By Publius Huldah
For 100 years, the federal government has usurped powers not delegated to it in our Constitution.
What should we do about it? Should we reclaim our existing Constitution and put an end to the usurpations?
Or should we “modernize” the Constitution by delegating to the federal government the powers it has usurped – so as to legalize what is now unconstitutional?
Mark Levin begins “The Liberty Amendments” by saying he doesn’t believe the Constitution requires “modernization through amendments”. But he then proposes a series of amendments, six of which modernize our Constitution to delegate to the federal government most of the powers it has usurped during the last 100 years.
And each of his six amendments does the opposite of what its title promises. I’ll show you. 1
Levin’s amendment to “limit the federal bureaucracy” [p 99-100 of his book]
George Washington’s cabinet had four members: Secretary of State, Secretary of War, Secretary of the Treasury, and Attorney General. Those functions are authorized by our Constitution. 2
But today there are numerous agencies in the Executive Branch of the federal government. Where is the constitutional authority? What Article, Section, and Clause authorizes the Departments of Agriculture, Education, Energy, Labor, Transportation, HHS, HUD, DHS, EPA, SBA, etc., etc., etc.?
There is no constitutional authority! Accordingly, all these agencies are unconstitutional as outside the scope of the powers delegated in our Constitution.
Well then, a person who wanted to “limit the federal bureaucracy” would demand that these agencies be closed, and their functions returned to the States and The People, right?
But Mark Levin doesn’t do this. Section 1 of his amendment legalizes all these agencies. It says:
“All federal departments and agencies shall expire if said departments and agencies are not individually reauthorized in stand-alone reauthorization bills every three years by a majority vote of the House of Representatives and the Senate.”
As long as Congress periodically “reauthorizes” the agencies – they remain.
Levin’s amendment thus changes the constitutional standard for whether an executive agency lawfully exists from whether it carries out an enumerated power [as in Washington’s Cabinet] to whatever the President wants and Congress agrees to. Do you see?
Now look at Section 2 of Levin’s amendment to “limit the federal bureaucracy”. It says:
“All Executive Branch regulations exceeding an economic burden of $100 million, as determined jointly by the Government Accountability Office and the Congressional Budget Office, shall be submitted to a permanent Joint Committee of Congress, hereafter the Congressional Delegation Oversight Committee, for review and approval prior to their implementation.”
Article I, §1, of our Constitution says only Congress may make laws. 3 But since Woodrow Wilson, executive agencies in the federal government have been churning out regulations which govern all aspects of our lives. These comprise the now gigantic Code of Federal Regulations.
All these regulations are unconstitutional as in violation of Art. I, §1! 4
Well then, one would expect that a person who wanted to “limit the federal bureaucracy” would demand the repeal of existing regulations and an end to all future rulemaking, right?
Not Levin! Section 2 of his amendment legalizes all existing regulations and the rule making process. Levin’s “fix” is merely to form a congressional committee to review certain regulations before they are imposed on the American People.
And so, federal executive agencies will continue to churn out millions of pages of regulations – but now, they will be constitutional because Levin’s amendment makes it all lawful.
Do you see? Levin’s amendment legalizes the status quo and does the opposite of what he claims.
Levin’s amendment “to limit federal spending” (p 73 -74)
Our Constitution limits federal spending to the enumerated powers. If you go through the Constitution and highlight the powers delegated to Congress or the President, you will have a complete list of the objects on which Congress may lawfully spend money. That is how our Framers controlled federal spending. It is the enumerated powers which limit spending – not the amount of revenue the federal government generates or the size of the GDP. Do you see?
The reason we have a crushing debt is because for 100 years, the federal government has ignored the limits – already set forth in the Constitution – on its spending.
Well then, a person who wanted to “limit federal spending” would demand that Congress begin to downsize the federal government and restrict spending to the enumerated powers, right?
But Levin doesn’t do this. Section 1 of his amendment legalizes all the spending which is now unconstitutional as outside the enumerated powers. It says:
“Congress shall adopt a preliminary fiscal year budget no later than the first Monday in May for the following fiscal year, and submit said budget to the President for consideration.”
Levin’s amendment thus legalizes the unconstitutional status quo where the President and Congress adopt a “budget” and spend money on whatever they put in the budget! Levin would permit Congress and the President to lawfully spend money on whatever they want – spending which is now unlawful because our Constitution doesn’t authorize it.
Furthermore, Levin’s amendment does nothing to control federal spending. While Sections 3 & 4 of his amendment pretend to limit spending to revenues or to a percentage of the GDP; Sections 6 & 7 permit Congress to suspend the spending limit and continue to raise the national debt. 5
Levin’s amendment “to limit federal taxing” (p 75)
Our Constitution doesn’t permit the federal government to levy taxes so that Congress and the President will have the funds to spend on whatever they want.
Congress may lawfully levy taxes only to raise the funds to carry out the enumerated powers. Article I, §8, clauses 1 & 2 say:
“The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common defense and general Welfare of the United States …” [and] “To borrow Money on the credit of the United States;”
Immediately after clauses 1 & 2 follows the list of enumerated powers we delegated to Congress for the Country at Large. 6
Add to this short list of enumerated powers, the “housekeeping powers” itemized elsewhere in the Constitution (e.g., the census); the salaries authorized by Art. I, §6, cl. 1; Art. II, §1, next to last clause; Art. III, §1, cl. 1, and others on the civil list; and you see the purposes for which Congress is authorized to levy and collect taxes, borrow money, and spend money, for the Country at Large. 7
So! Congress should not be levying taxes except to generate revenue for its constitutional functions. If Congress restricted its spending to those few powers delegated in the Constitution, the federal government would need very little money from us.
One would expect that a person who wants to “limit federal taxation” would demand that the federal government stop taxing to raise money to spend on unconstitutional purposes, right?
Not Levin! While his amendment limits the federal income tax to 15% of income – it institutionalizes the present practice where Congress lays & collects taxes for any purposes whatsoever. 8
Levin’s amendment “to protect private property” (p 137)
The federal government has no lawful authority to own land for any purpose other than those enumerated in the Constitution: Article I, §8, next to last clause, permits the federal government to own the District of Columbia [which was not to exceed “ten Miles square”], and Places purchased with the Consent of the State legislatures for the erection of forts, dock-Yards, and other needful buildings (e.g., federal courthouses, post offices) to carry out the enumerated powers.
The federal government has no lawful authority to own national parks, grazing areas, forests, and such. 9
And the federal government has no lawful authority to restrict peoples’ use of their own land. Nowhere in our Constitution did we delegate that power to the federal government! Accordingly, all federal laws and regulations (EPA, etc.) which pretend to restrict an owner’s use of his land are unconstitutional as outside the scope of powers delegated.
Furthermore, the States’ and local governments’ powers of eminent domain and other “takings” of private land are addressed in their own State Constitutions and laws. This is NOT a federal issue!
But Levin’s amendment “to protect private property” changes all of the above. It says:
“When any governmental entity acts not to secure a private property right against actions that injure property owners, but to take property for a public use from a property owner by actual seizure or through regulation, which taking results in a market value reduction of the property, interference with the use of the property, or a financial loss to the property owner exceeding $10,000, the government shall compensate fully said property owner for such losses.”
Changes the constitutional standard for federal ownership of lands from carrying out an enumerated power to whatever someone in the federal government deems a “public use” [which can be anything];
Legalizes what are now unconstitutional holdings of lands by the federal government – such as grazing lands;
Legalizes “takings” by regulation – restrictions via regulations on the use of private lands – by all levels of government;
Takes from the States and The People their retained powers over eminent domain and regulatory takings, and makes it a federal issue under the control of the federal government; 10 and
Provides that as long as a taking does not reduce the value of the property by more than $10,000, the governments don’t have to pay the property owner one red cent. So! If your local or State or federal government takes some of your land, or restrict its use by regulation, Levin’s amendment requires compensation to be paid if the “taking” exceeds $10,000. If the government decides that your loss is less than $10,000, you eat the loss. The amendment legalizes government theft of private property.
Levin’s amendment “to protect the vote” (p 183-184)
Before our Constitution was ratified, the States qualified & registered voters. Qualifications were set forth in their State Constitutions, and requirements differed from State to State. This power was expressly retained by the States with Art. I, §2, cl. 1, U.S. Constitution. 11
The four voting amendments reduced this retained power of the States, and delegated to the federal government power to stop States from denying suffrage to citizens on account of race (15th Amendment), sex (19th Amendment), failure to pay a tax (24th Amendment), or age for citizens eighteen years of age or older (26th Amendment).
Except as restricted by these four amendments, the States retain their pre-existing power to set qualifications for registering citizens to vote, as long as they do not deny it on account of race, sex, failure to pay a tax, or age for those 18 years or more. States remain free to deny registration on other grounds – such as conviction of a felony or illiteracy. And of course, States retained power to restrict voting to citizens!
But the retained powers of the States to set voter qualifications for registration were diminished far beyond the scope of the amendments, due to usurpations by the federal government, and because the States forgot that they retained at Art. I, §2, cl. 1 most of their original power to qualify & register voters.
In Arizona’s Proposition 200: What The Constitution Really Says About Voter Qualifications & Exposing The “Elections Clause” Argument, I show how the federal government infringed upon the States’ retained powers over voter qualifications & registration; and how the two judges in that case wrongly ruled that Arizona could not require applicants for registration to provide proof of citizenship!
So! What should we do about non-citizens voting? Here is a novel idea: The States should man up and reclaim their powers retained by Art. I, §2, cl. 1; tell Eric Holder to take a hike; require all currently registered voters to provide proof of citizenship; and refuse to register new voters unless they provide proof of citizenship. Enforce the Constitution we have!
But Section 1 of Levin’s amendment “to protect the vote” says:
“Citizens in every state, territory, and the District of Columbia shall produce valid photographic identification documents demonstrating evidence of their citizenship, issued by the state government for the state in which the voter resides, as a requirement for registering to vote and voting in any primary or general election for President, Vice President, and members of Congress.”
Levin’s amendment (it has 5 Sections) rewards the federal government for unlawfully forbidding States from requiring applicants to prove they are citizens, by transferring more power over voter qualifications & registration to the federal government. 10
But Levin’s amendment does even more harm than vesting in the federal government a power it already usurped – it ushers in a national ID card. Who thinks the feds won’t dictate the contents of the card and keep copies? [Do you really think a national ID card is a great idea?]
To add insult to injury, Levin’s amendment doesn’t even prohibit non-citizens from voting – it merely requires citizens to get an ID card before they can register to vote. Non-citizens are not required to get ID cards. The supreme Court (which will now lawfully have judicial power over this issue) will decide whether aliens can vote.
Levin’s amendment “to promote free enterprise” (p 117)
In Federalist No. 22 (4th para) and Federalist No. 42 (11th &12th paras), Hamilton & Madison explain the original intent of the “interstate commerce” clause: It is to prohibit States from imposing tolls & tariffs on articles of merchandize as they are transported through the States for purposes of buying and selling. Until the mid-1930’s, this was widely understood. Here is a full proof of the original intent of that clause and the story of how the supreme Court usurped power over interstate commerce.
The original intent of that clause is still the supreme Law of the Land! 12 So the States must man up and enforce that original intent. They must ignore – nullify – all pretended federal laws, regulations, and judicial opinions which are contrary to that original intent.
Levin’s amendment “to promote free enterprise” says:
“SECTION 1: Congress’ power to regulate Commerce is not a plenary grant of power to the federal government to regulate and control economic activity but a specific grant of power limited to preventing states from impeding commerce and trade between and among the several states.”
“SECTION 2: Congress’s power to regulate Commerce does not extend to activity within a state, whether or not it affects interstate commerce; nor does it extend to compelling an individual or entity to participate in commerce or trade.”
Section 1 broadens the powers of the federal government from prohibiting States from imposing tolls & tariffs on articles of merchandize as they are transported through the States for purposes of buying and selling, to prohibiting the States from doing anything which “impedes” commerce and trade between and among the States.
Many things can be said to “impede” commerce and trade. And who will decide what “impedes” and what doesn’t “impede”? Five judges on the supreme Court.
Section 2 mentions two instances where Congress’ power to regulate Commerce does not extend. This is dangerous because of the legal maxim, Expressio Unius Est Exclusio Alterius (the expression of one thing is the exclusion of the other).
Accordingly, Congress’ power to regulate commerce would extend to other instances. Which ones? We don’t know – the supreme Court will decide – on a case by case basis.
Levin’s amendments legalize – make constitutional – the very abuses they purport to correct, nullify the natural rights of the people, and fundamentally change the constitutional design.
Even though our Constitution is not being enforced, it still declares this federal government lawless! The true rule of law is still on our side, 13 but not for much longer if we foolishly allow our Constitution to be re-written.
1 Telling the Truth about a person’s proposals isn’t “demonizing” him. People angrily reject valid criticism of Levin’s proposals because they have made an idol of him. If their loyalty were to Truth – instead of to their idol – they would want to be set straight.
2 Article II, §2, and:
Secretary of State: Art. I, §8, cl. 3
Secretary of Treasury: Art. I, §2, cl. 3; Art. I, §8, cl. 1; Art. I, §9, cl. 4-7; Art. VI, cl. 1
Secretary of War: Art. I, §8, clauses 11-14
Attorney General: Art. I, §8, cl. 6, 10 & 17; Art. III, §§2 & 3; Art. IV, §2, cl.2
3 Article I, §1, says: “All legislative Powers herein granted shall be vested in a Congress of the United States…” [emphasis mine]
4 They are also unconstitutional as outside the scope of powers delegated to the federal government.
5 I explain the problems with “balanced budget” amendments here.
6 These are the enumerated powers over the Country at Large listed at Art. I, §8:
Clause 3: regulate “commerce” [For the Truth about the “commerce clause”, go here];
Clause 4: uniform laws on naturalization and bankruptcies;
Clause 5: coin money & regulate its value, and fix standard of weights & measures;
Clause 6: punish counterfeiting;
Clause 7: establish post offices & post roads;
Clause 8: issue patents & copyrights;
Clause 9: set up federal courts inferior to the supreme court;
Clause 10: punish piracies & felonies on the high seas and offenses against the Law of Nations;
Clauses 11-14: war, letters of marque & reprisal, Army & Navy, and rules for the military
Clause 15-16: the Militia.
7 The anti-federalists objected to Art. I, §8, cl. 1 & 2. They claimed:
“…the power ‘to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,’ amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare.”
James Madison answered in Federalist No. 41 (last 4 paras) that clauses 1 & 2 permit Congress to levy taxes & borrow money only to carry out the enumerated powers! Madison said:
“Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it… But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? … Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning … is an absurdity…” [boldface mine]
So! Article I, §8, cl.1 is merely a “general expression”, the meaning of which is “ascertain[ed] and limit[ed]” by the clauses which “immediately follow” it. In other words, clauses 1 & 2 grant to Congress the power to raise money; and clauses 3-16 enumerate the objects on which Congress may appropriate the money so raised, thus limiting clauses 1 & 2. Do you see?
8 Levin’s amendment also corrects – on behalf of the feds – the following: When the 16th Amendment was ratified, “income” apparently didn’t include “wages”. Accordingly, it would be unconstitutional to force people to pay “income” taxes on “wages” – and such would thus be a proper object of nullification by States. But Levin’s amendment legalizes the status quo and rips this remedy from the States.
9 When our Constitution was ratified, the new federal government acquired (from its predecessor) the Western Territory (Federalist No. 7, 2nd & 3rd paras, and Federalist No. 43 at 5.) over which the new federal government was delegated, by Art. IV, §3, general legislative powers. As the Territory was broken up into new States, the general legislative powers would expire and sovereignty [except as to the few powers delegated exclusively to the new federal government] would be transferred to the new State.
10 Amendments to the Constitution generally increase the powers of the federal government: They usher in implementing federal statutes & executive agency regulations, and judicial power over the issue is transferred to the federal courts. Art. III, §2, cl.1, says, “The judicial Power shall extend to all Cases … arising under this Constitution …” Do you really not see?
11 Article I, §2, cl. 1, says:
“The House of Representatives shall be composed of members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.” [boldface mine]
So! Whoever votes in elections for their State House, is eligible to vote for members of the federal House of Representatives. See also Federalist No. 57 (5th para) & Federalist No. 52 (2nd para).
12 Article VI, cl. 2, the “supremacy clause”, states that only our Constitution, federal laws made “in Pursuance” of the Constitution, and Treaties made “under the Authority of the United States”, shall be the supreme Law of the Land. Supreme Court opinions are NEVER part of the supreme Law of the Land! But we have wrongly made them the only Law of our Land.
13 What is “the Rule of Law”? What is the Rule of Man?
Our Constitution is based on God’s model for civil government as set forth in the Bible. The foundational Principle of God’s model is that the civil authorities are under the law. God is The Lawmaker – the kings are to apply God’s Law:
Deut. 17:18-20: The king is to write out a copy of God’s Law. He is to have it by him and read from it all his life so that he may keep, observe, and apply it.
1 Kings 2:1-4: King David on his deathbed tells Solomon he must conform to God’s ways, and observe his statutes, commandments and judgments, as written in the Law of Moses.
The parallel in our Constitution is that the Constitution is the Supreme Law which the civil authorities are to obey. Noah Webster’s 1828 American Dictionary defines “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.”
So our Constitution is the Standard by which the validity of all Acts of Congress, all acts of the Executive Branch, all judicial opinions, and all Treaties is measured and judged (Art. VI, cl. 2).
So law comes from a higher source than the civil authorities. The “Rule of Law” prevails when the civil authorities obey that higher Law – be it God’s Law or our Constitution.
Tyrants, on the other hand, claim that they are the source of law. The Roman Caesars, Stalin, Hitler, the dictator of N. Korea and Obama all claim that their will is “law”. Consider Obama’s usurpatious executive orders and rules made by his executive agencies. This is the “Rule of Man” – when the civil authorities deny they are subject to a higher law (be it God’s Law or the Constitution), and hold that their will is “law”. Do you see? PH
Arizona’s Proposition 200: What The Constitution Really Says About Voter Qualifications & Exposing The “Elections Clause” Argument.
By Publius Huldah.
In the recent opinion of the Ninth Circuit Court of Appeals in Gonzalez v Arizona 200, *** Judges Sandra S. Ikuta & Sandra Day O’Connor overturned an initiative (Proposition 200) passed by the People of Arizona which … [prepare yourself] … requires Arizona “residents” who apply to register to vote, to provide … [this is really quite shocking] … documentary proof of citizenship! Yes, THE PEOPLE OF THE STATE OF ARIZONA, which has been overrun with illegal Mexican aliens, want to ensure that only citizens vote.
But Ikuta & O’Connor say The people of Arizona may not do that. Those two judges say that Proposition 200 is void as inconsistent with the National Voter Registration Act of 1993, 42 U.S.C. § 1973gg (NVRA), the “central purpose” of which is “to increase voter registration by streamlining voter registration procedures” (Opinion p. 30). 1 The NVRA does not require applicants for voter registration to provide documentary proof of citizenship. Therefore, say Ikuta & O’Connor, the STATES may not require it.
Nonsense! I will show you that the NVRA is unconstitutional as outside the legislative powers granted to Congress by the Constitution. It is also contrary to Art. I, Sec. 2, cl. 1, U.S. Constitution, which shows that prescribing qualifications & registration of voters is a pre-existing power expressly reserved by the States!
Congress is granted by Art. I, Sec. 4, cl. 1, a very limited power over the “holding” of “Elections”: This is the so-called “elections clause” which the federal government is using to gobble up Art. I, Sec. 2, cl.1. But the federal government acts unlawfully because the “elections clause” is expressly restricted to “The Times, Places and Manner of holding Elections” – it does not extend to prescribing qualifications & registration of voters.
The U.S. Constitution Enshrines the Pre-existing Practice Where THE PEOPLE of The STATES Qualify & Register Voters.
1. Article I, Sec. 2, clause 1, U.S. Constitution, says:
The House of Representatives shall be composed of members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature. [emphasis added]
The words in bold face tell us THE STATES set the qualifications for electors ["voters"]: Whoever votes in elections for the State House, is eligible to vote for members of the federal House of Representatives.
Alexander Hamilton or James Madison [it is not certain which is author] confirms this in Federalist Paper No. 52 (2nd para):
The first view to be taken of …[the House of Representatives] relates to the qualifications of the electors [voters] and the elected. Those of the former are to be the same with those of the electors of the most numerous branch of the State legislatures. The definition of the right of suffrage is very justly regarded as a fundamental article of republican government. It was incumbent on the convention, therefore, to define and establish this right in the Constitution. To have submitted it to the legislative discretion of the States, would have been improper for the same reason; and for the additional reason that it would have rendered too dependent on the State governments that branch of the federal government which ought to be dependent on the people alone. To have reduced the different qualifications in the different States to one uniform rule, would probably have been as dissatisfactory to some of the States as it would have been difficult to the convention. The provision made by the convention appears … to be the best that lay within their option. It must be satisfactory to every State, because it is conformable to the standard already established, or which may be established, by the State itself. It will be safe to the United States, because, being fixed by the State constitutions, it is not alterable by the State governments, and it cannot be feared that the people of the States will alter this part of their constitutions in such a manner as to abridge the rights secured to them by the federal Constitution. [emphasis added]
In Federalist No. 57 (5th para) Hamilton [or Madison] say:
Who are to be the electors of the federal representatives? …The electors … are to be the same who exercise the right in every State of electing the corresponding branch of the legislature of the State. [emphasis added]
Do you see? Before the U.S. Constitution was ratified, THE PEOPLE OF THE STATES qualified & registered voters; these qualifications WERE SET FORTH IN THEIR STATE CONSTITUTIONS, and they differed from STATE to STATE. This is the practice which was enshrined in Art. I, Sec. 2, cl. 1, U.S. Constitution.
2. So! Everyone understood that in the U.S. Constitution, the States – or rather, THE PEOPLE OF THE STATES by means of their State Constitutions – retained authority to qualify & register voters.
Accordingly, even though Sec. 1 of the 14th Amendment (ratified 1868) made citizens of the freed slaves, they still couldn’t vote unless their States let them. Section 2 merely said that if a State denied suffrage to such new citizens, then the State’s population number for purposes of apportioning Representatives would be reduced.
Thus, in 1868, everyone still understood that THE STATES had reserved the power over qualification & registration of voters.
The Amendments to the U.S. Constitution Addressing Suffrage.
3. Everyone understood that Congress couldn’t simply make a law requiring the States to register former slaves to vote. The Constitution had to be amended to mandate black suffrage. Hence, the 15th Amendment (ratified in 1870) says the right of citizens to vote shall not be denied “on account of race, color, or previous condition of servitude”.
4. Now let us look at the 17th Amendment (ratified 1913) which provides for the popular election of U.S. Senators. 2 Clause 1 reiterates the Principle in Art. I, Sec. 2, cl.1, that qualifications for electors [voters] are set by THE STATES:
The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislature. [emphasis added]
See? In 1913, everyone still understood that THE STATES decide who may vote, subject to any Amendments (such as the 15th), which extend suffrage to categories of citizens.
5. Thereafter, additional such Amendments provided that the right of citizens to vote shall not be denied or abridged on account of sex (19th Amendment, ratified 1920), failure to pay any tax (24th Amendment, ratified 1964), or age for citizens who are eighteen years of age or older (26th Amendment, ratified 1971).
The reason for the Amendments was this: Everyone understood that Congress has no authority to make laws requiring STATES to register blacks, women, tax avoiders, or children! The States retain complete control over the qualification and registration of voters except as relinquished by the States by means of Amendments to the U.S. Constitution ratified by three fourths of the States (Art. V).
What the U.S. Constitution, As Amended, Now Says about Qualifications of Voters
6. So! Under Art. I, Sec. 2, cl. 1; the 17th Amendment, cl. 1; and the 15th, 19th, 24th, & 26th Amendments, The People of the States may set whatever qualifications they like for registering citizens to vote, as long as they do not deny it to any citizen on account of race (15th Amendment), sex (19th Amendment), failure to pay a tax (24th Amendment), or age for those 18 years or more (26th Amendment). States are free to deny registration to black citizens, female citizens, tax avoider citizens, and citizens over the age of 18 on other grounds – such as conviction of a felony, or illiteracy in English. 3 States may require, as a condition to registering to vote, that citizens pass a Logic test, outline The Federalist Papers, take an Oath to support the Constitution, and recite the Declaration of Independence by Heart! States may prohibit welfare recipients – the “Take It From Somebody Else And Give It To Me” block – from voting altogether. 4 The only way the federal government can lawfully force any one State to register the illiterates, the irrational, the ignorant, the welfare parasites, or invading Mexican aliens, is by Constitutional Amendment ratified by three fourths of the OTHER States (Art. V).
The Dishonest “Elections Clause” Argument.
7. Today, liberals/progressives and their minions & pawns have infiltrated our Institutions and seized the political Power. In order to fundamentally transform the Constitutional Republic our Framers gave us into a global totalitarian dictatorship, they must increase their voter base until their system is fully in place. Because the American People are opposing this unconstitutional transformation, they need a new ignorant, illiterate underclass who will sell their votes for welfare handouts. This is why they want Mexican invaders to vote, be they citizens or not. 5
8. Accordingly, the federal government is using Art. I, Sec. 4, cl.1, the “elections clause”, to strip the People of the STATES of their power (reserved by Art. I, Sec. 2, cl. 1 & the 17th Amendment, cl. 1) to qualify & register voters.
The “elections clause” (Art. I, Sec. 4, cl.1) says:
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.[emphasis added]
Times? Places of Chusing Representatives? Manner of “holding Elections”? What do these have to do with qualifying & registering voters? In Federalist No. 60 (next to last para), Hamilton explains that prescribing qualifications of the voters
….forms no part of the power to be conferred upon the national government. Its authority would be expressly restricted to the regulation of the TIMES, the PLACES, the MANNER of elections. The qualifications of the persons who may choose or be chosen, as has been remarked upon other occasions, are defined and fixed in the Constitution, and are unalterable by the legislature. [capitals are Hamilton's; other emphasis mine]
Fancy that! Article I, Sec. 4, cl. 1, means what it says: Congress’ authority is restricted to the “times”, “places”, & “manner” of “holding elections”! And Congress’ authority does not extend to prescribing qualifications of electors: That is “defined and fixed” in Art. I, Sec. 2, cl. 1, and is “unalterable” by Congress.
Perhaps because Hamilton foresaw a day when we would be plagued with Congressmen and federal judges too ignorant, sloppy, or dishonest to adhere to the plain & obvious meanings of “time”, “place”, & “manner”, he spelled it out in Federalist No. 61:
“TIME” refers to when elections are held. Hamilton explains that States had been conducting elections from March to November; and that uniformity in the time of elections is necessary “for conveniently assembling the [federal] legislature at a stated period in each year” (4th & 5th paras).
“PLACE”: Hamilton points out that the suffrages of citizens 6living in certain parts of the States could be defeated by restricting the place of election for Representatives in the House to “an INCONVENIENT DISTANCE from the elector” (2nd para).
James Madison discusses “MANNER of holding Elections” in The Records of the Federal Convention of 1787, vol. 2, THURSDAY, AUGUST 9, 1787. [here]
Mr. Madison: … the Legislatures of the States ought not to have the uncontrouled right of regulating the times places & manner of holding elections. These were words of great latitude. It was impossible to foresee all the abuses that might be made of the discretionary power. Whether the electors should vote by ballot or vivâ voce, should assemble at this place or that place; should be divided into districts or all meet at one place, shd all vote for all the representatives; or all in a district vote for a number allotted to the district; these & many other points would depend on the Legislatures. and might materially affect the appointments …. what danger could there be in giving a controuling power to the Natl. Legislature? Of whom was it to consist? 1. of a Senate to be chosen by the State Legislatures…. 2. of Representatives elected by the same people who elect the State Legislatures… [emphasis added]
Rufus King in the Massachusetts Convention said: [The Records of the Federal Convention of 1787, vol. 3, January 21, 1788 [here]:
Hon. Mr. King rose to pursue the inquiry, why the place and manner of holding elections were omitted in the section under debate. It was to be observed, he said, that in the Constitution of Massachusetts, and other States, the manner and place of elections were provided for; the manner was by ballot, and the places towns; for, said he, we happened to settle originally in townships… [emphasis added]
And so WE see that “MANNER of holding Elections” refers to such things as paper ballots or show of hands, the place of voting, & whether the States will be divided into congressional districts for purposes of electing Representatives.
9. “Holding Elections”is the actual voting part of the process. Webster’s American Dictionary (1828), defines “Election”:
The act of choosing; choice; the act of selecting one or more from others…The act of choosing a person to fill an office or employment, by any manifestation of preference, as by ballot, uplifted hands or viva voce; as the election of a king, of a president, or a mayor.
So! Now YOU know exactly what Art. I, Sec. 4, cl. 1 means. Now, let us see what the Ninth Circuit did to Our Constitution.
The Ninth Circuit’s Opinion in Gonzalez v. Arizona 200
10. The majority opinion is a tangled web of 62 pages. I address three points: (a) They misrepresented what Alexander Hamilton & James Madison actually said; (b) They ignored Art. I, Sec. 2, cl. 1; and (c) They rewrote Art. I, Sec. 4, cl. 1.
(a) Five of the Federalist Papers specifically address Art. I, Sec. 2, cl. 1 & Art. I, Sec. 4, cl. 1: Federalist No. 52, 57, 59, 60, & 61. This paper honestly sets forth the gist of what these five Papers say [still, read them yourselves]. 7
But Ikuta & O’Connor ignored the passages this paper brings to your attention, and selected only the following two quotes from Federalist No. 59 (and one from No. 33 where they misrepresented what Hamilton said about the “supremacy clause”) 8On page 15, in support of their assertion that
… The Framers decided that Congress should be given the authority to oversee the states’ procedures related to national elections as a safeguard against potential state abuse. See U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 … [emphasis added]
they quote from Federalist No. 59:
…[n]othing can be more evident, than that an exclusive power of regulating elections for the national government, in the hands of the State legislatures, would leave the existence of the Union entirely at their mercy…
On page 16 at footnote 8, they say:
Alexander Hamilton described the need for congressional oversight of the states as follows: “[The Framers] have submitted the regulation of elections for the federal government, in the first instance, to the local administrations; which, in ordinary cases, and when no improper views prevail, may be both more convenient and more satisfactory; but they have reserved to the national authority a right to interpose, whenever extraordinary circumstances might render that interposition necessary to its safety.” The Federalist No. 59.
That’s it! No mention of Federalist Nos. 52, 57, 60 & 61 which are quoted above. Isn’t that odd? Furthermore, Federalist No. 59 is the first of a sequence of three papers which focus on Art. I, Sec. 4, cl. 1; and in this introductory paper, Hamilton explains why Congress must have the power granted by Sec. 4: Otherwise, everyelection might result in the dissolution of the Union, if States prevented an election. And as YOU have already seen, the meat of Hamilton’s discussion of Sec. 4 is in Nos. 60 & 61.
Ikuta & O’Connor next imply (page 16) that James Madison’s words at the Federal Convention of 1787 support their assertion that
…the Framers approved language giving Congress power to “make or alter” the states’ regulations. See 5 Elliot’s Debates 401-02 (statement of James Madison)…
5 Elliot’s Debates 401-02 is just a different edition of The Records of the Federal Convention of 1787, vol. 2, THURSDAY, AUGUST 9, 1787. [here], which is quoted at length above. And Madison is quite clear that the “Natl. Legislature['s]” “controuling power” is only over “the times places & manner of holding elections“; he illustrates what that phrase means; and he reminds us that no “danger” could come of it because the “Natl. Legislature” consists “of a Senate to be chosen by the State Legislatures” and “of Representatives elected by the same people who elect the State Legislatures” [via Art. I, Sec. 2, cl. 1].
This is what Madison actually said [read it yourself!]. So the Ninth Circuit’s statement that Madison said Art. I, Sec. 4, cl. 1 gave to Congress the much broader power to make or alter the states’ “regulations”or the “mechanics of federal elections” is simply false.
(b) Not only did Ikuta & O’Connor ignore Art. I, Sec. 2, cl. 1, they embraced and perpetuated a monstrous falsehood:
As shown above in Federalist No. 52 (2nd para), which discusses Art. I, Sec. 2, cl. 1, the States retained their preexisting power to qualify & register voters. The Framers expressly declined to reduce “the different qualifications [for voters] in the different States to one uniform rule”, and theydrafted a clause [Art. I, Sec. 2, cl. 1] which “is conformable to the standard already established,or which may be established, by the State itself.”
In spite of this, Ikuta & O’Connor said on page 16:
…the authority to regulate national elections “aris[es] from the Constitution itself,” and is therefore “not a reserved power of the States.” U.S. Term Limits, 514 U.S. at 805. Because federal elections did not come into being until the federal government was formed, individual states have no inherent or preexisting authority over this domain. See d. at 804-05. [emphasis added]
And on page 19:
… the states’ sole power over national election procedures is that delegated by the Elections Clause, U.S. Term Limits, 514 U.S. at 805, and states otherwise have no reserved authority over this domain … [emphasis added]
Do you see? Their claim that the states have “no inherent or preexisting authority” or “reserved authority” over qualifications & registration of voters, is demonstrably FALSE.
Many lawyers will say the Ninth Circuit has no choice but to follow the supreme Court in U.S. Term Limits, Inc. v. Thornton, 9 and other such opinions. But that is not true. Our Oath of Office is to support The Constitution – not to obey the supreme Court (Art. VI, cl. 3). Are we stupid sheep who blindly follow the supreme Court? Or can we become bold men & women who think for ourselves and obey The Constitution?
Furthermore, supreme Court opinions are NOT “law” – they are decisions in cases. The “supreme Law of the Land” is expressly restricted to The Constitution and to those Acts of Congress and treaties which are made pursuant to the Constitution. (Art. VI, cl. 2).
(c) Finally, let us see how Ikuta & O’Connor rewrote Art. I, Sec. 4, cl. 1. As you know, that clause actually says:
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.[emphasis added]
Now watch as they transform “Times, Places and Manner of holding Elections” into an unlimited grant of power to Congress to do precisely what Hamilton said “forms no part of the power to be conferred upon the national government” (Federalist No. 60, next to last para):
On p.15 of their Opinion, they said:
… the Elections Clause gives state governments initial responsibility to regulate the mechanics of national elections, “but only so far as Congress declines to preempt state legislative choices.” Foster v. Love, 522 U.S. 67, 69 (1997) …[emphasis added]
Also on page 15:
… The Framers decided that Congress should be given the authority to oversee the states’ procedures related to national elections … See U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 808-09 (1995)…[emphasis added]
On page 17:
… Not only does the Elections Clause grant Congress authority to supersede state election laws… [emphasis added]
On pages 17 & 18:
…a state’s role in the creation and implementation of federal election procedures under the Elections Clause is to administer the elections through its own procedures until Congress deems otherwise; if and when Congress acts, the states are obligated to conform to and carry out whatever procedures Congress requires. See Foster, 522 U.S. at 69 [emphasis added]
On page 20:
… Because the Elections Clause empowered Congress to enact the NVRA, Wilson, 60 F.3d at 1414…[emphasis added]
On page 25:
…Under the Elections Clause, Congress had the power “to provide a complete code for congressional elections, not only as to times and places, but in relation to . . . registration.” Smiley v. Holm, 285 U.S. 355, 366 (1932)…[emphasis added]
On page 34:
… Given that the Elections Clause gives Congress ultimate authority over the federal voter registration process, Colgrove, 328 U.S. at 554… [emphasis added]
So! These judges rewrote Art. I, Sec. 4, cl. 1 in order to uphold the NVRA which purports to give Congress total control over voter qualification & registration!
11. In Federalist No. 60 (1st, 4th, & next to last para), Hamilton discusses the concern that Art. I, Sec. 4, cl. 1, might be used by the federal government “in such a manner as to promote the election of some favorite class of men in exclusion of others” via regulation of the “places”, “time and manner” of elections. Hamilton says this would never happen because:
…qualifications…for those who may elect or be elected …forms no part of the power to be conferred upon the national government. Its authority would be expressly restricted to the regulation of the TIMES, the PLACES, the MANNER of elections. The qualifications of the persons who may choose or be chosen, as has been remarked upon other occasions, are defined and fixed in the Constitution, and are unalterable by the legislature [Congress] [emphasis added]
But the liberals/progressives and their minions & pawns are using Art. I, Sec. 4, cl. 1 to gobble up Art. I, Sec. 2, cl. 1 in order to mandate the extension of suffrage to existing welfare recipients and to other notorious consumers of welfare handouts (e.g., Mexican aliens), in order “to promote the election of some favorite class of men in exclusion of others”. And who is this “favorite class of men” whom they want elected? More liberals/progressives.
But Congress has no authority to make laws which “increase voter participation”. Congress’ authority is expressly restricted to the “Times, Places, and Manner of holding Elections”, and Hamilton & Madison show us exactly what that means.
Hamilton says that if the federal government were to attempt such a thing, it would cause “an immediate revolt of the great body of the people, headed and directed by the State governments” (2nd & last paras). Do we have the courage to stand up and honor our Oaths to support The Constitution?
12. THE PEOPLE OF THE STATE OF ARIZONA are well within their pre-existing, reserved, & retained rights, enshrined by Art. I, Sec. 2, cl. 1, to require applicants for voter registration to provide documentary proof of citizenship. Qualification & registration of voters “forms no part of the power to be conferred upon the national government” (Federalist No. 60, next to last para). PH.
*** The 9th Circuit Opinion I discuss herein was issued during October 2010; but has been removed from the site I linked to. That was a 9th Circuit site – so perhaps shame at the dishonesty of their opinion prompted its removal. One can always hope.
1 The majority opinion sets forth the gist of the National Voter Registration Act:
The NVRA is a comprehensive scheme enacting three significant changes to federal election registration procedures nationwide: (1) it creates a standard “Federal Form”…for registering federal voters; (2) it requires states to establish procedures to register voters for federal elections according to three prescribed methods; and (3) it regulates maintenance of voting lists. See 42 U.S.C. § 1973gg et seq. (p. 25)
…the NVRA requires states to make registration opportunities widely available, at the motor vehicle bureau, § 1973gg-3, by mail, § 1973gg-4, and at public assistance, disability service, and other designated state offices, § 1973gg-5 … the NVRA eases the burdens of completing registration forms. At the motor vehicle authority, for instance, voter registration must be included as part of the driver’s license application and the combined form cannot require duplicative information. § 1973gg-3(c)(2)(A). The NVRA also regulates the Federal Form to meet its goal of eliminating obstacles to voter registration. See§ 1973gg(b)(1)-(2). Thus, the NVRA forbids the EAC from including any identifying information beyond that “necessary to enable the appropriate State election official to assess the eligibility of the applicant and to administer voter registration and other parts of the election process.” § 1973gg-7(b)(1)… (p. 30)
2 Art. I, Sec. 3, cl.1, said U.S. Senators were to be chosen by State Legislatures. This is how STATES – the Members of the Federation – had their representatives in Congress!
In Federalist No. 62 (3rd & 6th paras), Hamilton [or Madison] says Senators are to be appointed by State legislatures in order to secure the authority of the States in the federal government, and as protection against “improper acts of legislation”:
No law or resolution can now be passed without the concurrence, first, of a majority of the people [via the House of Representatives], and then of a majority of the States [via Senators appointed by their State legislatures].
Because The People allowed themselves to be manipulated into supporting the 17th Amendment, THE STATES lost their representation in Congress, the sovereignty of THE STATES was destroyed, “federalism” was obliterated, and we morphed into a Country with an unconstitutional national, & increasingly totalitarian, government.
3 The federal government banned STATE literacy requirements for voting, claiming that they disproportionally disenfranchised black citizens (Apparently, they believed that most black people were too stupid to learn how to read.). But the Constitution does not give the federal government authority to dictate what STATES must & must not do re voter eligibility & registration – other than that STATES may not deny or abridge the right of citizens to vote on account of race (15th Amdt.), sex (19th Amdt.), failure to pay any tax (24th Amdt.), or age for citizens of eighteen years or more (26th Amdt.). If the federal government wants to force any STATE to allow illiterates to vote, it must get an Amendment ratified by three fourths of the other states which says that the right of citizens to vote shall not be denied or abridged on account of illiteracy. Likewise, if they want to force any STATE to allow illegal aliens to vote, they must get an Amendment ratified by three fourths of the other states which says that aliens may vote.
4 The liberals/progressives know that when they get a majority who vote for politicians who give them handouts, our Republic is finished. Before that happens, will the STATES figure this out, get some Spine, and exercise their reserved powers enshrined in Art. I, Sec. 2, cl. 1, to ban welfare parasites from voting? It is impossible to sate the Lust for Plunder of those whose sole occupation is to live at other peoples’ expense.
5 We must distinguish between “race” and “culture”. God’s people come from “every tribe and language, nation and race” (Revelation 5:9, 7:9). So Christians may not despise people on account of their race, ethnic or national origin. However, cultures are not equal in any sense of the word – many of them are altogether degenerate, criminal, & corrupt. Will we commit suicide by continuing to permit the importation of alien, criminal & corrupt cultures? Face Reality, People! See also Dr. Thomas Sowell’s excellent book, “Race and Culture: A World View”.
6 Voting in this Country has always been restricted to Citizens! But not all citizens qualified to vote.
7 The Federalist Papers are THE most authoritative commentary on the true meaning of our Constitution. At a meeting of the Board of Visitors of the University of Virginia on March 4, 1825 at which Thomas Jefferson & James Madison were present, the following Resolution selecting the texts for the Law school, was passed:
…on the distinctive principles of the government of our own state, and of that of the US. the best guides are to be found in 1. the Declaration of Independance, as the fundamental act of union of these states. 2. the book known by the title of ‘The Federalist’, being an authority to which appeal is habitually made by all, and rarely declined or denied by any as evidence of the general opinion of those who framed, and of those who accepted the Constitution of the US. on questions as to it’s genuine meaning…. (page 83)
8 On page 18, they mention a comment by Hamilton in Federalist No. 33 on the “supremacy clause”. But go here to see what Hamilton really says about the “supremacy clause” (Art. VI, cl. 2).
9 The dissenting opinion in U.S. Term Limits, Inc. v. Thornton (1995) by Justice Clarence Thomas is a rare jewel well worth reading! PH
December 5, 2010; edited April 1, 2014