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.
Jul 2, 2012 | Constitution
By Dr. Harold Pease
The Second Continental Congress, having been convened for six months, had been engaged in the wrestle for or against independence, the vast majority of delegates being decidedly against such drastic action most of this time. Surely there should be a way of reconciling their differences with Great Britain instead.
This was so even after the battles of Lexington, Concord, and Bunker (Breeds) Hill and the British occupation of Boston. We were at war. King George III had already rejected the Colonists Declaration of Rights, arguing the violation of their rights under British law, and the pacifist Olive Branch Petition, which reaffirmed colonial loyalty to the king and blamed their problems upon Parliament alone. Moreover, he had declared the Colonists in open rebellion. A full six months prior to the signing a declaration of independence, Parliament had removed the colonies from the protection of the British military, ended all British trade with them, and authorized the confiscation of any American vessel on the seas. Still, delegates could not bring themselves to separate from the British Empire.
On July 1, 1776, the Patriots finally risked “putting the question” to a tentative count but were numbingly shocked by the result. Four colonies New York, South Carolina, Delaware and Pennsylvania did not support declaring independence from Great Britain. The Patriots needed to show solidarity. A vote of only nine colonies would show disunity.
This is where the brilliance of John Adams, from Massachusetts, and Richard Henry Lee, from Virginia, came into play. They got Edward Rutledge to use his influence to persuade South Carolina, for the sake of unity, to join those supporting independence, if Pennsylvania and Delaware could be persuaded to do likewise. Convinced that that could never happen, Rutledge agreed. Next, Adams and Lee worked on Delaware which had three representatives, one for and another against independence and a third, Caesar Rodney, who was pro declaration, was recuperating from health problems at his farm 80 miles away and probably would not be able to be there to vote the next day. Apparently he had skin cancer and a sore on his face the “size of a large apple.” The Delaware delegate favoring independence sent a messenger to Rodney to try to get him to the Convention for the vote. This necessitate an 80-mile all night ride by the sick delegate.
Now to change the vote of Pennsylvania with seven delegates, four against independence. Amazingly Adams and Lee convinced two of these to be absent for voting the next day. This would place Pennsylvania in the camp of the Patriots. New York, without instructions to vote for independence, remained neutral refusing to vote at all. Decidedly too many ifs, and would everyone keep their promise? They needed a “little miracle,” perhaps three.
Sometime after lunch the next day July 2, 1776, Caesar Rodney, “caked with mud from head to foot,” having ridden though a severe thunderstorm and torrential rain “entered the assembly room, and when his name was called for Delaware he rose with difficulty but in a clear voice stated: ‘As I believe the voice of my constituents and of all sensible and honest men is in favor of Independence and my own judgment concurs with them, I vote for Independence’ ” (Declaration of Independence: The Keepsake Album of its Creation, by Joseph P. Cullen, American History Illustrated p. 34).
This little miracle made Delaware the 10th colony for a declaration that these colonies were free and independent states. The two lesser “miracles” followed. Pennsylvania followed as planned when the two con-delegates did not show to vote as promised, leaving a simple majority for independence, and Rutledge kept his word and persuaded South Carolina to become the 12th colony for the sake of unity. With New York abstaining the Patriots could announce to the world that the vote had carried without an opposing vote. All this happened within 26 hours, when the day before, at 10:00 a. m., only nine colonies supported independence.
A draft of The Declaration of Independence had been written, reviewed by committee, and tabled on June 28, until after an affirmative vote for independence. This achieved, its finalization by the whole house followed on July 4, 1776, passing 12 to 0, again with New York abstaining. But could all this be vindicated on the battlefield, that seemed just as improbable perhaps needing additional “little miracles,” or would these men merit only the gallows, but that is a story for another day?
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.
Jun 25, 2012 | Constitution, Immigration
Dr. Harold Pease
Normally I do not write on talk show topics, wherein there exists extensive coverage (how be it little depth), I prefer introducing topics missed or under covered by the establishment news, but too few seem to care about the Constitutional fallout from the President’s most unconstitutional executive order/directive ever. Have we no Constitutionalists left in either party?
There is nothing more clear nor basic in the Constitution than the separation of federal power into three branches, one to legislate, yet another to execute that law, and a third to adjudicate possible violations, when contested, of that law—a division of power held “sacred” until the last few decades. The Constitution reads: “All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives”(Article I, Sec. I).
The Executive Branch has no authority to make law—any law!!!! Executive Orders are constitutional only when they cite a single, recently passed law of Congress, where that law needs a statement of implementation by the executive branch. Presidential Directives, a type of Executive Order, differs only in defining how that law, passed by Congress, will be implemented. Neither type is to alter, or defy, law formerly passed by Congress.
For years some in Congress have been working on what is called the Dream Act that would extend amnesty and place illegal immigrants on a course toward full citizenship. Lacking popularity, twice it has failed to get the majority vote of both Houses of Congress required by the Constitution thus leaving existing immigration law unchanged; once, between 2008-2010, when the President’s party controlled everything except the Judicial branch. A president can only suggest a need for new law in his State of the Union Address, and either sign or veto a law passed by Congress, which then, if vetoed, must be overridden by a vote of 2/3rds of both houses to become law. That is it. This is the law of the land and the Constitutional procedure violated by President Barack Obama June 16, 2012, when, failing to get a favorable vote from Congress, openly defied Congress and the Constitution by ordering a like measure to that defeated, implemented anyway.
In a news conference he outlined the general parameters of his plan 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 advises ignoring existing immigration law. If left to stand this becomes existing law without the consent of the people through their representatives voiding the role of Congress. Ironically, if a Republican president did the same thing, the Democratic Party would make the same constitutional argument and rightfully demand immediate retraction of the President’s new law under threat of his impeachment.
This is the most open case of contempt for Congress and the Constitution and the President knew it. In March 28, 2011, he said, with respect to the idea of nullifying Congress on the deportation issue. “The notion that I can just suspend deportations just through executive order, that’s just not the case, because there are laws on the books that Congress has passed.”
So why would he now “flip-flop” and knowingly violate the Constitution? Obama sees an inept Congress that has not placed any restraint on his previous unconstitutional executive orders. He brilliantly also sees a way to “buy” the Hispanic vote. If the Republicans resist he has a powerful campaign issue.
His argument for the violation, “It is the right thing to do.” has nothing to do with the fact that he is usurping the powers given only to Congress, and in the most contemptuous way possible, and establishing a precedent for the continued nullification of Congress. Moreover, he is also in violation of his oath of office to “preserve, protect and defend the Constitution of the United States”(Article II, Sec. 1, Clause 8). His failure to do so is “a high crime,” an impeachable offense, which action should be introduced with bipartisan support with 100 signatures in the Senate and 435 in the House. This issue is that clear.
So why should Democrats be concerned and reign in their president? Because if they do not they, in effect, give permission to the next Republican president to defy Congress on something they had previously established as law, like national healthcare for instance, and by a simple Directive he too could not enforce that law. Democrats must see that their failure to insist on a retraction of the Directive forever weakens the sole power of Congress to make all law and places us on the road of government by decree or edict of one man. You must choose the Constitution over party. How does a president’s defiance of Congress differ from what a king or dictator does? It doesn’t. The Constitution is their to protect all parties and all citizens from arbitrary and caprices rule. Please let it work.
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.
Jun 18, 2012 | Constitution, Take Action
By Dr. Harold Pease
Two things have brought drone warfare to public attention in an amplified way the last few days: our assassination of Abu Yahya al-Libi, Al-Qaida’s second-in-command, and The New York Times release of classified information showing that President Barack Obama, on a weekly basis, reviews a “kill list” and personally authorizes each kill. Is this Constitutional?
The paper revealed a “top secret ‘nominations’ process to designate terrorists for kill or capture” but that there is little interest in capture because of a hidden “take-no-prisoners” policy. In the last three months 20 “presumed terrorists” have been assassinated, 14 in Yemen and 6 in Pakistan. It complicates things when they have to be sent to Guantanamo Bay, thus only one person on the list has been sent to the Island prison. Killing them frees us from those messy practices of “enhanced interrogation” (torture) and “rendition” (exporting torture to foreign nations, called “black sites,” less squeamish about screaming victims), practiced under the George W. Bush administration. Under Obama the dead do not need rendition, military commissions, and indefinite detention, the paper infers (Secret “Kill” List Tests Obama’s Principles, New York Times, May 29, 2012).
Moreover, the Obama Administration also got rid of the messy civilian casualties problem by defining all “military age males in a strike zone as combatants … unless there is explicit intelligence posthumously proving them innocent.” They would not be in the area if they were not also terrorists—guilt by association—they reason. Therefore the Administration can argue, “that not a single noncombatant had been killed in a year of strikes.” One administrative source said, “They count the corpses and they’re not really sure who they are.” Unfortunately for The Administration, The New York Times noted, “Videos of children’s bodies and angry tribesmen holding up American missile parts flooded You Tube, fueling a ferocious backlash that Yemeni officials said bolstered Al Qaeda.” Sometimes our actions create our next wave of enemies.
The case of American citizen Anwar al-Awlaki, an Al Qaeda propagandist hiding in Yemen, presented the President with Fifth Amendment “due process” problems which were quickly swept under the rug. Killed with him, however, was his 16 year-old-son and “Samir Khan, an American citizen who was not on the target list but was traveling with him.”
The President’s reaction to The New York Times disclosure, “First, I’m not going to comment on the details of what are supposed to be classified items… Second, as commander-in-chief, the issues that you’ve mentioned touch on our national security or critical issues of war and peace, and they’re classified for a reason” (Obama ‘Offended’ by Leak Allegations, New York Times, June 8, 2012).
So, are any of these practices Constitutional? Not one!! All military powers are housed under the Legislative branch Article I, Section 8, of the U.S. Constitution except for one. These include all power to declare and finance war, “make rules for the government and regulation of the land and naval forces,” and even determine the land that the military can have for training purposes. The only power left to the president is as “Commander in Chief of the Army and Navy of the United States… ,” notice this, “when called into actual Service of the United States” which constitutionally can only be done by Congress. The totality of his authority can only follow theirs.
As far as I am able to determine there exists no declaration of war by Congress on Yemen or Pakistan (actually on no country presently) calling into “actual service” the military. Instead, our attacks are acts of war on these states. Imagine drone strikes on our enemies in Russia or China. They, being much stronger countries, would be returning fire. Nor is there a specific two-year funding limitation on this “Drone War” as constitutionally required. Moreover, Congress clearly has been nullified in making the “rules for the government and regulation of land and naval forces” in this no end conflict.
Recent presidents have usurped all of the military powers of Congress unto themselves. It is a dangerous slippery slope and clearly exceeds Constitutional authority regardless of who inhabits the White House, more especially when the kills are American citizens who are executed on the say so of just one man, in the Situation Room, thousands of miles away. Executed without the accused having benefit of judge, jury, trial or any of a series of other constitutional rights. Whatever happened to the presumption of innocent until proven guilty? Tell Congress that you want them to adhere to the Constitution with respect to all military conflicts.
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.
Jun 4, 2012 | Constitution, Economy
By Dr. Harold Pease
On January 30, 2012, Supreme Court Justice Ruth Bader Ginsburg surprised many by advising those attempting to create a new constitution in Egypt not to use the U.S. Constitution as its model. “I would not look to the US Constitution, if I were drafting a constitution in the year 2012,” she told the Egyptian people on national television. “I might look at the constitution of South Africa. … It really is, I think, a great piece of work that was done. Much more recent than the U.S. Constitution: Canada has a Charter of Rights and Freedoms. It dates from 1982. You would almost certainly look at the European Convention on Human Rights. Yes, why not take advantage of what there is elsewhere in the world,” (U. S. Supreme Court Justice Ruth Bader Ginsburg To Egyptians: Look to the Constitutions of South Africa or Canada, Not to the U.S. Constitution, MEMRI TV Al-Hayat, Egypt, Jan. 30, 2012)?
Those who wish to undermine the Constitution infer that our Constitution may not be a good fit for other cultures like Egypt. On this score they would do well to remember that we have assimilated every language, culture, religious and ethnic group on earth and we did so because all humans share the same basic need for freedom from excessive government to fully flourish. The Constitution is the most flexible governing document with respect to diversity ever written, and unless modified by progressives such as Ginsburg, it always will be.
Implied is the assumption that because it is old, it is outdated and therefore irrelevant to the needs of our day. This document will always be relevant because it is designed to harnesses the negative aspects of human nature and is based upon natural law; items that do not change from century to century. Man is still power hungry, and the people need to be protected from such hunger, whether man rides a horse, drives a car, or flies an airplane. Our Constitution minimizes these forces by dividing, restricting, and listing power. Should some overreach their power we have elections and impeachment to remove them. Finally, we have a Bill of Rights that further harnesses excessive government. None of these measures have shown themselves to no longer be needful. Justice Ginsburg does not seem to understand this.
When confronted with this “horse vs. airplane” nonsense, I ask my students, “What in the Preamble to the Constitution, which is a statement of the needs of man to which government attempts to address, is no longer relevant? Outdated if you will?” Year after year the answer is the same. Nothing! “Were these the same needs of people 600 years ago and will they be the same for those 200 years from now?” Yes!!! “What would you add?” Again, nothing! Then, the basic needs of man do not change and the Preamble must be the most complete summation of those needs ever recorded. It is based upon a long history of human nature that the well-read Founders understood.
But it does not guarantee housing, or medical rights, as does the South African constitution, some might say. Actually it does not distribute wealth or guarantee anything except the freedom to use one’s own talent to do that for himself and in doing so the Constitution created the most energized and therefore the most universally prosperous society in recorded history such that even the lazy have more wealth than those who worked hard in yesteryear. The U. S. Constitution has made this nation the envy of the earth. General Douglas Mac Arthur virtually forced the Japanese to adopt our Constitution and within a single generation they too became a wealthy country even competing economically with our own.
The problem with using a constitution to redistribute wealth, as in the countries cited by Justice Ginsburg, and, as is the socialist dream, is that it kills the incentive to produce of both the productive and the non-productive elements of society. The productive, because their wealth is by force taken from them and given to another, are disincentivized to work harder as are the less productive because the wealth of the more productive is given to them anyway, so why should they work harder? Ironically, the redistribution of wealth does not help the poor unless wealth actually exists to redistribute, and that does not happen unless incentive to produce exists, no matter what the government says or guarantees.
No, Justice Ginsburg, the U.S. Constitution has proven itself to be the most relevant, flexible, wealth producing, governing document on earth and you, of all people, should have made that case to the Egyptians. Strict adherence to the principles locked into this document would make them a more prosperous nation also. All that you gave them were examples of shared poverty. I fear that your lack of incite, in this most fundamental constitutional matter, may facilitate your helping to bring shared poverty to us as well.
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.
May 29, 2012 | Constitution
By Dr. Harold Pease
Are body cavity searches constitutional? In the recent Supreme Court, decision Florence v. County of Burlington, the Court ruled 5 to 4 that law enforcement may strip search those arrested for even minor infractions before incarceration, “even if the officials have no reason to suspect the presence of contraband” (Adam Liptak, Supreme Court Ruling Allows Strip Searches for Any Arrest, New York Times, April 2, 2012).
This is not particularly new, as the Supreme Court had previously ruled in 1979 that “visual body cavity searches of all detainees after they had contact with outsiders,” was permissible. In practice, however, lower courts had ruled “the prison had to have a reasonable suspicion that the arrestee was concealing contraband before subjecting him to a strip search upon entering the facility” (Glenn Greenwald, The Obama DOJ and Strip Searches, New York Times, Apr. 3, 2012).
But the Obama Department of Justice and five conservative justices (strange bedfellows) both wanted a blanket, more universal policy. When you have a rule that treats everyone the same you don’t have folks that are singled out. You don’t have any security gaps,” argued Justice Department lawyer Nicole A. Saharsky. So now everyone arrested is subject to possible strip searches on the discretion of law enforcement alone.
The Fourth Amendment to the U.S. Constitution reads in part, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” Clearly the states, who initiated the Bill of Rights as a condition of their acceptance of the Constitution, had had negative experiences with government overreach with respect to “unreasonable searches” and wanted no such practices from the new government they were creating.
The issue of naked body searches for minor infractions came to a head when Albert W. Florence, a passenger in a car cited for speeding, was arrested and detained for an unpaid fine (which, unknown to the arresting officer, he had in fact paid). In the process of confinement over the next week he twice was made to remove his clothing and squat, cough and “spread your cheeks.” He found it humiliating and sued. Certainly he did not feel “secure in his person” as guaranteed by the Fourth Amendment.
He is not the only victim of this practice. Unfortunately, “according to opinions in the lower courts, people may be strip-searched after arrests for violating a leash law, driving without a license and failing to pay child support.” In his minority argument Justice Stephen G. Breyer “wrote that people have been subjected to ‘the humiliation of a visual strip search’ after being arrested for driving with a noisy muffler, failing to use a turn signal and riding a bicycle without an audible bell.” He even noted that “a nun was strip-searched…after an arrest for trespassing during an anti war demonstration” (Liptak).
With respect to the Fourth Amendment a list of areas of potential wrongs is sandwiched between the words secure and reasonable, with person being the first area noted. If government can force one to open butt cheeks, he decidedly, is not secure in his person. Also notice the passion exemplified by the words, “shall not be violated.” There is no give on this Justices. If the Founders felt so strongly with respect to their effects, obviously they would have even stronger feelings about their own bodies. As far as I can tell the British government never required a naked search. This is excessive and unreasonable.
So to answer the question, “Are body cavity searches constitutional?” No! Neither the republican dominated justices nor the democratically controlled Department of Justice have any constitutional right from the Fourth Amendment to force body cavity examinations for any purpose, more especially for minor infractions that have nothing to do with contraband. Government must return to the states, as prescribed in Article V of the Constitution, and get ¾ th of the states to agree upon a new amendment that authorizes this practice. In the process there will be much debate and other courses of action found that can work to keep contraband out of our prisons without emasculating the Fourth Amendment of the U.S. Constitution and searching fecal cavities.
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.
http://www.brasschecktv.com/page/10337.html
http://www.brasschecktv.com/page/10337.html
