Sep 5, 2016 | Constitution, Liberty Articles
By Harold Pease Ph. D
Responding to a lawsuit filed by 13 states led by Texas, U.S. District Judge Reed O’Connor issued a preliminary injunction that the Obama transgender bathroom executive order of May 12, 2016, “violated federal notice and comment requirements and contradicted existing law and regulations.” The states that did not wish to be included in the directive, he said, “can easily avoid doing so by state law.” The court objection came just before the new school year started. The Obama order mandated that transgender students in public schools be allowed to use bathrooms and locker rooms consistent with their chosen gender identity. Non-complying schools could be denied federal funds.
Liberty Under Fire had argued that the proper state constitutional response to the Obama directive should have been to ignore it and forward a letter to the president reminding him that transgender bathrooms, or anything like unto them, are nowhere listed in the enumerated powers of the Constitution Article I, Section, 8 and have not been added by way of amendment.
States should not sue the federal Government to obtain rights they already have under the Tenth Amendment of the Constitution because doing so undermines—potentially to oblivion—that Amendment. It 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.”
But the states did sue and although transgender bathrooms are now temporarily blocked, the “win” is a far weaker argument than the Constitution provides and the issue continues to damage the concept of federalism; that we have two governments, one over domestic affairs the other foreign, neither subservient to the other.
Federalism, that state law can easily avoid the directive, may have been implied by Judge O’Connor, but it is like putting out a house fire with a garden hose instead of the available fire truck. But notice what he objected to first, “the directive violated federal notice and comment requirements and contradicted existing law and regulations.” These are the weakest arguments possible and most certainly not Constitutional arguments. Nothing in the document speaks to federal notice or comment requirements. So, if these requirements had been in place the directive would have been constitutional?
Contradicting existing law and regulations is a better argument but one should keep in mind that regulations largely originate from unelected bureaucrats and if not challenged can reverse the original intent of the law. This president is attempting to rewrite the laws enacted by elected representatives of the people some 44 years ago. The 1972 anti-discrimination law prohibiting discrimination on the basis of sex, race, color, religion and national origin, itself subject to constitutional concerns, which resulted in Title IX, is a classic case of the federal government’s evolving interpretation. No one in congress when the law was passed intended it then to apply to transgender bathrooms—not one!!
In fact, because the courts have not used the full strength of the Constitution in previous arguments protecting us from federal overreach, it continues and the Constitution is endangered. What should be the constitutional argument? Three, far more powerful than those used by the judge, exist. First, the 10th Amendment previously cited.
Second, Article I, Section 8, wherein all federal powers were listed under two categories general welfare and common defense. Powers not listed remain with the states until changed through Article V—the amending process.
Third, the executive branch has NO authority to make law—any law!!!! 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). Executive Orders are constitutional only when they cite a single, recently passed law of Congress, where that law needs a statement of implementation by the executive branch. Originally they were but interdepartmental directives.
A president can only suggest a need for new law in his State of the Union Address, and either sign or veto a law passed by Congress, which then, if vetoed, must be overridden by a vote of 2/3rds of both houses to become law. That is it. This is the law of the land and the constitutional procedure, this violated by President Barack Obama May 12, 2016, with his transgender bathroom decree.
Because Judge O’Connor used none of these arguments in defeating the Obama Transgender Bathroom Decree, neither likely will the 5th U. S. Court of Appeals in the coming months so a reversal is possible. Because both houses of Congress have not publically rebuked the president assuming unto himself unconstitutional law-making powers, he will continue law-making executive orders changing previous law to his interpretation. Because the states decided to sue, giving the federal government more authority to take from them their already existing authority, the feds will continue to do so and federalism, designed to protect the Constitution from such usurpation, will not be able to do so. But for the moment Judge O’Connor gave us a little constitutional win.
Dr. Harold Pease is a syndicated columnist and 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 30 years at Taft College. To read more of his weekly articles, please visit www.LibertyUnderFire.org.
Jul 11, 2016 | Constitution, Liberty Articles
By Harold Pease, Ph. D
Although the Preamble to the Constitution is a statement of intent, not a codification of law, the Founders hoped to work toward cited objectives, one of which was to “establish Justice.” Perhaps at no time in U.S. History have more people felt the effects of corruption of government and lack of established justice more than now. Some in high place act as though rules/laws are for others and that they can lie and potentially damage our national security without consequence, such appears demonstrated now.
On July 5, FBI Director James Comey announced the conclusion of a yearlong investigation of presumptive Democratic presidential nominee Hillary Clinton. He made it clear that she was guilty of potentially handing classified top-secret information to our enemies but strangely refused to recommend indictment, as would happen to any other citizen having done the same thing. He said as much. “This is not to suggest that in similar circumstances, a person who engaged in this activity would face no consequences.”
Instead of merely citing the evidence and turning it over to the Justice Department, he exceeded his authority by recommending that Clinton not be indicted. This made it easy for the Democratic Party to ignore the long list of evidence he had just cited, essentially undoing a year of intense FBI work. It freed Attorney General Loretta Lynch from having to do anything other than support the FBI recommendation and saved President Barack Obama from having to retract his former endorsement of Hillary based upon her willful defiance of existing law. He campaigned with her just hours after Comey’s announcement. Many openly believed that “the fix was in.” With all that evidence how could they not indict her?”
Lynch was further relieved from the embarrassing appearance of impropriety having met in Phoenix the week before with Bill Clinton, the husband of the accused, in what was supposed to be a secret meeting, although Lynch denies that they addressed her role in Hillary’s possible indictment. Attorney generals purposely avoid being anywhere near the accused to avoid even the appearance of conspiracy.
With this recommendation nobody now expects legal action against Hillary. Certainly the Democrats in charge are not going to render it, proving for most that justice for all is no longer established or even necessarily a constitutional goal.
Comey said, with respect to the 30,000 emails they reviewed, that “110 e-mails sent or received on Clinton’s server contained classified information.” Classified documents are marked as such. These contained information that was classified at the time the messages were sent. Eight contained “top-secret” information, the highest level of government classification for material that could harm national security. These, you may recall, the FBI themselves did not initially have clearance to view because they were so sensitive.
Thousands of emails wiped clean, several classified, were never turned over to the State Department as Hillary claimed. Comely did not address her attempt to suppress evidence by wiping her server clean. No one else could escape this charge.
Comey continued, “She also used her personal e-mail extensively while outside the United States, including sending and receiving work-related e-mails in the territory of sophisticated adversaries.” It is possible “hostile actors” gained access to her email account. Moreover he admitted that, “there is evidence of potential violations of the statutes regarding the handling of classified information” and that they were “extremely careless in their handling of very sensitive, highly classified information.” Again the classified material was clearly marked and Hillary Clinton is an astute lawyer by profession. Such neglect is inexcusable and intentional. US Code 18 defines “criminal gross negligence” as “careless to the extreme” which Comey admitted that she was, but he still refused to recommend indictment.
General David Petraeus, who pled guilty to the mishandling of classified information, was sentenced to two years probation and fined $100,000 for leaking classified information to his biographer and mistress. Certainly justice for Hillary having potentially leaked to every enemy nation 110 classified documents, many far more sensitive than that of Petraeus, should be at least 110 times greater than his— but instead a violation charge of “gross criminal neglect” could make her president.
Comey seems sincere when he said, “What I can assure the American people is that this investigation was done competently, honestly, and independently.” This may be so but his refusal to recommend indictment smells bad and reeks of injustice. Democrats will say, “There was not enough evidence to indict.” Republicans will say, “The fix was in, someone got to Comey.” Both will switch their positions should a Republican next do precisely the same thing. But Constitutionalists see long-term damage to the Constitution and wonder if anyone in the future can be prosecuted for “gross criminal negligence” if Hillary couldn’t.
This is a dark day for the Constitution and for established justice. It will be a much darker day if Americans choose to elect to office, and place in charge of national security, someone who, at the very least, has proven unworthy to hold a security pass.
Dr. Harold Pease is a syndicated columnist and 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 30 years at Taft College. To read more of his weekly articles, please visit www.LibertyUnderFire.org.
Jul 3, 2016 | Constitution, Liberty Articles
By Dr Harold Pease
The Declaration of Independence ends with one of the most passionate appeals ever put to words and memorized by yesterday’s grade school child. “And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.”
This document would bring on war against the then greatest power on earth, and no European strategist gave the Patriots a ghost of a chance of winning—yet they stood. Signers would be seen as traitors to the mother country and could expect the harshest treatment when caught. They could count on no one but God and themselves.
And, of course, a goodly number did suffer loss of life and property as a result. Most paid a remarkably high price for taking their stand. In a wrathful spirit of revenge, the enemy singled them out for harsh vengeance. Five were captured and imprisoned and two others barely escaped captivity. Richard Stockton, one of those captured after his whereabouts was betrayed by a loyalist informer, was “dragged from bed in the middle of the night, severely beaten and thrown into prison” where he underwent continual abuse and also suffered malnourishment. By the time the Congress arranged for his exchange, he was broken physically and never recovered. He had also lost almost all his property.
Unable to capture Abraham Clark, another signatory, the British took their wrath out on his two sons, who were imprisoned on the notorious prison ship Jersey. “Word was sent to Clark that his boys would be freed if he would disown the revolutionary cause and praise the British Crown. At his refusal, his sons were singled out for cruel treatment. One was placed in a tiny cell and given no food. Fellow prisoners kept him alive by laboriously pushing tiny bits of food through a keyhole. Both sons somehow survived their ordeal.”
The British had a particular zeal for destroying the homes and property of the signers. Those suffering this fate included Benjamin Harrison, George Clymer, Dr. John Witherspoon, Philip Livingston, William Hooper, and William Floyd. The sacrifices of John Hart and Francis Lewis are particularly noteworthy. “While his wife lay gravely ill, Redcoats destroyed Hart’s growing crops and ripped his many grist mills to pieces. Bent on taking him, they chased him for several days. They almost nabbed him in a wooded area, but he hid in a cave. When he returned home with his health broken, he found his wife dead and their 13 children scattered.”
The story of Francis Lewis was equally tragic. “When the British plundered and burned his home at Whitestone on Long Island, they took his wife prisoner. She was thrown into a foul barracks and treated cruelly. For several months she had to sleep on the floor and was given no change of clothing. George Washington was able eventually to arrange for her exchange for two wives of British officers the Continental Arm was holding prisoner. Her health was so undermined that she died two years later.”
Thomas Nelson Jr., another signatory, made one of the most unusual sacrifices of the war. At Yorktown the British had selected his residence as headquarters. Washington, reluctant to destroy his compatriots beautiful home, was directed to do so by Nelson himself.
Probably John Quincy Adams, a son of one of the 55 patriots making the above pledge and later a president of the United States, said it best. “Posterity—You will never know how much it has cost my generation to preserve your freedom. I hope you will make good use of it.” Let us never forget that liberty is not free. It was purchased and maintained by the blood of those before us.
Today many believe that the biggest enemy to our liberty is from within. Certainly we have let the Constitution dwindle in its ability to protect us from federal overreach. If the cause of the American Revolution was excessive government, as historians say, and school children once memorized all the offending new rules and regulations documenting such, what can we say today when the rules are multiplied by perhaps a thousand? For most of us it is hard to argue that we are more free than they under British tyranny when our government tells us with whom we must share a bathroom or shower.
Let this be a warning to those who would take freedom from us now. We too are standing “with a firm reliance on the protection of Divine Providence,” mutually pledging “to each other our Lives, our Fortunes, and our sacred Honor.”
Dr. Harold Pease is a syndicated columnist and 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 30 years at Taft College. To read more of his weekly articles, please visit www.LibertyUnderFire.org.
Jun 28, 2016 | Constitution, Liberty Articles
By Harold Pease, Ph. D
“No one on the government’s no-fly list should be able to purchase a firearm,” was the immediate response from both Hillary Clinton and President Barack Obama to the massacre in an LGBT nightclub in Orlando, Florida by radical Muslim extremist Omar Mateen. Perhaps even Donald Trump, the presumptive Republic nominee for president, who plans to meet with the NRA to talk about the no-fly list, could be vacillating on this issue. Moreover, nine senators, led by Republican Susan Collins, want the no-fly list to apply to purchasing firearms as well. They all need to be reminded that there exist serious Bill of Rights concerns in doing so.
The President refers to those on the list he creates as “terrorist suspects” but terrorist is only loosely defined. Both Vice President Joe Biden and former House Speaker Nancy Pelosi have used the word in reference to the Tea Party Movement. How many are listed varies with respect to who one cites but it is many thousands. Everything is so clouded in government secrecy that virtually no one knows how they got on or get off the list. Should you inquire as to your status with respect to the list the typical answer is, “as a national security issue the government can neither confirm nor deny your listing.”
George W. Bush created the no-fly list after 9/11 which today forbids perhaps as many as 80,000 from flying in or out of the country. Whether maintained by Bush or Obama a secret no-fly list for U.S. citizens is a restriction on someone because of a perceived belief, practice or action (a punishment if you will) applied without any evidence of unlawful behavior—he may not fly. If there had been unlawful behavior the person would be incarcerated and the issue of a no-fly list would be irrelevant. A second punishment is applied if he is also denied the right of a firearm. This turns upside down the judicial standard, “innocent until proven guilty.”
Remember U.S. Senator Ted Kennedy was once on the government’s no-fly list as was a six-year-old boy, a number of persons over 80 years of age, and an 18-month old toddler Reianna (last name not given in the CNN report to protect family identity). The accused rarely is informed of the government’s intention to punish him until he attempts to fly and is forbidden doing so.
No-fly restrictions violate Amendment 5 as the accused is denied “liberty” (he cannot fly as do others) “without due process of law”—a way to challenge the punishment. The Amendment guarantees the person the right to be accused before punishment, but no accusation was made nor was evidence presented to anyone outside the government to evaluate, such as to a jury. States too, in Amendment 14, are forbidden the same in similar wordage, “…nor shall any State deprive any person of life, liberty, or property, without due process of law….”
It also violates Amendment 6, which guarantees the accused of his right “to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.” None of this happens for the no-fly list people as the government has already effectively convicted and rendered punishment, sometimes indefinitely.
Should Congress adhere to the Obama/Clinton, and perhaps Trump, request to “make sure no one on a no-fly list is able to buy a gun” they will amplify the already existing constitutional infractions of Amendments 5, 6 and 14 and keep thousands of lawful Americans from protecting themselves with arms. Amendment 2 guarantees “the right of the people to keep and bear Arms,” and certifies that this right “shall not be infringed.” This too would be violated for 80,000 persons without any real evidence of wrongdoing.
Moreover, even if such a law were passed it is well to remember that—a mere law—cannot trump a constitutional amendment—most especially four amendments, as using a no-fly list to prohibit purchase of a firearm would do. The only constitutional way that Obama, Clinton, or possibly Trump can change these amendments is with a new constitutional amendment, which a president cannot constitutionally initiate (see Article V).
Remember too, a government secret list of “bad guys,” has already been used by the Obama administration to punish his political enemies. The IRS used such a list to punish perhaps 200 Tea Party Organizations. Louis Lerner, one of those most responsible for doing so, pled the Fifth Amendment to avoid perjuring herself.
Hillary Clinton, the least trusted presidential candidate in U.S. History, used every government organization at her disposal to punish or vilify the women who had affairs with her husband while he served as governor of Arkansas and president of the U.S. With her personal integrity ratings so low it would be expected that she would use a no-fly law against her political enemies.
Hopefully, presidential candidate Trump will not take too long to see the damage to the Bill of Rights by the proposed no-fly legislation and use his influence to defeat it.
Jun 22, 2016 | Constitution, Healthcare, Liberty Articles, Take Action
By Dr. Harold Pease
With elections signs all around it might be well to be reminded that it is unrealistic to expect national candidates to follow the Constitution when we did not insist that they did so in state, county and city offices. After all, many simply move up to higher office. Some may even view the Constitution as irrelevant at these levels.
Several years ago in California at a public debate for county supervisor the public was invited to offer questions in writing. I did so and watched the monitor of the debate, with a puzzled look on his face sideline my question in preference to others. I presumed it was because it had something to do with the Constitution, which, unfortunately, is considered by many an irrelevant topic at the city, county, or even state level. You are supposed to ask what “goodies” from taxpayer funding are you going to give me and is it more than your opponent?
So what does the Constitution have to do with local or state issues? Everything!! First, it is the only document that every single elected public servant swears to uphold. So the Founders must have thought it relevant at every level.
Second, candidates at lower levels successfully rise to higher levels because of the name recognition obtained at lower levels and eventually become members of the House of Representatives and U.S. Senate, often without ever having read the Constitution they are specifically under oath to protect. When I worked as a legislative assistant in the U.S. Senate some years ago, I was certain at least 50% had never read it at any level of government. Today I would be surprised if those who had read it exceeded 10%. But no one asks candidates, even while campaigning at the highest levels, when they last read it.
So again, why does this matter? Historically, the two enemies of freedom are: 1) it is the nature of all governments to pull decision making power upward to the seat of government and, 2) the more apathetic and indifferent the population becomes the greater the tendency of the people to push decision making power upwards to the seat of government. When these two forces work together it always leads to the central government eventually having most of the power. The Constitution is full of “handcuffs” to keep decision-making power from getting to the top thus maximizing it with the individual. The Founders overriding philosophy of government, if it could be penned into one sentence, was, “never elevate to a higher level that which can be resolved at a lesser level.”
Even a casual look at the Constitution reveals the separation of powers on the federal level into three distinct branches the legislative, executive, and judicial—each with a specific list. For Congress it was a list of the four types of law they could make (Art. I, Sec. 8), for the president it was the types of executive functions he could execute (Art. II, Sec. 2-3), and for the Supreme Court the types of cases it could adjudicate (Art. III, Sec. 2). The lists exist to both restrict them and to prohibit the concentration of power into one branch. The only type of federal government authorized by the Founders was decidedly a limited one. States, counties, and cities have all the powers not listed, as per Amendment 10.
When these limitations are not understood and protected at lower levels of government, the federal government is constantly tempted to steal authority from the states or counties as per its confiscating environmental, health, and education issues, which are constitutionally 100% non federal government issues. States, counties, and cities should use the Tenth Amendment to tell the federal government to “butt out.” “You have no constitutional authority.” When Congress passed, and the President signed into law, the National Defense Authorization Act, December 31, 2012, both states and counties should have written Congress and the President. “You do not have the right to void Amendments 4, 5, 6, and 8, of The Bill of Rights and the Writ of Habeas Corpus for our citizens. The military shall not arrest any of our citizens.”
It comes to this. Sixty years ago it may not have made much difference if a county supervisor/commissioner, or city councilman, swore allegiance to a Constitution that he had not fully studied, or worse, even read. The federal government had not yet absorbed his area of jurisdiction. Now it has! There is hardly an area where the federal government does not have its tentacles embedded, from school lunches to cross gender bathrooms. Over thirty years ago a city councilman complained to me that a third of what he voted on was already mandated because sometime in the past the council had accepted the “free money” which now obligated him. School districts are notorious for having done the same thing.
City, county, and state leaders, you are our buffer from the federal government taking from you your areas of jurisdiction. They have done so for many years because you were complacent in it, or ignorant of the Constitution. Consequently you have lost a large portion of our liberty. Today your understanding of the document must be known BEFORE we place you in power.
This election let us find leaders with Constitutional fire in their bellies to undo the precedents that their predecessors created. All issues on the city and county level are directly or indirectly constitutional issues. We now expect leaders to know, and abide by, the document that they swear to uphold.
Jun 13, 2016 | Constitution, Liberty Articles, Taxes
By Harold Pease, Ph. D
As reported, every school district in the country received a May 12, 2016 letter allowing transgender students in public schools to use bathrooms and locker rooms consistent with their chosen (not their actual) gender identity. Those not complying are threatened with lawsuits and loss of federal aid.
This federal pressure to be obedient to federal whim, or in this case a radical reinterpretation of old law, is not new. In the seventies President Richard Nixon had speed limits on freeways reduced to 55 miles per hour, lasting over a decade, because of an alleged energy shortage. After a time a Wyoming governor reposted freeway speed in his state to 65. The governor was right, speed regulation on freeways was not a delegated power listed in Article I, Section 8 nor had such power been added to the federal government by way of an amendment to the Constitution. The federal government threatened loss all federal funds for new construction and/or highway repair for non-complying states. Wyoming returned to 55 mph.
About the same time a new directive, similar to the present Obama transgender directive, required institutions of higher learning receiving federal funds to have open gender housing should students demand it. Brigham Young University (BYU) refused on the basis that as a religious institution male/female dorm separation for singles was a fundamental religious principle. The federal government threatened the University with the loss of all federal funds should it not comply. BYU still refused. Coed dorms is also not a federal power as per the enumeration clauses, again in Section 8, and are therefore totally a state power as per Amendment 10. Actually the word education is not in the Constitution so there exists no federal constitutional authority. The federal government cut off all federal funds to the “rebel” university.
The difference between Wyoming and BYU was that the university had never accepted a dime from the federal government, thus the federal government had nothing to cut off. It had no power to blackmail the institution into compliance. It could, and did, fume and bluster threats but it made no difference. Finding no way to punish the institution itself, it went after the poor students unable to attend without a government guaranteed loan by cutting them off; in time that too was dropped. Enrollment remained untouched as demand always exceeded availability.
Sometime in the late 80’s I was appointed to a special county commission to assess how Kern County of California could deal with all the edicts emanating from the federal government and still be free. It was a strange question. I remained mostly silent as others wrestled in complete frustration with the question, getting nowhere. There seemed to be no solution. Then I asked, “How much slavery have you purchased?” The question was greeted with universal stares and silence, so I asked again. “How much slavery have you purchased?” When you line up for the “free” government money you give the giver power over you because he can cut it off after you have made yourself dependent upon it. “So how much money have you taken because that is what will be cut off should you wish to really run your own county?” “Well, not as much as adjoining Los Angeles County,” came the reply. I had made my point. We were freer than LA County.
The federal government has no constitutional authority to fund anything not enumerated in the Constitution, but it has for decades with nary a complaint from the recipients of the “free” money who lined up like hogs at a feeding trough to receive. Our governors, county commissioners, city councilmen and school administrators have lined up knees bent, palms outreached and open, tongues drooling for the scraps from the table because the “free” money was easier to get than raising local taxes and telling the federal government no.
This without a thought to the “drug” dependency they created for their governments down the road, not noticed until the government asks them for compliance on something that they know is not reasonable or right. Most still will bow their heads in shame but remain in servitude hoping that the next edict will not be so demanding. But they have lost their ability to be independent of their new master—the federal government—that has far more power over them than that imposed by the tiny list of delegated powers in the Constitution. The will of the people they serve is now very much secondary.
In my own profession I have never seen an administrator turn down the “free” money that he used to make himself look better with federal funds because it allowed him to show new buildings or programs as evidence of his excellence. The federal controls that came with it were a small price to pay for the “shiny stuff,” he reasoned. Again, the word education is not in the Constitution but almost every aspect of education is today influenced at the federal level.
My point!! BYU had the right solution to the problem by refusing any federal monies and therefore federal influence. States and communities that didn’t say no to the enticement of “free” money have allowed the federal government to worm her way into all aspects of our lives, a hundred times more than had we stayed with the enumerated powers of the Constitution, to the point that it now tells us where we can go to the bathroom. Sadly we have sold ourselves into dependence. Texas provides the only solution at this point: “the state is willing to forfeit $10 billion in federal education dollars rather than comply.” Will other states and lesser governments follow and break the dependence or continue groveling for the money and more slavery?
Dr. Harold Pease is a syndicated columnist and 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 30 years at Taft College. To read more of his weekly articles, please visit www.LibertyUnderFire.org.
