Sep 21, 2015 | Constitution, Liberty Articles
By Harold Pease, Ph. D
Eleven debaters gathered at the Reagan Library September 16, 2015, to share their plans and visions for our future. Each extolled the virtues of Ronald Reagan and claimed to be more Reagan-like than any of their competitors. Countries discussed included Russia, Iran, China, Syria and Israel. And topics seen to be most important were mostly centered on illegal immigration, Planned Parenthood’s federal funding, and the use of marijuana. But where was the Constitution in the debate?
All were important concerns but minimized was how these and other concerns might be addressed using the Constitution—the government’s rulebook. After all, the next day, September 17th, was Constitution Day throughout the United States. This especially in light of the fact that the last four presidents, two Republican and two Democrats, largely ignored the Constitution in problem solving going far beyond its restrictive boundaries.
Liberty Under Fire carefully took note of who did and did not, use the word Constitution, or references to it, in the three-hour debate. Three: Dr. Ben Carson and Governors John Kasich and Chris Christie, never used or referenced the word. Governor Scott Walker said the word Constitution once but did not attach it to a specific part of the document. Governor Jeb Bush also used the word without attachment but a second use was attached to his support for gun rights. Senator Marco Rubio did not use the word but identified himself in support of the 2nd Amendment.
Carly Fiorina used the word twice but negated both immediately thereafter with comments clearly showing that she had no understanding of the use verses the issue. The issue was the use of marijuana and federal enforcement. One cannot be for the Tenth Amendment, which leaves all areas not specifically mentioned in Article I, Section 8 to the states alone, and advocated the existence of federal authority not in the Constitution. There exists no constitutional authority for drug enforcement on the federal level. She, Bush, and Kasich received serious negatives on their understanding of the Constitution on this point. She did reference Lady Liberty and Lady Justice but made no attachment with respect to the Constitution with either. She is no doubt sincere in her use of liberty symbols but her generalities did not demonstrate depth in what liberty and justice actually mean.
Outside the Bush and Rubio support for the 2nd Amendment, Liberty Under Fire found little hope that these seven presidential candidates would give first consideration to the Constitution in problem solving. At least three of these lacked understanding of the Tenth Amendment. This is very serious. On constitutional issues, based upon this debate at this time, Liberty Under Fire cannot recommend any of these candidates for this office.
Donald Trump is a bit of a mystery for numerous reasons. But on the issue of birthright citizenship not being in the 14th Amendment, he is spot on. In fact, in previous columns I have carefully documented how the amendments founders were specifically denying such. His only use of the word Constitution was with respect to this issue. Because this fact is not well known it is strange that a businessman who probably benefited from the common distorted belief would either know this, or so passionately defend this view. He made no other reference to the Constitution in problem solving in any other issue thus, as with the others afore mentioned, I expect to write many columns showing his subsequent violations of the document should he become president. But on this one issue he has the ear of someone who understands the Constitution, which gives me some small hope that he will continue to listen to a constitutionalist on other issues as well, but there exist no guarantees.
Three presidential candidates stand out with promise that they will use the Constitution in problem solving: Senators Rand Paul, Ted Cruz and Governor Mike Huckabee. Huckabee used the word freedom but did not elaborate. He also used the word Constitution twice but more often used constitutional references specifically citing the current threat to Amendments 1, 2 and 10. He condemned the recent Supreme Court same sex marriage decision and the attack on Kentucky clerk Kim Davis with respect to freedom of conscience in her not authorizing such marriages with her name on the certificate.
Senator Ted Cruz opened with a reference to our losing freedom. He used the word Constitution with respect to its needing defended. He regretted Justice John Roberts backing down from defending the Constitution on healthcare and same sex marriage, although Bush reminded Cruz that he had written a letter of support in the nomination of Roberts. He identified himself as for the 2nd Amendment and in his closing statement promised to defend the Constitution.
Senator Rand Paul’s opening statement identified him as one who would defend the Constitution as first concern. He used the word twice more, one acknowledging that there was no birthright citizenship in the 14th Amendment, and that we have not followed the Constitution with respect to declaring war. He cited our failure to be guided by the 10th Amendment three times, mostly with respect to the approved use of drugs in the states verses the federal government inclination to mandate a power not given it.
Although this is but a small sampling of the importance of the Constitution to the eleven presidential contenders, Liberty Under Fire fears that these indicators will not change in a year. Our bigger fear is that by then the three who really value the document will have dropped out for lack of support and that the Constitution will continue to be eroded.
Sep 21, 2015 | Constitution, Liberty Articles
By Harold Pease, Ph. D
We have spent some time on how the Progressive Movement hurt our black communities and how some of their leaders have provided solutions to rescue their people—not the race baiters selected by the media to be the only black voice, like Al Sharpton or Jesse Jackson. Their common message: “Blacks are worse off now than they were before government began ‘helping’ them.” Their solution, “We need the government out of our lives.” Such can also be said of other races or groups that bought into the Progressive Movement’s nanny state. It has hurt all America.
The irony is that such hurt would not be the history of any group had we remained loyal to the Constitution. You recall that black leaders complained that the Progressive Movement left them less educated, less employable, less family oriented and more on welfare, and more both the perpetrator as well as the victim of crime. We have covered each of these previously. Truth is, the Constitution does not permit a federal involvement in education, employment, family matters, welfare, or local crime. Yes, let me say it again, the words—or anything like unto them—education, employment, family matters, or crime are not found in the Constitution. The word welfare is in the Constitution but not in the sense of gift giving. Nor is there an amendment to the Constitution that gives the federal government a role in any of these areas.
Article I, Section 8 has 18 paragraphs where federal authorization is permitted and these are grouped into four specific areas: the power to tax, pay the debt, provide for the general welfare, and provide for the common defense. All other areas of authority were left with the states as per the wordage of Amendment 10, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
The Founders knew that all governments like to grow and absorb decision-making power to them. They always have and always will. To prevent this they made a list of the areas of federal jurisdiction with the understanding that all areas not mentioned belonged to the states. All convention delegates understood this and curiously placed all federal power in one sentence with 18 paragraphs. The strange construction was to make it even more difficult for future power grabbers to isolate and enhance a power. Everything had to be considered in the context of the one sentence. Not many know what you have just learned.
As mentioned the Founders gave the federal government only four areas of power: taxes, paying the debts, providing for the general welfare (that’s not the same as providing the general welfare), and providing for the common defense. That is it my friends. All of it! All four powers are identified before the first semi colon in Section 8, Article I. That following are simply qualifiers of these four. “But all duties, imposts and excises shall be uniform throughout the U.S.” These were different types of taxes. There were no qualifiers on paying our debts. The Founders rejected the normal practice following a revolution of nations reneging on the debts caused by a previous government, even though it would have been easy to do so in our case as the value of the dollar had descended to seven cents.
Now to the heart of why Section 8 is so long and so hated by big government advocates, in our case the Progressives. The Founders did not dare to leave the phrases “general welfare” or “common defense” for future power grabbers. No telling what they could do with these vague concepts. So they restricted them further to prevent them being enlarged. Notice that clauses 2-9 itemizes what they meant by general welfare and clauses 10 to 17 itemizes what they meant by common defense, this to keep government harnessed.
For now let us stay with general welfare since most of the Progressive Movement deviations from the Constitution would fall under this area. Listed are 14 powers, five dealing with borrowing money, regulating its value, and dealing with 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.” Notice also that these provided for all equally and approximately at the same time, the general welfare, not specific welfare designating privileges for some at the expense of others.
My point again!! The words—or anything like unto them—education, employment, family matters, or crime are not found in the Constitution. The Progressive Movement ignored the 14 powers detailing general welfare in Article 8 and defied Amendment 10 of the Constitution adding the five areas of federal intrusion so hurtful to our black communities. In doing so it has done much damage to these and other groups incorporating the “nanny” principles and to the Constitution. If these could be made constitutional with any logic possible, anything could, and any pretense of a government with limited powers ended.
Sep 8, 2015 | Constitution, Immigration, Liberty Articles
By Harold Pease, Ph. D
Amazingly Presidential Candidate Donald Trump is right; birthright citizenship does not exist in the Constitution. The establishment media, including Fox News, jumped all over Mr. Trump like a swarm of Africanized honey bees over a pot of honey, attempting to portray him as ignorant on the Constitution. Although he may be on many other things, he is dead right on this part of his recently released immigration plan. Even Bill O’Reilly, on the O’Reilly Factor, ignorantly castigated him on this point. Trump held his ground that the 14th Amendment never authorization birthright citizenship. The ignorance of the establishment press is overwhelming.
Although most of us have great sympathy for those who were infants or born here when their parents illegally crossed the border and have lived here all their lives and know no other country, the 14th Amendment for the casual reader seems to validate such: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” A more careful read, however, shows that such was specifically denied, consider the phrase “subject to the jurisdiction thereof.” The purpose of the clause was to guarantee citizenship to freed slaves and their descendants after the Civil War.
The concept of “anchor” babies refers to those whose parents are illegal immigrants into the United States and while here have a baby. That baby then inherits full citizenship and even the right later, as an adult, to sponsor his/her own illegal parents in their quest for citizenship. The debate for or against the practice of allowing citizenship for babies of illegal’s born in the U.S. rages on with virtually no one going to the source of the alleged authority—the crafters of the 14th Amendment of the Constitution.
Senator Jacob Merritt Howard, architect of the 14th Amendment, actually structured the Amendment (one of two defining the legal status of freed slaves after the Civil War, the other being the 13th which gave them freedom) to prevent that very interpretation. He said: “This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign minister accredited to the Government of the United States, but will include every other class of persons.”
It was he who insisted that the qualifying phrase “subject to the jurisdiction thereof” be inserted into Section I. Those sneaking across our borders in the cover of darkness are clearly foreigners, and not subject to the jurisdiction of the United States, and thus are specifically exempted from citizenship. Notice the exclusion of babies born of ambassadors while here as well. The record of the Senate deliberations on the 14th amendment shows this to be the view of the Senate.
There is no such thing as automatic citizenship from this amendment without serious distortion of it. In fact, Lyman Trumbull, co-author of the 13th Amendment outlawing slavery, addressing the definition of the phrase “subject to the jurisdiction thereof,” asked, “What do we mean by complete jurisdiction thereof? Not owing allegiance to anybody else. That is what it means.”
Those crossing our borders illegally have jurisdiction or allegiance elsewhere and thus cannot have citizenship. How can a child of such a parentage have what his parents clearly do not have? How many are born illegally in the United States per year? Statistics are difficult to validate but the Pew Hispanic Center study estimated 340,000 in 2008 alone. If they in turn are used as sponsors for their parents in their quest for citizenship such could be a million per year.
Citizenship was denied some of my ancestors. Native Americans owed allegiance to their Sioux or Apache or Blackfoot, or whatever, Indian nations and thus were not yet “subject to the jurisdiction thereof” of the nation they sought citizenship in. Certainly one must cease to be at war or conflict with the newly embraced country. This was not granted until 1924 when this requirement was satisfied.
Many of our Mexican friends send portions of their checks home to Mexico and plan to return to their native land upon retirement with pensions and/or social security sent to their “first” country from the country they extracted the wealth—the United States. Some vote in Mexican elections from here. It is indeed hard to argue that they are not instead subject to the jurisdiction of another land other than the United States–and most admit it. Unfortunately for them the U. S. Constitution specifically denies such citizenship.
To the many “bees” from both political parties, and the establishment press, who wish to destroy Mr. Trump’s presidential ambitions, you will have to look elsewhere. On this issue he is on solid constitutional ground as expressed by the Founders of the 14th Amendment.
Aug 25, 2015 | Constitution, Healthcare, Liberty Articles, Take Action
By Harold Pease, Ph. D
When the Supreme Court no longer rules by the Constitution what must states do to force them to do so? It is called nullification and previously has been used to do just that in the 1800’s and more subtly in the last two decades.
Recent Supreme Court rulings with respect to the Affordable Care Act and marriage clearly demonstrate that the Supreme Court no longer honors Article I (requiring that only the Congress make all the law, their rulings can not have the effect of making new law), Article 1, Section 8 (the list identifying federal functions), and the 10th Amendment (reserving to the states all other powers not listed or added to the list by a specific amendment). Neither health nor marriage, or anything remotely like unto them, can be found in the Constitution as federal powers and thus, as per Amendment 10, remain state functions only.
Two years ago 28 states sued the federal government for constitutional over-reach by forcing citizens to buy something that they did not wish to buy called a mandate. The John Robert’s Court, rather than rule this requirement constitutional or unconstitutional, redefined the mandate a tax, (an argument consistently denied by proponents of the law) and thus the Supreme Court effectively made law, a function constitutionally left only to Congress in Article I. In a show of defiance to the Affordable Care Act, this decision prompted 34 states (all but 16) to refuse to establish state exchanges when given a choice by the Court; essentially “If you want it you create it.” They did!! The recent Supreme Court ruling then made resisting states provide the Medicare subsidy given the few states that had set up exchanges. No constitutional authority was cited. Again judicial legislation!! The reason cited by Justice John Roberts was essentially, “Congress created it so we will save it.”
At this point the only power left to the states is the 10th Amendment to the Constitution which reads, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The 28 states initially suing the Federal Government for violating this part of the Constitution and the 34 states resisting the judicial edict to conform must use the Doctrine of Nullification to save the amendment and the Constitution. The issue is that serious! They have no other real choice for a court that no longer uses the Constitution as its sole base for ruling. Federalism, a key part of our republic, is dead otherwise.
The constitutional argument is the same for the Supreme Courts recent ruling legalizing same-sex marriage in all 50 states. Again, the Court disregarded Article I, Section 8, and Amendments 1 and 10 and utterly discarded the philosophy of federalism and the will of the people expressed in every election concerning the matter. Everything in the Constitution prior to 1868 was discarded, even betrayed, in favor of four words in Amendment 14 adopted 78 years later and intended only to extend the Bill of Rights to former slaves. The phases “due process” and “equal protection,” not defined, became fertile soil for federal government’s natural tendency to grow many times beyond original intent—each expansion becoming the rational for even more expansion. Today the Justices have used it to apply to an issue that would be entirely foreign to the framers of the 14 Amendment and to the Founding Fathers a lifetime before.
So again, the states have but one recourse to save the Constitution, federalism and the popular will of the people—nullification. But they must stand together and with one voice say, “not in our state.” States accepting same sex marriage can continue to do so constitutionally but the federal government, without an amendment to the Constitution transferring marriage authority from the states to the federal government, may not do so constitutionally no matter what a combination of five rogues justices say.
Founding Fathers Thomas Jefferson, James Madison, and Alexander Hamilton were especially expressive with respect to the use of nullification but what is clear in their writings is that states do have the authority to “Just Say No!” under the 10th Amendment. Such was used in 1798 in the Kentucky and Virginia Resolves, in 1832 in the Nullification Crisis in South Carolina, and more successfully with the northern states, especially Wisconsin, in 1854 over the highly unconstitutional Fugitive Slave Act.
More recently the 10th Amendment and resulting Doctrine of Nullification is beginning to be used by some states to prevent the federal government’s overreach of constitutional powers. Federal medical marijuana laws are openly defied by many states notably: Alaska, Oregon, Washington, and Colorado. Twenty-three states and the District of Columbia currently have laws legalizing marijuana in some form. States’ refusal to implement the Real ID Act, passed years ago, is a form of nullification. When enough states say no, the feds back away. In 2013, nine State Sheriffs’ Associations put the Executive and Legislative Branches on notice that they support the traditional interpretation of the 2nd Amendment of the Bill of Rights and 336 elected county sheriffs inferred that they would protect their people on this issue—even against federal agents coming into their counties. Barack Obama and the Justice Department backed away.
States you must use the Constitution to save the Constitution. In unison you must say, “We refuse to honor these clearly unconstitutional rulings in our state.”
Aug 11, 2015 | Constitution, Liberty Articles
By Harold W. Pease, Ph. D
Hundreds of articles and broadcasts recently have been written or aired posing the question, “Should Congress pass the Iran Deal?” All demonstrate a lack of constitutional knowledge and the establishment media, ignorantly or knowingly, omits the constitutional perspective in the proposed Iran Treaty, which we give here. Were the Constitution actually used as intended by the Founders, and as used for 150 years, the Iran Treaty would be dead on arrival. Unfortunately the perversions of the constitutional treaty-making process allow faulty treaties to become reality.
The typical definition of congress, and the one used by the media, includes both the U.S. Senate and the U.S. House of Representatives. For the House to have a vote would be unconstitutional, as the Constitution clearly gives this function to the U.S. Senate alone. Article II, Section 2, Clause 2 of the Constitution says that the President “shall have Power, by and with the Advice and Consent of the Senate to make Treaties, provided two thirds of the Senators present concur.”
The advice function is performed during the creation of a treaty and the consent function is thereafter, once an agreement is presented to the Senate. Many presidents have not sought the advice of the Senate when they created treaties and certainly Barack Obama has shown no tendency to do so either, preferring to prepare a treaty without any advice from it. So this part of the treaty-making process has effectively been handed to the executive branch some time ago.
Obama’s violation of the Constitution goes even deeper. In calling it a “deal,” rather than a treaty, he hopes to blur the difference and bypass the Senate roll required by the Constitution. If treated as a law, rather than a treaty, he is only required to obtain a mere majority vote of each house which is infinitely easier to get than 2/3rds of a senate controlled by an opposing party. He than can override an opposing vote should it come. This would give a president, any president, far more power than intended by the Framers. The Senate function has no presidential veto and stands on its own. The treaty must get the approval of 67 senators or it is dead as it stands. Knowing this a president is far more likely, from the beginning, to work with the Senate to vastly improve a favorable outcome.
Throughout history a treaty has been defined as any agreement between two or more countries. Presidents, anxious to expand their powers beyond constitutional limits, began to look for ways of doing so and their obedient followers gave no resistance. Probably the first to intentionally do this was President Franklin Delano Roosevelt who began calling treaties, that he feared might not get the required 2/3rds Senate vote, executive agreements, a term not mentioned in the Constitution but uncontested by his vast following. He could now unilaterally approve everything internationally that he did. This was one reason that after his death his own political party supported the two-term limitation on the length of time a president served. Presidents become too powerful, but the precedent of avoiding the term treaty in favor of agreement and going the back door route for implementation continued.
President Bill Clinton, realizing that on NAFTA (the North American Free Trade Agreement) he could not get a two-thirds vote for treaty confirmation in the Senate as required, purposely used the word agreement rather than treaty, thus treating it as a law, which then required only a simple majority of both houses of Congress for confirmation. He used the same unconstitutional technique on his second major treaty of his two terms in office, GATT—General Agreement on Tariffs and Trade.
So constitutionally deteriorating has our treaty making process become—even for Americans—the U.S. Senate last March felt they needed to advise the Iranian government that promises of any president required confirmation by them. And if bypassed, which the Senate feared might happen with Barack Obama in office, a predecessor could reverse such. We are different from most countries in the world in this respect. The leaders of the Islamic Republic of Iran were advised by the letter of the separation of powers in the Constitution between the executive branch, which makes international agreements, and the legislative branch that must approve such; that a treaty must be ratified by two-thirds of the Senate; and that without this majority vote of Congress it is merely an executive agreement and potentially meaningless after, in this case, Obama leaves office. It ended: “We hope this letter enriches your knowledge of our constitutional system and promotes mutual understanding and clarity as nuclear negotiations progress.”
The Obama deal would require a 2/3rds negative vote of both houses for override and defeat. Under the Constitution his treaty would require a two-thirds vote for its approval. The constitutional way is much more difficult to obtain and improves the probability of better treaties. Both political parties must return to the constitutional treaty making provisions. Again, the Constitution as used for most of our history would leave the Iran Treaty dead on arrival because if it could not get the 2/3rds vote of the Senate confirming, it ends. The Senate, not the president, has final say.
Jun 19, 2015 | Constitution, Liberty Articles
By Harold Pease, Ph. D
The Patriot Act is now repackaged with a new name, The USA Freedom Act and unfortunately government’s unwarranted and indefinite storage of private records and communications continues. The new spy law, as was its predecessor, remains an attack on the 4th 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 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 are our papers. 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 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 Freedom Act through proxy corporate entities charged with keeping our records for potential government inspection is clearly unconstitutional.
Moreover, the new USA Freedom Act violates the Fifth Amendment as well in that the accused is, in a very real sense, forced to be a witness against himself—perhaps the only witness. The Amendment reads in part: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, … nor shall be compelled in any criminal case to be a witness against himself.” It is his papers, emails, and phone conversations that convict him. He has unconstitutionally been made the principle witness against himself.
“No federal government!” You must tear down your $2 billion NSA Bluffdale, Utah spy facility capable of storing a Yottabyte of our private information against our will. You must do likewise to your Oak Ridge plant that houses the fastest computer in the world designed to analyze our private data for your own purposes; and the latest revelation—to share that information with seven sister federal agencies. Spying on your own people directly as in the Patriot Act or now requiring corporations to do it for you under the Freedom Act, is a blatant violation of the Constitution. You may argue that you are only protecting us from bad people out there but who protects us from you? Fortunately the Constitution does if only enough will begin to use it in their voting practices and those we elect will honor their pledge to protect it, and us, from you.
Dr. Harold Pease is a syndicated columnist and an expert on the United States Constitution.
