The Constitution’s Week in Review – 23 July 16

Article 1 – The Legislature: Apportioned Representation

I discussed on my radio show not too long ago and in these pages the fact that there is at least one proposed Constitutional Amendment floating around out there without a time limit for ratification.  Just as the original 2nd Amendment became, 200 years later, our 27th Amendment, so could the original 1st Amendment become our 28th.  David Zuniga, of America Again.net is proposing we ratify that old amendment and begin restoring truly representative government to America.  Communications technology has advanced to the point where it is feasible to have telepresence meetings of thousands of participants.  Imaging only having to drive a few minutes to sit down with your Congressman in a district office, instead of communicating with them in a distant Washington, D.C. office.

Well, I was investigating a Quora question recently when I chanced upon this article[1] from a few years ago which argues that the original First Amendment was indeed ratified by the requisite number of the states back in 1789.  Evidence came to light recently that both Connecticut and Kentucky may have ratified the Amendment but failed to send their ratification instrument to Congress and thus their ratification was never recorded.

What would this Amendment do if put into effect?  It would permit the ratio of representation in America to change from the average of 1 to 750,000 residents to 1 to 50,000 residents.  The House of Representatives could grow to around 6400 members.

Congress would have to revoke the Congressional Reapportionment Act of 1929 that set the current limit at 435 Representatives, but that is a simple (?) legislative process.

The discoverer of the lost documents, Frederick John LaVergne, has taken his case to court and lost, so it is likely the original ratifications will never be judged sufficient, but that does not prevent the Amendment from being ratified today by the additional states needed to bring the total to 38, as college student Gregory Watson discovered with the original 2nd Amendment in the late 1980s.

One complaint I have with the linked article is that the version they cite of what is commonly called the Congressional Apportionment Amendment (originally titled Article the First) is not the final version passed by the joint houses of Congress but rather the version passed in the House alone, as this Wikipedia article[2] makes clear.  The substitution in the final version of the word “more” for the word “less” changes the effect substantially, but not fatally.

According to the linked article, an opinion piece published in 2010 in the New York Times complained that “Americans today are numerically the worst-represented group of citizens in the country’s history.”

You can’t argue with the math, but what do you think of the proposed solution?  How about chatting with your representative and see what he or she thinks?

Article 2 – The Executive: The Candidates and the Constitution

On Friday, we had a great discussion of character as it relates to Presidential candidates.  The show gets rebroadcast on Sunday, 24 July at 2pm and I expect the podcast to be posted sometime Monday on the station’s podcast page.[3]

Article 3 – The Judiciary

Sometimes the decisions of courts seem to defy logic.  Usually this is due to the abject politicization of judges.  It would appear that a federal judge in Michigan succumbed to this common ailment.[4]  Michigan had been one of only ten states that offered citizens the opportunity to vote for a straight partisan ticket, i.e. mark their ballet with a single stroke to record a vote for all Democrat or Republican candidates in a particular election.  In my view, this panders to those too ignorant or lazy to walk into a polling station informed of the candidates, their respective parties, and the issues at stake.

The Michigan legislature passed and Governor Synder signed into law a measure striking down this feature of Michigan balloting, but U.S. District Court Judge Gershwin A. Drain ruled instead this would place a “disproportionate burden on African Americans’ right to vote.”  Right.  That says more about African American voters in Michigan than it does the legislature’s actions.

Cultural Issues in the Courts.  Here’s Focus on the Family’s latest review.[5] A new update was posted Friday.

1st Amendment – Right of Conscience

You may recall I’ve followed the plight of a Colorado baker, Jack Phillips, who was convicted of violating Colorado’s anti-discrimination laws by the Colorado Civil Rights Commission and sentenced (and his staff) to “re-education” classes.

On Friday, Phillips, with the help of Alliance Defending Freedom, petitioned the Supreme Court to hear an appeal of his case: Masterpiece Cakeshop v. Colorado Civil Rights Commission.[6]  ADF’s website[7] contains a nice synopsis of the case.

4th Amendment – Illegal Search

The government of Highland, California has decided[8] they can inspect the apartments and rental homes of the city’s landlords at will to determine their compliance with city ordinances.  Hmmm.  A long time ago, in a galaxy far, far away, there used to be a country where your “persons, houses, papers, and effects” were secure against warrantless search and seizure.  Perhaps no more, at least for the residents of Highland, CA.  One more reason to “Come East, young man!”

Recommendations and Events:

Christian Financial Concepts Presentation – The Constitution as Solution

Monday night, 25 July from 8-9pm EDT, I’ll be presenting a webinar on the topic of “The Constitution as a Solution to Problems.”

Few Americans take time to reflect on the fact that the Constitution was not created ab initio, it was created within a historical context.  That we have a Constitution at all illustrates that the Articles of Confederation had proven inadequate.  Although the Articles had been designed to make amendment difficult (unanimous consent was needed), in the end needed improvements proved impossible to enact.   Conditions in the thirteen states deteriorated to the point where talk of splitting the federation into three began to be heard.  Something had to be done, and the result was the Constitution of 1787.

But what exactly had been deficient about the Articles and what problems did this create?  By studying and understanding the problems created by the Articles we will better understand the solutions proposed by the Constitutional Convention to fix those problems.

What was Shay’s Rebellion and what role did it play?  Who sat down and analyzed the deficiencies in the Articles to prepare himself for the “Grand Convention?”  Did American troops really mutiny and march on Congress?  What did America’s Founding Fathers have to say during this period?  These questions and more will be answered in this exciting presentation.

Go to https://attendee.gotowebinar.com/register/7811182755684673537 to register for this free event.

We The People – The Constitution Matters Radio Show.

On Friday, 29 July, we will discuss the next paragraph we encounter in the Declaration of Independence; here Jefferson recounts the attempts of the colonists to enlist the aid of their “Brittish Brethren,” to no avail.  If you have complaints or petitions for the government, to what extent should you make those known and should you try to enlist the help of fellow citizens?  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 and 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 with these issues and how Christians should respond.  The event, as all Lessons in Liberty presentations, will be livestreamed to those who register. Registration and cost information can be found on the FACE website at www.face.net.

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.thenewamerican.com/usnews/constitution/item/14223-article-the-first-is-congress-ignoring-an-amendment-ratified-by-the-states

[2] https://en.wikipedia.org/wiki/Congressional_Apportionment_Amendment

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

[4] http://www.gopusa.com/?p=12881?omhide=true

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

[6] http://adflegal.org/detailspages/case-details/masterpiece-cakeshop-v.-craig

[7] http://adflegal.org/detailspages/blog-details/allianceedge/2016/07/22/5-reasons-the-u.s.-supreme-court-should-agree-to-hear-christian-cake-artist-jack-phillips%27-case?sourcecode=05K30001

[8] http://www.wnd.com/2016/07/city-surrender-4th-amendment-rights-or-else/#!

Constitutional Corner – Right of Petition

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

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

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

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

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

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

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

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

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

Five other colonies eventually enacted similar guarantees.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[5] Record of the Senate, 1836.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[25] For perhaps a little while longer.

Constitutional Corner – Death by a Thousand Cuts – Our Constitution of “Reasonableness”

I listened to a radio show recently where two supposed conservatives were discussing the Orlando shooting.  One brought up Australia where forced confiscation of certain (but not all) guns has led to a supposed decrease in gun-related crimes.[1]  One commentator suggested that a repeal of the 2nd Amendment could produce similar results.  Had the radio program a call-in option I would have expressed the following view:

The 2nd Amendment did not and does not create a right to “keep and bear firearms.”  The opinion that it does is prevalent among many on both the left and right, but especially among what I will affectionately call “gun-grabbers.”  Even today you will find on the Whitehouse.gov website the statement: “The Second Amendment gives citizens the right to bear arms.”[2]  Were this true, the obvious way to negate or reverse this apparently positive right would be to repeal the 2nd Amendment.  Thus we see calls for exactly that following nearly every mass shooting in recent history.  “Get rid of the 2nd and you can get rid of guns, which will save all these people from slaughter,” goes the meme.

What the 2nd Amendment actually accomplishes is quite different than grant a positive right, it prohibits the federal government (and through the Supreme Court’s contrived “Incorporation” doctrine, the States) from infringing on a pre-existing right to bear arms in defense of self and home.  Long before the 2nd Amendment came along the Founders were affirming this right of bearing arms in strong terms.

The Founders recognized that the right to defend one’s self and home, with appropriate weapons, is a right under natural law, and would exist with or without the 2nd Amendment.  A Texas Court in Cockrum v. State (1859) said it best: “The right of a citizen to bear arms, in lawful defense of himself or the State, is absolute. He does not derive it from the State government. It is one of the “high powers” delegated directly to the citizen, and is excepted out of the general powers of government.’ A law cannot be passed to infringe upon or impair it, because it is above the law, and independent of the lawmaking power.”

The 2nd Amendment should not have been necessary.  One of the chief arguments in 1787 against adding a “Bill of Rights” was that the federal government was provided with very limited and enumerated powers.   “For why declare that things shall not be done which there is no power to do?”  says Alexander Hamilton in Federalist 84.  No power was delegated the national government to regulate speech, control the press, conduct unreasonable searches, or… control the ownership of guns.  The preamble to the “Bill of Rights” states the purpose of these amendments was simply to prevent misconstruction of the Constitution and abuse of its powers.  There is no mention of granting positive rights.  Since the Constitution provides the federal government no power whatsoever (that I can find) to regulate firearms, except as concerns their use in the military (Article 1, Section 8, Clauses 12 & 16) or as incidental to interstate commerce (Article 1, Section 8, Clause 3), the right to keep and bear arms as private citizens should be thought of as being secured first by the Ninth Amendment, and then by the Second, reinforced by the Tenth.

While I see the 2nd Amendment as a redundant protection; I nevertheless would not countenance its repeal.  Opposed by people with seemingly little appreciation for true liberty or how our Constitution was intended to work, those who wish to have the means to defend themselves from evildoers (or their government) need all the protection they can get.

That’s where the argument should end, but it doesn’t.  We have turned our Constitution of limited and enumerated powers instead into a Constitution of “reasonableness.”  Is it reasonable to try to keep firearms out of the hands of felons and the mentally deranged?  Is it reasonable to restrict the ownership of flamethrowers, Gatling guns, bazookas and other such weapons?  Of course it is.  But the constitutional power to do so is completely missing.  So instead of modifying the Constitution to provide the government with power we the people deem to be necessary and proper, we sit idly by while the government assumes that power without our consent, with or without the court’s acquiescence.  And thus the Constitution suffers yet another “cut.”

The Death of a Thousand Cuts, practiced in China from the tenth century until its abolition in 1905, was a horrible way to die.  But that is precisely the death our Constitution is suffering.  Soon, there will be no limitations left.  Many feel we have reached that point already.  The Constitution then becomes a charming artifact of a bygone era, pleasant-looking when hung on a wall or ensconced under glass, but no longer of practical use – irrelevant.  That’s where we are headed unless “We the People” wake up and decide to take ownership of our document.

[1] It is highly disputed whether Australia’s confiscation and accompanying buy-back program led to the decline.

[2] www.whitehouse.gov/our-government/the-constitution

The Constitution’s Week in Review – 4 June 2016

The Declaration of Independence

Everyone who has attended my seminar can tell you that there are four documents that have been declared by Congress to be the “Organic Laws of the United States.”  They include the Constitution, the Declaration of Independence, the Articles of Confederation, and the Northwest Ordinance of 1787.  I remind my students: it is dangerous to try to interpret the Constitution separate from the philosophy of the Declaration (and the Supreme Court would agree).  But our children in public schools are not always taught the true meaning of the Declaration and how it came to be.  Even some adults have a skewed view of the document.

To try to correct our national ignorance, at least in her state, Louisiana House Republican Valarie Hodges introduced a proposal[1] to have the state’s public school kids recite some portion of the Declaration each day after they recite the Pledge of Allegiance.  Democrats in the legislature pounced on the idea, among them Democratic Rep. Barbara Norton.  She was quoted as saying: “One thing I do know is, all men are not created equal. When I think back in 1776, July the 4th, African-Americans were slaves, and for you to bring a bill to request that our children will recite the Declaration, I think is a little bit unfair to us to ask those children to recite something that’s not the truth.”

Now, I’ve never met Rep. Norton, nor do I know how/where she was educated.  But like many Americans, she has an incomplete view of American history.  One of the casualties in the Boston Massacre was one Crispus Attucks[2] a free black man who decided to stand up for his country instead of submit to British tyranny.  Blacks fought alongside whites[3] in the Continental Army, in state militias, and in the navy.  Yes, there were black slaves in most of the southern states.  Some were given their freedom in exchange for joining the army, but most remained enslaved.  As we know, that wrong was eventually righted.

Rep. Norton has obviously never stepped back and given much thought to Jefferson’s words, studied the complete history of the Revolutionary War, nor read Jefferson’s condemnation of the slave trade[4] that was deleted from the final draft of the Declaration.  Perhaps in Rep. Norton’s eyes we are not created equal, but in God’s eyes, we are, and Jefferson knew it.

Article 2:  Abuse of Executive Power

Organized Theft by the IRS

Be careful how and when you withdraw your own money from the bank; if you do something suspicious the IRS might just swoop down and take everything you have by claiming it is “drug money.”  This blatant theft is called civil asset forfeiture based on “structuring” your deposits[5] or withdrawals to avoid mandatory reporting of those over $10,000.  So if you like your privacy and don’t think the government has any business monitoring your use of it, think again.  Thanks to our wonderful Congress and their having passed the Bank Secrecy Act[6] in 1970, you can be fined or even jailed without having done anything wrong.

Article 3:  What’s up at the Supreme Court?

Here’s a nice summary[7] of the cases the Supreme Court is yet to issue rulings on this term.  It shouldn’t be much longer before we hear about some of them.

First Amendment

Sometimes we should look outside the U.S. for trends headed our way, and this is certainly one that should concern us.  Londoners are getting arrested for their social media posts.[8]  We’ve already seen the start of censorship of social media by Facebook and others; and that’s OK, those are privately owned forums and not subject to Constitutional constraints.  But arrests based on some government officials idea of what is “hateful” is another matter entirely.  Can’t happen here?  It easily could with the wrong people in charge of our government.  Stay alert.

Fourth Amendment

Sooner or later criminals will figure out that they shouldn’t carry GPs tracking devices — opps, I mean cell phones — during planned criminal activity.  The way courts are deciding[9] on police access to cell phone location data obtained from the phone companies, it doesn’t look good for the law breaker. Of course, the police would never ask for the location information on law-abiding citizens, would they?

Meanwhile in the States:

The saga continues in Alabama over whether State Supreme Court Chief Justice Roy Moore will be able to continue on the bench.  Based on his order for state judges to ignore the Obergefell v. Hodges opinion, Moore has been suspended while an investigation is conducted.  Rightfully miffed, Moore has sued the Alabama Judicial Inquiry Commission. It appears the JIC is operating within the Alabama State Constitution, so we’ll have to see how this sits with the federal court.

Upcoming Events:

Last Call for the Constitution Seminar in Williamsburg, VA.  Hampton Roads residents will have a final opportunity (at least this summer) to learn what their Constitution says and means by coming to a CLI Saturday Seminar on 11 June in Williamsburg, VA.  The seminar will be held from 9:00am-6:00pm at 133 Waller Mill Road, Williamsburg, Va.  Due to room size, this seminar is limited to 10 participants, but is not yet full.  Cost is $30 if registered by 7 June – $40 thereafter.  Pre-registration is required via email to: gary@constitutionleadership.org.

Lessons in Liberty.  At the Foundation for American Christian Education, the Lessons in Liberty speaker for June will be Dr. Gai Ferdon, Professor at Liberty University.  Dr. Ferdon will speak on the topic of “The Welfare State: $20 Trillion Dollars Later.”  Asked to speak on this subject, Dr. Ferdon replied that it would be an impossible task to cover in a single night, thus this event will be a four-night seminar held at the Foundation in Chesapeake, VA, from 20-23 June, 7-9pm each night.  Participants may attend either in the FACE classroom or online via Livestream.  The cost for the four-day seminar is $35 instead of the normal $10 for a single presentation.  Register at http://www.face.net/.

Besides their wonderful 90-Day Challenge,[10] Constituting America[11] sponsors an annual contest for young Americans (there’s a Seniors category as well) to create videos, Public Service Announcements and essays aimed at informing and exciting Americans about their Constitution.   Here’s a  wonderful video essay by a college student.

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://constitution.com/democrats-attack-declaration-independence/

[2] http://www.crispusattucksmuseum.org/crispus-attucks/

[3] https://en.wikipedia.org/wiki/African_Americans_in_the_Revolutionary_War

[4] http://www.blackpast.org/primary/declaration-independence-and-debate-over-slavery

[5] http://patriotpost.us/articles/42907

[6] http://en.wikipedia.org/wiki/Bank_Secrecy_Act

[7] http://www.latimes.com/nation/la-na-supreme-court-major-cases-20160527-snap-story.html.

[8] http://www.vocativ.com/325190/arrests-for-social-media-posts-surge-in-london/

[9] https://theintercept.com/2016/05/31/appeals-court-delivers-devastating-blow-to-cell-phone-privacy-advocates/.

[10] http://www.constitutingamerica.org/blog/90-day-study-2016-reading-schedule/

[11] http://www.constitutingamerica.org/index.php.

Constitutional Corner – Secession (Redux)[1]

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In Gulf, C. & S. F. R. CO. v. Ellis, 165 U.S. 150 (1897), the Supreme Court declared:

the [Constitution] is but the body and the letter of [our law] which the [Declaration of Independence] is the thought and the spirit, and it is always safe to read the letter of the constitution in the spirit of the Declaration of Independence.” 

So the Declaration and the Constitution are joined at the hip; you should not try to understand one without the other.

If that be the case, what are we to make of this:

“But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”

Do the American people, or any portion thereof, retain a fundamental, unalienable right to throw off a former government in favor of something new?  When asked this question within the context of the American Revolution, most Americans would admit that such a right certainly exists; to suggest otherwise would be to undermine our very existence as a nation and directly contradict our third President.  Jefferson affirmed this right again in 1799 when, sitting as Vice President under John Adams, he wrote concerning the nefarious Alien and Sedition Acts, that if the American people did not rally around:

“the true principles of our federal compact”, [we should be determined to] “sever ourselves from that union we so much value, rather than give up the rights of self government which we have reserved, and in which alone we see liberty, safety and happiness.”[2]

James Madison agreed:

If there be a principle that ought not to be questioned within the United States, it is, that every nation has a right to abolish an old government and establish a new one. This principle is not only recorded in every public archive, written in every American heart, and sealed with the blood of a host of American martyrs; but is the only lawful tenure by which the United States hold their existence as a nation.[3]

Hamilton in Federalist 70, wrote: “But as the plan of the convention aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, EXCLUSIVELY delegated to the United States.” (emphasis added)

On June 21, 1788, as Virginia prepared to announce their ratification of the proposed  Constitution, they approved the following preamble:

“WE the Delegates of the people of Virginia, duly elected in pursuance of a recommendation from the General Assembly, and now met in Convention, having fully and freely investigated and discussed the proceedings of the Federal Convention, and being prepared as well as the most mature deliberation hath enabled us, to decide thereon, DO in the name and in behalf of the people of Virginia, declare and make known that the powers granted under the Constitution, being derived from the people of the United States may be resumed by them whensoever the same shall be perverted to their injury or oppression.”(emphasis added)

If the people have a right to throw off a former system of government, sever themselves from another people even, accompanied by a reserved right to take back political power that has been used to oppress them, how can there not be a right of secession available to the citizens of a state?  Whether or not the Constitution supports secession is a separate matter altogether; secession, in the view of the Founders, was a natural right which lay outside the purview of civil law, including constitutions.  This natural right was used to justify the English Civil War and both the American and French Revolutions.  Perhaps the recognition of secession as a natural right accounts for the fact that the Framers choose not to address the issue in the Constitution.

“But the Civil War proved you couldn’t secede” say some.  Really?  In my view, as I tell all my Constitution classes: all the Civil War proved to me was that a state would not be allowed to peacefully secede when the President’s name was “Lincoln.”  Lincoln didn’t wage war against the South to end slavery, he did it to prevent secession:

“My paramount object in this struggle is to save the Union, and is not either to save or to destroy slavery. If I could save the Union without freeing any slave I would do it, and if I could save it by freeing all the slaves I would do it; and if I could save it by freeing some and leaving others alone I would also do that. What I do about slavery, and the colored race, I do because I believe it helps to save the Union;..”[4]

A parallel issue involves sovereignty.  Did the states give up their full sovereignty in ratifying the Constitution?  Hamilton didn’t think so!  So how much sovereignty did they give up, how much do they retain (called “residual sovereignty”) and to what actions or “objects” (as Madison would say) does that sovereignty extend?  In the 1787/8 ratifying conventions, Federalist argued that the states were surrendering their “national sovereignty,” i.e. their right to be the sovereign nations they had been prior to the Articles of Confederation.  This national sovereignty would be “transferred by the new Constitution to the whole of the American people.”[5]  This would suggest that the American people hold the key to secession; if they permit it, it should be allowed to proceed; if not….

The Supreme Court has taken a dim view of the topic.  In Texas v. White (1869 – note, this is after the Civil War and during the Reconstruction Period), Chief Justice Salmon P. Chase wrote for the majority:

“The Union of the States never was a purely artificial and arbitrary relation. It began among the Colonies, and grew out of common origin, mutual sympathies, kindred principles, similar interests, and geographical relations. It was confirmed and strengthened by the necessities of war, and received definite form and character and sanction from the Articles of Confederation. By these, the Union was solemnly declared to ‘be perpetual.’ And when these Articles were found to be inadequate to the exigencies of the country, the Constitution was ordained ‘to form a more perfect Union.’ It is difficult to convey the idea of indissoluble unity more clearly than by these words. What can be indissoluble if a perpetual Union, made more perfect, is not?”

Chase’s view seems to overlook that the Constitution was not a revision to the Articles, as he seems to suggest, but a replacement in toto.  Furthermore, he ignores the historical fact that the “perpetual” union was on the verge of disintegrating by 1787, as John Jay confirms in Federalist 2:

“It has until lately been a received and uncontradicted opinion that the prosperity of the people of America depended on their continuing firmly united, and the wishes, prayers, and efforts of our best and wisest citizens have been constantly directed to that object. But politicians now appear, who insist that this opinion is erroneous, and that instead of looking for safety and happiness in union, we ought to seek it in a division of the States into distinct confederacies or sovereignties.”

Three separate Justices wrote dissents of Chase’s majority opinion; Justice Robert Grier disagreed “on all points raised and decided” by the majority.  After the opinion was announced, Senator Lyman Trumbull, introduced a proposed Constitutional Amendment in Congress that would have essentially overturned the Court’s decision by placing the issue back into the exclusive domain of Congress.  His bill stated:

“under the Constitution, the judicial power of the United States does not embrace political power, or give to judicial tribunals any authority to question the political departments of the Government on political questions.”[6]

Trumbull’s proposed amendment failed to garner sufficient support to pass the Congress and be sent to the states for ratification.

Multiple headlines show us that many Americans side with Madison and Jefferson over Chief Justice Chase:  “Siskiyou County [California] supervisors vote to pursue seceding from state.”  Another reads: “Group calls for western Md. counties to secede.”  Yet another: “Northern Colorado Secession: Most In Favor Of 51st State At First Public Meeting.”

Finally, there’s Texas.

Unlike any other of the 50 states, Texas was an independent republic before deciding to join the union.  Texas left the union to join the confederacy and like the others was forced back into the union at the point of a bayonet.  There is a lively secessionist movement in the state, much to the chagrin of liberals, and a great FAQ website can be found here[7] (which critiques the Texas v. White decision as well).  For an interesting view of how such a movement might proceed, there’s this series of answers[8] on Quora.

A 2008 Zogby International poll found that 22% of Americans believed that “any state or region has the right to peaceably secede and become an independent republic.”[9]

While all the foregoing was focused on a whole state seceding from the remaining 49, we should also consider the possibility of a portion of a state seceding from the remainder, i.e. becoming its own state.  How does that work?

Article 4, Section 3, Clause 1 of the Constitution states:

“New States may be admitted by the Congress into this Union; but no new States shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.”

West Virginia was created by allowing it to essentially secede from the rest of Virginia and return to the Union.  Actually, the story is a bit more complicated.  Enough Virginians in the northern part of the state were miffed at the secession announcement by the Richmond government that they formed a “reconstituted government of Virginia,” situated in Fredericksburg, by explaining that the Richmond government had vacated their seats.  The “reconstituted” government then gave permission for the western counties to form their own state thereby becoming West Virginia.  Lincoln desperately needed the new representatives in Congress, so all approvals were expedited.  Secession, as it seems, will be allowed when it works in favor of the Union.

In summary, while experience suggests that unilateral secession can and will be opposed, the mutually agreed upon departure of one or more states from the union may be permissible.  Go Texas!

A parting note: in 1967, the village of Winneconne officially seceded from Wisconsin for one day to protest its omission from the new state highway map.

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

[1] Constitutional Corner first discussed secession in Volume 1, No 30, published 26 September 2013.

[2] Smith, James Morton, ed. (1995). “Chapter 25. The Resolutions Renewed, 1799”. The Republic of Letters: The Correspondence between Jefferson and Madison 1776-1826. Vol. 2. New York: W. W. Norton & Co. p. 1119.

[3] Helvidius No. 3, September 7, 1793.

[4] Letter to Horace Greeley,” August 22, 1862.

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

[6] A “political question” is one in that the Constitution makes the sole responsibility of some other branch of government.

[7] https://texassecede.com/faq.php#txconst

[8] https://www.quora.com/What-would-be-the-likely-outcome-if-Texas-announced-secession-from-the-United-States

[9] https://kirkpatricksale.wordpress.com/zogby-secession-poll/.

Constitutional Corner – Impeaching Obama

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

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

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

We begin with Article 2 Section 4, which reads:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[1] http://www.senate.gov/artandhistory/history/common/briefing/Impeachment_Hastings.htm

[2] http://www.impeachobamacampaign.com/articlesofimpeachment/

[3] http://www.amazon.com/Impeachable-Offenses-Removing-Barack-Office/dp/1938067193

[4] http://www.newsmax.com/Newsfront/CNN-Obama-Palin-impeachment/2014/07/25/id/584827/

[5] http://www.cbsnews.com/news/republicans-prepare-contempt-citation-against-eric-holder-over-fast-and-furious/

The Constitution’s Week in Review – 23 Apr 2016

Article 2:  Faithfully Execute the Laws.

All eyes were on the Supreme Court on Monday as oral arguments were heard in the case of Texas v. U.S. over whether President Obama overstepped his authority in issuing instructions to defer deportation of a whole class of illegal immigrants, amounting to about 4.3 million persons.  To courtroom observers,[1] the Justices questions appeared to reveal a 4-4 split.  Such a decision will leave intact the injunction against the President’s action imposed by a District Court Judge and sustained by the 5th Circuit Court of Appeals.

The chickens have flown the coop, the horses have fled the barn, and Elvis has left the building, but apparently House Republicans think it is finally time to investigate the President’s flagrant abuses of the Constitution.[2]  Some will say: “Better late than never.”  Perhaps.  It will be an interesting summer in more ways than one.

First Amendment:  Establishment Clause.

The Tennessee legislature voted to designate[3] the Bible as the state’s “official book.”  The Governor vetoed the bill and the legislature failed to muster the votes to override the veto, even though the bill initially passed with an apparent veto-proof majority.  Was the Holy Bible being “demeaned” by such an act or merely being recognized for its impact in the formation of our republic and states?  Would declaring the Bible as the state’s official book “establish” Christianity as an official state religion?  Does the First Amendment prevent a state from declaring an official state religion? (Careful on this one!)  You decide.

Fourth Amendment: Illegal Search?

On Wednesday, 20 April, the U.S. Supreme Court heard oral arguments[4] in the case of Birchfield v. North Dakota. That case will determine whether a state can penalize a driver who asserts a Fourth Amendment constitutional right not to have his blood drawn or breath analyzed without his consent.

Is driving a car on a public road a right or a privilege?  The states of North Dakota and Minnesota think it is a privilege which entails forfeiting your 4th Amendment right against warrantless search and seizure.  Those states (and others) enacted laws making refusal of a breathalyzer or blood test a crime, allowing for immediate arrest. Those laws are now being challenged.

A 4-4 tie vote is likely in this case, leaving intact the lower court decision which upheld the constitutionality of the state laws.

Fifth Amendment:  A Government Land Grab?  You and your wife buy an attractive plot of land along the St. Croix River,[5] put a vacation cottage on it, and then buy an adjacent lot as an investment, hoping to sell or develop the second lot later.  The state then changes the rules on lot development making it impossible to develop the second lot, by either you or a future buyer.  The state has effectively “taken” your property by rendering your investment worthless, right?  You are due just compensation for this taking, right?  But then the state announces it will not recompense you for making the second lot nearly worthless because it considers both your lots as one, not two.  Folks, you can’t make this stuff up.  But this is what happens when you vote people into office who have no idea what is the purpose of government.  The Supreme Court has agreed to hear Murr V. State Of Wisconsin and St. Croix County.  Perhaps they will bring reason to the fore.

14th Amendment:  Coming to a School Near You.  Gloucester County, Virginia, school district has been ordered[6] by a 4th Circuit Court of Appeals panel (2-1) to allow a gender-confused female to use the boy’s bathroom at her school. The panel concluded that Title IX of the Education Amendments of 1972, which prohibits discrimination on the basis of sex—should be interpreted as prohibiting discrimination on the basis of gender identity, as a Department of Education letter suggested in 2015.  The school board has asked the full 4th Circuit[7] to review the panel’s decision en banc (meaning by the full court).  I’ll keep you posted.  Seriously, if you think your local school district is somehow going to avoid this issue, you are mistaken.  It is coming and you better prepare to defend what you believe in.

Meanwhile, in the states:  I’ve discussed thie issue of secession several times in the past in some detail (re-posted here), so I won’t elaborate once again, but if the November election puts a Democrat in the White House, expect talk in Texas to get serious.[8]  Just saying.

Other states are putting in place some significant safeguards for individual freedom:

The Tennessee legislature blocked any attempt[9] by the federal government to attempt an end-run around the 2nd Amendment through international law or treaties.
Nebraska ended civil asset forfeiture[10] in that state.

The Illinois Senate voted unanimously[11] to prohibit police spying through use of “stingray” devices (AKA “cell site simulator”). The measure still has to pass the House, but this is pretty huge, in my book.

The Louisiana Senate voted to allow some raw milk sales[12] in the state.

Upcoming Events:

Lessons in Liberty.  On May 16th you can hear Dr. Jim Davids speak on “Choosing Godly Representatives” from 7-9pm at the Foundation for American Christian Education.  Attend in person or online.  Register at http://www.face.net/.

Constitution Seminar in Norfolk, VA.   Hampton Roads residents can learn what their Constitution says and means by coming to a CLI Saturday Seminar on 21 May sponsored by Concerned Veterans for America.  The seminar will be held from 8:30am-5:30pm at the VFW Post 4809, 5728 Bartee St, Norfolk, VA 23502 (next to Military Circle Mall).  There is no charge for this event, but pre-registration is required through Eventbrite. Participants will receive a 150-page Student workbook, Pocket Constitution, and lunch.  There is no better deal around.  .  In an 1820 letter to William C. Jarvis, Thomas Jefferson wrote: “The people themselves,… their discretion [informed] by education, [are] the true corrective of abuses of constitutional power.”  This class will equip you to identify and correct those abuses.

Constitution Seminar in Williamsburg, VA.  Hampton Roads residents will have a second opportunity to learn what their Constitution says and means by coming to a CLI Saturday Seminar on 11 June in Williamsburg, VA.  The seminar will be held from 9:00am-6:00pm at a location to be announced shortly.  Participants receive a 150-page Student workbook, Pocket Constitution, lunch and a chance to win valuable door prizes.  The seminar will cost $40 per person, but registrations prior to 7 June receive a $10 discount.  Due to venue size, this seminar is limited to 10 participantsPre-registration is required via email to gary@constitutionleadership.org.

We’re halfway through the Constituting America 90-Day Challenge.  Hope you are enjoying this peak into American history.

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

[1] https://ca.news.yahoo.com/fate-obamas-immigration-plan-hands-u-supreme-court-041425066.html

[2] http://eaglerising.com/32701/house-republicans-introduce-resolution-to-investigate-obama-for-high-crimes-and-misdemeanors/

[3] http://www.srnnews.com/tennessee-lawmakers-to-vote-on-override-of-bible-bill-veto/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+SrnNewsUs+%28SRN+News+%C2%BB+U.S.%29

[4] http://cnsnews.com/commentary/robert-j-olson/drive-car-waive-your-constitutional-rights

 

[5] http://www.wnd.com/2016/04/supremes-weigh-government-grab-of-private-land/

[6] http://www.richmond.com/news/virginia/article_7ec45a28-5b5f-585f-a200-b7aba2cdd940.html

[7] http://www.richmond.com/news/virginia/article_fffed187-0d52-58db-9ee1-1414a6414b93.html

[8] https://www.washingtonpost.com/news/the-fix/wp/2016/04/19/the-texas-secession-movement-is-getting-kind-of-serious/

[9] http://blog.tenthamendmentcenter.com/2016/04/signed-by-the-governor-new-tennessee-law-sets-stage-to-reject-gun-control-by-international-law-or-treaty/

[10] http://blog.tenthamendmentcenter.com/2016/04/signed-by-the-governor-new-nebraska-law-takes-on-policing-for-profit-via-asset-forfeiture/

[11] http://blog.tenthamendmentcenter.com/2016/04/illinois-senate-votes-57-0-to-prohibit-warrantless-stingray-spying-hinder-federal-surveillance-program/

[12] http://blog.tenthamendmentcenter.com/2016/04/louisiana-senate-passes-bill-to-legalize-some-raw-milk-sales-foundation-to-nullify-federal-prohibition/

Constitutional Corner – Secession

One headline reads: “Siskiyou County [California] supervisors vote to pursue seceding from state.”  Another reads: “Group calls for western Md. counties to secede.”  Yet another: “Northern Colorado Secession: Most In Favor Of 51st State At First Public Meeting.”  Finally: “What if Texas Really Does Secede?”

Headlines such as these seem to almost be a weekly occurrence these days.  Is America coming apart at the seams?  All this talk of secession, is it just that – talk?

Supporters attending a meeting of the Siskiyou County Board of Supervisors proposed the county form a new state — called “Jefferson” (cute!).  They would invite other counties in Northern California and Southern Oregon to join them.  “Many proposed laws are unconstitutional and deny us our God-given rights.”  “We … have this enormous bureaucracy of unelected officials making decisions for us” were some complaints.

This is not the first time California has seen such talk.  As recently as 2011, Riverside County officials discussed a proposal to secede and establish a new state called “South California.”

Back in Maryland, Republicans in the five western-most counties complain that their views are being ignored in the Democrat-controlled state.  Critics point out it would create “a pencil-necked nano-state that would be poorer, more rural, less educated and much whiter than the Free State as currently constituted.”  The reason for the friction?  Maryland Democrats gerrymandered the state’s congressional districts after the 2010 Census, setting up Republican incumbent Roscoe Bartlett, who had represented western Maryland for 20 years, to be defeated.  Of the state’s eight congressional districts, Republicans now control just one, on the Eastern Shore.  Isn’t democracy just great?  Not if you’re the lamb voting with the two wolves over what’s for dinner.

A couple of years ago, I mentioned the idea of secession to a friend of mine.  There had been some new rumblings down in Texas I seem to recall.  I said that the Constitution really doesn’t say that a State can’t secede it merely sets rules for new states joining the union.  His reply: “I think the Civil War settled that issue.”  He was speaking, of course, of “The War for Southern Independence” (if that doesn’t get me a kudo here, nothing will).  Is the issue really settled?  Maybe, maybe not.

Article 4, Section 3, Clause 1 of the Constitution states:

“New States may be admitted by the Congress into this Union; but no new States shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.”

These words didn’t prevent West Virginia from being formed within the jurisdiction of the state of Virginia.  As the Civil War loomed, the people of western Virginia rejected Richmond’s decision to secede from the Union.  They announced themselves as the legitimate government of Virginia and gave themselves permission to secede from the rest of the state, forming the State of West Virginia.  President Abraham Lincoln immediately recognized the new state; Congress took a little longer.  The Supreme Court cemented things in 1871 (in Virginia v. West Virginia).

So you can see that the Constitution doesn’t prevent the good folks of northern California or western Maryland forming a new State, they merely need “the consent of the legislatures of the States concerned as well as of the Congress.”  Good luck with that, in either instance.  But then, West Virginia didn’t need the consent of Virginia did they?

Historian Kenneth M. Stampp, in his book “The Imperiled Union,” maintains that it is impossible to say that secession is illegal because of the ambiguity of the original Constitution as to state sovereignty and the right of secession.  Before they ratified the proposed Constitution the thirteen states were sovereign entities, voluntarily confederated.  Did the states give up their full sovereignty in ratifying the Constitution?  Hardly!  So how much sovereignty did they give up, how much do they retain, and to what actions or “objects” (as Madison would say) does that sovereignty extend?  There’s the rub.

In the 1869 case of Texas v. White (note, this is after the Civil War), the Supreme Court suggested that the Constitution ordained the “perpetuity and indissolubility of the Union”. The court did allow some possibility of divisibility “through revolution, or through consent of the States.

In their 1788 letter of transmittal announcing ratification of the Constitution, Virginia’s convention made a veiled threat to a right of secession by stating that if the powers they were giving up to the new national government were ever “perverted to [the people of Virginia’s] injury or oppression” those powers would be “resumed by them.”   Most recently, Texas Governor Rick Perry suggested that Texas might consider secession (and then retracted the statement).  A 2008 Zogby International poll revealed that only 22% of Americans believe a state or region has the right to peaceably secede and become an independent republic.

In summary, it seems to be settled law that the Constitution does not permit unilateral secession: a state or group of states cannot simply leave the Union over the objections of the national government.  However, the arguments that led to this understanding are hardly beyond challenge: the Constitution is probably best read as permitting the mutually agreed upon departure of one or more states (or perhaps even the forming of “The State of Jefferson”).

© 2013 The Constitution Leadership Initiative, Inc.  This essay first appeared in the Yorktown Crier-Poquoson Post on 26 September 2013.  Reproduction for non-profit purposes is hereby given.

Constitutional Corner – America’s Fundamental Principles: Start the Conversation.

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“Let [the Constitution] be taught in schools, in seminaries, and in colleges, let it be written in primers, in spelling books and in almanacs, let it be preached from the pulpit, proclaimed in legislative halls, and enforced in courts of justice. And, in short, let it become the political religion of the nation.” – Abraham Lincoln

I must confess up-front that I put off the writing of this essay until the last moment. Since the middle of last November we’ve been writing and speaking about America’s fundamental principles, those principles imbedded in our Constitution and Declaration of Independence that, combined, have made America the greatest, most powerful nation in the world. What facilitated that national success has been the unparalleled freedom that America’s citizens have enjoyed; freedom to venture, to try, to fail, and to try again; freedom to do these things with a conscience equally free.

Now it came time to discuss how to make these principles once again part of our national dialogue. That they are not, at least not with much regularity, is evidenced by the following quote from Democracy in America, by Alexis de Tocqueville. In 1830, Tocqueville observed:

“If you question [an American] respecting his own country … he will inform you what his rights are and by what means he exercises them…. You will find that he is familiar with the mechanism of the laws…. The American learns to know the laws by participating in the act of legislation…. The great work of society is ever going on before his eyes, and, as it were, under his hands. In the United States, politics are the end and aim of education.”

This is clearly no longer the case in America of 2016. The average American struggles to name the three branches of his government, let alone how they function, or should function. Nevertheless, most young Americans can talk endlessly about popular culture, describing the lives of their favorite celebrities in intimate detail. Their fathers can often cite years of sports statistics and talk of their favorite teams equally endlessly. But talk of fundamental principles of freedom? Outside an occasional Tea Party meeting, you’ll not hear much talk on that subject.

In my view, the chief culprit in this obvious decline in awareness of the precepts of liberty is our public education system. There are certainly great, dedicated teachers in that system, but all too frequently we see reports of absolutely bone-headed reactions to “pop-tarts chewed into the shape of a gun,” US Flag T-shirts, blatant Islamic and socialistic indoctrination, etc. The system as a whole has earned our scrutiny. Despite Standards of Learning which require the teaching of what used to be known as civics, high school graduates appear, in poll after poll, video after video, to know nothing of these principles. Once again, in the 1830s:

“… every citizen is taught…the history of his country, and the leading features of its Constitution. … it is extremely rare to find a man imperfectly acquainted with all these things, and a person wholly ignorant of them is sort of a phenomenon.” Today, to encounter someone “wholly ignorant” of these principles is the standard, and to find someone conversant in them is “sort of a phenomenon.”

I’ll venture that if you catch a student today coming out of their AP Government class they might be able to cogently discuss these topics, but catch them a month after graduation and the results will be quite different.

Today we’ve lost sight of the principles that have made us great. They are still imbedded in our structure of government, but that structure is slowly being changed in such a way that the principles are becoming obscured. They are dying by what the Chinese would call: “death by a thousand cuts.” When Orwell’s 1984 so famously missed its prediction everyone went on about their business. But we continue to move in that direction, if somewhat slower than Orwell predicted.

“Although all men are born free, slavery has been the general lot of the human race. Ignorant – they have been cheated; asleep – they have been surprised; divided – the yoke has been forced upon them. But what is the lesson? …the people ought to be enlightened, to be awakened, to be united, that after establishing a government they should watch over it…. It is universally admitted that a well-instructed people alone can be permanently free.”

James Madison warns us that we should “watch over” our government and, by implication, the principles of freedom it secures. Franklin warned us that the republic required “keeping.” Weren’t they saying the same thing?

The principles are there, but they must be acknowledged, reinforced, refreshed, and transmitted to new generations. Our freedom simply cannot be preserved any other way.

But there’s the rub – how do we start a discussion of these principles in the national dialogue? Such a dialogue is not going on at the moment, and needs to.

It’s my own fault; I chose the topic, but soon realized what a monumental challenge this will be.

A few things stand out at first blush: such a dialogue can’t be forced – it can’t involve the force of law. You may force a high school student to memorize a few dates and other facts long enough to pass a test, perhaps you can even help him or her to see the long term value of this knowledge; but you cannot force a student (or adult) to internalize or embrace these principles of freedom. That must come willingly and freely, i.e. voluntarily. And this process will be much easier if parents, on whom God places the primary responsibility for the education of their children, would set the stage for understanding these principles at an early age. It can be done.

Second, you’re going to need a patron, a patron who is also a patriot. Any effort to establish a national dialogue, on any topic, will have to involve the national media in all its various forms, and this will take money – lots of it. There are only so many Public Service Announcements these folks are willing to play for free.

People are unlikely to want to get together to just talk, aimlessly, even on such important topics, so there should be something to help facilitate discussion, and standardize it a bit.

Thus the idea: a book with accompanying Study/Discussion Guide. We’ll call it: “Start the Discussion: America’s Fundamental Principles.” Each of the 12-13 chapters (fits in a typical Sunday School cycle) will be devoted to the discussion of a separate fundamental principle. The book will transmit the core knowledge on that principle and the Study Guide will be used to facilitate discussion and include space for people to take notes.

A tentative list of contents would include:

Chapter 1: The principle of one nation under god

Chapter 2: The principle of self-government (including the principle of virtue)

Chapter 3: The principle that all men are created equal

Chapter 4: The principle of inalienable rights: life, liberty & property

Chapter 5: The principle of political power derived from the people

Chapter 6: The principles of republicanism & limited government

Chapter 7: The principle of constitutionalism

Chapter 8: The principle of the rule of law (including natural law)

Chapter 9: The principles of abolishing and reforming government

Chapter 10: The principles of capitalism and free markets

Chapter 11: (TBD)

Chapter 12: Where Do We Go From Here?

Maybe a kids’ version with a colonial period hero and his dog, no?

As the book nears its publishing date there will need to be a promotional project to get it into the public’s eye: interviews on radio/TV, videos which explain its importance, celebrity endorsements, etc.

If we can time the release to coincide with an election year, it might receive some attention in candidate debates, which would be great, and would gel nicely with the books purpose. For those too timid to lead live discussion, there could be a DVD series that takes the students through the highlights of each chapter and poses questions for discussion.

Just think of the effect if we could get large groups of adults and students holding these discussions across the nation. The President comes on TV, perhaps at a White House news conference, and explains how important this dialogue is to the nation’s future.

The book’s authors are presented the Presidential Medal of Freedom and feted at the annual awards banquet in Washington, D.C.

At about this point I wake up from my dream and realize how grandiose this project really is and how resource-less is my organization. Nice idea though.

Beyond this I have no earthly idea what it will take to get people to start talking about the principles of freedom and liberty; perhaps a national calamity is necessary. Yes, that normally brings us together as Americans, but at great initial cost.

We will be discussing this topic on “We the People, The Constitution Matters” on WFYL radio Friday morning, 5 February, 7-8am. You can “Listen Live” at www.1180wfyl.com, or, if you are fortunate enough to live in the station’s broadcast area, on the radio as you drive to work that morning. I’m lead to believe that at least one of my co-commentators has a somewhat radical idea to propose.

You can later download the podcast of the show and listen at your leisure, or you can listen to one of the rebroadcasts during the weekend. I would love to hear your ideas on this topic, including your critique of “Start the Conversation.” Hope you’ll join us.

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