Constitutional Corner – The War in the Courts

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

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

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

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

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

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

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

Which brings us to District Judge Mark A. Goldsmith.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Constitutional Corner –100 Days of Trump — and the Constitution

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Well, Mr. Trump has survived his first 100 days in office — many on the Left were hoping otherwise — but at least two American cities are now formally calling for his impeachment.[1] What has he accomplished? Better yet, what has he done to deserve calls for impeachment after such a short period? And how does all this relate to the Constitution?

I’m sure you, my alert readers, realize that there is nothing magic about a President’s first 100 days in office; the milestone is an artificial contrivance, totally arbitrary, and essentially worthless in determining the effectiveness of a President and/or his administration. In fact, that we are even stopping to perform an assessment of the President, no matter what the timeframe, points to a hopelessly warped perspective on the office. Did the Founders take time to assess Washington’s, or Adams’ or Jefferson’s first 100 days in office? Of course not; such would be a complete waste of time, as will this one. Part of me wants to stop right here and instead discuss something of actual importance to the future of America. But the precedent has set (first suggested by FDR) and the various media organizations have each filed their reviews, so why don’t I do so as well? Besides, it is doubtful that any of the “professional” assessments will compare Trump’s performance with his Constitutional duties: who cares what the Constitution says anyway?  Why is that even relevant?

But Trump did set himself up for this by announcing a 100-Day Plan[2] on October 23, 2016, as previous Presidents have done. I was surprised to find there’s even a Wikipedia page[3] devoted to this subject, and a similar one on Obama;[4] but apparently none on earlier Presidents. (Spoiler Alert: as might be expected, there is a decidedly negative tone to Trump’s Wiki page when compared to Obama’s).

The Economist, The Wall Street Journal, CBS, NBC, ABC and Fox all did assessments; even the White House posted one.[5]

Today, we see the President as the leader of the government, even those who should know better. On election night, November 2, 2010, Rep. John Boehner, celebrating the Republican victory in Congress, said: “while our new majority will serve as your voice in the people’s House, we must remember it is the president who sets the agenda for our government.” [emphasis added].  The Founders would disagree. To the Founders, Congress, as, to quote Boehner, the “voice of the people,” should set the agenda for the government, not the President.

But before we ask: “How’d Trump do?” Let’s first ask: “What should he have done?” To paraphrase Hamilton: “Why get all excited about someone with the “confined authorities of a President of the United States?”[6]

Presidential Activity

The President’s Constitutional powers are found in Articles 1 and 2 of the Constitution. I’m not going to take the time to list those few powers there; I encourage you to review them.  But I will mention what I feel is the President’s most important duty beyond keeping the country safe from sudden attack: he is to “take care that the laws be faithfully executed.”

You’ll notice in reviewing the President’s powers and responsibilities that there is no mention of issuing Executive Orders, giving speeches, firing officials he has appointed, etc. Although some scholars insist that the mention of “executive power” in Article II Section 1 grants the President no specific power, the Courts have decided the phrase implies certain “traditional powers of executives,“ among them being the power to issue orders that direct the activities of executive agencies, i.e. Executive Orders.

So, assuming Executive Orders to be a legitimate implied power of the President, how has Mr. Trump done in this category?

First, you can find an explanation of each of the twenty-four Executive Orders issued by Mr. Trump in his first 100 days here.[7] This was the most EOs issued in the first 100 days by any President since FDR.

Trump also signed 22 presidential memoranda, 20 presidential proclamations, and signed 33 bills into law. About a dozen of those bills rolled-back regulations finalized during the last months of Barack Obama’s presidency using the authorization provided by the 1996 Congressional Review Act.[8] Here’s a report[9] which concludes the Congressional Review Act could even be used to reverse actions going back to the beginning of the Obama administration. The report concludes: “every regulation, policy statement, and the like that in Congress’s opinion has not yet been properly submitted for its review remains open for invalidation…”

Of the twenty-four EOs, four bear mention:

Trump’s very first order, signed on his first day as President and responding to a campaign pledge, ordered the Secretary of Health and Human Services (Secretary) and the heads of all other executive departments and agencies having authorities and responsibilities under Obamacare, to “exercise all authority and discretion available to them to waive, defer, grant exemptions from, or delay the implementation of any provision or requirement of the Act that would impose a fiscal burden on any State or a cost, fee, tax, penalty, or regulatory burden on individuals, families, healthcare providers, health insurers, patients, recipients of healthcare services, purchasers of health insurance, or makers of medical devices, products, or medications.” Translation: find ways to waive Obamacare’s mandates.  Did Trump have the authority to issue this order? Remember, his foremost duty is to take care that the law is faithfully executed. Fortunately for Trump (and Obama before him), the law was written to allow the Secretary of HHS enormous discretion in granting waivers; the Obama administration set precedent by granting waivers to politically favored groups and businesses.

Perhaps Trump’s most controversial orders were his two efforts to impose a temporary ban on issuing visas for immigrants from, first seven, then six predominantly Muslim countries. Both orders were halted by federal courts on patently specious reasoning that the temporary bans amounted to bans on Muslims.

Last week we were entreated to listen to oral arguments broadcast on CSPAN from the 4th Circuit Court of Appeals, which had been asked by the administration to overturn a nationwide injunction placed on the EO by a federal district judge in Maryland. From the judges’ questions of first, Acting Solicitor General Jeffrey Wall (who did an amazing job, in my view) and then ACLU lawyer Omar Jadwat, it quickly became clear that several of the judges had already decided that statements made by then-candidate Trump established the irrevocable motivation for the Order, and that it amounted to a ban on Muslims — period.

That the EO does not amount to a ban on Muslims is easily shown by the fact that Christians, Jews, Animists, even Atheists from the six listed countries are as affected as are Muslims from those listed countries, while Muslims from any of the scores of the other predominately-Muslim countries around the world not listed in the ban are not affected. In the face of this argument, how anyone can still insist that the order is a ban on Muslims is beyond me. Yet the Left clings to that accusation like a child clinging to his “blankey.” Sad. And a sad commentary on the health of political debate in this country. Perhaps the most revealing testimony during the 4th Circuit hearing was the admission by Omar Jadwat that Trump’s EO would likely be constitutional – if it had been issued by President Hillary Clinton!

Another controversial order is Executive Order 13768,[10] signed on January 25, 2017. It directed the Justice Department to review federal funding given to cities and other localities which declare themselves as sanctuaries for illegal immigrants. I discussed this EO in a previous essay[11] so I won’t go further than to mention that, sure enough, the EO was challenged in court[12] and a partial injunction issued.

The last EO I’ll mention, technically issued two days after the “100 Days” ended on May 1st, is a bit more problematic.  It attempts an end-run around what is called the Johnson Amendment,[13] put in place by then-Senator Lyndon B. Johnson to make sure ministers who opposed his re-election would be prevented from doing so, at least from their pulpits.  The amendment empowered the IRS to revoke the 501(c)(3) tax-exempt status of any church which takes a position in favor of or in opposition to any candidate for office.  Rarely invoked,[14] the amendment is widely mis-understood by ministers across the country and results in a silencing of even permissible political speech from the pulpit.

The Order directs all executive departments and agencies to “respect and protect the freedom of persons and organizations to engage in religious and political speech.” In particular, the Secretary of the Treasury is restricted from taking “any adverse action against any individual, house of worship, or other religious organization on the basis that such individual or organization speaks or has spoken about moral or political issues from a religious perspective, where speech of similar character has … not ordinarily been treated as participation or intervention in a political campaign on behalf of (or in opposition to) a candidate for public office …”  The President was immediately sued by the Freedom from Religion Foundation, which argued that the order was unconstitutional because it grants preferential treatment to religious organizations while requiring secular non-profit organizations to still abide by the law. Since there is nothing in the Constitution which prohibits the federal government from favoring a religion or even religion over non-religion, I would hope the argument gets thrown out. But it is more likely that FFRF will find a favorable judge to hear their complaint and Trump will gain yet another nationwide injunction.

The problem I have with this particular EO is that it amounts to an order to “take care that the laws not be faithfully executed.”  A better approach would be to pursue something like the Free Speech Fairness Act (H.R. 781/S. 264)[15] or just urge Congress to repeal the Johnson Amendment outright. Instead, the President chose to use an EO to effectively repeal the amendment. The President is thus legislating in place of Congress. Barack Obama was rightfully criticized for not enforcing illegal immigrant deportation law; Trump can and should be similarly criticized.

Congressional Activity

Presidential candidates can and do make outlandish pledges during their campaigns, promises they have no hope of delivering, at least not by themselves; but that’s politics. A successful President, even one whose party enjoys a majority in Congress, must still propose legislation that a majority in Congress will support. Given that, Trump’s pledge to “repeal and replace” Obamacare was on shaky ground from the outset since some Republicans in Congress were bent on outright repeal, others on replacement, while the Democrats in Congress insisted on retaining the current law despite its many faults and impending failure. The first version of “repeal and replace” in the House failed while the second passed, only to arrive DOA on the Senate floor. Who knows what the final version will look like?

Nevertheless, Congress has been otherwise busy since January 20th. The 115th Congress has passed 33 bills that have been signed into law, 13 of them revoking rules passed by the Obama administration. By contrast, the 114th Congress passed only 11 bills during its first 100 days, none invoking the CRA. This difference is largely due to whether the Congress and President were members of the same party. But compare this with the 111th Congress which, in the first 100 days of Barack Obama’s first term, revoked not a single rule passed in the waning days of the Bush administration.

The other major accomplishment of the administration’s first 100 days was passage of a budget which avoided a government shutdown. But how much of the spending in this budget was constitutional and how much was not? The vast majority of Americans appear to have accepted the claim that everything Congress spends money on is constitutional, and from a Court perspective they are right. Two decisions in the 1930s[16] gave Congress the authority to spend money on anything which enhanced the “general welfare” – as Congress defined it! Perhaps we’ll examine the details of the budget in a future essay.

Judicial Activity

President Trump’s greatest success in the judicial arena had to be his successful nomination and confirmation of Judge Neil Gorsuch to fill Antonin Scalia’s empty seat on the Supreme Court. In unprecedented fashion, the appointment was opposed en masse by Senate Democrats as retribution for Senate Republicans not proceeding with a confirmation hearing for Obama appointee Judge Merrick Garland. Justice Gorsuch has already made his mark on the Court, joining Justice Alito in not participating in a traditional sharing of law clerks to pool their resources in deciding which cases to hear or deny from the thousands of petitions that are sent to the high court every year. This means Gorsuch’s law clerks will be tasked with reviewing every petition in search of cases warranting the high court’s notice. As a former clerk of Justice Kennedy,[17] Gorsuch is very familiar with the process.

Gorsuch joined the court in time to hear the last 14 cases on the Court’s docket, including one important case for religious freedom proponents: Trinity Lutheran Church vs. Comer.

Of concern now for the President, will be filling the 129 federal judgeships that remain open and by doing so provide some balance for the overwhelmingly liberal federal judiciary.

A list of the opinions rendered by the Court this term can be found here.[18]

A President’s first 100 days may in fact provide a useful measuring stick for some; I’m not impressed. There are 1360 days remaining in Trump’s (first?) term; plenty of time for great success — and great failure.

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[1] http://www.nbcbayarea.com/news/local/Richmond-City-Council-Passes-Resolution-Calling-for-Trump-Impeachment–414514223.html

[2] https://www.usatoday.com/story/news/politics/elections/2016/10/22/trumps-gettysburg-address-outlines-first-100-days/92596734/

[3] https://en.wikipedia.org/wiki/First_100_days_of_Donald_Trump%27s_presidency

[4] https://en.wikipedia.org/wiki/First_100_days_of_Barack_Obama%27s_presidency

[5] https://www.whitehouse.gov/100-days

[6] Federalist 71

[7] https://www.whitehouse.gov/briefing-room/presidential-actions/executive-orders

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

[9] http://www.heritage.org/government-regulation/report/the-reach-the-congressional-review-act?utm_source=THF_Email&utm_medium=email&utm_campaign=TheAgenda&mkt_tok=eyJpIjoiTWpKbU1HUmpORE16WldVeiIsInQiOiJjdzFNcW8yV0dZdHA1MmRIQW1HOVFyXC9nMkFLUU96eHpcLzZIdTBuSERuS1dsd1hZYU9pa1IyVTB4ekM0b0FuTFI4UDIxVUFOMXY3NExTcVJyTVhydjJqcFlKQmZhT1B4R0d2Tys4SXBFdElMNUpjWlRGK1FWZFRoSHNRZFpFU002In0%3D

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

[11] http://constitutionleadership.org/2017/04/09/constitutional-corner-sanctuary-cities-and-the-constitution/

[12] http://www.cnn.com/2017/04/25/politics/sanctuary-cities-injunction/

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

[14] Only one church is known to have lost its tax-exempt status as a result of the law, and then only temporarily.

[15] https://www.congress.gov/bill/115th-congress/house-bill/781

[16] U.S v. Butler (1936), Helvering v. Davis (1937)

[17] Gorsuch clerked for Justice Anthony Kennedy

[18] https://www.supremecourt.gov/opinions/slipopinion/16

Constitutional Corner – Yes, Tear Down This Wall!

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“[The wall of separation] metaphor is based on bad history, a metaphor which has proved useless as a guide to judging.  It should be frankly and explicitly abandoned.”[1]  So said Chief Justice of the Supreme Court William Rehnquist essentially concurring with Associate Justice Byron Stewart, who in a preceding opinion, wrote: “[Resolving complex constitutional controversies] “is not responsibly aided by the uncritical invocation of metaphors like the “wall of separation,” a phrases nowhere to be found in the Constitution.[2]

But Rehnquist’s and Stewart’s companions on the bench had no problem with the metaphor: it suited their purposes – it was ambiguous enough to mean whatever they wanted it to mean, and imposing enough to quash ill-informed dissent.

Besides, given Jefferson’s “well-known” hostility to organized religion, this must be what he meant, an impregnable wall, right?  Well, except for the fact that Jefferson attended organized religious services his whole life, including attending, the day after penning his letter to the Danbury Baptists, church services in the U.S. Capitol building, of all places; and considering that he contributed financially his whole life to multiple churches and their ministers, I guess you could say that he was “hostile” to organized religion, in a blatantly supporting sort of way.

Read the concerns of the Baptists and Jefferson’s reply, in context, and you easily see that Jefferson wished to assure the Baptists that the federal government (the only one for which he spoke) had no intention of interfering in their beliefs, even if (or especially if) they differed from the official state church of Connecticut: the Congregational Church.

But in 1947, Democrat Klansman Hugo Black, the most senior justice on the Court, appointed by FDR, desperately needed a metaphor.  So he purloined a hundred forty-six year old phrase from a private Jefferson letter (confident, it would seem, that Jefferson would not object) to prove that the Constitution, a document that Jefferson had no part in since he was serving in France during its drafting, required this absolute separation — except when it didn’t.

You see, even though the Court erected this “impregnable” wall in Everson v. Board of Education, Black ruled that the Catholic parents who sought reimbursement for the cost of public buses that took their kids to Catholic schools (parochial schools as we used to call them back in the day) should get it.  So Black becomes the hero to Catholic parents for sustaining the New Jersey law at question, he becomes the hero of all American Atheists for creating a weapon that could be used to keep those “Christian fanatics” at bay.

Mind you this decision was delivered in 1947, after more than a hundred years of American courts saying almost exactly the opposite thing.

In 1799, the Supreme Court of Maryland saw no conflict with the First Amendment in a naturalization oath which included a declaration of belief in the Christian religion.[3] Indeed, the Maryland state Constitution began with the words: “We the people of the state of Maryland, grateful to Almighty God for our civil and religious liberty…” That year the same court stated that: “By our form of government, the Christian religion is the established religion, and all sects and denominations of Christianity are placed upon the same equal footing and are equally entitled to protection in their religious liberty.”[4]

In 1811, a Mr. Ruggles was found guilty of public blasphemy. The New York Supreme Court sustained the conviction: “[T]o revile the religion professed by almost the whole community is an abuse of that right (of religious opinion).  We are a Christian people and the morality of the country is deeply engrafted upon Christianity and not upon the doctrines or worship of those other imposters.”[5]

In 1844, the U.S. Supreme Court took a stand. A Mr. Girard stipulated in his will that his remaining estate be used to establish a public school, but one from which ministers or any religious instruction would be excluded.  Justice Joseph Story wrote the majority opinion which forcefully stated that “Christianity is not to be maliciously and openly reviled and blasphemed against to the annoyance of believers of the injury of the public.”[6]

In case after case the courts affirmed a close relationship between the Christian church and the law.  Did any of this establish some denomination as the official religion of the United States?  No. these and other cases only affirmed the existing reality: we considered ourselves a Christian nation. Our laws and mores were rooted in the Bible; not the Koran, the saying of Buddha, Pantheism or any other belief system.

But by 1947, things had changed in this country; secular humanism now formed the core of the public school curriculum. Although Bible reading and morning prayer was still allowed in those schools, that was about to change as well, along with released time for religious instruction. All these accommodations of Christianity would soon be discarded. Why not? There was a “Wall” to enforce.

Atheists were flexing their muscles and had the perfect tool. But there was a problem: Christianity was too well connected with our public infrastructure for a complete and utter separation. The connection would have to be chipped away, one small issue at a time. How could you ignore our national motto (In God we Trust) and its appearance on all our money? Outlaw Chaplains in the military and Congress? Don’t even think of it. Amend the Constitution to no longer give the President Sunday off when considering whether to sign a bill? To hard.

All these “entanglements” would be allowed. Of the others, some would take considerable time and effort. Prohibit all display of the Ten Commandments, the basis for our laws, from schools and courtrooms? Though it took scores of years, even that would ultimately prevail.

Christians remained embarrassingly silent while public expressions of their faith continued to be chipped away by the Courts; aided and abetting by obliging Presidents (particularly our last). An “open-door” policy was extended to groups like “Freedom from Religion Foundation” and “American United for Separation of Church and State,” They were able to identify even the most minor of “affronts.”

On the other side, groups like Alliance Defending Freedom, American Center for Law and Justice, Family Research Council and many others rose up to meet the atheists and agnostics in court. Thanks to a few victories, the “Wall” is showing signs of age and its original shaky foundation.

A significant chunk of the wall may soon to be dismantled as the Court rules on Trinity Lutheran v. Comer. The case was heard on Wednesday, April 19th and both audio and written transcripts of the session can be downloaded here.[7]

Questions from both liberal and conservative justices hinted that the court is ready to declare these so-called “Blaine Amendments” unconstitutional as in conflict with the 14th Amendment’s Equal Protection provision.

Both sides choose to frame the argument in First Amendment terms, either the Establishment Cause or Free Exercise Clause or, at times, both. It was not until 38 minutes into the discussion (page 39 of the transcript) that Justice Elena Kagan, finally framed the argument as what she called “a constitutional principle as strong as any…that there is.” She continued: “[W]hen we have a program of funding – and here we’re funding playground surfaces – that everybody is entitled to that funding,…whether or not they exercise a constitutional right (religion); in other words,…whether or not they are a religious institution doing religious things. As long as you’re using the money for playground services, you’re not disentitled from that program because you’re a religious institution doing religious things.” Yes, equal protection of the laws, that’s it. There is no entanglement with religion, there is no establishment of religion, but the church is definitely penalized for being a church.

(If you’ve never listened to or read Supreme Court oral arguments, I encourage you to do so. At times you will scratch your head and wonder what is the Justice asking? The poor litigant advocates!)

Blaine Amendments should never have been placed in 39 state Constitutions; they grew out of religious bigotry – anti-Catholic bigotry to be precise, and America’s Protestants should be embarrassed by them.  We should want to see them stricken as much as we struck, eventually, the last vestiges of slavery.

But what else can be done to chip away at the “Wall?” Join us on “We the People – the Constitution Matters on Friday, 28 April, 7-8am EDT (www.1180wfyl.com) as we finish up this discussion.

Suggested reading List:

“Original Intent,” 2000, by David Barton.

“Bring Down That Wall,” 2014, by Nicholas F. Papanicolaou.

“Backfired, A nation founded on religious tolerance no longer tolerates its founders religion,” 2012, by William J. Federer.

“The Separation of Church and State, Has America lost its moral compass?” 2001, by Stephen Strehle.

“The Assault on Religion,” 1986, Russel Kirk.

“The Separation Illusion, A Lawyer Examines the First Amendment,” 1977, by John Whitehead.

“The Separation of Church and State,” 2004, by Forrest Church.

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[1] Chief Justice William Rehnquist, Wallace v. Jaffree (1985) dissenting

[2] Associate Justice Byron Stewart, Engel v. Vitale (1962) dissenting

[3] John M’Creery’s Lessee v. Allender (1799)

[4] Runkel v. Winemuller (1799)

[5] The People v. Ruggles (1811)

[6] Vidal v. Girard’s Executors (1844)

[7] https://www.supremecourt.gov/oral_arguments/audio/2016/15-577

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 – The Right of Self Preservation

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In 1775, Alexander Hamilton wrote:

“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.”[1]

We should not seek out our rights in “musty old” Constitutions, we should look for them in the world around us; as an expression of natural law they are “written on our hearts.”[2] But what is their source, who wrote them there?

John Dickinson represented Pennsylvania in the Second Continental Congress in 1776, although he refused to sign the Declaration of Independence. Eleven years later he represented Delaware at the Constitutional Convention (where he did sign the document). He answers the question:

“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.”[3]

Who would deny that each human being has a natural right to preserve their own life? Self-preservation is an almost universal, natural response of living organisms. Upon recognizing a threat to its life, nearly any aware creature will move away from the perceived threat or, if movement is impossible, do whatever is possible to neutralize or minimize the threat to its life. It seems as if this response is hardwired into us. Might this be because it is both a natural response and a natural right?

All the great natural rights philosophers recognized a right of self-preservation. Thomas Hobbes put the right of self-preservation at the top of his catalog of laws of nature that constitute the “true moral philosophy.”[4] He wrote in “Leviathan:”

“The Right Of Nature , which Writers commonly call Jus Naturale , is the Liberty each man hath, to use his own power, as he will himself, for the preservation of his own Nature; that is to say, of his own Life; and consequently, of doing any thing, which in his own Judgement, and Reason, he shall conceive to be the aptest means thereunto.” (Emphasis added)

John Locke took it a step further; not only could we defend ourselves, we could wreak havoc on whomsoever or whatever threatens us:

“Self-preservation [is] a duty to God…I should have a right to destroy that which threatens me with destruction: for, by the fundamental law of nature, man being to be preserved as much as possible, when all cannot be preserved, the safety of the innocent is to be preferred: and one may destroy a man who makes war upon him, or has discovered an enmity to his being, for the same reason that he may kill a wolf or a lion.[5]

Notice that to Locke (and others, as we’ll soon see) we have a duty to preserve ourselves; but the duty is owed not to ourselves but to our Creator. Do we have a similar duty to protect the lives of others?

“Every one, as he is bound to preserve himself… so by the like reason, when his own preservation comes not in competition, ought he, as much as he can, to preserve the rest of mankind, and may not, unless it be to do justice on an offender, take away, or impair the life, or what tends to the preservation of the life, the liberty, health, limb, or goods of another.”

Jean-Jacques Burlamaqui, the great French philosopher, wrote:[6]

“God is therefore willing, that everyone should labor for his own preservation and perfection, in order to acquire all the happiness, of which he is capable according to his nature and state…”

“For, man being directly and primarily charged with the care of his own preservation and happiness, it follows therefore that, in a case of entire inequality, the care of ourselves ought to prevail over that of others…”

“If a particular manner of acting appears to me evidently fitter than any other for my preservation and perfection, fitter to procure my bodily health and the welfare of my soul; this motive alone obliges me to act in conformity to it.” (Emphasis added)

The Founders took a similar view:

“Among the natural rights of the Colonists are these: First, a right to life; Secondly, to liberty; Thirdly, to property; together with the right to support and defend them in the best manner they can. These are evident branches of, rather than deductions from, the duty of self-preservation, commonly called the first law of nature.[7]

“In the human body the head only sustains and governs all the members, directing them, with admirable harmony, to the same object, which is self-preservation and happiness;[8]

Self-preservation is the first principle of our nature. When our lives and properties are at stake, it would be foolish and unnatural to refrain from such measures as might preserve them because they would be detrimental to others.[9]

The right of self defense is the first law of nature.”[10] (Emphasis added in all)

Since natural law and revealed law (the Bible) have the same source, we should find them in harmony. But the Bible takes a more nuanced view, especially when we encounter the New Testament.  But first the Old:

“Thou shalt not murder” makes it clear that we can have an expectation that no one should threaten our life. But does this give us the right to actively defend our life?

In Psalm 82:4, we find an obligation to protect all who are in danger:

“Rescue the weak and needy; Deliver them out of the hand of the wicked.”

In Ezekiel 33 we encounter an obligation to warn others of approaching danger, and if we do not, any harm that comes to them will be our responsibility:

“…’But if the watchman sees the sword coming and does not blow the trumpet, and the people are not warned, and a sword comes and takes a person from them, he is taken away in his iniquity; but his blood I will require from the watchman’s hand.”

Numerous verses[11] demonstrate that murdering another person results in the forfeiture of the life of the murderer. Does it not follow that to prevent someone from forfeiting their life we should do what we can to prevent or neutralize their attack on our person?

For what are we preserving by doing so? Yes, our life; but to whom do we own our life? Are we not God’s “property?” Is it not God’s property we are ultimately protecting?

Or know ye not that your body is a temple of the Holy Spirit which is in you, which ye have from God? and ye are not your own; for ye were bought with a price: glorify God therefore in your body.[12]

Returning to “Thou shalt not murder;” can we justify taking the life of an attacker in defending our self? Jesus’ command to “turn the other cheek” certainly presents us with a challenge. Must we “turn the other cheek” when our life, and something more than a slap on the face, is in the bargain? In John 15:13, we are shown it is an act of love to lay down our own life for a friend. Sacrificing one’s self when others are imperiled, subordinating our right of self-preservation to the preservation of someone else, is the ultimate act of love. We honor those who choose this path; but it remains a choice.

Yet, Jesus confirms there is still a time and place for weapons of defense: “he who has no sword, let him sell his garment and buy one.”[13] When Peter imprudently cuts off the ear of the high priest’s servant while trying to protect Jesus, Peter is told to put his sword back in its sheath, not discard it.[14]

So if the Right of Self-Preservation was universally recognized by moral philosophers and the Founders, subordinating that right counted as the ultimate sacrifice, why was this right not enumerated in the Constitution?

Perhaps one reason has to do with the limits of language.  Madison noted that:

“[T]here is great reason to fear that a positive declaration of some of the most essential rights could not be obtained in the requisite latitude. I am sure that the rights of conscience in particular, if submitted to public definition would be narrowed much more than they are likely ever to be by an assumed power.”[15]

Translation: if you do not describe the right you are trying to secure with “the requisite latitude,” that is, precisely enough, there is danger that it will not be secured correctly or adequately. And if the public is allowed to define the right, they will likely do so in an even narrower sense than the government might.

Considering Madison’s example: how would you describe the Right of Conscience? To what beliefs would it extend – anything and everything, or only religiously-focused beliefs? If you believe it is morally wrong to kill animals should you be able to enunciate and act upon that belief? Of course, but not to the point that your actions infringe on the right of others to eat meat if they choose (PETA take note).

How would you describe the Right of Self-Preservation in a short sentence or paragraph so that it would be appropriately protected by your government? The “Stand Your Ground Laws” found in several states are a step in that direction, but do they cover all circumstances where self-preservation comes into play? Certainly not. Does a terminally ill patient have a right to take experimental drugs or therapies not yet approved by the FDA if doing so offers a chance of preserving their life? So called “Right to Take” legislation is attempting to secure precisely that right.[16] Would you have included that in your description of the Right of Self-Preservation?  I would probably have overlooked it.

While Madison chose not to enumerate a Right to Self-Preservation, most likely because the right went without saying, he did provide for it. In arguing for the Bill of Rights on the floor of Congress, Madison said:

“It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration, and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the general government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that may be guarded against. I have attempted it, as gentlemen may see by turning to (what would later become the Ninth Amendment).”

“The Ninth Amendment is the repository for natural rights,” writes Leonard W. Levy in Origins of the Bill of Rights.[17] But, Levy cautions: “no evidence exists to prove that the Framers intended the Ninth Amendment to protect any particular natural rights…we can only guess what the Framers had in mind.

The problem with the Ninth Amendment is that the rights it is to protect must be “teased out of it.” And who should do the “teasing:” five lawyers in black robes, or the rightful owners of the Constitution, i.e., the people? Clearly the people are the ultimate authority over what the Constitution says and means; in my view they are the only rightful agency with the authority to identify new rights which are to be protected by the Ninth Amendment. “To say that the Framers did not intend the Court to act as a constitutional convention or to shape public policies by interpreting the Constitution is…to assert historical truth.”[18]

As Levy points out, until 1965, the Ninth Amendment was considered an indecipherable mystery by the court, akin to an “ink blot.” In 1965, the five lawyers “teased out” a right to privacy over the use of contraceptives;[19] eight years later they extended this newly discovered privacy right to the killing of babies in the womb.  In the 2015 case of Obergefell v. Hodges, while the Court claimed to discover a right to homosexual “marriage” in the Fourteenth Amendment’s Due Process Clause, they could just as easily have discovered this “right” in the Ninth. “Within fifteen years [after Griswold] the Ninth Amendment…was invoked in more than twelve hundred state and federal cases in the most astonishing variety of matters.”[20]

Let us presume then that a Right of Self-Preservation is a natural right deserving of protection by the government; by what means is this right to be acted upon? Is it logical that a right to preserve one’s life when confronted by some armed with a weapon should involve the use of a weapon at least equal in lethality? I think so.

Locke reminds us that: “The state of nature has a law of nature to govern it, which obliges every one: and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions.”[21] (Emphasis added)

No one ought to wish to harm us, but some do. Some people have no compulsion against killing their fellow man and even inflicting great pain in the act. Paraphrasing Jesus: like the poor, given the fallen nature of man, we will always have such people with us.

As I noted earlier, Locke states: “I should have a right to destroy that which threatens me with destruction: for, by the fundamental law of nature, man being to be preserved as much as possible, when all cannot be preserved, the safety of the innocent is to be preferred: and one may destroy a man who makes war upon him, or has discovered an enmity to his being, for the same reason that he may kill a wolf or a lion.

Defending yourself against someone who threatens to take your life with a gun logically requires a gun of your own. And the Founders would agree:

“The right of the citizens to bear arms in the defense of themselves shall not be questioned.” James Wilson

”Arms in the hands of individual citizens may be used at individual discretion for the defence of the country, the over-throw of tyranny, or in private self-defense.” John Adams

“…[T]he people have a right to bear arms for the defense of themselves and their own State, or the United States… and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals.” Pennsylvania Ratifying Convention

In Thomas Jefferson’s Commonplace Book we find him quoting Cesare Beccaria’s book, On Crimes and Punishment.[22] Jefferson found this quote of Beccaria worth remembering: “Laws that forbid the carrying of arms … disarm only those who are neither inclined nor determined to commit crimes… Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.”

In 1859, a court, albeit a state court, finally proclaimed forthrightly what everyone, certainly everyone of the time, knew to be true: “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.”[23]

Turning to the Second Amendment, much has been made of its prefatory clause which can be read to imply that keeping and bearing arms is only permitted for militia duty. This is clearly an important reason for having arms, but I hope you see by now that it is not the only reason.

As Robert Natelson explains in The Founders and the 2nd Amendment:[24]

“History makes it clear that the Second Amendment is designed to serve four principal purposes.

First, it guarantees the states militia power of their own to balance the military power of the federal government;

Second, it promotes the God-given right of personal self defense;

Third, it enables the citizenry to repel foreign invasion; and

Fourth, it enables the citizenry to overthrow domestic tyrants and intimidate or discipline those who otherwise would be tyrants.”

Each of these purposes deserves more elaboration, but space this day does not permit it.

Let us be clear: the second Amendment grants no rights, it only protects a preexisting right from government infringement (and the infringement that has been allowed thus far is also a story for another time). The Supreme Court’s decision in Heller v. District of Columbia,[25] although decried by Progressives, demonstrated conclusively that a right of individual self-defense/preservation is appropriately exercised by keeping and bearing arms.

There are those who will insist, however, that an individual gives up his natural right of self-preservation when entering into a social contract; i.e., the government assumes responsibility for our protection. This brings to mind the meme: “when seconds count, the police are only minutes away.” It should also come as no surprise that police have no responsibility to protect individual citizens from harm.[26] So then there’s that.

To conclude: the Right of Self-Preservation is a natural right with a long pedigree. The ability to use appropriate weapons, including guns, when exercising that right should be as protected as the right itself. The right to keep and bear arms does not hinge exclusively or even predominately on duty in a militia.

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[1] Alexander Hamilton, The Farmer Refuted, 1775.

[2] Romans 2:15.

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

[4] Leviathan, xv, ¶40.

[5] Second Treatise on Government, Section 16.

[6] Jean-Jacques Burlamaqui, The Principles of Natural And Politic Law, 1748.

[7] Samuel Adams, The Rights of the Colonists, The Report of the Committee of Correspondence to the Boston Town Meeting. November 20, 1772.

[8] John Dickinson, A Speech Against Independence, 1776.

[9] Alexander Hamilton, A Full Vindication, December15, 1774.

[10] Henry St. George Tucker (in Blackstone’s Commentaries).

[11] Exodus 21:14, Deuteronomy 19:11, Numbers 35:16.

[12] 1Corinthians 6:19-20, American Standard Version.

[13] Luke 22:36.

[14] John 18:11.

[15] Annals of Congress, 8 June 1789.

[16] https://www.usnews.com/news/articles/2014/11/18/right-to-try-laws-allowing-patients-to-try-experimental-drugs-bypass-fda.

[17] Leonard Levy, Origins of the Bill of Rights, Yale University Press, 1999, p. 254.

[18] Ibid, p. 243.

[19] Griswold v. Connecticut, 381 U.S. 479 (1965),

[20] Levy, p. 242.

[21] John Locke, Second Treatise on Government, Chapter 1, Section 6.

[22] http://www.constitution.org/cb/crim_pun.htm.

[23] Cockrum v. State, 24 Tex. 394, at 401-402.

[24] http://tenthamendmentcenter.com/2013/04/01/the-founders-and-the-2nd-amendment/.

[25] District of Columbia v. Heller, 554 U.S. 570 (2008).

[26] Castle Rock v. Gonzales, 545 U.S. 748 (2005).

Constitution’s Week in Review – 27 August 2016

Article 1, Section 2.  Apportionment

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

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

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

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

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

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

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

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

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

First Amendment. A Win for Religious Liberty?

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

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

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

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

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

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

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

Why Does the Federal Government Own So Much State Land?

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

Upcoming Events:

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

12 Sep, Lessons in Liberty – The Electoral College

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

Constitutional Corner – The Contingent Election

What if neither Hillary Clinton nor Donald Trump receives a majority of electoral votes on November 8th?  Can’t happen?  Oh yes it can!  Our country has had two elections where none of the candidates for an office received a majority of the electoral votes (and one where there was a tie).[1]  Let’s look at a what could happen.

First, we should dispense with the notion that the popular vote for President will count for anything.  It does not.  A popular vote is not even contemplated in the Constitution.  To be precise, having the people vote for President is not even required under the Constitution.  “Electors” elect the President and Vice-President, and the selection of those electors is left entirely up to the states.  For many years the electors were appointed by the state legislatures.

Article II, Section 1, Clause 2 of the Constitution states:

“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.”

There are currently 538 electors, corresponding to 435 Representatives, 100 Senators and (by means of the 23rd Amendment) 3 electors for the District of Columbia.  A candidate receiving a majority of electoral votes (270) becomes President (the same for Vice-President).  When no candidate receives the necessary 270 electoral votes, the House of Representatives gets to choose the President and the Senate chooses the Vice-President.

In the House, a vote is taken of the three candidates receiving the most votes overall, with each state delegation allowed one vote.  The winning candidate must receive a majority of the votes, meaning 26.  If no candidate receives 26 votes on the first ballot, the voting continues until a candidate does receive that number of votes.

In 1800[2], due to mis-communication in the Democratic-Republican party, Thomas Jefferson and Aaron Burr received an the same number of electoral votes, sending the election to the House.  In the contingent election neither man initially received the necessary nine votes needed to be declared the President.  Thirty-five votes and seven days later, Jefferson still lacked the one vote needed to put him in the White House.  The efforts of Representative Alexander Hamilton broke the logjam and Jefferson was able to claim the prize.  There’s a lot more to the story and it makes a good read.

A recent poll by RealClearPolitics[3] found more than one third-party candidate “surging” in the polls (their definition of “surging” differs from mine).  If this trend continues for the next three months, however, the chances of an outright win of 270 electoral votes by either Hillary or Donald diminishes significantly.

So let’s say, for the sake of the discussion, that Donald Trump receives 265 electoral votes, Hillary 260, Libertarian candidate Gary Johnson receives 15 and Green Party candidate Jill Stein the remaining 8 votes.  The contingent election in the House would occur on 6 January 2017, immediately after the joint session of Congress officially counts the cast electoral votes (see 12th and 20th Amendments).  Senators would immediately head for their chamber to conduct an election of the Vice-President (the Vice-Presidential candidates would presumably receive the same number of votes as their running mates).

In the Senate, Senators would vote individually, not as state delegations, and would select from only the top two Vice-President candidates.  Fifty-one votes would be required and the sitting Vice-president would preside, but not vote.

What would be the outcome?

If the contingent elections were held with the present Congress, Donald Trump and Mike Pence would likely win their respective elections.  Republicans hold a slim majority of 53/47 in the Senate and a wider majority of 273/162 in the House;[4] as long as no Member “defected,” the outcome would likely be Republican.  Except that these contingent elections will be conducted by a new Congress, which will have taken their seats on January 3rd.  Every single Representative and one third of the Senators are up for re-election in November and the new mix is anyone’s guess at this point.  I should also point out that Congressmen would not be bound to vote by party affiliation, they could vote anyway they feel led.  Of course, they would be expected to explain their vote to their constituency.

One final note: in the House, voting is by state delegation.  Where a delegation is split between the two major parties (Maine has one Republican and one Democrat, New Hampshire the same, and New Jersey six of each) the delegation would presumably cast a null vote, which would count for no candidate.

Over the next three months it would behoove everyone one to keep an eye on the polling for third-party candidates.  This is a critical election for America; it could even be an exciting one.

There is a lot more to discuss.  If this short essay piqued your interest, on September 12th I’ll be speaking on the “Genius of the Electoral College” as part of the Foundation for American Christian Education’s Lessons in Liberty series.  From 7-9pm, I’ll discuss the history of the College, why “contingent elections,” as we call them, now were expected to be the norm, and the project gaining traction across the country to replace the Electoral College with a National Popular Vote (without amending the Constitution!).  You can attend this event in person in Chesapeake, VA or online via Livestream.com.  Cost either way is a whopping $10 per person.  Hope to see you there.

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

[1] In 1824, Andrew Jackson received a plurality of the electoral votes but not a majority.  The House elected second-place candidate John Quincy Adams instead.  In 1837, “faithless” electors prevented Vice-Presidential candidate Richard Johnson from gaining a majority of electoral votes.  The Senate easily elected him.

[2] https://en.wikipedia.org/wiki/United_States_presidential_election,_1800#Results_2

[3] http://thehill.com/blogs/ballot-box/presidential-races/289859-third-party-support-surging.

[4] I’m counting Independents with the Democrats.

Constitutional Corner – Impeaching Hillary

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[1] Note: I can’t seem to locate the article on National Review Online, but a slightly modified version is found here: http://www.ruthfullyyours.com/2016/07/30/impeach-her-why-the-e-mail-scandal-should-bar-hillary-from-high-office-by-andrew-c-mccarthy/

[2] https://en.wikipedia.org/wiki/Impeachment#United_Kingdom

[3] Federalist #65 and #66.

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

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

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

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

[8] https://www.quora.com/Could-Hillary-Clintons-mismanagement-of-highly-classified-information-be-grounds-for-Day-One-impeachment-proceedings-against-her

The Constitution’s Week in Review – 30 July 16

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

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

A Governor’s Slapdown

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

A State’s Slapdown

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

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

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

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

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

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

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

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

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

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

Secession Anyone?

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

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

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

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

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

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

Recommendations and Events:

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

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

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

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

 We The People – The Constitution Matters Radio Show.

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

Lessons in Liberty – Preserving America’s Religious Liberty.

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

 Lessons in Liberty – Preserving America’s Religious Liberty.

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

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

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

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

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

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

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

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

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

Constitutional Corner – Toilette Tyranny

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The quest to fundamentally transform America continues unabated.  Doesn’t that just warm the cockles of your heart?  Not content to glide out the remaining months of the President’s eight-year reign as our supreme leader, the Obama administration has effectively ordered all the nation’s public schools to allow gender-confused school kids to use whatever bathroom and shower-room facilities they choose to “identify” with.

Here’s the background: On February 22nd, the City of Charlotte, North Carolina, passed an ordinance prohibiting businesses from discriminating against LGBT individuals.  The ordinance also ordered businesses to allow such individuals to use any public bathroom they choose.

In a one-day special session on March 23rd, the North Carolina legislature passed HB2, with the support of 11 Democrats, I might add, which made it illegal for any municipality to expand upon the state’s existing anti-discrimination laws, which is essentially what Charlotte and a few other cities had done.  The new law contained a list of classes of people who are to be protected against discrimination, they included race, religion, color, national origin, age, handicap or biological sex as designated on a person’s birth certificate.  “Sexual orientation” and “gender transition” were conspicuously absent from the list.

The homosexual community vowed a court fight.  But before that could be mounted the Obama Administration filed a civil rights suit against the state and the state countersued.  Then came the bombshell, last week, on Friday the 13th no less, the Department of Education issued a “Dear Colleague” letter which stated that the Department expects any school receiving federal funding (hint) to allow transgender students to use whatever bathroom and locker room facilities they request to use.

Contemporaneous with the North Carolina issue is a controversy taking place right up the road from me in Gloucester County, VA.   A female student at Gloucester High School, Gavin Grimm, has self-identified as a boy.  With the support of her parents, Gavin is taking hormone treatments to facilitate a presumed future “transition” through gender surgery.  Grimm was offered the use of a unisex bathroom at the school and things were fine for awhile, until she apparently decided this accommodation was unacceptable and sued the school district.  Initial judgement went against Grimm and her parents appealed (I wonder who is financing their suit?).  A three-judge panel of the 4th Circuit ordered the district to allow Grimm the use of whatever facilities she requests and the district responded by asking for an en banc review by the entire Circuit.  How the DOE directive impacts the 4th Circuit ruling is unclear.

So “Can the federal government constitutionally order the nation’s schools to allow gender-confused kids to use any bathroom or locker-room, and, we assume, shower-room, that they “identify” with?”  That is the legitimate question that we will explore today.

There are several constitutional issues attached to this, beginning with why we have a Department of Education at the federal level when the Constitution grants no specific power to establish one nor empowers it to set policy over education for the country’s public schools.  The Northwest Ordinance of 1787, which is a full 25% of our country’s organic law, says that “Religion, morality and knowledge being necessary to good government, schools and the means of education will forever be encouraged” – encouraged, not controlled.  So the constitutionality of the Department of Education is one issue.

Next is the issue of delegation of legislative authority by the Congress to this unconstitutional executive department.  According to John Locke, that power cannot be delegated unless the people say so, and to my knowledge they have not.  But according to the Supreme Court in Mistretta v. U.S. (1989) such delegation is not only authorized, it is absolutely necessary in today’s complex world.  Hogwash!  We can only fix that by electing Congressmen and women who understand the Constitution.

My own Congressman told me that Congress sees itself as setting the broad policy guidelines and then lets the executive agencies “fill in the details.”  To my mind that is a dereliction of duty, a failure to support and defend the Constitution, and an impeachable misdemeanor in and of itself.  But that’s just my opinion.  Regardless, if Congress sets the policy guidelines, where does the Department of Education find the authority to change those guidelines at will?

Congress passed Title IX of the Education Amendments  in 1972.  Title IX reads:  “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.”

In 1972, the word “sex” meant only one thing: biological sex.  But today there are people who want to redefine the word sex, just as they successfully (at least in the eyes of the Supreme Court) redefined the word “marriage.”

“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean — neither more nor less.”

“The question is,” said Alice, “whether you can make words mean so many different things.”

“The question is,” said Humpty Dumpty, “which is to be master — that’s all.”[1] (emphasis added)

In 2014, the Department of Education issued guidelines stating that transgender students were to be allowed to attend sex-segregated classes based on their professed “identity,” not their genetics.  There was no mention of bathrooms; what a difference two years make.

Martin Luther King is owed an apology for the way Attorney General Lynch couched this whole affair in civil rights terms and some in the Black Community have protested.  Fighting for the right to be free of discrimination based on something you can’t control, like the color of your skin, is quite different from claiming a supposed right to use whatever public bathroom you choose because today you decide you’re a member of the opposite sex.  By no means is this a civil rights issue, this is yet another attempt by this lawless administration to bypass the will of the people expressed in the Congress, and cram the LGBT agenda down American’s throats.

The ultimate goal of that movement has nothing to do with “equality.”  It is aimed at destroying the traditional American family, pure and simple.  They don’t aim to destroy Christianity, I think they recognize the futility of that, they only want to render the Christian church irrelevant, which the church has already accomplished, without outside help.  The church is sticking its head in the sand and hoping this will all blow over.  It will not.  Bathrooms and locker rooms are merely the next logical step in erasing all distinctions between men and women.  In an article entitled: “We’ll Win the Bathroom Battle When the Binary Burns,”[2] a homosexual activist says the real goal is to kill the notion of male and female altogether; to eradicate what he calls our “heterobinary structure.”  If only God had created us as male, female and “other,” we wouldn’t have this mess, right?  😉

While the focus is on the schools, the Department of Health and Human Services quietly issued a proposed rule change (and rule changes do have the force of law) in which “sex discrimination” in health care was unilaterally rewritten to include “gender identity.”  HHS is demanding that the entire health care industry include gender transition treatment as part of their services.  Refuse, they warn, and kiss your Medicare and Medicaid dollars goodbye. The rule doesn’t includes no religious exemption, which is not surprising for this administration — so much for hospitals run by religious organizations.

If only all states followed Utah’s lead in at least considering severing their educational system from federal educational funding and the extortion that comes with it.  As I said on a local radio show recently, it is long past time for states to regain control of their educational systems; yes, state taxes will have to go up, that is the price of independence.  But we were willing to pay a price for independence in 1776; we should be today as well.

To their credit, 73 Congressmen have sent a letter[3] to the Attorney General asking her to explain “why schools must disregard the privacy, ‘discomfort,’ and emotional strain imposed on other students during use of bathroom, showering, and changing facilities and overnight accommodations as these schools comply with this guidance.”  The letter also asks General Lynch to explain what will happen to “a teacher, school administrator, educator, school contractor, or person volunteering at a school who does not comply with this guidance.”  Whooptedo!  These are softball questions.  Finally, the letter gets to the heart of the matter, it asks AG Lynch to: “delineate the statutory authority under which the ED and DOJ issued this guidance.”  Now we’re talking!

To put a stop to this silliness all Congress need do is pass a clarification to the Title IX legislation which makes it clear gender refers to sex at birth.  Or make the clarification in the Dictionary Act.[4]  Will they do that?  Not unless the people demand it.

In the meantime, every parent needs to be talking with their child’s principal and learn what he or she intends to do about this.  Is the school going to roll over and implement this policy with the mere threat of the loss of funding, or will they choose to protect the safety and privacy of the 99.9% of the school’s students?

Pastors need to be talking about this with their congregations, but most won’t.  Most will don their cultural blinders and “re-double their efforts to win souls for the Kingdom,” fiddling while Rome burns.  Lest I be misunderstood: bringing souls into the Kingdom is important, but so is leaving a legacy of freedom for our kids and grandkids.

Ten other states have joined – you guessed it – Texas, in suing the Obama Administration[5] over this issue.  We can rightfully ask: What’s wrong with the other 39 states?

I believe this is the issue that parents can and should use to take back control of their local educational systems, recognizing that God holds parents and parents alone accountable for that education and all that it entails.  Parents have an equal responsibility for the safety of their children, both psychological and physical, and this movement intentionally violates both.  Moving your children from public school into Christian school is something that all Christian parents should consider, but this is only a partial answer; the children that remain in public school will continue to be harmed, and our tax dollars will facilitate it.  This must be stopped.

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

[1] http://sabian.org/looking_glass6.php

[2] http://www.advocate.com/commentary/2016/4/29/well-win-bathroom-battle-when-binary-burns

[3] http://dailysignal.com/2016/05/18/breaking-73-house-republicans-sign-letter-demanding-answers-on-obamas-bathroom-directive/

[4] https://www.law.cornell.edu/uscode/text/1/1

[5] https://www.washingtonpost.com/news/post-nation/wp/2016/05/25/texas-governor-says-state-will-sue-obama-administration-over-bathroom-directive/