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.
Jun 9, 2015 | Constitution, Liberty Articles, Take Action
By Harold Pease, Ph. D
Anyone the least bit familiar with the Constitution and its early history knows that, despite lip-service to it, neither political party follows it, nor do any of the three branches of government actually limit themselves to their specific articles in it. All three operate outside the carefully crafted cages to which they were assigned. So how do we get the federal government back to servant rather than master? Well-meaning conservatives are wrong in their push for a new constitutional convention for the following reasons.
To begin with, why argue to get what you already have? It is a far weaker argument because it implies uncertainty on your part that you already have it. The federal government is already limited by the existing Constitution: Congress to a precise list in Article I, Section 8. The President is limited to a list housed in Article II, Sections II and III. The Supreme Court is limited to eleven types of cases most with but appellate (limited by Congress) jurisdiction and only two totally free of the restrictions of Congress called original jurisdiction. All other power was reserved to the states as per Amendment 10 of the Bill of Rights. Again, to argue that we need additional amendments to get the federal government to abide by what was already understood as their limits of power is to argue to get what we already have.
An argument within the Constitution is much easier to make than asking that three fourths of the states accept something new and somewhat foreign to them. Three-fourths of the states is a big number and takes many years to acquire, and in a nation somewhat constitutionally illiterate is likely to fall short of the states needed. Meanwhile, the case for living within the Constitution can be made today because a majority of the people was taught some level of reverence for it. Showing them how the federal government has strayed from clearly cited restrictions in the document is a much easier case to make.
The argument that we have already unsuccessfully tried to keep the federal government within constitutional bounds is legitimate. But to suppose that a George W. Bush or a Barack Obama will stay within the bounds of new amendments when, with impunity, each has violated those amendments in existence is as naive as believing that more gun control laws will cause the criminals to turn in their guns.
A new Constitutional Convention potentially exposes everything that we already have placing everything at risk. Where is the basis for faith that the new “Founders” will not tamper with established basics? Three Twentieth Century amendments seriously damaged previously sacred foundation points of a republic: the 16th gave the federal government unlimited resources to spend in areas not listed as their function in Article I, Section 8 and the states lined up with alms bowls in hand for the grants. The 17th removed State influence and consent in lawmaking thus irreparably damaging the concept of federalism so critical to limiting the power of the federal government. The 18th outlawed the consumption of alcohol in the nation for ten years giving the government the right to tell its people what they can drink.
Some argue that we can limit the extent of change in a new convention. It is well to remember that the original delegates to the Constitutional Convention were not authorized to dump the Articles of Confederation, but did, exposing everything that then existed. Can proponents of a new convention guarantee that that could not happen again? No!
Why would we suppose that new founders would have an equal to, or superior, understanding of natural law upon which the Constitution was based? We assume that the states will be anxious to get their powers restored to them but where is the basis that they see such a need? Do not almost all elected federal government personnel first serve in state legislatures then abandon the state perspective when they reach Washington DC?
Finally, the enemies to limited federal government yearn for a constitutional convention as well. They want everything dictated from Washington DC—an all-powerful government. Such groups as Wolf-Pac, AFL-CIO, Code Pink, Progressive Democrats of America, and the forty-five political action organizations funded by George Soros (New American, April 7, 2014, p. 18) are just waiting for the opportunity to empower themselves and government more fully. Who can promise that they will sit idly by while we further limit their ability to manage us?
Holding to the Constitution with exactness is our only real secure way to take back our country. Our weapons are the limiting clauses of the Constitution and Amendment 10 of the Bill of Rights. Political parties have failed us. Encouraging our people to become Constitutionalists first is a better approach. As tyranny grows so will support for our cause. Conservatives and liberals please don’t risk losing everything by an ill-conceived constitutional convention. The answer is to make the government abide by what they have by oath promised and, when needed, carefully craft new amendments one at a time, as for example a balanced budget amendment.
May 26, 2015 | Constitution, Economy, Globalism
Harold Pease, Ph. D
Thank goodness for traditional Democrats with wisdom and experience from a previous trade deal that badly hurt the American worker. They are, for the second time in a generation, opposing their own president for selling them out.
Three weeks ago Democratic lawmakers joined union leaders and hundreds of other Democrats in a rally on Capitol Hill to express their outrage with the request of President Barack Obama, to extend fast-track status to what is called the Trans-Pacific Partnership. All speakers were angry, one referring to the White House, “We don’t trust you.” Rep. Alan Grayson called the Administration a “sellout government,” and suggested that it did not seem to matter “who’s in charge, Democrats or Republicans.” He wanted to “take back our government from the political acrobats and the corporate aristocrats.” The crowd cheered. Still others wanted to know what Obama was hiding in the 27 chapter agreement between the Pacific Rim countries, reportedly only five having anything to do with trade itself, since they were asked to approve fast track-status, basically an up or down vote without changes, and without being able to read it. Senator Elizabeth Warren yelled “No more secret trade deals!” And, “No more special deals for multinational corporations!!” Again, these are Democrats accusing Obama of selling them out.
Traditional Democrats feel that they are watching the same movie as provided by President Bill Clinton when he shoved the over 3,755 page North American Free Trade Agreement (NAFTA) (two volume copy of treaty and supporting documentation in my possession) down their throats, similarly on a fast-track approval process, some twenty-two years ago with precisely the same arguments, that it would expand American jobs. It didn’t!! They were then; as now, overwhelmingly opposed to it, but he was their president so enough supported him to get the deal through. Most democrats with union membership understandably felt betrayed.
The process then and now is the up or down vote without debate and a simple majority vote of both houses of Congress—a process not in the Constitution. Constitutionally the House of Representatives has no treaty-making function. Solely the Senate possesses this power. Clinton, realizing that 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.
Obama seeks the same unconstitutional process for his treaty; presenting it to both houses for a simple majority rather than to the Senate for a two-thirds vote as constitutionally required. If not stopped now this will be the trend for future presidents as well. No member of Congress should participate in this constitutional distortion or ever vote affirmatively on any measure that they have not fully read and been thoroughly vetted with colleagues and the public.
Even Obama in 2009, seeking union votes in Ohio, described NAFTA as having been devastating to the working class. He claimed in the Bloomberg News that it had cost 1 million American jobs and led to “entire cities” being “devastated.” Yet it is he that now betrays his base support as had Clinton in 1993, the father of NAFTA.
Last week Democrats courageously prevented an affirmative vote for the hated fast-tracked secret treaty but enough were swayed by personal phone calls from the President to get committee passage. In the Senate it now goes to the full body.
The Republican base is generally supportive minus the Tea Party contingent. Patriots worry not only over the loss of American jobs that will result, but also about expanded corporate international control of every person on earth (formerly referred to as world government). They also view corporate management of the economy as not the free market and they have problems with the distortions to the Constitution to achieve it. They are also troubled by the secrecy surrounding the whole agreement. Secrecy and liberty are rarely compatible.
Thus far Senator Rand Paul is the only prominent presidential candidate from either major party expressing the belief that the treaty should be made public immediately before any vote is taken on it. At present Senators are only allowed to read the 800-page document (probably treaty only without supporting documentation) in a room with signs on the door, “No Public Or Media Beyond This Point.” No private copies are allowed to Senators and they are not to disclose its contents—thus the charge secret agreement. Paul plans to oppose it but his Kentucky counterpart, Senate Majority Leader Mitch McConnell, promises to run it through as quickly as possible. We soon will know the position of the remaining presidential contenders. Freedom advocates are advised to reject from further office any member voting for fast-tract consideration or any measure without full disclosure, public vetting, and congressional debate.
Again, thanks to the Democratic Party faithful that have been bold enough to resist the intrigues of their own president to abandon the American worker and instead to protect him. Hopefully constitutionalist will join them in their efforts. It will take more than party to reclaim our liberties and our jobs.
Dr. Harold Pease is a syndicated columnist and an expert on the United States Constitution.
May 18, 2015 | Constitution, Liberty Articles
By Harold Pease, Ph. D
The California State Legislature is contemplating joining other states in proposing an Article V Constitutional Convention to change the U.S. Constitution like unto that used by the Founding Father in 1787. Under the authorship of Assemblywoman Shannon Grove, it patterns its proposal after sister states Alaska, Florida, Georgia, and New Hampshire each of whom falsely presume that they can limit a new constitutional convention to only the proposals submitted. This column is directed to state representatives in other states also under the same false assumption. Unfortunately well-meaning patriots throughout the land, in their desire to “take back their government,” are, in their ignorance of our history, risking the Constitution itself.
Article V reads, “The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution.” Outside the Bill of Rights we have had 17 such changes. But what if Congress itself becomes corrupt and will not initiate change, as is the case now with the federal governments failure to be fiscally responsible? The Founding Fathers gave the people a second avenue through their states to force Congress to enact change. “Or, on the Application of the Legislatures of two thirds of several States, shall call a Convention for proposing Amendments which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the States, or by Conventions in three fourths thereof.” But Congress, not the states, calls the convention, “as the one or the other Mode of Ratification may be proposed by the Congress.” Notice that, once called, the states have no power to limit change.
The California call for a constitutional convention limits its delegates to just two areas: “support for amendments that impose fiscal restraints on the federal government, and which limit the power and jurisdiction of the federal government.” (This coming from a state legislature that shows the same fiscal irresponsibility and same tendency to grow its power at the expense of county and city jurisdiction, as does its federal counterpart.) Such a requirement has no force of law once the convention convenes, and if each state submits differing proposals dozens of changes are likely. The convention, already convened, will proceed as did its predecessor, the Constitutional Convention, despite their authorization to only revise the Articles of Confederation. They discarded the entire document and began anew. Fortunately the resulting Constitution is a much better document but unfortunately a precedent was established for starting anew, which WILL BE REPEATED with a new Constitutional Convention. There exists no way to prevent a run-a-way convention.
Yes, proponents of a new convention argue, that the new changes will be returned to the states for three-fourths ratification. This assumes that this requirement was not changed by the new convention. Remember, under the Article of Confederation a unanimous approval of all states was required. The Constitutional Convention changed this to just nine of the thirteen states. Since state delegations are likely to include members of Congress it might be concluded in the new convention that no good reason exists to send it back to the states for ratification. So much for California, or any other state, having any real ability to limit the outcome of a new convention. Moreover, in the last Constitutional Convention new changes were not sent back to the states individually, only the package as a whole. Support or rejection was the only two options allowed. This too will be repeated.
New Hampshire law is probably the most restrictive in making their delegates stay within parameters established by its state legislature, even criminalizing their action if they depart. A new convention, sensitive to the fate of those exceeding their instructions, could in the new document simply void any state punishment for delegates having done so.
There exists a much better way “to take back our government”—the way that already works—one amendment at a time beginning with the proposed Balanced Budget Amendment if desired. Returning to California’s two areas of needed constitutional change, actually we do not need an amendment to restore fiscal responsibility. Article I, Section 7 already does this if used. Nor do we need any new amendments “to limit the power and jurisdiction of the federal government,” Article I, Section 8 and Amendment 10 already do this when followed.
Anyone familiar with the Constitution knows that it is a precious document that reflects the wisdom of the ages and can handle any problems now besetting this nation. In my Contemporary Events political science class students are required to solve problems of today by the Constitution, rather than by political party, and we are successful in every instance. What we lack is not the wordage and authority to bring a wayward government back in line but those who know the Constitution well enough to defend it and use it.
Obviously getting Congress to follow what already exists is the problem. Where is the evidence that they would read, understand, or use a new document, or if we are lucky to get only a few new amendments, any better than the Constitution that under oath Congress has already pledged to defend and obey? The traditional way to use Article V allows plenty of time for debate and there exist no danger of throwing out the baby (the U.S. Constitution) with the bath water.
Dr. Harold Pease is a syndicated columnist and an expert on the United States Constitution.
May 4, 2015 | Constitution, Globalism
By Harold Pease, Ph. D
Many are still ignorant of the coming to fruition after a decade of numerous secret meetings, a huge trade agreement known as the Trans Pacific Partnership or TPP, first initiated under George W. Bush in 2005 and now pushed by Barack Obama, “which when finished, will govern 40 percent of U.S. imports and exports” and “26 percent of the world’s trade” (“Everything you need to know about the Trans Pacific Partnership,” Washington Post, Dec. 11, 2013). It will be the law of the land for the United States and 11 other countries in the Asia-Pacific region without the input of a single U.S. member of Congress. This in violation of Article I, Section I of the U.S. Constitution that mandates that all legislative powers reside in the House and Senate and in no other body. It also violates Article II, Section II that gives only the Senate power of advice and consent on treaties. But reportedly Senators requesting the proposed treaty have been refused access to the secret agreement whereas privileged corporations have no problem obtaining copies.
Critics, mostly Democrats and Tea Party proponents, resent the secretive nature of the agreement’s origin. Those feeling especially threatened include: global health advocates, environmentalists, Internet activists and trade unions. “The treaty has 29 chapters, dealing with everything from financial services to telecommunications to sanitary standards for food,” demonstrating the wide variety of areas believed to be affected by it, but again, it is the secretive nature of it that is most offensive. Apparently TPP participants signed “a confidentiality agreement requiring them to share proposals only with ‘government officials and individuals who are part of the government’s domestic trade advisory process’.” That excludes you, me, the media, and Congress.
Tea Party supporters oppose the treaty primarily because it violates two of its core values: constitutional limited government and the free market. They are also bothered by its likelihood of increasing illegal immigration and view it as a giant leap in the direction of world government because it replaces national sovereignty with international sovereignty. Neocon Republicans, like the Bush’s past and present, favor such agreements. Democrats oppose it primarily because it is likely to send jobs overseas, cost consumers more, and undermine environmental protections. The Democratic Party is split on the deal with Obama decidedly for it and Senator Elizabeth Warren and Democratic presidential candidate Hillary Clinton expressing concerns over potential loss of American jobs. Republican presidential candidate Scott Walker shares the same concern over loss of American jobs. Again, both political parties abhor the secrecy and deception surrounding it.
Amplifying the concern over secrecy and deception is the president’s push for fast track status, meaning an up or down vote of both houses of congress with no debate or amendments. This is blatantly unconstitutional as it, in essence, voids them as the sole architects of law. They have a function far more worthy than merely approving or disapproving law made by benefiting corporations.
The Washington Post acknowledges that the agreement “encompass a broad range of regulatory and legal issues, making them a much more central part of foreign policy and even domestic lawmaking.” Such is curious. The Constitution requires the approval of your two U. S. Senators and your House member for every regulation upon you. There exists no language that any other individual or body—especially an international body—can perform this function. And, international law should not trump “domestic lawmaking.” You have the right to know that these three have read every rule emanating from the federal government upon you. Moreover, the admission that the TPP will influence foreign policy is interesting as only the U.S. Senate may influence foreign policy as per Article II, Section II. Giving a “more central part of foreign policy” to an international agency virtually voids the Constitution in this area and would have been thought treasonous by our Founders.
Were it not for Wikileaks who published the chapter on intellectual property in early November 2013, this and so much more would still be off limits to the media and everyone else. This chapter alone raised many questions about copyright protections and obviously this treaty, while billed as just a trade agreement, included music, film, books, the Internet and appeared to be potentially, as one critic called it, the treaty to “restrict access to knowledge.” And this is but one of 29 chapters.
International law imposed by an army of unelected bureaucrats is not freedom. The Trans Pacific Partnership siphons decision-making power from the elected to the non-elected in a foreign land and will affect every American. Any Congressman, or president, who supports such violates his oath of office “to preserve, protect and defend the Constitution of the United States.”
Dr. Harold Pease is a syndicated columnist and an expert on the United States Constitution.
Mar 17, 2015 | Constitution, Liberty Articles
By Harold Pease, Ph. D
The New York Daily News, March 10, unleashed a firestorm with its front-page depiction of the 47 Republican U.S. Senators who signed a letter to Iran reminding it that Iran’s agreement with President Barack Obama still had to be reviewed, and approved by them. In giant letters crossing the bottom of the page was the word TRAITORS. Senator Tom Cotton, Arkansas Republican, called “Tehran” Tom by one democratic senator, was credited as the author of the letter. All but seven of the Senates 54 Republican majority signed. No Democrat signed and they are furious with this action inferring that the Republicans are siding with America’s enemies even, as Minority Leader Harry Reid said, “empowering the ayatollahs.”
The Senate letter, which I closely read, advised the leaders of the Islamic Republic of Iran 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 ends: “We hope this letter enriches your knowledge of our constitutional system and promotes mutual understanding and clarity as nuclear negotiations progress.” Signatures followed.
But does this letter constitute treason as the newspaper claimed and leading Democrats inferred?
As with every issue first consideration should be, “What does the Constitution say?” The word treason appears in Article III, Section 3, and follows: “Treason against the United States, shall consist only in levying War against them, or in adhering to their enemies giving them Aid and Comfort.” Did this letter, reminding a dictatorial government, where the voice of one dominates, of our constitutional procedures requiring the voice of many, consist of levying war against the United States? No! Did it adhere to the interests of our enemies, which Iran is or we would not have sanctions imposed against it? No again. The Constitution continues: “No Persons shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.” Clearly the Senate Republican letter cannot be attached to any of the properties of treason in the Constitution. Certainly The New York Daily News, and Democrats making the charge, has convicted nearly half of the U.S. Senate as traitors without constitutional basis.
But to the charge that they are interfering with negotiations by reminding the Iranians of our constitutional procedures, the Constitution clearly prescribes such in Article II, Section 2, Clause 2. 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 them. Many presidents have not sought the advise of the Senate when they created treaties and certainly Obama has shown no tendency to do so either, preferring to prepare a treaty without any advice from Congress.
Obviously a letter to a foreign government reminding it that no branch of government operates independently of another in the United States, does not constitute giving advice to the President. But in a distorted way it does. It reminds the President of constitutional procedure as well and places him on notice that he can expect resistance should he circumvent the constitutional treaty-making process.
So why did the Senate not wait for the finished treaty? Because they were afraid. This Congress has experienced the most encroaching president on legislating and treaty-making powers since Franklin D. Roosevelt and they were not certain that he would even present the finished treaty to them for ratification. Remember, this is the same president who by executive order by-passed Congress on executive amnesty thereby making his own law and independently changed parts of the National Health Care Bill at least 14 times with a stroke of the pen with no constitutional authority.
My question to the seven Republicans who did not sign and to all the Democrats in the U.S. Senate is this. Why did you not sign as well? Why is there not bipartisan support of the Constitution? Can’t you see your authority being eroded? If a Republican did the same thing increasingly, by executive order or fiat, undermining the constitutional separation of powers leaving your body weaker than before, you would be all over him. Ironically Republicans would be supporting their president. Neither party sees its own as dangerous.
Dr. Harold Pease is a syndicated columnist and an expert on the United States Constitution.
