Mar 17, 2015 | Constitution, Liberty Articles
By Harold Pease, Ph. D
The New York Daily News, March 10, unleashed a firestorm with its front-page depiction of the 47 Republican U.S. Senators who signed a letter to Iran reminding it that Iran’s agreement with President Barack Obama still had to be reviewed, and approved by them. In giant letters crossing the bottom of the page was the word TRAITORS. Senator Tom Cotton, Arkansas Republican, called “Tehran” Tom by one democratic senator, was credited as the author of the letter. All but seven of the Senates 54 Republican majority signed. No Democrat signed and they are furious with this action inferring that the Republicans are siding with America’s enemies even, as Minority Leader Harry Reid said, “empowering the ayatollahs.”
The Senate letter, which I closely read, advised the leaders of the Islamic Republic of Iran of the separation of powers in the Constitution between the executive branch, which makes international agreements, and the legislative branch that must approve such; that a treaty must be ratified by two-thirds of the Senate; and that without this majority vote of Congress it is merely an executive agreement and potentially meaningless after, in this case, Obama leaves office. It ends: “We hope this letter enriches your knowledge of our constitutional system and promotes mutual understanding and clarity as nuclear negotiations progress.” Signatures followed.
But does this letter constitute treason as the newspaper claimed and leading Democrats inferred?
As with every issue first consideration should be, “What does the Constitution say?” The word treason appears in Article III, Section 3, and follows: “Treason against the United States, shall consist only in levying War against them, or in adhering to their enemies giving them Aid and Comfort.” Did this letter, reminding a dictatorial government, where the voice of one dominates, of our constitutional procedures requiring the voice of many, consist of levying war against the United States? No! Did it adhere to the interests of our enemies, which Iran is or we would not have sanctions imposed against it? No again. The Constitution continues: “No Persons shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.” Clearly the Senate Republican letter cannot be attached to any of the properties of treason in the Constitution. Certainly The New York Daily News, and Democrats making the charge, has convicted nearly half of the U.S. Senate as traitors without constitutional basis.
But to the charge that they are interfering with negotiations by reminding the Iranians of our constitutional procedures, the Constitution clearly prescribes such in Article II, Section 2, Clause 2. The President “shall have Power, by and with the Advice and Consent of the Senate to make Treaties, provided two thirds of the Senators present concur.” The advice function is performed during the creation of a treaty and the consent function is thereafter, once an agreement is presented to them. Many presidents have not sought the advise of the Senate when they created treaties and certainly Obama has shown no tendency to do so either, preferring to prepare a treaty without any advice from Congress.
Obviously a letter to a foreign government reminding it that no branch of government operates independently of another in the United States, does not constitute giving advice to the President. But in a distorted way it does. It reminds the President of constitutional procedure as well and places him on notice that he can expect resistance should he circumvent the constitutional treaty-making process.
So why did the Senate not wait for the finished treaty? Because they were afraid. This Congress has experienced the most encroaching president on legislating and treaty-making powers since Franklin D. Roosevelt and they were not certain that he would even present the finished treaty to them for ratification. Remember, this is the same president who by executive order by-passed Congress on executive amnesty thereby making his own law and independently changed parts of the National Health Care Bill at least 14 times with a stroke of the pen with no constitutional authority.
My question to the seven Republicans who did not sign and to all the Democrats in the U.S. Senate is this. Why did you not sign as well? Why is there not bipartisan support of the Constitution? Can’t you see your authority being eroded? If a Republican did the same thing increasingly, by executive order or fiat, undermining the constitutional separation of powers leaving your body weaker than before, you would be all over him. Ironically Republicans would be supporting their president. Neither party sees its own as dangerous.
Dr. Harold Pease is a syndicated columnist and an expert on the United States Constitution.
Mar 9, 2015 | Constitution, Liberty Articles
By Harold Pease, Ph. D
No Child left Behind (NCLB), the signature legislation of the George W. Bush Administration is now up for re-authorization. Senator Lamar Alexander of Tennessee and chairman of the Committee on Health, Education, Labor and Pensions overseeing this review, said recently that he wanted to “put the responsibility back with states and local school districts” to oversee public schools with as few mandates as possible from Washington. His draft bill proposal offers states the right to test annually, as the present law requires, or instead every three years. NCLB failed revision attempts in 2007 but is ripe for change now as it is so unpopular.
The federal government forced a roll in public education with The Elementary and Secondary Education Act (ESEA), signed into law in 1965 by President Lyndon Baines Johnson, as a part of the Great Society. It enticed state and school districts to go after the “free” money thereafter offered by the Federal Government. The original purpose of the 1965 law was to distribute federal aid to schools and districts that enrolled large numbers of poor children. To get the “free” money, however, schools had to conform to federal government standards and allow federal review of their programs. Very quickly districts and schools accepting the “free” money became very dependent upon it and thus became strong advocates for it.
In 2002 ESEA was modified and renamed by President George W. Bush: No Child Left Behind (NCLB). Though renamed it has not improved students’ preparation for higher learning. Schools were required to test every child in grades three through eight annually and had to prove their scores were going up. When that did not happen they were closed, privatized, or taken over by the state. The law set a goal that every child would be “proficient” by 2014. This did not happen either. Some say the law left all children at least two years, if not three, behind. It certainly has not worked as intended as indicated by the Barack Obama Administration’s having to extend flexibility from it to 42 states and the District of Columbia. In other words, only eight states met the mark and the Great Society measure to improve educational standards for all has failed.
What is missing in Senator Alexander’s argument is that his solution still leaves the federal government as having a legitimate roll in education and in a place of dominance over the states, when the Constitution gave it none. The word education is conspicuously absent from the document—not found in the list of federal powers Article I, Section 8 and never added by way of amendment to the Constitution since. For the federal government to increase its sovereignty over the states by offering money would have been unconscionable in yesteryear. The thought of having a centralized government having any say in what was fact or fiction in the lives of their children would have been inconceivable. Standard education could become standard thought. What is the difference between propaganda and education?
Who cares most whether Johnny can read, the federal government 2,000 miles away, or his mother? Who cares more whether Johnny’s friend can read, some bureaucrat in Washington D.C., or his community? School board members very likely have their own kids in the same schools and kids have their parents or grandparents overseeing their learning. Moreover, the community has access to board members at school games, on the street, or at the super market to complain to or praise. It does not get any better than this.
Constitutionally everything with respect to education, even it’s funding, was to come from the state and local governments. The “free” money offered by the federal government to steal state sovereignty duped politicians in the sixties, and today as well, into looking away from the Constitution as they, held out their hands to receive; and the benefiting group, the educational establishment, also with tin cups in hand, cheered them on. The argument that the federal government could manage learning better than state and local government is/has, and always will be, faulty.
After Lyndon B. Johnson effectively put the camels’ head (government power and authority), into the tent (education) there was no stopping its body following. President Jimmy Carter then established the Department of Education and progressively school boards have become largely “rubber stamps” as they are told by benefiting administrators that this and that regulation is federally mandated. Hopefully Congress will end authorization of their No Child Left Behind law returning education to the states and local government where it constitutionally belongs or at the very least propose an amendment to the Constitution authorizing federal take-over of education. It certainly could do so on the basis of the Constitution or on the damage it has done to our children and our schools.
Dr. Harold Pease is a syndicated columnist and an expert on the United States Constitution.
Feb 24, 2015 | Constitution, Liberty Articles
By Harold Pease, Ph. D
It is difficult to say what mans’ greatest crowning technological achievement has been but it is likely the Internet, which emerged and operates without a central governing body—just like most everything in a free society. It has no centralized governance for either technology or policies but is guided by the Internet Assigned Numbers Authority (IANA) for the allocation and assignment of various technical identifiers needed for its operation. UCLA and Stanford University are the educational institutions most associated with its development as is the name Jon Postel who helped guide it through three decades, but contributors are too numerous to name. My point: it moved and shaped itself as needs developed without big government resulting in a technological tsunami wave unparalleled in human history for the benefit of everyone on earth and it will continue to do so best without government interference.
Enter Barack Obama who has made no pretense of his desire to regulate the Internet. The take-over begins slowly, without review from Congress or any body except the President’s Federal Communications Commission, and is to remain largely silent. They, the FCC, will meet February 26, 2015, in a quiet room and vote whether or not the government should control the Internet. Government always chooses to enlarge itself so there exists little hope that the vote, making them more powerful, will be in the negative. Ironically warnings of the take-over, are thus far, posted only on the Internet.
It is easy to see why governments want control of this medium. Its existence promotes freedom from excessive government. Totalitarian states such as North Korea, China, Russia and even Iran have long ago restricted information adverse to them getting to their people.
Deceptively the take-over is called Net Neutrality, named by the government to infer that they will insure that no other entity, other than them, will have any undo influence over the Internet—a threat that is totally unfounded as demonstrated by its superb three-decade management of itself. There exists nothing neutral about Net Neutrality, which gives the FCC the power to decide what Internet service providers can charge and how they operate. Freedom is often lost in the name of freedom. This will not end well for freedom buffs or the free market.
Reportedly the FCC has planned on applying Title II (common carrier) of the Communications Act of 1934 to the Internet since April 23 of last year. The President encouraged the process November 10, 2014. The Republican House discussion draft bill of January 16, 2015, opposes the take-over which would reclassify internet service from one of information to one of telecommunications, such as radio or television, enabling the decades old rules over the other mediums to apply to the Internet at the discretion of the FCC alone. Thus bloggers and others who use the Internet to influence policy and campaigns could be limited or taxed.
So far Republican opposition is weak and Democratic opposition is non-existent. Conservatives view the take-over as a means of silencing them, much the same way that Obama has used the IRS to silence the Tea Party Movement. Liberals are mixed: strong advocates of individual liberty such as the “right to die” or use marijuana without government say so, but wanting to support their President. They need to be reminded that conservative Richard Nixon used government agencies to silence them as well.
If one wants to see where government regulation of the Internet can lead it can be found in a “free” country such as the Netherlands. For them providing Net Neutrality in practice recently meant a stiff fine for a company offering an app enabling folks to stream HBO channels without charging for data usage. In an Internet free world the app would be a welcomed invention. The company was also accused of influencing its customers’ online behavior by doing so, which is not allowed either.
As far as I can tell, at press time, the 332 page FCC plan, that will be voted on February 26, has not been made available to the public or to Congress. The take-over will happen without cameras or media comment and government agents will too soon fan out over the land looking for people to tax or criminalize and a serious blow to freedom will have occurred almost without notice. This is a time to phone your congressperson and two senators. You must demand that the FCC make their plans public, and that the Congress, who is constitutionally required to make ALL the laws as per Article I, Section I, perform their responsibilities, rather than sit by and let unelected bureaucrats do so.
Dr. Harold Pease is a syndicated columnist and an expert on the United States Constitution.
Feb 16, 2015 | Constitution, Economy, Liberty Articles
By Harold Pease, Ph. D
Presidents’ Day, combining birthdays of George Washington and Abraham Lincoln for a national holiday, was designed to honor the contributions of both but, though we heap praise upon each, we ignore their messages. Washington’s primary message for posterity can be found in his famous Farewell Address just prior to his leaving office.
In strong terms he asked that we avoid debt. He said: “As a very important source of strength and security cherish public credit… use it as sparingly as possible, avoiding occasion of expense… [Use the] time of peace, to discharge the debts which unavoidable wars may have occasioned, not ungenerously throwing upon posterity the burden which we ourselves ought to bear.” Today our national debt sits at over $18 trillion—the highest in our history—eight trillion of which coming under President Barack Obama alone. We are spending our way into slavery for our children and/or financial collapse (See USDebtClock.org).
Washington pleaded with the nation to keep religion and morality strong. He said: “Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports…. Let it simply be asked, where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths which are the instruments of investigation in courts of justice? Reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle.” The founding Fathers never supported the notion of separation of religion and government—only the separation of an organization of religion from government. What would Washington say of the immorality that prevails today?
But the warning about foreign aid was especially good. He basically told us gift giving in foreign affairs is a good way to be universally hated. He said it placed us “in the condition of having given equivalents for nominal favors, and yet of being reproached with ingratitude for not giving more.” Today there is hardly a nation in the world that does not have its hand out and when, after once giving, the amount is reduce or terminated we are hated all the more for it.
Washington worried about posterity not holding their elected officials strictly to the limits imposed by the Constitution. He knew many would seek to undermine that document by twisting it to give power they could not acquire without the distortion. Sound familiar? He said: “But 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.” Today much of what the federal government does is not even mentioned in the Constitution.
But freedom fighters are not likely to be popular, he said: “Real patriots, who may resist the intrigues of the favorite, are liable to become suspected and odious; while its tools and dupes usurp the applause and confidence of the people, to surrender their interests.” One need not look far for the tools and dupes; they seem to be everywhere in high office and in both parties.
Lincoln was for the free market and decidedly against socialism—just opposite of President Obama. On the ownership of property Abraham Lincoln’s feelings were especially strong, he said, “Property is the fruit of labor; property is desirable; is a positive good in the world. That some should be rich shows that others may become rich, and hence is just encouragement to industry and enterprises” (The Collected Works of Abraham Lincoln edited by Roy P. Basler, Volume VII, pp. 259-260). To him there was no need to take by force the wealth of those who produce and give it to those less productive. The “share the wealth” philosophy and “envy politics” so articulated by Obama would have been foreign ideology to the Civil War president.
Lincoln’s answer to the poor, from which he sprang himself, “Let not him who is houseless pull down the house of another, but let him labor diligently to build one for himself, thus by example assuring that his own shall be safe from violence….” Unfortunately, many in our society have forgotten the “labor diligently” part of his phrase and have come to expect the government to provide, from the industry of others, their every need. On that score Lincoln also had words. “You toil and work and earn bread, and I will eat it.” He viewed this principle as a form of tyranny to those who work. Today 47.5 % of the adult population pays no federal income tax; many actually receive benefits for which they have paid nothing.
Watching others acquire wealth was, in fact, a sign of a healthy economy for Lincoln. “I take it that it is best for all to leave each man free to acquire property as fast as he can. Some will get wealthy. I don’t believe in a law to prevent a man from getting rich; it would do more harm than good.” Nor would he have supported the hundreds of laws that we have today that disincentivise a man trying to acquire wealth.
Perhaps teachers and parents would be wise to remind those under their charge of the wisdom of the ages as expressed by these two favorite presidents. There is a reason that we have the day off and that these birthdays were made a holiday. But with all the fun that follows we must not forget their messages.
Dr. Harold Pease is a syndicated columnist and an expert on the United States Constitution.
Feb 10, 2015 | Constitution, Liberty Articles
By Harold Pease, Ph. D
In state after state the Defense of Marriage Act defining marriage as between a man and a woman was passed. Likewise, in state after state, since passage, non-elected federal appellate judges have ruled same-sex marriage to be constitutional, reversing the will of the majority—until now. Finally a justice is actually using the whole Constitution in his arguments. Chief Justice Roy Moore of the Alabama Supreme Court recently wrote that the U.S. Constitution gives no jurisdiction whatsoever to any branch of the federal government to dictate marriage policy to the states and is advising Alabama Governor Robert Bentley to disallow county clerks from issuing marriage licenses to do so.
In a hand delivered letter to Governor Robert Bentley January 27, 2015, Justice Moore argued that “nothing in the United States Constitution grants the federal government the authority to redefine the institution of marriage” and that it decidedly trumps Alabama state law, more specifically the Sanctity of Marriage Amendment passed in 2006 by 81% of her voters. Moreover, “44 federal justices have imposed by judicial fiat same-sex marriages in 21 states of the Union, overturning the express will of the people in those states.” This he called judicial tyranny, which he defined as “unlawful opinions issued without constitutional authority.” He referred to the misuse of more recent interpretations of equal protection, due process, and full faith and credit concepts, as “specious pretexts” not part of the original document.
The press seldom consults the Constitution. Everything to them is simply liberal or conservative and Republican or Democrat. End of analysis!!! But is Moore constitutionally sound? What does the Constitution say about marriage and can Governor Bentley constitutionally refuse compliance with a judicial mandate?
When the Founding Fathers created the Constitution they recognized two co-existing governments known as Federalism: one, the federal government, to function primarily externally, the other, the states, to manage internal functions. Like a marriage they functioned—neither being master nor slave. Of the two only the federal government was restricted in its functions by a list of 17 specific powers found in Article I, Section 8. The Founders knew that all national governments like to grow. The states were left unrestricted and all power not identified was assumed left to them and lesser governments. To make doubly certain that this limitation on the federal government was permanent, the States insisted on having a Bill of Rights included in the Constitution as a condition of their acceptance of it. Amendment 10 of it reads, “The powers not delegated to the United States by the Constitution…are reserved to the states respectively, or to the people.”
Unfortunately for advocates of federalizing loving relationships the word marriage, or anything like unto it, is not in Section 8, nor has it been added to the Constitution by way of amendment through Article V, which is the process for change and thus this issue is devoid of federal constitutional authority. If we are to follow the Constitution as intended, and not make a mockery of it, marriage related questions are state functions at best and cannot be moved to a federal jurisdiction without a 3/4th affirmative vote of the states as per Article V of the U.S. Constitution. Alabama has every constitutional right not to issue marriage certificates to same-sex couples.
Still, what about Amendment 14, passed after the Civil War to make the southern states apply the Bill of Rights to their freed black population—the amendment now almost exclusively used to justify same sex marriages? This amendment was about slavery, not marriage; homosexuality at the time was illegal in every state. Two nebulous phrases in the wordy amendment, “due process” and “equal protection,” were extracted later by judges, sometimes with tortured logic, and used to rule that a state may not deprive their same-sex couples of due process and equal protection of the law. Each nebulous phrase took on a life of its own with no regard to original intent.
If a judge uses only the distortions of Amendment 14, not introduced into the Constitution until after 1865, seventy-eight years later and never understood by the amendment writers to justify radical change, he will use it to make same-sex marriage constitutional. To do so, however, he must intentionally ignore Article I, Section 8, and Amendment 10 and utterly discard the philosophy of federalism. Such judges endorse the movement to grow the federal government, righting all wrongs and solving all problems through an ever-enlarging central government—just the opposite of what the Constitution is supposed to do. Constitutionalist judges like Moore, on the other hand, value these essential components of the Constitution and will rule otherwise.
Judge Moore uses the complete Constitution as understood by its Founders. His opponents take one sentence out of the whole disregarding everything prior to 1865 and give it a meaning not understood at the time. So again, we finally have a judge who uses the whole Constitution in his interpretations.
Dr. Harold Pease is a syndicated columnist and an expert on the United States Constitution.
Feb 1, 2015 | Constitution, Liberty Articles
By Dr. Harold Pease
In listening to the President’s State of the Union Address one might think that he actually has the power to do what he requests. On domestic issues two old requests from last years State of the Union Address were renewed: a request for raising the minimum wage and, instead of just making the college opportunity available to all middle class Americans, he went further proposing free community college for all. Other requests included advocacy for “a free and open Internet,” which, given a recent executive order means control of it, expanded child care tax credits, improved job training, expanded paid leave, and a new tax benefit for two-income families. All this to be funded by increased taxes on the rich. He threatened a veto to any legislation that altered Obamacare or undermined his recently decreed executive amnesty. He was decidedly unclear on his request for criminal justice reform, certainly a reference to the riots in Ferguson, Mo. More federal involvement always means more federal control.
He defended his positions on Cuba and Iran and threatened presidential vetoes if Congress legislated differently. Constitutionalist had to have cheered when he seemed to lecture, the mostly Republican Congress, on what he called “rash decisions, reacting to the headlines instead of using our heads; when the first response to a challenge is to send in our military—then we risk getting drawn into unnecessary conflicts, and neglect the broader strategy we need for a safer, more prosperous world.” He called it “a smarter kind of American leadership” and seemed aimed at the so-called military industrial complex of which President Dwight D. Eisenhower warned. He saw rewriting the Authorization of Use of Military Force, which authorized the air campaigns in Iraq and Syria, as a priority but left few specifics on what that meant. He still refuses to use the term Radical Islamist Terrorists in describing the Islamists involved in the mass killing in Nigeria, Iraq, Syria and France even though while he spoke they were threatening to topple Yemen who has stood with us in opposition to al-Qaida.
The list went on and on as it does for every president Republican or Democrat, but what was different from last year is that he threatened the use of the veto rather than the threat of his bypassing Congress with the use of the “pen” through executive orders. The term executive order is not found in the Constitution and initially was nothing more than inter-departmental communications between the President and his executive branch with him requesting some action on their part. Constitutionally they have no law-making function.
Unfortunately most, if not all, of these things are not in Article II of the Constitution nor have they been added by way of amendment as outlined in Article V of that document, thus they are unconstitutional. It is very probable that, even with the approval of Congress, they would be outside the Constitution but that is a topic for another time. Presidents, in their thirst for power and /or proclaimed expediency, have empowered themselves to the point of “kingship” with their worshipful, unchallenging, party followers (whether Democrat or Republican) quite willing to look the other way as government grows beyond its ability to be constitutional or efficient. At any time he could remind the people of his real constitutional powers but he will not as that would drastically reduce his power that is beginning to look limitless.
We must return to the Constitutional powers of the President as identified in Article II. As we list these powers attempt to match the State of the Union requests wherein he suggests that he might have a role. Under the Constitution the president has but eleven powers. Let us identify them: 1) “Commander in chief of the army and navy of the United States” including the militia when called into actual service of the United States; 2) supervise departments (cabinet), each presumably established by the Congress (George Washington had but four); 3) grant reprieves and pardons; 4) make treaties with the help of the Senate; 5) with Senate help appoint positions established by law such as ambassadors, ministers and judges; 6) fill vacancies “during recess of the Senate;” 7) make recommendations to Congress on the state of the union; 8) convene both houses on special occasions and handle disputes with respect to convening; 9) receive ambassadors and other public ministers; 10) make certain that “laws be faithfully executed;” and, 11) “commission all the officers of the United States.”
Simply stated the president has two supervisory powers over existing organizations and two shared powers with the Senate, otherwise he pardons, recommends, appoints and entertains. That is it! Notice the absence of power to make any rules and regulations on us. This is the job of Congress alone.
All measures listed in the 2015 State of the Union Address are but suggestions to Congress, which alone, as per Article I, Section I, has all law-making functions—the president has none. That said, he is within his constitutional bounds with his threat of the veto, which is likely to be used liberally.
Dr. Harold Pease is a syndicated columnist and an expert on the United States Constitution.
