May 29, 2012 | Constitution
By Dr. Harold Pease
Are body cavity searches constitutional? In the recent Supreme Court, decision Florence v. County of Burlington, the Court ruled 5 to 4 that law enforcement may strip search those arrested for even minor infractions before incarceration, “even if the officials have no reason to suspect the presence of contraband” (Adam Liptak, Supreme Court Ruling Allows Strip Searches for Any Arrest, New York Times, April 2, 2012).
This is not particularly new, as the Supreme Court had previously ruled in 1979 that “visual body cavity searches of all detainees after they had contact with outsiders,” was permissible. In practice, however, lower courts had ruled “the prison had to have a reasonable suspicion that the arrestee was concealing contraband before subjecting him to a strip search upon entering the facility” (Glenn Greenwald, The Obama DOJ and Strip Searches, New York Times, Apr. 3, 2012).
But the Obama Department of Justice and five conservative justices (strange bedfellows) both wanted a blanket, more universal policy. When you have a rule that treats everyone the same you don’t have folks that are singled out. You don’t have any security gaps,” argued Justice Department lawyer Nicole A. Saharsky. So now everyone arrested is subject to possible strip searches on the discretion of law enforcement alone.
The Fourth Amendment to the U.S. Constitution reads in part, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” Clearly the states, who initiated the Bill of Rights as a condition of their acceptance of the Constitution, had had negative experiences with government overreach with respect to “unreasonable searches” and wanted no such practices from the new government they were creating.
The issue of naked body searches for minor infractions came to a head when Albert W. Florence, a passenger in a car cited for speeding, was arrested and detained for an unpaid fine (which, unknown to the arresting officer, he had in fact paid). In the process of confinement over the next week he twice was made to remove his clothing and squat, cough and “spread your cheeks.” He found it humiliating and sued. Certainly he did not feel “secure in his person” as guaranteed by the Fourth Amendment.
He is not the only victim of this practice. Unfortunately, “according to opinions in the lower courts, people may be strip-searched after arrests for violating a leash law, driving without a license and failing to pay child support.” In his minority argument Justice Stephen G. Breyer “wrote that people have been subjected to ‘the humiliation of a visual strip search’ after being arrested for driving with a noisy muffler, failing to use a turn signal and riding a bicycle without an audible bell.” He even noted that “a nun was strip-searched…after an arrest for trespassing during an anti war demonstration” (Liptak).
With respect to the Fourth Amendment a list of areas of potential wrongs is sandwiched between the words secure and reasonable, with person being the first area noted. If government can force one to open butt cheeks, he decidedly, is not secure in his person. Also notice the passion exemplified by the words, “shall not be violated.” There is no give on this Justices. If the Founders felt so strongly with respect to their effects, obviously they would have even stronger feelings about their own bodies. As far as I can tell the British government never required a naked search. This is excessive and unreasonable.
So to answer the question, “Are body cavity searches constitutional?” No! Neither the republican dominated justices nor the democratically controlled Department of Justice have any constitutional right from the Fourth Amendment to force body cavity examinations for any purpose, more especially for minor infractions that have nothing to do with contraband. Government must return to the states, as prescribed in Article V of the Constitution, and get ¾ th of the states to agree upon a new amendment that authorizes this practice. In the process there will be much debate and other courses of action found that can work to keep contraband out of our prisons without emasculating the Fourth Amendment of the U.S. Constitution and searching fecal cavities.
Dr. Harold Pease is an expert on the United States Constitution. He has dedicated his career to studying the writings of the Founding Fathers and applying that knowledge to current events. He has taught history and political science from this perspective for over 25 years at Taft College. To read more of his articles, please visit www.LibertyUnderFire.org.
http://www.brasschecktv.com/page/10337.html
http://www.brasschecktv.com/page/10337.html
May 8, 2012 | Constitution
By Dr. Harold Pease
Several years ago, at a public debate for county supervisor in a California community, 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 can you give to me and, is it more than your opponent. The other evening, at a similar debate, I experienced a more receptive response; at least my question was asked.
So what does the Constitution have to do with local or state issues a friend later asked? Everything!! First, it is the only document that every single elected public servant swore 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. 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 tell me again why it matters? Historically, the two enemies of freedom have been, and always will be, 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 all 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 so that they do not have all power in each area. The only type of federal government authorized by the Founders was decidedly a limited one. What is not emphasized, and should be, from the state, county and city perspective is that all other powers not specified belong to the states and the people as per Amendment 10.
When these limitations are not understood, 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 100%, state issues. States 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, both states and counties should have written Congress. “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.” When President Barack Obama issued an executive order March 16 authorizing himself to declare “martial law” without any authorization from any other government, states and counties should in unison have said “not in our areas of jurisdiction without our say so! Sir! The Constitution gives you no such authority.”
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. You have placed us in the position that your understanding of the document must be known before we place you in power. Our only hope now is to find leaders with Constitutional fire in their bellies to undo the precedents that you have created. All issues on the city and county level are directly or indirectly Constitutional issues. We expect you to know, and abide by, the document that you swore to uphold.
Dr. Harold Pease is an expert on the United States Constitution. He has dedicated his career to studying the writings of the Founding Fathers and applying that knowledge to current events. He has taught history and political science from this perspective for over 25 years at Taft College. To read more of his articles, please visit www.LibertyUnderFire.org.
Apr 23, 2012 | Constitution, Healthcare
By Dr. Harold Pease
In light of the President’s recent concern, as expressed in the Wall Street Journal, that it would be “an unprecedented, extraordinary step” for the Supreme Court to “overturn a law [i.e., the Affordable Care Act] that was passed by a strong majority of a democratically elected Congress” (“Obama Warns Court” by Laura Meckler and Carol E. Lee.”), let me remind him that the measure barely squeaked by with a majority of seven votes in the democratically controlled House of Representatives (219-212) and in the Senate with a minimum number to avoid a filibuster—hardly a “strong majority.” Nor would such a decision by the Court be “unprecedented” or “extraordinary,” but these arguments need explanation another day.
My concern is with the article’s conclusion: “In his first public comments about the case since the justices first took it up last week, Mr. Obama appeared to be framing the political argument he would make should he have to face voters this fall after a loss at the high court.” If right, that the President’s strategy is to pit the majority against the minority of the population, to further democratize our system of government, then it must be stopped in its tracks. We are a republic, not a democracy!!
Allowing “a mere nine old people” to strike down what a majority want is certainly undemocratic and it does smack of unfairness. Majority rule is the heart of democracy. Nothing is fair in our government and nothing can be made to be fair without the total destruction of our form of government, a republic. Surely, President Barack Obama knows this, but the people are made to believe we are a democracy by the constant long-term use of that word by those holding high office and the media. An artful politician playing the “fairness card” can prey on the ignorance of the people to gain or retain public office. If enough come to believe that we should be a democracy, instead of a republic, they, unfortunately, can “fundamentally change America.” Is this what we have to look forward to in the debates this Fall should the Supreme Court rule against “Obamacare?”
How undemocratic are we? The Senate, initially chosen by the state legislatures—not the people—was created to serve the interests of the states, which is why we have two legislative branches rather than one—two perspectives, the House represented the people and the Senate the states. The president is elected by the Electoral College rather than by popular vote. Supreme Court members are chosen for life by the Electoral College “selected” president and confirmed only by the “state selected” Senate. Our entire system is undemocratic by design. The House alone is democracy.
Why are we so undemocratic? It is because we are not all equal in experience, wisdom, common sense, understanding of natural law, and knowledge as to how we maintain freedom from government. I ask my students how many months did they spend analyzing the propositions in the last election before they voted? Weeks? Days? Hours? Minutes? None? If only hours or minutes, why should their vote cancel one who took the privilege far more seriously? Why is the democratic notion of “one man one vote” not decidedly unfair to those who spend serious time contemplating the issues.
In a democracy the ignorant rule because they have the same power as the informed and there are more of them. Thomas Jefferson saw the harm in such when he wrote: “A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other forty-nine.” Alexis de Tocqueville, the famous French philosopher traveling America in the 1840s, foresaw the end of our liberty experiment when he wrote: “The American Republic will endure until the Congress discovers that it can bribe the public with the publics money.” That day is today! Both were aware of the demand for “bread and circus” made by those under democracy in Rome that ended freedom.
How did the Founders, who clearly understood the problems of democracy with respect to its failure to endure in both Greece and Rome, protect us from democracy? The answer was a republic that preserved the caring elements of democracy by instilling frequent elections with options in the House of Representatives. All war, taxes and impeachment powers originate with the House. If the House is upset much change can occur in just two years. The Senate and Presidency were less democratic with the Supreme Court the most undemocratic end of our government—totally immune from the erratic whims of the emotion of the masses.
Time-tested principles embedded in the Constitution had to be preserved. Difficult to understand concepts such as separation of powers, federalism, limited government, and all the rights listed in the Bill of Rights had to be protected from the majority because the majority can vote them away. The Founders knew that liberty could be destroyed by democracy, as had happened in the two republics before our own, and gave us our justices to protect us from democracy. So, Mr. President let them.
Dr. Harold Pease is an expert on the United States Constitution. He has dedicated his career to studying the writings of the Founding Fathers and applying that knowledge to current events. He has taught history and political science from this perspective for over 25 years at Taft College. To read more of his articles, please visit www.LibertyUnderFire.org.
Apr 13, 2012 | Constitution, Globalism, Take Action
By Dr. Harold Pease
The Founding Fathers’ concept of separation of powers has been heavily altered the last fifty years. The Constitution allowed only the Legislative Branch to make federal law (Art. I, Sec. I, Clause I). A law’s review by 536 individuals (435 members of the House, 100 Senators and 1 President) served as a filter for bad law as only one bill in thirty survived the rigid scrutiny of both branches and bore the signature of the President.
In light of the President’s recent Executive Order, National Defense Resources Preparedness, signed March 16, 2012, which should be the focus of considerable media attention, we need to examine the constitutionality of the executive order process that increasingly allows the executive branch to replace Congress as the principal law-making branch. But first a reminder of what this Executive Order does.
By a mere stroke of the pen President Barack Obama renewed and expanded the Bill Clinton, June 3,1994, National Defense Industrial Resources Preparedness, Executive Order 12919, that authorized the executive department’s take-over, in case of a national emergency, of all civil transportation including the “movement of persons and property by all modes of transportation … within the United States.” Other things specifically listed to be under his sole control were: all forms of energy, all farm equipment, all food resources, all food resources facilities, all health resources, and all water resources (Section VIII). National emergency was never adequately defined therefore, presumably, left to the discretion of the President alone as to when such conditions warranted his implementation or removal of the emergency.
Section 102 of the Obama decree broadened the Clinton E.O. to apply “in peacetime and in national emergency” which means that parts of the edict are in effect with his signature alone without any emergency identified. We no longer need to wait for an emergency. Moreover, according to Section 103(b), compliance can be forced upon all needed “subcontractors and suppliers, materials, skilled labor, and professional and technical personnel.” Imagine private contractors being required to serve against their will. Conspicuously omitted was any role for Congress in this “martial law type” edict.
Today, though the E.O. process, the President makes half as many laws (decrees if you prefer) as does the Legislative Branch—about three a week. Some few laws of Congress need a statement of implementation by the president. For example, President Washington was directed by Congress to create Thanksgiving Day as a national holiday. This he did by Executive Order, which was constitutional. An executive order, if it simply implements a single, recently passed (within weeks), law of Congress is fine. But, when he instead takes multiple pieces of many laws passed by ancient congresses, he effectively creates new law without any review and unconstitutionally usurps the powers of Congress. This has happened through much of the 20th Century.
Even more blatantly unconstitutional is the practice of presidents, beginning with Richard Nixon, of not even attempting to justify their Executive Orders with ancient pieces of authorization, instead, just decreeing something to be law. These are known as presidential decrees and differ little from monarchical, or dictatorial decrees.
The National Defense Resources Preparedness Executive Order opens, as all do, with a statement of authority that one must scrutinize to determine if the President is making new law or carrying out a specific, recent, congressional request. “By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Defense Production Act of 1950, as amended (50 U.S. C. App. 2061 et seq.), and section 301 of title 3. United States Code, and as Commander in Chief of the Armed Forces of the United States, it is hereby ordered as follows:” is designed to sound official. If the reader cannot specifically go to the source of authority and read it, then the general statement is but window dressing. Phrases “as President by the Constitution” or, “as Commander in Chief of the Armed Forces” establish no specific authority. The Constitution gives no authority for such an edict. One, recently cited, law by Congress specifically requesting the President to do something is definitely needed to make this executive order valid and the best the President was able to do was go back sixty-two years and make up stuff to go with the 1950 law as Bill Clinton did in 1994.
Except for the few executive orders which require a statement of implementation by the president, all other types of executive orders are unconstitutional and must stop. If they do not, the inevitable will happen—Congress will nullify itself and dictatorial decrees will be the standard.
Dr. Harold Pease is an expert on the United States Constitution. He has dedicated his career to studying the writings of the Founding Fathers and applying that knowledge to current events. He has taught history and political science from this perspective for over 25 years at Taft College. To read more of his articles, please visit www.LibertyUnderFire.org.
Barack Obama, Bill Clinton, Constitution, Executive Order 12919, Executive Orders not always constitutional, Executive Orders should not make law, Legislative brance alone to make law, Martial Law Executive Order, National Defense Resources Preparedness
Apr 13, 2012 | Constitution, Globalism, Take Action
By Dr. Harold Pease
The Founding Fathers’ concept of separation of powers has been heavily altered the last fifty years. The Constitution allowed only the Legislative Branch to make federal law (Art. I, Sec. I, Clause I). A law’s review by 536 individuals (435 members of the House, 100 Senators and 1 President) served as a filter for bad law as only one bill in thirty survived the rigid scrutiny of both branches and bore the signature of the President.
In light of the President’s recent Executive Order, National Defense Resources Preparedness, signed March 16, 2012, which should be the focus of considerable media attention, we need to examine the constitutionality of the executive order process that increasingly allows the executive branch to replace Congress as the principal law-making branch. But first a reminder of what this Executive Order does.
By a mere stroke of the pen President Barack Obama renewed and expanded the Bill Clinton, June 3,1994, National Defense Industrial Resources Preparedness, Executive Order 12919, that authorized the executive department’s take-over, in case of a national emergency, of all civil transportation including the “movement of persons and property by all modes of transportation … within the United States.” Other things specifically listed to be under his sole control were: all forms of energy, all farm equipment, all food resources, all food resources facilities, all health resources, and all water resources (Section VIII). National emergency was never adequately defined therefore, presumably, left to the discretion of the President alone as to when such conditions warranted his implementation or removal of the emergency.
Section 102 of the Obama decree broadened the Clinton E.O. to apply “in peacetime and in national emergency” which means that parts of the edict are in effect with his signature alone without any emergency identified. We no longer need to wait for an emergency. Moreover, according to Section 103(b), compliance can be forced upon all needed “subcontractors and suppliers, materials, skilled labor, and professional and technical personnel.” Imagine private contractors being required to serve against their will. Conspicuously omitted was any role for Congress in this “martial law type” edict.
Today, though the E.O. process, the President makes half as many laws (decrees if you prefer) as does the Legislative Branch—about three a week. Some few laws of Congress need a statement of implementation by the president. For example, President Washington was directed by Congress to create Thanksgiving Day as a national holiday. This he did by Executive Order, which was constitutional. An executive order, if it simply implements a single, recently passed (within weeks), law of Congress is fine. But, when he instead takes multiple pieces of many laws passed by ancient congresses, he effectively creates new law without any review and unconstitutionally usurps the powers of Congress. This has happened through much of the 20th Century.
Even more blatantly unconstitutional is the practice of presidents, beginning with Richard Nixon, of not even attempting to justify their Executive Orders with ancient pieces of authorization, instead, just decreeing something to be law. These are known as presidential decrees and differ little from monarchical, or dictatorial decrees.
The National Defense Resources Preparedness Executive Order opens, as all do, with a statement of authority that one must scrutinize to determine if the President is making new law or carrying out a specific, recent, congressional request. “By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Defense Production Act of 1950, as amended (50 U.S. C. App. 2061 et seq.), and section 301 of title 3. United States Code, and as Commander in Chief of the Armed Forces of the United States, it is hereby ordered as follows:” is designed to sound official. If the reader cannot specifically go to the source of authority and read it, then the general statement is but window dressing. Phrases “as President by the Constitution” or, “as Commander in Chief of the Armed Forces” establish no specific authority. The Constitution gives no authority for such an edict. One, recently cited, law by Congress specifically requesting the President to do something is definitely needed to make this executive order valid and the best the President was able to do was go back sixty-two years and make up stuff to go with the 1950 law as Bill Clinton did in 1994.
Except for the few executive orders which require a statement of implementation by the president, all other types of executive orders are unconstitutional and must stop. If they do not, the inevitable will happen—Congress will nullify itself and dictatorial decrees will be the standard.
Dr. Harold Pease is an expert on the United States Constitution. He has dedicated his career to studying the writings of the Founding Fathers and applying that knowledge to current events. He has taught history and political science from this perspective for over 25 years at Taft College. To read more of his articles, please visit www.LibertyUnderFire.org.
Apr 9, 2012 | Constitution, Globalism, Take Action
By Dr. Harold Pease
The most dangerous executive order (hereafter EO) ever written (exempting Franklin Roosevelt’s EO throwing Japanese-Americans into relocation camps against their will in World War II) was EO 12919 of June 3, 1994. By a mere stroke of the pen President Bill Clinton authorized the executive department’s take-over, in case of a national emergency, of all civil transportation including the “movement of persons and property by all modes of transportation … within the United States.”
National emergency was never adequately defined therefore, presumably, left to the discretion of the President alone as to when such conditions warranted his implementation of it. Nor were circumstances noted when such would end allowing the return of confiscated property and the free movement of the people again. Nor was there any noted role for Congress. Nor was there any role noted for local civil authority—the first responders. Nor was it explained why the president needed near dictatorial power in a national emergency and had not in crisis heretofore. There was no debate.
Other things specifically listed to be under his sole control were: all forms of energy, all farm equipment, all food resources, all food resources facilities, all health resources, and all water resources (Section VIII). The detail was incredible. Every possibility considered. Some concern and fear was expressed at the time about this “martial law type” edict but since the president did not act on it, nor did it seem reasonable that he or any future president would, twas soon forgotten. Imagine all this power in the hands of one person. It sounded more likely to be enacted in a communist or fascist country.
On March 16 of this year the infamous Clinton Executive Order was revoked by President Barack Obama and replaced by the equally threatening and expanded National Defense Resources Preparedness. The new EO retains all of the dreaded portions of the 1994 Clinton one, as noted above, but Section 102 of the Obama decree broadens it to apply “in peacetime and in national emergency.” Moreover, according to Section 103(b), compliance can be forced upon all needed “subcontractors and suppliers, materials, skilled labor, and professional and technical personnel.” Imagine private contractors being required to serve against their will. In wartime such a requirement would normally be given voluntarily, but in peacetime?
Where is our elected Congress specifically charged with making all federal rules with respect to a free people as stipulated in Article I, Section I of the Constitution? The EO essentially replaces them on national defense—their most important responsibility. The EO reads in part, “The National Security Council and Homeland Security Council, in conjunction with the National Economic Council, shall serve as the integrated policy making forum for consideration and formulation of national defense resource preparedness policy and shall make recommendations to the President.” An “integrated policy making forum?” Isn’t that what Congress is supposed to be?
To administrate the new self-empowering edict that, as a result of Obama’s Executive Order has peacetime application as well, the EO creates the National Defense Executive Reserve. The President’s NDER is to be “composed of persons of recognized expertise from various segments of the private sector and from Government … for training for employment in executive positions in the Federal Government in the event of a national defense emergency.” A huge new bureaucracy supported by the taxpayer without one ounce of congressional authority—even debate—is created by the stroke of the pen of just one man. The Secretary of Homeland Security is also “to determine periods of national defense emergency.” This implies continued national emergencies that justify continued “martial law like” monitoring of the people in the name of national emergency.
The most dangerous Executive Order in our history, unless you were Japanese-American in World War II, is alive and well and even more threatening under President Obama. If Congress continues its trend of ignoring her sole rule-making jurisdiction, it may soon make itself irrelevant. Unfortunately, it also makes the people and their constitution irrelevant as well. Perhaps your Congressman does not yet know about this liberty threatening Executive Order semi-secretly signed in the Oval Office of the White House. Will you tell him so that he can step up to the plate and defend you?
Dr. Harold Pease is an expert on the United States Constitution. He has dedicated his career to studying the writings of the Founding Fathers and applying that knowledge to current events. He has taught history and political science from this perspective for over 25 years at Taft College. To read more of his weekly articles, please visit www.LibertyUnderFire.org
