Constitutional Corner – The War in the Courts

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

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

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

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

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

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

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

Which brings us to District Judge Mark A. Goldsmith.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Constitutional Corner – The Left’s War on Speech

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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.

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[1] http://healthimpactnews.com/2015/zero-u-s-measles-deaths-in-10-years-but-over-100-measles-vaccine-deaths-reported/

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

 

Constitutional Corner –100 Days of Trump — and the Constitution

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

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

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

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

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

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

Presidential Activity

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

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

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

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

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

Of the twenty-four EOs, four bear mention:

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

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

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

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

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

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

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

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

Congressional Activity

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

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

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

Judicial Activity

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

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

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

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

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

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

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

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

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

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

[6] Federalist 71

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

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

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

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

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

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

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

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

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

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

[17] Gorsuch clerked for Justice Anthony Kennedy

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

Constitutional Corner – Yes, Tear Down This Wall!

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Suggested reading List:

“Original Intent,” 2000, by David Barton.

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

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

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

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

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

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

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

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

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

[4] Runkel v. Winemuller (1799)

[5] The People v. Ruggles (1811)

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

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

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

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

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

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

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

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

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

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

The proposed Amendment read:

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

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

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

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

Fast forward to the present.

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

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

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

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

Everyone still with me? Pretty exciting stuff, eh?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“… it is the duty of all nations to acknowledge the providence of Almighty God, to obey His will, to be grateful for His benefits, and humbly to implore His protection and favor …”[13]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[3] Ibid.

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

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

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

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

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

[9] 1 Corinthians 10:31 NIV

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

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

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

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

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

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

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

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

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

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

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

Constitutional Corner – Sanctuary Cities and the Constitution

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[7] 8 U.S.C. § 1371(a).

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

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

[10] Article 4, Section 2.

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

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

[13] Numbers 35 (and other scriptures).

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

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

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

Constitutional Corner – Healthcare and the Constitution

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Constitutional Corner – The Right of Protest

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Wikipedia[1] says “[t]he right to protest is a perceived human right arising out of a number of recognized human rights. While no human rights instrument or national constitution grants the absolute right to protest, such a right to protest may be a manifestation of the right to freedom of assembly, the right to freedom of association, and the right to freedom of speech.”

I could stop right there, because that is a nice succinct way of answering the question of whether there is indeed a right of protest, but that just wouldn’t be fun, so let’s proceed:

Wikipedia’s answer is fine as far as it goes, but it fails to address the distinction between natural versus civil rights a distinction Americans of the founding period easily explain. We are endowed natural, unalienable rights by our Creator, we are granted civil, alienable rights by our government.

Could a right of protest be a natural right? In its most generic sense, certainly. In a state of nature you can certainly protest anything you want: the taste of food, the weather, anything is fair game. But in a political sense, a right of protest makes no sense at all.

The Oregon ACLU[2] appears to harbor no doubt, however, stating on their website: “You have a constitutionally protected right to engage in peaceful protest in “traditional public forums” such as streets, sidewalks or parks.” Really?  Constitutionally-protected?

As Wikipedia rightly points out, but which the Oregon ACLU  apparently doesn’t realize, no national constitution, including our own, establishes such a right.

A Right of Protest might have been contemplated in the Ninth Amendment; protests were certainly a well-known feature to colonial Americans. The colonists took to the streets in droves to protest the Sugar Act of 1764, the Stamp Act of 1765, the Townshend Acts of 1767, the Tea Act of 1773 and, finally, the Intolerable Acts of 1775.

Some protests turned violent, particularly in Boston, but certainly not all of them; some protests were purely economic in nature – boycotts of British-made goods. James Madison recounted in a letter to his father how he and fellow college students participated in a subdued protest of New York merchants who chose to not take part in a boycott of British liquor urged by their brethren in beleaguered Boston.

An 1861 anti-war protest in Baltimore, Maryland resulted in both citizen and military deaths when protesters tried to block the movement of southbound Massachusetts troops going from one train station to another. It was actually the first blood spilled in the war.

From July 13–16, 1863, protests in New York City over the Union Army draft quickly turned violent, leading to 120 deaths and at least 2,000 people injured. After the Battle of Gettysburg, President Abraham Lincoln had to send several regiments of militia and volunteer troops to control the city. Protests of the National Conscription Act took place in other cities and states across the North.

The “Bonus Army” protest of 1932 resulted in 2 dead; 1,086 injured.[3]

And then how can we forget the many protests of the Vietnam War and some attendant acts of terrorism by the Students for a Democratic Society and the Weather Underground.

Some today have likened our current anti-Trump protests to the Boston Tea Party, as though there was some sort of moral equivalence. Balderdash! The Boston Tea Party was a calm and orderly affair, focused exclusively on the tea (a broken ship’s lock was immediately replaced and, eventually the more than a million dollars of tea was paid for). I can see the disclaimer now: “No ships were damaged nor crews assaulted in the taking of this tea.”

Contrast this with the violent protests on January 20th in which businesses, including an immigrant-owned limousine were torched. If there is good news here, it is that the more than 200 protesters who were arrested that day face 10 years imprisonment and up to a 250,000 fine.

Going back to the Wikipedia description, “such a right to protest may be a manifestation of the right to freedom of assembly, the right to freedom of association, and the right to freedom of speech.” “May be?” So if we combine these three natural rights somehow a right of protest springs out of them? It reminds me of the right of privacy assembled by the high court in Griswold v. Connecticut from “bits and pieces” of inferences of privacy found in the 4th and 5th Amendments, and others.

But as I repeatedly say to groups: I have no problem with creating a right to privacy or any right at all, and securing it in the Constitution; but who rightfully has the authority to create and define those rights: five unelected lawyers, or the 300 million owners of the Constitution – i.e., the American people? Because the process of amending the Constitution to create such a right requires a bit of work on our part, we seem to be more inclined to let lawyers in black robes do our work for us. Need a right to privacy? No problem. Need a right to kill your unborn child? No problem. Need a right for two homosexuals to “marry?” No problem. Give the job to the courts, they can do anything.

Our current Court, which seems to show no reticence to creating new rights, is not willing to give citizens the right to protest or even exercise their free speech right on the court’s very own steps.[4] But that’s not a obstacle to a determined protester. Protesters upset with the Citizens United decision have now taken their obnoxiousness inside the Supreme Court’s chamber,[5] even to the point of interrupting the Chief Justice.

The Supreme Court itself has never claimed there was a right to protest, per se; they have instead viewed protest-related cases as free-speech issues:

In 1969, (Tinker v. Des Moines) high school student protesters were told they could wear black armbands as a free speech right.

In the 1989 case of Texas v. Johnson, the court decided that burning the U.S. flag in protest of the government’s actions was to be considered a free speech issue. Flag burning joined the ever-increasing list of “symbolic speech” that was to be protected.

In 2011, the Westboro Baptist Church won the right to protest military funerals after claiming free speech.[6]

In 2014, in McCullen v. Coakley,[7] the Court unanimously held that Massachusetts’ 35-feet buffer zones to keep abortion protesters from interfering with women seeking abortions violated the First Amendment because it limited free speech too broadly.

So, I’m going to go out on a limb here and say that there is no such thing as a political right to protest. You have a right to petition the government for a redress of grievances, you even have a right to assemble for that purpose as well as to freely speak your grievances. But when your use of any of those rights infringes on my right to freely travel in my car, or damages my property, or disturbs my peace, we have a problem, and I’m going to demand that the law be enforced against you.

The criminals who defaced a putting green on a Trump golf course[8] last week need to be rounded up, fined and imprisoned.

The holligans who are preventing businessman Peter Thiel from enjoying his home[9] and neighborhood should be disbursed and arrested if they return.

Protesters who disrupt a Congressman’s Town Hall meeting[10] should be arrested for incitement. Let them convince a judge their actions were otherwise.

Any protests which turn into riots and property destruction where it can be proved that George Soros or anyone else funded the event should result in the arrest of those financiers for inciting riot.

The training sessions conducted by the ACLU[11] should be monitored for the same purpose and if any instructions can be interpreted as inciteful, the director of the ACLU should be similarly arrested.

Quoting from the federal government’s website on the subject of riot, we find:

Government officials cannot simply prohibit a public assembly in their own discretion,[4] but the government can impose restrictions on the time, place, and manner of peaceful assembly, provided that constitutional safeguards are met.[5] Time, place, and manner restrictions are permissible so long as they “are justified without reference to the content of the regulated speech, … are narrowly tailored to serve a significant governmental interest, and … leave open ample alternative channels for communication of the information.”

The First Amendment does not provide the right to conduct an assembly at which there is a clear and present danger of riot, disorder, or interference with traffic on public streets, or other immediate threat to public safety or order.[13] Statutes that prohibit people from assembling and using force or violence to accomplish unlawful purposes are permissible under the First Amendment.[14]

So there it is: you may peacefully petition the government for a redress of your grievances, you may even do so in a group; and you may speak your mind in any public place (except the Supreme Court’s steps). But please don’t insist that you have a constitutionally-protected right of protest.  Further, if you do not allow other Americans to enjoy their equal rights while exercising yours, don’t claim you stand on the moral high ground.  Just saying.

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

[2] http://aclu-or.org/content/your-right-protest

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

[4] https://www.washingtonpost.com/politics/courts_law/protesters-have-no-free-speech-rights-on-supreme-courts-front-porch/2015/08/28/f79ae262-4d9e-11e5-bfb9-9736d04fc8e4_story.html

[5] http://www.cnn.com/2015/01/21/politics/supreme-court-protests-citizens-united/index.html

[6] http://www.washingtonpost.com/wp-dyn/content/article/2011/03/03/AR2011030304124.html

[7] http://www.scotusblog.com/case-files/cases/mccullen-v-coakley/

[8] https://www.washingtonpost.com/news/post-nation/wp/2017/03/12/video-shows-environmental-activists-defacing-popular-trump-golf-course/?utm_term=.0972b18e88da

[9] http://www.sfgate.com/bayarea/article/Pro-immigrant-demonstrators-rally-outside-Peter-10995442.php

[10] http://www.sbsun.com/general-news/20160304/protesters-disrupt-logistics-town-hall-meeting-in-san-bernardino

[11] https://aclufl.org/2017/02/24/aclu-to-host-the-resistance-training-an-aclu-town-hall-in-miami/

Constitution Corner – The Right of Conscience

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“… there is great reason to fear that a positive declaration of some of the most essential rights could not be obtained in the requisite latitude. I am sure that the rights of conscience in particular, if submitted to public definition would be narrowed much more than they are likely ever to be by an assumed power.”[1]

Despite Madison’s initial reluctance to add a Bill of Rights to the Constitution, he finally succumbed to the arguments of Jefferson, Mason, Henry and others, and then fought vigorously for its addition.  Nevertheless, as he warned Jefferson, if the rights to be secured are not described “in the requisite latitude” they will likely not receive the protection they deserve.

So how do you describe the right of conscience?

You start by understanding what conscience is and why it is part of the human condition.

Every person is born with a conscience; it has been called “a gift of God to mankind.”  This gift manifests itself as the “still, small voice” in our spirit that speaks as we contemplate a particular action:  “And your ears shall hear a word behind you, saying, ‘This is the way, walk in it,’ when you turn to the right or when you turn to the left.”[2]  We may not hear a verbal “word” behind us, but we know the guidance is there; that guidance, based on the laws of God, is “written upon our hearts.”

Notice that conscience guides actions as well as thoughts; we are to “walk it its light.”  Thoughts or beliefs are a first step, but insufficient; they are impotent if they cannot also be acted upon.

In 1778, Theophilus Parsons warned: “We have duties, for the discharge of which we are accountable to our Creator and benefactor, which no human power can cancel. What those duties are, is determinable by right reason, which may be, and is called, a well informed conscience. What this conscience dictates as our duty, is so; and that power which assumes a control over it, is an usurper….”[3]  “Duty” implies action.

Based on the suggestion of New Hampshire as they ratified the Constitution, and his own inclinations, Madison tried to explicitly secure such a right.

He had observed, first-hand, the ill-treatment afforded Baptist ministers in nearby Culpepper County, Virginia.  Arrested for preaching without the required license from the state (which they were unable to obtain since the Church of England was the established state church), they were thrown in the “goal” and treated harshly; one account has a jailer urinating into their cell through the bars.  Hearing of this and apparently visiting and speaking with them, Madison pleaded in a letter to his college friend William Bradford: “…[P]ity me and pray for Liberty and Conscience to revive among us.”

It was the ministers’ freedom to act upon their beliefs of conscience that had Madison most concerned.  The beliefs themselves were, “in the main … very orthodox.”[4]

Madison’s “Memorial and Remonstrance against Religious Assessments on June 20th, 1785 reminds us that:

“[t]he Religion … of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate… It is the duty of every man to render to the Creator such homage and such only as he believes to be acceptable to him. This duty is precedent, both in order of time and in degree of obligation, to the claims of Civil Society. Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governour of the Universe: And if a member of Civil Society, who enters into any subordinate Association, must always do it with a reservation of his duty to the General Authority; much more must every man who becomes a member of any particular Civil Society, do it with a saving of his allegiance to the Universal Sovereign. We maintain therefore that in matters of Religion, no mans (sic) right is abridged by the institution of Civil Society and that Religion is wholly exempt from its cognizance. True it is, that no other rule exists, by which any question which may divide a Society, can be ultimately determined, but the will of the majority; but it is also true that the majority may trespass on the rights of the minority.[5] (emphasis added)

New Hampshire suggested: “Congress shall make no laws touching religion, or to infringe the rights of conscience.”  Madison added his own thoughts and came up with: “The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.”  The Senate removed the conscience reference altogether and left us with what we have today.

So to what “objects” does the right of conscience extend?  Here’s where Madison’s warning about “requisite latitude” comes into focus.  Conscience clearly begins with religious thought and action.  Any fair study of the right of conscience during the founding period must conclude that freedom of religion was the driving force behind this right.  From the Pilgrims to the Puritans, to the formation of Connecticut, Rhode Island, Pennsylvania and Maryland, religious liberty and the freedom to act on Christian conscience has been central to the American experience.

Accommodations have indeed been made to allow people (and even corporations) to align their actions with their specific religious beliefs:

For-profit companies as well as religious organizations are not forced to cover contraceptives in their healthcare plans. [6]

A woman can voluntarily quit her job over a requirement to work on the Sabbath without losing her right to unemployment benefits.[7]

A Jehovah’s Witness cannot be denied unemployment benefits after quitting his job at a weapons plant over objection to manufacturing weapons of war.[8]

The Amish cannot be forced to send their children to compulsory public school.[9]

But does right of conscience extend only to religious tenets and beliefs?

No!  In two cases,[10] the Supreme Court decided that “conscientious objection” beliefs did not have to be religiously based to be valid and deserving of respect and accommodation; they could be based on personal codes of morality.

Pharmacists in Illinois have been granted the freedom to not dispense abortificants (the “Plan B Pill”) if doing so conflicted with their objections to abortion.[11]

So a person cannot be forced to serve in the military when he or she believes war to be morally wrong, but apparently a florist can be forced to sell flowers which will be used to celebrate a homosexual wedding,[12] a baker forced similarly to bake a cake for such a wedding,[13] and a photographer forced to photograph it.[14]  If they refuse to provide these services because they believe homosexual marriage to be morally wrong or Biblically condemned, they will be sued, fined, forced out of business and almost certainly sent to “diversity training”[15] to align their “aberrant” beliefs with public policy.

America, what a country!

It should go without saying that a Jewish or Muslim butcher will never be compelled in this country to sell pork, a black carpenter compelled to build crosses for the KKK, or a lesbian print shop owner compelled to print posters for the Westboro Baptist Church.

It should be clear by now that Christian business owners and only they are being systematically targeted, with one intent: to drive them out of business if they refuse to support the LGBT agenda.  They will be forced to celebrate homosexual marriage along with everyone else, or find a different line of work!

So what is God’s view of homosexuality and homosexual “marriage?”

“While the Bible does address homosexuality, it does not explicitly mention gay marriage/same-sex marriage. It is clear, however, that the Bible condemns homosexuality as an immoral and unnatural sin. Leviticus 18:22 identifies homosexual sex as an abomination, a detestable sin. Romans 1:26-27 declares homosexual desires and actions to be shameful, unnatural, lustful, and indecent. First Corinthians 6:9 states that homosexuals are unrighteous and will not inherit the kingdom of God. Since both homosexual desires and actions are condemned in the Bible, it is clear that homosexuals “marrying” is not God’s will, and would be, in fact, sinful.

Whenever the Bible mentions marriage, it is between a male and a female. The first mention of marriage, Genesis 2:24, describes it as a man leaving his parents and being united to his wife. In passages that contain instructions regarding marriage, such as 1 Corinthians 7:2-16 and Ephesians 5:23-33, the Bible clearly identifies marriage as being between a man and a woman. Biblically speaking, marriage is the lifetime union of a man and a woman, primarily for the purpose of building a family and providing a stable environment for that family.”[16]

James Madison called conscience “the most sacred of all property.”  “Government is instituted to protect property of every sort;” he wrote, “as well that which lies in the various rights of individuals… that alone is a just government which impartially secures to every man whatever is his own.”[17]

Just as government is taking an increasingly dim view of personal property in this country,[18] they are taking an equally dim view of the rights of conscience, at least when the beliefs in question do not align with those of the progressive Left.

Rather than being secure, liberty of conscience finds itself under attack by those who feel we must all think and act alike on certain issues.  While there have been occasional victories, liberty of conscience still finds itself, at least on the subject of homosexual marriage, very much on the defensive.  We hope and pray that soon-to-be Justice Neil Gorsuch will help bring sanity to this pitiable situation.

Liberty of conscience, at the very heart of the settlement and formation of America, must be preserved if America is to remain America.  Samuel Adams told those gathered in the State House in Philadelphia on August 1, 1776, “…[f]reedom of thought and the right of private judgement, in matters of conscience, driven from every other corner of the earth, direct their course to this happy country as their last asylum.”[19]

No longer.

“If there be a government then which prides itself in maintaining the inviolability of property; which provides that none shall be taken directly even for public use without indemnification to the owner, and yet directly violates the property which individuals have in their opinions, their religion, their persons, and their faculties; … such a government is not a pattern for the United States.  If the United States mean to obtain or deserve the full praise due to wise and just governments, they will equally respect the rights of property, and the property in rights: they will rival the government that most sacredly guards the former; and by repelling its example in violating the latter, will make themselves a pattern to that and all other governments.”[20] (emphasis added)

As “James Madison” tells the school kids I visit, if you do not know your rights and/or are not willing to defend and assert them, you effectively have no rights and are on the road to slavery.  If Americans, and particularly Christian Americans, don’t stand united against this oppression, as Ronald Reagan once said: …”we will wake up one day telling our children and our children’s children what it was once like in the United States where men were free.”

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

[1] James Madison letter to Thomas Jefferson, 17 Oct 1788.

[2] Isaiah 30:21.

[3] http://press-pubs.uchicago.edu/founders/documents/v1ch4s8.html

[4] From James Madison to William Bradford-24 January 1774

[5] http://press-pubs.uchicago.edu/founders/documents/amendI_religions43.html

[6] Hobby Lobby Stores & Conestoga Wood Specialties Corp. v. Burwell, Little Sisters of the Poor v. Burwell.

[7] Sherbert v. Verner 374 U.S. 398 (1963)

[8] Thomas v. Review of Indiana Employment Security Division 450 U.S. 707 (1981)

[9] Wisconsin v. Yoder 406 U.S. 205 (1972)

[10] Seeger v. United States (1965) and Welsh v. United States (1970)

[11] https://aclj.org/pharmacists-victory-illinois-seven-year-fight-conscience-rights

[12] http://www.adfmedia.org/News/PRDetail/8608

[13] http://www.wnd.com/2016/07/christian-baker-takes-compulsion-of-speech-case-to-supremes/

[14] http://www.adfmedia.org/News/PRDetail/5537

[15] http://www.christianpost.com/news/christian-business-owner-gay-pride-t-shirts-diversity-training-148793

[16] https://www.gotquestions.org/gay-marriage.html

[17] http://press-pubs.uchicago.edu/founders/documents/v1ch16s23.html

[18] https://en.wikipedia.org/wiki/Kelo_v._City_of_New_London

[19] http://www.revolutionary-war-and-beyond.com/american-independence-speech-by-samuel-adams-august-1-1776.html

[20] http://teachingamericanhistory.org/library/document/property/

Constitution Corner – The Rights of Illegal Aliens

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Let’s say a Mexican national decides to illegally enter America and is successful in doing so, but he then unfortunately steps into a quicksand pit and is slowly being sucked down despite his efforts to extricate himself.

A passerby, an American citizen, observes the man’s predicament.   Does the citizen first ascertain whether or not the man is a U.S. citizen, or even in the country legally, before deciding whether or not to throw him a lifeline?  Of course not; as Jefferson said, or implied: We are all created equal in the sight of God and are equally entitled to the enjoyment of certain unalienable rights endowed to us by our Creator; among which are the right to pursue happiness, enjoy liberty, and escape from quicksand, or something like that.

I think all Americans would agree that every human being should enjoy these unalienable, natural rights.  Obviously, many Americans do not.  Many Americans believe that until a person has first filled their lungs with air, and for some, even after that time, they can be killed, murdered, terminated, have their little spinal cord snipped or cranium crushed, whatever, all for the convenience of the person who carries them, or moments ago carried them, in their womb.

So as we approach the subject of rights for illegal aliens, we must realize that we as a nation have a long way to go before claiming Jefferson’s ideal of equality at creation, and that some in our country are far more willing to extend certain rights to lawbreakers than they are to the unborn.

Whether I think, or you think, or any American thinks illegal aliens should enjoy any of the rights secured by our Constitution, is, in the end, not that important.  What matters, at least in the near-term, is what does the Supreme Court think?  We’ll get to that in a moment.

I know, even as I say those words concerning the court, that I’ve committed an heresy , and even contradicted statements I’ve made in the past: the Supreme Court doesn’t have the final say on anything Constitutional, the people do.  But until the people act on the authority they have, the Court does.  That, unfortunately, is what our system of government has become.

Ever since Marbury v. Madison, when Chief Justice John Marshall carved out this special privilege the Court now enjoys, Americans have generally yielded to the Court’s opinion on any matter, even when the Court has been clearly wrong.

When the Court ruled, in 1896,[1] that separate bathrooms and drinking fountains for blacks were entirely proper and constitutional, it took nearly 60 years[2] for the people to say they disagreed, and “encourage” the Court to agree with them.

So here’s a question: in 1865, when Congress began working on what became the 14th Amendment, did they intend to have the privileges it extends and the protections it provides cover aliens in this country illegally?  The answer has to be clearly and unequivocally: no – for two reasons.  First, the focus at that time was clearly on slavery and how to rid the United States of it and its effects.[3]  Second, in 1865, the concept of an illegal alien was unknown.

Prior to the 14th Amendment Congress passed the Civil Rights Act of 1866,[4] guaranteeing citizenship to all Americans without regard to race, color, or previous condition of slavery or involuntary servitude. The Act was a direct attack on the infamous “Black Codes” that were passed by most of the southern states after the War for Southern Independence.  Black Codes restricted the movement of blacks, controlled the type of labor contracts they could enter into, prohibited them from owning firearms, and prevented them from suing or testifying in court.

When the Civil Rights Act reached his desk, President Andrew Johnson vetoed it.  Johnson objected to the fact that, at the time, 11 of 36 states were not yet represented in the Congress; he also thought the Act discriminated against whites and in favor of African-Americans.  Even after overriding Johnson’s veto, there were concerns in Congress whether the Act was constitutional.  In response, they drafted the 14th Amendment, and forced the southern states to ratify it or face continued martial law.

The 14th Amendment’s Section 1 states:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The critical clause for our discussion is the last one.  What did Congress mean by “any person?”  Did they mean to extend these protections to all “persons,” i.e., all human beings, regardless of their legal status in our country?  They distinguished between “citizens” and “persons” but did not consider a “person’s” lawful status.

Until 1875, there was no such thing as an “illegal alien.” Anyone in the country who had not become a citizen was simply an “alien.”  Aliens entered and left America at will.  If they stayed long enough to meet the rules for naturalization, they could voluntarily apply for citizenship, or not; if they choose not to become citizens, they could stay indefinitely as nothing more than an “alien.”

The Page Act of 1875[5] was the first attempt by Congress to control who would be allowed to legally immigrate to America.  That year it became illegal to enter the country if you were Asian, and you were coming to America to be a forced laborer, were intent on engaging in prostitution, or were considered to be a convict.  The “illegal alien” was born.

In 1921, Congress established the first immigration quotas[6] based on country of origin. Quotas based on national origin continued until 1965 when the Immigration and Nationality Act of 1965[7] initiated a system of preferences based on immigrants’ skills and family relationships with U.S. citizens or U.S. residents (while retaining by-country limits).

In “Yes, illegal aliens have constitutional rights,”[8] immigration activist and political consultant Raoul Contreras cites none other than James Madison in claiming that aliens should have the full protection of the Constitution.

In the Report of 1800, Madison wrote:[9]

“…Aliens are not more parties to the laws, than they are parties to the constitution; yet it will not be disputed, that as they owe on one hand, a temporary obedience, they are entitled in return, to their protection and advantage.”

According to Madison, “aliens” are entitled to “protection and advantage.”  But which aliens, those who are in the country legally, or illegally?  And which “protections and advantages.”

Would James Madison have extended his undefined “protection and advantage” to aliens in the country legally?  I think so.  Would Madison have extended these protections to aliens in the country illegally?   I think not, but I’m willing to be convinced otherwise.  And just what specific protections would Madison extend to aliens in either category?  We can’t know for sure.

After citing Madison, Contreras discusses several Supreme Court decisions which he says support his contention that illegal aliens enjoy “the full panoply of constitutional protections American citizens have with three exceptions: voting, some government jobs and gun ownership (and that is now in doubt).”  So what has the court said?

In the 2001 case of Zadvydas v. Davis,[10]  the Court decided that the Due Process Clause of the 14th Amendment applies to all aliens in the United States whether their presence here is “lawful, unlawful, temporary, or permanent.”

In 1982, in Plyler v. Doe,[11] the court said: “The illegal aliens who are … challenging the state may claim the benefit of the Equal Protection clause which provides that no state shall ‘deny to any person within its jurisdiction the equal protection of the laws.’ Whatever his status under immigration laws, an alien is a ‘person’ in any ordinary sense of the term.”

So thus far the Court has granted due process and equal protection provisions of the 14th Amendment to illegal aliens, based on the unrefined definition of “person.”  But then we encounter a problem with Mr. Contreras’ interpretation of Supreme Court opinions.

Almeida-Sanchez v. United States (1973)[12] centered on the warrant-less search of an automobile, 20 miles from the U.S. border, belonging to a Mexican national with a valid work permit to be in the U.S.  The search, conducted by the Border Patrol to determine whether illegal aliens were being carried in the car, instead found a large quantity of marijuana.  Almeida-Sanchez was convicted of the marijuana trafficking and the 9th Circuit Court of Appeals affirmed the conviction.  But the Supreme Court found the warrant-less search to be unreasonable and reversed the lower court.

According to Contreras, the Court decided that “all criminal charge-related elements of the Constitution’s amendments contained in the First, Fourth, Fifth, Sixth and the 14th, such as search and seizure, self-incrimination, and trial by jury, protected all non-citizens, whether in the country legally or illegally.”  Unfortunately for Mr. Contreras, the court reached no such conclusion (don’t take my word for it, read the opinion).[13]  Instead, the (6-3) majority ends by stating: “those lawfully within the country, entitled to use the public highways, have a right to free passage without interruption or search unless there is known to a competent official, authorized to search, probable cause for believing that their vehicles are carrying contraband or illegal merchandise.”  So while the Court affirmed the protection of the 4th Amendment for those aliens lawfully in the country it extended no such protection to those in the country unlawfully, nor do I find evidence that it found that any other protections of the Bill of Rights should be applied.

Based on this evidence, it seems clear that, in the eyes of the Court, at least the “due process” and “equal protection” provisions of the 14th Amendment apply to illegal aliens.  Aliens legally in the country enjoy additional protections as well, at least those of the 4th Amendment, perhaps extending to much of the Bill of Rights.

So I return to my earlier question: in 1865, when the 14th Amendment was drafted, did Congress see its protections extending to “persons” who had broken the law to arrive here?  I think not.  But as I have stated in the past, it is not so much what the drafters of a Constitution, Amendment or Statute intended, it is what they achieved that counts.  The drafters of the 14th Amendment used the word “person” in a general sense without discriminating between “lawful” and “unlawful” persons.  In 1865, no such distinction of aliens even existed; that came ten years later.  Had such a distinction existed, would the drafters have been more elaborative? One would hope.

In the eyes of the Court, perhaps this question is settled; but is it settled with the owners of the Constitution?  In that regard, I think the jury is still out. What do you say, America?  What rights should illegal aliens enjoy?  Are you content with those that have already been extended to them or would you like to see more, or fewer? If you think the Court erred in its use of the 14th Amendment’s “person,” you need to let someone know (and who would that be?).  Or you could just sit back and let the Supreme Court continue to dictate the policy of the United States.  I’m just saying…

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[1] Plessy v. Ferguson, 163 US 537 (1896).

[2] Brown v. Board of Education of Topeka, 347 U.S. 483 (1954)

[3] Slaves were freed by the 13th Amendment.

[4] https://en.wikipedia.org/wiki/Civil_Rights_Act_of_1866

[5] https://en.wikipedia.org/wiki/Page_Act_of_1875

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

[7] https://en.wikipedia.org/wiki/Immigration_and_Nationality_Act_of_1965

[8] http://thehill.com/blogs/pundits-blog/immigration/255281-yes-illegal-aliens-have-constitutional-rights

[9] https://founders.archives.gov/documents/Madison/01-17-02-0202

[10] https://en.wikipedia.org/wiki/Zadvydas_v._Davis

[11] https://en.wikipedia.org/wiki/Plyler_v._Doe

[12] https://en.wikipedia.org/wiki/Almeida-Sanchez_v._United_States

[13] https://www.law.cornell.edu/supremecourt/text/413/266