Constitutional Corner: Natural Law Today – A Question of Rights

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

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

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

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

Good and wise men, in all ages, … have supposed that the deity, from the relations we stand in to himself and to each other, has constituted an eternal and immutable law, which is indispensably obligatory upon all mankind, prior to any human institution whatever. This is what is called the law of nature … Upon this law depend the natural rights of mankind: the Supreme Being gave existence to man, together with the means of preserving and beatifying that existence. He endowed him with rational faculties, by the help of which, to discern and pursue such things, as were consistent with his duty and interest, and invested him with an inviolable right to personal liberty, and personal safety … The Sacred Rights of Mankind are not to be rummaged for, among old parchments, or musty records. They are written, as with a sun beam, in the whole volume of human nature, by the Hand of the Divinity itself; and can never be erased or obscured by mortal power.”[2]

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

“You have rights antecedent to all earthly governments; rights that cannot be repealed or restrained by human laws; rights derived from the Great Legislator of the Universe.”[3]

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

“Kings or parliaments could not give the rights essential to happiness… We claim them from a higher source – from the King of kings, and Lord of all the earth. They are not annexed to us by parchments and seals. They are created in us by the decrees of Providence, which establish the laws of our nature. They are born with us; exist with us; and cannot be taken from us by any human power without taking our lives. In short they are founded on the immutable maxims of reason and justice.”[4]

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

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

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

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

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

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

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

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

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

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

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

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

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

Blackstone himself conceded it was not. He added:

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

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

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

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

And this was the view of the Founders.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

So where has been the legal profession in all this?

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

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

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

The tenets of legal positivism include:

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

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

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

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

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

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

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

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

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

 

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

[2] The Farmer Refuted, February 23, 1775

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

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

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

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

[7] Letter to Richard Henry Lee, 1825

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

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

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

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

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

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

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

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

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

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

Constitutional Corner – The Mind of James Madison, Part 1

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I had the pleasure of interviewing on my weekly radio show last Friday, author and professor, Colleen Sheehan of Villanova University.[1] Her recent book, “The Mind of James Madison, The Legacy of Classical Republicanism,”[2] deals with Madison’s “Notes on Government” project, a little known effort he took in early 1791[3] to put to paper his thoughts on what republican government is all about, at least certain of its features. The podcast of the show is available for download here. [4]

Sheehan’s book fills a critical void in understanding the political philosophy that Madison espoused. We can glean some of his ideas from the twenty-nine Federalist essays he contributed to Hamilton’s effort to get the New York convention to ratify the Constitution. But these were, by necessity, limited to those connected in some way to features of the Constitution. We know other ideas from the nineteen “Party Press” essays[5] he sent to college-chum Phillip Freneau’s fledgling National Gazette newspaper in Philadelphia, most of them based on the “Notes.” And we encounter others, as well as his combative style, in the Pacificus-Helvidius debate series[6] against friend-turned-political adversary, Alexander Hamilton (Jefferson wrote Madison: “For god’s sake, my dear Sir, take up your pen, select the most striking heresies, and cut [Hamilton] to pieces in the face of the public.” This, Madison proceeded to do). But these are mostly snippets; until “Notes on Government,” Madison had never taken time to sit down and organize his political philosophy in a methodical way, which is understandable given his near-continuous life of public service from 1776 to his election to the First Congress in 1789. This was a busy man.

The “Notes” were never published, indeed, they were never even finished; some chapters, such as “The Influence of Education on Government,” remained blank. But they covered some unique ground not addressed elsewhere.

Perhaps the most important chapter in the “Notes,” and one to which Sheehan devotes a major portion of her book, dealt with the influence of public opinion on government.

In Federalist 49, Madison stated that “All governments rest on opinion,” which Professor Sheehan notes might be a recapitulation by Madison of British philosopher David Hume’s “governors have nothing to support them but opinion.”[7] Madison describes public opinion as the “real sovereign” in a free government. One new revelation that struck me was Madison’s belief that governments are sometimes bound to obey public opinion, but that they can also influence public opinion. As Madison put it: “As there are cases where the public opinion must be obeyed by the Government, so there are cases, where, not being fixed, it may be influenced by the Government.”

In today’s climate of “fake news” — information designed expressly to skew public opinion — one wonders to what extent government, if it indeed is shaped by opinion, reflects a true expression of the public? One also wonders to what extent opinion is being shaped by the government itself – and how? Townhall meetings thus take on a new importance; not only do they allow the people to express their opinions to their elected representatives, they also, if used properly, allow the representatives to provide a “reality check” on the unrealistic expectations of their constituents. The American people, many of them at least, have created in their minds a false image of the purpose of government and, more importantly, its capabilities.  Townhalls, if attended, can help correct these false and unrealistic expectations.  “Whatever facilitates a general intercourse of sentiments, as good roads, domestic commerce, a free press, and particularly a circulation of newspapers through the entire body of the people, and Representatives going from, and returning among every part of them, is … favorable to liberty,” says Madison in an essay drawn from the “Notes.”

Sheehan’s book forms a great resource: it includes a full copy of the “Notes” as well as other related material, such as his famous “Vices of the Political System of the United States,” and a letter he wrote Jefferson in France to explain some of the features of the newly drafted Constitution. The Appendix takes up nearly half the book.

During our hour-long interview, Professor Sheehan and I explored other features of the “mind of James Madison” beyond those contained in the “Notes,” such as his view of religion, the church/state question and his personal view of slavery. Madison criticizes the existence of slavery in the “Notes,” noting that where it is condoned in a country or state, this can produce, over time, an aristocracy in which, at least in the example he gives of Virginia, can result in only about a quarter of the population having any real political power. Yes, Madison grew up among slaves, used them as his personal valets throughout his life, and inherited responsibility for Montpelier’s slaves upon the death of his father in 1801. Yet he did not free any of them in his will, as some men at the time did. Why? It is my belief, and the Professor’s, that the financial hardship imposed by Madison’s spendthrift adopted son, John Payne Todd, who found himself more than once in debtor’s prison, kept Madison so financially “off balance” that freeing his slaves would have placed the entire estate, and the well-being of his devoted wife, Dolley, in peril, something he could not bring himself to do. As it was, after Madison’s death in 1836, Dolley Madison was still left in severe financial hardship for the remainder of her life, having to sell her husband’s papers to Congress just to get by. Paul Jennings, Madison’s personal valet in the White House, was purchased and allowed to work for his freedom by none other than Daniel Webster. In his memoirs, Jennings writes of frequently being directed by Webster to drop off food and other goods at Dolley’s apartment in Washington.

We also discussed the issue of Free Speech that is being so contested today and how Madison might have viewed the controversy. If public opinion is so inexorably tied to government, anything that inhibits the free exchange of ideas and information can only be a detriment to the ultimate success of that government.

The Mind of James Madison, The Legacy of Classical Republicanism, is a great help to understanding this complex Founding Father. It is well worth the read. In future essays we will explore other aspects of “the mind of James Madison.” Stay tuned.

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

[1] http://www1.villanova.edu/villanova/artsci/psc/facstaff/biodetail.html?mail=colleen.sheehan@villanova.edu

[2] https://www.amazon.com/Mind-James-Madison-Classical-Republicanism/dp/1107029473

[3] Sheehan makes a compelling case that the Notes were mostly written between the adjournment of Congress on March 2, 1791 and the assumption of some extended travel with his friend Jefferson in late April of that year.

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

[5] http://teachingamericanhistory.org/newsletter/201007-2/

[6] http://teachingamericanhistory.org/library/document/the-pacificus-helvidius-debate/

[7] Madison almost certainly had a copy of Hume’s Political Discourses

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

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

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

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

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

In begins with these words:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Constitutional Corner – Mr. Gorsuch, Tear Down This Wall!

Constitutional Corner – Mr. Gorsuch, Tear Down This Wall![1]

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In the years immediately before and especially after the Civil War, Catholics began making up an increasingly large percentage of immigrants coming to the U.S.

“The Catholic citizens of Italy, Poland, parts of Germany, and the Eastern European kingdoms of what are now Slovakia and the Czech Republic began to cast their eyes towards America. The country had a growing world reputation for democratic ideals and work opportunity. For these peoples, as well as for French Canadian Catholics to the north of the United States and Mexican Catholics to the south, the chance for a new life free of poverty and oppression was too good to pass up. Millions of sons, fathers, and later whole families left behind their former lives and possessions and boarded crowded ships sailing for New York.”[2]

In 1850, Catholics were only five percent of the U.S. population. By 1906, they made up seventeen percent (14 million out of 82 million people)—and had become the single largest religious denomination in the country.[3]

Protestantism, however, with its many denominations, was still the dominant faith and was thoroughly infused in the public schools of the time. Each school day began with prayer and bible reading, from a Protestant version of the Bible, of course. Soon, Catholics and Jews began objecting to being excluded from this decidedly Protestant activity and began forming schools of their own. It was not long before Catholics began asking for (and getting) public funding of their schools similar to that provided the “common schools.”

In an 1875 speech to a veteran’s meeting, President Ulysses S. Grant called for a Constitutional amendment that would mandate free public schools and prohibit the use of public money for any and all “sectarian” (i.e. Catholic or other denomination-run) schools. Grant declared that “Church and State” should be “forever separate.” Religion, he said, should be left to families, churches, and private schools unsupported by public funds.[4]

In response to the President’s call, Republican Congressman James Blaine of Maine (say that three times, fast) proposed Grant’s amendment. It passed with a vote of 180 to 7 in the House of Representatives, but failed the 2/3 requirement by four votes in the Senate and thus was not sent to the States for ratification.

The proposed Amendment read:

“No State shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof; and no money raised by taxation in any State for the support of public schools, or derived from any public fund therefor, nor any public lands devoted thereto, shall ever be under the control of any religious sect; nor shall any money so raised or lands so devoted be divided between religious sects or denominations.”

Essentially, this would have extended the First Amendment’s Establishment Clause to the States[5] as well as address Grant’s school funding concern.[6]  Remember, this occurred prior to the 17th Amendment, when States still appointed and thus controlled their Senators. Given its overwhelming support in the House when compared with that of the Senate, pressure exerted by State legislatures on their appointed Senators seems the likely cause of the Senate-failure.

Seeing the amendment fail in Congress, States took the hint and began incorporating what would come to be called “Blaine Amendments” in their state constitutions; Missouri would do so in 1875, forming Section 7 of their Bill of Rights, which read (and reads today):

“That no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion, or in aid of any priest, preacher, minister or teacher thereof, as such; and that no preference shall be given to nor any discrimination made against any church, sect or creed of religion, or any form of religious faith or worship.”

Fast forward to the present.

One week ago, Judge Neil Gorsuch, formerly a judge on the 10th Circuit Court of Appeals in Denver, was finally confirmed by the U.S. Senate to sit on the U.S. Supreme Court. Democrats were determined to block the confirmation any way they could, partly in hope that a more liberal judge would be nominated to replace Gorsuch and partly out of hatred for having Judge Merrick Garland, President Obama’s choice, blocked by Republicans using their majority position in the Senate. To prevent a filibuster from derailing the nomination, Republicans were forced to fall back on a rule change made in 2011 by then Majority Leader Harry Reid. Republicans used a parliamentary maneuver to interpret Reid’s rule change to have included Supreme Court nominations and not just federal judges.

It is always interesting and somewhat amusing to see those on the Left, champions of democracy, don sackcloth and ashes when that same democracy fails them.

On Monday, April 10th, Associate Justice Gorsuch took his oath (two of them to be precise) and immediately plunged into the study of the fourteen cases that remain to be settled in the Court’s Fall 2016 schedule; three of them will heard on Monday the 17th.

The majority of these cases are pretty mundane.  Here’s an example: on April 26th the Court will hear Amgen Inc. v. Sandoz Inc.  At Issue is: “whether a biosimilar applicant is required by Title 42 of the U.S. Code Section somethingorother to provide the reference product sponsor with a copy of its biologics license application and related manufacturing information, which the statute says the applicant “shall provide;” and whether, where an applicant fails to provide that required information, the sponsor’s sole recourse is to commence a declaratory judgment under Title 42 Section whocares and/or a patent-infringement action under Title neverheardofit of the U.S.Code.” (minor license taken with the text)

Everyone still with me? Pretty exciting stuff, eh?

But there is one case on the docket with a connection to the previous discussion.  On Wednesday, April 19th the Court will hear Trinity Lutheran Church of Columbia v. Comer.  On the docket, the issue is framed as: “Whether the exclusion of churches from an otherwise neutral and secular aid program violates the Free Exercise and Equal Protection Clauses when the state has no valid Establishment Clause concern.”

Here’s what happened: A preschool and daycare affiliated with Trinity Lutheran Church of Columbia, Missouri, was denied a grant from the state of Missouri that would have provided public funds to the daycare center to purchase rubberized material (shredded used tires) with which to resurface their playground. The state’s rationale for denying the grant was based on, you guessed it, Section 7 of the Missouri Bill of Rights, quoted earlier.

The Church argued that the funds would be used for a purely secular purpose, protecting the safety of the children playing on the playground, clearly not a religious purpose.

If you’re interested, you can find the whole history of this case on Alliance Defending Freedom’s website,[7] (they are defending the church), and you can read, at last count, thirty-eight amici briefs on the SCOTUSBlog website,[8] some in support, some arguing against the church’s position.

On its face, the Missouri Constitution’s provision in question is self-contradictory and blatantly discriminatory against religion – all religion in fact: “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, section or denomination of religion.” Yes, but: “no… discrimination [shall be] made against any church, sect or creed of religion?”

Public money will be dispensed, for clearly secular purposes, but no religious institution can avail itself of these funds simply because it is a religious institution.

Before we go further here, I should point out that some claim our public schools are decidedly religious enterprises, that they espouse the religion of secular humanism and inculcate unassuming children in that religion’s tenets. If that be the case, and we wanted to apply Missouri’s Blaine Amendment fairly, no public money should go to any public school. Obviously that view, while I support it, is not held by a majority of Americans, even many professing Christians.

But the question must be asked: Is everything a church does an exercise of religion? First Corinthians 10:31 proclaims “… whether you eat or drink or whatever you do, do it all for the glory of God.”[9] Yes, everything we do should be done in such a manner that it will please God, but does that command alone make everything a religious activity? Should I brush my teeth in a manner that pleases God? Is there even a way to brush your teeth that pleases God, and a way that does not? I think that is a stretch. Brushing one’s teeth is, to my view, a secular activity.[10] There is no guidance in the Bible (that I’m aware of) that instructs us in how (or even whether) to do this.

Likewise, I believe there are completely secular activities that a church performs that cannot or at least should not, be viewed as religious. Keeping their parking lots clean — is this a religious activity? If you take 1 Corinthians 10:31 literally, I suppose it could be. But if a church allows their parking lot to be encumbered with trash, I think we would find it proper for the city to order them to clean it up. Keeping publically-accessible property clean is a completely secular, non-religious activity, subject, I think, to appropriate civil oversight. So would be maintaining a safe playground for their children. And if the playground contained hazardous or poorly maintained equipment that provoked injury to a child who used it, the church should expect to be sued, in civil court.

So here’s the nub: if there are public funds available to assist organizations in maintaining playgrounds upon which the community’s children (as well as the church’s) are allowed to play, money provided by taxes to which the church’s members along with the non-church public both contribute,[11] why can a church not avail itself of those funds for what is clearly a non-religious purpose?

I can understand the concern over the use of public funds to print Bibles, or pay ministers, or rent tents for an outdoor evangelistic campaign; that would clearly not be proper, those activities are fundamentally religious.

I’m also cognizant of the “slippery-slope theory.” If the Missouri Constitution’s provision is deemed excessively hostile to religion in general (which I think it is) and some church use of public funds is to be allowed, where to you draw the line?

The Preamble to the Missouri Constitution, approved in 1821, reads:

“We the people of Missouri, with profound reverence for the Supreme Ruler of the Universe, and grateful for His goodness, do establish this constitution for the better government of the state.”[12]

This statement comports nicely with President George Washington’s first Thanksgiving Proclamation, which read:

“… 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 favor …”[13]

It would appear Missourians are grateful to God, but not too keen about His churches.

At their core, Blaine Amendments were discriminatory in intent, to allow Protestantism to maintain its dominant position in public education. But thanks to the efforts of men like Horace Mann, John Dewey and others, Christianity has been successfully banished from public schools; even Christmas Carols are banned from the “winter holiday” program.[14] In this atmosphere, Blaine Amendments have been turned into a weapon in the secularists’ arsenal. What began as a cudgel to beat down Catholics has become sledge to exclude any and all religions from enjoying the fruits of general taxation, and such amendments serve to feed the rising tide of hostility towards all religion in this country.[15]

But wait, isn’t there to be an impenetrable wall of separation between Church and State?

The Supreme Court famously said so in 1947’s Everson vs. Board of Education:

“The ‘establishment of religion’ clause of the First Amendment means at least this: …[n]either a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation between Church and State.”[16]

As more eloquent commentators that I have said, an impenetrable, bi-directional wall was not what Jefferson had in mind as he penned his infamous letter to the Danbury Baptists.  Space doesn’t permit a detailed analysis – perhaps another day. For the impatient, see here[17] and here.[18]

I believe most Americans understand the vital role that religion, Christianity particularly, played in the formation of this country. I’m convinced that without Christianity there would have been no revolution of 1776, period – end of story. “Independence was boldly preached from Scripture throughout the thirteen original States during the American Revolution.”[19] “The Revolution was effected before the war commenced. The Revolution was in the minds and hearts of the people; a change in their religious sentiments of their duties and obligations.”[20]  Without Christianity being the dominant religion in the decades leading to 1776, I think we would be speaking today with a slightly different accent.  Is there a debt owed here?

So the question before us is whether we are to have this impregnable, insurmountable wall between church and state; a wall contrived by a contorted interpretation of a single phrase found in a single letter of a single American President; or whether we are to acknowledge that churches, like individuals, contribute to the common good, pursue both secular and religious activities; and that their secular functions should be eligible to compete for public funds on an equal footing with secular non-profit organizations.

I propose we make a statement that all children should enjoy safe playgrounds and that we the taxpayers should help make it so.

There are those who will argue (and have) that the Supreme Court should never have taken this case; they should have called this is a state issue to be worked out at that level.  But are “Blaine Amendments” constitutional?  Do they conflict with the spirit and intent of the First Amendment?  That is a question only the high Court can decide.

Others insist that the Scrap Tire Program is immoral: taking from one set of citizens to give to another, and that the church should abstain from participating on those grounds. That’s certainly the church’s choice, I would not begrudge it. While we’re on the subject or government programs, I do not believe the federal government should have gotten involved in retirement planning (Social Security) or healthcare (Medicare), but I’m not turning away the benefits my payroll withholding helped create.

I think Justice Gorsuch will side with me; but I don’t know which side of a certain 5-4 split he will find himself on. Based on his 10th Circuit opinions in Yellowbear v. Lampert, Hobby Lobby Stores, Inc. v. Sebelius, and American Atheists Inc. v. Davenport, I think he will conclude that the Missouri Constitution’s Blaine Amendment is overly hostile to religion and that granting public funds for this purpose does not create a conflict with the Constitution’s Establishment Clause.

Missouri’s Scrap Tire Grant Program has a secular purpose; awarding Trinity Lutheran the use of public funds for this purpose does not advance or establish their religion.

What say you, Justice Gorsuch? Should we start tearing down the wall?

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[1] With apologies to Ronald Reagan, Berlin, June 12, 1987.

[2] http://www.nationalhumanitiescenter.org/tserve/nineteen/nkeyinfo/nromcath.htm

[3] Ibid.

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

[5] Notice also that the Blaine Amendment, coming as it did seven years after ratification of the 14th Amendment, clearly shows that those in Congress who passed the 14th did not understand that it should be interpreted to incorporate the Bill of Rights against the states.

[6]  The Establishment Clause would not be incorporated against the States by the 14th Amendment until 1947 in Everson v. Board of Education.

[7] http://www.adfmedia.org/News/PRDetail/8831

[8] http://www.scotusblog.com/case-files/cases/trinity-lutheran-church-of-columbia-inc-v-pauley/

[9] 1 Corinthians 10:31 NIV

[10] Yes, we are to “pray without ceasing,” even while brushing our teeth; so I suppose the case could be made that brushing one’s teeth includes religious activity.

[11] The money is collected from a fee placed on tire disposal.

[12] http://www.moga.mo.gov/preamble.htm

[13] http://avalon.law.yale.edu/18th_century/gwproc01.asp

[14] http://www.huffingtonpost.com/2010/10/06/ban-on-school-christmas-c_n_751839.html

[15] http://www.frc.org/hostilityreport

[16] https://www.law.cornell.edu/supremecourt/text/330/1

[17] http://www.albatrus.org/english/goverment/church_&_state/false_separation_church_state.htm

[18] http://www.christianity.com/church/church-history/timeline/1801-1900/the-truth-about-the-wall-of-separation-11630340.html

[19] Library of Congress historian Catherine Millard in “Preachers and Pulpits of the American Revolution,” found at http://christianheritagemins.org/articles/Preachers%20and%20Pulpits%20of%20the%20American%20 Revolution.pdf

[20] John Adams, Letter to Hezekiah Niles, 13 February 1818.

Constitutional Corner – Sanctuary Cities and the Constitution

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On January 25, 2017, Donald Trump carried through on a campaign promise and signed Executive Order 13768[1] which declared sanctuary jurisdictions across the United States to be in willful violation of Federal law. Attorney General Jeff Sessions promised to enforce it.[2] Section 2(c) of the Order sets out to ”ensure that jurisdictions that fail to comply with applicable Federal law do not receive Federal funds, except as mandated by law.” The Order also contained a list of types of illegal aliens that are to be “promptly” deported. These include aliens who:

  • Have been convicted of any criminal offense;
  • Have been charged with any criminal offense, where such charge has not been resolved;
  • Have committed acts that constitute a chargeable criminal offense;
  • Have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency;
  • Have abused any program related to receipt of public benefits;
  • Are subject to a final order of removal, but who have not complied with their legal obligation to depart the United States; or
  • In the judgment of an immigration officer, otherwise pose a risk to public safety or national security.

In response, the list of U.S. cities declaring that they are sanctuaries, which began growing even during the Obama administration, increased dramatically. There are now estimated to be nearly 300 such cities, counties and even states[3] that have made such declarations. Several states are offering illegal aliens state driver’s licenses. Going one step further, Chicago offered “undocumented” immigrants money for legal fees to fight federal deportation. To see if your locality is a sanctuary, the most well maintained list I’ve found is here.[4]

So what are we to make of sanctuary cities and, if California carries through on its recent threat: sanctuary states?

There is nothing unlawful[5] in a city declaring itself a sanctuary city; the declaration is not the problem, the actions which may follow are. Usually, all a sanctuary city is asserting is that their city’s resources will not be utilized in helping the federal government enforce federal law, something the Supreme Court has said the federal government cannot force a state or city to do (refusing to cooperate is called “anti-commandeering”).[6]

However, it is a federal felony, punishable by five years in prison for each violation, for any person to conceal, harbor, or shield from detection any illegal alien. The word “harbor” is defined as any conduct that tends to substantially facilitate an alien’s remaining in the U.S. illegally.

The Supreme Court rejected arguments (in Reno v. Condon) that a state or local government’s refusal to supply information requested by the federal government should be protected. Providing requested information was not seen by the court as “enforcing” a federal statute.

Furthermore, the 1996 Illegal Immigration Reform and Immigrant Responsibility Act prohibited any Federal, State or local government entity or official from restricting any other government entity or official from sending to, or receiving from, the [Department of Homeland Security] information regarding the citizenship or immigration status, lawful or unlawful, of any individual.”[7] To get around this, sanctuary localities make it a point not to determine an apprehended person’s immigrant status; they can’t provide information they don’t have, right? Sort of “Don’t ask, don’t … ask?”

So it appears the sanctuary cities do not have much legal “wiggle room.” They can’t be forced to detain individuals at INS request; they can’t be forced to apprehend illegal immigrants who have committed no other crime, but that’s about it. They can be prosecuted for refusing to provide information on aliens in their custody, and they can be prosecuted for shielding aliens they do apprehend, provided they know the alien’s status.  But can the federal government withhold funds solely on the basis of a sanctuary declaration?

As a Reuters study points[8] out, there is a lot of money at stake; tens of billions of dollars.  Here’s a chart[9] that will put the funding in perspective for you.

The problem for Mr. Trump is that in some cases Congress expressly authorizes specific amounts to specific locations, in others the Executive branch is given great discretion in terms of where and how the funds are to be allocated. Some examples of programs where funds could conceivably be cut: the Community Oriented Policing Services program (COPS) provides grants to pay for school resource officers; the Edward Byrne Memorial Justice Assistance Grant Program (JAG) funds a variety of state and local law enforcement expenses, including court, crime prevention and education programs; the State Criminal Alien Assistance Program (SCAAP) funds a program that helps local police departments with incarcerated undocumented immigrants fund their corrections facilities and the salaries of their officers.

Faced with the potential loss of critical law enforcement funds, some localities have had second thoughts or have even reversed an earlier declaration.  Other localities have protested vigorously when their name has shown up on a sanctuary list.

If it weren’t for America’s history regarding slavery, the sanctuary issue would be much simpler.

The Constitution states[10] that: “No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.” A 1793 law made it a crime for slaves to escape from a slave state to one where slavery had been banned. Finally, the Fugitive Slave Law of 1850 expanded the authority of federal law enforcement officials in apprehending fugitive slaves. As a result, the Underground Railroad[11] was born.  As many as 100,000 escaped slaves may have been “transported” to freedom.

Are today’s sanctuary cities and the Underground Railroad morally equivalent? Is a fugitive slave the same as a fugitive illegal immigrant? Some think so; I think not. The slave did not choose his slavery (although he did choose to escape), the immigrant chose to enter the country illegally or overstay his visa.

While harboring a fugitive from justice is often claimed to be an act of conscience, as we have seen, it is also illegal and the offender is subject to prosecution. Because of this, Catholic churches have been urged[12] to use caution before leaping into the sanctuary pool. As lawyer and Jesuit Father Bryan Pham points out in On Becoming a Sanctuary: Five Points For Catholic Institutions To Consider: “The housing of undocumented people is not necessarily covered under the First Amendment.”

Some in the sanctuary movement, members of other Christian denominations, point to the “cities of refuge” discussed in the Bible:[13] There it says: “Speak to the people of Israel and say to them, ‘When you cross the Jordan into the land of Canaan, then you shall select cities to be cities of refuge for you, that the manslayer who kills any person without intent may flee there.’ The cities shall be for you a refuge from the avenger, that the manslayer may not die until he stands before the congregation for judgment.” (Emphasis added)

Notice that refuge cities were established for one circumstance: inadvertent manslaughter.  Any “run-of-the-mill” criminal could not claim refuge. Even an inadvertent manslayer could claim refuge only until a trial was conducted (or the High Priest died before a trial could be conducted).

Some Christian churches in America have a long history[14] of receiving and housing true refugees from oppression, at times even smuggling them into this country. The problem here is determining who are the true refugees from violence or oppression and who are simple economic immigrants; how do you determine who is which? Illegal immigrants know exactly what to say if/when they are apprehended?  Even then, the smuggling of true refugees remains a problem.

Pointing to their “venerable role in human history,” Associate Professor of English at UC Irvine, Elizabeth Allen, pleads in an LA Times OpEd[15] that sanctuary cities must continue to exist since they have “long been an escape valve for society.” “The sanctuary cities of the 2000s are part of this American tradition.” Tellingly, Professor Allen wastes no ink recounting the economic effect of illegal immigration.[16]

I think the religious or moral case for providing sanctuary to illegal immigrants is very weak, and thus far I haven’t noticed anyone trying to make a Constitutional case for sanctuary cities, perhaps there’s a lesson there.

“Sanctuary Cities” sounds all lofty and moral, and may even give some citizens a warm-fuzzy that they are “doing their part for the oppressed.” But if you are an official in such a city, don’t be surprised if you are prosecuted for harboring aliens, and don’t complain if you’re incarcerated for doing so. Just saying.

[1] https://www.federalregister.gov/executive-order/13768.

[2] www.washingtontimes.com/news/2017/mar/27/jeff-sessions-says-hell-punish-sanctuaries-cities.

[3] http://www.washingtonexaminer.com/map-over-200-sanctuary-cities-in-32-states-and-d.c./article/2567880.

[4] http://www.ojjpac.org/sanctuary.asp.

[5] https://townhall.com/columnists/judgeandrewnapolitano/2016/12/08/are-sanctuary-cities-legal-n2256429.

[6] In Prigg v. Pennsylvania (1842), the Court ruled that the federal government could not force states to implement or carry out the Fugitive Slave Act of 1793. In Printz v. United States (1997) the Court ruled that localities could not be forced to administer part of a firearm background check program.

[7] 8 U.S.C. § 1371(a).

[8] https://www.alipac.us/f12/reuters-largest-10-%91sanctuary-cities%92-may-lose-%242-27-billion-federal-funding-342683/.

[9] http://tinyurl.com/kpj3ra7.

[10] Article 4, Section 2.

[11] https://en.wikipedia.org/wiki/Underground_Railroad.

[12] https://www.ncronline.org/news/justice/becoming-sanctuary-five-points-catholic-institutions-consider.

[13] Numbers 35 (and other scriptures).

[14] http://99percentinvisible.org/episode/church-sanctuary-part-1/.

[15] http://www.latimes.com/opinion/op-ed/la-oe-allen-sanctuary-cities-20150917-story.html.

[16] https://en.wikipedia.org/wiki/Economic_impact_of_illegal_immigrants_in_the_United_States.

Constitutional Corner – Healthcare and the Constitution

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Constitution Corner – The 17th Amendment Should Be Repealed

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Note: On “We the People – The Constitution Matters” for 6 January we discussed repeal of the 17th Amendment with our guest, Andrew Langer, President of Institute for Liberty.[1]  There just wasn’t sufficient time to cover all the nuances of that issue; hence this essay.

On December 5, 1933, the necessary 36th state (Utah) ratified the 21st Amendment, bringing to an end 13 years of national prohibition and proving beyond doubt that Americans are able to detect and correct errors they have made in their Constitutional order.  If only we were so observant today.

It had not taken long for Americans to realize the folly of trying to modify human behavior by Constitutional amendment; prohibition laws were openly flaunted and juries often refused to convict those accused of violating the law — Americans were determined to drink alcohol.

The 18th Amendment, which created prohibition, had been ratified in 1919 only six years after the 17th Amendment was added to the Constitution; and the 17th came only two months after the 16th.  America had gone nearly 40 years since the 15th Amendment to the Constitution was added and suddenly we were amending with great frequency.

The 17th Amendment, which changed Senators from being appointed to the Senate by their state legislatures to being elected instead by the citizens of the state, was seen by some as anticlimactic; many states had already begun allowing their citizens to elect their Senators, if not directly, at least through a non-binding primary election.  For these people, the amendment only confirmed a fait accompli.

Yet the effort to change the appointment of Senators actually goes back to at least 1826, when New York Representative Henry Storrs first proposed an amendment to provide for popular election. Similar amendments were introduced in 1829, 1855 and 1868.

By the 1890s, support for the introduction of direct election for the Senate began to accelerate, primarily due to the efforts of the Populist Party, which added direct election of Senators to its party platform.  In 1908, Oregon became the first state to base its selection of Senators on a popular vote.  Nebraska soon followed.

William Randolph Hearst threw his weight behind the movement for direct election by publishing a series of articles in his 1906 Cosmopolitan Magazine, attacking “The Treason of the Senate.” “Muckraking” journalists described Rhode Island Senator Nelson Aldrich as the principal “traitor” among the “scurvy lot,” who controlled the Senate through “theft, perjury, and bribes which corrupted the vote in the legislature to gain their election.”

Gradually, more state legislatures began to petition the Congress for direct election of Senators. The House soon had the two-thirds vote necessary to pass just such an amendment; when the joint resolution reached the Senate, however, it failed year after year.  By 1910, 31 state legislatures had petitioned Congress to pass and send the amendment for ratification, while 28 of them applied to Congress for an Article V convention for drafting such an amendment.  This was only three applications short of the threshold that would have required Congress to convene such a convention.  That same year, ten Republican Senators who were opposed to the change were “unelected,” sending a further “wake-up call to the Senate.”  Two years later the Senate finally passed the joint resolution and the proposed amendment was sent to the states for ratification.

The amendment reads: “The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures…”  The amendment concludes by specifying how vacancies in a Senate seat will be filled.

The framers of the Constitution could have specified election by the people.  In the Convention, James Wilson of Pennsylvania had been the sole advocate for popularly electing Senators; but his proposal to do so was soundly defeated, 10–1.  The Virginia Plan proposed the Senate be elected by the members of the “lower House.” So why did the Framers of the Constitution choose appointment by the state legislatures instead?

Perhaps the reason can be summed up by a familiar Madisonian statement: “Power lodged as it must be in human hands, will forever be liable to abuse.”  In other words: “Checks and balances” were needed.  The people would exert their political power in the House of Representatives, the states would exert theirs in the Senate, and the two bodies would provide a check on each other to prevent excesses.  The interests of the people in the House would be, must be, balanced by the interests of the state governments in the Senate.

Madison confirmed in Federalist #45: “The Senate will be elected absolutely and exclusively by the State legislatures.”

In Federalist #63, Madison discussed the importance of the role of a Senate elected by state legislatures rather than the people:

“To a people as little blinded by prejudice or corrupted by flattery as those whom I address, I shall not scruple to add, that such an institution [a Senate elected by the state legislatures] may be sometimes necessary as a defense to the people against their own temporary errors and delusions. … so there are particular moments in public affairs when the people, stimulated by some irregular passion, or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be the most ready to lament and condemn.”

“In these critical moments, how salutary will be the interference of some temperate and respectable body of citizens, in order to check the misguided career, and to suspend the blow meditated by the people against themselves, until reason, justice, and truth can regain their authority over the public mind?”(emphasis added)

If the Senate could provide a check against the people, it could also provide a check against the Executive, particularly given its unique role in confirming executive appointments and ratifying treaties; especially if the state governments were able to instruct their Senators.

So what has been the result of direct election of Senators?

Here’s where the argument for repeal falters a bit; it is always difficult to state with certainty what would have happened in any situation, “if only.”  But it is not too hard to see some of the effects:

For starters, the states are well on their way to being considered mere administrative units of the national government.  As former Senator Tom Coburn explains in this interview,[2] the federal government has grown to the point where it dominates the states.  As Mr. Langer pointed out on our radio interview, the vast majority of this growth took place after the 17th Amendment was ratified.  We might rightfully ask: would this growth have taken place if the states still controlled the Senate?

State governments rightfully claim responsibility over matters of taxation, education, employment, disaster relief, public safety, transportation, health care, marriage, and property rights, to name just a few.  Yet in all those issues, and many more, the federal government mandates, regulates, or directs policy, and the states are usually forced to obey.  Although state governments bear much of the responsibility for their citizens, they enjoy greatly reduced authority to do anything about the issues they face.  A reinvigoration of state power[3] is long overdue.

A third effect of popular election of Senators was that states, especially those which did not ratify the 17th, lost the “equal suffrage” in the Senate guaranteed by Article 5.  Senators now represent the people who elected them, and the states no longer have a controlling vote in the Senate; they have arguably lost their suffrage.  “But there remain two Senators for every state, every state is therefore equally represented,” comes the refrain.  Because Senators can no longer be recalled by the state legislatures, they no longer must vote as a state delegation, they now “vote their conscience.”  This leads to a hundred individual votes in the Senate instead of what used to be, in essence, one vote per state.  One could argue (and, no doubt, some will) that Senators could always “vote their conscience,” and this must be conceded; but the “persuasiveness” attendant to instructing Senators how their state government views an upcoming measure cannot be dismissed.  Because the dominant party in the state legislature would likely have appointed Senators from that party, Senators would normally share the party’s political philosophy and could be expected to vote alike on most issues.  Today there is even the potential for the two Senators to come from different parties.  Thirteen states in our last Congress, in fact, had Senators from opposing parties.  On strongly partisan issues, their votes could be expected to nullify each other.

Virginia M. McInerney has posted on the LONANG[4] website a well-reasoned article[5] explaining why the 17th should be repealed.  It is worth the read.  She points out: “The national government, having taken on too much power, is unable to properly administer all the areas it has arrogated unto itself. On the other hand, the state governments are impotent in legislating and executing the will of the people because they are subject to unpredictable subjugation by the national government.”

But repeal of the 17th Amendment face several challenges.[6]  The American people have become accustomed to electing “their” Senators, and few Americans today understand or could explain the reasoning behind the original design.

The next challenge is found in the mechanism of repeal.  According to Article V there are two ways to amend the Constitution: Congress can propose the necessary amendment, as they did with the 17th, or the states can petition for an Article V convention to do so.  The first method is problematic; it is almost certain that a repeal amendment will ever gain the necessary 2/3 vote in the Senate; today’s Senators have become accustomed to the corporate donations to their re-election campaigns.  This money would dry up overnight once Senators were once again appointed by their states.  That leaves an Article V convention as the only mechanism with any chance of success.  Due to a perceived risk of untoward results, the Article V Convention method is being fought tooth and nail, most vehemently by conservatives themselves.

In Feb 2016, the Utah Senate passed a resolution[7] calling on their Congressional delegation to push for repeal of 17th Amendment.  I’ve not discovered if this actually happened; if it did, no one took much notice.  Georgia Senator Zell Miller[8] famously tried every year he was in the Senate to pass a repeal measure through that chamber, each time unsuccessfully.

Some, however, urge caution.  David Gordon, writing on Mises.org points out that Repealing the 17th Amendment Won’t Fix the Senate.[9]  Merely repealing the 17th might only place the issue back in the hands of the state legislatures where some could continue to let their citizens elect Senators if they so choose.  “A fundamental problem of the Senate has long been the fact that Senators do not vote as representatives of a state delegation, but as independent legislators.  The status quo should be abandoned in favor of allowing each state delegation only a single vote in the Senate, and that vote should be interpreted as the member state’s position.”  Such a change: one vote per state, could be included in a repeal amendment.  Unless a repeal amendment also gave the state legislatures specific power to recall the Senators, there would be no incentive for Senators to follow their state’s instructions.  The repeal amendment should also address the issue of long-vacant seats, which was an occasional problem prior to the 17th when state legislatures could not agree on who should represent them.

Many on the Left will also fight the idea.  Some worry that repealing the 17th will lead to much stronger republican control of the Senate.  With 68 percent of the 98 partisan state legislative chambers in the U.S. now controlled by Republicans,[10] it seems likely they are right — at the moment.  But remember, only a third of Senators are elected each two years; the composition of Republican vs Democrat control of state legislatures could change dramatically over the next six years.

If you would like to register your opinion on this matter, go to debate.org,[11] where you’ll find an online anonymous poll.  When I registered my vote, 60% of respondents had said “Yes” to repeal, while 40% had said “No.”

In conclusion, just as the American people recognized their error in enacting prohibition, and correcting that error, they will, hopefully, one day realize their error in disrupting the Framers’ plan for a balance of power in the Congress – and repeal the 17th Amendment.  If you agree the 17th should be repealed, if you would like to restore true federalism,[12] speak with your state legislators.

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[1] http://www.instituteforliberty.org/

[2] http://www.conventionofstates.com/tom_coburn_the_federal

[3] http://usconservatives.about.com/od/conservativepolitics101/a/The-Conservative-Case-For-Returning-Government-Power-To-The-States.htm

[4] Laws of Nature and Nature’s God Institute

[5] http://lonang.com/commentaries/conlaw/federalism/repeal-seventeenth-amendment/

[6] http://blog.constitutioncenter.org/2016/05/repealing-the-17th-amendment-would-be-no-small-task/

[7] http://www.standard.net/Government/2016/02/24/Utah-Senate-passes-resolution-to-repeal-17th-Amendment-in-states-rights-push

[8] https://en.wikipedia.org/wiki/Zell_Miller

[9] https://mises.org/blog/repealing-17th-amendment-wont-fix-Senate

[10] http://www.cnsnews.com/news/article/barbara-hollingsworth/after-winning-7-more-seats-gop-dominance-state-legislatures-all

[11] http://www.debate.org/opinions/should-the-u-s-repeal-the-17th-amendment

[12] http://www.restorefederalism.org/

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Were they justified in doing so?

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

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

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

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

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

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

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

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

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

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

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

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

So where is God’s Providence today?

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

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

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

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

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

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

[2] Thanksgiving Proclamation, 1789.

[3] October 12, 1816.

[4] Malachi 3:6 KJV.

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

Constitution’s Week in Review – 20 August 2016

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

12 Sep Lessons in Liberty – The Electoral College

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

19 Sep Christian Financial Concepts Webinar – The Electoral College

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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/