Jan 25, 2016 | Constitution, Globalism, Healthcare, Immigration, Liberty Articles
By Harold Pease, Ph. D
Liberty Under Fire has examined the candidates for president as to their intention to give first consideration in problem solving to the Constitution. Many of the problems now facing this nation and the expensive, time-consuming lawsuits to bring the Barack Obama administration in line with it, are due to his not following the Constitution. Our current constitutional crisis is more serious than any other concern, including ISIS.
Our readers in Iowa and New Hampshire, who will be expressing themselves very soon in the first two presidential primaries, should know that defending the Constitution must be first priority in this Presidential election. Constitutional integrity will solve our problems very nicely. Another four years without such may leave the Constitution so defiled as to not be recoverable.
To our many Democrat friends, your party has provided much historical strength especially in upholding Amendments 1, 4, 5, and 8 of the Bill of Rights. In the 20th Century your greatest contribution was in extending equality to blacks. Today most blacks support your party in appreciation. But in four Democratic sponsored presidential debates not one of your candidates (Hillary Clinton, Bernie Sanders, and Martin O’Malley) even spoke of our present constitutional crisis. Not one of them gave any indication that it would be considered in problem solving. Indeed, more taxes and more government—even government by decree—was always their remedy.
Unfortunately, the Republican solution to problem solving is only mildly better. They too problem solve with high taxes and unlimited government. They too abandoned the concepts of a republic and federalism years ago. They too pay no attention to the list of appropriate areas of legislation in Article I, Section 8 and Amendments 9 and 10 that gives all power not identified in the Constitution to the states. Republican presidents too, with their executive orders, usurp the powers of Congress as the only lawmaking body. A President Trump’s executive orders would differ from a President Hillary Clinton’s only in that his would be “good ones rather than bad ones,” as Trump explained.
On Second Amendment issues all the Republicans candidates are better than any of the Democratic candidates. Remember, Amendments cannot constitutionally be changed by warping its original meaning or by any law made by Congress or by executive order. If it needs to be changed that can only happen by another amendment and that requires 3/4th of the states to approve as per Article V.
On abortion issues Carly Fiorina has the most constitutional response, it should be returned to the states. There exists no language in the Constitution giving the practice national authority and as such constitutionally falls under the 10th Amendment. Ted Cruz, however, has the most actual experience in court with respect to preserving constitutional integrity on the subject. All others say that they are pro-life but would use national power to enforce that view.
With respect to the management of our currency, constitutionally given only to Congress with no authority for them to hand it off to the banking elite who most benefit by its management, most republican candidates are critical but in favor of the Federal Reserve. Only Rand Paul, Ted Cruz and Marco Rubio demand that the books be opened to Congress, Cruz and Rubio cosponsoring Paul’s legislation to do just this.
There exists no constitutional language whatever giving the federal government any say in health issues. As such it is a state issue as per Amendment 10. All Republican presidential candidates say that they oppose Obamacare but what they would do about it as president differs. Least likely to do anything about it is Jeb Bush. Most likely to work to have it totally repealed is Ted Cruz and Rand Paul. Trump and Rubio would repeal and replace. Replace means a Republican version of the same thing, which would be just as unconstitutional as that of Obama’s healthcare.
Candidates most likely to reverse Obama’s unconstitutional executive amnesty order are Ted Cruz and Donald Trump. Candidates least likely to do so are Jeb Bush, John Kasich and Chris Christie. Only Cruz and Trump have the correct constitutional interpretation of the 14th Amendment dealing with immigration.
On the Trans- Pacific Partnership Treaty most Republican Presidential candidates are in favor with Marco Rubio referring to it as being “a pillar of his presidency.”
Trump calls it as a “disaster” and “pathetic.” Rand Paul opposes it because it was done in secret and was unavailable to the people. Only Ted Cruz talks about opposition to it on constitutional grounds.
With respect to 4th Amendment issues of privacy and NSA surveillance on Americans, Rand Paul and Ted Cruz each sponsored legislation in opposition to it or limiting of its practice. Ben Carson and Mike Huckabee think spying on our own citizens without a warrant is unconstitutional. Others support or at least do not voice opposition to the practice.
In these instances, and many more, the presidential candidate presently defending the Constitution, and most likely to use the Constitution in problem solving as president, is clearly Ted Cruz, with Rand Paul a close second. Least likely include Jeb Bush, Chris Christie, John Kasich and Marco Rubio.
Jan 14, 2016 | Constitution, Liberty Articles, Take Action
Harold Pease, Ph. D
The most important question with respect to the takeover of the Malheur National Wildlife Refuge by Oregon ranchers remains unanswered by the press covering the story. Why does the federal government own 52.6 percent of Oregon leaving them owning but 47.4 of themselves? It does not own New York or Virginia or Massachusetts. Those occupying the Refuge say that the state of Oregon rightfully owns the land and federal occupation is unconstitutional. The Bureau of Land Management clearly considers the property the federal governments. Who is right?
The problem isn’t Oregon’s alone the percentage of land owned by the government exceeds fifty percent in Alaska (98.5), Nevada (87.7), Idaho (63.8), and Utah (63.6). Indeed, the federal government claims to own a third of all the landmass in the United States (Inventory Report on Real Property Owned by the United States Throughout the World, published by the General Services Administration, page 10). Government owns almost half of California (47.5 %). Basically the federal government did not give western states all their land when they qualified for statehood. States were so excited to get coveted statehood that they went along with the conditions despite the confiscation of, for most in the West, at least a third of their land.
States wanting their confiscated land returned, so as to be on equal footing with 19 sister states who actually own their land, call their long-term bid to do so the Sage Brush Rebellion. Equality between states was established by giving them equal representation in the U.S. Senate, thus the assumption of the Founders was that property would follow. Without it they are not on equal footing and instead may be more servile to the federal government than states that own themselves. This could negatively affect our system of government known as federalism as states collectively serve as a check on federal overreach. This check is impaired when the federal government owns part or most of their land.
But this is not the most serious violation of the Constitution. The Founders understood that the size of land holding was proportionally related to the perceived size of the federal government and they intentionally wanted that perception small. The Federal government was permitted to have but 10 square miles for a federal capital. The only other land that they could acquire had to be for military purposes as specified in the common defense clause of the Constitution, Article I, Section 8, Clause 17 which reads: “and to exercise like Authority over all places purchased by the Consent of the Legislature of the State in which the same shall be for the Erection of Forts, Magazines, Arsenals, dock Yards, and other needful Buildings.”
Any new acquisition, outside the capital, had (1) to be purchased, (2) have the consent of the State Legislature where the land exists, (3) and be for military purposes. None of these constitutional requirements were met with respect to any of the states cited above although some military bases do exist in most of them. Nor have there been any additional amendments to the Constitution authorizing additional federal ownership of land as required for any additional federal power. Constitutionally there exists no federal land or Bureau of Land Management or even public land.
Again, in the case of the Oregon ranchers occupying Malheur National Wildlife Refuge near Burns, Oregon, the land in dispute was not purchased by the federal government, did not receive the consent of the Oregon State Legislature for sale to the feds and is not for military purposes. The fact that the federal government acquired it fraudulently in the first place, or that both political parties have ignored this part of the Constitution for over a hundred years, does not make federal confiscation now constitutional. Constitutionally the Oregon ranchers have more right to be there than does the Bureau of Land Management. Still, the rancher stand is not practical given our long-term departure from the document and to get back to the Constitution some may do jail time, as have others like Martin Luther King, Jr. Freedom has never been cheap.
Having someone willing to stand, although in no way do I support forcibly taking over the Refuge, Sage Brush Rebellion states now have the opportunity to seize this moment to remind the federal government that they too want their land back. The event should, however, start a healthy national conversation and resolution should process through the state legislatures. If states now stand together resolution in their favor is more probable than ever.
One suggestion is for Oregon Governor Kate Brown to declare the contested land under state jurisdiction until the Oregon State Legislature has time to weigh in. Taking back this infinitesimal amount of the whole that is claimed by the federal government will set the stage for more acquisitions by other states later. The governor would become an instant hero in the western states. This solution would diffuse the standoff between citizen and federal government moving it to the state instead where it belongs. Why do citizens have to make the case, which should be made by a state? The governor would give strength to two objectives—returning fraudulently acquired land to the states and getting back to the Constitution.
Jan 7, 2016 | Constitution, Immigration, Liberty Articles
By Harold Pease, Ph. D
“We cannot wait for Congress to act on this,” so said President Barack Obama Tuesday in his first address to the nation in 2016. In essence he will now make the laws dealing with the 2nd Amendment himself because Congress refused to make law the President wanted. Mostly the executive orders (new laws) expand required background checks and the number of those requiring a sales license to sell guns (which requires tremendous paperwork, expense, and about a year to obtain). This Congress refused to pass three times during the Obama administration, once when the Democrats were in charge. Even gun exchanges between family members come into question. Potentially this means that people who violate the law made by the president alone will go to jail or be otherwise punished as with kings and dictators.
This is reminiscent of a statement made by the White House just two years ago on executive amnesty. “We’re not just going to sit around and wait interminably for Congress. We’ve been waiting a year already.” In this instance, some in Congress had worked on what was called the Dream Act that would extend amnesty and place illegal immigrants on a course toward full citizenship. Lacking popularity, twice it failed to get the majority vote of both Houses of Congress required by the Constitution, thus leaving long-standing existing immigration law unchanged. Obama, failing to get a favorable vote from Congress, openly defied Congress and the Constitution by ordering a like measure to that defeated, implemented anyway. It has since rightly been blocked by the Judicial Branch as having been an overreach by the President, thus unconstitutional.
Executive amnesty was outright contempt for Congress and the Constitution and the President knew it. Twenty-seven times prior to his doing the order he argued that it would be unconstitutional were he to do it. As for example, on March 28, 2011, he said, with respect to the idea of nullifying Congress on the deportation issue. “The notion that I can just suspend deportations just through executive order, that’s just not the case, because there are laws on the books that Congress has passed.”
Indeed, by executive order Obama has changed existing law at least 30 times, most notably in the Affordable Care Act, which today is not the bill passed by Congress in 2010. In doing these, and the new parade of executive orders on gun control, the President is replacing Congress as the only federal lawmaker of the land.
There is nothing more clear nor basic in the Constitution than the separation of federal power into three branches, one to legislate, another to execute that law, and a third to adjudicate possible violations of that law when contested—a division of power held “sacred” until the last few decades. The Constitution reads: “All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives”(Article I, Sec. I).
The Executive branch has NO authority to make law—any law!!!! Nor does it have constitutional authority to alter existing law. Executive Orders are constitutional only when they cite a single, recently passed law of Congress, where that law needs a statement of implementation by the executive branch. Originally they were but interdepartmental directives.
A president can only suggest a need for new law in his State of the Union Address, and either sign or veto a law passed by Congress, which then, if vetoed, must be overridden by a vote of 2/3rds of both houses to become law. That is it.
I warned my readers when Obama blatantly violated the Constitution on executive amnesty that “if not challenged by Congress his alterations would become existing law by practice without the consent of the peoples’ representatives, voiding the role of Congress, and that he, upon finding a weak Congress, would repeat the practice of making law by decree.” He has!! Some have used the word dictatorial to describe the practice. I renew this warning, not just for Obama but also for presidents who follow from either party, as they will use past practice to justify desired practice and the trend to nullify Congress as the only federal lawmaking body will continue. Executive Orders that have the force and effect of law must stop to preserve liberty.
Obama’s present override of Congress on 2nd Amendment issues is an even more blatant abuse of his oath of office, to “preserve, protect and defend the Constitution of the United States.” To protect the separation of powers and end Obama’s threat to the Constitution, Congress must publically renounce all his new executive orders and fast track immediately to impeachment. Yes, the Constitution requires that he be retired in twelve months anyway but a bill of impeachment reestablishes the precedent that the people will not tolerate the defilement of the Constitution thus discouraging constitutional rogues of the future. Failing to do so weakens Congress’s sole role as the federal law-making branch of government, the clarity of the 2nd Amendment, and the integrity of the presidential oath of office.
Democrats must see that their failure to insist on a retraction of all law-making executive orders forever weakens the sole power of Congress to make all law and places us on the road of government by decree or edict of one man. We must choose the Constitution over party. The Constitution is there to protect all parties and all citizens from arbitrary and caprices rule as just announced. Please let it work.
Jan 3, 2016 | Constitution, Immigration, Liberty Articles
By Harold Pease, Ph. D
The December 15, 2015, Republican Presidential Debate featured a stark clash between the only two Hispanics running from either party, both also the sons of immigrants to this country. A successful bid would make either our first Hispanic president. But on the National Defense Authorization Act (NDAA) and the Bill of Rights they are on opposite ends, one opposing the other supporting.
A question with respect to the extremely controversial, largely on constitutional grounds, NDAA should have been a top news item in the presidential debate for three reasons: first, it had just been approved by both houses of Congress and was then on the President’s desk for his signature, second, a new president (presumably one of the debaters) would inherit the power to detain indefinitely and without trial American citizens he or his military suspected was a terrorist threat, and finally, all this in light of the ISIS terrorist attack in San Bernardino by one of our own. It wasn’t. Amazingly no commentator in any of the debates has asked about the NDAA.
It would not have come up at all had not Senator Marco Rubio accused rival Senator Ted Cruz of having voted against it every year since its inception in 2011 and accurately assumed that Cruz would veto it were he the president. Senator Cruz responded, “I oppose the federal government having the authority to detain U.S. citizens permanently with no due process. I have repeatedly supported an effort to take that out of that bill.” Rubio countered, “If you’re an American citizen and you decide to join up with ISIS, we’re not going to read you your Miranda rights. You’re going to be treated as an enemy combatant, a member of an army attacking this country.” Senator Rand Paul attempted several times to have input in support of the Cruz position but was not allowed.
So why is this an issue? It is the word “suspected.” In the United States you are presumed innocent until proven guilty. And there is also the damage to the Bill of Rights.
In the NDAA is a provision authorizing the military, under presidential authority, to arrest, kidnap, detain without trial, and hold indefinitely, American citizens thought to “represent an enduring security threat to the United States.” Simply stated it defied Habeas Corpus (your constitutional right not to disappear at the hand of government) Article I, Section 9, the Posse Comitatus Act of 1878 (preventing the military from having a law enforcement function in the United States), and essentially gutted large portions of the Bill of Rights especially amendments 4, 5, and 6 with secondary damage to 1, 2 and possibly 8. It is the single most dangerous law passed by Congress in U.S. History. No freedom or constitutional advocate should be supportive of punishment without trial.
Many seem not to understand that a non-specific definition of terrorism, such as that noted above, can easily be turned into a revolving definition of terrorism and used to wipe out either an opposing party or philosophy. Imagine being arrested, kidnapped, and secretly shipped to Guantanamo Bay (or some other undisclosed location) for defending the Constitution. Such is possible under the NDAA. Republican President Richard Nixon used the IRS to persecute his political enemies in the 1970’s, as has Democratic President Barack Obama in the last seven years. Neither political party is without fault on this issue.
Perhaps Tea Party Senator Ted Cruz said it best when he proudly told his constituents: “Today I voted against the National Defense Authorization Act. I am deeply concerned that Congress still has not prohibited President Obama’s ability to indefinitely detain U.S. citizens arrested on American soil without trial or due process. The Constitution does not allow President Obama, or any President, to apprehend an American citizen, arrested on U.S. soil, and detain these citizens indefinitely without a trial.” We agree and that is why the National Defense Authorization Act of 2015 is still dangerous, still unconstitutional and still unacceptable in a free country!!
Republican Senators Lindsey Graham and John McCain pushed NDAA through the Senate in 2011 and Democrat President Barack Obama, promised to veto it, then reneged on the promise and signed it. It largely nullifies the Bill of Rights for those accused. No freedom or constitutional advocate should be supportive of punishment without trial. In the 2016 presidential race only Ted Cruz and Rand Paul, from either major political party, have voiced opposition to it. Presumably all other candidates favor it. Senator Rubio consistently voted for it and is probably the most outspoken 2016 presidential contender, from either major political party, advocating it. As such it is unlikely that, if elected president, he could fulfill the oath of office to “preserve, protect and defend the Constitution of the United States.”
Dec 15, 2015 | Constitution, Liberty Articles
By Harold Pease, Ph. D
President Barack Obama addressed the nation Sunday, December 6, 2015, a few days following the radical Islamic terror in San Bernardino that consumed the news and just one week following the radical Islamic terror that descended in several places in Paris. Both societies had two things in common, gun control and ISIS. Sadly, in both places sharing the same gun philosophy, violence was unrestrained. Also sadly, the president’s solutions to ending such violence in Americas’ cities are all unconstitutional.
When he covered what we should do at home he advised Congress “to make sure no one on a no-fly list is able to buy a gun. What could possibly be the argument for allowing a terrorist suspect to buy a semi-automatic weapon?”
George W. Bush created the no-fly list after 9/11. Prior to this there was a list of but 16 who were considered security risks for flying according to a June 7, 2007, CBS 60 Minutes presentation called “Unlikely Terrorists on No Fly List.” It is largely secret, “even members of Congress have been denied access to it.” 60 Minutes disclosed a no-fly list of 44,000 and another 75,000 Americans who should have “additional security screening.” At that time, eight years ago, the list was over 540 pages long.
Whether maintained by Bush or Obama a no-fly list for U.S. citizens is itself unconstitutional. The government places a restriction on someone because of a perceived belief, practice or action and thus defined him or her as a possible threat—no actual evidence required. In most instances he has not even been informed of the government’s intention to punish him until he attempts to fly and is forbidden doing so. In the Obama speech he was referred to as a “terrorist suspect.” A punishment is applied without any evidence of unlawful behavior—he may not fly. If there had been unlawful behavior the person would be incarcerated and the issue of a no-fly list would be irrelevant. Remember U.S. Senator Ted Kennedy was once on the government’s no-fly list as was a six-year-old boy, a number of persons over 80 years of age, and an 18-month old toddler Reianna (last name not given in the CNN report to protect family identity).
No-fly restrictions violate Amendment 5 as he was denied free movement or “liberty” “without due process of law.” The Amendment guarantees the person the right to be accused before punishment, but no accusation was made nor was evidence presented to a jury to evaluate as required.
It also violates Amendment 6 which guarantees one accused of his right “to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.” None of this happens for the no-fly list people as the government has already effectively convicted and rendered punishment, sometimes indefinitely. Most have no idea why they are on the list or how to get off it.
Should Congress adhere to Obama’s request to “make sure no one on a no-fly list is able to buy a gun” they will amplify the already existing constitutional infractions of Amendments 5 and 6 and keep thousands of lawful Americans from protecting themselves with arms. Amendment 2 guarantees “the right of the people to keep and bear Arms,” and certifies that this right “shall not be infringed.” This too would be violated. A law—any law—cannot trump a constitutional amendment. The only constitutional way that Obama can change this amendment is with a new constitutional amendment.
Obama’s solution to the gun violence in California, we “need to make it harder for people to buy powerful assault weapons like the ones that were used in San Bernardino,” shows some ignorance of what happened there. California has the toughest gun control laws in the nation and it was not enough nor would it be if the government had gun confiscation. Paris, France had total gun confiscation over its people and ISIS still had free reign on its citizenry. Paris and San Bernardino had ISIS as their common denominator and the philosophy that if guns are restricted or confiscated there will be no violence. This proved false should put an end to this illogical argument.
Obama continued, “I know there are some who reject any gun safety measures.” I know of none. My associates, who have guns, are very aware of safety measures. Firearms are dangerous. I have held a concealed weapons permit for many years and gun safety measures were always emphasized.
Then amazingly the President, probably without knowing it, made the case why gun control or confiscation will never end violence. He said: “But the fact is that our intelligence and law enforcement agencies — no matter how effective they are — cannot identify every would-be mass shooter, whether that individual is motivated by ISIL or some other hateful ideology.”
I rest my case. The federal government just admitted that it cannot always protect us. Natural law kicks in. People have an inalienable right to protect themselves. Violence will always exist in society. No matter how fast law enforcement is, (in San Bernardino the first officer arrived in 4 minutes), it is always not fast enough and people are normally already dead. As long as this is so, good people will carry guns—lawfully or unlawfully.
Dec 14, 2015 | Constitution, Liberty Articles
Harold Pease, Ph. D
November 29, 2015, was the deadline for the end of NSA bulk collection of telephone records as established by the USA Freedom Act six months ago. This ended the Patriot Act, revealed by Edward Snowden, to have been the authority used to collect the bulk phone records of hundreds of millions of Americans, a certain big government invasion of privacy, which incensed civil libertarians. Libertarians and Constitutionalists, on 4th Amendment concerns, led by Senator Rand Paul brought the demise of the hated Patriot Act. This ends government surveillance of its citizens. Or does it?
The USA Freedom Act called for a six-month transition period allowing NSA to continue bulk collection as before, but at its end NSA must only access targeted data from telephone providers with judicial approval. Unfortunately for Constitutionalists it, like its predecessor the Patriot Act, nullifies the 4th Amendment requirement of “probable cause” and thus is as unconstitutional as the law it replaced.
Under the new law, the federal government forces telephone companies to collect the metadata instead and store it at their expense. The NSA may still access the information with approval of the secret FISA Court (a court that almost never denies permission) if the government maintains there is a reasonable suspicion that the phone data of a target is relevant to a terror investigation. What is missing is that Congress cannot simply pass a law nullifying a portion of a constitutional amendment. Its only option is another constitutional amendment.
Unfortunately for big government advocates, collecting and storing data on its citizens is not cited or even alluded to in Article I, Section 8 where the powers of the federal government are itemized. Nor has such authority been added by way of an amendment to the Constitution.
Fortunately for us 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, 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. “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.
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 from you 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 in 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. Probable cause must be decided independently from the police unless you are in the act of doing something unlawful and immediate police response is necessary. Elected judges exist for assessing probable cause. Should they get too cozy with the police there exist other checks to keep them restrained as, for example, their defeat 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, formerly under the Patriot Act and extended now under the USA Freedom Act, through proxy corporate entities charged with keeping our records for potential government inspection, is clearly unconstitutional.
“No, federal government!” 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 far more terroristic acts happen under government authority than under private authority. Fortunately the Constitution does when enough use it in their voting practices and those we elect honor their pledge to protect it, and us, from you.
