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.

The Constitution’s Week in Review – 30 July 16

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

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

A Governor’s Slapdown

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

A State’s Slapdown

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

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

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

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

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

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

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

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

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

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

Secession Anyone?

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

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

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

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

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

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

Recommendations and Events:

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

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

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

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

 We The People – The Constitution Matters Radio Show.

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

Lessons in Liberty – Preserving America’s Religious Liberty.

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

 Lessons in Liberty – Preserving America’s Religious Liberty.

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

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

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

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

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

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

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

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

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

The Constitution’s Week in Review – 23 July 16

Article 1 – The Legislature: Apportioned Representation

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

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

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

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

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

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

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

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

Article 2 – The Executive: The Candidates and the Constitution

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

Article 3 – The Judiciary

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

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

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

1st Amendment – Right of Conscience

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

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

4th Amendment – Illegal Search

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

Recommendations and Events:

Christian Financial Concepts Presentation – The Constitution as Solution

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

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

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

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

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

We The People – The Constitution Matters Radio Show.

On Friday, 29 July, we will discuss the next paragraph we encounter in the Declaration of Independence; here Jefferson recounts the attempts of the colonists to enlist the aid of their “Brittish Brethren,” to no avail.  If you have complaints or petitions for the government, to what extent should you make those known and should you try to enlist the help of fellow citizens?  Please join the discussion by browsing to www.1180wfyl.com  (Friday, 7-8am EDT). If you miss the recorded show, aim for the re-broadcast Saturday at 11am and Sunday at 2pm or download the podcast at leisure.

Lessons in Liberty – Preserving America’s Religious Liberty.

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

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

[1] http://www.thenewamerican.com/usnews/constitution/item/14223-article-the-first-is-congress-ignoring-an-amendment-ratified-by-the-states

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

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

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

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

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

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

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

The Constitution’s Week in Review – 16 July 16

Article 1 – The Legislature: Separation of Powers.

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

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

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

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

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

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

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

(D) without observance of procedure required by law;

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

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

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

the reviewing court.”

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

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

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

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

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

Article 2 – The Executive: The Candidates and the Constitution

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

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

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

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

Article 3 – The Judiciary

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

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

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

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

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

1st Amendment – Right of Conscience

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

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

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

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

2nd Amendment – Is it a Right for Everyone?

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

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

Recommendations and Events:

We The People – The Constitution Matters Radio Show.

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

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

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

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

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

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

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

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

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

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

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

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

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

Constitutional Corner – Right of Petition

Open as PDF

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

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

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

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

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

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

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

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

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

Five other colonies eventually enacted similar guarantees.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[5] Record of the Senate, 1836.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[25] For perhaps a little while longer.

The Constitution’s Week in Review – 9 July 16

Article 1 – The Legislature

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

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

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

Article 3 – The Judiciary

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

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

1st Amendment – Right of Conscience

More “Bias” Response Groups Appear.

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

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

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

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

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

The Effort To Destroy Christian Doctrine Continues.

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

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

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

2nd Amendment –  Where Do We Go From Here?

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

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

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

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

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

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

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

4th Amendment.

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

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

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

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

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

Recommendations and Events:

Constitution Seminars.

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

Last Call: Lessons in Liberty.  On Monday, July 11, from 7:00-9:00 p.m. EDT, The Foundation for American Christian Education’s Lessons in Liberty series will welcome Jim Wallis, who will speak on the topic: Was Jesus a Socialist?  You can attend in the FACE classroom in Chesapeake, Virginia, or live online via Livestream.

The lecture will explore the divergence of both Christianity and the Jewish people from their covenantal, Hebraic roots, and will take on related questions such as: “Was the early church communal in the modern Marxist sense?” and “How about the Moses/Joshua Hebrew model, was it a republic or a theocracy?”

The cost to attend, either in the classroom or online, is $10.  Register at http://www.face.net/.

We The People – The Constitution Matters Radio Show.

 

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

 

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

 

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

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

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

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

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

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

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

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

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

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

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

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

The Constitution’s Week in Review – 2 July 16

Happy Birthday America!

Most people associate July 4th with our nation’s “birth” (the day was declared a national holiday after all), overlooking the fact (or perhaps they’ve never been taught) that it was two days earlier, on July 2nd, when the Continental Congress actually voted to pass Virginia’s resolution calling for independence.  Writing the next day to Abigail, John Adams gushed:

“The Second Day of July 1776 will be the most memorable Epocha, in the History of America.  I am apt to believe that it will be celebrated by succeeding generations as the great anniversary festival.  It ought to be commemorated as the day of deliverance, by solemn acts of devotion to God Almighty.  It ought to be solemnized with Pomp and Parade, with Shews, Games, Sports, Guns, Bells, Bonfires, and Illuminations from one End of this Continent to the other from this Time forward forever more.”

The day after Adams wrote those words, the draft of the Declaration was “wordsmithed” and finally approved, leading to our national holiday being recognized on that day instead.  The story of the passing of Lee’s resolution is full of drama and intrigue.  Enjoy the read.[1]

While it is fitting and proper to wish the nation a “happy birthday,” it is also fitting and proper to note the precarious situation the country finds itself in.  Immense challenges: economic, cultural and constitutional, threaten our future prosperity and freedoms.

Take time to celebrate – and then get back to work reversing the wounding of our great nation that has taken place over the last eight years.

Article 3 – The Judiciary

Showing us in vivid detail the value of term limits for federal judges, Judge Richard Posner of the 7th Circuit declared study of the original Constitution to be a complete waste of time,[2] at least for judges: “I see absolutely no value to a judge of spending decades, years, months, weeks, day, hours, minutes, or seconds studying the Constitution, the history of its enactment, its amendments, and its implementation,” waxed the jurist, who was appointed to the bench in 1981 by President Ronald Reagan (who probably regrets the appointment).   I agree in part with the judge, however.  The Supreme Court has indeed turned the Constitution into a system of common law, judge-made law, departing from the idea of a fixed standard of law, to be modified only by “amendment in the way which the Constitution designates.”[3]

The judge’s amazing statement joins a host of equally controversial ones in the past that make it unlikely (in the eyes of some at least) that the judge would ever be nominated to the Supreme Court.  Condemning Justice Antonin Scalia for making politically charged public statements[4] while doing the same hardly enlarges one’s credibility.  So, since Congress seems unwilling to propose a term limits amendment, even one focused exclusively on jurists, and since the Article V Convention project is still being rabidly fought by some on the Right, it appears unlikely that we will ever have access to a mechanism for removing jurists whose opinions make them unsuitable for continued service.  Oh well.

1st Amendment – Right of Conscience

As I’ve hinted numerous times in these pages, if you want a chance to express your right of conscience, you best do it soon – the right may not be around much longer.

If you care to let your conscience peek out on the campus of the University of Northern Colorado, at least in some non-politically correct way, you might find yourself the subject of an inquisition by the “Bias Response Team.”[5]  At the moment, the teams seems content to merely point out apparently unperceived “bias” (translation: anything the Left does not believe in); but how long will it be before an unfavorable ruling by the “bias police” results in disciplinary action or worse for some unlucky college student?

In related news, the Mississippi state legislature’s attempt to provide some protection to their citizens to act within the limits of their conscience came screeching to a halt as  a U.S. District Judge ruled[6] that Mississippi’s House Bill 1523,[7] violated the U.S. Constitution.  The Bill was an attempt to pushback against last year’s Obergefell v. Hodges decision legalizing homosexual “marriage.”  LGBT groups applauded the ruling.

Hopefully, the ruling will be appealed but at the moment that is not certain.

So the question remains: is there any aspect of Christian faith/Christian conscience which should be allowed to inform your public actions?  What do you think?

2nd Amendment – Never Let a Shooting Go To Waste

Sensing a change in the mood of the American public over whether persons on the government’s “no-fly” list should be allowed to purchase guns, Congressional Democrats are preparing to turn their “sit-in demonstration” into a road-show.  If you are comfortable with people who find themselves, for whatever reason, on a secret government list being denied the ability to purchase a gun, than go about your business, nothing to see here.  I see potential problems.

 Recommendations and Events:

Constitution Seminars.  I have no Constitution Seminars scheduled at the moment.  If you have a group of 10 or more individuals within a day’s drive of Yorktown, Virginia, and would like one presented, let me know via email to: gary@constitutionleadership.org.   Keep in mind that I’ll be unavailable from 1 August to 18 September.

Lessons in Liberty.  On Monday, July 11, from 7:00-9:00 p.m. EDT, The Foundation for American Christian Education’s Lessons in Liberty series will welcome Jim Wallis, who will speak on the topic: Was Jesus a Socialist?  You can attend in the FACE classroom in Chesapeake, Virginia, or live online via Livestream.

This lecture explores the divergence of both Christianity and the Jewish people from their covenantal, Hebrew roots. And will take on a related questions such as, “Was the early church communal in the modern Marxist sense?” and “How about the Moses/Joshua Hebrew model, was it a republic or a theocracy?”

The cost to attend, either in the classroom or online, is $10.  Register at http://www.face.net/.

On Friday, 8 July, we’ll begin a new feature on “We the People, the Constitution Matters” that I will call, for lack of a better term: Constitutional Tennis.  Just after the break at the midpoint of each show, one of our three commentators will pose a question about the Constitution, to be answered by any caller who knows the answer.  The first caller to answer the question correctly will be allowed, in turn, to pose a question of their own to any of our commentators.  If the question can’t be answered on the spot that commentator will be assigned the task of researching and answering the question at the start of the following week’s show.  “Team Listener” will get a point for each correctly answered question and “Team Scholar” will get a point for each on-the-spot question answered correctly.  We’ll announce the running point total each week.

You can listen to “We the People, the Constitution Matters” at www.1180wfyl.com each Friday from 7-8am EDT.  The recorded show is also re-broadcast each Saturday at 11am and Sunday at 2pm.

On 8 July, we’ll resume our continuing discussion of the principles of the Declaration of Independence by examining the principle that a “long train of abuses and usurpations, pursuing invariably the same Object evince[ing] a design to reduce them under absolute Despotism” is a necessary precondition for a people to legitimately change their form of government.   We will also contrast what comprised that “long train” in 1776, with what we are experiencing today.  It should be an interesting comparison.

[1] http://udspace.udel.edu/bitstream/handle/19716/4467/article3.pdf;jsessionid=6CF19E9A57FD05120A914311C63B1D7C?sequence=1

[2] http://www.americanthinker.com/blog/2016/06/has_richard_posner_committed_an_impeachable_offence.html

[3] George Washington, Farewell Address, 1796.

[4] http://abcnews.go.com/Politics/OTUS/supreme-court-justice-antonin-scalias-political-outbursts/story?id=16694778

[5] http://www.gopusa.com/?p=11819?omhide=true

[6] https://mississippitoday.org/2016/06/30/federal-judge-strikes-down-house-bill-1523/

[7] http://billstatus.ls.state.ms.us/documents/2016/html/HB/1500-1599/HB1523SG.htm

The Founders’ View of Natural Law

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

Suggested reading:

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

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

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

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

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

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

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

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

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

 

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

[1] Romans 2:15.

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

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

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

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

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

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

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

[9] Manion, p. 46.

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

[11] Antieau, p. 52.

Constitutional Corner – Secession (Redux)[1]

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

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

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

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

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

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

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

James Madison agreed:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Finally, there’s Texas.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Constitution’s Week in Review – 28 May 2016

It was a very busy week, and the next two weeks will be as well; so: a short report.

Article 2:  Abuse of Executive Power

Here’s the link to the webinar I gave last Monday night for Christian Financial Concepts on this topic: http://www.christianfinancialconcepts.com/article.php?id=4474

Encouraged by the continued gullibility of Americans to their “transgenderism,” gender-confused individuals have become even more outrageous, demanding that we refer to them by whatever pronoun they choose.  Unfortunately, they have learned to use the threat of lawsuits to get round-heeled school districts to play along, in this case, paying out $60,000 in citizen tax money as “hush funds” to a teacher who demanded colleagues address her as “they.”  You can’t make this stuff up.

Call me old fashioned, but I wouldn’t want my child exposed to this sort of mental illness on a daily basis in this person’s classroom.  Had I contributed tax revenue to the district I would demand its return.  We could then threaten to sue if we don’t get our tax refunds; seems to work for some.

In my Abuse of Executive Power presentation we talked about the right and wrong use of Executive Orders.  As I’ve mentioned multiple times in the past, this President is determined to unilaterally transform America by Executive Order and is receiving little pushback from Congressional Republicans, and even occasional support.  Wednesday night, Republicans in the House passed an amendment to an appropriations bill proposed by Rep. Sean Maloney, D-N.Y., which codified an executive order signed by President Obama back in 2014 (#13672). The Order instructed government agencies to sever contracts with companies that don’t accommodate transgender employees by allowing them to use the bathroom of their choice. Forty-three Republicans voted for the amendment. Do you know how your Congressman voted?

Second Amendment, D.C. foot-dragging stopped, maybe.

Despite 2008’s Heller v. District of Columbia decision affirming an individual right to keep and bear arms, the District continued to make it as hard as possible to obtain a concealed-carry permit, insisting that applicants prove they had a good reason to fear injury or were in what are considered high risk jobs.  District Judge Richard Leon struck down a part of the District’s carry law as unconstitutional on Tuesday.

Meanwhile in the States:

Hoping to join California, Oregon, Vermont, and Washington, the New York state legislature is considering a bill that would permit medically-assisted suicide in the state.  If conservatives don’t speak up, the traditional American culture will essentially be gone, unrecognizable ten years from now.

Upcoming Events:

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

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

Besides their wonderful 90-Day Challenge,[1] Constituting America[2] sponsors an annual contest for young Americans (there’s a Seniors category as well) to create videos, Public Service Announcements and essays aimed at informing and exciting Americans about their Constitution.   Check them out.

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

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

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