arguments can be taxing but you get a sense for the plight of the poor lawyers who come unprepared.

Until Scalia is replaced you can expect some 4-4 ties; but that’s not to say that all decisions would result in ties; there have been several 9-0 decisions during the last eight years and everything in between. There are some incredibly important cases coming up this term and it is anyone’s guess how this will affect them. That’s not keeping some pundits from guessing.

Three important cases[1] have already been heard, and the Court has the option to order them reheard by the eight remaining Justices or just ignore Scalia’s now moot vote. Three more cases[2] are still to have their hearings, and Scalia would have played a big role in each, perhaps being tasked with writing one of the opinions.

The immediate question is: when will Scalia be replaced and what kind of jurisprudence will his replacement bring to the court? Will they be an originalist, as was Scalia, a moderate, or a progressive? With only one other originalist jurist still on the Court (Thomas) it would certainly be nice to see the President nominate someone of like-mindedness. But I’m not holding my breath on that. This Daily Signal writer thinks all the suspense over this issue proves that we have created a far-too-powerful Supreme Court. I agree; way too powerful.

President Obama will face considerable pressure from the Left to nominate a progressive, and would be disposed himself to do so. But he may surprise us all. If he nominates a “flaming liberal” it is unlikely the Senate will move to confirm at all, at least not until after the November elections and we see which party will be in the White House come January. If Obama actually wants to have his nominee confirmed he will nominate a moderate and thus throw the ball back into the Senate’s court (sorry for the pun).

But must the Court have nine justices? Article 3 of the Constitution provides Congress the exclusive authority to set the number of justices on the Court. The Supreme Court began in 1789 with six justices, moved to seven, then nine, then ten, back to eight, then finally settled once again at nine in 1869. It’s remained there ever since. FDR tried to pack the Court with six additional liberal justices in 1937 when the Court consistently refused to sanction his New Deal legislation. Fortunately, the Congress saw through the thin ruse and did not comply. If Congress wished the Court to remain at its present eight Justices they could pass legislation tomorrow so stating – providing the President didn’t veto it, unfortunately a near certainty.

The longest a Supreme Court seat has gone vacant was 391 days (in 1969-1970 when Abe Fortas resigned unexpectedly). Jeffrey Anderson, writing at the Weekly Standard, believes the Congress should just leave the Court at eight for the foreseeable future, and that there may even be benefits to this. Does the Senate have an obligation to confirm any particular nomination? No, but they will be under considerable pressure to demonstrate why the President’s nomination is singularly unfit for the highest bench. And that may be a tough case to make. Republicans have been castigated for talking delay, even as evidence that both Barack Obama and Hillary Clinton filibustered the nomination of Justice Samuel Alito.

Replacing Scalia with a liberal or progressive will tip the Court’s balance for quite some time, at least until the death or retirement of Ginsburg (83), Kennedy (79) or Breyer (78) gives the next President another opportunity. If a Democrat succeeds Obama in January all three of these jurists will probably quickly retire, confident their replacements will sustain the liberal presence. Stay tuned for a big fight this summer.

Property Rights.

Some farmers here in Virginia have had long standing fights with conservation easement managers over the proper use of the land the farmer owns or leases. The easement managers have imposed draconian requirements that threaten to put the farmers out of business, perhaps so that manager’s friends can come in and scoop up the land. Farmer Martha Boneta has had some success in getting the Virginia Assembly to come to her aid, and now a Virginia vintner has experienced success in court. The Land Trust will surely appeal, so we haven’t hear the last on this, but I’m certain that such trusts exist in other states and similar battles. Perhaps the citizens of other states can take heart at the successes here.

Upcoming Events.

Constitution Seminar for kids – 5 March. Youngsters ages 10-14 in the Tidewater, Virginia, area are encouraged to attend a seminar on the U.S. Constitution from 9am to 5pm on Saturday, 5 March at the Foundation for American Christian Education on Portsmouth Blvd. Held in partnership with Constituting America, the seminar focuses on the book by Juliette Turner: “Our Constitution Rocks.” Juliette will address the class live via Google Hangouts. There is a nominal charge of $5 per student and a box lunch will be served. Every student will receive a copy of “Our Constitution Rocks,” a pocket Constitution, and other informational materials. Email gary@constitutionleadership.org to register.

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

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] Voting rights (heard Dec. 8), Affirmative action (heard Dec. 9), Labor unions (heard Jan. 11)

[2] Abortion (to be heard March 2), Contraception (to be heard March 23), Immigration (to be heard in April)