Publius-Huldah's Blog

Understanding the Constitution

What Criminal Laws are Congress Authorized To Make?

CONGRESS’ POWERS TO MAKE CRIMINAL LAWS

By Publius Huldah

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).

June 29, 2009; revised April 16, 2011

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June 29, 2009 Posted by | Criminal Code (US), Enumerated Powers of Congress, Necessary and Proper clause | 30 Comments

What are the Enumerated Powers of the Federal Courts?

The Judicial Power of the Federal Courts.

By Publius Huldah.

1. “Judicial Power” refers to a court’s power to hear and 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].

These are the ONLY cases which federal courts have constitutional authority to hear! Alexander Hamilton wrote in Federalist No. 83, 8th para:

…the judicial authority of the federal judicatures is declared by the Constitution to comprehend certain cases particularly specified. The expression of those cases marks the precise limits beyond which the federal courts cannot extend their jurisdiction, because the objects of their cognizance being enumerated, the specification would be nugatory if it did not exclude all ideas of more extensive authority. [emphasis added]

In Federalist No. 80, 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; revised July 16, 2010)


[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

June 22, 2009
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June 22, 2009 Posted by | 14th Amendment, Article III Courts, Article III, Sec. 2, Enumerated Powers of Federal Courts | 35 Comments

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”

By Publius Huldah

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.

June 20, 2009

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June 20, 2009 Posted by | Definitions and Basic Concepts, Federalism, Original Intent or Evolving Constitution?, Rights, Self Government | 11 Comments

The Lie of “Separation of Church and State” & the U.S. Supreme Court’s Usurpations of Power.

By Publius Huldah.

1.  How did it happen that our country became a land where Christian children are forbidden to use the word, “God”, in the public schools; public school students are forbidden to say prayers at football games; and Christian religious speech is banned from the public square?  Read on, and I will show you how judges on the 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” and “speech”.  The three branches of federal government:  Legislative Branch (Art I), Executive Branch (Art II), and Judicial Branch (Art III), have only the enumerated powers delegated 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.  Since the legislative powers of Congress are enumerated, Congress may make laws only on those specific subjects listed in the Constitution as proper objects of legislation.  Since “religion” & “speech” are not among the listed powers, Congress may not make any laws about religion or speech.


3. Furthermore, the First Amendment to the Constitution says:

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 that they could eradicate the Christian religion from our public square and eliminate speech they don’t like.  We will begin by finding out what “establishment of religion” actually meant when the Constitution was ratified.  To do so, we must consult English history, American colonial history, and writings of our Founders.

Established Religion 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), 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. Additional laws illustrative of English Church History from 1558-1640 are here.

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 those living within the parish (regardless of their religious preferences) to the parish church, to support it and its clergy:

 

The payment of tithes 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  irrelevant to the needs of the community and the developing agricultural industry.

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 AmericanColonies.

7. English settlers in the colonies promptly established their religions.  In Massachusetts, where  they established the Congregational Church, only church members could vote between 1631-1664; dissenters (Roger Williams, etc.) were banished; and between 1650-1670, Quakers were whipped, imprisoned, banished, and put to death.  In Virginia, where they established the Church of England, penalties for failure to attend services during the early 1600’s included death, prison, and fines. 1 In Maryland, where they established the Church of England, between 1704-1775, Roman Catholic (“RC”) services could be held only in private homes, RCs could not teach school,  inheritance of property by RCs was restricted, 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 made laws which stayed on the books until the Revolution directing all RCs to leave the realm.  Rhode Island’s laws between 1719-1783 prohibited RCs from being 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. 2

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 support of the Congregational Church. 3 Presbyterians of Chester, N.H. objected to being taxed to support the Congregational minister, and in 1740 won the right to be taxed only for their own denomination.  Even so, in 1807, the Presbyterians in Chester sold a Quaker’s cow for non-payment of the Minister’s Tax!

Writings of Our Founders.

8.  As the Spirit of Toleration grew in England and colonial America, 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 supported by tax money (or tithes assessed & collected by law); whereas the latter were supported by voluntary contributions alone.  Benjamin Franklin wrote in The London Packet, June 3, 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. [emphasis in boldface added; italics in original]

Alexander Hamilton wrote in 1775 in his “Remarks on the Quebec Bill” (No. 11):

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 determining their permanent existence, destroyed the free agency of the people, it then resumed the nature of an establishment. [emphasis added]

James Madison wrote in his letter of 1832 to Rev. Adams:

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…

9. So! The essential characteristic of an “established religion” 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  fascinating 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 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 compelled American Anglicans to pay taxes to support the Presbyterian worship!

Whose Powers Are Restricted By The First Amendment?

10.  Before we look at supreme Court opinions banning the free exercise of religion & abridging free speech, we must consider:  Whose powers are restricted by The First Amendment?  It reads:

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 Act 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. Connecticut did not dis-establish the Congregational Church until they adopted their Constitution of 1818 (see Article Seventh). Massachusetts did not dis-establish the Congregational Church until 1833.

11. So! The First Amendment (1) prohibits Congress from establishing a national denominational religion, (2) prohibits Congress from interfering in the States’ establishments of the religions of their choice, or dis-establishments thereof, and (3) prohibits 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.  The People of Virginia said, when they 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 abridgedrestrained 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]

12. But in Gitlow v. People (1925), judges on the supreme Court asserted – without any justification in Law or Fact – that the 14th Amendment (which applies to the States) 4 incorporates the First Amendment so that the First Amendment now restricts the powers of the States!  They 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 5 .…that the Fourteenth Amendment imposes no restrictions on the States concerning freedom of speech, as determinative of this question. (p. 666)  [emphasis added]

The judges’ new interpretationof the 14th Amendment became the weapon the Court has used to silence Christians and to seize Power over States & local governments. By claiming that the First Amendment restricts the powers of the States & local governments, 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 supreme Court used to usurp power and force their wills on all People in Our Land.

How the Supreme Court Re-defined the Historic Term,  “Establishment of Religion”.

13. We have seen that Benjamin Franklin, Alexander Hamilton, and James Madison said the distinguishing characteristic of an “established religion” was that the “established” denomination was supported by mandatory taxes or tithes, whereas “tolerated” denominations were supported by voluntary offerings of their adherents.

 

14. Now let us see how judges on the supreme Court re-defined “establishment of religion” in order to ban prayer in public schools.  Engel v. Vitale (1962), is the case where six men outlawed non-denominational 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 6 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 want 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”:

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.  They don’t have that right!  We have quoted Benjamin Franklin, Alexander Hamilton & James Madison as showing that the essence of an “established religion” is 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. 7

16. Well!  Since the evil from which the supreme Court in Engel 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 judges  on the supreme Court in Santa Fe Independent School Dist. v. Doe (2000).  Here, a public school district permitted, but did not require, student-initiated, student-led, nonsectarian, non-proselytizing 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! 8Furthermore, 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! Furthermore, the Constitution does not restrict religion to the “private sphere” – it forbids Congress from prohibiting its free exercise  ANYWHERE!

18. Again, the six judges in Santa Fe 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 Christian influence in the public square. But that is false. The phrase is nowhere in the Constitution, and it is not a constitutional principle. The First Amendment says Congress may not “legally establish one [religious] creed as official truth and support it with its full financial and coercive powers”;  9 and it may not prohibit the free exercise of religion or religious speech ANYWHERE.

21. We saw that in Connecticut, the Congregational Church was the established religion until Connecticut dis-established that Church with it’s Constitution of 1818.  Earlier, on October 7, 1801, Baptists in Danbury, Connecticut wrote a letter to President Thomas Jefferson 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 sentiments and dis-establish the Congregational Church in Connecticut.

22.  In his response dated January 2, 1802, 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 government ought not dictate to People in matters of religious belief, and pointed out that the First Amendment prevents Congressfrom doing this.  He did not say that religion must be relegated to the private sphere!  He used the First Amendment as his model – and it restricts only Congress, not religion.

Jefferson and the Danbury Baptists both knew the federal government had no authority to dis-establish Connecticut’s official Church.

23. An earlier Draft of Jefferson’s letter with 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 establishment 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]

24. Dr. Hutson’s article shows that on Sunday, Jan 3, 1802, right after Jefferson wrote the letter to the Danbury Baptists, he attended worship services in the House of Representatives, where John Leland, a Baptist minister and well known advocate of religious liberty, preached.  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 Christianity from our Country walk on a slender reed when they claim Jefferson as an ally.

25.  In Engel v. Vitale, Hugo Black said the reading 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).

Even though this metaphor of  “wall of separation between church and state” is nowhere in the Constitution, this Klansman turned supreme Court justice misrepresented it as a “constitutional” principle! 10

Furthermore, Hugo Black misapplied the metaphor:  The “wall of separation” metaphor doesn’t apply to what the N.Y. public schools were doing because The State of New York isn’t “Congress”; and New York, with it’s one sentence non-denominational prayer, wasn’t “establishing a religion” . What Jefferson’s metaphor applied to was an Act of Congress selecting a particular denomination (Roman Catholic or Episcopalian or Congregational or Presbyterian, or Baptist, etc., and forcing everybody to financially support that particular denomination with taxes or tithes.

Congress may not prohibit the “free exercise” of religion anywhere - neither may the supreme Court; and that Jefferson thought “religion” should influence those in civil government is clear from all those church services & celebrations of communion which were “constantly” held in the House of Representatives and the Executive Office Building!

Lawlessness on the Court.

26.  Let us summarize what the 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 purpose of the First Amendment so that it became the tool the Court uses 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 which has a distinct historical meaning, the Court from time to time re-defines the  term so as to describe the circumstances surrounding religious speech they don’t like so that they can 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 seek to force on us.

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 supreme Court would be if CONGRESS VIOLATED the First Amendment and Art. I., § 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 retained the rights to 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. Note this well:  Federal judges do not have “lifetime appointments”.  They serve during “good Behaviour” only (Art. III, §1).  The constitutional remedy for usurping federal judges is  impeachment, trial, conviction & removal.  Federalist No. 81 (8th para), A. Hamilton.

In the Year of our Lord, October 24, 2010 11

Publius Huldah.

Notes:   (Read them – they are interesting – you’ll  see!)

1 A History of the Congregational Churches in the United States, Williston Walker (1894), pp 114-149; Google digitized book.

2 A History of the United States: A Century of Colonial History, 1660-1760, Edward Channing (1908), pp 423- 454; Google digitized book.

3 Id.

4 The 14th Amendment (ratified 1868) 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…”

Professor Raoul Berger’s meticulously researched book, Government by Judiciary: The Transformation of the Fourteenth Amendment, proves that the purpose of the 14th Amendment was to protect freed slaves from southern Black Codes which denied them basic rights of citizenship. The 14th Amendment has nothing to do with silencing Christians!

John Whitehead’s essay, “The Fading Constitution”, in The Second American Revolution, Crossway Books (1982), shows 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.”  PH highly recommends Whitehead’s book to lawyers & laymen alike.

5 Just three years earlier, the supreme Court said in Prudential Ins. Co. v. Cheek (1922):

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. (page 543) [emphasis added]

Do you see?   First it doesn’t; then, three years later – it does!

 

6 Hugo Black, who wrote the majority opinion in Engel v. Vitale, was a New Deal Democrat, a former Ku Klux Klan member, a supporter of FDR’s court-packing scheme, & FDR’s first appointment to the supreme Court.

7 The majority opinion in Engel v. Vitale is also silly.  Between the time Hugo 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 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 & 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 approved.

2nd Premise: People in NY 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:

(a) 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 – and the fourth term, “establish a religion”, is introduced in the conclusion!!

(b) Black selected one of many activities engaged in by established religions – writing prayers – & concluded that anytime government performs that same activity, such constitutes an “establishment of religion”.  But established religions do many things – you can’t pick one of the things & say that if government does it, government “establishes a religion”!  That’s ridiculous!

(c) Our Founders said the defining characteristic of  “established religion” is that a particular denomination selected by 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.

8 They insert their personal views into their opinions and then, in later cases, cite those earlier personal views as authority!  This is preposterous and a classic example of the Rule of Men!  The judges’ sole authority is to decide cases properly before them; their decisions affect only the parties to the cases, and do not have the force & effect of “law” on anybody.  The Federalist No. 78, A. Hamilton.

9 “A Wall of Separation”,  by James Hutson.  The quote is in the next to the last paragraph.

10 Justice Stewart, who dissented, said in Engel v. Vitale:

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)

11 Art. VII, clause 2, U.S. Constitution, contains an express recognition of the Lordship of Jesus Christ.  Is that “unconstitutional”?  I think not – It is, after all, “in the Constitution”.

June 19, 2009; revised October 24, 2010

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June 19, 2009 Posted by | 1st Amendment, Danbury Baptists, Engel v. Vitale, establishment clause, free exercise clause, Hugo Black and the KKK, prayer in public schools, Separation of Church and State? | , , , , , | 48 Comments

   

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