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Is the “Deep State” Constitutional?

By Harold Pease, Ph. D

Recent revelations, notably the March 8, Wikileaks dump of over 9,000 emails, is reportedly a dump far larger and worse than the Edward Snowden revelations in 2013. A dump disclosing potential spying of Americans by their own television sets, whether on or off, or by their automobiles. Sophisticated cyber technology “beyond what Snowden could have imagined,” capable of spying leaving the footprint of other countries (such as Russia) so our government remains undetected, has caused many to look to the Constitution for protection from their own government. Remember Snowden had revealed the National Security Agency’s “intercepting 200 million text messages every day worldwide through a program called Dishfire” (Lorenzo Franceschi-Bicchierai, “The 10 Biggest Revelations from Edward Snowden’s Leaks,” Mashable, Jun. 05, 2014). Is the “Deep State” constitutional?

In the Constitution the words “national security” are not used but “common defense” is mentioned twice, first in the Preamble, which is but a statement of intent and is not generally seen as usable for codification of law, and next in Article I, Section 8 as one of the four powers of congress; the others being the power to tax, pay the debts, and provide for the general welfare. Sections 2-9 are the qualifiers on what is meant by “common defense” so as to limit government’s inclination to define everything as common defense, as it now does by using the words national security instead.

Unfortunately for big government advocates, collecting and storing data on its citizens is not cited or even alluded to. Nor has such authority been added by way of an amendment to the Constitution.

Fortunately for Americans this behavior is specifically forbidden in the Fourth Amendment which reads: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,” (is the strongest possible language conceivable) “and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The amendment was specifically designed to prevent government spying on its own people.

Prior to the American Revolution the British government used what was called “a general search warrant” which allowed their agents to harass the people thought to be doing, or saying, something disapproved by the government. No such flexible interpretation was allowed in our government until recent times. In our day, computers, cellphone messages and phones are our “papers and effects.” Simply confiscating their messages and storing them, perhaps indefinitely, should be no different than the police walking into your home and taking any letters you have received or are about to send and housing them in police headquarters in case they should need them to use against you at a later day. As a first principle your house and papers are off-limits to the government.

Moreover, unreasonable was not to be decided by the police. All searches are unreasonable without probable cause that you are doing something harmful to others. Elected judges exist for assessing probable cause. Should they get cozy with the police they can be defeated in the next election. As initially interpreted there were to be few federal laws, hence few unelected federal justices. This was to be a state, county, or city matter. Judges rousted out of a good sleep in the middle of the night were not likely to be too happy about having to assess frivolous charges.

There exists no constitutional authority for a blanket extraction of all our electronic data. Judges swear an oath to preserve the Constitution. They are not to perform with a private view outside that document. Notice also the specific restrictive phraseology with respect to this power; they are to particularly describe “the place to be searched, and the persons or things to be seized”—evidence that something unlawful already happened. There is no authority for a “fishing expedition.” NSA spying on its own citizens without a search warrant is clearly unconstitutional.

So what of the government’s secret FISA court where since 1979 special federal (unelected) judges have only turned down 12 spying requests out of 38,169 made? Isn’t that based upon probable cause? Not necessarily! The request is more likely made because they lack probable cause and wish to find it by accessing your private records or conversations. The FISA court is hampered by three major flaws: judges therein are not elected and accountable to the people, the court operates behind an impenetrable double-door in a vault-like room in total secrecy, and the rules empowering the spying activities are far more permissive than those allowed other judges in other federal courts.

Moreover, the FISA court violates the Fifth Amendment in that the accused is, in a very real sense, forced to be a witness against himself—perhaps the only witness. It is his papers, emails, and phone conversations that convict him.

“No, federal government!” The power of the “Deep State” as practiced is a blatant violation of the Constitution. You may argue that you are only protecting us from bad people out there by gathering our private information without our consent or knowledge, but who protects us from you? Historically more terroristic acts happen under government authority than under private authority. Fortunately the Constitution protects us from you.

Dr. Harold Pease is a syndicated columnist and an expert on the United States Constitution. He has dedicated his career to studying the writings of the Founding Fathers and applying that knowledge to current events. He has taught history and political science from this perspective for over 30 years at Taft College. To read more of his weekly articles, please visit www.LibertyUnderFire.org.

Democracy Rejected by Founders

By Dr. Harold W. Pease

In the 2016 presidential election the Democrats never used the word republic to describe our political system and Republicans rarely used it, both preferring to use the word democracy. Most people ignorantly refer to our political system as a democracy and have to be reminded that this word is not in the Declaration of Independence, U.S. Constitution, Bill of Rights, or any other document given to us by our Founding Fathers. Our Pledge of Allegiance to the flag identifies our form of government as a republic.

Benjamin Franklin wrote in 1759, “Democracy is two wolves and a lamb voting on what to have for lunch. Liberty is a well-armed lamb contesting the vote.” A republic has seven major components.

First, the importance of majority rules is recognized but limited. Is the majority always right? No! Mother made this point when her teenager asked to smoke marijuana on the basis that everyone was doing it. “If everyone jumped off a bridge would you?”

Second, minority rights (less than 50%) are protected from the majority. In Franklin’s analogy the lamb had the right to exist even if the majority, the wolves, said differently. A lynch mob is a democracy, everyone votes but the one being hanged. Even if caught in the act of a crime the defendant is entitled to the protection of law, a judge, jury, witnesses for his defense, and a lawyer to argue his innocence; all necessary but expensive. Then, if found guilty, hanged. Because democracy only considers majority rules it is much less expensive. A rope tossed over a tree limb will do.

Third, a republic is based upon natural inalienable rights first acknowledged in the Declaration of Independence. This document asserted to the world that we acknowledge that humans have rights from a source higher than mere man. A reference to deity is mentioned five times. If there is no God there can be no inalienable rights coming from him and we are left with man as God. What man is good enough?

Fourth, a Republic emphasizes individual differences rather than absolute equality, as does democracy. We are not equal, even from the womb, and never will be if equality means sameness. One baby with a cleft pallet needs three operations to look normal. Some come out of the womb with a laptop, others with a basketball, and the real tough deliveries are from those bringing their golf clubs. One of my first great insights in life was that everyone was better at everything than I. The second was that life is not fair and never will be. Free men are not equal and equal men are not free. Genetics makes one fat, another bald, and gives yet another terminal cancer in his youth.

Even economically it is not possible to be equal. Should I give each of my students a million dollars in exchange for everything they now own, shave their heads, and give them identical uniforms, to approximate sameness as much as possible, with the only requirement that they return in five years with some ledger of net worth. Would they be the same in what was left of the million? No! Why does government try so hard to do that which is impossible? A Republic looks upon our differences as assets—decidedly not the base of democracy.

Fifth, limited government is also a major aspect of a republic. Centralized government is good so long as it remembers that when it oversteps its bounds it becomes the greatest obstacle to liberty as it pulls decision-making power away from the individual. Excessive government, as the cause of the American Revolution, is never forgotten. The Constitution as created, handcuffed the government from dominating our lives thus the powers of the federal government were listed (Article I, Section 8). The Founders understood that the more government at the top the less at the bottom and that was the essence of freedom.

Sixth, a republic has frequent elections with options. Frequent elections happen in some socialist countries, so this alone does not ensure liberty. In fact, it may be somewhat deceiving as it fosters the notion that we choose, thus deserve, our elected officers. It also assumes that the people are correctly informed, which assumes a free press and equal access to all information. The part of the phrase “with options” is the part that ensures liberty. Elections under socialism provided choices but often no options as all participants are from the same party.

Seventh, there is a healthy fear of the emotion of the masses and of its potential to destabilize natural law upon which real freedom is based, as for example the notion that some one else’s wealth belongs to them. Such destroys freedom as it had in Athens and Rome. We need a caring, sensitive, compassionate government but emotion must not be allowed to overwhelm reason and time-tested natural law constants. Aristotle taught that the poor will always envy the rich and that the rich will always have contempt for the poor. A republic will not allow the poor to destroy the rich in their quest for the wealth of the rich, but does incentivize the poor to increase their wealth thus becoming the middle class, which in time become the largest body.

As explained, democracy does not protect liberty. In Ben Franklin’s analogy it would have allowed the wolves to have eaten the lamb simply because the lamb had been outvoted. No wonder our Founders rejected democracy in favor of a republic.

Dr. Harold Pease is a syndicated columnist and an expert on the United States Constitution. He has dedicated his career to studying the writings of the Founding Fathers and applying that knowledge to current events. He has taught history and political science from this perspective for over 30 years at Taft College. To read more of his weekly articles, please visit www.LibertyUnderFire.org.

Enslaving Debt Sours to Almost $20 Trillion

By Harold Pease, Ph. D

Within 40 days our national debt is likely to be $20 trillion; four of which is from eight years of George W. Bush and ten from eight years of Barack Obama—the two biggest spending presidents in U.S. History. Obama alone accumulated more debt than all previous presidents put together.

So what is a trillion dollars? To begin with a trillion is the number one followed by twelve zeros. A trillion dollars is a thousand billion and a billion is a thousand million. This still means very little to my students who count their money in fives, tens and twenties.

One mathematician gave us a more practical way to evaluate our outstanding debt. One trillion, one-dollar bills stacked atop each other (not end to end but flat) would reach nearly 68,000 miles into space—a third of the way to the moon (See CNN News Cast, Feb. 4, 2009). If so, the debt incurred under President Obama alone, $10 trillion, would reach the moon and back and to the moon again. Moreover, if you like traveling atop this stack of ones, our total $20 trillion in debt would take you to the moon and back three times and almost to the moon again.

Senator Mitch McConnell gave another illustration just as awe striking. He calculated that if we spent a million dollars every day since Jesus was born we still would not have spent a trillion dollars—only three-fourths of a trillion dollars (ibid.).

Someone else equated our national debt to seconds and concluded that a million seconds is about 11½ days and a billion seconds is about 32 years. A trillion seconds is about 32,000 years thus 20 trillion seconds is 640,000 years (See CNN News Cast, Feb. 4, 2009). This only makes my head spin, as my Ph. D is not in math.

I ask my students, “Who gets to go without so that this debt can be paid?” “Go without!!!?” That is a concept foreign to this generation!! They do not know, and neither do their parents and grandparents who laid it on their backs. When they are told that their share of the debt is $61,457 (see USDebtClock.org), due immediately, they are angry. Someone should have told them that government handouts are not free.

The 13th Amendment ending slavery has been rescinded, they are America’s new slaves. Bondage was given them before their birth, or while they were in the womb, or before they were old enough to know what it meant to be sold into slavery. The past generation wanted nice costly programs for free and were willing to sell their children in order to have them. Communist China now owns an eighth of our debt and the bills are due. What is worse the older generation is still anxious to incur even more debt on our defenseless children and grandchildren. Are we not the most debt addicted, insensitive generation in U.S. History?

The latest new theory to avoid fiscal responsibility and continue unlimited spending used by Bush in late 2009 and Obama thereafter is referred to as Quantitative Easing. Crudely it means printing more money out of thin air to cover our debt, but it is far more sophisticated than that. For Bush the money supply was greatly expanded by having the Federal Reserve purchase $600 billion in Mortgage-backed securities (Harding, Robin. 3 November 2010, Quantitative Easing Explained. Financial Times). Obama purchased $600 billion of Treasury securities over a six month period of time beginning in November 2010 in what has been called Quantitative Easing or QE2 to distinguish it from QE1, the Bush expansion of the money supply (Cesky, Annalyn,3 Nov.2010, “QE2: Fed Pulls the Trigger” CNNmoney.com. Retrieved 10 Aug. 2011). Neither president really stimulated the economy long term or created jobs, but for a few months, like a drug high, things seemed to feel better. Other, less publicized, Quantitative Easements followed.

The biggest problem with expanding the money supply is that it reduces the value of the money that you have in your pocket. Prices go up. My 1968 new Camaro cost me $ 2,700. Had I instead put the money under a mattress and tried to purchase a Camaro today it would cost more than ten times that much. In this instance money has lost 90% of its value since then. Those on fixed incomes are robbed as surely as if a thief had lifted their wallet or purse. They cannot return to their employer for a raise to compensate for the loss caused by their own government.

Still, with all the sophisticated “doublespeak,” as for example quantitative easement, it means that we will print whatever money we need to purchase whatever we wish. Neither party is serious about stopping the debt and removing the bondage that we are imposing upon our children and grandchildren. In last Fall’s presidential election the Democrats proposed “free” college. Donald Trump’s proposed trillion-dollar infrastructure program, shared with us in his first address to Congress, does not appear to suggest a change. Who cares if our debt of dollar bills stacked upon one another can go to the moon and back three times and almost to the moon again, so long as the government fills our stomachs and, in the case of Obama, buys our cell phones?

Dr. Harold Pease is a syndicated columnist and an expert on the United States Constitution. He has dedicated his career to studying the writings of the Founding Fathers and applying that knowledge to current events. He has taught history and political science from this perspective for over 30 years at Taft College. To read more of his weekly articles, please visit www.LibertyUnderFire.org.

Repeal, Don’t Replace, ObamaCare

By Harold Pease, Ph. D

Republicans are criticized for not having a plan ready to replace the failed ObamaCare as most of the 2016 Republican Party presidential contenders had promised its demise if elected. The House of Representatives made over 60 attempts to repeal The Affordable Care Act since its passage in 2010. So why has this not happened with Republicans now in control of the Legislative and Executive branch’s of government?

Many Republicans like their new found power over a seventh of the economy and are reluctant to give it up. They propose allowing insurers to sell across state lines, forming high-risk pools for people with pre-existing conditions, creating a tax credit to help people afford coverage, and “beefing up” health saving accounts. The basic difference between Republicans and Democrats is simply, “We can do it better.” Notice their use of controlling adjectives: allowing, forming, creating, and “beefing up.” Healthcare would remain nationalized.

Missed entirely is that the Constitution allows only the option of repeal. Anything more would require a new amendment to the Constitution transferring a new power, healthcare, from the states where it resided, to the federal government as per Article V. All power was distributed in 1787. Any rearrangement of that distribution requires a new amendment to the Constitution.

Many do not know that we live under two political systems: one primarily national in function, the other primarily domestic. Thomas Jefferson expressed it best when he said: The states are not subordinate to the national government but rather the two are coordinate departments of one single and integral whole…. The one is domestic the other the foreign branch of the same government.” Its called federalism—the two share power and are equal. Neither was to be subservient to the other and each was to have separate duties.

So it is with federal and state governments as Jefferson suggested. The Founders, however, were aware of the nature of all governments to grow. George Washington said it best: “Government is like fire, a dangerous servant and a fearful master.” So one builds a fireplace before one brings fire into his home for warmth so that it does not burn down his home. That fireplace is the Constitution, in particular Article I, Section VIII.

Simply, government grows. To harness this tendency both partners in government were given lists of duties: the federal government Article I, Section VIII. Everything it did was to be clearly linked to an enumerated grant of power. Healthcare cannot be linked to an existing enumerated grant of power. The States, who created the Federal Government, retained unto themselves all other powers as per Amendments 9 and 10 of the Constitution. “James Madison wrote: “The powers delegated…to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite.” That the federal government took this power unto themselves in 2010 is not constitutional authority to continue the confiscation.

The advantages of federalism are enormous. States become laboratories of experimentation. States have the tendency to look at sister states for models and to borrow this from New Jersey and that from Oregon and yet something else from Alabama in refining their own programs. These places of experimentation work to everyone’s advantage. This process refines legislation and when enough states think it better handled at the federal level they, in a new constitutional amendment, can pass it to the federal partner. Citizens of a state not happy with experimental regulation can move to one of the 49 other states less controlling.

Had our “power crazed” federal partner refrained from their natural inclination to take over healthcare we could have gone through this experimental process designed by our Founding Fathers and been able to identify the weaknesses or strengths while they were still geographically isolated. Only three states had tried state healthcare: Oregon, Massachusetts, and Hawaii. That was clearly not enough to identify the “pitfalls” in the area. The federal partner took a half-baked idea and made it mandatory on the whole nation, thus it failed.

The Founders did not dare leave the vague phrase “general welfare” to future federal power grabbers. To prevent the interpretation that it meant “everything” they added clauses 2-9. Listed are 14 powers, five dealing with borrowing money, regulating its value, and counterfeiting. The other nine included naturalization, bankruptcies, establishing post offices, protecting inventors and authors, establishing “tribunals inferior to the Supreme Court” and “regulating commerce with foreign nations and among the several states.” healthcare, or anything remotely like unto it, is not listed.

Who decided the division of powers—the states? And they kept that right to decide in Article V of the Constitution. They forfeited only specific named powers that they could not reasonably do as states, as for example, a common currency. Why would they give any more power? They had just rejected the flow of power from the Colonies to Parliament and the resultant avalanche of rules descending from them in return. After all, the cause of the American Revolution was excessive government. There intent was to handcuff the federal government so that such could never happen again, not give it free reign.

Constitutionalists must insist that Republicans and Democrats restrict themselves to the Constitution. Repeal, don’t replace, ObamaCare or get a new amendment to it. Don’t damage the Constitution further by ignorance of it.

Dr. Harold Pease is a syndicated columnist and an expert on the United States Constitution. He has dedicated his career to studying the writings of the Founding Fathers and applying that knowledge to current events. He has taught history and political science from this perspective for over 30 years at Taft College. To read more of his weekly articles, please visit www.LibertyUnderFire.org.