Aug 13, 2012 | Constitution, Take Action
By Dr. Harold Pease
While on vacation in a neighboring state helping my son-in-law build a second bathroom for his soon to be family of six, I noticed more fully what I have always known; if your base is wrong so is everything else. Nothing was square, plumb or level. Things fit, and almost fall into place as if by design, when the base is right. When the foundation is level and when studs are vertically placed 16 inches on center 4 by 8 sheets of sheetrock fit perfectly, as does every thing else. If, as in my case, there are no true reference points, or constants, nothing is right, nothing fits. I had to begin anew with a rectangle room without a single wall from which to get a true bearing. Getting back to the basics that I new to be true, was painful and many times harder, but it had to be done.
In construction, as in all areas of endeavor, there are tools to get us back to proven constants such as a squares, chalk lines, or levels. In other fields it may be a ruler, compass, or a Bible. Ancient mariners used the North Star as a constant. Math, algebra, geometry are based upon constants. In chemistry water is always, and forever will be, H2O and freezes at 32 degrees. In government the constant should be the Constitution. My point. What are your constants? What do you use to decide if something is true?
Are there constants in all fields of study—even in political science? Yes! When I find another out of harmony with myself, I want to know his/her constants. What do you read or watch? What is your base? I am unimpressed when I hear the labels republican, democrat, liberal or conservative as these change—thus are not constants. John F. Kennedy, a liberal and a democrat, would make George W. Bush, a conservative and a republican, look very liberal. These terms are not trustworthy over time.
I am far more impressed when opinion is based upon factors resistant to change such as natural law and human nature are mentioned instead. Because the Constitution is based upon these constants it will deal with every crisis now or another 200 plus years from now. The Preamble identifies the purposes of government. For over 20 years I have asked my students in every political science class what they would add or remove. What is outdated or no longer relevant? No additions or deletions have been suggested.
So, what are some of those time-tested constants? Let’s identify two big ones. First, all governments tend to grow. They view everything in a way to extend their power. Either the government comes to control the people or they control it. That is why historically countries that are truly free are rare and why we are losing our freedom today. Second, the more apathetic and indifferent the public becomes the greater their tendency to shove decision-making power upward to the seat of government.
To prevent the growth of government all power not listed in Article I, Section 8, or identified in a subsequent amendment, was left with the states and the people (Amendment 10). The little power remaining was then specifically identified and separated into a branch to make all law (Article I, Section I), another to execute the law (Article II), and yet another to adjudicate the law (Article III), each with a list of powers in its respective area. The Bill of Rights was ten areas specifically identified as off limits to the federal government—again to keep it from totally controlling the people.
The constants of the Constitution will keep the government from dominating or controlling everything. It will even checkmate apathy for a time until a majority of the people fall into this category. These constants must be taught in our homes and schools so that we are not “tossed about by every wind of doctrine,” and that we have a dependable base to reference. It is our level, chalk line, and square in government and if not used nothing is right and nothing fits.
Just as a child eventually learns that he must understand, and be in obedience to, the law of gravity to survive, we as a nation must return to constitutional constants to survive as a free nation. Will you make the Constitution your constant and only vote for those who do likewise?
Dr. Harold Pease is an expert on the United States Constitution. He has dedicated his career to studying the writings of the Founding Fathers and applying that knowledge to current events. He has taught history and political science from this perspective for over 25 years at Taft College. To read more of his weekly articles, please visit www.LibertyUnderFire.org.
Aug 3, 2012 | Constitution, Take Action
By Dr. Harold Pease
How many times have I heard that if something is wrong with a law of Congress the Supreme Court will stop it and that the Court is totally independent of Congress? Both views are decidedly incorrect. Supreme Court members may, in fact, agree that something is unconstitutional but they, by themselves, or as a body, are helpless in blocking it unless it is first challenged by someone else.
The Supreme Court may not interfere with any law unless someone is hurt or damaged by it and is able and willing to challenge the law, over a long period of time, with the likelihood of a costly but doubtful conclusion. In other words, much that is unconstitutional goes unchallenged by the Court and, if not challenged, becomes past practice and later is often used to support new alterations to the Constitution. The Court is only a partial check on constitutional law. Congress, the body charged with making all law, as per Article I, Section I, is to responsibly check itself with the Constitution. Members of Congress take an oath to do so. The voter does not take an oath but is expected to have greater loyalty to the Constitution then to political party, to be familiar enough with the Constitution to spot indiscretions, and to remove those who would defile it through ignorance or intent.
Like the legislative and executive branches, the Supreme Court too has a list of power. We count eleven. The Constitutions reads, “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;–to all Cases affecting Ambassadors, other public Ministers and Consuls;–to all Cases of admiralty and maritime Jurisdiction;–to Controversies to which the United States shall be a Party;–to Controversies between two or more States; –between a State and Citizens of another State,– between Citizens of different States,–between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects” (See Article III, Section II.
Again, the judicial branch too is limited by a list, and case types not listed are not federal jurisdiction. If a list did not exist the Supreme Court could adjudicate wherever it wished which clearly was not the intent of the Founders. Although not constitutionally required, it is a good idea for the Court to identify one of the eleven powers that gives it jurisdiction before it takes on a case and again when a decision is rendered. Such would remind it, and sometimes us, of its limited role.
In fact, unbeknownst to most, The Supreme Court may not be permitted to render judgment in a case if Congress puts them on notice not to. Congress was given much say with respect to the cases the Court could adjudicate. In only two of the case types noted on the list—public servants and those when a state is involved—does the Court have sole, or uncontested power. In all others Congress retains oversight, which means that they can deny the Court from adjudicating altogether and/or influence the Court’s decision. Again the Constitution reads, “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” Notice the difference between original and appellate jurisdiction. Also notice the wording, “under such Regulations as the Congress shall make.” Unfortunately, Congress has never used this power to “rein in” an unruly Court but it remains constitutional should they choose to do so.
Bottom line, the Supreme Court was never given the authority to exam all laws of Congress weeding out those that were “wrong” (constitutionally questionable), nor was it ever created to be entirely independent from Congress. Yes, it is a separate branch of government but Congress was left a definite supervisory roll over it. Do your members of Congress know this?
Dr. Harold Pease is an expert on the United States Constitution. He has dedicated his career to studying the writings of the Founding Fathers and applying that knowledge to current events. He has taught history and political science from this perspective for over 25 years at Taft College. To read more of his weekly articles, please visit www.LibertyUnderFire.org.
Jul 29, 2012 | Constitution, Healthcare, Immigration, Take Action
By Dr. Harold Pease
What if the Supreme Court became an arbitrator trying to please both sides rather than “letting the cards fall where they may,” ruling alone on constitutionality as designed? In the end neither side is really happy and the Court’s function is blurred or discredited. What if preserving its own image became more important to justices than defending the Constitution? Or worse, what if the Court forced a round peg into a square hole, so to speak, to force a decision not intended, or argued for by either side therefore creating new law—a function of Congress alone? What if all of the above were in one decision such as with the recent Supreme Court decision on National Healthcare? How can the states or people keep the Supreme Court in line with the U. S. Constitution? The answer is in the Constitution as understood by the Founders.
Our constitution first divided power between the states and the federal government with the powers given to the federal government listed, defined, and limited and those of the states left undefined and not listed, as per Amendment 10. This is known as federalism and is sometimes thought of as a marriage—shared and equal—neither the state nor federal government the master nor slave of the other.
The portion of power left to the federal government is then divided between the legislative, executive, and judicial branches. The down side of federalism (our marriage) is that the umpire is one of the three branches of government at the federal level and as such is likely to rule in favor of a strengthened federal government were it to arbitrate between the states and the federal government. It is equivalent to two adversarial teams playing basketball and the referee is a member of the federal team. The balancing component to this, potentially lopsided division of power, is the doctrine of nullification.
Is it constitutional to say no to the federal government when a state believes a Supreme Court decision to be unconstitutional? One having a limited knowledge of the Constitution would say no and cite Article VI, the supremacy clause, as the end of the matter. On matters listed in the Constitution he would be right, but this time the Supreme Court has ruled on something where it lacks authority to rule, clearly a state issue, and as such, if left unchallenged, certainly damages, perhaps even nullifies, the 10th Amendment of the Constitution, which leaves to the states all areas not delegated to the federal government. This understanding pre-existed any law on health by a couple of centuries.
To curb the umpire (Supreme Court), should he clearly favor one side, the Founders supported the doctrine of nullification. Rather than sue the federal government for having exceeded its constitutional power, the 26 states so doing should instead have followed the Idaho example and in essence said “not in our state.” The effort to grow the federal government beyond the listed bounds would have been unenforceable if enough states did so.
Such has two historical precedents. Thomas Jefferson in 1798 attempted to nullify The Alien and Sedition Acts created by his Federalist Party predecessors. These raised residency requirements for citizenship from 5 years to 14. Moreover, the law allowed the president to deport “dangerous” foreigners during times of peace and imprison them during times of hostilities. Anyone defaming or impeding government officials, including the president, was subject to heavy fines and/or imprisonment. Jeffersonians objected on the basis of the unreasonable empowerment of the president and the attack on the First Amendment, particularly freedoms of speech and press. They too said, “no will do.” Because nullification was better understood as part of the “balance formula” of the Constitution and because the offending law was designed to last only until 1801, (Federalists did not want it used against them should they lose the next election), nullification stayed in place.
Next to use the Nullification Doctrine was South Carolina with respect to the 1828 “Tariff of Abominations,” believed by them, and neighboring states, to be unconstitutional. Opponents to it declared it to be “null and void” within their border and threatened to take South Carolina out of the Union if Washington attempted to collect custom duties by force. President Andrew Jackson prepared to invade the state. A compromise Tariff of 1833 gradually lowered the tariff to acceptable levels and the issue faded away.
One might argue that the Civil War ended the Nullification Doctrine but the real root cause of the Civil War was the practice of slavery, (I am aware that the immediate cause was keeping the union together), which practice made a mockery of the whole liberty concept. The slave issue pre-dated the Declaration of Independence and I would need another column to show why the war did not exempt the nullification argument.
Critical to the success of the Nullification Doctrine is the number of states committed to it. Obviously one state or a few, unable to prevail at least a majority to follow, would be easily overpowered by an overwhelming federal government power. But if the 26 states, who sued the federal government on the mandate issue, now said we will not comply, the federal government would be forced to find a face-saving exit on the issue and back down. That is the final constitutional check on overreaching federal power—the one least talked about and understood. If, at this time, the states do not care enough to preserve their power they deserve not to have it, or liberty.
Dr. Harold Pease is an expert on the United States Constitution. He has dedicated his career to studying the writings of the Founding Fathers and applying that knowledge to current events. He has taught history and political science from this perspective for over 25 years at Taft College. To read more of his weekly articles, please visit www.LibertyUnderFire.org.
Jul 22, 2012 | Constitution, Immigration, Take Action
By Dr. Harold Pease
What follows are six major changes to traditional constitutional procedure that have happened the past six months, none of which through the change process required in Article V of the Constitution, but each will adversely affect the distribution of power in this country and how we define liberty in the future. This time period could very well be the most radical six-month period of constitutional change in U.S. history. Should we be concerned with, or worse, frightened by, our own government?
We begin on New Years Eve with the President signing into law the 600-plus pages National Defense Authorization Act which, among other things, authorizes the military to seize and transport U.S. citizens from U.S. soil to Guantanamo Bay on the presumption that they are terrorists. The threat of potential indefinite incarceration without recourse to lawyer, judge and trial is unconscionable in a free society. The new law ends the writ of habeas corpus found in Article I, Section 9 of the Constitution and Posse Comitatus protection (protection from ones own armed forces). It also lays waste to much of the Bill of Rights, notably Amendments 4, 5, 6, and 8. Its intimidation potential will impact free speech, press, and assembly as well. Local law enforcement is essentially bi-passed.
Then in February, The National Operations Center (NOC), a part of The Department of Homeland Security, released its “Media Monitoring Initiative” giving itself permission to “gather, store, analyze, and disseminate” data on millions of users of social media, primarily Facebook, Twitter, and YouTube. So far they appear less concerned with the information on the average Joe or Jane, although all is kept just in case, as they deal with unmanaged journalists and bloggers. These are defined as those who use “traditional and/or social media in real time to keep their audience situationally aware and informed,” such as myself. Targeted are those who post articles, comments, or other information to popular web outlets. It is a clear violation of the 4th Amendment in the Bill of Rights.
In March we saw and heard Joint Chief of Staff Chairman General Martin Dempsey and Defense Secretary Leon Panetta, each, in testimony given to the Senate Armed Services Committee, inferred that the authority that they depended upon for military purposes came not from Congress, as required in the U. S. Constitution, but from unelected UN or NATO authorities. Disbelieving what he heard, Senator Jeff Sessions repeatedly inquired in different ways only to be given the same answer.
Also, on March 16, President Barack Obama issued his National Defense Resources Preparedness Executive Order authorizing the Executive department to take-over, in case of a national emergency, all civil transportation, including the “movement of persons and property by all modes of transportation … within the United States.” Other things specifically listed to be under his sole control were: all forms of energy, all farm equipment, all food resources, all food resources facilities, all health resources, and all water resources (Section VIII). “National emergency” was never adequately defined. Nor was it explained why the president needed near dictatorial power in a national emergency and had not in crisis heretofore or when this dictatorial power would end. The Order makes The National Security Council and Homeland Security Council the policy-making forum—not Congress.
In June, frustrated by his inability to get through Congress a law on immigration he favored, and tired of making law the constitutional way, President Barack Obama, openly defied Congress and the Constitution on June 16, 2012, by ordering a like measure to that previously defeated, implemented anyway. In a news conference he outlined the general parameters of his “Dream Act” but specifics came from a six-page Memorandum from John Morton, Director of U.S. Immigration and Customs Enforcement (See FEA Number 306-112-0026), to enforcement personnel, which essentially advised ignoring existing immigration law. Although our empathy goes out to the children of illegals raised in the United States, is it now permissible for future presidents to make law and defy the authority of Congress?
Finally, despite the clear wordage of the Constitution that “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,” the Supreme Court essentially wrote new law by its ruling, in June, on National Health Care. Even Justice Anthony M. Kennedy referred to it as “vast Judicial overreaching” or “Judicial legislation.” So is it now okay if the Court attempts “to force on the nation a new act?”
So, with respect to these six major changes in traditional constitutional procedure occurring the last six months, should we be concerned with, or frightened of, our own government? How can we not be? Think of all the power taken by, or hand delivered to, the office of President. What event awaits us when such will be used? Unless Congress is willing to reverse the above six items, it may very well be making itself, and the Constitution, irrelevant. You can help by refusing to support any candidate who is not aware of, and is actively against, any of the six constitutional procedure changes noted above.
Dr. Harold Pease is an expert on the United States Constitution. He has dedicated his career to studying the writings of the Founding Fathers and applying that knowledge to current events. He has taught history and political science from this perspective for over 25 years at Taft College. To read more of his weekly articles, please visit www.LibertyUnderFire.org.
Jul 17, 2012 | Constitution, Economy, Healthcare
By Dr. Harold Pease
The U.S. Constitution requires that states remain a republic and gives the federal government authorization to mandate such (Art. IV, sec. 4), but does it work the other way? Can the states require that the federal government remain a republic and not turn into a socialist state? With the Affordable Care Act one seventh of the economy is turned over to the federal government.
Such is the question posed by Arizona in a new initiative that just qualified for the November ballot. If passed it would give Arizonians two ways of ignoring federal law that exceeds the constitutional powers of the federal government as identified in the U.S. Constitution, either by vote of the Arizona Legislature with the signature of the Governor, or, by the people through a ballot measure. All other powers “are reserved to the States, or to the people,” as noted in Amendment 10 of the Constitution. Arizona acknowledges the U.S. Constitution as “the Supreme law of the land” but will add to her state constitution language prohibiting the U. S. Constitution from being violated by any government, including the federal government.
One of the reasons that the states took three years to ratify the constitution, as submitted by the Constitutional Convention in 1787, was because of their paranoia of big government. Having expelled British tyranny, the last thing that they wanted was to have it return in an American form. They wanted a list of “thou shalt nots;” things that the federal government could never do to them under any circumstances. They called it a Bill of Rights. In the 10th Amendment of that document, they made it clear that all power not listed belonged to the states so the “Arizona take” is clearly constitutionally implied. The federal government is to act only in the 17 areas listed in the Constitution. The word health, or anything like unto it, is not there so such is clearly a state issue. Regardless of the Supreme Court ruling and Justice John Robert’s judicial legislation, the federal government has stolen state authority and in doing so has violated the Constitution.
Both democracy and socialism are hostile to the basic elements of a republic which is decidedly weighted in limited government, is based upon natural inalienable rights, and favors individual differences rather than absolute equality in its philosophical orientation. How far into socialism we have traveled and at what point we are no longer a republic no one can say, at what point does gray become black or pink become red, but certainly one law turning over a seventh of the economy to the federal government is a giant step from a republic and should concern all. It does Arizona.
It isn’t just the one issue of health care where Arizona is concerned but it is the pattern of the never-ending enlargement of the powers of the federal government, at the expense of state prerogatives, and the 10th amendment, that is transforming the federal government from a republic, as understood by the Founders, into something else. It is Constitutional defilement to them and the use of Amendment 10 is central to the restoration of freedom from government and the return of checks and balances of which state jurisdiction is essential, before all power is housed at the federal level and we are no longer free.
Examples of federal overreach are everywhere. Proponents of this change in the Arizona Constitution cite federal speed limits and the federal ban on incandescent light bulbs, as examples of other intrusions into state power (Arizona’s Secession-lite plan, by Alex Seitz-Wald, July 6, 2012) but they could list dozens more. This has to stop they contend and with an overreaching compliant court, they are rightfully using the 10 Amendment tool to do so. Certainly in upholding the 10th Amendment to the Constitution other states should join them.
Dr. Harold Pease is an expert on the United States Constitution. He has dedicated his career to studying the writings of the Founding Fathers and applying that knowledge to current events. He has taught history and political science from this perspective for over 25 years at Taft College. To read more of his articles, please visit www.LibertyUnderFire.org.
Jul 9, 2012 | Constitution, Healthcare, Taxes
By Dr. Harold Pease
With respect to the Supreme Court’s ruling on National Health Care, Justice Anthony M. Kennedy said that the court majority “regards its statutory interpretation as modest. It is not.” Then, noticeably disturbed by the ruling, added. “It amounts to a vast judicial overreaching. It creates a debilitated, inoperable version of health care regulation that Congress did not enact and the public does not expect.” He called it “judicial legislation” and accused Chief Justice John Roberts of trying to “force on the nation a new act.”
Judicial activism is when a law of Congress is interpreted by the Supreme Court in such a way as to give it new meaning. George Washington warned us in his Farewell Address of the inclination of government to do so. “Let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed.” Usurpation, in his day meant twisting things around to extract meaning that was initially not there.
So what did Justice Roberts twist or legislate that changed the National Affordable Healthcare Act (Obamacare) as passed by Congress? At the top of the list, his rewrite called it a tax when Congress never passed it as a tax and the political party passing it, and their President, Barack Obama, emphatically resisted any description of it as such. Rich Lowry, a political commentator, said it best. “Obamacare as passed by Congress had a mandate to buy health insurance and a penalty for failing to comply. Obamacare as passed by the Supreme Court has an optional tax for those without health insurance. Obamacare as passed by Congress required states to participate in a massive expansion of Medicaid, or lose all their federal Medicaid funds. Obamacare as passed by the Supreme Court makes state participation in the Medicaid expansion optional.” In short, “Obamacare as passed by Congress didn’t pass constitutional muster. Obamacare as passed by the Supreme Court didn’t pass Congress” (The Umpire Blinks, by Rich Lowry, The Corner, National Review Online, June 29, 2012).
Judicial Legislation or Activism is not new. The desire for the Court to “legislate” through decisions expressed itself more fully the last sixty years as it attempted to “right” perceived wrongs instead of sending the faulted legislation back to the legislative branch for correction by the peoples’ representatives. By altering legislative law it has moved into state prerogatives such as education, state residency requirements, and imposed federal standards of procedure on local police to name but a few. In broadening its power base, far beyond Constitutional restraints, it has almost destroyed the idea of two co-equal governments, one federal the other state, known as federalism.
In the National Affordable Healthcare Act the Supreme Court has effectively retrained further encroachment (mutilation) of the Commerce Clause but opened wide the interpretive door that the federal government can control anything it taxes. So, does this mean that if the federal government wishes to control free speech, press, assembly, religion, guns, or any other activity, it first simply levies a tax on that activity? Apparently judicial legislation creates a “need” for additional judicial legislation. God help us!!
We must return to our foundation the U.S. Constitution as written, without all the judicial or executive alterations that go beyond this document. According to Article I Section I, “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.” There is no authority for either of the two other branches of government to make law—any law; and law made by Congress is specifically listed in Article I, Section 8 where 18 clauses identify the powers of the federal government. So, even Congress cannot make any law they like. The issue of health is not noted and is therefore, as per Amendment 10, entirely a state issue. The Supreme Court majority ruling ignored this long-term clarity and instead chose to violate the document they are charged with upholding.
Dr. Harold Pease is an expert on the United States Constitution. He has dedicated his career to studying the writings of the Founding Fathers and applying that knowledge to current events. He has taught history and political science from this perspective for over 25 years at Taft College. To read more of his weekly articles, please visit www.LibertyUnderFire.org.
