Dec 14, 2015 | Constitution, Liberty Articles
Harold Pease, Ph. D
November 29, 2015, was the deadline for the end of NSA bulk collection of telephone records as established by the USA Freedom Act six months ago. This ended the Patriot Act, revealed by Edward Snowden, to have been the authority used to collect the bulk phone records of hundreds of millions of Americans, a certain big government invasion of privacy, which incensed civil libertarians. Libertarians and Constitutionalists, on 4th Amendment concerns, led by Senator Rand Paul brought the demise of the hated Patriot Act. This ends government surveillance of its citizens. Or does it?
The USA Freedom Act called for a six-month transition period allowing NSA to continue bulk collection as before, but at its end NSA must only access targeted data from telephone providers with judicial approval. Unfortunately for Constitutionalists it, like its predecessor the Patriot Act, nullifies the 4th Amendment requirement of “probable cause” and thus is as unconstitutional as the law it replaced.
Under the new law, the federal government forces telephone companies to collect the metadata instead and store it at their expense. The NSA may still access the information with approval of the secret FISA Court (a court that almost never denies permission) if the government maintains there is a reasonable suspicion that the phone data of a target is relevant to a terror investigation. What is missing is that Congress cannot simply pass a law nullifying a portion of a constitutional amendment. Its only option is another constitutional amendment.
Unfortunately for big government advocates, collecting and storing data on its citizens is not cited or even alluded to in Article I, Section 8 where the powers of the federal government are itemized. Nor has such authority been added by way of an amendment to the Constitution.
Fortunately for us this behavior is specifically forbidden in the Fourth Amendment which reads: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The amendment was specifically designed to prevent government spying on its own. “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures shall not be violated” is the strongest possible language conceivable.
Prior to the American Revolution the British government used what was called “a general search warrant” which allowed their agents to harass the people thought to be doing, or saying, something disapproved by the government. No such flexible interpretation was allowed in our government until recent times. In our day, computers, cellphone messages and phones are our “papers and effects.” Simply confiscating their messages and storing them, perhaps indefinitely, should be no different than the police walking into your home and taking from you any letters you have received or are about to send and housing them in police headquarters in case they should need them to use against you in a later day. As a first principle your house and papers are off-limits to the government.
Moreover, unreasonable was not to be decided by the police. All searches are unreasonable without probable cause that you are doing something harmful to others. Probable cause must be decided independently from the police unless you are in the act of doing something unlawful and immediate police response is necessary. Elected judges exist for assessing probable cause. Should they get too cozy with the police there exist other checks to keep them restrained as, for example, their defeat in the next election. As initially interpreted there were to be few federal laws, hence few unelected federal justices. This was to be a state, county, or city matter. Judges rousted out of a good sleep in the middle of the night were not likely to be too happy about having to assess frivolous charges.
There exists no constitutional authority for a blanket extraction of all our electronic data. Judges swear an oath to preserve the Constitution. They are not to perform with a private view outside that document. Notice also the specific restrictive phraseology with respect to this power; they are to particularly describe “the place to be searched, and the persons or things to be seized”—evidence that something unlawful already happened. There is no authority for a “fishing expedition.” NSA spying on its own citizens without a search warrant, formerly under the Patriot Act and extended now under the USA Freedom Act, through proxy corporate entities charged with keeping our records for potential government inspection, is clearly unconstitutional.
“No, federal government!” You may argue that you are only protecting us from bad people out there by gathering our private information without our consent or knowledge, but who protects us from you? Historically far more terroristic acts happen under government authority than under private authority. Fortunately the Constitution does when enough use it in their voting practices and those we elect honor their pledge to protect it, and us, from you.
Nov 24, 2015 | Constitution, Immigration, Liberty Articles
By Harold Pease, Ph. D
More than half of the states, as of last report, have placed restrictions on Syrian Refugees entering their states until the federal government can show a better screening program to insure that our Muslim sympathetic president has screening programs in place to screen out potential radical Islamic extremists. Most of the states came on board after the tragic slaughter of French citizens on November 13, 2015, by radical Islamic extremist terrorists, at least one a Syrian refugee. Can they do so? Seemingly all establishment media “experts” say no but a deeper understanding of the Constitution, in the tradition of the Founding Fathers, says yes.
Those who say no primarily center their argument on a Supreme Court ruling and a 1980 law. Hines v. Davidwitz reads in part: “the supremacy of the national power in the general field of foreign affairs, including power over immigration, naturalization and deportation, is made clear by the Constitution.” Proponents next use the Refugee Act of 1980 which gives the President power to accept refugees facing “persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion” into the United States. This is even more so in an “unforeseen emergency refugee situation.”
Yes, national powers are left with Congress and the President operating together. The problem is, the president has a history of refusing to enforce existing national law on illegal immigration and to consult with Congress on this matter operating entirely unilaterally, even going around Congress on executive amnesty. Confidence in this President to defend our borders is at an all time low—much lower than any prior president. Yes, when the Refugee Act of 1980 was passed it was a procedural process that Congress gave to the President allowing him to initiate action when these circumstances exist without coming back to them, but this time such is complicated by several factors. The enemy of the world today is radical Islamic extremists. These people cite the United States as their number one enemy and our intelligence community tells us that they may have infiltrated the Syrian refugee population that would come into the states. The real question than is do states have the right to protect their people from a Muslim sympathetic president who refuses to do so?
The most proper response from Congress is to immediately rewrite or rescind the Refugee Act of 1980 returning this power to them, as it is not a presidential power listed in the Constitution under Article II. Predictably a veto would follow. If an override is not successful then the House of Representatives could use the purse powers, Article I, Section 7 to defund immigration from Syria.
Failing these measures the States, under Federalism, the concept of dual sovereignty upon which our republic is based, could constitutionally use the Doctrine of Nullification to refuse compliance to obey this ill-advised mandate. This is normally suggested when the federal government exceeds the listed powers in Article I, Section 8 thus forcing the states to use Amendment 10 which identifies powers not listed in the Constitution as belonging to them. In this case it is suggested when the federal government seemingly intentionally refuses to protect our borders and the states believe they must do so to protect their citizens. It becomes a matter of national survival.
The Doctrine of Nullification has several historical precedents. Thomas Jefferson and James Madison attempted to nullify The Alien and Sedition Acts in 1798 created by their Federalist Party predecessors. These authors penned the Virginia and Kentucky Resolves objecting on the basis of the unreasonable empowerment of the president and the attack on the First Amendment, particularly freedoms of speech and press. The bill was designed to last only until 1801, (Federalists did not want it used against them should they lose the next election) thus the issue died naturally assisted by resistance of these states.
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.
The third attempt was with respect to The Fugitive Slave Act of 1854 just prior to the Civil War. Several northern states, led by Wisconsin, refused to accept the portion of the Compromise of 1850 requiring them to return to the South fleeing slaves. Enough states followed and the federal government lacked the will to fight its own. That is the secret. More recent uses of the Doctrine of nullification include: Federal medical marijuana laws are openly defied by many states. Twenty-three states and the District of Columbia currently have laws legalizing marijuana in some form. States’ refusal to implement the Real ID Act, passed years ago, is a form of nullification. When enough states say no, the feds back away.
Yes a deeper understanding of the Constitution does justify the use of the Doctrine of Nullification but there exists other resistance measures that are more common and that first should be tried.
Nov 16, 2015 | Constitution, Liberty Articles
By Harold Pease, Ph. D
Every scientist looks for the best place to study his targeted phenomenon—tornadoes in the Mid-West, hurricanes in the Caribbean, ice thinning in the Arctic or thickening in the Antarctic. For gun issues this would be Chicago because it is the murder capitol of the United States and the handgun is the favored killing instrument and apparently readily available. Easy conclusion, more guns more crime or killing. Right?
The Windy City was the only city in the United States to exceed 500 homicides in 2012, more killed here than were our forces in Afghanistan the same year. Over the Independence Day holiday 82 persons were shot. According to the most recent issue of, America’s Ist Freedom, the number shot so far this year, as of early September, was 2,000, of which 326 died. Chicago is a war zone. Police chief Superintendent Garry McCarthy boasted, “We seize more guns than any city in the country, every single year.” Fewer guns, less crime, right. So why the continual rise in crime and murder at the same time more guns are seized? It must be those nasty gun shows.
A recent study published in the journal Preventive Medicine by Philip J. Cook, Susan T. Parker and Harold A. Pollack, revealed otherwise. In anonymous, face-to-face interviews 100 felons were asked where they had obtained their guns; a question never asked by proponents of more gun laws. Asking criminals this question should precede designing legislation to disarm potential victims one would think. The study revealed that, “Few got their guns from Internet sources, gun shows or licensed stores.” Most got them, instead, from “family, fellow gang members or associates.” Few stole them and “they seldom bought guns on the used market,” so Police Chief Garry McCarthy basically disarmed the victims of crime and murder leaving his lawful population unable to defend itself. The interviews revealed also that most of the weapons were handguns, very few possessed, so-called, “assault weapons.”
A second reason to study guns in Chicago might be that this city is also the home of the most anti-gun president in our history. When Barack Obama ran for the Illinois State Senate in 1996, he was asked if he supported legislation to “ban the manufacture, sale and possession of handguns.” He answered. “Yes.” As a U.S. Senator, Obama once said, “While a complete ban on handguns is not politically practicable, I believe reasonable restrictions on the sale and possession of handguns are necessary to protect the public safety” (“Obama Ramping Up the Rhetoric on Gun Control,” The New American, Oct. 5, 2015).
Obviously his anti-gun philosophy has been in place in the Chicago area, with a measure of his influence, for many years. That his philosophy has clearly failed, where it had the greatest power to succeed, is now indisputable. Evidence of this conclusion is seen in the body count on Chicago streets every day.
One of the greatest ironies with respect to the President’s safety is, if fewer guns mean less crime and violence, then why do all the agents around the president carry handguns? He knows that his protection is more secure with more guns. Then why would this not also be true for his law-abiding constituents? Rumor has it that San Francisco County issues only two conceal carry weapon permits and that one of these is for Senator Diane Feinstein, one of the most vocal Senators opposed to the people having the same need for protection as she. If so, what hypocrisy!
If the president had been more observant of his own city he might have noticed the real problem besetting Chicago—the lack of enforcement of existing gun laws. Americas 1st Freedom magazine, previously cited, disclosed that the county of Cook , which includes Chicago, had between January 2006 and August 2013, “more than 13,000 cases that included gun violation thrown out of court or dismissed.” In fact, “from illegal firearm possession to illegal sale of a firearm to a felon, more felony cases involving guns were thrown out of court there than any other kind of case.”
This is supported on the federal level as well. According to Syracuse University’s Transactional Records Access Clearing house, “out of 90 federal judicial districts in the United States, Chicago in recent years has ranked near the bottom in terms of gun prosecutions. In 2014, it ranked 82nd out of 90 districts.” But leniency everywhere is typical of the Obama administration. In 2011, “federal gun prosecutions dropped by roughly 40 percent.” Clearly, Chicago is not enforcing its gun laws already in existence. “Only about 1 percent of the guns seized by Chicago police led to federal prosecutions.” Moreover, those prosecuted rarely get more than one year of a possible three-year sentence. Without a will to enforce existing law there exists no valid logic in creating more.
Perhaps the real solution to Chicago’s war zone status is more guns in the hands of its lawful citizens as the U.S. Constitution allows, not less. The Second Amendment remains some of the strongest and clearest language on the subject. “The right of the people to keep and bear Arms, shall not be infringed.” This language has never been altered by another amendment and thus remains the law of the land whether the government of Chicago and its lead citizen, the president, understands this or not.
Nov 10, 2015 | Constitution, Healthcare, Liberty Articles
By Harold Pease, Ph. D
On October 26, 2015, the Pacific Legal Foundation filed a new challenge with the Supreme Court contending that ObamaCare violates the Constitution that requires all tax-raising bills to originate in the House of Representatives. They argue that it was raised by the Senate who took an unrelated House bill to aid veterans, gutted it, and replaced it with their own ObamaCare language; a charge that has not been denied.
At issue is Article I, Section 7 of the U. S. Constitution, known as the Origination Clause, that reads: “all bills for raising revenue shall originate in the House of Representatives.” This means that any law, which extracts money from the American people, can only come from the House. The problem is The Patient Protection and Affordable Care Act, known as Obamacare, originated in the U.S. Senate not in the House as constitutionally required and is now one of the largest tax bills in U.S. History.
So why does this matter, a tax is a tax? For thousands of years governments taxed their citizens with no limits. Rulers lived lavishly off the wealth extracted from their poor subjects with little or no mercy toward them—lavish physical structures and frivolous wars of conquest were too often the norm. The Founders wisely took this power from the rich and gave it to the poor themselves by requiring that the poor, then the majority, had to consent to any taxation over them. The power to tax is the only constitutional power exclusively given to the masses. The House of Representatives was the only branch of government designed to actually represent them as it is based upon population. The Senate was to represent the states, the people only indirectly.
As far as I know the United States is the first, possibly the only, country in world history that puts its tax base with the masses who pay the taxes. It is a priceless freedom. If we are over-taxed in the United States we have chosen to be and one body alone is responsible—the House of Representatives. No tax can constitutionally originate with the President or the Supreme Court, (even if Justice John G. Roberts, Jr. says that it is okay), not even the Senate, although it can modify as on other bills once originated by the House. The House is also in charge of spending. We must not let this freedom dwindle or allow the line between the two legislative branches to be blurred into oblivion.
In the Supreme Court’s decision of June 2012, it took great pains to establish that Obamacare is not a law passed under the Commerce Clause; this is a tax they ruled. Whether a fine, as the Administration argued throughout the case, or a tax as Roberts insisted, it is an extraction of money from the masses and therefore a tax and therefore must originate from the House, not the Senate. The philosophical switch created by Roberts made the constitutional error far more glaring. By letting origin slide the House looses its clear distinction on the origin of taxes and the people their right of first approval of taxation for generations yet unborn and probably forever.
What is worse it smacks of a sloppy cover-up by then Senate Majority Leader Harry Reid. Now that the Supreme Court made healthcare constitutional by deeming it a tax, it mandated a House of Representative origin rather than the Senate. A House version HR 3200 was available but Reid did not like it favoring his own HR 3962, The Patient Protection and Affordable Health Choices Act. Prior to the Supreme Courts tax ruling the tax was called a fine, not a tax, so he reasoned that it did not make any difference which legislative body originated the fine. The ruling necessitated resurrecting a bill that had passed the House first but had not been acted upon in the Senate, the Service Members Home Ownership Tax Act of 2009 HR 3590, deleting its contents and pasting in the contents of the Senate’s bill HR 3962.
The Home Ownership Tax Act was a tax providing a first time home buyer’s credit to members of the Armed Services, never mind that it had nothing to do with healthcare and now, after being deleted leaving only the empty shell, had nothing to do with the Armed Services or home buying either. The only thing that Reid kept was the original date, September 17, 2009, which now deceptively confirmed that it preceded Senate action. Accomplices to Reid were the original authors of the deleted bill: Congressman Charlie Rangel of NY, and Senator Clare McCaskill of MO. “This is the kind of morphing that reeks of illegitimacy and fraudulency,” declared The Washington Times, April 8, 2013. And it does. The level of corruption in the Democratic Party to get this thing through is almost incomprehensible.
What is worse, if Reid had indeed simply pasted in his own bill into the dead Service Members Home Ownership Tax Act, as believed and not denied, this tax bill HR 3962, the one that became Obamacare, has never actually been before the House of Representatives, the only body actually authorized to originate a tax. Obamacare may be the only revenue-raising bill in American history originated, processed, and implemented by the Senate and President alone.
Nothing could be more unconstitutional!! If left unchallenged Obamacare severely damages Article I, Section 7 of the Constitution. Hopefully the Supreme Court will protect the Constitution as first priority rather than a piece of legislation fraudulently framed and blatantly unconstitutional in numerous parts. Unfortunately the Supreme Court moves very slowly and this challenge is not likely to be resolved until 2017.
Oct 27, 2015 | Constitution, Liberty Articles
By Harold Pease Ph. D
Perhaps by the time this column is published a new Speaker of the House will have been selected and the issue resolved, for now. At present, with no member of the House wanting the job, the idea of having someone not presently a member selected by the House of Representatives is seriously being considered. Such would break a 225-year tradition and the Constitution.
Those arguing for a Speaker not elected by the people do so on the basis that the Constitution does not require that the Speaker be a House member. This is true but a careful reading of the document could lead to no other conclusion. We begin with 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.” The Constitution then separates the two bodies, but common to each is that all members are elected, the House by the people and the U. S. Senate by the states. In Section 2, “The House of Representatives shall be composed of Members chosen every second Year by the People of the several States.”
This is followed in Section 5, “The House of Representatives,” all elected members, “shall choose their Speaker and other Officers; and shall have the sole Power of Impeachment.” If we start making exceptions for the position of Speaker, making it for the other officers as well could follow. Impeachment is the process of removing elected officers. The idea of giving someone, not elected by the peoples’ representatives, as for instance a non-member Speaker, power to remove someone who had been, runs counter to everything else that the Founders did. This logic has never been challenged, until now.
Presidential succession, with the Vice President replacing the President upon his death or inability to perform his duties, is assumed in the Constitution and established and utilized several times since. Although not in the Constitution as drafted, succession has been established since. Should the Vice President also cease to be able to function, the Speaker of the House is third in line to be president followed by the President pro tempore of the Senate—all elected offices. With all the specific requirements of the offices of House, or Senate, or President, it would be unconscionable that our Founders would allow someone not even an elected House member to be two heart beats from becoming president.
Amendment 25, dealing with presidential disability and vice presidential vacancies ratified February 1967, also may shed some light on the question. It definitely gives language to the practice of the Vice President replacing the President with his demise or succession. It also allows the President to temporarily step down should he feel incapable of fulfilling his duties and reinstate his position when he again feels able to do so. In his absence the Vice President temporarily becomes acting president. In either instance the Amendment directs him to correspond with both the Speaker of the House of Representatives (third in line for president) and President pro tempore of the Senate (fourth in line for president). These two officers of the legislative branch are also called into action should “the Vice President and a majority of either the principal officers of the executive departments, or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office.” Imagine the Founders of Amendment 25 extending to an unelected House Speaker the power to approve or disapprove a president’s right to resume his office.
No! There exists no language in the Constitution supporting a House Speaker not elected in the same manner as every other House member, or playing a role of power over those who had the people as their constituency, or over an elected President or Vice President. But there is much constitutional language that suggests otherwise. We were unable to determine who first advanced this absurd notion but we hope that we have helped lay this question to rest.
Oct 19, 2015 | Constitution, Healthcare, Liberty Articles
By Harold Pease, Ph. D
The fact that my congressman, Kevin McCarthy, could not secure 218 Republican House votes to replace Speaker John A. Boehner, after virtually being nominated by him, did not surprise me—he earned it. He is an extremely likeable fellow and certainly a leader but he has two flaws that came to hurt him. McCarthy is first for himself, an opportunist (as his inordinately fast rise to power indicates), and second, he is for the Republican Party at all costs. Normally this is how most politicians of both political parties look at things and it has worked well for them and him, until now.
Unfortunately the Constitution is not of first consideration in problem solving and legislation, his path is strewn with compromises that weaken or damage it. In vote after vote, as with Boehner, there exist no fight in his belly to defend it as first priority, even if what they propose cannot survive the Senate or a Presidential veto. Even if programs that are not easily constitutionally defended like, Obamacare, executive amnesty, or more recently, Planned Parenthood, are left without funding. He is too easily persuaded with “we do not have the votes,” giving an automatic win without a serious fight to those who have little or no respect for the Constitution.
There are two problems with “no constitutional fight in the belly” members of Congress, first the significant weakening of the Constitution from decade to decade in its ability to protect us from ever-bigger government until the Constitution becomes irrelevant. My heavens!! The President, who has no Constitutional law making power, through executive order, makes about half of the rules by which this nation is governed, while the Legislative Branch sits on its butt whining, “We cannot push this because the President will veto it.” My point!! We have compromised freedom away to the point where soon we will have nothing left to give up.
Second, as the country, as represented by the increase of Tea Party House members elected every two years beginning in 2010, is catching on to our loss of liberty and begging the Boehner’s and McCarthy’s to stand with them, they are not. Thus the divide in the Republican Party and, whomever replaces Boehner as Speaker will inherit the same contempt if he refuses to represent, as first priority, the Constitution in future lawmaking and issue resolvement.
Ironically both received warnings of the new political awakening and things could have been much different for Boehner and McCarthy had they listened. Both attended the first Bakersfield Tea Party rally in early 2009 where between three and five thousand angry voters gathered at the Liberty Bell to protest the policies of George W. Bush and his successor Barack Obama, which appeared to be too similar and both in opposition to limited government, the Constitution and the free market. Instead of viewing the proceedings with their constituents, they separated themselves to a third story window room in a government building next to Liberty Bell. I watched them from below as I joined other prominent community spokespersons in defense of the Constitution, limited government and the free market. It was a mistake.
In his August Congressional break that followed, Congressman McCarthy addressed several hundred people at California State University, Bakersfield kindly answering every question submitted from his, mostly Tea Party constituents. When the meeting time ended he graciously stayed on the floor until everyone had an opportunity to ask his or her question. He said all the right things with respect to his total opposition to Obamacare. He would go back to Washington and kill it. Long after the meeting had ended I was able to express my fear to him that he opposed a Democratic National Health Care Plan but did not oppose a Republican National Health Care Plan. “Since the word heath, or anything like it, is not in Article I, Section 8,” I asked, “and authority not thereafter added by way of an amendment to the Constitution,” he should return to Washington D.C. and oppose either party initiating, without authority, any federal policies on health. He was noticeably disturbed and said, “He would do what is necessary.” I knew than that adherence to the Constitution was not his first concern.
Now Congressman McCarthy, you know why you could not get the needed 218 votes to become the next Speaker of the House of Representatives. You did not listen to your constituency or the wave of Americans wanting to get back to America’s basics. But I still have hope in you. If you can get beyond yourself, get beyond your party (that gave us the Environmental Protection Agency and No Child Left Behind and so many other programs not constitutionally based) and get competent constitutional advisers, some of us would like to be led by you. We need your incredible leadership skills and your friendly countenance on the side of liberty protected by the Constitution. Show us that you can be trusted to adhere to the Constitution, limited government and the free market. The movement for these things is not going away.
If you listen this time you could, in the future, become the most influential Speaker of the House in our history and one of our greatest patriots. Show some constitutional fight in your belly. This time listen to your people, honor your oath to protect and defend the Constitution, and help take back our country and Constitution before it is too late.
