Publius-Huldah's Blog

Understanding the Constitution

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]

Add to DeliciousAdd to DiggAdd to FaceBookAdd to Google BookmarkAdd to MySpaceAdd to NewsvineAdd to RedditAdd to StumbleUponAdd to TechnoratiAdd to Twitter

March 9, 2010 - Posted by | Rule of Law

15 Comments »

  1. [...] 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 [...]

    Pingback by The lie of “Separation of Church & State” « OurGenerationNow's Blog | October 26, 2010 | Reply

  2. @ Dennis Crumb

    “… you must know how closely entwined are philosophy and psychology …”

    Not really.

    Philosophy is the pursuit of knowledge.

    Psychology is the study of the spirit (from psyche and ology) which denies the spirit. It attempts to explain why man is driven insane by his environment (which actually isn’t true) by studying the brain.

    Victims can not cause much because they are at too great an effect of their environment and do not represent any real danger to our survival. So, for now, it doesn’t make sense to spend much time with them at the expense of not handling those who are a threat to our survival.

    Comment by Rich Florida | October 24, 2010 | Reply

  3. [...] 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 [...]

    Pingback by Is Christine O’Donnell is right-”Separation of Church and State” is NOT in the Constitution « www.offmyfrontporch.com | October 24, 2010 | Reply

  4. I honestly support everything you argued here. You are 100% right-on. For the most part you and I think alike, really. we only differ on who really the real Alexander Hamilton is. I see two Hamiltons and they really are at odd with each other. I understand that if I’m right what does that do to what he wrote in the Federalist. How can he say the right things in the Federalist yet hold contrary ideas about the role of government and the size of government and what he wrote be accepted argument? Does a chink in his armor destroy him? Was it just politics that made him write what he did in the Federalist or did he believe deeply in what he wrote? Does the one destroy the other? There really are not saints, just saintly people. We all are subject to feet of clay.

    Comment by Dennis G. Crumb | March 26, 2010 | Reply

    • I think you have reading things ABOUT Hamilton which are simply not true. That is why I generally do not read secondary sources. Why should I read what somebody says Hamilton believed, when I can read Hamilton’s own words and get it first hand? So you must judge Hamilton by what he said & did; NOT by what OTHER PEOPLE said he believed.

      Comment by Publius/Huldah | March 26, 2010 | Reply

      • I find myself in an interesting position, I could not agree with you more as I read what you have written, yet at the same time I do find points of disagreement with you. How can this be possible? I think I found the place where you and I bump heads: history. You are leaving history out of the equation. It is not enough to only read what someone wrote, you must step outside that person and take an objective look at them. There is nothing wrong with looking at secondary sources because they can give you that historical look, in fact, without this we don’t really have a complete picture.

        What you write about Federalism is absolutely true. How we define and understand words ought to remain consistent whenever and wherever they are used. Unfortunately that doesn’t happen and it doesn’t take generations for a word to have its meaning changed—like gay always meant happy but now our first thought when hearing the word we think “homosexual.” If I refuse to see this and accept it even though I think it wrong I will get into nothing but trouble.

        Federal government, central government, national government can and do have different meanings. Anti-Federalist cropped up not because they were opposing “federalism” but because federalism as a term was having its definition changed. Look at the history surrounding the Constitutional Convention, its ratification and its application in the new government, and you will find confusion of terms because different people were using the same terms in different ways.

        This is why I believe knowing our presuppositions is crucial because those foundational beliefs ultimately determine our behavior. To know who someone is it is important that we read and understand them through their entire body of writing. But also we must look at them through the eyes of others who experience them and look at their actions outside their writing for consistency or inconsistency.

        I don’t want to take Hamilton from you, nor do I want to minimize his political writings in the Federalist, but history shows me there is more to this man than just his writings and if I am to truly understand him I must know him from every angle.

        I don’t think we will ever find absolute common ground because you are very much a purist and I do admire that, but I am more a Realist and I do require of myself to look in every corner and then make my decisions.

        But I do enjoy your challenges and I hope to use them to further refine my thinking and philosophy.

        Comment by Dennis G. Crumb | March 26, 2010 | Reply

        • I minored in American history as an undergraduate. And I have seen where “patriots”, who have never read The Federalist Papers, slam Hamilton on the basis of what they have been told about him.
          This is never about agreeing with me. It is about learning the “original intent” of the Constitution! Since The Federalist Papers were written to explain the proposed Constitution to the People and to induce them to ratify it, it is the most authoritative commentary we have on the meaning of the Constitution. THAT is why I quote Hamilton & Madison all the time when I write about the Constitution. I’m not a psychologist! Their motivations, etc., are simply irrelevant when seeking the “original intent” of the Constitution. Only what they WROTE in the Federalist. And what they WROTE in the Federalist is pure gold.

          Comment by Publius/Huldah | March 26, 2010 | Reply

          • I will conclude by agreeing to disagree without being disagreeable. As a philosopher you must know how closely entwined are philosophy and psychology. If you so curtly dismiss motivation in hopes of vacuum packing one’s beliefs and think that is the only way to understand them you miss so much. Yes, I, anyone, must always read and study original documents. And trust that when earning two degrees in philosophy I knew and promoted reading original works, and all the writing one did. To understand what Adam Smith meant in The Wealth of Nations, you must read and understand The Theory of Moral Sentiments. To really appreciate William Blake’s poetry you must also read his philosophical writings. To understand Madison you must also read Locke, Rousseau, Montesquieu.

            Hamilton, Madison, Jay and all the Fathers were not born with preset minds. They are products of their past as well as their present. They are products of history and psychology.

            I believe in original intent in understanding not only what was written but how that intent has been changed. But to know that and what it means and how to correct wrong interpretations, knowing why is necessary because if we do not answer the why we will repeat the process.

            I do understand that modern law and modern logic wants to reduce everything down to it purist form so there can be no contrary argument. I just don’t find life so accommodating.

            Comment by Dennis G. Crumb | March 26, 2010

          • Regardless, I really do agree with your arguments on the Constitution. They are well argued and your conclusions support you evidence.

            Comment by Dennis G. Crumb | March 26, 2010

  5. My husband & I only filled out # of people in the house. Notice how that one question stood out from the rest of the questions.

    Well written article thank you and God bless

    Comment by Lori B | March 21, 2010 | Reply

    • Thank *you*, dear. And stay in touch!

      Comment by Publius/Huldah | March 21, 2010 | Reply

      • ;yea, aye, yea, yes..
        and the ‘word on the blogs’ is to
        mark other in #9 and write in American!!!!!!

        think that will frost their butts.. as we March them out of the Capitol and OUR White House.????

        PATRIOTS UNITE FIGHT FOR YOUR FREEDOMS NOW!

        this is an awesome site.. God bless you all!

        Comment by PROUD AMERICAN | March 21, 2010 | Reply

  6. I for one, will only give them the number of people in my household, PERIOD! Let them frog march me off to jail. I will howl so loud no one will mistake it. I will also refuse to willingly pay any such fine. It’s time to take a stand, may I remind you all what the Founders said, although I think on this blog, I probably don’t need to:

    And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.

    This spirit is what achieved independence for us the first time around, and is no less needed today.

    Comment by William | March 14, 2010 | Reply

  7. PH;
    Once again you have an excellent well researched, and well written article. Thank you.
    When I receive the 2010 Census in the mail, I am only going to answer question #1, and that is all. I hope a lot of people will do the same. It is time to put the chains back on the federal government.
    Henry

    Comment by Henry R | March 9, 2010 | Reply

  8. [...] Read the rest here: The U.S. Census: Rule of Law or Rule of Men? « Publius-Huldah's Blog [...]

    Pingback by The U.S. Census: Rule of Law or Rule of Men? « Publius-Huldah's Blog · Legal News – Your Source for Legal News and Advice | March 9, 2010 | Reply


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Follow

Get every new post delivered to your Inbox.

Join 792 other followers

%d bloggers like this: