Publius-Huldah's Blog

Understanding the Constitution

The Proposed “28th Amendment”: Another Terrible Idea

The proposed 28th Amendment reads:

Congress shall make no law that applies to the citizens of the United States that does not apply equally to the Senators and/or Representatives; and, Congress shall make no law that applies to the Senators and/or Representatives that does not apply equally to the citizens of the United States.

1.  Should we support this?  Let’s think it through:  Ours is a Constitution of “enumerated powers” only.  (See herein, “Congress’ Enumerated Powers”).

2. The problem is that Congress, the Executive Branch, and the Judicial Branch IGNORE the Constitution.

3. How would an Amendment fix this?  Why would any Branch of the federal government apply any such Amendment the way you think it should be applied?  How could any Amendment MAKE them obey the Constitution, when they don’t obey it now?

4.  The reasons they disobey the Constitution are these:  They want to, and We the People wanted them to.  Social security, Medicare, government grants, programs for farmers, earmarks, etc., are all unconstitutional as outside the scope of the enumerated powers of Congress. But we wanted the handouts – we wanted the pork.  So we didn’t care that what they were doing was unconstitutional.

5.  Now, listen carefully: The proposed 28th Amendment would have the effect of creating a “general” legislative power in Congress.  A “general” legislative power is the opposite of  enumerated powers only.  With the “general” legislative power created by the proposed 28th Amendment, Congress could make any law on any object as long as it applied to them as well as to us.

So, while you might think that the 28th Amendment will “show them” that they can’t pass laws for us and exempt themselves, the actual result of such an Amendment would be to destroy the concept of “enumerated powers” altogether. Plus, they would continue to ignore the Constitution!

6. Amendments to the Constitution are, in general, a really bad idea.  In Federalist No. 84 (10th para), Alexander Hamilton warned against “bills of rights” .  He said that not only are they unnecessary, they are dangerous - for they provide, to those disposed to usurp, a pretext for doing so.  He said:

I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.

Hamilton was right.  The U.S. Supreme Court has since used the 1st Amendment, which guarantees free exercise of religion & free speech, to BAN Christian speech in the public square.  (See herein, ” ‘The TRUTH about “Separation of Church and State’ “).  See also Citizens United v. Federal Elections Commission (2009) for a history of the Supreme Court’s 1st Amendment jurisprudence respecting political speech!  YES, they have long approved congressional restrictions on political speech!  Reconcile that with the text of the 1st Amendment!  You can’t.

The point is this:  The federal courts will construe any new Amendment however they want!

7. Our Constitution doesn’t need amending except to repeal some of the previous ill-considered Amendments such as the 16th & 17th.  Let’s not blame-shift and say our political problems are due to defects in the Constitution.  The defects are in our own plunder-loving hearts.

8. We fix our political problems by: (a) Learning the Constitution ourselves and, after we have learned it,  teaching it to others; (b) Supporting it and stop clamoring for unconstitutional handouts; (c) Electing people who will be faithful to the Constitution; (d) Demanding that our representatives impeach, try, convict and remove from office all who don’t; and (e) Returning to personal morality and personal responsibility.

March 26, 2010

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March 26, 2010 Posted by | 28th Amendment | 11 Comments

The U.S. Census: Rule of Law or Rule of Men?

By Publius Huldah

1. The American People have forgotten the most important Principle of our Founding: The distinction between the “Rule of Law” and the “Rule of Men”. This distinction was  illustrated in a discussion about the census questions between Megyn Kelly (Fox News) and Congresswoman Michele Bachmann (R. Minnesota) on June 25, 2009. Ms. Kelly illustrated the Rule of Men; Rep. Bachmann, the Rule of Law.

2. What is the “Rule of Law”?  The Rule of Law prevails when the civil authorities act in accordance with a body of Law which is established by a higher authority. The Preamble to The Constitution of the United States says it is ordained and established by WE THE PEOPLE of the United States. Thus, WE THE PEOPLE are the highest political authority in our Land.  It is OUR Constitution – WE ordained it – WE created the federal government; and the federal government has only those powers WE granted to it in The Constitution.[i]

Alexander Hamilton recognized in Federalist No. 33 (6th para), that the federal government is our “creature”, and WE are to judge the acts of the federal government using the “standard [we] have formed” – the Constitution. When the federal government departs from this standard, WE are to “take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify”.

Noah Webster’s American Dictionary of the English Language (1828), says under the entry for “Constitution”:

“…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.”

Do you see?  The Constitution is superior to Congress, and the Constitution limits and controls Congress’ powers! In Federalist No. 33 (last two paras), Hamilton said that acts of the federal government “which are not pursuant to its constitutional powers” are “merely acts of usurpation, and will deserve to be treated as such”; that only “laws made pursuant to the Constitution” will become part of the Supreme law of the land; and that laws which are not made pursuant to the Constitution “would not be the supreme law of the land, but a usurpation of power not granted by the Constitution.”

Our Founders were emphatic that ours is a Constitution of enumerated powers only.  In Federalist No. 45 (9th para), James 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…”[italics added] [ii]

So! The Rule of Law prevails when the people in the federal government obey The Constitution. When they act outside the enumerated powers, they abandon the Rule of Law – the Constitution – and embrace the Rule of Men.  And they are “the Men”.

3. Now let us see what the Constitution says about the census. Art. I, Sec. 2, clause 3, provides that an enumeration of the people shall be taken every 10 years for the purposes of apportionment of (1) direct Taxes and (2) Representatives to the House.

In Federalist No. 54, last para, James Madison explains the “salutary effect” of having a “common measure” [the number of people] for determining both the number of  Representatives for each State and the amount of the direct taxes each State is to pay: As the accuracy of the census depends on the cooperation of the States, the “common measure” discourages States from overstating or understating the numbers of their population.

The Constitution is clear, and Madison confirms it:  The purpose of the census is (1) to determine the number of Representatives for each State, and (2) to determine each State’s share of the direct taxes.  To these ends, we gave the federal government authority to ask us only the number of persons living in our homes (and whether any of us are Indians).

4. Now let us look at some of the questions on the 2010 census (short form) at  2010.census.gov. The questions are asked of every person who lives in your home:

In #3, they demand to know whether you own your home subject to a mortgage, whether you own it free & clear, whether you pay rent, or whether you live rent free.  The justification they give for asking is that the information is “used to administer housing programs and to inform planning decisions”.

In #s 4 & 5, they demand to know everybody’s full name and telephone number!

In #6, they demand to know everybody’s sex.  They say they ask because “many federal programs must differentiate between males and females for funding, implementing and evaluating their programs…”

In #7, they demand to know your age and date of birth.  They say they “…need data about age to interpret most social and economic characteristics, such as forecasting the number of people eligible for social security or Medicare benefits. The data are widely used in planning and evaluating government programs and policies that provide funds or services for children, working age adults, women of childbearing age, or the older population”.

In #8, they demand to know whether anyone in your home is of Hispanic, Latino, or Spanish origin.

In #9, they demand to know the race of everyone in your household.  The reasons they give for asking include, “to monitor racial disparities in characteristics such as health and education and to plan and obtain funds for public services.”

Housing programs? Planning decisions? Federal programs which differentiate between males & females? Social Security?  Medicare?  Other government programs for children, adults, childbearing women, or old people?  What’s this? Can anybody point to where these are among the enumerated powers of Congress?  No! These are powers which Congress has usurped.

5. Megyn Kelly and Michelle Bachmann both expressed disapproval of the intrusiveness of questions on the census [they may have been looking at the long form], and of ACORN’s involvement in gathering the information.  But Ms. Kelly brought up that a spokesperson for the Census Bureau said that “the US code says anyone over eighteen who refuses to answer any of the questions on the census can be fined up to $5000 dollars”.  Ms. Kelly asked Rep. Bachmann:

…so how do you respond to those who say, “…The law is what the law is and you as a lawmaker should know better than to break it.”

Rep. Bachmann answered:

“…I’m saying for myself and for my family, our comfort level is we will comply with the Constitution. Article one section two:  we will give the number of the people in our home. And that’s where we’re going to draw the line.”

Ms. Kelly then said:

“But Congresswoman, and let me just press you on this because that’s what the Constitution says, OK, you’ve got to give the number of people in your home. But as you know in this country we don’t live just by the Constitution; we have laws that people like you passed – and the US code – and I have it – says and the Census Bureau has got a point -  it says that anybody whoever over 18 years of age who refuses or willfully neglects to answer any of the questions on the schedule submitted to him in connection with the census shall be fined not more than $5000 dollars.  So that’s a law on the books. So why don’t you try to change the law as opposed to defying the one that already out there?”

So! Do you see? The federal government demands answers to questions which the Constitution does not permit them to ask, in order to administer programs which the Constitution does not authorize them to administer; and then they threaten you with a $5,000. fine if you don’t submit to their unconstitutional acts!  That is the Rule of Men.

Under the Rule of Law – The Constitution – they may ask no more than the number of persons who reside in your home.  That is all WE THE PEOPLE authorized them to ask at Art. I, Sec. 2, clause 3; hence, that is all that they may lawfully ask.  When they exceed the powers granted to them in The Constitution, they usurp powers and act lawlessly.

Alexander Hamilton understood that the People [that's us] are the “natural guardians of the Constitution”, and he expected us to be “enlightened enough to distinguish between a legal exercise and an illegal usurpation of authority” (The Federalist No. 16, 10th para).

Hamilton also said that acts of the federal government which are not pursuant to its constitutional powers are “merely acts of usurpation, and will deserve to be treated as such.” (The Federalist No. 33, 7th para). This is what it means to stand up for the Rule of Law!   Shall we defend our Constitution?  Many of us are already sworn by Oath to do so: Art. VI., clause 3.  Or will we cooperate with the lawless and bullying federal government in subverting it?

March 9, 2010


[i] This reflects the Biblical model where the king is under the Law of God. The king is never the source of Law!  See, e.g., Deut 17:18-20; 2 Kings 22:8-13, 23:1-3; and the passages where the prophets rebuked the kings). See also the classic work on political philosophy, Lex, Rex, or The Law And The Prince, by Samuel Rutherford (1644).  For the covenantal nature of civil government, see citations at footnote 5 at http://publiushuldah.wordpress.com/2009/06/29/us-criminal-code/

[ii] See also 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 sovereignty over all other objects…”; Federalist No. 14 (8th para) “…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…” & Federalist No. 27 (last para) “…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…” [italics added; caps in original]

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March 9, 2010 Posted by | Rule of Law | 15 Comments

   

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