“CLIMATE CHANGE” TREATY: The Supreme Law Of The Land? Or Lawless Usurpation?
A Defense of the U.S. Constitution From Its Domestic Enemies.
by Publius Huldah
If President Obama signs a “global warming” treaty at the United Nations’ “Climate Change” Conference in Copenhagen this December; and if the U.S. Senate ratifies it, will it become part of the supreme Law of the Land?
We hear it said that whenever the President signs, and the Senate ratifies, a Treaty, it becomes part of “the supreme law of the land”. But is that True? Not necessarily! Walk with me, and I will show you how to think through this question, and how to analyze other constitutional questions which come your way.
You must always ask: Is this authorized in the Constitution? Where exactly in the Constitution? And precisely what is authorized by the Constitution? Let us start at the beginning:
1. Does the federal government have authority to make treaties? Can treaties be about any subject? Or, are the proper objects of treaties limited by The Constitution?
Art II, Sec. 2, cl. 2, U.S. Constitution, says, respecting the powers of the President:
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur…
Article VI, cl. 2 says:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. [emphasis added]
Thus, we see that the federal government is authorized to make treaties. Now, we must find out whether there are limitations on this treaty making power.
2. It is a classic rule of construction (rules for understanding the objective meaning of writings) that one must give effect to every word & phrase. The clause does not say, “Treaties made by the United States are part of the supreme Law of the Land”. Instead, it says Treaties made under the Authority of the United States, are part of the supreme Law of the Land.
So we see right away that a Treaty is part of the supreme Law of the Land only if it is made “under the Authority of the United States“.
3. From where do the President and the Senate get Authority to act? From The Constitution. The objects of their lawful (as opposed to usurped) powers are enumerated in the Constitution. Thus, the President and Senate must be authorized in the Constitution to act on a subject before any Treaty made by them on that subject qualifies as part of “the supreme Law of the Land”. If the Constitution does not authorize the President or Congress to act on a subject, the Treaty is not “Law” – it is a mere usurpation, and deserves to be treated as such (Federalist No. 33, 6th para). Because the Constitution is “fundamental” law (Federalist No. 78, 10th -11th paras), it is The Standard by which the legitimacy of all presidential acts, all acts of Congress, all treaties, & all judicial decisions is measured. (e.g., Federalist No. 78, 9th para).
4. The Federalist Papers were written during 1787-1788 by Alexander Hamilton, James Madison, and John Jay, in order to explain the proposed Constitution to The American People to induce them to ratify it. Because of this, The Federalist is the most authoritative commentary on the meaning of The Constitution. Thus, we must always consult The Federalist to learn what it says about any constitutional provision. In Federalist No. 44 (7th para from end), James Madison said that a treaty which violates a State constitution would have no effect in that State:
…as the constitutions of the States differ much from each other, it might happen that a treaty or national law of great and equal importance to the States would interfere with some and not with other constitutions and would consequently be valid in some of the States at the same time that it would have no effect in others. [emphasis added]
Madison thus illustrated the Principle that a treaty which interferes with the Constitution has no effect. I found no other discussion in The Federalist on this point. So, let us turn to Thomas Jefferson:
In giving to the President and Senate a power to make treaties, the Constitution meant only to authorize them to carry into effect, by way of treaty, any powers they might constitutionally exercise. –Thomas Jefferson: The Anas, 1793. ME 1:408 [emphasis added]
Surely the President and Senate cannot do by treaty what the whole government is interdicted from doing in any way. –Thomas Jefferson: Parliamentary Manual, 1800. ME 2:442 [emphasis added]
According to the rule established by usage and common sense, of construing one part of the instrument by another, the objects on which the President and Senate may exclusively act by treaty are much reduced, but the field on which they may act with the sanction of the Legislature is large enough; and I see no harm in rendering their sanction necessary, and not much harm in annihilating the whole treaty-making power, except as to making peace. –Thomas Jefferson to James Madison, 1796. ME 9:330 [emphasis added]
5. So! We see from the above that the treaty making power of the United States is very limited! What, then, are the proper objects of treaties? To find the answer, we must go to The Constitution to see what it authorizes the President and the Congress to do! The Constitution delegates to Congress powers “To regulate Commerce with foreign Nations…and with the Indian Tribes” (Art I, Sec. 8, cl. 3); and “To declare War…and make Rules concerning Captures on Land and Water” (Art I, Sec. 8, cl. 11). The Constitution authorizes the President to “…appoint Ambassadors, other public Ministers and Consuls…” (Art II, Sec. 2, cl. 2).
The Federalist Papers discuss the treaty making power of the United States. John Jay said treaties relate to “war, peace, and to commerce” and to the promotion of “trade and navigation” (Federalist No. 64, 3rd and 6th paras). Madison said treaties also relate to sending and receiving ambassadors and consuls and to commerce. (Federalist No. 42, 1st and 3rd paras).
In addition, Art I, Sec. 8, cl. 8, authorizes Congress “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”. Thus, The United States could properly enter into treaties respecting patents and copyrights.
6. Now, let us consider the proposed “climate change” treaty. There exists somewhere a 200 page draft agreement which, during December 2009, is to be hammered out, put into final form, and signed in Copenhagen. If signed by Obama and ratified by the Senate, would it become part of “the supreme Law of the Land”?
To answer that Question, we must first ask: Does The Constitution authorize Congress to make laws about the objects of the proposed “climate change” treaty? One wants to see the actual 200 page draft agreement, but it appears, from various web sites, that the gist of the scheme is for the governments of the “rich” nations to reduce the “greenhouse gas emissions” within their borders and to send money to the “poor” nations to bribe them to sign the treaty and to compensate them for our “past emissions”. There seem also to be provisions for entrepreneurs like AlGore to sell “carbon offset credits” or “emission reduction units” to those who emit more than “their share” of “greenhouse emissions”. [By the way, from where does AlGore get them to sell?]
And just what, pray, are “greenhouse emissions”? Primarily, carbon dioxide, methane, and water vapor. Carbon dioxide: the gas which humans and other animals exhale, and which plants must have for photosynthesis [sounds like a good system to me]. Methane: The gas which animals belch. All very easy to control: Kill most of the people and most of the animals! Shut down our remaining industries. Stop the cars. Turn off the electricity. Cut off supplies of propane. Prohibit the burning of wood. And water vapor! Oh! We must stop poisoning the world with Water!
So! The Questions are these: Does The Constitution grant to Congress the power to make laws respecting the reduction of carbon dioxide, methane, water vapor, etc. “emissions”? Is transferring wealth from Americans to “poor” nations to compensate them for our “past emissions”, one of the enumerated powers of Congress? Does The Constitution grant to the Executive Branch jurisdiction over carbon dioxide, methane, and water vapor?
The answer is NO! Accordingly, if the Senate were to ratify the “climate change” treaty, the treaty would NOT become part of “the supreme Law of this Land”, because it would not have been made under the Authority of the United States. It would be a mere usurpation and would deserve to be treated as such. Do not forget: The federal government may not lawfully circumvent the U.S. Constitution by international treaties. It may NOT do by Treaty what it is not permitted to do by the U.S. Constitution.
7. While the statist-in-chief will surely sign a Treaty in Copenhagen, ratification requires two thirds of the Senators present (Art. II, Sec. 2, cl.2). Are we such a corrupt people that we elected 67 U.S. Senators who will vote to ratify the Treaty? But even if 67 faithless Senators vote to ratify it, then we may take heart from the words of James Madison in Federalist No. 44 (16th para):
… in the last resort a remedy must be obtained from the people, who can, by the election of more faithful representatives, annul the acts of the usurpers…
and Alexander Hamilton in Federalist No. 33 (5th para):
…If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard [The Constitution] they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify….
Read again the foregoing passages! The statists can not enslave us without our acquiescence. For too long, we have blindly accepted whatever we hear others say. Someone on TV says, “If the Senate ratifies this treaty, it will become part of the supreme law of the land!” We are told that “The Rule of Law” requires us to obey every order, law, court opinion, or treaty coming out of the federal government. And not only do we believe such nonsense, we repeat it to others. And thus, we became part of the misinformation dissemination network. In order to restore our constitutional republic with its federal form of government, we must rediscover the lost art & science of Learning, Thinking and Analysis. And then, we must learn to say, “They don’t have authority under The Constitution to do that!” Pay attention to the words of our beloved James Madison and Alexander Hamilton. PH
DOES THE “GENERAL WELFARE CLAUSE” OF THE U.S CONSTITUTION AUTHORIZE CONGRESS TO FORCE US TO BUY HEALTH INSURANCE?
Defending The Constitution From It’s Domestic Enemies.
By Publius Huldah
CNSNews.com recently posted an article, “Hoyer Says Constitution’s ‘General Welfare’ Clause Empowers Congress to Order Americans to Buy Health Insurance”. In the article, Steny Hoyer (Democrat House Majority Leader) said Congress has “broad authority” to force Americans to purchase health insurance, so long as it was trying to promote “the general welfare”.
Oh my! Does Steny Hoyer not know that his view was thoroughly examined and soundly rejected by our Founders?
The Truth is that Congress is NOT authorized to pass laws just because a majority in Congress say the laws promote the “general welfare”! As shown below, James Madison, Father of The Constitution, and Alexander Hamilton, author of most of The Federalist Papers, expressly said The Constitution does not give a general grant of legislative authority to Congress! Rather, ours is a Constitution of enumerated powers only. If a power isn’t specifically granted to Congress in The Constitution, Congress doesn’t have the power. It really is that easy – and our beloved Madison and Hamilton prove it.
1. Let us look at the so-called “general welfare” clause: Article I, Sec.8, clause 1, U.S. Constitution, says:
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States…
Immediately thereafter, follows an enumeration of some 15 specific powers which are delegated to Congress. If you will spend 20 minutes carefully reading through the entire Constitution and highlighting the powers delegated to Congress, you will find (depending upon how you count) that only some 21 specific powers were delegated to Congress. This is what is meant when it is said that ours is a Constitution of enumerated powers!
2. But Steny Hoyer and his gang of statists claim that the “general welfare” clause is a blank check which gives them power to pass any law they want which they say promotes the “general welfare”. Further, they claim the power to FORCE their view of such on us.
3. Let us analyze this. Since words change meaning throughout time [200 years ago, "nice" meant "precise"], we must learn what the word, “welfare”, meant when the Constitution was ratified. “Welfare”, as used in Art. 1, Sec. 8, clause 1, meant:
Exemption from any unusual evil or calamity; the enjoyment of peace and prosperity, or the ordinary blessings of society and civil govern-ment (Webster’s American Dictionary of the English Language, 1828).
But The American Heritage Dictionary of the English Language (1969), gave a new meaning: “Public relief – on welfare. Dependent on public relief”. Do you see how our Constitution is perverted when 20th century meanings are substituted for original meanings? Or when the words of The Constitution are treated as if they have no meaning at all except that which the statists assign to them?
4. Both Madison and Hamilton squarely addressed and expressly rejected the notion that the “general welfare” clause constitutes a general grant of power to Congress. In Federalist No. 41 (last 4 paras), Madison denounced as an “absurd” “misconstruction” the notion that
…the power “to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,” amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare….
In refuting this “misconstruction”, Madison pointed out that the first paragraph of Art. I, Sec. 8 employs “general terms” which are “immediately” followed by the “enumeration of particular powers” which “explain and qualify”, by a “recital of particulars”, the general terms. Madison also said:
…Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity…
Madison was emphatic: He said it was “error” to focus on the “general expressions” and disregard “the specifications which ascertain and limit their import”; and to argue that the general expression provides “an unlimited power” to provide for “the common defense and general welfare”, is “an absurdity”.
In Federalist No. 83 (7th para), Hamilton said:
…The plan of the [constitutional] convention declares that the power of Congress…shall extend to certain enumerated cases. This specification of particulars evidently excludes all pretension to a general legislative authority, because an affirmative grant of special powers would be absurd, as well as useless, if a general authority was intended… [italics added]
5. So! It is clear from Madison and Hamilton that The Constitution does not bestow any general or unlimited grant of legislative power to Congress! And what else did Madison and Hamilton say about the “enumerated” powers of the federal government? In Federalist No. 45 (9th para), Madison said:
The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people….[emphasis added]
Madison said it again in Federalist No. 39 (3rd para from end):
…the proposed government cannot be deemed a national one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignity over all other objects….” [emphasis added]
In Federalist No. 14 (8th para), Madison said:
… the general [federal] government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects...[emphasis added]
In Federalist No. 27 (last para), Hamilton said:
…It merits particular attention in this place, that the laws of the Confederacy [the federal government], as to the ENUMERATED and LEGITIMATE objects of its jurisdiction, will become the SUPREME LAW of the land…Thus the legislatures, courts, and magistrates, of the respective members, will be incorporated into the operations of the national government AS FAR AS ITS JUST AND CONSTITUTIONAL AUTHORITY EXTENDS…[caps in original]
6. Now, let’s look at the 10th Amendment:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Now, we can understand the true meaning of the “general welfare” clause: OUR FOUNDERS UNDERSTOOD that the “general Welfare”, i.e., the enjoyment of peace and prosperity, and the enjoyment of the ordinary blessings of society and civil government, was possible only with a civil government which was strictly limited and restricted in what it was given power to do!
7. So! How did we get to the point where the federal government claims the power to regulate every aspect of our lives, including forcing us to buy health insurance? Consider Prohibition: During 1919, everyone understood that the Constitution did not give Congress authority to simply “pass a law” banning alcoholic beverages! So the Constitution was amended to prohibit alcoholic beverages, and to authorize Congress to make laws to enforce the prohibition (18th Amdt.).
But with Franklin D. Roosevelt (FDR), the federal government abandoned our Constitution: FDR proposed “New Deal” schemes; Congress passed them. At first, the Supreme Court opined (generally 5 to 4) that “New Deal” programs were unconstitutional as outside the powers granted to Congress. But when FDR threatened to “pack the court” by adding judges who would do his bidding, one judge flipped to the liberal side, and the Court started approving New Deal programs (generally 5 to 4).
Since then, law schools don’t teach the Constitution. Instead, they teach Supreme Court opinions which purport to explain why Congress has the power to regulate anything it pleases. The law schools thus produced generations of constitutionally illiterate lawyers and judges who have been wrongly taught that the “general welfare” clause, along with the “interstate commerce” and the “necessary and proper” clauses, permit Congress to do whatever it wants!
Roger Pilon of the Cato Institute nailed it in his recent post on Politico.com:
Is it unconstitutional for Congress to mandate that individuals buy health insurance or be taxed if they don’t? Absolutely – if we lived under the Constitution. But we don’t. Today we live under something called “constitutional law” – an accumulation of 220 years of Supreme Court opinions – and that “law” reflects the Constitution only occasionally.
Now you see how the statists justify the totalitarian dictatorship they are attempting to foist upon the American People. The statists and the brainwashed products of our law schools go by U.S. Supreme Court opinions which reject Our Constitution! (But Publius Huldah goes by The Constitution as explained by The Federalist Papers).
8. But is the Supreme Court the ultimate authority on the meaning of our Constitution? NO! Hamilton said the people are “the natural guardians of the Constitution”, and he called upon us to become “enlightened enough to distinguish between a legal exercise and an illegal usurpation of authority.” (Federalist No.16, next to last para). Madison (or Hamilton) said that breaches of our Constitution can be corrected by “…the people themselves, who, as the grantors of the commission [The Constitution], can alone declare its true meaning, and enforce its observance” (Federalist No. 49, 3rd Para).
Folks! Your duty is clear: Study The Declaration of Independence, The Constitution, and The Federalist Papers. Live up to the expectations of Hamilton and Madison; and throw off the chains which the usurpers are forging for you and Our Posterity.
Is Health Care a “Right”?
IS THERE A “RIGHT” TO MEDICAL CARE?
What is the Source of “Rights”?
Do you have a “right” to medical care? Is medical care free? Does it grow on trees? If you don’t pay for your own medical care, do you have a “right” to get medical care at other peoples’ expense? Do you have a “right” to have other people forced to pay for your medical care?
Let us walk through this important question to the clear answer.
What are “rights”? Where do rights come from? Are rights unalienable gifts from God? Are rights inherent to our nature as humans? Is the Bill of Rights (the first 10 Amendments to the U.S. Constitution) or the 14th Amendment the source of our rights? Or, are “rights” entitlements to stuff which other people are forced to pay for?
Let us examine these four views on the nature of “rights”.
1. Our Declaration of Independence says Rights are unalienable and come from God:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness…
Because our Declaration of Independence, one of our three founding documents, refers to The Creator God as The Grantor of Rights, let us look to The Bible to see what those rights are. The Bible reveals many rights, such as the right to inherit, earn, and keep property; the right of self-defense; the right to work in one’s chosen trade or profession; the right and duty to demand that the “king” adhere to the Covenant of civil government; the right to travel; the right to speak; the right to marry and raise children free from interference; the right to worship God; and so forth. The distinguishing characteristic of all these God-given rights is that each and every one of them may be held and enjoyed at NO expense or loss to any other person.
2. The Philosopher Ayn Rand saw rights as inherent to the nature of man; but thought God had nothing to with it. John Galt said in Atlas Shrugged:
The source of man’s rights is not divine law or congressional law, but the law of identity. A is A—and Man is Man. Rights are conditions of existence required by man’s nature for his proper survival. If man is to live on earth, it is right for him to use his mind, it is right to act on his own free judgment, it is right to work for his values and to keep the product of his work. If life on earth is his purpose, he has a right to live as a rational being: nature forbids him the irrational. Any group, any gang, any nation that attempts to negate man’s rights, is wrong, which means: is evil, which means: is anti-life.
Thus, Ayn Rand also saw “rights” as attributes which may be held and enjoyed at no expense or loss to any other person.
3. Others say our rights come from the Bill of Rights, or from the 14th Amendment. But these are grievous and pernicious errors.
To say that the Bill of Rights “confers” our rights; or to discuss “the full scope” of any of the First Ten Amendments, constitutes a restriction on, and reduction of, the rights given by God. To say that the Bill of Rights is the source of our rights, diminishes them from their hallowed status as unalienable gifts from God, and transforms them into revocable privileges which we hold, or not, according to whether they are recognized in a document written by men; and according to the interpretations of judges!
Furthermore, Alexander Hamilton opposed adding a Bill of Rights to the Constitution. He said they were unnecessary and dangerous because they contain exceptions to powers which are not granted. They thus afford – to those disposed to usurp – a pretext to regulate those rights (The Federalist No. 84, 9th Para). Well, our Hamilton was a prophet as well as a genius in political philosophy, for it has been demonstrated elsewhere how judges on the U.S. Supreme Court exploited the First Amendment’s promise of “free speech” and “free exercise of religion” to actually ban religious speech in the public square!
Equally pernicious is this: Judges on that same Court have asserted that the source of our “rights” is the Constitution, as such “rights” are defined and discovered, from time to time, BY THEM! It has been explained elsewhere how judges on that Court evaded the constitutional limitations on their power to hear cases by fabricating individual “constitutional rights”. In this manner, a handful of judges “discovered” “constitutional privacy rights” to engage in practices which had been outlawed by the States!
When we substitute the Constitution for God as the source of our rights, the entire concept of “rights” becomes perverted. Literally.
Furthermore, The Constitution is about the Powers which We the People delegated to the three Branches of the Federal Government. It is NOT about Our Rights, which come from God, are unalienable, & predate the Constitution! We created the Constitution & the federal government! Why would the creator of The Constitution (that’s us) grant to our “creature” (the federal courts), the power to determine, “discover” and define OUR Rights?
4. The statists and their dupes assert that rights come from “the government”. The statists are not concerned with protecting Life, Liberty and the Pursuit of Happiness! They love death: abortion, infanticide!, assisted suicide, euthanasia, and government “death panels” who decide who gets medical care and who does not – who lives and who dies. They hate private property. They hate Liberty (as it has traditionally been defined in western civilization). Productive men exist, not to pursue their own Happiness or to serve God; but to be plundered by civil government.
To statists, a “right” is a claim for stuff produced by, or paid for, by somebody else: The “right” to medical care, the “right” to a public school education; the “right” to housing; the “right” to food stamps; etc. But it is a contradiction in terms – it is a perversion – to speak of “rights” to stuff that is produced by, or paid for, by others! To hold that people who produce exist to be plundered by civil government for the ostensible benefit of others is slavery. Just as no one has the right to own another human being; so no one has the right to own the fruits of another man’s labors.
Folks! We need to face Reality and acknowledge that statists are not people with “good intentions”.
As stated in Our Declaration of Independence, we must insist that our rights come from God, are unalienable, and pre-date and pre-exist Our Constitution. PH
DOES THE “INTERSTATE COMMERCE” CLAUSE AUTHORIZE CONGRESS TO FORCE US TO BUY HEALTH INSURANCE?
Bill O’Reilly of Fox News recently asked attorneys Megyn Kelly and Lis Wiehl whether Congress has authority under The Constitution to require us to buy health insurance. Wiehl said Congress has the power under the “interstate commerce” clause; but Kelly said it would take “days and weeks of research” to answer the question.
Let us see if we can walk through this question to the answer in five minutes. Article I, §8, clause 3, U.S. Constitution, says,
The Congress shall have Power…To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
What does “regulate Commerce among the several States” mean?
First: What is “commerce”? Because words change meaning throughout time ["gay" once meant "jovial & lighthearted"], we must consult an old dictionary. Webster’s American Dictionary (1828) defines commerce as:
an interchange or mutual change of goods, wares, productions, or property of any kind, between nations or individuals… by barter, or by purchase and sale; trade; traffick… inland commerce…is the trade in the exchange of commodities between citizens of the same nation or state.
So! “Commerce” is the buying and selling of goods.
Now, we must find out what “regulate Commerce among the several States” means. Two readily available authorities tell us: The Federalist Papers, written during 1787-1788 by Alexander Hamilton, James Madison, and John Jay, in order to explain the Constitution to the People and induce them to ratify it; and The Records of the Federal Convention of 1787 kept by James Madison.
These authorities prove that the purposes of the “interstate commerce” clause are (1) to prohibit the States from imposing tolls and tariffs on articles of import and export – goods & commodities – merchandize – as they are transported through the States for purposes of buying and selling; and (2) to permit the federal government to impose duties on imports and exports, both inland and abroad.
In Federalist No. 22 (4th Para), Hamilton said:
The interfering…regulations of some States…have… given just cause of…complaint to others, and…if not restrained by a national control, would be multiplied… till they became… serious sources of animosity and… impediments to the intercourse between the different parts of the Confederacy. “The commerce of the German empire…is in continual trammels from the multiplicity of…duties which the several princes and states exact upon the merchandises passing through their territories, by means of which the…navigable rivers [of]…Germany…are rendered almost useless.” Though the…people of this country might never permit this…to be… applicable to us, yet we may…expect, from the…conflicts of State regulations, that the citizens of each would…come to be…treated by the others in no better light…
In Federalist No. 42 (9th Para), Madison said
…A very material object of this power [to regulate commerce] was the relief of the States which import and export through other States, from the improper contributions levied on them by the latter. Were these at liberty to regulate the trade between State and State…ways would be found out to load the articles of import and export, during the passage through their jurisdiction, with duties which would fall on the makers of the latter and the consumers of the former…
See also Federalist No. 44 (8th Para) and 56 (6th Para), for more to the same effect.
Madison’s Records of the Federal Convention of 1787 show:
…Mr. Madison. 1. the power of taxing exports is proper in itself, and as the States cannot with propriety exercise it separately, it ought to be vested in them collectively…3. it would be unjust to the States whose produce was exported by their neighbours, to leave it subject to be taxed by the latter. This was a grievance which had already filled [New Hampshire, Connecticut, New Jersey, Delaware, and N. Carolina] with loud complaints, as it related to imports, and they would be equally authorized by taxes by the States on exports….
See also Tuesday, August 21 for Mr. Ellsworth’s comment that the power of regulating trade between the States will protect them against each other, and Tuesday, August 28 for Gouverneur Morris’ comment that the power to regulate trade between the States was necessary to prevent the Atlantic States from taxing the Western States.
So! The evidence is ample, clear and unambiguous! Furthermore, five clauses in the Constitution: Art. I, §8, cl.1; Art. I, § 9, cl.5; Art. I, § 9, cl.6; Art. I, §10, cl.2; & Art. I, §10, cl.3, give express effect to these two purposes of the “interstate commerce” clause.
The clause is not a blank check for Congress to fill out any way it wants! In Federalist No. 45 (last Para), Madison said the regulation of commerce was a power not held under the Articles of Confederation, but was an addition “from which no apprehensions are entertained”. Ours is a Constitution of enumerated powers only!
But today, the clause is cited as authority for federal takeover of medical care! This redefinition of the clause resulted from a radical transformation in judicial philosophy. Two cases illustrate this transformation:
In Bailey v. Drexel Furniture Co. (1922), the Supreme Court reviewed a federal excise tax on profits from sales of child-made products. The Court said “the so-called tax is a penalty to coerce people of a State to act as Congress wishes them to act in respect of a matter completely the business of the state government under the Federal Constitution” (p 39), and:
…Grant the validity of this law, and all that Congress would need to do, hereafter, in seeking to take over to its control any one of the great number of subjects of public interest, jurisdiction of which the States have never parted with, and which are reserved to them by the Tenth Amendment, would be to enact a detailed measure of complete regulation of the subject and enforce it by a so-called tax upon departures from it. …such…would…break down all constitutional limitation of the powers of Congress and completely wipe out the sovereignty of the States. (p 38)
But in Wickard v. Filburn (1942), the Court said the “commerce clause” extends to local intrastate activities which “affect” interstate commerce, even if the activities aren’t “commerce”! The Court also asserted that Congress has power to regulate prices of commodities and the practices which affect such prices!
Thus, if you have tomato plants in your back yard for use solely in your own kitchen, you are “affecting” “interstate commerce” and are subject to regulation by Congress. The court’s reasoning is this: If you weren’t growing tomatoes in your back yard, you’d be buying them on the market. If you were buying them on the market, some of what you bought might come from another State. So! By not buying them on the market, you are “affecting” “interstate commerce” because you didn’t buy something you otherwise would have bought. See? And we have to stand up when these people walk into a room!
Charles Evans Hughes (Chief Justice,1930-1941) said the Constitution is “what the judges say it is.”
This is how the concept of a Constitution with an objective meaning easily learned from an old American dictionary, The Federalist Papers, & Madison’s Records of the Federal Convention of 1787, was taken away from us; and replaced with the judges’ claim that the Constitution is an evolutionary document which means whatever they say it means.
The reason it would take Megyn Kelly “days and weeks of research” to answer the question – instead of the five minutes it took us, is because she would search Supreme Court opinions to analyze the evolution of their “commerce clause jurisprudence” to try to figure out how they would answer the question.
They have taken our Constitution away from us. Let us demand its Restoration.
The Treaty Making Power of the United States
TREATIES: Part Of The Supreme Law Of The Land???
If the United States Senate ratifies the U.N. Convention on the Rights of the Child, will that UN Convention become part of the supreme Law of the Land? [1] If the Senate ratifies the proposed cap and trade “climate” treaty, will that become part of the supreme Law of the Land? [2]
We hear it said that whenever the Senate ratifies a treaty, it becomes part of “the supreme law of the land”. But is that True? Not necessarily! Walk with me, and I will show you how to think through this question, and how to analyze other constitutional questions which come your way.
You must always ask: Is this authorized in the Constitution? Where exactly in the Constitution? And precisely what is authorized by the Constitution?
1. Does the federal government have authority to make treaties? Can treaties be about any subject? Or, are the proper objects of treaties limited by The Constitution?
Art II, §2, cl. 2, U.S. Constitution, says, respecting the powers of the President:
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur…
Article VI, cl. 2 says:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. [emphasis added]
Thus, we see that the federal government is authorized to make treaties. Now, we must find out whether there are limitations on this treaty making power.
2. It is a classic rule of construction (rules for understanding the objective meaning of writings) [3] that one must give effect to every word & phrase. The clause does not say, “Treaties made by the United States are part of the supreme Law of the Land”. Instead, it says Treaties made under the Authority of the United States, are part of the supreme Law of the Land.
So we see right away that a Treaty is part of the supreme Law of the Land only if it is made “under the Authority of the United States“.
3. From where do the President & the Senate get Authority to act? From The Constitution. The objects of their lawful (as opposed to usurped) powers are enumerated in the Constitution. Thus, the President & Senate must be authorized in the Constitution to act on a subject before any Treaty made by them on that subject qualifies as part of “the supreme Law of the Land”. If the Constitution does not authorize the President & Congress to act on an object, the Treaty is not “Law” – it is a mere usurpation, and deserves to be treated as such. [4] Because the Constitution is “fundamental” law, [5] it is The Standard by which the legitimacy of all presidential acts, all acts of Congress, all treaties, & all judicial decisions is measured. [6]
4. The Federalist Papers were written during 1787-1788 by Alexander Hamilton, James Madison, & John Jay, in order to explain the proposed Constitution to The People to induce them to ratify it. Because of this, The Federalist Papers are the most authoritative commentary on the meaning of The Constitution. Thus, we must always consult The Federalist Papers to learn what they say about any constitutional provision. In Federalist No. 44 (7th Para from end), James Madison said that a treaty which violates a State constitution would have no effect in that State:
…as the constitutions of the States differ much from each other, it might happen that a treaty or national law of great and equal importance to the States would interfere with some and not with other constitutions and would consequently be valid in some of the States at the same time that it would have no effect in others. [emphasis added] [7]
Madison thus illustrated the Principle that a treaty which interferes with the Constitution has no effect. I found no other discussion in The Federalist on this point. So, let’s turn to Thomas Jefferson, who wrote: [8]
In giving to the President and Senate a power to make treaties, the Constitution meant only to authorize them to carry into effect, by way of treaty, any powers they might constitutionally exercise. –Thomas Jefferson: The Anas, 1793. ME 1:408 [emphasis added]
Surely the President and Senate cannot do by treaty what the whole government is interdicted from doing in any way. –Thomas Jefferson: Parliamentary Manual, 1800. ME 2:442 [emphasis added]
According to the rule established by usage and common sense, of construing one part of the instrument by another, the objects on which the President and Senate may exclusively act by treaty are much reduced, but the field on which they may act with the sanction of the Legislature is large enough; and I see no harm in rendering their sanction necessary, and not much harm in annihilating the whole treaty-making power, except as to making peace. –Thomas Jefferson to James Madison, 1796. ME 9:330 [emphasis added]
5. So! We have seen that the treaty making power of the United States is limited! What, then, are the proper objects of treaties? To find the answer, we must go to The Constitution to see what it authorizes the President & the Congress to do in this area! The Constitution delegates to Congress powers “To regulate Commerce with foreign Nations…and with the Indian Tribes” (Art I, § 8, cl. 3); and “To declare War…and make Rules concerning Captures on Land and Water” (Art I, § 8, cl. 11). The Constitution authorizes the President to “…appoint Ambassadors, other public Ministers and Consuls…” (Art II, §2, cl. 2).
The authors of The Federalist Papers commented on the treaty making power of the United States. John Jay said treaties relate to “war, peace, and to commerce” and to the promotion of “trade and navigation” (Federalist No. 64, 3rd & 6th Paras). Madison said treaties also relate to sending and receiving ambassadors & consuls and to commerce. (Federalist No. 42, 1st & 4th Paras).
There may be additional objects of the treaty making power authorized in The Constitution. For example, Art I, § 8, cl. 8, authorizes Congress “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries“. Thus, The United States could properly enter into treaties respecting patents & copyrights. [9]
6. Let’s look now at the proposed U.N. Convention on the Rights of the Child. If ratified by the Senate, would it become part of “the supreme Law of the Land”?
To answer that Question, we must first ask: Does The Constitution grant to Congress the power to make laws respecting “children”? Does The Constitution grant to the Executive Branch jurisdiction over “children”?
The answer to both questions is “NO!” In addition, the 10th Amendment says if a power is not delegated to the United States by the Constitution, it is [generally] reserved to the States or the people Thus, jurisdiction over “children” is reserved to the States or the People! Accordingly, if the Senate were to ratify the United Nations Convention on the Rights of the Child, the treaty would NOT become part of “the supreme Law of this Land”, because it would not have been made under the Authority of the United States. It would be a mere usurpation and would deserve to be treated as such.
If the Senate were to ratify the cap-and-trade “climate” treaty, which, among other things, would force energy companies to buy allowances or permits for their “carbon emissions”, would it become part of “the supreme law of the Land”? You are now equipped to find the answer, and you can confidently defend it!
Do not forget: The federal government may not lawfully circumvent the U.S. Constitution by international treaties. It may NOT do by Treaty what it is not permitted to do by the U.S. Constitution.
7. Finally, Thomas Jefferson pointed to a legislative remedy if the President and the Senate ignore the constitutional limits on the treaty making power of the United States. Thomas Jefferson said: [10]
We conceive the constitutional doctrine to be, that though the President and Senate have the general power of making treaties, yet wherever they include in a treaty matters confided by the Constitution to the three [did he mean, "two"?] branches of Legislature, an act of legislation will be requisite to confirm these articles, and that the House of Representatives, as one branch of the Legislature, are perfectly free to pass the act or to refuse it, governing themselves by their own judgment whether it is for the good of their constituents to let the treaty go into effect or not. –Thomas Jefferson to James Monroe, 1796. ME 9:329 [emphasis added]
I was glad… to hear it admitted on all hands, that laws of the United States, subsequent to a treaty, control its operation, and that the Legislature is the only power which can control a treaty. Both points are sound beyond doubt.–Thomas Jefferson to James Madison, 1798. ME 10:41
What a man! And our system of checks & balances is an elegant one, indeed!
8. Folks! For too long, we have blindly accepted whatever we hear others say. Someone on TV says, “If the Senate ratifies this treaty, it will become part of the supreme law of the land!” And not only do we believe it, we repeat it to others. And thus, we became part of the misinformation dissemination network. In order to restore our constitutional republic with its federal form of government, we must rediscover the lost art & science of Thinking & Analysis. And then, we must learn to say, “They don’t have authority under The Constitution to do that!”
Publius Huldah
September 18, 2009
[1] http://www.foxnews.com/politics/2009/02/25/boxer-seeks-ratify-treaty-erode-rights/
[2] http://www.reuters.com/article/GCA-BusinessofGreen/idUSTRE51Q22L20090227
[3] Educators no longer teach “rules of construction”, because it has become the dogma of our time that texts have no “objective meaning” to be discovered. Instead, each person is to come up with his own “understanding” – and one person’s “understanding” is as good as another’s. A friend recalls the following incident which occurred in an high school English class during 1960: The class read a short story, & then the teacher asked each student to say what the story meant to him. Whatever a student said was praised by the teacher. But when it was my friend’s turn, he said: “It doesn’t matter what it means to me – what matters is what the author meant.” The teacher was not pleased with this ‘out of place’ comment. Is it any wonder many judges feel free to “understand” the Constitution any way they please? They were conditioned in school to “think” this way; and they did not resist the conditioning.
[4] In Federalist No. 33 (7th Para), Alexander Hamilton pointed to Art. VI, cl.2, and said that laws which are not pursuant to the Constitution are merely acts of usurpation and deserve to be treated as such.
[5] The Federalist No. 78 (12th & 13th Paras), A. Hamilton.
[6] The Federalist No. 78 (11th Para), states: “There is no position which depends on clearer principles than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this would be to affirm that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.” A. Hamilton.
[7] Madison thus showed why it was necessary that Art. VI, cl. 2 grant to Treaties supremacy over State Constitutions.
[8] See the Univ. of Virginia website at http://etext.virginia.edu/jefferson/quotations/jeff1020.htm for these and more quotes on the same subject.
[9] It has been said that Charles Dickens’ works were pirated, printed and sold in these United States without paying any royalties to Dickens! A copyright treaty with Great Britain might have discouraged this theft of Dickens’ intellectual property.
[10] http://etext.virginia.edu/jefferson/quotations/jeff1020.htm
CONGRESS’ ENUMERATED POWERS
CONGRESS’ ENUMERATED POWERS
A Primer in Constitutional Law
1. The U.S. Constitution is the Document which created our federal government.[1] The federal government thus owes its existence to The People who ratified the Constitution. As our creation, the federal government has no powers other than those We granted to it in The Constitution.
2. The federal government is composed of three branches: Article I created the legislative branch (Congress) & lists its powers; Article II created the executive branch (the Presidency) & lists its powers; and Article III created the judicial branch & lists its powers.
3. Congress is NOT authorized to pass any law on any subject just because a majority in Congress think the law is a good idea! Instead, the areas in which Congress is authorized to act are limited and defined (”enumerated”). Article I, § 8, grants to Congress the powers:
(1) To lay certain taxes;
(2) To pay the debts of the United States;
(3) To provide for the common defense and general welfare of the United States, to declare war and make rules of warfare, to raise and support armies and a navy and to make rules governing the military forces; to call forth the militia for certain purposes, and to make rules governing the militia;
(4) To regulate commerce with foreign Nations, and among the States, and with the Indian Tribes;
(5) To establish uniform Rules of Naturalization;
(6) To establish uniform Laws on Bankruptcies;
(7) To coin money and regulate the value thereof;
(8) To fix the standard of Weights and Measures;
(9) To provide for the punishment of counterfeiting;
(10) To establish post offices and post roads;
(11) To issue patents and copyrights;
(12) To create courts inferior to the supreme court; and
(13) To define and punish piracies and felonies committed on the high seas, and offenses against the Laws of Nations.
The Constitution also grants Congress powers to make laws regarding:
(14) An enumeration of the population for purposes of apportionment of Representatives and direct taxes (Art. I, § 2, cl. 3);
(15) Elections of Senators and Representatives (Art. I, §4, cl. 1) and their pay (Art. I, § 6);
(16) After 1808, to prohibit importation of slaves (Art. I, § 9, cl. 1); [2]
(17) A restricted power to suspend Writs of Habeas Corpus (Art. I, §9, cl. 2);
(18) To revise and control imposts or duties on imports or exports which may be laid by States (Art. I, § 10, cl. 2 &3)
(19) A restricted power to declare the punishment of Treason (Art. III, §3, cl. 2);
(20) Implementation of the Full Faith and Credit clause (Art. IV, §1); and,
(21) Procedures for amendments to The Constitution (Art. V).
The original Constitution [3] authorized Congress to exercise throughout the States these and only these powers.
4. Article I, §8, next to last clause, grants to Congress additional powers over small defined geographical areas: the seat of the government of the United States (not to exceed 10 square miles), forts, arsenals, dock-yards, and the like. Over these narrow geographical areas, Congress may “exercise exclusive Legislation”. As James Madison said in The Federalist Papers, No. 43, it is necessary for the government of the United States to have “complete authority” at the seat of government, and over forts, arsenals, etc.
5. Congress is also granted power to dispose of and make all needful Rules and Regulations respecting the Territory or other property belonging to the United States (as opposed to property belonging to individual states) (Art. IV, §3, cl. 2).
6. These are the only powers granted to Congress by the Constitution!
7. Thus, Congress has NO AUTHORITY to appropriate funds for “bailing out” banks, businesses, and homeowners who can’t pay their mortgages; NO AUTHORITY to pass laws creating data bases controlled by the federal government containing our private medical records; NO AUTHORITY to pass laws denying secret ballots to employees who are solicited for membership by labor unions; NO AUTHORITY to pass laws respecting education, housing, social security, medicare, health care, light bulbs in your home, the flushing capacity of your toilet, airbags, redistribution of the money of the people, etc.
Therefore, the laws which Congress has passed on such topics are unconstitutional as outside the scope of the legislative powers granted to Congress by The Constitution.
8. You ask, “How can Congress pass all these laws if they are unconstitutional? How can what you say be true?”
Congress gets away with it because WE are ignorant of what our Constitution says; and WE have been indoctrinated into believing that the gang in power can do whatever they want!
But consider Prohibition: During 1919 everyone understood that the Constitution did not give Congress authority to simply “pass a law” banning alcoholic beverages! So the Constitution was amended to prohibit alcoholic beverages, and to authorize Congress to make laws to enforce the prohibition (18th Amdt.).
9. But during the era of Franklin D. Roosevelt (FDR), all three branches of the federal government abandoned the Constitution: FDR proposed “New Deal” programs; Congress passed them. At first, the Supreme Court ruled (generally 5 to 4) that “New Deal” programs were unconstitutional as outside the legislative powers granted to Congress. But when FDR threatened to “pack the court” by adding judges who would do his bidding, one judge flipped to the liberal side, and the Court started approving New Deal programs (generally 5 to 4).
10. Since then, law schools don’t teach the Constitution. Instead, they teach decisions of the FDR-dominated Supreme Court which purport to explain why Congress has the power to regulate anything it pleases. The law schools thus produced generations of constitutionally illiterate lawyers and judges who have been wrongly taught that three clauses, the “general welfare” clause, the “interstate commerce” and the “necessary & proper” clause, permit Congress to do whatever it wants!
11. “Well”, you ask, “what about ‘the general welfare clause’? Doesn’t that give Congress power to pass any law on any subject as long as it is for the ‘general Welfare of the United States’ “? NO, IT DOES NOT!
First, you must learn what “welfare” meant when the Constitution was ratified: “Welfare” as used in the Preamble & in Art. 1, §8, cl. 1, U.S. Constitution, meant:
Exemption from any unusual evil or calamity; the enjoyment of peace and prosperity, or the ordinary blessings of society and civil government (Webster’s American Dictionary of the English Language, 1828).
But The American Heritage Dictionary of the English Language (1969), added a new meaning: “Public relief – on welfare. Dependent on public relief”. Do you see how our Constitution is perverted when 20th century meanings are substituted for original meanings?
Second, James Madison addressed this precise issue in The Federalist, No. 41 (last 4 Paras): Madison pointed out that the first paragraph of Art. I, §8 employs “general terms” which are “immediately” followed by the “enumeration of particular powers” which “explain and qualify”, by a “recital of particulars”, the general terms. So, yes, the powers of Congress really are restricted to those outlined hereinabove.
OUR FOUNDERS UNDERSTOOD that the “general Welfare”, i.e., the enjoyment of peace & prosperity, and the enjoyment of the ordinary blessings of society & civil government, was possible only with a civil government which was strictly limited & restricted in what it was given power to do!
12. “OK”, you say, “but what about ‘the commerce clause‘ (Art. I, §8, cl. 3)? Doesn’t that give Congress power to pass laws on any subject which ‘affects’ ‘interstate commerce’ “? NO, IT DOES NOT. In The Federalist No. 22 (4th Para) and in The Federalist No. 42 (11th &12th Paras), Alexander Hamilton & James Madison explained the purpose of the “interstate commerce” clause: It is to prohibit the States from imposing tolls and tariffs on articles of import and export – merchandize – as they are transported through the States for purposes of buying and selling. That’s all it does, Folks; and until the mid-1930’s and FDR’s “New Deal”, this was widely understood. See also the concurring opinion of Justice Clarence Thomas, in United States v. Lopez (1995) http://supreme.justia.com/us/514/549/case.html Justice Thomas’ opinion shows why those disposed to usurp attack him so virulently.
13.”Well, then”, you say, “doesn’t the ‘necessary & proper clause’ (Art. I, §8, last clause) allow Congress to make any laws which the people in Congress think are ‘necessary & proper’?” NO, IT DOES NOT. Alexander Hamilton said the clause merely gives to Congress a right to pass all laws necessary & proper to execute its declared powers (Federalist No. 29, 4th Para); a power to do something must be a power to pass all laws necessary & proper for the execution of that power (Federalist No. 33, 4th Para); “the constitutional operation of the intended government would be precisely the same if [this clause]were entirely obliterated as if [it] were repeated in every article” (Federalist No. 33, 2nd Para); and thus the clause is “perfectly harmless”, “a tautology or redundancy”. (Federalist No. 33, 4th Para). James Madison agreed with Hamilton’s explanation. (Federalist No. 44, 10th-17th Para). In other words, the clause simply permits the execution of powers already declared and granted. Hamilton & Madison were clear that no additional substantive powers were granted by this clause.
14. The 10th Amendment states:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
So! If a power is not delegated by the Constitution to the federal government; and if the States are not prohibited (as by Art. I, § 10) from exercising that power; then that power is retained by the States or by The People. And WE are “The People”!
15. James Madison said in The Federalist No. 45 (9th Para):
The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people….
Madison said it again in The Federalist No. 39 (14th Para):
…the proposed government cannot be deemed a national one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignity over all other objects.”
16. In all its recent & proposed legislation, Congress ratchets up its concerted pattern of lawless usurpations. Such is the very essence of tyranny.
PUBLIUS/HULDAH (Revised July 1, 2009; September 8, 2009)
[1] “Federal” refers to the form of government: An alliance of States with close cultural & economic ties associated in a “federation” with a national government to which is delegated supremacy over the states in specifically defined areas.
[2] James Madison wanted the “barbarism” & “unnatural traffic” of slavery abolished immediately (The Federalist, No 42, 7th & 8th Paras)
[3] Subsequent Amendments to the Constitution set forth additional powers for Congress respecting civil rights & voting rights, the public debt [lawfully incurred], income tax, successions to vacated offices, dates of assembly, and appointment of representatives from the D.C.
What Criminal Laws are Congress Authorized To Make?
CONGRESS’ POWERS TO MAKE CRIMINAL LAWS
1. The Constitution grants to Congress only limited powers to make criminal laws. These powers fall into five categories: a) those made pursuant to express authorizations for four specific crimes; b) those made under the “necessary and proper” clause; c) those made for the few tiny geographical areas over which Congress has “exclusive Legislation”; d) those governing the military; and e) those made pursuant to two of the Amendments to the Constitution. Let’s look at each category:
a) Art. I, § 8 grants to Congress authority to define & punish counterfeiting, piracies and felonies committed on the high seas, & offenses against “the Laws of Nations”. [1] Article III, §3 grants to Congress a restricted power to declare the punishment of Treason.
b) Art. I, §8, last clause, grants to Congress the power “to make all Laws which shall be necessary and proper for carrying into Execution …all …Powers vested by this Constitution in the Government of the United States…”. This necessary and proper clause allows Congress to make criminal laws when necessary to enforce powers vested by the Constitution in the federal government. This worried people, so Madison & Hamilton explained it:
In Federalist No. 44, Madison said, regarding the peoples’ fears of usurpations by Congress:
what is to be the consequence, in case the Congress shall misconstrue this part of the Constitution and exercise powers not warranted by its true meaning, I answer the same as if they should misconstrue or enlarge any other power vested in them…the success of the usurpation will depend on the executive and judiciary departments, [2] which are to expound and give effect to the legislative acts; and in the last resort a remedy must be obtained from the people, who can, by the election of more faithful representatives, annul the acts of the usurpers (17th Para).
In Federalist No. 33, Hamilton cited Art. VI, cl.2, as showing that laws which are not pursuant to the Constitution are merely acts of usurpation and deserve to be treated as such (7th Para). He also said:
If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify. (6th Para)
So! Congress has authority under the necessary and proper clause to make criminal laws enforcing the “Taxes, Duties, Imposts and Excises” authorized by Art. I, §8, cl.1; to make criminal laws prohibiting the filing of false statements or claims in Bankruptcy Court (Art. I, §8, cl. 4); and to make criminal laws forbidding the importation of slaves after 1808 (Art. I, §9, cl. 1). Article II, §4 mentions impeachment of civil officers for, among other things, “bribery”; so by implication, Congress is authorized to pass a criminal statute prohibiting the accepting of bribes by civil officers of the United States. The main duty of the federal judiciary created by Art. III is to conduct trials [in the limited category of cases which they are permitted to hear], and that means parties & witnesses. Parties & witnesses must be required to tell the Truth. So, it would be necessary and proper for Congress to make laws declaring perjury and lying under oath in federal court criminal offenses.
These examples are not exclusive – there are doubtless additional criminal laws which would be appropriate exercises of the necessary and proper clause. But it is important to note that private citizens would rarely, if ever, be in situations where these criminal laws would apply to them!
c) Article I, §8, next to last clause, authorizes Congress to exercise “exclusive legislation in all Cases whatsoever” over small defined geographical areas: the seat of the government of the United States [not to exceed ten squares miles], forts, dock-yards, magazines, arsenals, and the like. As Madison said in The Federalist No. 43 (4th –6th Paras), it is necessary for the government of the United States to have “complete authority” at the seat of government, and over forts, dock-yards, etc. This means that over these limited geographical areas, Congress has authority to make the full range of laws criminalizing murder, robbery, extortion, arson, rape, kidnapping, etc. It is important to note that private citizens would not be affected by these laws unless they are inside the District of Columbia, military bases, dock-yards, and the like. [3]
d) Article I, §8, cl. 14 authorizes Congress “To make Rules for the Government and Regulation of the land and naval Forces.” Under this grant of authority, Congress has properly enacted The Uniform Code of Military Justice, the criminal code which governs members of our military forces. This covers all the “standard” criminal offenses plus additional crimes uniquely appropriate to those in the military: failure to obey a lawful order, dereliction of duty, absent without leave, desertion, conduct unbecoming an officer, etc. Again, it is important to note that civilians are not affected by the criminal code which governs our military forces.
e) Some of the Amendments to the Constitution authorize Congress to enact laws to enforce them: The 13th Amendment would authorize Congress to make laws criminally punishing those who keep slaves. The 16thAmendment presumably authorizes Congress to make criminal laws to enforce the “income” tax. The 18th Amendment (now repealed) authorized Congress & the States to make laws criminally punishing those who manufactured or trafficked in intoxicating liquors. The 14th, 15th, 19th, 24th, & 26th Amendments restrict only States &/or the federal government. The other Amendments (after the original Ten) address “housekeeping” issues. So, Congress’ criminal jurisdiction over private citizens under all Amendments is limited to those who keep slaves or don’t pay “income” taxes (whatever “income” meant when the Amendment was adopted). Estate and gift taxes are not authorized by the Constitution.
2. So! Much of the federal criminal code of today consists of “laws” which are mere usurpations and deserve to be treated as such. They are not “laws”, because they are outside the legislative powers granted to Congress by the Constitution. Excepting members of the military, and outside the tiny geographical areas (the District of Columbia, military bases, dock-yards, etc., and any Territories) where Congress has “exclusive legislation”; Congress has no general authority to pass criminal laws. Thus, laws which purport to be of general application throughout the several States criminalizing acts respecting firearms, ammunition, hate crimes, environmental crimes, economic crimes, banking crimes, computer crimes, murder, kidnapping, narcotics, arson, extortion, etc. etc., etc., etc., etc., are all unconstitutional usurpations.
Lest you think this is astonishing, remember that before the 18th Amendment was ratified in 1919, everybody knew that Congress didn’t have the power to make laws criminalizing the manufacture or distribution of intoxicating beverages! Congress needed an Amendment to the Constitution to authorize them to make the laws giving effect to prohibition! But today, Congress is lawless & filled with usurpers; and the federal prisons are filled with inmates convicted under unconstitutional laws.
Do we have a remedy for these usurpations by Congress? YES! As Madison, quoted above, said,
the success of the usurpation will depend on the executive and judiciary departments, which are to expound and give effect to the legislative acts.
Thus, when Congress makes a criminal law for which it lacks constitutional authority, the Executive Branch (in the person of the U.S. Attorney) has the power & duty to refuse to prosecute the violation. If that check fails, the Judicial Branch has the power to declare the statute unconstitutional. [4] If the U.S. attorneys and federal judges both fail in their obligations to enforce the Constitution, Madison said, as quoted above,
…in the last resort a remedy must be obtained from the people, who can, by the election of more faithful representatives, annul the acts of the usurpers…
Hamilton said, as quoted above,
If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify.
Did you get that? Hamilton said that when our ”creature”, i.e., the federal government, usurps power, WE are to judge the conduct by the standard of the Constitution, and WE are to take appropriate action to “redress the injury done to the Constitution”! This includes demands for impeachment, recall petitions, defeating faithless representatives in the next election, nullification by states, jury nullification, non-violent civil disobedience, ignoring unconstitutional “laws” because an unconstitutional “law” is a “mere usurpation and deserves to be treated as such” ; and the like.
Alexander Hamilton considered the people to be “the natural guardians of the Constitution”; and contemplated “a people enlightened enough to distinguish between a legal exercise and an illegal usurpation of authority.” (The Federalist, No. 16, 10th Para). [5] One expects Hamilton would be disappointed in “the People” of today. [6] It is OUR responsibility to learn the Constitution, to educate the people in our spheres of influence, and to take this country back from the faithless usurpers who have betrayed us.
3. Did the Framers of the Constitution advocate anarchy? No way! The legislatures of the States have whatever authority granted to them by their State Constitutions to enact criminal codes applicable to those within the borders of their States. Madison said it all in Federalist No. 45 (9th Para):
The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and internal order, improvement, and prosperity of the State.
It is up to the States to enact the criminal codes which apply to the people within their borders.
Publius/Huldah July 4, 2009
[1] Webster’s American Dictionary (1828) defines “laws of nations” as, “the rules that regulate the mutual intercourse of nations or states. These rules depend on natural law, or the principles of justice which spring from the social state; or they are founded on customs, compacts, treaties, leagues and agreements between independent communities.”
Here is one example of a “law of nations” based on custom: From antiquity to modern times, envoys between warring armies have been entitled to safe conduct while on their missions. In the [excellent!] movie, “300”, it was a shocking thing when the Spartan King, Leonidas, killed the envoys of the Persian King Xerxes. Our concept of “diplomatic immunity” is thus an ancient one.
[2] Madison here illustrates checks which the Executive & Judicial Branches have over Congress. We all know that Courts may declare an act of Congress unconstitutional; but most don’t know that the President should refuse to enforce an Act of Congress which the President, in the exercise of his thoughtful & independent judgment, deems unconstitutional. The President’s Oath is to “…preserve, protect and defend the Constitution…” (Art II, § 1, last cl.). It is not to “go along with” Congress – it is not to “obey” the Courts. The President must make his own independent determinations. He may not properly abdicate this duty in favor of another Branch! The Executive Branch is to function as a check on the other two! The check on the President is impeachment & removal from office.
[3] Article IV, §3, cl. 2 also granted to Congress authority to dispose of and make all needful Rules and Regulations respecting the Territories belonging to the United States [such as the Western Territories before they became States - Federalist No. 43, 11th Para]. This gave Congress authority to make the full range of criminal laws to govern those Territories until such time as they became States. When they became States, jurisdiction to enact criminal laws would be transferred TO the new State.
[4] It is the responsibility of defense counsel to raise the issue of the unconstitutionality of the statute under which defendant is charged. But lawyers, like everybody else in our modern culture, have been indoctrinated into statism; and like everybody else, are often unaware that Congress must be authorized by the Constitution to enact a criminal law before the law is valid. The judge has an independent responsibility to raise the unconstitutionality of the statute; but like defense counsel and everybody else, they often don’t know that Congress must have constitutional authority for their Acts.
[5] Hamilton also knew that “an illegal usurpation of authority”, to be successful, “would require not merely a factious majority in the legislature, but the concurrence of the courts of justice and of the body of the people.” Federalist No. 16, 10th Para. [emphasis added]. Thus, the people, as the natural guardians of the Constitution, have a duty to protest when the authorities act lawlessly! If they don’t, they will suffer the consequences, as in Europe during the last century &, as we may soon see, in our own once blessed country.
Warning! The following contains explicit religious content which may be highly offensive to some: This obligation to protest lawlessness reflects the covenantal nature of civil government as established in the Bible (See David’s covenant at 1 Chron 11:1-3 & 2 Sam 5:1-4; Joash’s (via the priest Jehoiada) covenant at 2 Kings 11:17 & 2 Chron 23:16; and Josiah’s covenant at 2 Kings 23:1-3). Out of this covenantal relationship arises the peoples’ obligation to protest lawlessness. If they don’t protest, God punishes the people because of the misdeeds of their “kings”. See, e.g., 2 Sam 21, which tells of God’s sending a 3 year famine because Saul put the Gibeonites to death; 1 Chron 21 & 2 Sam 24, which tell of the pestilence which killed 70,000 Israelites because David took the census; 1 Kings 16:29-33, 17:1, 18:1, 18:17-19 which tell of the reign of Ahab & Jezebel and the famine God (via Elijah) sent because Ahab & his house had forsaken the commandments of the Lord; 2 Chron 21:1-14, which tell of King Joram and the heavy blow God struck at Joram’s people because of Joram’s wickedness; and 2 Kings 21:10-17 & Jer 15:3-4 which tell of the four dooms God visited upon Jerusalem & the S. Kingdom because of the sins of Manasseh. If the Germans had protested Hitler in a timely fashion, millions of lives would have been spared. Will we make the same mistake?
[6] Hamilton contemplated “…the most vigilant and careful attention of the people…” (Federalist No. 23, next to last Para). In speaking of power disputes between the federal and state governments, Hamilton said that if the rights of the people “…are invaded by either, they can make use of the other as the instrument of redress.” (Federalist No. 28 7th Para); and, respecting encroachments among the three branches of the federal government, Madison said that encroachments of the stronger branch can be prevented, and the wrongs of the weaker branch could be redressed, by “…an appeal to the people themselves, who, as the grantors of the commission, can alone declare its true meaning, and enforce its observance” (The Federalist No. 49, 3rd Para).
What are the Enumerated Powers of the Federal Courts?
THE JUDICIAL POWER OF THE FEDERAL COURTS
1.“Judicial Power” refers to a court’s power to hear & decide cases. Art. III §2, U.S. Constitution, lists the cases which federal courts are permitted to hear. They may hear only cases:
a) Arising under the Constitution, or the Laws of the United States, or Treaties made under the Authority of the United States [1] [“federal question” jurisdiction];
b) Affecting Ambassadors, other public Ministers & Consuls; cases of admiralty & maritime Jurisdiction; or cases in which the U.S is a Party [“status of the parties” jurisdiction];
c) Between two or more States; between a State & Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States;[2] or between a State (or Citizens thereof) & foreign States, Citizens or Subjects[3] [“diversity” jurisdiction].
In The Federalist, No. 80, Alexander Hamilton commented on each of these itemized “proper objects” of judicial authority. But here, we will consider only cases “arising under the Constitution”, which concern “the execution of the provisions expressly contained in the articles of Union” (2nd Para). [4]
2. Consider State laws criminalizing abortion or homosexual conduct. Are these “proper objects” of the judicial power of the federal courts? Do these laws fit within any of the categories of cases which federal courts are authorized to hear? No, they don’t! Nothing in the Constitution forbids States from criminalizing abortion or homosexual conduct! The federal courts have no “federal question jurisdiction”, no jurisdiction based on status of the parties, and no “diversity jurisdiction” to hear such cases!
But the federal courts have evaded the constitutional limits on their power to hear cases by fabricating individual “constitutional rights” so that they can then pretend that the cases “arise under the Constitution”!
Thus, in Roe v. Wade (1973) http://supreme.justia.com/us/410/113/case.html seven judges on the U.S. Supreme Court said a
right of privacy…founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action (p. 153)
makes unconstitutional State laws making abortion a criminal offense! These seven judges just made up a “constitutional privacy right” which they said prohibits States from outlawing abortion!
In Lawrence v. Texas (2003) http://supreme.justia.com/us/539/558/case.html six judges on the U.S. Supreme Court said a Texas Law criminalizing homosexual conduct was unconstitutional because it violated practitioners’
…right to liberty under the Due Process Clause (p.578)…of the Fourteenth Amendment (pp. 564, 579).
But nothing in our Constitution prohibits the States from making laws declaring abortion or homosexual conduct to be crimes! Nothing in our Constitution grants “rights” to individuals to engage in these practices!
3. But federal judges used the 14th Amendment as a blank check to prevent the States from outlawing conduct which the federal judges want to legalize. They simply make up a “constitutional right” to do those things. Under their view, there is no limit to their powers! States criminalize child rape, but 5 judges on the Supreme Court can fabricate a “constitutional right” to have sex with children – a “liberty & privacy right” in the 14th Amendment to have sex with children! If these “liberty & privacy rights” mean that women can abort babies & homosexual conduct is fine; why can’t they also mean that adults can have sex with children? Why can’t they mean that people have “liberty & privacy rights” to use crack cocaine & heroin? What’s the limit? There IS no limit! Anthony Kennedy, who wrote the majority opinion in Lawrence v. Texas, said:
…As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom. (p. 579)
Kennedy just tossed Art. III §2 out the door! He and his ideological allies recognize no limits on their power! Just name an act you want legalized and if 5 of them agree, Voila! A new “liberty” “right”! And a State law prohibiting that act bites the dust. And since federal judges also claim the right to “set policy” for all of these United States, and we have let them do it, State laws throughout the land prohibiting that act bite the dust. And that is how we got a handful of un-elected judges setting “policy” for everyone in the country.
4. Abortion, homosexual conduct, prostitution, child sex, drugs, etc. are issues for The People of the several States to decide (subject to any restrictions imposed by their respective State Constitutions). Congress is not authorized to make laws on these subjects, and these are not listed as “rights” in the U.S. Constitution.
5. What does the due process clause of the 14th Amendment really mean? Professor Raoul Berger’s meticulously researched book, Government by Judiciary: The Transformation of the Fourteenth Amendment [5] proves that the purpose of the 14th Amendment was to protect freed slaves from southern Black Codes which denied them basic rights of citizenship. In Ch. 11[6], Berger discussed the meaning of the “due process” clause of the 14th Amendment:
…nor shall any State deprive any person of life, liberty, or property, without due process of law…
The clause, “due process of law” is a term of art with a well-known & narrow meaning [7] going back to the Magna Charta! It means that a person’s Life, Liberty or Property can’t be taken away from him except by the judgment of his peers pursuant to a fair trial! Specifically, that freed slaves could not be punished except pursuant to the judgment of their peers after a fair trial where they could appear, cross-examine witnesses and put on a defense! “Life” meant “life” as opposed to being lynched; “liberty” meant being out of prison instead of in prison; and “property” meant the person’s possessions.
6. So! We see that the federal judges have redefined “Liberty”. To them, “liberty” is freedom from moral restraints; they do not see “liberty” as freedom from coercive civil government. They have no problem with making us objects to be plundered & controlled by the federal government! They have no problem with suppressing our religion & silencing our speech. They have no problem with imposing their values & radical conception of “liberty” on us.
But Professor Berger proves that the framers of the 14th Amendment did not understand “Liberty” as freedom from moral restraints. The purpose of the due process clause of the 14th Amendment was to protect freed slaves from being put to death, imprisoned, or having their stuff taken away except pursuant to the judgment of their peers after a fair trial!
7. When federal judges redefine terms in the Constitution, they “amend” the Constitution in violation of Art. V. Article V. sets forth the two lawful methods of amending the Constitution, neither of which is “redefinition by judges”.
8. Are there remedies for this judicial lawlessness? YES! Congress should use its Impeachment Power to remove the usurping judges. How many times have you heard they have “lifetime appointments”? They don’t! The only reason it ends up that way is because our representatives in Congress are ignorant & lack the Will to do the right thing. Alexander Hamilton addressed judicial usurpations & the judiciary’s “total incapacity to support its usurpations by force” in The Federalist No. 81, 9th Para:
…the important constitutional check which the power of instituting impeachments in one part of the legislative body [House], and of determining upon them in the other [Senate], would give to that body [Congress] upon the members of the judicial department. This is alone a complete security. There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it [the impeachment power], while this body [Congress] was possessed of the means of punishing their presumption by degrading them from their stations. While this ought to remove all apprehension on the subject it affords, at the same time, a cogent argument for constituting the Senate a court for the trial of impeachments [some had said impeachments should be tried in the supreme court]. [italics added]
Folks, ignorance & misinformation will do us in if we don’t learn the Truth pretty soon. “Everybody” says judges have “lifetime appointments”, & we believe it. Well, now YOU know that federal judges can be impeached, convicted & kicked off the bench for usurping power! We hear that “The Rule of Law” requires us to go along with all court decisions. That is a Lie! If the decision is based on an usurpation, the Rule of Law requires us to spit on the decision and demand that the judges be impeached & removed from the bench.
9. Finally, a word about our Rights: The Constitution is about the Powers which We the People delegated to the 3 Branches of the Federal Government. It is NOT about Our Rights, which come from God, are unalienable, & predate the Constitution! We created the Constitution & the federal government! Why would the Creator (that’s us) grant to our “creature” (the federal courts), the power to determine & define OUR Rights?
Alexander Hamilton opposed adding a Bill of Rights to the Constitution. He said they were unnecessary & dangerous because they contain exceptions to powers which are not granted. Thus, they afford a pretext to regulate those Rights (The Federalist No. 84, 10th Para). Hamilton was a prophet as well as a genius in political philosophy.
Today, we have been conditioned to believe that the source of our “Rights” is the Constitution, as defined & “discovered”, from time to time, by unelected federal judges. But D.C. v. Heller (2008) http://supreme.justia.com/us/554/07-290/ which upheld private ownership of guns, was a 5 to 4 decision! One vote switched to the other side, and the Supreme Court will rule that we have no right to bear arms.
THIS is what happens when we substitute the Constitution for God as the Source of our Rights. You must always insist that your Rights to Bear Arms – to defend yourself – are unalienable and come from God, not the Second Amendment! Don’t forget that We had that Right before the Constitution was ratified. The same principle applies to all of our Rights. If, like the Declaration of Independence, we insist that they come from God and are unalienable, no human court or legislative body can take them away from us.
Publius/Huldah (June 22, 2009)
[1] Since ours is a Constitution of delegated & enumerated Powers, the U.S. must be authorized by the Constitution to act on a subject before any Treaty on that subject qualifies as part of the “supreme Law of the Land” (Art. VI, cl.2).
[2] Hamilton said this is the only instance in which the Constitution contemplates the federal courts hearing cases between citizens of the same State. The Federalist No. 80 (3rd Para from end).
[3] The 11th Amendment (ratified 1795) withdrew from the federal courts the power to hear cases filed against one of the States by Citizens of another State or by Citizens or Subjects of any foreign State.
[4] Hamilton gave examples: If a State violates the constitutional provisions which prohibit States from imposing duties on imported articles, or from issuing paper money [Art. I, §10], the federal courts are in the best position to overrule infractions which are “in manifest contravention of the articles of Union. [i.e., Constitution]” (3rd Para).
[5] Prof. Berger retired in 1976 as Senior Fellow in American Legal History, Harvard University. His book is at http://oll.libertyfund.org/index.php?option=com_staticxt&staticfile=show.php%3Ftitle=675&Itemid=28 It is fascinating!
[6] Here is the link to Ch. 11. Read it! You will then know more about “due process” than most federal judges! http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=675&chapter=106938&layout=html&Itemid=27
[7] http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=675&chapter=106887&layout=html&Itemid=27
Where do “Rights” come from? What is “federalism”? Does our Constitution “evolve”? What’s a “Republic”? What is the function of a constitution?
BASIC CONCEPTS OF “GOVERNMENT”
Think NOT that you must have a law degree to understand the Constitution of the United States; or that the lawyers, law professors and black robed judges are the ones who understand it best. They are the ones who perverted it. To restore constitutional government, We the People must learn the basic concepts of “government”; and we must learn the Constitution, elect representatives who will honor their oaths to support it (Art VI, clause 3), and remove from office those who don’t.
The Constitution is a short document which anyone – who makes a reasonable effort – can understand quite well. You need only (1) The Declaration of Independence, (2) The Constitution, and (3) The Federalist Papers. The latter is a collection of 85 essays written for the public by Alexander Hamilton, James Madison, and John Jay, and published during 1787 and 1788, in order to explain the proposed Constitution to the People and to induce them to ratify it. [1] Also, since word meanings can change drastically throughout time [2], if we are to understand the objective meaning of the Constitution – the original intent – we must understand the words the same way the founders understood them. An American Dictionary of The English Language, Noah Webster (1828), published in facsimile edition, is readily available.
1. The function of a Constitution is to restrict the power of civil government:
…In free states, the constitution is paramount to the statutes or laws enacted by the legislature, limiting and controlling its power; and in the United States, the legislature is created, and its powers designated, by the constitution. (Webster’s 1828)
2. “Federal” refers to the form of our government: An alliance of States with close cultural and economic ties associated together in a “federation” with a national government to which is delegated supremacy over the States in specifically defined areas. [3]
3. A “republic” is “a state in which the exercise of the sovereign power is lodged in representatives elected by the people…” (Webster’s 1828). A “constitutional republic” is a state in which the representatives (and other officials) are limited and restricted by a constitution. This country was established as a constitutional republic.
4. A “democracy” is two wolves and one sheep voting on what to have for dinner.
5. Decentralization: In a free country, government is decentralized: there exist various kinds of government, each with their own sphere of operation. Webster’s (1828) lists three: “self-government” – man’s control and restraint over his own temper, passions, and social actions; “family government” – parents’ authority over their children and other family matters; and civil government – the form of, and the rules and principles by which a nation or state is governed.
There is also government in religious associations (e.g., Mat 18:15-17); charities; professional, trade, and sports associations (in earlier times, these set the standards and handled the discipline for their members); and other voluntary organizations with their own rules and requirements.
But in a totalitarian country, the civil government eliminates the other forms of government so that its power is unchallenged in all spheres of life:
a) Our national government is eliminating self-government by taking away the responsibility of individuals to act morally and responsibly in the conduct of their own affairs. Not only does it force individuals to participate in government retirement and medical programs – matters which in the past were considered to be individual and family responsibilities; it now, with respect to daily expenses, “bails out” the least responsible at the expense of the more responsible! We are no longer required to govern ourselves: We may sit around, indulging in blame shifting, excuse-making and nursing grievances, and the government pays our living expenses! As individuals, we have abandoned self-discipline altogether – we abuse our own health with our excesses and bad habits!
b) It is eliminating family government by dictating as to the discipline and education of children, and insisting that minor children may obtain abortions without their parents’ knowledge or consent! Matters that were, in the past, treated as family responsibilities (financial and other assistance to family members; education of children, care of aging parents, etc.) have been taken over by civil government. We no longer look to our families for assistance – we look to the civil government! Is it any wonder we now consider the president as “the one” to “save” us?
c) Previously, churches were the moral authorities in our country. But the national government has eliminated that moral authority! Even though the modern “welfare” state is based on Coercion & Looting & Distribution of Plunder to favored groups – the legalization of Envy & Theft [4] – the Pastors dare not speak out against it – they have been silenced by the 501 c (3) tax exemption. So we have been deprived of the benefit of their moral guidance on issues affecting our country – that’s what the national government demands! So the churches are restricted to speaking on saving souls, “escape” or “rescue” from this Earth, what happens when we’re dead, and other such matters that don’t challenge Caesar’s sovereignty on Earth. For Caesar claims that the Earth and everything on it belongs to him!
d) Charity is properly the work of individuals, churches, and private associations. Some, such as The Salvation Army, provide Christian instruction along with assistance. But a totalitarian government will not tolerate this challenge to its total power; so it now speaks of reducing the tax deduction for charitable giving. As economic conditions worsen, charitable giving will decline; private charities will diminish, but the national government seeks always to expand.
e) The state governments have taken over the licensing and disciplining of the trades and professions; and Congress conducts hearings on whether sports figures take steroids!
6. Decentralization & Local Governments: In a free country, civil government itself is decentralized – we have city governments, county governments, and state governments, as well as the federal government. Each local government has its own constitution that defines its powers & duties.
When speaking of the national government, do not confuse its few powers – those enumerated in the U.S. Constitution – with the more extensive powers that may be granted to State and local governments in their constitutions. James Madison wrote in The Federalist Papers, No. 45 (9th paragraph):
The powers delegated by the proposed Constitution to the federal government are few and defined. Those that are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people….
So, do you see? The federal government isn’t supposed to have anything to do with our lives, liberties and properties except as follows: Other than those in military service, it has no lawful criminal jurisdiction over us unless we are counterfeiters, pirates or traitors; it has no civil jurisdiction over us unless we file for bankruptcy; if we are inventors or writers, it secures for us the rights to patents & copyrights; it makes rules for naturalizing new citizens, and it delivers our mail! (Art I, Sec 8 & Art III, Sec 3, U.S. Constitution) That’s basically it, Folks!
So mortgage bailouts, medical care, pensions, family matters, education, housing, food stamps, tattoo removal, Nancy Pelosi’s mice, “community redevelopment”, light bulbs, and the like, are NONE OF THE FEDERAL GOVERNMENT’S BUSINESS! The local governments, if the People have authorized such in the local constitution, may address such matters. But the only areas in which the federal government may lawfully act are those enumerated in the U.S. Constitution.
7. In a free country, civil government is restrained – it is limited by the constitution in what it is allowed to do. But in a tyranny, those who hold power do whatever they want – they know no law but their own ideas, whims, self-interest, self-glorification, and lust for power. Webster (1828) defined “govern”:
To direct and control…either by established laws or by arbitrary will…Thus in free states, men are governed by the constitution and laws; in despotic states, men are governed by the edicts or commands of [a tyrant]…. [5]
WE the People created the national government when We, as States, ratified the Constitution. WE determined its powers and duties and enumerated those powers and duties in the written Constitution. None of the three branches of the national government: neither the Legislative, nor the Executive, nor the Judiciary, may do ANYTHING unless WE first gave it permission in the Constitution. WE are the Creators; those in the national government, be they Senators, Representatives, federal judges, or the President, are mere creatures. Alexander Hamilton said in The Federalist Papers, No. 33, (6th paragraph):
If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed [the Constitution], and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify. [emphasis added]
Our Constitution is the Supreme Law of the Land (Art VI, cl.2); and anything contrary to our Constitution is lawlessness – no matter who in office or on the bench does it.
8. How should we understand the Constitution? Should we understand it the same way our founders did (“original intent”)? Or, does its meaning “evolve” throughout time, so that it “means” whatever the gang in power (at any point in time) says it means?
a) One side – the “strict constructionists” or “originalists” – say the Constitution has a fixed meaning, and we must look at the original intent of the Constitution. We easily learn this original intent by understanding the words the same way our founders understood them [e.g., Webster’s 1828 Dictionary] & by referring to The Federalist Papers. [6]
b) The other side (composed primarily of activist judges, totalitarian leftists and people who don’t think) say the Constitution has no fixed meaning. They say it is an “evolving”, “living, breathing” thing that means whatever the judges, from time to time, say it means [7] or, like Congress and many of our presidents, ignore it altogether.
And just how do we learn what the judges say the Constitution means? Well, you really have to go to law school and learn how to do legal research; how to read judicial writing (which is often intended to conceal the judges’ complete lack of intellectual honesty); and how to construe conflicting court decisions. Then, you usually end up going with the court’s latest pronouncement (once you have located it) – knowing full well that it may change when a new gang gets on the bench. [8]
Obviously, under the second view – we don’t have constitutional government. Instead, the judiciary, the Congress, and the Executive Branch impose their unfettered wills on us; and THIS is how we have been transformed from a “free state” where we were governed by the constitution and laws; into a despotic state, where we are governed by the edicts or commands of judges, congressmen & senators, presidents, and meddlesome federal agencies.
9. What are “Rights” and where do they come from? Are rights unalienable gifts from God? Are rights inherent to our nature as humans? Is the Bill of Rights (the first 10 Amendments to the U.S. Constitution) the source of our rights? Are “rights” entitlements to stuff paid for by other people?
a) Our Declaration of Independence says our Rights are unalienable and come from God:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness… [9]
b) The Philosopher Ayn Rand correctly saw rights as inherent to the nature of man; although she thought God had nothing to with it. In John Galt’s speech (Atlas Shrugged), he said:
The source of man’s rights is not divine law or congressional law, but the law of identity. A is A—and Man is Man. Rights are conditions of existence required by man’s nature for his proper survival. If man is to live on earth, it is right for him to use his mind, it is right to act on his own free judgment, it is right to work for his values and to keep the product of his work. If life on earth is his purpose, he has a right to live as a rational being: nature forbids him the irrational. Any group, any gang, any nation that attempts to negate man’s rights, is wrong, which means: is evil, which means: is anti-life.
c) Others say that our rights come from the Bill of Rights. But this is a pernicious error. To say that the Bill of Rights “confers” our rights; or to discuss “the full scope” of any of the First Ten Amendments, constitutes a restriction on, and reduction of, the rights given by God. To say that the Bill of Rights is the source of our rights, diminishes them from their proper status as unalienable gifts from God, and transforms them into privileges which we hold, or not, according to whether they are recognized in a document written by men; and according to the interpretations of judges!
d) The statist view is that rights come from “the government”. The statists are not concerned with Life, Liberty and the Pursuit of Happiness! [10] To them, a “right” is a claim for stuff paid for by somebody else: The “right” to a public school education; the “right” to medical care; the “right” to housing; etc. But it is a contradiction in terms – it is a perversion – to speak of “rights” to stuff that is produced by, or paid for, by others! To hold that people who produce exist to be plundered by civil government for the ostensible benefit of others is nothing less than slavery. Just as no one has the right to own another human being; so no one has the right to own the fruits of another man’s labors.
10. The U.S. Constitution is the document that created the national government. [11] When the People through their States ratified the Constitution, the People and the States did not lose their status as independent sovereigns who would be capable of corrective action if the national government were to exceed the powers granted to it.
Except for those few powers (primarily relating to national defense & other external objects) that the People and the States specifically delegated to the national government, the People and the States remain independent and sovereign.
Furthermore, the Tenth Amendment to the Constitution states:
The powers not delegated to the United States by the Constitution, nor Prohibited by it to the States, [12] are reserved to the States respectively, or to the people.
So when the “creature” usurps powers not granted in the Constitution, the “Creators” are not bound by the usurpations. Those usurpations are, by definition, lawless. When this happens, the States have the Right and the Duty to rein in their creation – for the creature has become Frankenstein.
Tenth Amendment Resolutions, nullification by States, Jury nullification, etc. are lawful, consistent with our Constitution, and if properly implemented, can restore our Constitutional Republic with its federal form of government! That, instead of a totalitarian dictatorship with a populace forever crushed with debt, is the Blessing we want to leave our Posterity.
PUBLIUS/HULDAH (revised June 20, 2009)
[1] The authors’ 18th century style of writing might seem difficult at first; but if you stick with it, you will get used to it, and may come to find it delightful.
[2] E.g., “mean” used to mean “poor”; “nice” used to mean “precise, exact”; “gay” used to mean “jovial, merry”, etc.
“Welfare” as used in the Preamble & in Art I, Sec 8, cl 1, U.S. Constitution, meant “Exemption from any unusual evil or calamity; the enjoyment of peace and prosperity, or the ordinary blessings of society and civil government” (Webster’s 1828). But The American Heritage Dictionary of the English Language (1969), adds a new meaning: “Public relief” – on welfare. Dependent on public relief”. Do you see how our Constitution is perverted when 20th century meanings are substituted for the original meanings?
[3] As the national government usurps more & more of the powers retained by the States or the People, the form of our government becomes less & less “federal”, and more & more “national”.
[4] See Frederic Bastiat’s short & easily understood work, The Law (1848), which is without a doubt, the best thing to ever come out of France. A magnificent refutation of socialism. On-line English ed. at bastiat.org
[5] In the classic work on political philosophy, Lex, Rex, or The Law And The Prince, Samuel Rutherford (1644), Rev. Rutherford sets forth the biblical model wherein the king is subject to the Law to the same extent as the citizens: e.g., Deut 17:18-20; 2 Kings 22:8-13; 23:1-3. THIS is what “The Rule of Law” means – when the “king” is under the Law. When the “king” claims that he is above the law, then we have “the Rule of Men” – i.e., tyranny.
Contrast Rutherford’s model, which the drafters of our Constitution followed, with that of the German philosopher Georg Wilhelm Friedrich Hegel (1770-1831), who glorified the state and saw it as superior to the people. THAT is the political philosophy that gave rise to German statism, the Third Reich, and Hitler worship.
[6] It’s fast & easy: With an annotated copy of the Constitution, you look up the Federalist Paper cited, skim through it until you get to the relevant passage, and in a few minutes, you usually can know the original intent. You then know more than our judges know! Congratulations! [But sometimes we also have to refer to other contemporaneous works.]
[7] Thus, instead of the judges being subject to the Constitution; the Constitution is subject to the will of the judges.
[8] Franz Kafka’s novel, The Trial (1937), describes an arbitrary and incomprehensible legal system where the peoples’ access to The Law is cut off. “Before the Law, stands a door keeper… “. The hero of Kafka’s novel couldn’t get past the doorkeeper and so was denied access to The Law. Folks, that’s what our courts – the doorkeepers – are doing to us. The U.S. Constitution is the supreme Law of the Land (Art VI, cl. 2); but the Courts have taken it away from us and won’t give it back! The Trial is on-line in English translations from the German.
[9] The Bible reveals additional rights bestowed on us by God, such as the right to inherit, earn, & keep property; the right of self-defense; the right & duty to demand that the “king” adhere to the Covenant of civil government; etc. The distinguishing characteristics of all these God-given rights are (1) they are necessary for man to exist as man and (2) they may be held and enjoyed at NO expense or loss to any other man. (Ayn Rand was 100% right on these points.)
[10] They love death: abortion, assisted suicide, and euthanasia. They hate private property. They hate Liberty. Productive men exist, not to pursue their own Happiness or to serve God; but to be plundered by civil government. Folks, we need to face Reality and acknowledge that these are not people whose “intentions” are “good”.
[11] It is important that you always keep at the front of your mind: The national government is a creation of the People & their States. The People & their States are the Creators – the national government is merely the creature.
[12] Art I, Sec 10 prohibits the States from exercising powers specifically delegated to the national government, and from passing those obnoxious laws which are inimical to a free country such as Bills of Attainder, ex post facto Laws, laws impairing the Obligation of contracts, or granting Titles of Nobility.
The TRUTH about “Separation of Church and State”. Does the Supreme Court have constitutional authority to ban religion from the public square?
RELIGIOUS FREEDOM
AND
THE U.S. SUPREME COURT’S USURPATIONS OF POWER
A Primer in Constitutional Law
1. How did it happen that our country became a land where children are forbidden to use the word, “God” in the public schools; public school students are forbidden to say prayers at football games; and religious speech is banned from the public square? Read on, and I will show you how judges on the U.S. Supreme Court perverted our Constitution, prohibited the Free Exercise of Religion, and abridged our Freedom of Speech.
2. We must begin by learning what our Constitution says – and doesn’t say – about “religion” & “speech”. Remember, the three branches of federal government, the Legislative Branch (Art I), the Executive Branch (Art II), and the Judicial Branch (Art III), have only the powers granted to them in the Constitution. All “legislative” powers granted in the Constitution are vested in Congress (Art I, § 1). This means that no other branch may make law. The legislative powers of Congress are enumerated. Thus, Congress may pass laws only on those specific subjects which are listed in the Constitution as proper subjects of legislation.[1] Since “religion” & “speech” are not among the listed powers, Congress may not make any laws about religion or speech. Neither may any other branch.
3. Furthermore, the First Amendment to the Constitution expressly states:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech…
What is an “established religion”? I will show you how judges on the Supreme Court changed the historical definition of that term so they could eradicate religion from our public square and eliminate speech they don’t like. We will begin by finding out what “establishment of religion” actually meant. To do so, we must consult English history, American colonial history, and writings of our Founders.
Established Religions in England.
4. Queen Mary I (“Bloody Mary”), who reigned between 1553-1558, deposed The Church of England which her Father, Henry VIII, had established; re-established the Roman Catholic Church, and burned approximately 300 Protestant dissenters at stake.
Elizabeth I, who reigned between 1558-1603, restored the Church of England. Elizabeth’s Act of Uniformity (1559), [2] imposed fines, forfeitures, and imprisonment on church officials who did not conform to approved doctrine & practice; and imposed fines on all persons who, without sufficient excuse, did not attend services of the Church of England.
During the reign of Charles II (1661-1685), the Puritan John Bunyan, author of Pilgrim’s Progress, was imprisoned for 11 years because he refused to attend services of the established Church of England, and he refused to obtain a license to preach as a “nonconformist”.
5. The established religions in England, first Roman Catholic, and then Church of England, were supported by “tithes” – mandatory payments of a percentage of the produce of the land, payable by parishioners [those living within the parish regardless of their religious preferences] to the parish church, to support it and its clergyman:
The payment of tithe was a cause of endless dispute between the tithe owners and the tithe payers – between clergy and parishioners – …In addition, Quakers and other non-conformists objected to paying any tithes to support the established church. Almost every agricultural process and product attracted controversy over its tithe value. By the eighteenth century the complex legislation surrounding the tithe began to have a detrimental effect…Tithing was seen as increasingly irrele-vant to the needs of the community and the developing agricultural industry.[3]
6. So! The essential characteristic of “established religion” in England up to the time of the founding of our country was coercion by the civil government: The people were forced to practice the established denomination under pain of death, imprisonment & fines, and were forced to financially support the established church.
Established Religions in the American Colonies.
7.The English immigrants to this country promptly established various religions. In Massachusetts, where the Congregational Church was established, only church members could vote between 1631-1664; dissenters (Roger Williams, etc.) were banished; and during the 1650’s-1670’s, Quakers were whipped, imprisoned, banished, and put to death. In Virginia, where the Church of England was established, penalties for failure to attend services during the early 1600’s included death, imprisonment, and fines. [4] In Maryland, where the Church of England was established, from 1704 to 1775, Roman Catholic (“RC”) services could not be held except in private homes, RCs could not teach school, there were restrictions on the inheritance of property by RCs, and RCs who would not take a certain oath were disfranchised and subject to additional taxes, as well as being forced to contribute to the established church. In Virginia at this time, RCs were forbidden to possess arms, give evidence in court or hold office unless they took certain oaths. New York and Massachusetts passed laws that stayed on the books until the Revolution directing all RCs to leave the realm. Rhode Island’s laws between 1719-1783 provided that RCs were not allowed to be freeman or office holders. Not until 1783 were RC’s given full political rights in Rhode Island. In Virginia, no marriage was legal unless performed by a minister of the Church of England. [5]
Everyone in Virginia, Maryland, and North & South Carolina was required to contribute to the support of the established Church of England, to maintain the building, pay the minister’s salary, and provide him with a house and plot of land. New York required each county to hire a “good sufficient” Protestant minister and to levy taxes for his support. By 1760, the Congregational Church was still established in Massachusetts and Connecticut; but Episcopalians, Baptists and Quakers were now tolerated, and no longer required to contribute to the support of the Congregational Church.[6] Presbyterians of the Town of Chester, N.H. objected to being taxed to support a Congregational Minister, and in 1740 won the right to be taxed only for their own denomination. Even so, in 1807, the Presbyterians sold a Quaker’s cow for non-payment of the Minister’s Tax! [7]
8. As the Spirit of Toleration grew in England and colonial America, the criminal penalties for dissenting from the tax-supported established religions were abolished. By 1776, the essential characteristic of established religions, as opposed to tolerated religions, was that the former were still supported by tax money (or tithes assessed & collected by law and to which the established religion had a legally enforceable right); whereas the latter were supported by voluntary contributions alone. Benjamin Franklin wrote in 1772 of colonial Americans:
They went from England to establish a new country…where they might enjoy the free exercise of religion…they granted the lands out in townships, requiring …that the freeholders should forever support a gospel minister (meaning probably one of the then governing sects)…Thus, what is commonly called Presbyterianism became the established religion of that country. All went on well in this way while the same religious opinions were general, the support of minister … being raised by a proportionate tax on the lands. But in process of time, some becoming Quakers, some Baptists, and…some returning to the Church of England …objections were made to the payment of a tax appropriated to the support of a church they…had forsaken. The civil magistrates, however, continued for a time to collect and apply the tax according to the original laws which remained in force…a payment which it was thought no honest man ought to avoid under the pretense of his having changed his religious persuasion. …But the practice being clamoured against by the episcopalians as persecution, the legislature of the Province of the Massachusets-Bay, near thirty years since, passed an act for their relief, requiring indeed the tax to be paid as usual, but directing that the…sums levied from members of the Church of England, should be paid over to the Minister of that Church, with whom such members usually attended divine worship, which Minister had power given him to receive and on occasion to recover the same by law. [8]
Alexander Hamilton wrote in 1775:
The characteristic difference between a tolerated and established religion, consists in this: With respect to the support of the former, the law is passive and improvident, leaving it to those who profess it, to make as much, or as little, provision as they… judge expedient; and to vary and alter that provision, as their circumstances may require. In this manner, the Presbyterians, and other sects, are tolerated in England. They are allowed to exercise their religion without molestation, and to maintain their clergy as they think proper. These are wholly dependent upon their congregations, and can exact no more than they stipulate and are satisfied to contribute. But with respect to the support of the latter, the law is active and provident. Certain precise dues, (tithes &c.,) are legally annexed to the clerical office, independent on the liberal contributions of the people…While tithes were the free…gift of the people… the Roman church was only in a state of toleration; but when the law came to take cognizance of them, and, by determiningtheir permanent existence, destroyed the free agency of the people, it then resumed the nature of an establishment. [emphasis added] [9]
James Madison wrote in 1832:
In the Colonial State of the Country, there were four examples, R.I., N.J., Penna. and Delaware, & the greater part of N.Y. where there were no religious Establishments; the support of Religion being left to the voluntary associations & contributions of individuals…[10]
9. So! The essential characteristic of an “established religion” in America by 1789 was that an established denomination was supported by mandatory taxes or tithes, but tolerated denominations were supported by voluntary offerings of their adherents. Benjamin Franklin’s letter of 1772 shows that the hot topic of the time was the forcing of dissenters to financially support established religion. In England, dissenters from the Church of England were being forced to pay tithes to the clergy of that Church. The English supporters of the Church of England responded that the “dissenters” in America had no room to complain because they, in turn, compelled American Anglicans to pay taxes to support the Presbyterian or independent worship!
Whose Powers Are Restricted By The First Amendment?
10. Before we get to U.S. Supreme Court opinions prohibiting the free exercise of religion & abridging free speech in our public forums, we must consider: Whose Powers are restricted by The First Amendment? Does it apply only to Congress – as it says?
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech…
The plain language shows that the First Amendment restricts only Congress’ powers! The People of the States are free to establish (or dis-establish) any religion they want – this is one of the powers retained by the States or the People! Several States did retain their established religions after ratification of the U.S. Constitution in 1789. We saw that in 1807, Presbyterians in Chester, N.H. sold a Quaker’s cow for non-payment of the Minister’s Tax. Not until the Toleration Law of 1819 did the Legislature of N.H. make it illegal for towns, as corporate bodies, to raise money for the support of the gospel.[11] Connecticut did not dis-establish the Congregational Church until they adopted their Constitution of 1818.[12] Massachusetts did notdis-establish the Congregational Church until 1833.[13]
11. So! The First Amendment (1) prohibited Congress from establishing a national denominational religion, (2) prohibited Congress from interfering in the States’ establishments of the religions of their choice, or the dis-establishments thereof, and (3) prohibited Congress from abridging the Peoples’ Freedom of Speech. Everyone understood that no one in the federal government had any authority to cancel, abridge, restrain or modify rights of any denomination or the States’ essential rights of liberty of conscience. Read, e.g., the words of the General Assembly of Virginia on June 26, 1788 when it ratified the U.S. Constitution:
We the Delegates of the People of Virginia…having…investigated and discussed the proceedings of the Federal Convention…Do in the name…of the People of Virginia declare and make known that the powers granted under the Constitution being derived from the People of the United States may be resumed by them whensoever the same shall be perverted to their injury or oppression and that every power not granted thereby remains with them and at their will: that therefore no right of any denomination can be cancelled abridged restrained or modified by the Congress by the Senate or House of Representatives acting in any Capacity by the President or any Department or Officer of the United States except in those instances in which power is given by the Constitution for those purposes: & that among other essential rights the liberty of Conscience and of the Press cannot be cancelled abridged restrained or modified by ANY authority of the United States. With these impressions with a solemn appeal to the Searcher of hearts for the purity of our intentions…We…in the name…of the People of Virginia…ratify the Constitution recommended on the seventeenth day of September one thousand seven hundred and eighty seven by the Federal Convention for the Government of the United States…[emphasis added] [14]
12. But in Gitlow v. People, 268 U.S. 652, 666 (1925),[15] judges on the U.S. Supreme Court assumed – without any proof or evidence whatsoever – that the 14th Amendment to the Constitution[16] incorporated the First Amendment so that the First Amendment now restricted the powers of the States! These judges said:
…we may and do assume that freedom of speech and of the press which are protected by the First Amendment from abridgment by Congress are among the fundamental personal rights and “liberties” protected by the due process clause of the Fourteenth Amendment from impairment by the States. We do not regard the incidental statement in Prudential Ins. Co. v. Cheek…that the Fourteenth Amendment imposes no restrictions on the States concerning freedom of speech, as determinative of this question. [emphasis added][17]
Their new interpretation of the 14th Amendment became the weapon the Court has since used to seize Power over the States and political subdivisions thereof. By claiming that the First Amendment (& then other Amendments in The Bill of Rights) restricted the powers of the States, the Court set itself up as policeman over the States, over counties, over cities & towns, and even over football fields & court-house lawns! In this way, the Bill of Rights, which was intended to be the States’ and The Peoples’ protection against usurpations of power by the federal government, became the weapon the federal courts have since used to usurp power and to force their wills on all people throughout these United States.
How the U.S. Supreme Court Re-defined the Historic Term, “Establishment of Religion”
13. We have seen where Benjamin Franklin, Alexander Hamilton, and James Madison said the essential characteristic of an “established religion” was that an “established” denomination was supported by mandatory taxes or tithes, whereas “tolerated” denominations were supported by voluntary offerings of their adherents.
14. Now let’s see how various judges on the U. S. Supreme Court re-defined “establishment of religion” in order to impose their wills on us. Engel v. Vitale, 370 U.S. 421 (1962), [18] is the case where six men outlawed prayer in the public schools. A public school board in New York had directed that the following prayer be said at school:
Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country.
Any student was free to remain seated or leave the room, without any comments by the teacher one way or the other.
But six men on the Supreme Court said this short, non-denominational and voluntary prayer constituted an “establishment of religion” in violation of the First Amendment! They (Hugo Black,[19] Warren, Clark, Harlan, Brennan, and Douglas) admitted that allowing school children to say this prayer did not really “establish” a “religion”! They admitted that the prayer:
…does not amount to a total establishment of one particular religious sect to the exclusion of all others — that, indeed, the governmental endorsement of that prayer seems relatively insignificant when compared to the governmental encroachments upon religion which were commonplace 200 years ago…(p.436)
Douglas wrote in his concurring opinion:
I cannot say that to authorize this prayer is to establish a religion in the strictly historic meaning of those words. A religion is not established in the usual sense merely by letting those who choose to do so say the prayer that the public school teacher leads. (p.442)
But these six men didn’t like children praying in school. So, they just redefined “establishment of religion” to mean, “a religious activity”, “a prayer” (p.424), having public school children hear or recite a prayer that “somebody in government composed” (pp.425-427), “writing or sanctioning official prayers”(p.435), and “government endorsement of a prayer” (p.436).
These six men also admitted that even though no coercion was present, and even though the prayer was “denominationally neutral”, it still constituted an unlawful “establishment of religion”. They said:
The Establishment Clause…does not depend upon any showing of direct governmental compulsion and is violated by the enactment of laws which establish an official religion whether those laws operate directly to coerce nonobserving individuals or not. (p.430)
Douglas said in his concurring opinion:
There is no element of compulsion or coercion in New York’s regulation requiring that public schools be opened each day with the …prayer (p.438); there is…no effort at indoctrination, and no attempt at exposition…New York’s prayer…does not involve any element of proselytizing…(p.439).
15. They thus redefined “established religion” to describe what the N.Y. public schools were doing so that they could then outlaw it. But they don’t have that right! We have quoted three of our founders showing that the essence of an “established religion” during the era of the ratification of our Constitution was that the civil government selects a particular religious denomination (Roman Catholic or Church of England or Congregational or Presbyterian, etc., and forces everybody to financially support that particular denomination with taxes or tithes. [20]
16. Well! Since the evil from which the Supreme Court in Engle v. Vitale pretended it sought to protect our public school children was having them recite or hear (if they wanted to) a one-sentence non-denominational prayer which “somebody in government composed”; that monstrous evil can be avoided if the children write their own prayers, right?
17. Oh no! said six people on the Supreme Court in Santa Fe Independent School Dist. v. Doe, 530 U.S. 290 (2000) [21] Here, a public school district permitted, but did not require, student-initiated, student-led, nonsectarian, nonproselytizing prayer at home football games. But Justices Stevens, Ginsberg, Souter, Breyer, O’Connor & Kennedy said this constituted an “establishment of religion” in violation of the First Amendment, because the prayers were “public speech” authorized by “government policy” taking place on “government property” at government sponsored school events, and the policy involved “perceived” and “actual” “government endorsement of prayer.”
The six also said on page 309-310 of their opinion:
…School sponsorship of a religious message is impermissible because it sends the ancillary message to members of the audience who are nonadherents “that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community” Lynch, 465 U.S. at 688 …
Do you see? They cite themselves – their earlier opinion in Lynch – as authority! [22] Further, making “nonadherents” feel like “outsiders” is not a constitutional standard; it is the judges’ own silly standard.
The six said on page 310:
…We explained in Lee that the “preservation and transmission of religious beliefs and worship is a responsibility and a choice committed to the private sphere.” 505 U.S. at 589…
Again, they cite themselves- their opinion in Lee -as authority! The Constitution nowhere restricts religion to the “private sphere”; it forbids Congress from prohibiting its free-exercise anywhere.
18. Again, the six re-defined “establishment of religion” to describe what the Santa Fe School District was doing so that they could then outlaw it.
19. In his dissenting opinion, Rehnquist, joined by Scalia & Thomas, said the majority opinion:
…bristles with hostility to all things religious in public life. Neither the holding nor the tone of the opinion is faithful to the meaning of the Establishment Clause, when it is recalled that George Washington himself, at the request of the very Congress which passed the Bill of Rights, proclaimed a day of “public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favors of Almighty God.”…(p. 318) [emphasis added]
The One-Way Only “Wall of Separation” Between Church and State.
20. We have all heard the chant, mindlessly recited, “separation of church and state”. Many believe this phrase is in the Constitution, and that it forbids any religious influence in the public square. But that is false. The Truth is the phrase is nowhere in the Constitution; it is not a constitutional principle; and there is no evidence that our Founders ever wanted to sever the influence of religion in the public square. The First Amendment gives effect to the exact opposite: that Congress may not “legally establish one [religious] creed as official truth and support it with its full financial and coercive powers” [23]; and it may not prohibit the Free Exercise of Religion or religious speech anywhere, including the public square.
21. We saw that in Connecticut, the Congregational Church was the established religion until Connecticut adopted its Constitution of 1818 and dis-established the Congregational Church. On October 7, 1801, Baptists in Danbury, Connecticut wrote a letter to President Thomas Jefferson [24] in which they expressed their distress that in Connecticut, where they were a religious minority,
…religion is considered as the first object of legislation; and therefore what religious privileges we enjoy (as a minor part of the state) we enjoy as favors granted, and not as inalienable rights; and these favors we receive at the expense of such degrading acknowledgements as are inconsistent with the rights of freemen…
…..Sir, we are sensible that the president of the United States is not the national legislator, and also sensible that the national government cannot destroy the laws of each state; but our hopes are strong that the sentiments of our beloved president, which have had such genial effect already, like the radiant beams of the sun, will shine and prevail through all these states…till…tyranny be destroyed from the earth…
These Baptists thus expressed their hope that the People of Connecticut would be influenced by Jefferson’s good example and dis-establish the Congregational Church.
22. In the final draft of his response dated January 2, 1802, [25] Jefferson indicated that he hoped the People of Connecticut would follow the example of the “whole American people”:
…Believing with you that religion is a matter which lies solely between man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between Church & State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights…
Jefferson agreed that civil governments ought not dictate to the People in matters of religious belief, and pointed out that a “wall of separation” in the U.S. Constitution prevents Congress from doing this. He did not say that religious people ought not exert influence in the public square! He used the First Amendment as his model – and it restricts only Congress, not religious people. He and the Danbury Baptists both knew that the federal government had no authority to dis-establish Connecticut’s established Church.
23. The Draft of Jefferson’s letter with the Recently Discovered Text reads:
…I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establish-ment of religion, or prohibiting the free exercise thereof;” thus building a wall of eternal separation between Church & State. Congress thus inhibited from acts respecting religion, and the Executive authorized only to execute their acts…[emphasis added]
In another version of the draft, Jefferson said:
…confining myself therefore to the duties of my station, which are merely temporal, be assured that your religious rights shall never be infringed by any act of mine…
24. Dr. Hutson’s article reveals that right after Jefferson wrote the letter to the Danbury Baptists, he invited John Leland, a Baptist minister and well known advocate of religious liberty, to preach in the House of Representatives on Sunday, Jan 3, 1802. During the remainder of Jefferson’s two administrations, he attended religious services conducted in the House “constantly”. Jefferson granted “permission to various denominations to worship in executive office buildings, where four-hour communion services were held…”
Jefferson had no problem with sectarian praying, preaching & communion serving on public property! It could be said that he “endorsed” Christianity! Those who are so determined to eradicate “religion” from our country walk on a slender reed when they claim Jefferson as an ally.
25. In Engel v. Vitale, Hugo Black said that the use of the prayer [“Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country”] before children in the N.Y. public schools who chose to hear it:
breaches the constitutional wall of separation between Church and State (p.425).
So! Not only did this Klansman turned Supreme Court Justice use a standard which was nowhere in the Constitution – the so-called “wall of separation between church and state” – to decide the case; he misrepresented that it was a “constitutional” principle! It isn’t! [26] And further, Black completely misconstrued Jefferson’s letter. As proven above, Jefferson’s “wall” only prevented Congress from establishing a religion, dis-establishing a State’s religion, or abridging religious speech. Congress could not prohibit the “free exercise” of religion anywhere; and that Jefferson thought that “religion” should influence the public square is clear from all those church services & celebrations of communion that were “constantly” held in the House of Representatives and the Executive Office Building! I rest my case.
Lawlessness on the Court.
26. Let us summarize what the U.S. Supreme Court has done to Free Speech and the Free Exercise of Religion throughout Our Land. They have violated the First Amendment in four ways:
a) Even though the First Amendment expressly restricts only the law-making powers of Congress, and thus was intended to be the States’ and the Peoples’ protection from Congress; the Supreme Court reversed the meaning of the First Amendment so that it became the tool the Court used to silence speech they don’t like and to suppress the free exercise of a religion they don’t like, all throughout the States, counties, towns & villages, all the way down to football fields & county courthouse lawns.
b) Even though the First Amendment says, “an establishment of religion”, a phrase that has a well-recognized and definite historical meaning, the Court from time to time re-defines that term so as to describe the circumstances surrounding religious speech they don’t like so that they can then declare it “unconstitutional”. In effect, they claim the right to sit as a continuing constitutional convention amending the words in the U.S. Constitution to elevate into “Law” their own WILLS.
c) They outlawed the free exercise of religion; and they outlawed Free Speech – when the subject is “religious” – because they don’t like it. They took away from their Sovereign – their Creators – a right expressly reserved by us in the U.S. Constitution. Congress may not stop people from praying anywhere, or posting The Ten Commandments anywhere, or preaching in any public areas. Neither may the Supreme Court. But those lawless usurpers took away OUR religions and replaced them with THEIR humanist & statist religion which they are determined to cram down our throats.
d) By claiming that their Opinions have the effect of “law”, they made “laws” respecting religion, and “laws” abridging speech they don’t like, even though the federal government has no authority to act in this area. When Congress is prohibited from making laws in an area, the Supreme Court certainly may not make laws in that area! The only way “religion” or “speech” could ever properly get before the U.S. Supreme Court would be if CONGRESS VIOLATED the First Amendment and Art. I., Sec. 8 by making a law “respecting” the establishment of religion or prohibiting the free exercise thereof, or by making a law abridging the Freedom of Speech. The States and political subdivisions may make whatever laws they please “respecting” religion (subject only to any limitations imposed by their own state constitutions), and the U.S. Supreme Court has no constitutional authority whatsoever to interfere.
27. Later, I will discuss the ignored and under-used system of checks and balances in the Constitution. There are peaceful, lawful and constitutional ways to reign in lawless judges who know no standard but their own unbridled WILLS. Judges may, and should, be impeached & removed from the bench for such lawless usurpations. The Federalist Papers, No. 81 (9th Para), Alexander Hamilton.
In the Year of our Lord, [27] June 19, 2009
Publius/Huldah
[1] Congress’ powers are listed mainly at Art I, Sec 8, U.S.Constitution.
[2] Text at http://history.hanover.edu/texts/ENGref/er80.html See http://history.hanover.edu/texts/ENGref/links.html for the texts of additional laws illustrative of English Church History from 1558-1640.
[3] See http://www.devon.gov.uk/tithe_records for a history of tithing & financing established religions in England.
[4] A History of the Congregational Churches in the United States, Williston Walker (1894), pp 114-149; Google digitized book.
[5] A History of the United States: A Century of Colonial History, 1660-1760, Edward Channing (1908), pp 423- 454; Google digitized book.
[6] Id.
[7] Website of Hooksett, New Hampshire http://www.hooksett.org/about/history_officers.php
[8] Letter published in The London Packet, June 3, 1772; The Writings of Benjamin Franklin: London, 1757-1775, Vol. III, web ed at www.historycarper.com/resources/twobf3/toleratn.htm [emphasis in boldface added; italics in original]
[9] Remarks on the Quebec Bill (Pt. II.) (1775); The Works of Alexander Hamilton, Vol. II, p. 133 (Digitized by Google).
[10] Madison’s Letter to Rev. Adams 1832 http://press-pubs.uchicago.edu/founders/documents/amendI_religions68.html
[11] Website of Hooksett, New Hampshire http://www.hooksett.org/about/history_officers.php
[12] Text of 1818 Constitution at http://www.sots.ct.gov/sots/cwp/view.asp?a=3188&q=392280 See Art. Seven. See also historical timeline at http://www.shgresources.com/ct/timeline/
[13] http://www.macucc.org/about-us/history.htm
[14] http://avalon.law.yale.edu/18th_century/ratva.asp contains the text of this and many others of our founding documents. This web site is a Treasure Trove.
[15] Online at http://supreme.justia.com/us/268/652/case.html The quoted passage is on p. 666 [No kidding!]
[16] The 14th Amendment (ratified in 1868) doesn’t say anything about “religion”, “freedom of speech” or “freedom of the press”. Instead, it says, “…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 original purpose of the 14th Amendment was “to limit individual state governments from enforcing laws (termed “Black Codes”), which prohibited black citizens from owning property”. The Second American Revolution, John W. Whitehead, Crossway Books (1982), p. 212. In an essay in the Appendix, The Fading Constitution, Whitehead explains how the Supreme Court turned the Bill of Rights, “which was once a source of freedom against federal governmental interference [into] a source of intervention by the federal government into the very heart of the state governments.”
[17] In Prudential Ins. Co. v. Cheek, 259 U.S. 530, 543 (1922), http://supreme.justia.com/us/259/530/case.html , just three years earlier, the Supreme Court said [on page 543]:
But, as we have stated, neither the Fourteenth Amendment nor any other provision of the Constitution of the United States imposes upon the states any restrictions about “freedom of speech”…nor…does it confer any right of privacy upon either persons or corporations. [emphasis added]
So! Do you see? First it doesn’t; then three years later, it does! They amend our Constitution with their ever changing opinions! And “Law” becomes nothing but the arbitrary expression of their WILLS.
[18] Opinion online at: http://supreme.justia.com/us/370/421/case.html
[19] Hugo Black, who wrote the majority opinion, was a “New Deal” Democrat, a former Ku Klux Klan member, a supporter of FDR’s “court-packing” scheme, and FDR’s first appointment to the Supreme Court.
[20] The majority opinion is also silly. Between the time Justice Black changed his white robe for a black robe, he apparently didn’t study Logic: On pp.425-427, Black discussed the 16th century Established Church of England and its Book of Common Prayer which was approved by the English Parliament during 1548 & 1549. From that, Black concluded that when somebody “in government” composes a prayer, such constitutes an “establishment of religion”, even if the prayer is non-denominational and voluntary! This is the form of Black’s argument:
1st Premise: An established religion wrote a Book of Common Prayer for the public that Parliament [government] approved.
2nd Premise: People in N.Y. State government wrote a one-sentence prayer for the public.
Conclusion: When people in government write a one-sentence prayer for the public, they “establish” a “religion”.
Oh my! Black made several errors in Logic, among which are (1) The dreaded “Fallacy of Four Terms”: The Premises don’t connect ‘“establish” a “religion”’ with “people in government writing a prayer”, so the reasoning is invalid. There are four terms in Black’s argument. But “[w]ith more than three terms, no connection can be established from which a conclusion can be drawn…the idea of the syllogism is that two things related to the same thing ought to be related to each other.” http://philosophy.lander.edu/logic/four_fall.html
(2) Black selected one of many activities engaged in by established religions – writing prayers – and concluded that anytime government performs that same activity, such constitutes an “establishment of religion”. But established religions do many things – you can’t pick out one of those things and say that if government does it, government “establishes a religion”! That’s ridiculous!
(3) Our Founders said the defining characteristic of “established religion” is that a particular denomination selected by the civil government exists on taxes & tithes extracted from the People by force! But Black redefined the term to mean “people in government writing a prayer for the public”, so as to enable him to rule – in the case then before him – that N.Y. “established a religion”. This is the fallacy of “Victory by Definition”: one redefines the terms so that one “wins”. It is intellectually dishonest.
Learn Logic! Amaze your friends & confound our enemies! Some web sites are better than others, so check out several. See the logic site above & Google “logical fallacies”.
[21] Text of opinion at http://supreme.justia.com/us/530/290/case.html
[22] They insert their own views into their opinions and then, in later cases, they cite those earlier opinions as binding authority! This is preposterous & a classic example of the Rule of Men! The judges’ sole power is to decide only those cases properly before them; their decisions affect only the parties to the cases, and do not have the force & effect of “law” on anybody. See, e.g., The Federalist Papers, No. 78, by Alexander Hamilton.
[23] ‘A Wall of Separation’ by James Hutson, web ed. at http://www.loc.gov/loc/lcib/9806/danbury.html The quote is from the next to the last paragraph. Dr. Hutson is Chief of the Manuscript Division at the Library of Congress.
[24] Text of the Danbury Baptist’s letter at http://www.wallbuilders.com/LIBissuesArticles.asp?id=65
[25] The link to Hutson’s Article in FN 23 gives links to Jefferson’s final draft of his letter to the Danbury Baptists & to his Draft with Recently Discovered Text. With the aid of the FBI, Hutson was able to restore Jefferson’s Obliterated Draft of his letter to the Danbury Baptists – very interesting reading!
[26] On this point, Justice Stewart, who dissented, said:
Moreover, I think that the Court’s task, in this as in all areas of constitutional adjudication is not responsibly aided by the uncritical invocation of metaphors like the “wall of separation,” a phrase nowhere to be found in the Constitution…(pp.445-446)
[27] Art. VII, clause 2, U.S. Constitution contains an express recognition of the Lordship of Jesus Christ. Tell me, is that “unconstitutional”? I think not – It is, after all, “in the Constitution”.
About
Lawyer, philosopher & logician. Strict constructionist of the U.S. Constitution. Passionate about The Federalist Papers (Alexander Hamilton, James Madison & John Jay), restoring constitutional government, The Bible, the writings of Ayn Rand, & the following:
I firmly believe that there is no such thing as Jew & Greek, slave & freeman, male & female, black person & white person; for we are all one person in Christ Jesus.
Publius Huldah and her children,
Hamilton, Madison, Jay, and Fluffy
PUBLIUS HULDAH
A Learned & Thinking Cheetah-
