Constitutional Corner – The Left’s War on Speech

Open as PDF

The Progressive Left is engaged in a war on free speech. Don’t take my word for it, the headlines are ubiquitous: “Attack on conservative speaker stuns Middlebury College,” from the Boston Globe; “Commencement speakers: Conservatives need not apply” from the LA Times; “Protesters disrupt town-hall healthcare talks,” from Reuters.

If these articles don’t convince you, read a couple of books on the topic, one by a liberal herself. Kirsten Powers, whose liberal credentials are impeccable even if she does appear on Fox News, has written “The Silencing: How the Left is Killing Free Speech.” Another recommendation is “The Intimidation Game: How the Left Is Silencing Free Speech,” by Kimberley Strassel. Another is “Shut up, America – The End of Free Speech” by Brad O’Leary. I’ve not read Powers’ or O’Leary’s books, I only glanced at them on Amazon, but I have read Strassel’s, and it’s a real eye-opener.

If these books don’t convince you, check out British commentator Jonathan Pie on YouTube. The segment is called “How and Why” and I warn you right now that Pie’s language is not for the faint of heart. Through his profanity he reveals “how and why” Donald Trump got elected, in his view of course, and he minces no words.

Here are a few of Pie’s G-rated quotes: “We have made people unable to articulate their positions for fear of being shut down.” “Every time someone on the Left says ‘You mustn’t say that’ they are contributing to this culture [of being shut down].” “It’s time to stop silencing your opponents… Engage in the debate; talk to people who think differently to you and persuade them of your argument.” Even with 3.3 Million views, it is obvious that most on the Left have either not listened to Pie’s YouTube rant, or have, and have dismissed it out of hand and gone back to business as usual.

I’m certainly not the first to use the “War on Speech” phrase, and I doubt I’ll be the last.  The war takes place on many fronts and involves many tactics but the most common tactic is intimidation. Intimidate public speakers into silence, intimidate people and businesses into abstaining from making political contributions. In short, intimidate everyone who believes differently than you. Force them to shut up, lock their doors and stay out of politics.

Brendan Eich worked for years as Mozilla’s Chief Technology Officer. In 2008, he gave $1,000 in support of California’s Proposition 8. Proposition 8, you may recall, amended the California Constitution to affirm marriage to be between a man and woman.  This was in response to passage of Proposition 22, which made the same affirmation through a simple resolution, but which the California’s Supreme Court had struck down. Prop 8 passed with 52% of the vote and California’s Constitution was amended.

Six years later, Brendan Eich was appointed Mozilla’s CEO. Immediately, an online “shaming” began over his then six-year old contribution to the Prop 8 campaign. Eich lasted 11 days as CEO before being forced to step down.

Eich was fortunate all he lost was his job. Other Californians were less fortunate once the Prop 8 contributors list was made public. Leftists could now use Google Maps to search for neighbors who had contributed, and then the “fun” began:

  • A restaurant manager made a modest $100 donation in support of the proposition. Bad move. The restaurant suffered a boycott, trash-talking reviews on the internet, and mobs who blocked their doors and shouted “Shame on you” to arriving customers. Restaurant owners were forced to cut hours and lay off employees, some of them, ironically, homosexuals.
  • Activist groups launched boycotts of the Sundance Film Festival, based in Utah, solely because some Prop 8 donations had come from that state.
  • The owner of a chain of small grocery stores noticed flyers appeared under the windshield wipers of customers, maligning him for his donation. Three different Facebook pages sprang up urging a boycott of the store. Protestors occupied the entrance to the store, handed out flyers and demanded people not shop there. Customers were harangued to sign boycott petitions. One activist loaded up a shopping cart full of groceries and, once it was rung up at the register, refused to pay. The owner of the stores had to install security cameras over fear of product tampering.
  • Lawyers who had worked on the Prop 8 campaign naturally received hate emails and phone calls, including recommendations to “Burn in hell.”
  • A New York artist who donated and who, ironically, made her living by painting drag queens and gay parades suddenly found two reporters waiting outside her house asking why she contributed. Reviews of her art took on a new tone.
  • A teacher who supported Prop 8 was told by activists that they would call all the parents of students in her school and inform them of her “despicable” action.
  • Flyers appeared on trees in the neighborhoods of contributors telling neighbors of their support. A flyer was wrapped around a brick and thrown through the window of a Lutheran church.
  • A statue of Mary was defaced on the eve of the election. Car windows were smashed, cars keyed, tires deflated, all because people had the audacity to “speak” through their political contributions.

Realize that these were not donations to a candidate or his campaign; there was no possibility of encouraging corruption or gaining a quid-pro-quo; this intimidation sent a simple message: don’t donate to, i.e., don’t speak politically about causes with which we disagree.

Of course, the homosexual lobby got their ultimate revenge when the Supreme Court struck down all constitutional restrictions over same-sex marriage in the Obergefell v Hodges decision.

But lest you think this is all about Prop 8, it certainly is not.

Conservative and even some liberal speakers are routinely dis-invited to College campuses when some “offended” group complains. Those that are allowed to speak encounter infantile disruptions by groups and individuals who attempt to shout them down. Even the Chancellor of Berkeley, Nicholas Dirks, whose liberal credentials we can assume are also impeccable, was prevented from holding a campus forum on Civility.  “Civility? We don’t need no stinking civility, we be college students.”  Unfortunately, this group of babies will one day be in leadership positions.

Riots in Berkeley over a scheduled talk by homosexual conservative Milo Yiannopoulos caused hundreds of thousands worth of damage and the same was promised if Ann Coulter was allowed to speak.  She was given the opportunity to speak when few students would be available.  She declined.

TV host and transgender-rights activist Janet Mock, conservative writer Ben Shapiro, Illinois state attorney Anita Alvarez, writer Charles Murray, Palestinian activist Bassem Eid, rapper Action Bronson, Massachusetts General Hospital physician Emily Wong, then CIA Director John Brennan, black conservative Jason Riley, and many, many others have all been uninvited to speak or disrupted when they tried.

One of the complaints of these children-in-adult-bodies is that they are only trying to stop “speech that hurts.” The problem here is that, much to these people’s chagrin, there is no constitutional right to not be hurt or offended by something. If you think you’ll be offended by what someone has to say, don’t go to hear them. As author Salman Rushdie points out, people who declare they were offended after reading a 600-page book “have done a lot of work to be offended.”

We’ve all seen videos of the Townhall meetings disrupted by boos and catcalls when a Congressman says something the Left dislikes. If these people think their behavior is going to win them converts and grow their base, I think they have misjudged. As near as I can tell, such thuggish behavior only serves to further polarize a community.

Then there is the growing movement to shut down those who entertain reservations about climate-change and/or whether it is man-caused. Some state Attorneys General as well as the US Justice Department under Obama were talking about charging Exxon Corporation and individuals under the Racketeer Influenced and Corrupt Organizations Act, otherwise known as RICO. Their crime? Exercising their collective right to speak.

In the 1970s, scientists told us to fear global cooling and warned about the coming ice age. In 1970 alone, The New York Times, The Washington Post, The Boston Globe and the Los Angeles Times all published stories with headlines like “Scientists See Ice Age in the Future.Time magazine’s cover story on January 31, 1973 (still posted on the magazine’s website) was entitled: “The Big Freeze.”  In the last two decades it was “global warming.” When that was disproven it became undefined “climate change.” What will “science” claim in 2030?

Next to feel the heat are those who choose to speak out about the risks of mandatory vaccinations.

Anti-Vaxxers… please die in a fire” read one headline. A recent outbreak of measles among guests who had attended Disneyland created a stir. Of the 34 Disneyland guests who contracted measles and who reported their vaccination history, six said they had already been vaccinated against measles. Obviously measles vaccinations don’t always protect. Conversely, from 2004-2015, there were 108 deaths reportedly due to the vaccination itself.[1]

Of course, we all remember the attempt by the Obama administration to keep the Tea Party movement from speaking out, or at least slow it down until after the 2012 election by delaying their tax-exempt applications at the IRS. The President blamed it on some overzealous Cincinnati staffers, which proved to be a bald-face lie after IRS emails were released. Lois Lerner remains uncharged.

Corporations that contribute to Republican politicians or conservative causes also become the target of intimidation. Here’s how it works:

The American Legislative Exchange Council provided Florida with model “Stand Your Ground” legislation, which Florida’s legislature passed. Trayvon Martin was killed accosting George Zimmerman and, due to Florida’s new “Stand your Ground” law, Zimmerman was not prosecuted. Thanks to Florida’s contribution disclosure laws, the leftist group Color of Change discovered that credit card company, Visa, Inc. contributed to ALEC. Color of Change then demanded that Visa stop contributing to ALEC or risk derogatory radio ads in the hometown of every Visa board member, holding each of them accountable for Martin’s death. Similar threat letters were received at McDonald’s, John Deere, Coca-Cola, Pepsi, Amazon, Wendy’s and Proctor & Gamble — ALEC contributors all. What message did this send?

Where disclosure laws exist, all this is completely legal — unethical perhaps[2] — but legal. Where such laws are lacking, the Left is usually successful in getting contributor lists leaked. Shutting down corporate “political speech” by reversing or nullifying Citizens United is a long-shot, so the Left intends to get all the mileage they can from intimidation. And since the high Court sustained the requirement for disclosure in the Bipartisan Campaign Reform Act of 2002, law at question in the case, the Left has all the information they need to inflict their favorite weapon.  For more on the issue of the Court and anonymous “speech,” my friend Rob Natelson has written this great article.

Perhaps the most despicable action to suppress individual speech, actually just to punish those who hold different views and have the audacity to express them, has been the action taken against the Benham brothers whose TV show “Flip It Forward,” was set to premiere on HGTV last October. The noble focus of the show was to help families purchase homes they otherwise could not afford. To punish David Benham for leading a 2012 prayer rally outside the Democratic National Convention and speaking his views on homosexuality, their show was cancelled when the homosexual lobby started calling.

Chip and Joanna Gaines, hosts of HGTV’s popular “Fixer Upper” show, are under similar fire because their pastor preached that homosexuality is a sin, the implication being that if the Gaines attend that church they must feel the same way. And if they do they can’t be allowed to succeed in cable TV. Of course, some on the Right pointed to a similar connection between Barack Obama and Reverend Jeremiah Wright; the Left saw no problem: Wright had it right.

Finally, the Left’s war on “speech they find offensive” has been extended to individual words. Seattle police can no longer call suspects, “suspects” in their written reports, they must now be called: “community members.” That is going to make for some absolutely hilarious police reports. In utopian Washington State, prisons are told to phase out the word “offender” and replace it with terms like “individual,” “student,” or “patient.” In several states, most recently Pennsylvania, the word “sex” is being quietly and administratively redefined in the statutes to include “gender expression.”

“When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’ ’The question is,’ said Alice, ‘whether you can make words mean so many different things.’ ’The question is,’ said Humpty Dumpty, ‘which is to be master — that’s all.”

Some of this would be funny if it weren’t so sad. Even sadder is the typical American who says nothing in the face of this blatant intimidation. The typical American doesn’t speak out about much of anything, but some still feel strongly enough about an issue to support it financially. That is unlikely to continue once their cars are keyed or rocks thrown through windows — message received loud and clear.

George Washington once said: “If freedom of speech is taken away, then dumb and silent we may be led, like sheep to the slaughter.” Benjamin Franklin added: “Whoever would overthrow the liberty of a nation must begin by subduing the freeness of speech.”

Conclusion: We need to nip this “war” in the bud.

Justice Oliver Wendell Holmes famously said that “Free speech does not give you the right to shout fire in a crowded theater.” That’s fine, I understand that there is a safety risk accompanying some speech. The problem today is that our entire society has been turned into a crowded theater, and talking about any controversial topic is equivalent to shouting “Fire.”

Here are my suggestions:

  • Read the books mentioned above.
  • Search out other essays on the topic.
  • Read and understand the Citizens United opinion, particularly Justice Thomas’ concurring opinion.
  • Fight against disclosure laws wherever they are proposed. Transparency is a worthy goal, but intimidation will be the result.
  • Defend those who bravely speak the truth.
  • Show up at Town Hall meetings, the other side will.

Yes, I think we can all agree that there is too much money in politics, but, like it or not, the Courts have found political contributions to be “speech,” so we must consider all the second-order effects of “regulating” it.  The Left has found intimidation to work, it will continue.

The Left’s “War on Speech” must be vigorously opposed or soon the government will be telling you what you may say and what you may not. Is this the America we want? If it is not, we have some work to do.

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


[2] Got to be careful, the Right likes to pressure Leftist-cause contributors as well.


Constitutional Corner – Healthcare and the Constitution

Open as PDF

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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




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










Constitutional Corner – America’s Fundamental Principles: Economic Freedom.

Open as PDF

Our last entry in the fundamental principle “sweepstakes” is the principle of economic freedom. Economic freedom encompasses several sub-principles: the freedom to acquire and use property; the freedom to engage in economic activity, i.e. buying and selling; freedom of contract, and others.

Economic Freedom was very much a part of the overall call for liberty in the colonies; for more than a hundred years Parliament had been passing laws which made life more difficult for America’s merchants and indeed for most citizens, as certain goods become the subject of protective tariffs (protective of British merchants in England and the West Indies mostly) and thus more expensive.

Beginning with the Navigation Acts of 1630 and ending with the nefarious Townsend duties on glass, lead, paints, paper and tea in 1767, the colonies had become England’s “cash cow” and the colonists didn’t appreciate the status one bit. Duties, imposts and taxes all served to deprive the colonists of a portion of their property, and this without true representation in Parliament.

“Pennsylvania Farmer” John Dickinson put it this way: “[W]e cannot be free, without being secure in our property … we cannot be secure in our property, if, without our consent, others may, as by right, take it away …”[1]

Supreme Court Justice William Paterson expressed a similar view in 1795. “No man would become a member of a community, in which he could not enjoy the fruits of his honest labour and industry.”

The Declaration of Rights and Grievances of the Stamp Act Congress (October 19, 1765) complained of Parliament’s incessant imposition of duties and proclaimed that it was “unreasonable and inconsistent with the principles and spirit of the British constitution, for the people of Great Britain to grant to his majesty the property of the colonists.”

The Declaration and Resolves of the First Continental Congress (October 14, 1774) had stated the colonists were entitled to “life, liberty and property: and they have never ceded to any foreign power whatever, a right to dispose of either without their consent.”[2]

The Declaration of the Causes of Taking-up Arms of the Second Continental Congress stated the colonists had taken up arms for: “the protection of our property, acquired solely by the honest industry of our fore-fathers and ourselves, against violence actually offered.”

To top it off, several of the complaints Jefferson made in the Declaration of Independence sprang from economic arguments the colonists had been making for years.

A war of independence ensued — hazarding their “lives, fortunes and sacred honor” — all to protect economic and other freedoms.

The Freedom To Acquire And Use Property.

The private ownership of property was seen by the Founders as fundamental to the concept of ordered liberty and was among the rights most consistently stated by the Founders. It is perhaps best elucidated in the Virginia Declaration of Rights, which comprises Article 1 of the Virginia Constitution: “That all men are by nature equally free and independent and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.” Other state Constitutions contained similar provisions.[3]

Yet the Founders recognized that this view was not a permanent fixture of society; in his Defence of the Constitutions of Government of the United States, John Adams stated: “The moment the idea is admitted into society that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence. If ‘Thou shalt not covet’ and ‘Thou shalt not steal’ were not commandments of heaven, they must be made inviolable precepts in every society before it can be civilized or made free.”

Adams’ reference to the “commandments of heaven” reveals the source of this foundational truth: the Bible. If “Thou shalt not steal” does not equate to a right to own property, it has no meaning at all.

“The Bible offers 500 verses on prayer, less than 500 verses on faith, but more than 2,000 verses on money and possessions.”[4] Until the last century there was a traditional connection between economics and Christian thought, most notably found in the Summa Theologica of Thomas Aquinas and John Calvin’s Institutes of the Christian Religion, both of which contain whole sections devoted to economic questions.

Because man is created in the image of God, we are rational beings capable of choosing in a marketplace of competing products and services, including competing ideas. Because we are commanded to have dominion over the earth we can lay claim to property as a means of exerting that dominion.

Conversely, the Bible’s clear description of man’s sinful nature warns us, and government, to be on guard for selfishness, greed, and particularly, economic exploitation; thus we need to be wary of the concentration of power, whether in government or in private industry (i.e., monopoly).

From the Declaration, we know that the purpose of government is to secure our inalienable rights, so how does government go about doing so? How does government secure my right to acquire and possess property without infringing on the right of others to equally do so? And once I have acquired this property to what extent can government legitimately interfere with my right to enjoy it? To what extent can the government take my property for legitimate public purposes? The Founders and Framers wrestled with these questions, and more.

Take this simple test. Do I have the individual power to order my neighbor to not build a fence beyond a certain height? No, clearly I have no such power. So if government, including local government, obtains all its “just powers” from the “consent of the governed,” how in the world does my county government obtain the right to tell my neighbor or myself what height we can or cannot build a fence? How can I delegate to government a power I do not possess? Government’s power to control the use of property is often illegitimate.

Nevertheless, we find several legitimate protections of property in the Constitution:

First and foremost, the concept of a government limited to certain enumerated powers erects some protection, or did initially, over government illegitimately taking property through unjust means (this “wall” has taken some hits over the years).

Article 1, Section 8, Clause 8 granted Congress the power to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” This clause not only promoted “the progress of science,” it secured the intellectual property of the creator, at least for a specified timeframe. Notice that such protection was intended for “limited times;” some argue that today’s granting of copyright protection for “a term lasting for the author’s life plus an additional 70 years[5] establishes, in effect, a monopoly.

Elsewhere in Section 8 we find the power to “regulate Commerce with foreign Nations, and among the several States , and with the Indian Tribes ” (Clause 3); enact “uniform Laws on the subject of Bankruptcies” (Clause 4), to regulate the Value [of money], and … fix the Standard of Weights and Measures (Clause 5), punish counterfeiting (Clause 6), and punish “Piracies” (Clause 10); all these clauses provide Congress other opportunities to protect private property.

Taxes were to be uniform so as not to jeopardize anyone’s property unfairly: “A just security to property is not afforded by that government, under which unequal taxes oppress one species of property and reward another species.”[6]

Property was also protected (in the original Constitution, at least) through non-interference with contracts: “No State shall … pass any … Law impairing the Obligation of Contracts.[7]

Conversely, we also have the ominous 5th Amendment, which gives the federal government the right to take private property for “public use,” with “just compensation.”[8]

The Founders were not laissez-faire capitalists. First, because “capitalism” had only recently been introduced (though not by that name, that came later) through publication of Adam Smith’s Wealth of Nations,[9] but also because the Founders were still in the midst of abandoning the principles of British mercantilism, which Smith had argued should be replaced. Wealth of Nations was published in 1776, so by 1787 its arguments were still being absorbed.[10]

The Framers and Ratifiers saw a definite role for government in promoting trade and supporting the success of business, thus protecting the property of those businesses. Tariffs, imposts and excises were judiciously used in the years after the Constitution went into effect.

In “Founders: Property Rights, Free Markets, and Sound Money,” a well-written and comprehensive essay, Thomas G. West argues that while the Founders often had disagreements over the extent to which the government should influence the economy, they didn’t waver in their agreement on these three main points concerning private property: “the legal right to own and use property in land and other goods; the right to sell or give property to others on terms of one’s own choosing (market freedom); and government support of sound money.” Let’s examine West’s last point.

“Government Support of Sound Money.”

Thanks to inflation caused by the Federal Reserve’s money policy, a dollar today buys less than 5% of what a dollar did 100 years ago. Our money system works today only because most Americans are too ignorant to understand how they are being manipulated by the “money changers.”

The Founders’ experience with money demonstrates that there were times when principle gave way to pragmatism.   Specie money (i.e. coin) was often scarce due to a perpetual imbalance in trade — colonists imported far more than they sold overseas, not unlike our current situation.

According to the eminent historian Forrest McDonald, the bulk of the Founders’ reading was in histories. During the Constitutional Convention, the delegates made nearly 400 references to history to justify their positions.[11] This reliance on history provided them abundant examples of both good and bad money policy. They knew of the Roman practice of devaluing their coins by reducing their alloy and the Founders themselves had seen the pernicious effects of “clipping.” They knew that the Chinese originated paper currency in the eleventh century, with disastrous results. Yet like a moth to the flame, from 1690 onward, the colonists resorted to the issuance of paper money to satisfy the insatiable demand for currency.

One of the few wise acts of the British Parliament in the pre-revolutionary period was the 1751 passage of The Currency Act, which prohibited the New England colonies from printing paper money. During the Revolutionary War, however, the Confederation Congress, unable to raise necessary funds through voluntary state requisitions, had no recourse but to print fiat currency, leading to the phrase: “Not worth a Continental,” and Washington’s 1779 lament: “A wagon of money will not buy a wagon of goods.”

Despite this lesson, with their post-war economies in shambles, Massachusetts and other states (including Virginia) succumbed to the demands of their citizens and printed their own paper money, with the predicable effect on its value.

In January 1787, as he pondered whether to accept Virginia’s invitation to become part of its delegation at Philadelphia that May, George Washington summed up his view of fiat money in a letter to Jabez Bowen: “Paper money will invariably operate in the body of politics as spirit liquors on the human body. They prey on the vitals and ultimately destroy them. Paper money has had the effect in your state that it will ever have, to ruin commerce, oppress the honest, and open the door to every species of fraud and injustice.”[12]

Jefferson owned: “That paper money has some advantages, is admitted. But that its abuses also are inevitable, and, by breaking up the measure of value, makes a lottery of all private property, cannot be denied. Shall we ever be able to put a constitutional veto on it?”[13]

Does the Constitution permit paper currency? Some claim that the phrase to “coin money” in the Constitution’s Article 1, Section 8, prohibits Congress from ordering the printing of paper money at all. Others (and I share this view) believe the phrase should be (and was) interpreted as in “coining” a phrase. The Founders were certainly aware of this usage, as Webster’s Dictionary confirms, but during the Grand Convention they actually disapproved resolutions that would have given them the power to print money. Other resolutions, however, that would have overtly prohibited the power to print money were equally voted down. They denied the states the power to emit Bills of Credit and to declare anything but silver and gold to be legal tender. Robert Natelson sums the situation up by stating: “Congressional power to ‘coin money’ and to ‘regulate…foreign Coin’ included money forged in any medium, not merely metallic coin – a point repeatedly affirmed during the ratification debates.” [14]

Let’s consider one final feature of economic freedom:

Free Markets.

“The Constitution created the largest contiguous area of free trade in the world.”[15] Until the first Congress met, we might add.

While the Founders knew the value of economic liberty, they had differing views as to the role of government in achieving it. The contrasting views were no better exemplified than in Thomas Jefferson and Alexander Hamilton. Jefferson as Washington’s Secretary of State, and Hamilton, as Secretary of the Treasury, found themselves on opposite sides of the issue of whether the government should interfere in the economy.

“A wise and frugal Government,” said Jefferson, “which shall restrain men from injuring one another, shall leave them otherwise free to regulate their own pursuits of industry and improvement.”[16]

Hamilton argued that: “True liberty, by protecting the exertions of talent and industry, tends more powerfully than any other cause to augment the mass of national wealth,”[17] but the means to that liberty, in Hamilton’s mind, was a strong central government acting in the interests of commerce and industry.

Hamilton won.

After independence, while under the Articles of Confederation, states had often imposed tariffs on each other’s goods, disrupting the already fragile wartime economy further and eventually causing creation of the Constitution’s Commerce Clause. “Regulating Commerce” gave Congress considerable power, and they used it right off the block. “The federal government would exercise functions the colonists had conceded to London. The states would retain those functions the founders had claimed for the colonial assemblies.”[18] “Duties, Imposts and Excises” were soon imposed, while being careful to observe the Constitution’s requirement that they be “uniform throughout the United States.”[19]

The Tariff Act of 1789 imposed rates on different goods ranging from 5% to 50%. This “temporary” tax did what it was intended to do. The United States collected 80 to 95% of its revenue from foreign imports. Few complained.

While the United States has never enjoyed a completely free market, the economy was markedly less regulated during the Founding Period than today. Today, while we tout our economy as based on free-market capitalism, the truth reveals a highly regulated economy with few differences from those of European socialist countries. (By the way, the entrance of Socialist Senator Bernie Sanders into the 2016 presidential race has brought a much-needed conversation on socialism to the forefront.)

Richard Williams, writing in the The Fiscal Times,[20] argues we have neither capitalism nor socialism in the United States today but rather “regulism.” “Regulism is characterized not by the state owning firms but rather by the state making all of the key decisions for firms. The most obvious example includes firms that have been designated by regulators as “too big to fail.’” “In an economy that is based primarily on capitalism, when firms close, it’s because they aren’t efficient, they don’t keep costs under control or they fail to meet the needs of customers. But in an economy characterized by regulism, with the government making the key decisions, it’s just as likely caused by government decisions as by poor business practices… In socialism, when firms fail, everyone knows it’s the government’s fault because they run the business. In an economy run by regulators, no one ever knows if it’s the government’s fault. As long as government regulators escape scrutiny for their bad performance, they can continue to drive the economy into the ground with no one being the wiser.”

In “Over-regulated America – The home of laissez-faire is being suffocated by excessive and badly written regulation,” Forbes staff writers argue that “America needs a smarter approach to regulation.”[21] Over the last eight years, the U.S. has fallen from the 6th freest economy in the world to 11th place.[22] Forbes writer Bill Frezza estimates the annual cost of regulation in the U.S. to be about $1.8 Trillion. “Any regulation that is expected to cost over $100 million is supposed to get a cost-benefit analysis. Obama added $20 billion in new regulatory costs just last year. Every year there are over 3,500 new rules that come out of the federal government. … [H]ow many rules got a cost-benefit analysis last year? Fourteen!”[23]

How did we reach this over-regulated state? I lay the blame at the feet of Congress, exacerbated by the Supreme Court’s sanction of Congress’ delegation of legislative power.[24]

For our first 100+ years Americans enjoyed the greatest amount of economic freedom of any nation on earth. It was never truly a free market, but the closest thing to it. Abundant resources, the avoidance of crippling wars, and a people intent on using the talents God had given them, lead us to rise to the pinnacle of world power and prestige. Today, however, the federal government smothers business large and small in needless and costly regulations, takes a large portion of our economic property in taxes to re-distribute to others, imposes onerous environmental regulations on our property, saddles succeeding generations with unimaginable debt, and wastes $25 Billion annually on frivolous projects (see: Solyndra). Unless we recapture the spirit of economic freedom in this country, and address our other defects, I fear America is headed for a fall of Biblical proportions.

We will be discussing this topic on “We the People, The Constitution Matters” on WFYL radio Friday morning, 26 February, 7-8am. You can “Listen Live” at, or, if you are fortunate enough to live in the station’s broadcast area, on the radio as you drive to work that morning.

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

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

[1] “A Warning to the Colonies,” in The Political Writings of John Dickinson, Esq. 1804.

[2] Notice the labeling of Parliament as a “foreign power.”

[3] Pennsylvania, 1776, Art. 1; Vermont, 1777, Art. 1; Massachusetts, 1780, Art. 1; New Hampshire, 1784, Art. 2; Delaware, 1792, Preamble. found in The Federal and State Constitutions, ed. Francis Newton Thorpe

(Washington: U.S. Government Printing Office, 1909).


[5] For anonymous works the term is “95 years from first publication or 120 years from creation.”

[6] James Madison, Essay on Property, 1792.

[7] Article 1, Section 10, Clause 1. This protection is no longer in effect; in 1934, the Supreme Court upheld a Minnesota law that temporarily restricted the ability of mortgage holders to foreclose on their mortgages. The Court found the law to be a valid exercise of the state’s Police Power. It explained that the temporary nature of the contract modification and the emergency caused by the Great Depression, justified the law.

[8] The 2005 case of Kelo v. City of New London so broadened the meaning of “public use” as to render it essentially meaningless.

[9] Long title: An Inquiry into the Nature and Causes of the Wealth of Nations.

[10] In 1790, Jefferson wrote in a letter to Thomas Mann Randolph stating: “… in political economy I think Smith’s wealth of nations the best book extant …”

[11] Forrest McDonald, A Founding Father’s Library.

[12] Letter to Jabez Bowen, January 9, 1787.

[13] Letter to Dr. Josephus B. Stuart, May 10, 1817.

[14] Robert Natelson, The Original Constitution, What It Actually Said and Meant, 3rd Edition, 2014, p. 112.

[15] Forrest McDonald, The Founding Fathers and the Economic Order, found at:

[16] Thomas Jefferson, First Inaugural Address, 1801.

[17] Defense of the Funding System,” July 1795.

[18] Natelson, p. 112.

[19] Article 1, Section 8, Clause 1.

[20] Found at:




[24] Mistretta v. United States :: 488 U.S. 361 (1989)


Constitutional Corner – The Founders’ Worldview Continued

Constitutional Corner – The Founders’ Worldview Continued

Last week I conjectured that if there appears to be a disconnect between a Congressmen’s statement of faith and his or her voting record, the problem may lay in their worldview. A worldview is the “lens” through which you view the world. Worldviews are complex, constantly shifting as new information is processed, and reflect only the experiences and information to which we have individually been exposed.

Few individuals have any idea what their worldview consists of or how it lines up with certain “classical” or topical worldviews. Of the 492 of the 535 Congressmen who claim to be Christian (the 92%), I’m certain that only a handful have taken the time to assess whether or not they have a Christian or Biblical worldview to go along with their statement of faith. For that matter, how many of the 78% of Americans who claim to be Christian have done so?

The worldview of Americans has been changing, as I will vividly demonstrate in a moment. The chief reasons for this change have been changes in the curriculum of our public schools and the declining influence of Christianity in our culture. Approximately 89% of children attend public schools, so the influence of that curriculum is widespread. Children in public schools spend the major part of each weekday under the influence of that curriculum; parents who hold different views on certain topics than what is infused in the public school curriculum face an uphill battle in trying to counter the influence on their children.

Public school textbook monitors for more than 50 years have been warning of the growing presence of socialist and even communist doctrine in our public school textbooks. As students who have been taught using this curriculum themselves return to the classroom as teachers, the effect becomes even more pervasive and persuasive.

Socialism, environmentalism, communalism, one-world government doctrine and other influences have replaced patriotism, individualism, capitalism, and republicanism (i.e. our form of government). As a result, America is changing; and many would contend, not for the better. In fact, some contend we stand on the brink of cultural collapse. Which will arrive first: cultural collapse or economic collapse?

One reason few Americans have any idea what their worldview consists of lies in the lack of ways to measure it. How do you go about measuring the amalgamation of personal views on hundreds of topics? And how would you do so in an analytical way that allows comparisons from individual to individual and group to group? One way would be to construct an assessment instrument, a test, that measures your view on certain representative topics. I’m aware of only one organization: Nehemiah Institute, that has taken the time and effort to construct such a test.

Called the PEERS™ test, which stands for its five main topic areas: Political, Economic, Educational, Religious and Social, the PEERS™ test consists of 70 questions which measure the extent to which you agree or disagree with key worldview statements. The test takes less than 10 minutes to administer and results in a numerical score that determines the extent to which you hold to a Christian, Moderately Christian, Secular Humanist or Socialist worldview.

Nehemiah Institute has been administering this same PEERS™ test to public and private school children since 1988. The results are alarming, as this graph vividly shows.

(See chart on Nehemiah Institute website)

Public school students, which began in 1988 with a largely secular humanist worldview, have been trending downward ever since towards a completely socialist worldview. This is not unexpected, given the changes in public school curriculum that have been taking place over the last 50 years. More alarming are the results of students attending traditional Christian schools. Their results, which began well below what would be considered a Biblical worldview, have followed the trend of the public schools; today’s Christian School student sees the world nearly identically to the way a typical public school student sees the world. Yes, they may attend church more regularly, but when asked questions on economics, politics, social issues, even their religion, the Christian school student’s answers are often indistinguishable from those of the public school student. One explanation for this is found in the textbooks of Christian schools, which in many cases are identical to those used in public schools. Another explanation is to be found in Christian school teachers who, despite statements of faith in Christ, do not hold a comprehensive Biblical worldview – and don’t realize it because they have not taken the effort to assess their worldview.

One glimmer of hope on the chart above lies in the very small percentage of Christian schools which have purposefully structured their curriculum to reflect a comprehensive Biblical worldview. Their students, understandably, score reasonably well on the PEERS™ test, and have been even showing slight improvement over the years.

Home schooled children score in the middle, as might be expected due to the wide variety of curriculum employed.

This explains, I think, how in 2015 we can have 92% of our Congressmen and women claim to be Christians and yet draft and pass legislation that I’m convinced would never have passed the very first Congress. On March 4, 1789, as the first Congress took their brightly polished seats, if they had been administered todays PEERS™ test, I think by and large they would have scored pretty well. Granted, we might have to explain some terminology they would encounter (ex: “fractional reserve banking.” The Founders knew well the principles of fractional reserve banking, I don’t believe the term had been invented yet or was in widespread use), but I think the Founders results would have demonstrated…, well I don’t want to give everything away here.

I will go into much greater detail on how I think the Founders would have done on the PEERS™ test this Monday night, 18 May, at the Foundation for American Christian Education when I present “Do you have a Founders Worldview?” The Foundation is at 4225 Portsmouth Blvd, Chesapeake, VA. The lecture is from 6:30-8:30 pm and will be livestreamed for those outside the local area. If you would like to attend, either in the Foundation’s classroom or via Livestream, advance registration is required. Go to There is a nominal charge.

If you would like to see how you would probably score on the PEERS™ test, you can do so at Pillars of the World.

The WFYL “Constitution Matters” panel will be discussing this issue Friday morning, 7-8am EDT. You can listen to the live broadcast via Click on “Listen Live.”

Gary Porter is Executive Director of the Constitution Leadership Initiative, Inc., a project to inform Americans about the Founders’ view of their Constitution. Comments on this essay and ideas for future essays should be sent to