Sep 8, 2015 | Constitution, Immigration, Liberty Articles
By Harold Pease, Ph. D
Amazingly Presidential Candidate Donald Trump is right; birthright citizenship does not exist in the Constitution. The establishment media, including Fox News, jumped all over Mr. Trump like a swarm of Africanized honey bees over a pot of honey, attempting to portray him as ignorant on the Constitution. Although he may be on many other things, he is dead right on this part of his recently released immigration plan. Even Bill O’Reilly, on the O’Reilly Factor, ignorantly castigated him on this point. Trump held his ground that the 14th Amendment never authorization birthright citizenship. The ignorance of the establishment press is overwhelming.
Although most of us have great sympathy for those who were infants or born here when their parents illegally crossed the border and have lived here all their lives and know no other country, the 14th Amendment for the casual reader seems to validate such: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” A more careful read, however, shows that such was specifically denied, consider the phrase “subject to the jurisdiction thereof.” The purpose of the clause was to guarantee citizenship to freed slaves and their descendants after the Civil War.
The concept of “anchor” babies refers to those whose parents are illegal immigrants into the United States and while here have a baby. That baby then inherits full citizenship and even the right later, as an adult, to sponsor his/her own illegal parents in their quest for citizenship. The debate for or against the practice of allowing citizenship for babies of illegal’s born in the U.S. rages on with virtually no one going to the source of the alleged authority—the crafters of the 14th Amendment of the Constitution.
Senator Jacob Merritt Howard, architect of the 14th Amendment, actually structured the Amendment (one of two defining the legal status of freed slaves after the Civil War, the other being the 13th which gave them freedom) to prevent that very interpretation. He said: “This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign minister accredited to the Government of the United States, but will include every other class of persons.”
It was he who insisted that the qualifying phrase “subject to the jurisdiction thereof” be inserted into Section I. Those sneaking across our borders in the cover of darkness are clearly foreigners, and not subject to the jurisdiction of the United States, and thus are specifically exempted from citizenship. Notice the exclusion of babies born of ambassadors while here as well. The record of the Senate deliberations on the 14th amendment shows this to be the view of the Senate.
There is no such thing as automatic citizenship from this amendment without serious distortion of it. In fact, Lyman Trumbull, co-author of the 13th Amendment outlawing slavery, addressing the definition of the phrase “subject to the jurisdiction thereof,” asked, “What do we mean by complete jurisdiction thereof? Not owing allegiance to anybody else. That is what it means.”
Those crossing our borders illegally have jurisdiction or allegiance elsewhere and thus cannot have citizenship. How can a child of such a parentage have what his parents clearly do not have? How many are born illegally in the United States per year? Statistics are difficult to validate but the Pew Hispanic Center study estimated 340,000 in 2008 alone. If they in turn are used as sponsors for their parents in their quest for citizenship such could be a million per year.
Citizenship was denied some of my ancestors. Native Americans owed allegiance to their Sioux or Apache or Blackfoot, or whatever, Indian nations and thus were not yet “subject to the jurisdiction thereof” of the nation they sought citizenship in. Certainly one must cease to be at war or conflict with the newly embraced country. This was not granted until 1924 when this requirement was satisfied.
Many of our Mexican friends send portions of their checks home to Mexico and plan to return to their native land upon retirement with pensions and/or social security sent to their “first” country from the country they extracted the wealth—the United States. Some vote in Mexican elections from here. It is indeed hard to argue that they are not instead subject to the jurisdiction of another land other than the United States–and most admit it. Unfortunately for them the U. S. Constitution specifically denies such citizenship.
To the many “bees” from both political parties, and the establishment press, who wish to destroy Mr. Trump’s presidential ambitions, you will have to look elsewhere. On this issue he is on solid constitutional ground as expressed by the Founders of the 14th Amendment.
Aug 25, 2015 | Constitution, Healthcare, Liberty Articles, Take Action
By Harold Pease, Ph. D
When the Supreme Court no longer rules by the Constitution what must states do to force them to do so? It is called nullification and previously has been used to do just that in the 1800’s and more subtly in the last two decades.
Recent Supreme Court rulings with respect to the Affordable Care Act and marriage clearly demonstrate that the Supreme Court no longer honors Article I (requiring that only the Congress make all the law, their rulings can not have the effect of making new law), Article 1, Section 8 (the list identifying federal functions), and the 10th Amendment (reserving to the states all other powers not listed or added to the list by a specific amendment). Neither health nor marriage, or anything remotely like unto them, can be found in the Constitution as federal powers and thus, as per Amendment 10, remain state functions only.
Two years ago 28 states sued the federal government for constitutional over-reach by forcing citizens to buy something that they did not wish to buy called a mandate. The John Robert’s Court, rather than rule this requirement constitutional or unconstitutional, redefined the mandate a tax, (an argument consistently denied by proponents of the law) and thus the Supreme Court effectively made law, a function constitutionally left only to Congress in Article I. In a show of defiance to the Affordable Care Act, this decision prompted 34 states (all but 16) to refuse to establish state exchanges when given a choice by the Court; essentially “If you want it you create it.” They did!! The recent Supreme Court ruling then made resisting states provide the Medicare subsidy given the few states that had set up exchanges. No constitutional authority was cited. Again judicial legislation!! The reason cited by Justice John Roberts was essentially, “Congress created it so we will save it.”
At this point the only power left to the states is the 10th Amendment to the Constitution which reads, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The 28 states initially suing the Federal Government for violating this part of the Constitution and the 34 states resisting the judicial edict to conform must use the Doctrine of Nullification to save the amendment and the Constitution. The issue is that serious! They have no other real choice for a court that no longer uses the Constitution as its sole base for ruling. Federalism, a key part of our republic, is dead otherwise.
The constitutional argument is the same for the Supreme Courts recent ruling legalizing same-sex marriage in all 50 states. Again, the Court disregarded Article I, Section 8, and Amendments 1 and 10 and utterly discarded the philosophy of federalism and the will of the people expressed in every election concerning the matter. Everything in the Constitution prior to 1868 was discarded, even betrayed, in favor of four words in Amendment 14 adopted 78 years later and intended only to extend the Bill of Rights to former slaves. The phases “due process” and “equal protection,” not defined, became fertile soil for federal government’s natural tendency to grow many times beyond original intent—each expansion becoming the rational for even more expansion. Today the Justices have used it to apply to an issue that would be entirely foreign to the framers of the 14 Amendment and to the Founding Fathers a lifetime before.
So again, the states have but one recourse to save the Constitution, federalism and the popular will of the people—nullification. But they must stand together and with one voice say, “not in our state.” States accepting same sex marriage can continue to do so constitutionally but the federal government, without an amendment to the Constitution transferring marriage authority from the states to the federal government, may not do so constitutionally no matter what a combination of five rogues justices say.
Founding Fathers Thomas Jefferson, James Madison, and Alexander Hamilton were especially expressive with respect to the use of nullification but what is clear in their writings is that states do have the authority to “Just Say No!” under the 10th Amendment. Such was used in 1798 in the Kentucky and Virginia Resolves, in 1832 in the Nullification Crisis in South Carolina, and more successfully with the northern states, especially Wisconsin, in 1854 over the highly unconstitutional Fugitive Slave Act.
More recently the 10th Amendment and resulting Doctrine of Nullification is beginning to be used by some states to prevent the federal government’s overreach of constitutional powers. Federal medical marijuana laws are openly defied by many states notably: Alaska, Oregon, Washington, and Colorado. 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. In 2013, nine State Sheriffs’ Associations put the Executive and Legislative Branches on notice that they support the traditional interpretation of the 2nd Amendment of the Bill of Rights and 336 elected county sheriffs inferred that they would protect their people on this issue—even against federal agents coming into their counties. Barack Obama and the Justice Department backed away.
States you must use the Constitution to save the Constitution. In unison you must say, “We refuse to honor these clearly unconstitutional rulings in our state.”
Aug 11, 2015 | Constitution, Liberty Articles
By Harold W. Pease, Ph. D
Hundreds of articles and broadcasts recently have been written or aired posing the question, “Should Congress pass the Iran Deal?” All demonstrate a lack of constitutional knowledge and the establishment media, ignorantly or knowingly, omits the constitutional perspective in the proposed Iran Treaty, which we give here. Were the Constitution actually used as intended by the Founders, and as used for 150 years, the Iran Treaty would be dead on arrival. Unfortunately the perversions of the constitutional treaty-making process allow faulty treaties to become reality.
The typical definition of congress, and the one used by the media, includes both the U.S. Senate and the U.S. House of Representatives. For the House to have a vote would be unconstitutional, as the Constitution clearly gives this function to the U.S. Senate alone. Article II, Section 2, Clause 2 of the Constitution says that 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 the Senate. Many presidents have not sought the advice of the Senate when they created treaties and certainly Barack Obama has shown no tendency to do so either, preferring to prepare a treaty without any advice from it. So this part of the treaty-making process has effectively been handed to the executive branch some time ago.
Obama’s violation of the Constitution goes even deeper. In calling it a “deal,” rather than a treaty, he hopes to blur the difference and bypass the Senate roll required by the Constitution. If treated as a law, rather than a treaty, he is only required to obtain a mere majority vote of each house which is infinitely easier to get than 2/3rds of a senate controlled by an opposing party. He than can override an opposing vote should it come. This would give a president, any president, far more power than intended by the Framers. The Senate function has no presidential veto and stands on its own. The treaty must get the approval of 67 senators or it is dead as it stands. Knowing this a president is far more likely, from the beginning, to work with the Senate to vastly improve a favorable outcome.
Throughout history a treaty has been defined as any agreement between two or more countries. Presidents, anxious to expand their powers beyond constitutional limits, began to look for ways of doing so and their obedient followers gave no resistance. Probably the first to intentionally do this was President Franklin Delano Roosevelt who began calling treaties, that he feared might not get the required 2/3rds Senate vote, executive agreements, a term not mentioned in the Constitution but uncontested by his vast following. He could now unilaterally approve everything internationally that he did. This was one reason that after his death his own political party supported the two-term limitation on the length of time a president served. Presidents become too powerful, but the precedent of avoiding the term treaty in favor of agreement and going the back door route for implementation continued.
President Bill Clinton, realizing that on NAFTA (the North American Free Trade Agreement) he could not get a two-thirds vote for treaty confirmation in the Senate as required, purposely used the word agreement rather than treaty, thus treating it as a law, which then required only a simple majority of both houses of Congress for confirmation. He used the same unconstitutional technique on his second major treaty of his two terms in office, GATT—General Agreement on Tariffs and Trade.
So constitutionally deteriorating has our treaty making process become—even for Americans—the U.S. Senate last March felt they needed to advise the Iranian government that promises of any president required confirmation by them. And if bypassed, which the Senate feared might happen with Barack Obama in office, a predecessor could reverse such. We are different from most countries in the world in this respect. The leaders of the Islamic Republic of Iran were advised by the letter 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 ended: “We hope this letter enriches your knowledge of our constitutional system and promotes mutual understanding and clarity as nuclear negotiations progress.”
The Obama deal would require a 2/3rds negative vote of both houses for override and defeat. Under the Constitution his treaty would require a two-thirds vote for its approval. The constitutional way is much more difficult to obtain and improves the probability of better treaties. Both political parties must return to the constitutional treaty making provisions. Again, the Constitution as used for most of our history would leave the Iran Treaty dead on arrival because if it could not get the 2/3rds vote of the Senate confirming, it ends. The Senate, not the president, has final say.
Aug 11, 2015 | Liberty Articles
By Harold W. Pease, Ph. D
A couple of weeks ago The Boy Scouts of America Executive Committee unanimously approved allowing gay adults to serve as leaders. The reason given, “the rapid changes in society and increasing legal challenges at the federal, state and local levels.” Gays have argued that the Boy Scouts of America “stood as a towering example of explicit, institutional homophobia.” The term homophobia implies unreasonable fear. But is it unreasonable to fear gay leaders who may have little boy inclinations? A bigger question; has societal acceptance of predatory sexual behavior on vulnerable little boys by adult male pedophiles amplified in recent years?
Just three years ago the Boy Scouts was criticized, even sued, for the amount of pedophile penetration into their organization despite the organization’s sincere efforts to keep it out. The organization’s file on defilers was to help insure that any record of indiscretion on a boy was kept with the intention of keeping the perpetrator out of the program. The scout law expects boys, and their leaders; to be morally straight that is why church organizations endorse the program. The Los Angeles Times was elated when lawsuits forced the scouting organization to open its files on the extent of degenerative behavior on the boys. What was revealed was deplorable!! Now, excluding “hungry men” from the organization is considered being non-inclusive, even intolerant.
The newspaper reported in October 2012, “The thousands of men expelled from the Boy Scouts of American on suspicion of molesting children came from all walks of life—teachers and plumbers, doctors and bus drivers, politicians and policemen. They ranged in age from teens to senior citizens and came from troops in every state.” Some 1,900 confidential files, between 1970 and 1991, revealed a “hunting” pattern, which for many included “grooming behavior.” Predators lavished “children with attention, favors and gifts” as for examples, allowing “the boys to drive cars, drink alcohol or look at pornography.” Eventually, with arousal, boundaries were tested with the more responsive boys, “during skinny dipping, group showers, sleepovers and one-on-one activities.”
One mother complained to scout headquarters describing a scout leader in her area. “He combs the boys’ hair and buys them cloths and dinner. He takes them to church, motorcycle riding, skiing, flying…. Now we know why he did these things.”
The Los Angeles Times spoke of another file containing the complaint of an assistant scoutmaster that his scoutmaster in a sleepover, complete with alcohol and pornographic films, proceeded with touching and undressing responding boys and “then proceeds to do other things if he is successful.”
The organization, dedicated to the best principles in a developing boy, has never approved of the activities noted above but is still blamed for the initial contact between pervert and boy which led to the unacceptable behavior. Since 1987 it has prohibited a man being with a boy alone and outings are to have two adults present. Church sponsoring units may have additional requirements to protect the boys. The Church of Jesus Christ of Latter-day Saints (the largest scout sponsoring entity) is especially cognizant of a boy’s safety. Parents are encouraged to be participants in any youth programs.
My point!! If an outstanding morally based youth program, with its reasonable safeguards, is unable to fully protect little boys from sexual predators, how is the new acceptance of gays as scout leaders going to do so? I know that not all gays are pedophiles, or even child inclined, but far too many are or could become. Won’t lifting the ban on their participation help create a “feast haven” and attract men with this inclination? How is the gay community likely to be more protective of the innocent boys than the organization that actively tried to exclude them? To the gay community, leave the children alone!!! Participating with consenting adults is now legal but feasting on little boys still gives one, prosecuted of doing so, many years in prison. Or, in another three years, will we find that molesting little boys has gained social acceptance as well? How will lifting the ban on gay scout leaders not attract pedophiles?
Jun 19, 2015 | Constitution, Liberty Articles
By Harold Pease, Ph. D
The Patriot Act is now repackaged with a new name, The USA Freedom Act and unfortunately government’s unwarranted and indefinite storage of private records and communications continues. The new spy law, as was its predecessor, remains an attack on the 4th 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 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 are our papers. 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 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 Freedom Act through proxy corporate entities charged with keeping our records for potential government inspection is clearly unconstitutional.
Moreover, the new USA Freedom Act violates the Fifth Amendment as well in that the accused is, in a very real sense, forced to be a witness against himself—perhaps the only witness. The Amendment reads in part: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, … nor shall be compelled in any criminal case to be a witness against himself.” It is his papers, emails, and phone conversations that convict him. He has unconstitutionally been made the principle witness against himself.
“No federal government!” You must tear down your $2 billion NSA Bluffdale, Utah spy facility capable of storing a Yottabyte of our private information against our will. You must do likewise to your Oak Ridge plant that houses the fastest computer in the world designed to analyze our private data for your own purposes; and the latest revelation—to share that information with seven sister federal agencies. Spying on your own people directly as in the Patriot Act or now requiring corporations to do it for you under the Freedom Act, is a blatant violation of the Constitution. You may argue that you are only protecting us from bad people out there but who protects us from you? Fortunately the Constitution does if only enough will begin to use it in their voting practices and those we elect will honor their pledge to protect it, and us, from you.
Dr. Harold Pease is a syndicated columnist and an expert on the United States Constitution.
Jun 9, 2015 | Constitution, Liberty Articles, Take Action
By Harold Pease, Ph. D
Anyone the least bit familiar with the Constitution and its early history knows that, despite lip-service to it, neither political party follows it, nor do any of the three branches of government actually limit themselves to their specific articles in it. All three operate outside the carefully crafted cages to which they were assigned. So how do we get the federal government back to servant rather than master? Well-meaning conservatives are wrong in their push for a new constitutional convention for the following reasons.
To begin with, why argue to get what you already have? It is a far weaker argument because it implies uncertainty on your part that you already have it. The federal government is already limited by the existing Constitution: Congress to a precise list in Article I, Section 8. The President is limited to a list housed in Article II, Sections II and III. The Supreme Court is limited to eleven types of cases most with but appellate (limited by Congress) jurisdiction and only two totally free of the restrictions of Congress called original jurisdiction. All other power was reserved to the states as per Amendment 10 of the Bill of Rights. Again, to argue that we need additional amendments to get the federal government to abide by what was already understood as their limits of power is to argue to get what we already have.
An argument within the Constitution is much easier to make than asking that three fourths of the states accept something new and somewhat foreign to them. Three-fourths of the states is a big number and takes many years to acquire, and in a nation somewhat constitutionally illiterate is likely to fall short of the states needed. Meanwhile, the case for living within the Constitution can be made today because a majority of the people was taught some level of reverence for it. Showing them how the federal government has strayed from clearly cited restrictions in the document is a much easier case to make.
The argument that we have already unsuccessfully tried to keep the federal government within constitutional bounds is legitimate. But to suppose that a George W. Bush or a Barack Obama will stay within the bounds of new amendments when, with impunity, each has violated those amendments in existence is as naive as believing that more gun control laws will cause the criminals to turn in their guns.
A new Constitutional Convention potentially exposes everything that we already have placing everything at risk. Where is the basis for faith that the new “Founders” will not tamper with established basics? Three Twentieth Century amendments seriously damaged previously sacred foundation points of a republic: the 16th gave the federal government unlimited resources to spend in areas not listed as their function in Article I, Section 8 and the states lined up with alms bowls in hand for the grants. The 17th removed State influence and consent in lawmaking thus irreparably damaging the concept of federalism so critical to limiting the power of the federal government. The 18th outlawed the consumption of alcohol in the nation for ten years giving the government the right to tell its people what they can drink.
Some argue that we can limit the extent of change in a new convention. It is well to remember that the original delegates to the Constitutional Convention were not authorized to dump the Articles of Confederation, but did, exposing everything that then existed. Can proponents of a new convention guarantee that that could not happen again? No!
Why would we suppose that new founders would have an equal to, or superior, understanding of natural law upon which the Constitution was based? We assume that the states will be anxious to get their powers restored to them but where is the basis that they see such a need? Do not almost all elected federal government personnel first serve in state legislatures then abandon the state perspective when they reach Washington DC?
Finally, the enemies to limited federal government yearn for a constitutional convention as well. They want everything dictated from Washington DC—an all-powerful government. Such groups as Wolf-Pac, AFL-CIO, Code Pink, Progressive Democrats of America, and the forty-five political action organizations funded by George Soros (New American, April 7, 2014, p. 18) are just waiting for the opportunity to empower themselves and government more fully. Who can promise that they will sit idly by while we further limit their ability to manage us?
Holding to the Constitution with exactness is our only real secure way to take back our country. Our weapons are the limiting clauses of the Constitution and Amendment 10 of the Bill of Rights. Political parties have failed us. Encouraging our people to become Constitutionalists first is a better approach. As tyranny grows so will support for our cause. Conservatives and liberals please don’t risk losing everything by an ill-conceived constitutional convention. The answer is to make the government abide by what they have by oath promised and, when needed, carefully craft new amendments one at a time, as for example a balanced budget amendment.
