Constitution Corner – The Right of Conscience

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

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

So how do you describe the right of conscience?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

America, what a country!

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

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

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

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

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

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

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

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

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

No longer.

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

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

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

[2] Isaiah 30:21.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Constitution Corner – The Rights of Illegal Aliens

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Let’s say a Mexican national decides to illegally enter America and is successful in doing so, but he then unfortunately steps into a quicksand pit and is slowly being sucked down despite his efforts to extricate himself.

A passerby, an American citizen, observes the man’s predicament.   Does the citizen first ascertain whether or not the man is a U.S. citizen, or even in the country legally, before deciding whether or not to throw him a lifeline?  Of course not; as Jefferson said, or implied: We are all created equal in the sight of God and are equally entitled to the enjoyment of certain unalienable rights endowed to us by our Creator; among which are the right to pursue happiness, enjoy liberty, and escape from quicksand, or something like that.

I think all Americans would agree that every human being should enjoy these unalienable, natural rights.  Obviously, many Americans do not.  Many Americans believe that until a person has first filled their lungs with air, and for some, even after that time, they can be killed, murdered, terminated, have their little spinal cord snipped or cranium crushed, whatever, all for the convenience of the person who carries them, or moments ago carried them, in their womb.

So as we approach the subject of rights for illegal aliens, we must realize that we as a nation have a long way to go before claiming Jefferson’s ideal of equality at creation, and that some in our country are far more willing to extend certain rights to lawbreakers than they are to the unborn.

Whether I think, or you think, or any American thinks illegal aliens should enjoy any of the rights secured by our Constitution, is, in the end, not that important.  What matters, at least in the near-term, is what does the Supreme Court think?  We’ll get to that in a moment.

I know, even as I say those words concerning the court, that I’ve committed an heresy , and even contradicted statements I’ve made in the past: the Supreme Court doesn’t have the final say on anything Constitutional, the people do.  But until the people act on the authority they have, the Court does.  That, unfortunately, is what our system of government has become.

Ever since Marbury v. Madison, when Chief Justice John Marshall carved out this special privilege the Court now enjoys, Americans have generally yielded to the Court’s opinion on any matter, even when the Court has been clearly wrong.

When the Court ruled, in 1896,[1] that separate bathrooms and drinking fountains for blacks were entirely proper and constitutional, it took nearly 60 years[2] for the people to say they disagreed, and “encourage” the Court to agree with them.

So here’s a question: in 1865, when Congress began working on what became the 14th Amendment, did they intend to have the privileges it extends and the protections it provides cover aliens in this country illegally?  The answer has to be clearly and unequivocally: no – for two reasons.  First, the focus at that time was clearly on slavery and how to rid the United States of it and its effects.[3]  Second, in 1865, the concept of an illegal alien was unknown.

Prior to the 14th Amendment Congress passed the Civil Rights Act of 1866,[4] guaranteeing citizenship to all Americans without regard to race, color, or previous condition of slavery or involuntary servitude. The Act was a direct attack on the infamous “Black Codes” that were passed by most of the southern states after the War for Southern Independence.  Black Codes restricted the movement of blacks, controlled the type of labor contracts they could enter into, prohibited them from owning firearms, and prevented them from suing or testifying in court.

When the Civil Rights Act reached his desk, President Andrew Johnson vetoed it.  Johnson objected to the fact that, at the time, 11 of 36 states were not yet represented in the Congress; he also thought the Act discriminated against whites and in favor of African-Americans.  Even after overriding Johnson’s veto, there were concerns in Congress whether the Act was constitutional.  In response, they drafted the 14th Amendment, and forced the southern states to ratify it or face continued martial law.

The 14th Amendment’s Section 1 states:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The critical clause for our discussion is the last one.  What did Congress mean by “any person?”  Did they mean to extend these protections to all “persons,” i.e., all human beings, regardless of their legal status in our country?  They distinguished between “citizens” and “persons” but did not consider a “person’s” lawful status.

Until 1875, there was no such thing as an “illegal alien.” Anyone in the country who had not become a citizen was simply an “alien.”  Aliens entered and left America at will.  If they stayed long enough to meet the rules for naturalization, they could voluntarily apply for citizenship, or not; if they choose not to become citizens, they could stay indefinitely as nothing more than an “alien.”

The Page Act of 1875[5] was the first attempt by Congress to control who would be allowed to legally immigrate to America.  That year it became illegal to enter the country if you were Asian, and you were coming to America to be a forced laborer, were intent on engaging in prostitution, or were considered to be a convict.  The “illegal alien” was born.

In 1921, Congress established the first immigration quotas[6] based on country of origin. Quotas based on national origin continued until 1965 when the Immigration and Nationality Act of 1965[7] initiated a system of preferences based on immigrants’ skills and family relationships with U.S. citizens or U.S. residents (while retaining by-country limits).

In “Yes, illegal aliens have constitutional rights,”[8] immigration activist and political consultant Raoul Contreras cites none other than James Madison in claiming that aliens should have the full protection of the Constitution.

In the Report of 1800, Madison wrote:[9]

“…Aliens are not more parties to the laws, than they are parties to the constitution; yet it will not be disputed, that as they owe on one hand, a temporary obedience, they are entitled in return, to their protection and advantage.”

According to Madison, “aliens” are entitled to “protection and advantage.”  But which aliens, those who are in the country legally, or illegally?  And which “protections and advantages.”

Would James Madison have extended his undefined “protection and advantage” to aliens in the country legally?  I think so.  Would Madison have extended these protections to aliens in the country illegally?   I think not, but I’m willing to be convinced otherwise.  And just what specific protections would Madison extend to aliens in either category?  We can’t know for sure.

After citing Madison, Contreras discusses several Supreme Court decisions which he says support his contention that illegal aliens enjoy “the full panoply of constitutional protections American citizens have with three exceptions: voting, some government jobs and gun ownership (and that is now in doubt).”  So what has the court said?

In the 2001 case of Zadvydas v. Davis,[10]  the Court decided that the Due Process Clause of the 14th Amendment applies to all aliens in the United States whether their presence here is “lawful, unlawful, temporary, or permanent.”

In 1982, in Plyler v. Doe,[11] the court said: “The illegal aliens who are … challenging the state may claim the benefit of the Equal Protection clause which provides that no state shall ‘deny to any person within its jurisdiction the equal protection of the laws.’ Whatever his status under immigration laws, an alien is a ‘person’ in any ordinary sense of the term.”

So thus far the Court has granted due process and equal protection provisions of the 14th Amendment to illegal aliens, based on the unrefined definition of “person.”  But then we encounter a problem with Mr. Contreras’ interpretation of Supreme Court opinions.

Almeida-Sanchez v. United States (1973)[12] centered on the warrant-less search of an automobile, 20 miles from the U.S. border, belonging to a Mexican national with a valid work permit to be in the U.S.  The search, conducted by the Border Patrol to determine whether illegal aliens were being carried in the car, instead found a large quantity of marijuana.  Almeida-Sanchez was convicted of the marijuana trafficking and the 9th Circuit Court of Appeals affirmed the conviction.  But the Supreme Court found the warrant-less search to be unreasonable and reversed the lower court.

According to Contreras, the Court decided that “all criminal charge-related elements of the Constitution’s amendments contained in the First, Fourth, Fifth, Sixth and the 14th, such as search and seizure, self-incrimination, and trial by jury, protected all non-citizens, whether in the country legally or illegally.”  Unfortunately for Mr. Contreras, the court reached no such conclusion (don’t take my word for it, read the opinion).[13]  Instead, the (6-3) majority ends by stating: “those lawfully within the country, entitled to use the public highways, have a right to free passage without interruption or search unless there is known to a competent official, authorized to search, probable cause for believing that their vehicles are carrying contraband or illegal merchandise.”  So while the Court affirmed the protection of the 4th Amendment for those aliens lawfully in the country it extended no such protection to those in the country unlawfully, nor do I find evidence that it found that any other protections of the Bill of Rights should be applied.

Based on this evidence, it seems clear that, in the eyes of the Court, at least the “due process” and “equal protection” provisions of the 14th Amendment apply to illegal aliens.  Aliens legally in the country enjoy additional protections as well, at least those of the 4th Amendment, perhaps extending to much of the Bill of Rights.

So I return to my earlier question: in 1865, when the 14th Amendment was drafted, did Congress see its protections extending to “persons” who had broken the law to arrive here?  I think not.  But as I have stated in the past, it is not so much what the drafters of a Constitution, Amendment or Statute intended, it is what they achieved that counts.  The drafters of the 14th Amendment used the word “person” in a general sense without discriminating between “lawful” and “unlawful” persons.  In 1865, no such distinction of aliens even existed; that came ten years later.  Had such a distinction existed, would the drafters have been more elaborative? One would hope.

In the eyes of the Court, perhaps this question is settled; but is it settled with the owners of the Constitution?  In that regard, I think the jury is still out. What do you say, America?  What rights should illegal aliens enjoy?  Are you content with those that have already been extended to them or would you like to see more, or fewer? If you think the Court erred in its use of the 14th Amendment’s “person,” you need to let someone know (and who would that be?).  Or you could just sit back and let the Supreme Court continue to dictate the policy of the United States.  I’m just saying…

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[1] Plessy v. Ferguson, 163 US 537 (1896).

[2] Brown v. Board of Education of Topeka, 347 U.S. 483 (1954)

[3] Slaves were freed by the 13th Amendment.

[4] https://en.wikipedia.org/wiki/Civil_Rights_Act_of_1866

[5] https://en.wikipedia.org/wiki/Page_Act_of_1875

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

[7] https://en.wikipedia.org/wiki/Immigration_and_Nationality_Act_of_1965

[8] http://thehill.com/blogs/pundits-blog/immigration/255281-yes-illegal-aliens-have-constitutional-rights

[9] https://founders.archives.gov/documents/Madison/01-17-02-0202

[10] https://en.wikipedia.org/wiki/Zadvydas_v._Davis

[11] https://en.wikipedia.org/wiki/Plyler_v._Doe

[12] https://en.wikipedia.org/wiki/Almeida-Sanchez_v._United_States

[13] https://www.law.cornell.edu/supremecourt/text/413/266

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

[1] http://www.acslaw.org/acsblog/%E2%80%9Cif-discovered-he-may-be-impeached%E2%80%9D-president-trump-and-the-foreign-emoluments-clause

[2] http://www.citizensforethics.org/

[3] https://www.brookings.edu/wp-content/uploads/2016/12/gs_121616_emoluments-clause1.pdf

[4] https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2902391

[5] https://www.gpo.gov/fdsys/granule/USCODE-2011-title5/USCODE-2011-title5-partIII-subpartF-chap73-subchapIV-sec7342/content-detail.html

[6] https://fas.org/sgp/crs/misc/R43660.pdf

[7] http://www.usnews.com/news/blogs/data-mine/2015/12/02/the-king-of-saudi-arabia-gave-over-13m-in-gifts-to-the-obamas-last-year

[8] http://www.1180wfyl.com/we-the-people-2017.html

Constitution’s Week in Review – 27 August 2016

Article 1, Section 2.  Apportionment

The original Constitution set Congressional representation at 1 Representative for every 30,000 persons.[1]  If this formula had remained in effect, the House of Representatives would today contain over 10,000 members.

What would have been the original first amendment had it been ratified in 1791 would have gradually increased the apportionment formula until it reached 1 Representative for each 50,000 persons.  Even at 1 to 50,000, the House would today contain about 6400 members.[2]

Back when communication was somewhat less than globally instantaneous, and telepresence still a science fiction, a legislative body of these proportions seemed unmanageable, and so the Reapportionment Act of 1929 was passed which capped the number of Representatives at 435.  In 1929, when the U.S. population stood at 121.8 Million, this meant each Representative must represent 280,000 persons.  Today, the average Representative must represent the interests of 750,000 individuals.  Good luck with that.

Providing the basis for this apportionment was an enumeration or census, to be conducted every 10 years:

“The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct.”

Our country’s first official census was conducted in 1790[3] and the last in 2010.[4]  The 2020 census is beginning to come onto political radar screens and looks to be as controversial as any previous.  What should be a simple counting project has proven to be anything but.

Certain elements of the U.S. government attempt to use the census to gain additional socio-demographic information they can use to shape their programs.  This means asking census questions that go well beyond a simple “enumeration” and intrude into personal information that some feel the government has no need to know or right to demand.

With apportionment, however, comes political power — 15 states are projected to gain or lose districts as a result of the 2020 census — and that means politically-motivated groups will seek ways to influence the outcome.  It should come as no surprise then to learn that certain political groups hope to influence the 2020 census to gain political advantage.

The Open Society Foundation, founded by George Soros, is funding key progressive groups[5] with the goal of attempting to “influence appropriations for the (U.S.) Census Bureau.” while pushing to change the methods by which racial categories are counted.  One big issue: do you count incarcerated individuals as residents of the jail/prison location or are they residents of their pre-incarceration domiciles?   With U.S. prisons bursting at the seams, this becomes an important question.  Watch for more on this as we get closer to the actual census.

First Amendment. A Win for Religious Liberty?

Genesis 1:27 tells us that God created humans as either male or female.  Although biologists point to several factors involved in determining gender during conception, gender, once set, is set; the idea that someone could actually change their gender after birth is of very recent vintage.  Only advances in cosmetic surgery have made the idea even approachable.  Of course, at the genetic level the idea is preposterous.  Despite all external attempts to portray oneself as the opposite sex, chromosomes have proven more resistant to change.

But now that the issue of homosexual marriage appears to have been settled, in the eyes of many, if not most Americans, gender identity is the new battleground.  Bathroom/shower-room use in the public schools gets a lot of the attention (as a side note: a Texas Federal Judge has blocked the Department of Education’s attempt to inflict gender confusion on the nation’s schoolkids).[6]  But trans-genderism is creating other controversies as well.  For instance, must an employer accommodate an employee’s announcement of gender “transition” at face value and retain that employee in their job?

A U.S. District Judge in Michigan has decided the answer to that question is “No,”[7] the employer can not only fire such an individual, they and can base their decision on their firmly held religious values, even if the business involved is not a church or other religiously-oriented organization.  I’ve no doubt this decision will be appealed and I fully expect it to reach the Supreme Court, where, based on our Society’s emerging hostility to religion, I predict the Court will strike down the decision and state that a firing decision cannot be based on religious views of gender.  But we’ll see.

Two Wins for Religious Liberty in One Week, What’s Happening Here?

The following story shows the strength of grass-roots efforts when properly marshalled.

The California legislature was set to pass SB1146.[8] Among its provisions was one preventing low-income students from receiving Cal Grants, California’s system of need-based education aid, if they attended colleges which restrict campus bathroom use based on biological sex.  Thanks to “hundreds and hundreds of phone calls,” Senator Ricardo Lara, a Democrat  and the bill’s sponsor, agreed to remove the offending clauses.

Kudos to the Becket Fund for Religious Liberty and the Southern Baptist Convention’s Ethics and Religious Liberty Commission which mobilized their members.  It can work!

Why Does the Federal Government Own So Much State Land?

In previous posts and in my seminar I complain about the extent of state land claimed by the federal government: 85% of Nevada, 70% of Alaska, 57% of Utah, and so on.  Article 4, Clause 2 gives Congress the power to “dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.”  Notice the words “dispose of.”  These imply that federal territory will not be held in perpetuity, only temporarily until it is either sold off or made into a state.  Environmentalists, of course, have no problem with the federal government sequestering such land from development and keeping it as wilderness “for the people;” otherwise, cash-hungry states would just sell it off to developers, and then “good bye Yellowstone!”  Now we learn there are a considerable number of conservatives[9] who see things the same way.  Apparently willing to put aside the issue of big government, they see these lands as a “national birthright” and demand they be protected from economic development, principally by keeping them under federal ownership.  What’s a Republican platform-writer to do?

Upcoming Events:

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

12 Sep, Lessons in Liberty – The Electoral College

The functioning of the Electoral College today bears little resemblance to the Framers’ intentions.  But rather than completely eliminate the “College” with an amendment, which would be the “constitutional” thing to do, groups like National Popular Vote have decided a final end-run is all that’s needed.  Can the Framers’ intent be restored?  Come find out on Monday, 12 September, 7-9pm at the Foundation for American Christian Education in Chesapeake, VA.  For those outside the local area, the presentation will be livestreamed.  Registration is $10 either way at www.face.net.

19 Sep, Christian Financial Concepts Webinar – The Electoral College Once Again

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

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

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] The word “residents” is not used, however, giving rise to the question of whether representation was intended to be based on “residents,” however temporary may be their residency, or “citizens,” or some other designation.

[2] For more on ratifying the original first amendment today see: https://americaagain.net/

[3] The U.S. population in 1790 was 3,929,214.

[4] The U.S. population in 2010 was 309,300,000.

[5] http://www.breitbart.com/big-government/2016/08/22/leaked-doc-soros-open-society-seeks-reshape-census-electoral-districts/

[6] http://patriottribune.com/44167/texas-judge-blocks-transgender/

[7] http://www.gopusa.com/?p=13949?omhide=true

[8] http://dailysignal.com/2016/08/12/what-conservatives-did-to-pull-off-religious-liberty-win-in-california/?utm_source=TDS_Email&utm_medium=email&utm_campaign=Top5&mkt_tok=eyJpIjoiWmpRME5qSTRPR001TTJNdyIsInQiOiJFbE9iRSsyekZicFlMNzByTUMza2xVQzlmSm1MOTdRSEpCY3NFNU5reVBzclI2QU5hRm5KSk1SNHB0WUtTcEVIcElLZXhEcW5wMTVyMmtnZXJyZ0lST1JEdHd6QnZxWHQyR25jOUxqTGFicz0ifQ%3D%3D

[9] https://www.yahoo.com/news/conservatives-split-over-u-land-transfers-western-states-104946810–finance.html

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

 

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

Open as PDF

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Were they justified in doing so?

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

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

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

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

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

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

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

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

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

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

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

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

So where is God’s Providence today?

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

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

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

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

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

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

[2] Thanksgiving Proclamation, 1789.

[3] October 12, 1816.

[4] Malachi 3:6 KJV.

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

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/

Constitutional Corner – The Character of a Prince

Open as PDF

“A Prince whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.”

As I pointed out in my last essay, the English government of the late 1700s would hardly be called tyrannical or despotic by an impartial, dispassionate judge.  The twenty-seven “abuses and usurpations” that Jefferson levies against the King and parliament struck at the heart of colonial expectations of self-government, but those actions could hardly be called tyrannical by modern standards (see North Korea, Soviet Russia, etc.).  Nevertheless, King George III was a useful and necessary target for the opening salvo of the Declaration’s “long train of abuses,” with repeated references to: “He has refused…, He has forbidden…, He has dissolved…, He has obstructed….,” and so on.  Jefferson had an admittedly tough assignment: convince colonial Americans, many of them firmly devoted to their King, to instead seek independence.  A tyrant was needed and so a tyrant the King became, at least from the Declaration’s perspective.

Yet a different picture of George emerges from other voices.  The blogger “Mad Monarchist” writes:

“King George III was as far from being a cruel, despotic tyrant as any man could be. He was, in fact, an upright, generous man of simple tastes, extremely devoted to his family and could, with relatively little opposition I think, be considered the most able and admirable monarch of the Hanoverian dynasty of Britain. This monarch who came to be so hated in America was very popular in Britain, even beloved.”[1]

Once the American Revolution was over, the King re-established diplomatic relations with his rebellious former subjects (you may recall the depiction of George receiving newly appointed Ambassador John Adams in the HBO movie, “John Adams”).  He also worked to ensure the United States remained a major trading partner of the British Empire.

The fact that two distinctly different portraits of George III exist is illustrative of the dilemma we face in judging the character of candidates for elective office today: good character does not equate to effective leadership and success in government.

Jimmy Carter is widely regarded as a sincere man of faith; generous and compassionate.  His Christian witness was readily apparent before, during and after his single term of office.  Yet his four years as Chief Executive are generally regarded as a policy disaster;[2] inflation ran into double digits yet economic growth stagnated, leading to the coining of the term “stagflation;” long lines were the norm at gas stations across the country; the Shah of Iran was removed from power, transforming the most progressive Muslim country in the Middle-East into the leading sponsor of Islamic terrorism; the Panama Canal, built with American dollars and technology was given away.

How could a good man be such a failure as a President that he was denied a second term?

How could George III, devoted father and husband, make such horrible decisions as King that he lost from his empire what eventually became the world’s leading economic power?

To one writer,[3] “being the American President is all about character.”  If that is the case, then Jimmy Carter had a fabulous presidency.

No, it is clear that good character is a necessary but not a sufficient condition for success as President, or as King; capability – capability that produces results – is equally important.

So, as Americans prepare to select a new President this fall (as well as 33 Senators and 435 Representatives), perhaps a review of Presidential character would be in order.

Christians are familiar with the guidance Jethro gives Moses in the Book of Exodus concerning the men to be chosen for Israel’s first republic: “able men, such as fear God, men of truth, hating covetousness”[4]

In Deuteronomy, the guidance is complimentary: “wise and discerning and experienced men.”[5]

This is admittedly not a lot to guide us.   But there is still more we can glean from the Biblical record.  Once the people of Israel demanded that Samuel appoint a king over them, “like all the nations,” the people soon found out (though they were warned[6]) that their experience with kings would generally not be favorable.  It appears from this listing of the kings of Israel and Judah[7], the people of Israel got the bulk of the “bad” kings while the people of Judah had a few good experiences.

Fortunately, our Constitution creates a President, not a king.  While Alexander Hamilton’s “British Plan” included a Chief Executive serving essentially for life (“during good behavior”), the Framers knew enough about man’s fallen nature to guard against a “President for Life.”[8]

There was little talk in the Constitutional Convention concerning the character sought in a Chief Executive — qualifications, yes, but discussion of character was handled with kid-gloves; the heir-apparent, George Washington, “the first character in the world,” was sitting before them on the dais.  While George III may not have been the perfect picture of a tyrant, America’s first president is generally regarded as the perfect picture of a gentleman.  Which other President, as a child, drafted Rules of Civility — and tried to follow them the rest of his life?

By the time of the Constitutional Convention, Washington’s character had reached near-mythic proportions and was well beyond reproach.  Nevertheless, Dr. Franklin observed that even if the President were not to receive a salary, the country “shall never be without a sufficient number of wise and good men to undertake and execute well and faithfully the office [of President].”

George Mason cautioned, however, that a way of removing an “unfit magistrate” was made necessary by “the fallibility of those who [elect the Executive],” as well as by “the corruptibility of the man chosen.”  Washington’s reaction on hearing these words is undocumented.

On the question of whether to give the Executive the power of a complete legislative veto, Roger Sherman was against it because “no one man could be found so far above all the rest in wisdom.”

The U.S. President enjoys nothing approaching the powers of King George III; the Framers were intent on that.  A relatively weak chief executive becomes a problem, however, when Americans start viewing their President as a King.  In such circumstances, he is doomed to fail; he finds he is powerless to produce the reforms the people demand or those he foolishly promised.  Then, out he goes, hat in hand after a single term.

Over the years, Americans have elected some enormously flawed Presidents, but should we celebrate those flaws as this article from the Washington Post[9] suggests?

The upcoming election is shaping up to be as much about character as policy, perhaps even more so.

Hillary Clinton’s behavior during her eight years as First Lady, eight years as Senator and four years as Secretary of State has provided ample opportunity for her character to be questioned.

The list of books and videos discussing flaws in Clinton’s character is long.  Therein she is variously described as “ruthless,” “vindictive,” “mendacious,” “venal,” “sneaky,” “ideological,” “intolerant,” “deceitful,” and an “inveterate liar.”  Some writers take pride in pointing out that Hillary was the first First Lady to come under criminal investigation during her stay in the White House. You can find an analysis of Hillary Clinton’s character/personality here.

Donald J. Trump, on the other hand, has been variously described as “ambitious,” “racist,” “sexist,” “narcissistic” (also said of Hillary), “arrogant,” “haughty,” “patronizing,” “obnoxious braggart,” “contemptuous,” “borderline psychotic,” and many others unfit to print.  One analysis of Donald Trump’s personality can be found here.

What character traits would I prefer to see in someone charged with leading the world’s most powerful military force?  They include the following:

Honesty.  First and foremost, we must be able to trust, explicitly, everything the President says, or every word and deed becomes suspect, including words about….

Faith.  Despite the words of Article VI, Clause 3 (“no religious test”), the President of a predominantly Christian nation should be one himself.  And so far, all but a few[10] of our forty-three presidents (Grover Cleveland served twice) have been church-going Christians.  Faith in a universe-creating omnipotent God produces humility and compassion (or it should), two essential traits for such a high office.

Fidelity.  No, not marital, although that is necessary as well; rather I feel a President should have fidelity to the Founders’ Constitution.  He should understand and be willing to uphold the principles of the Declaration of Independence as well as the Constitutional limitations of his office.  These principles, by the way, are incompatible with democratic socialism.

Bravery.  Not necessarily bravery in battle — although that should be seen as a “force multiplier”– but bravery when confronting difficult decisions, decisions that will affect the lives of millions of Americans, born and unborn.

Well spoken.  The President must be a communicator, and a superior one, and not just when reading teleprompters.  He must have sufficient command of the English language and the pertinent facts to speak clearly and forcefully — extemporaneously.

The character of our “Prince” is exceptionally important to our success as a nation.  I encourage all citizens to spend time over the next three months identifying and then pondering the character traits they feel should be exemplified by the next President of the United States of America, the greatest nation the world has yet seen.

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

[1] http://madmonarchist.blogspot.com/2009/07/monarch-profile-king-george-iii.html.

[2] http://www.americanthinker.com/articles/2007/08/jimmy_carters_human_rights_dis.html.

[3] http://www.forbes.com/sites/rickungar/2015/07/24/donald-trump-and-the-decline-of-american-character-a-cautionary-tale/#6d97af521557.

[4] Exodus 18:21, KJV.

[5] Deuteronomy 1:13 KJV.

[6] 1 Samuel 8:10-18.

[7] http://www.ldolphin.org/kings.html.

[8] For a great example of “President for Life” look up Idi Amin.

[9] https://www.washingtonpost.com/lifestyle/magazine/presidents-are-every-bit-as-flawed-as-all-of-us-lets-celebrate-that/2015/02/05/56d7e834-86d9-11e4-a702-fa31ff4ae98e_story.html.

[10] http://www.pewresearch.org/fact-tank/2016/02/12/almost-all-u-s-presidents-have-been-christians/.

The Constitution’s Week in Review – 16 July 16

Article 1 – The Legislature: Separation of Powers.

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

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

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

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

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

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

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

(D) without observance of procedure required by law;

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

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

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

the reviewing court.”

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

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

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

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

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

Article 2 – The Executive: The Candidates and the Constitution

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

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

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

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

Article 3 – The Judiciary

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

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

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

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

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

1st Amendment – Right of Conscience

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

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

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

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

2nd Amendment – Is it a Right for Everyone?

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

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

Recommendations and Events:

We The People – The Constitution Matters Radio Show.

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

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

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

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

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

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

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

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

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

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

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

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

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

The Constitution’s Week in Review – 9 July 16

Article 1 – The Legislature

A few of you may not subscribe to National Review magazine.[1]  That is unfortunate because NR has some of the best contributing writers in the conservative world.  Each issue is chock-a-block full of interesting articles.  Senator Mike Lee has written a particularly fitting one in the current issue entitled: “The Incredible Shirking Congress[2] (I know, it is easy to read the title as the “Incredible Shrinking Congress” at first glance).

Lee lays out a persuasive argument that our mess in Washington is largely Congress’ fault and won’t be fixed until Congress steps up to the plate and resumes the dominant role the Founders intended them to have in the national government.  Congress writes overly vague laws and allows executive branch agencies to “fill in the details,” which the unelected bureaucrats in those agencies are more than happy to do.  Lee points out that Congress passed and President Obama signed 3,291 pages of new legislation in 2014; but that same year executive agencies issued 79,066 pages of new regulations!  Congress also has abandoned regular order in the authorization and appropriate process.  Despite the President’s desire for deficit spending, Congress must appropriate every penny spent, so the blame for our $20 Trillion in official national debt sits on Congress’ shoulders alone.  Federal programs are routinely re-appropriated which have exceeded their authorized mandate and the annual “Pig Book[3] demonstrates that millions, if not billions, of wasteful spending takes place each year.

I encourage you to read the article in full, and then purchase a copy of Senator Lee’s book: “Our Lost Constitution,”[4] which more expansively lays out the problems that must be solved to return to true constitutional order in this country.

Article 3 – The Judiciary

Cultural Issues in the Courts.  I’ve been commenting on court cases with cultural impact for quite some time.  This week I learned of a website that does essentially the same thing and perhaps even better.  So I’m going to include a link to that site[5] in all future essays and hope you take the time to read their articles.

Here’s a nice analysis[6] of the impact my favorite Justice, Clarence Thomas, has had on the Supreme Court.

1st Amendment – Right of Conscience

More “Bias” Response Groups Appear.

Another “Bias Response Group[7] springs up, this time at Skidmore College, a liberal arts college in Saratoga Springs, New York.  Joining our police and firemen as “first responders,” the groups attempt to point out the obvious: we all have biases.  I’m biased (hopefully consistently) in favor of good over evil.  That is a bias we should wish on everyone.  But the Bias Response Groups are not interested in promoting “good” bias, only calling out “bad” bias (as they define it).

It was news to me to learn that writing the phrase: “Make America Great Again” on a college whiteboard reflects a “bad” bias (rather than support for Donald Trump).  Perhaps we are intended to take from this is that support for Donald Trump himself reflects a “bad” bias.

Regardless, you can see how quickly this can, and has gotten out of hand.  I wonder whether eight years ago a Bias Response Group would have come running if “Fundamentally Transform America” was found surreptitiously written on a college whiteboard.  These are not really Bias Response Groups, as anyone can plainly see; they are “Politically Incorrect Bias Response Groups.”  And Free Speech continues its slow but inexorable death in America.

Representative John Fleming [R-LA-4] and Senator James Lankford, [R-OK] have introduced the Conscience Protection Act of 2016 (H.R.4828 in the House, S.2927 in the Senate)

These bills (and similar ones) will provide legal protection for healthcare workers and organizations that do not wish to participate in or support the abortion industry in any way.  Although there is an email floating around stating that the House bill will be voted on on Wednesday, 13 July, the current House and Senate websites show both bills still tied up in either committee or subcommittee.  Nevertheless, if you support these bills, contacting the members of the committees or your own representatives would be an appropriate way to register your support.

The Effort To Destroy Christian Doctrine Continues.

The effort to push Christianity from the public square continues unabated.  Dating sites, like ChristianMingle.com,[8] with a publically Christian focus must now grant access to homosexuals seeking relationships with their same sex[9] even if that runs counter to the organization’s firmly held biblical standards.

Freedom of conscience continues to be transformed in America.  Soon you’ll be able to think whatever you want, privately.  If you try to express certain beliefs publically, or, heaven forbid, act on them, you will find yourself on the wrong side of the law.  Even some Supreme Court Justices, such as Associate Justice Sam Alito, are becoming alarmed at the mounting anti-Christian bias in the courts.

And Christian pastors remain silent.  Nothing to see here folks, move along.  Where does your pastor stand on this?  Do they deserve your continued support?

2nd Amendment –  Where Do We Go From Here?

Dallas. The tragedy in Dallas, overshadowing the two civilian deaths at the hands of policemen that preceded it (and which may indeed have sparked it), deserves more than a passing remark.

Reactions will be predictable: from the Left: disarm the public, who have demonstrated that they can’t be trusted to resolve anger without the use of firearms; from the Right: arm everyone and prosecute groups, like Louis Farrakhan’s Nation of Islam, which advocate violence against anyone, particularly the police.  Neither of these responses addresses the root problem: racial distrust.

In the wake of Dallas, the Minnesota officer’s reaction to the innocuous movement of hands by a black man who had just told the officer he was armed, takes on a new perspective.  Why would any armed white policeman fear a routine traffic stop with a black motorist (over a broken tail light, no less) enough to fire his weapon at the slightest movement of the motorist’s hands?  Is there any better illustration of the state of race relations in this country?  We have heard repeatedly that blacks fear confrontations with white policemen, now we see there is equal fear in white policemen over confrontations with black motorists.

Certainly the nation’s policemen, in the days and weeks which follow, have reason to be cautious, on or off the job, as further shootings of policemen have demonstrated.  And just as certainly, motorists and pedestrians alike must learn to calmly and explicitly comply with an officer’s instructions, avoiding any appearance of confrontation.

These events have revealed deeply ingrained opinions, whether right or wrong, whether justified or not, about other races, which points to the urgent need for dialogue.  We have to come together, talk to one another, and try to better understand each other’s point of view, each other’s prejudices.  We have to understand how these preconceived notions were created in the first place.  And then we need to develop better methods of resolving complaints.

Our nations’ churches are the most obvious and the best place for this dialogue to occur, and no doubt some courageous pastors have already taken steps to facilitate these discussions.  But many will not; many pastors have become so fearful of offending someone, anyone, so fearful of driving away a potential contributor, that they are paralyzed by their own fear.  They will boldly preach the Gospel, but purposefully avoid addressing cultural issues.  This must stop.

Is it a “No-Fly” or a “No-Buy” List?  More information continues to dribble out about individuals unfortunate enough to share a name with a known terrorist and end up on the FBI’s infamous “No-Fly List.”[10]  It is not so much that occasional but inevitable mistakes might be made by nameless unelected bureaucrats, it is the arduous, sometimes years-long process of rectifying the situation and getting your name removed from the list.  If you don’t enjoy the political pull of a Congressman or a state elected official, good luck.  It is called the “law of unintended consequences” and it works in conjunction with the 2nd Amendment as well.

4th Amendment.

I reported on this issue barely a month ago (4 June 16); it refuses to go away.

Could someone tell me why it takes “four years, two congressional hearings, and countless pleas to the IRS and Justice Department” to convince the IRS to return property it never should have taken in the first place?[11]  Pity the poor citizen who doesn’t think to involve his Congressional representatives in staring down this out-of-control agency.

The issue is “structuring,” a term applied to depositing or withdrawing your own money from your own bank account in a way that the IRS believes is intended to avoid mandatory reporting of transactions – such reporting becomes required at the “magic” $10,000 mark.  Disregard the fact that you may be keeping transactions below $10K merely to keep your bank from having to go through the rigamarole, the time and expense, of submitting what you see as unnecessary or even unconstitutional reports.

To the IRS you’re a drug dealer, pure and simple, there could be no other reason for your behavior, so, chucking your right of due process in the dustbin, the IRS seizes your bank account, all of it, apparently so you don’t try to withdraw the money and flee the country.

I’m sure there are many fine upstanding citizens working for the IRS.  I’m equally sure are many partisan apparatchiks trying their best to use the power of their office for partisan ends.  I reported recently (18 June 16) that the House Oversight and Government Reform Committee passed a “Contempt of Congress” resolution against IRS Commissioner John Koskinen.  I suspect Speaker Paul Ryan will refuse to bring the resolution to the floor for a vote.  If you agree with the Speaker’s action, do nothing; if you feel that is shirking a duty, the Speaker’s office awaits your letter, phone call or email.

Recommendations and Events:

Constitution Seminars.

I am now scheduling Constitution Seminars for the month of October.  If you want one for your church or community group, please let me know ASAP.

Last Call: 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.

The lecture will explore the divergence of both Christianity and the Jewish people from their covenantal, Hebraic roots, and will take on 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 http://www.face.net/.

We The People – The Constitution Matters Radio Show.

 

On Friday, 15 July, we will discuss the principle of “petitioning the government for a redress of grievances.”  This principle, mentioned in the Declaration of Independence, had a long history in English law and the colonists felt a moral obligation to use it before claiming the right of separation.  Parliament and the King ignored their petitions and forced both sides into a costly war.  In 1789, James Madison ensured we would continue to enjoy the right by securing it in the First Amendment.

 

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

 

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

[1] https://www.nationalreview.com/magazine

[2] https://www.nationalreview.com/magazine/2016-07-11-0100/legislative-judicial-branch-powers-warped

[3] http://www.cagw.org/reporting/pig-book

[4] https://www.amazon.com/Our-Lost-Constitution-Subversion-Americas/dp/159184777X

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

[6] http://dailysignal.com/2016/07/01/25-years-later-clarence-thomas-transformed-supreme-court/?utm_source=TDS_Email&utm_medium=email&utm_campaign=Top5&mkt_tok=eyJpIjoiWXpGalpUSm1aVEE0TUdSaSIsInQiOiJMVmZNMk12VktHM3hjVHI5Um1CZ1JUb3RjMVhKRnBteUtHb0xtYko4WDRMdXZaOVhweGwrWWs1NG4xXC85ZXFoblZKR29iRWlpSmoyM2hSRFc0MWlxbzY4XC82U1ZrN3o0R2loSEpkdGpYSjM0PSJ9

[7] http://eaglerising.com/34732/read-the-messages-left-on-college-whiteboards-that-were-deemed-to-be-racialized-targeted-attacks/

[8] https://www.christianmingle.com/

[9] http://www.theblaze.com/stories/2016/07/03/several-faith-based-dating-sites-now-required-to-allow-users-to-search-for-same-sex-matches/324760/?utm_source=Sailthru&utm_medium=email&utm_campaign=Firewire%20Morning%20Edition%20Recurring%20v2%202016-07-04&utm_term=Firewire_Morning_Test

[10] http://dailysignal.com/2016/07/03/fbi-flagged-this-congressman-as-a-terrorist-why-he-opposes-a-new-gun-ban/?utm_source=TDS_Email&utm_medium=email&utm_campaign=MorningBell&mkt_tok=eyJpIjoiWm1VNVpHSTVPVFF5T0dNMSIsInQiOiJPclV2b0NDSXJSbTZtT2IwOWRxRWpTSDRidmxXSW1JTFNsOFJ6NFwvbXFSMVwveWh2aGZPTFwvSkQ5WklZVFk4clptRXoxUWdhRkp3RVwvYTd1RDloZVlPZ2E2REszMExFMm56WnpwTllHb3liWGs9In0%3D

[11] http://dailysignal.com/2016/06/29/irs-to-return-30k-it-seized-from-maryland-dairy-farmers/?utm_source=TDS_Email&utm_medium=email&utm_campaign=Top5&mkt_tok=eyJpIjoiWXpGalpUSm1aVEE0TUdSaSIsInQiOiJMVmZNMk12VktHM3hjVHI5Um1CZ1JUb3RjMVhKRnBteUtHb0xtYko4WDRMdXZaOVhweGwrWWs1NG4xXC85ZXFoblZKR29iRWlpSmoyM2hSRFc0MWlxbzY4XC82U1ZrN3o0R2loSEpkdGpYSjM0PSJ9

The Founders’ View of Natural Law

Note: A few months ago someone in my area decided to form a Natural Law Discussion group.  I joined, and I’ve enjoyed some vibrant and informative discussions as we explored the long history of natural law, natural rights, and the key philosophers who, over millennia, have theorized about both.  Each member of the group takes turn researching and then presenting on one of the people who played major roles in expounding upon the subject: Aristotle, Aquinas, Hobbes, Locke, etc.  What follows is my contribution to the effort; it was presented to the group on 28 June 2016.

Natural Law and Natural Rights are enjoying a mild renaissance today, largely as a result of new interest in the Constitution and its Bill of Rights.  That this interest comes in response to blatant violations of constitutional order, including attacks on traditionally understood rights and principles by the Obama administration, particularly the right of conscience, is unfortunate, but proves the need for the renaissance.  Poll after depressing poll shows Americans to be Constitutionally illiterate, ignorant of other Founding documents and American history in general, and disengaged from the vital role all citizens must play in “keeping” the Republic.

The Founders believed wholeheartedly in Natural Law and Natural Rights; that much is easily demonstrated.  Jefferson’s invocation of natural law in the Declaration of Independence (“the laws of nature and nature’s God) as a means of justifying the colonists’ separation from Great Britain is certainly the most famous and widely known reference.  But beyond what we find expressed in the Declaration, what shape did the Founder’s understanding of natural law take?  What were the contours?

To answer that question we will first ask: Where and how did the Founding Fathers learn about natural law in the first place?

In one sense, they needn’t have studied the subject at all.  St. Paul wrote that God’s moral law, part of the natural law, is “written on the heart”[1] of each individual.  We intuitively know that we have the option of right and wrong behavior because God imprinted this information into our consciousness from the start.  But we know from experience and observation that the moral law written on each individual heart is not always perceived or acted upon correctly.  Sin clouds are ability to discern this law with complete accuracy.  A more complete revelation is thus needed and God supplies that, and supplied it as well to those of the Founding Period, through the Bible.  “[T]he Bible… was… found in nearly every home,” writes historian Forrest McDonald; and, we can add: read, studied and internalized.  William Bradford wrote in his famous journal, “On Plimouth Plantation,” that the Pilgrim settlers had no choice but to camp near their landing on the Massachusetts shoreline. They could not, “as it were, go up to the top of Pisgah to view from this wilderness a more goodly country.”  Bradford did not need to elaborate or explain his reference to an obscure mountaintop in the Middle-east where Moses first glimpsed the Promised Land, Bradford’s contemporaries would have instantly understood, and seen the parallel.

But the Founders learned during their classical schooling and in their later study as adults that there was more to Natural Law than what is revealed in the Bible alone.

In 1825, a year before he would die, Thomas Jefferson explained the reasoning behind the Declaration of Independence to old friend and fellow Virginian, Henry Lee.  Jefferson wrote: “All [the] authority [of the Declaration of Independence] rests … on the harmonizing sentiments of the day, whether expressed in conversation, in letters, printed essays, or in the elementary books of public right, as Aristotle, Cicero, Locke, Sidney, &c.”[2]

The “elementary books of public right” were also the elementary books of natural law.  The existence of natural law and the foundation it provided for natural rights was clearly one of Jefferson’s “harmonizing sentiments of the day.”  But an examination of the authors Jefferson cites in his letter to Lee confirms that the Founders were exposed to many different and not always “harmonizing” views of natural law.  Aristotle and Locke, for example, took decidedly different views of the subject, as did Cicero and Sidney.  Plus, the authors Jefferson cites were not the only ones the Founders read.  Every Founder of adequate means purchased and read many other books that either focused on or at least touched on the subject.

In his insightful essay: “A Founding Father’s Library,” historian Forrest McDonald lists many books that one could expect to find in nearly every Founder’s library — books such as: “The Rights of War and Peace” by Hugo Grotius, “The Laws of Nature and Nations” by Samuel Pufendorf, and “The Principles of Natural and Political Law” by Jean Jacques Burlamaqui.  Emmerich Vattel’s “Law of Nations” and “the celebrated Montesquieu’s” “Spirit of the Laws” were both favorites.  Sir William Blackstone’s “Commentaries on the Laws of England” and Edward Coke’s “Institutes of the Lawes of England” were digested by everyone undergoing legal training.  According to James Madison, Blackstone’s four volumes were “in every man’s hand.”  Another “elementary book[] of public right,” Algernon Sidney’s Discourses Concerning Government, over which he lost his head, literally, has been called the “textbook of the American Revolution.”[3] All these authors had something to say about natural law and natural rights and the Founders quoted from them all.

Interestingly, Coke and Blackstone, the two great jurists, both harmonized natural law with God’s law.  Blackstone explaining the “the laws of nature” this way: “This will of [our] maker is called the law of nature.  For as God, when he created matter, and endued it with a principle of mobility, established certain rules for the…direction of that motion; so, when he created man, and endued him with freewill to conduct himself in all parts of life, he laid down certain immutable laws of human nature, whereby that freewill is in some degree regulated and restrained, and gave him also the faculty of reason to discover the purport of those laws….Such among others are these principles: that we should live honestly, should hurt nobody, and should render to every one his due..” Blackstone explained the “laws of Nature’s God” by writing: “[D]ivine providence… in compassion to the frailty, the imperfection, and the blindness of human reason, hath been pleased, at sundry times and in diverse manners, to discover and enforce its laws by an immediate and direct revelation. The doctrines thus delivered we call the revealed or divine law, and they are to be found only in the holy scriptures.”

Constitution signer James Wilson summarized it this way: “The law of nature and the law of revelation are both Divine: they flow, though in different channels, from the same adorable source. It is indeed preposterous to separate them from each other.”

“By the 17th century, natural law philosophy had developed into a multifarious body of thought with distinct conservative and radical strains.  The conservative natural law school exemplified by such thinkers as Hugo Grotius, Thomas Hobbes, and Samuel Pufendorf drew decidedly authoritarian political implications from the natural law principle of natural liberty and equality.  They tended to emphasize a strong, and even absolute, version of political sovereignty and generally rejected popular self-government and the right of revolution.  For their part, radical natural law theorists such as John Locke, Benedict Spinoza, and Algernon Sidney built an argument for popular sovereignty on the bedrock principles of individual rights, especially the right to property and the right of conscience, as well as a natural right of revolution.”[4]

In addition to this philosophical divide, Aristotle and Cicero wrote of a purely natural law, not sourced in God, while Locke, Sidney, Blackstone and Coke all pointed to God as the origin of this law.  Hobbes and Aquinas took equally opposing views. How did the Founders distill these many conflicting viewpoints?

Despite this splintering of natural law theory, or perhaps because of it, by 1776, the British legal system had already begun to abandon natural law theory in favor of the supremacy of Parliament.  The Founders saw this sea change taking place and became more vehement in their insistence on natural law as the foundation for their rights.

Since the majority of the dominant Founders were lawyers, we can conclude that the view of Cooke and Blackstone prevailed over that of Cicero and Aristotle.  That is not to say that Cicero and Aristotle did not contribute to the Founders’ view of political philosophy in other significant ways.  While some Founders may have held to a purely naturalistic view of natural rights; the theistic view clearly predominated.  Carl Becker, scholar of the Declaration, concluded that “the natural rights philosophy was essentially at one with the Christian faith.”[5]

The Founders, some of them at least, also modified their views over time.  Early on, Thomas Jefferson was heavily influenced by both Coke and Locke. He constantly recommended Locke to his friends, provided Locke a prominent place in the curriculum of the University of Virginia, and even remarked that “Locke’s little book on government is perfect as far as it goes.”  Of Coke, Jefferson wrote: “Coke Lyttleton was the universal elementary book of law students and a sounder Whig never wrote nor of profounder learning in the orthodox doctrines of . . . British liberties.”

In 1770, young lawyer Thomas Jefferson defended a black slave of mixed-race heritage in an attempt to gain his freedom.  Jefferson argued (unsuccessfully) that “everyone comes into the world with a right to his own person and using it at his own will … This is what is called personal liberty, and is given him by the author of nature, because it is necessary for his own sustenance.”  In A Summary View of the Rights of British America (1774), Jefferson asserted that Parliament had no power to encroach “upon those rights which God and the laws have given equally and independently to all.”  Later, in his Notes on Virginia (1781), Jefferson warned: “… can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are the gift of God?”  In 1823, Jefferson toned down the theism of his previous writings: “We believed, with them, that man was a rational animal, endowed by nature with rights, and with an innate sense of justice…”[6] (emphasis added)

We should also note that of the three references to God in the Declaration of Independence, only the first was in Jefferson’s original draft, the other two[7] were added by the full Congress.

In his 1776 essay entitled: On the Right to Rebel Against Governors, The Reverend Samuel West says: “The most perfect freedom consists in obeying the dictates of right reason, and submitting to natural law. When a man goes beyond or contrary to the law of nature and reason, he becomes the slave of base passions and vile lusts; he introduces confusion and disorder into society, and brings misery and destruction upon himself. This, therefore, cannot be called a state of freedom, but a state of the vilest slavery and the most dreadful bondage. The servants of sin and corruption are subjected to the worst kind of tyranny in the universe. Hence we conclude that where licentiousness begins, liberty ends.”

This minister’s reference to “right reason” is pure Aristotelian, while his warning about “servants of sin” could have equally been said by Aquinas.

Samuel Adams, “The Last Puritan,” also mixed his references.  In The Rights of the Colonists, published in November 1772, he wrote: “If men, through fear, fraud, or mistake, should in terms renounce and give up any essential natural right, the eternal law of reason and the great end of society, would absolutely vacate such renunciation; the right to freedom being the gift of God Almighty, it is not in the power of man to alienage this gift, and voluntarily become a slave.”  Adams suggests we use our faculty of reason to conclude that our natural rights should not be alienated, because they are the gift of God.  The Founders say no conflict between reason and revelation; the two were not mutually exclusive, both had a role to play.

In an essay published in the Boston Gazette in August 1765 (two months before the Stamp Act Congress convened), John Adams insisted that: “[You have] rights antecedent to all earthly governments; rights that cannot be repealed or restrained by human laws; rights derived from the Great Legislator of the Universe.”

Adams later wrote that the principles of the American Revolution were “the principles of Aristotle and Plato, of Livy and Cicero, and Sidney, Harrington, and Locke; the principles of nature and eternal reason; the principles on which the whole government over us now stands.”[8]

The following Founders (at least) acknowledged natural rights and natural law in their writings: George Washington, John Adams, Thomas Jefferson, James Madison, Alexander Hamilton, John Jay, James Wilson, James Iredell, Oliver Ellsworth, Benjamin Rush, Gouverneur Morris, Roger Sherman, John Quincy Adams, John Dickinson, George Nicholas, James Monroe, Edmund Randolph, George Mason, Patrick henry, Richard Henry Lee, George Clinton, Elbridge Gerry, Sam Adams, John Hancock, and James Otis.  Samuel Bryan (“Centinel”), Richard Henry Lee ( “The Federal Farmer”?) , and Robert Yates “(Brutus”) all expressed their views during the ratification debates.

While perhaps not every single one of the Founders would agree that God was the source of natural law, they all agreed that natural rights sprang from that law, and they took every opportunity to document those rights.  Here is a partial list of key “rights” documents composed during the Founding Period:

  • 1639 – Fundamental Orders (Connecticut)
  • 1641 – Body of Liberties (Massachusetts)
  • 1677 – Declaration of the People (Virginia)
  • 1765 – Declaration of Rights and Grievances (Congress)
  • 1766 – An Inquiry Into the Rights of the British Colonies. (Richard Bland)
  • 1772 – The Rights of the Colonists (Samuel Adams)
  • 1774 – A Summary View of the Rights of British America (Thomas Jefferson)
  • 1774 – Declaration and Resolves (Congress)
  • 1775 – Declaration on the Causes of Taking Up Arms(Congress)
  • 1776 – Declaration of Rights (Virginia)
  • 1776 – Declaration of Independence (Congress)

 

Based on various writings and speeches of the Founders, following is a sampling of some of the rights attributed directly to natural law:

“all men are created equal” (Jefferson, Declaration, 1776)

“there is a parity of privileges,” (Alexander Hamilton, The Farmer Refuted, 1775)

there is a “right to remain in a State of Nature as long as they please” (Samuel Adams, 1772)

there is a “right to life, liberty [and] property,” (numerous writers)

there is a “right to support and defend (life, liberty and property)” (Samuel Adams, 1772)

“every natural Right not expressly given up or from the nature of a Social Compact necessarily ceded, remains” Samuel Adams, 1772)

there is a “right of self defense,” (St. George Tucker, View of the Constitution of the United States, 1805)

there is a right of the people to alter their government (James Otis, The Rights of the British Colonies Asserted and Proved, 1764)

there is a “a right …to nullify … all assumptions of power by others” (Thomas Jefferson, Kentucky Resolutions, 1798)

there is a right to “pursu[e]and obtain[] happiness and safety.” (Virginia Declaration of Rights, 1776)

there is a right to “conviction and conscience [over religious beliefs]” (James Madison, “Memorial and Remonstrance Against Religious Assessments,” 1785)

there is a right of “speaking, writing and publishing their Sentiments with decency and freedom; of peaceably Assembling to consult their common good, and of applying to Government by petition or remonstrance for redress of grievances.” (Roger Sherman, Proposal to House Committee of Eleven, 1789)

there is a right to “trial by jury” (Declaration of Rights and Grievances, 1765)

“Additionally, some Virginians included in their natural rights such concepts as … freedom from ex post facto laws, the right to an impartial judge, and a right to defend their liberties by force…”[9]

This may seem to some a meager list.  James Iredell of North Carolina envisioned one much larger.  At the North Carolina Ratifying Convention on July 29, 1788, speaking of the need for a Bill of Rights, he said:  “Let any one make what collection or enumeration of rights he pleases, I will immediately mention twenty or thirty more rights not contained in it.”

 

While the Founders may have struggled to identify and articulate all their natural rights, an impossible task really, they entertained no confusion over the relationship between natural law and civil law, the former must take precedence over the later.

“All positive and civil laws, should conform as far as possible, to the Law of natural reason and equity.” Samuel Adams, The Rights of the Colonists.

“Human law must rest its authority ultimately upon the authority of that law which is Divine.”  James Wilson, Of the General Principles of Law and Obligation.

“When human laws contradict or discountenance the means which are necessary to preserve the essential rights of any society, they defeat the proper end of all laws and so become null and void.”  Alexander Hamilton, The Farmer Refuted.

“Now all acts of legislation apparently contrary to natural rights and justice … must be in the nature of things, considered as void.  The laws of nature are the laws of God, whose authority can be superseded by no power on earth.  A legislature must not obstruct our obedience to him from whose punishments they cannot protect us.  All human constitutions which contradict His laws we are in conscience bound to disobey.  Such have been the adjudication of our courts.”  George Mason, as argued in Robin v. Hardaway, Virginia General Court, 1772.

Finally, what about abridgement of their natural rights?  The Founders accepted the notion that natural rights were subject to limitations imposed by the natural law.  “All natural rights,” said Jefferson, “may be abridged or modified…by the [natural] law.”  But “only as we have submitted to them.  The rights of conscience we never submitted, we could not submit.  We are answerable for them to our God.”  On another occasion Jefferson claimed “our liberty depends on the freedom of the press, and that cannot be limited without being lost.”[10]  “This abridgement could take the form of (1) consideration for the common good, (2) respect for the equal rights of others, and (3) realization that when the basis of the right is absent, the exercise of the claimed right can properly be denied.”[11]

In summary, America’s Founders believed in natural law and most believed it was a gift of their Creator.  The thinking of some Founders on the subject appears to have also been influenced somewhat by enlightenment thinking.  Regardless of the source of natural law, such law was discoverable and actionable as a means of invoking natural rights.  It was their natural rights that the colonists felt were being abused and usurped, and a new nation resulted.

So, what’s the point?  Why is it important to understand the Founder’s views of Natural Law and Rights?  First, as I tell all my classes, you must understand the Founders’ worldview, which includes their view of law and rights, to correctly understand any documents from the Founding Period.  Second,  As secular society attempts to push the Christian community further and further into the corners of the public square, the idea that our natural rights are a gift of God is being replaced with a secular equivalent: that all rights are purely and simply a gift of Government.  To the extent that American society accepts this counterfeit theory, true liberty is lost and is replaced by subservience to an almighty, omniscient, and omnipresent civil government.  That’s where we are headed as a nation, and the secularists are determined to win this battle at all costs; many Americans, however, refuse to believe there is even a war afoot.  True freedom rests then on conservatives and other patriotic, freedom-loving Americans to keep the torch of natural rights burning brightly and not let it be extinguished.

My involvement in this Natural Rights discussion group has been quite rewarding and intellectually stimulating.  Why don’t you consider starting one in your area?

Suggested reading:

Natural Law, Natural Rights: www.nlnrac.org/classical/

https://www.nccs.net/natural-law-the-ultimate-source-of-constitutional-law.php

http://www.shestokas.com/uncategorized/natural-law-and-the-legitimate-authority-of-the-united-states/

Phillip Hamburger, “Natural Rights, Natural Law and the American Constitutions” Yale Law Journal, Vol 102, pp. 907-960.

Diarmuid F. O’Scannlain, “The Natural Law in the American Tradition” Fordham Law Review, Vol 79, Issue 4, p. 1513.

Clarence Manion, “The Natural Law Philosophy of the Founders,” Natural Law Institute Proceedings.

Clarence Manion, “The Founding Fathers and the Natural Law: A Study of the Source of Our Legal Institutions,” American Bar Association Journal, Vol 35, No. 6 June 1949, pp. 461-464, 529-530.

Chester James Antieau, “Natural Rights and The Founding Fathers-The Virginians,” 17 Wash. & Lee L.Rev. 43 (1960), http://scholarlycommons.law.wlu.edu/wlulr/vol17/iss1/4.

Brutus on “Rights” http://press-pubs.uchicago.edu/founders/documents/v1ch14s26.html.

 

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

[1] Romans 2:15.

[2] Thomas Jefferson, letter to Henry Lee, May 8, 1825

[3] Caroline Robbins, “Algernon Sidney’s Discourses Concerning Government:Textbook of Revolution,” William and Mary Quarterly, 1947, 3rd Series, 4:266-296

[4] Lee Ward, Natural Law and the Colonial Roots of American Constitutionalism, accessed at: http://www.nlnrac.org/american/colonial-roots.

[5] Becker, What is Still Living in the Political Philosophy of Thomas Jefferson?, 48 Am. Hist. Rev. 691, 695 (1943)

[6] Letter to Judge William Johnson, June 12, 1823.

[7] “the Supreme Judge of the world,” “the protection of divine Providence,”

[8] http://www.nlnrac.org/classical/aristotle#_edn3

[9] Manion, p. 46.

[10] Letter to Dr. James Currie, Jan. 18, 1786.

[11] Antieau, p. 52.