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Thursday, December 08, 2016

Is Trump Mending Fences, or Burning Bridges?

By Douglas V. Gibbs
AuthorSpeakerInstructorRadio Host

Skeptics of the Donald Trump presidency have been watching for anything to hammer the President Elect on.  Every move is scrutinized, every conversation carefully monitored, and every possible reversal examined and called out.  In the eye of the opposition, especially Never Trump folks who are of the conservative political persuasion, anything that can be considered a hypocrisy, or fraternizing with those who were labeled as the opposition during the presidential campaign, deserves to be exposed, drawn, and quartered.  Trump is expected to walk the fine line of perfection, and do nothing that seems unconservative, or else he will be viewed as consorting with the enemy.

The professional politicians of the Republican Party, namely folks like Paul Ryan and Mitt Romney, stood against Trump throughout the 2016 campaign, claiming Mr. Trump is nothing more than a New York liberal who would destroy the GOP, ensure a win for Hillary Clinton, and send the political party in a direction away from its conservative base, and towards an inevitable civil war, and permanent split in the name of populism and nationalism.

During the campaign season my own political world met with the division that was created by the Never Trump movement.  JASmius, who was both a writer on Political Pistachio, and a co-host on Constitution Radio, decided to follow the Never Trump path.  As I evolved towards being willing to support the billionaire's candidacy, largely because he's not Hillary, and largely because I recognized his "Art of the Deal" strategies in action  (while everyone else was screaming how he should just shut his mouth), my tolerance of the hit pieces being written by my good friend was waning.  Then, when it turned out a bunch of folks thought it was I writing the articles, and that misunderstanding began to leak into my classes, dwindling the numbers of attendees, to protect the bottom line, I had to ask JASmius to either write in a manner that I felt more closely followed journalistic integrity, or he needed to take his anti-Trump rhetoric elsewhere.

He chose to say "goodbye."

If my work with the Congress of Racial Equality, where we are working to spread constitutional literacy through the inner-cities, were to lead to, let's say, my radio program expanding to a daily show, or a television program either locally, or on a major outlet, in my search for a research analyst I wouldn't hesitate to reach out to my friend, JASmius.  Would that be an example of me reneging on my promises, or proof that I am someone with one foot in the kiddie pool on the other side?  Not at all.  It would be an example of me reaching out to those who have a skill set I believe would be advantageous to what I do.  If I were, to say, also discuss my new found opportunities with a democrat, does that mean that I have sold out to the other side, or is it a case of me trying to reach out to learn as much as I can so that I can not only work well with conservatives, but understand the other side's arguments, as well?  It would also confuse the opposition, and set them up for me to have my way with them as they try to figure out what it means when I talk to certain people.

I think the same is true with Donald Trump.

Speaker of the House Paul Ryan was one of those Republicans who hammered on Donald Trump during the campaign, but now says he's patched things up with the President-Elect.

Did Ryan come to the conclusion that despite their differences, what is best for the country is a unified Republican Party?

Ryan claims he's now fine with Donald Trump, and they are not looking back. . . only forward.

Has Donald Trump won him over with his new-found conservatism?  Or has Trump convinced Ryan he's an establishment guy just like the longtime politician whose days as Speaker of the House may be numbered?

Ryan, like the Democrats, and Never-Trump'rs, and the rest of the globalists and establishment politicians, were shocked that Trump won the election.  They had bought into the media's kool-aid.  Trump is too unconventional, too radical, too outside the box for them - which is exactly what the voters were searching for.

One thing is for sure, Trump has proven as a businessman that he is the kind of guy who gets things done.

According to Ryan, he has discussed with Trump that being President of the United States is a different animal than being the CEO of a large corporation.  "Oh," said Ryan, "we’ve talked about that extensively. We’ve talked about-- the Constitution, Article I on the Constitution, the separation of powers. He feels very strongly, actually, that-- that, under President Obama’s watch, he stripped a lot of power away from the Constitution, away from the Legislative Branch of government. And we want to reset the balance of power, so that people and the Constitution are rightfully restored."

I agree, to a point - but it is the bold unorthodox style of the outsider businessman that won him the election, and Trump needs to keep much of that in place as he serves the country as President.

Mitt Romney is another Republican who began sounding more like a member of the Never Trump crowd during the campaign, but seems to now have made amends with the new Republican President.  He's even on the short list for Secretary of State.

While I am not necessarily a fan of Romney - he's just not conservative enough for my political taste - and I definitely don't want him as Secretary of State, I totally get it why Trump has been talking to him.  It goes back to that thing about seeking out a certain skill set.  If Romney can potentially be beneficial to the Trump administration, why not talk to him?

Romney, since meeting with President Elect Trump, has made impassioned statements in support of The Donald, no doubt in an attempt to erase doubts about him among Trump's supporters and remain in contention for a position in the Trump administration.

He didn't apologize for his fierce criticisms of Trump during the campaign, but he's definitely trying to get into Trump's good graces.

For those who don't trust Trump, I would think they would celebrate such a thing.  You would, after all, prefer party influences on Trump to keep him honest, right?

Romney has said that a part of the reason he has gravitated towards supporting the Trump administration is because of how he has been filling key cabinet positions, as well as his desire for greater unity among Americans.  Romney said that "all of those things combined give me increasing hope that President-elect Trump is the very man who can lead us" to a better future.

That remark came after a lengthy meal with Trump and Republican National Committee Chairman Reince Priebus.

Senior Trump adviser Kellyanne Conway has been critical of Romney being in consideration for Secretary of State, telling the media that Trump supporters would feel "betrayed" if Romney was picked.

"I had a wonderful evening with President-elect Trump," Romney said in remarks to reporters after the dinner. "We had another discussion about affairs throughout the world and these discussions I've had with him have been enlightening, and interesting, and engaging. I've enjoyed them very, very much."

A senior Trump aide described Romney's remarks as "solid."

Trump's Secretary of State list has been ever changing, but still includes folks like Marine Corps General John Kelly, U.S. Senator Bob Corker of Tennessee, Utah Governor Jon Huntsman, New York City Mayor Rudy Giuliani, General David Petraeus, and former UN Ambassador John Bolton.

Personally, my front-runner I'd like to see as Secretary of State is John Bolton.

Trump's willingness to visit with Al Gore and Leonardo DiCaprio, both man-made climate change hysteria-mongers, has also had conservatives up in arms and nervous.  Trump's daughter, Ivanka Trump, has seemingly bought into the man-made climate change hoax, so one wonders if Trump is meeting with global warming environmentalists to make her happy.

Nonetheless, we have little to worry about.  It seems like Trump has not bought into the climate change lie, and realizes that though climate change does indeed exist, it is a natural phenomenon that politicians and environmentalists can't resolve nor change.  If anything, their attempt to limit carbon dioxide could be potentially dangerous, when one considers that the oxygen in the atmosphere, which is necessary for life on Earth, is dependent upon carbon dioxide being in the atmosphere so that plant life may "inhale" that carbon dioxide so that they may produce oxygen.

The evidence that Trump has not bought into the man-made climate change lie sits with the fact that he has tapped as EPA chief, Oklahoma Attorney General Scott Pruitt.

Supporters of Trump's EPA choice are celebrating that pick as a sign that Trump is standing up the green establishment, breaking the cycle, it is believed, that has had the EPA chiefs among the most pro regulatory members of past Republican presidents from Nixon through Ford, Reagan and both Bushes.  Past EPA chiefs have been timid at best., but with Trump's pick the conservatives of the GOP feel reassured that while Trump was willing to meet with Al Gore, he rejected what the man had to say about his climate change hysteria.

University of Pennsylvania Geologist Dr. Robert Giegengack has noted, “None of the strategies that have been offered by the U.S. government or by the EPA or by anybody else has the remotest chance of altering climate if in fact climate is controlled by carbon dioxide.”

Trump's pick for EPA chief, Scott Pruitt, considers himself a ‘Leading Advocate Against the EPA’s Activist Agenda’.  Warmist Slate Mag laments: ‘Pruitt’s selection should extinguish any remaining hope that President Trump, who will be the only world leader who openly and outright rejects fighting climate change, will somehow be convinced by his daughter (or Al Gore) to act in response to the scientific consensus.’

In short, while some of Trump's meetings have been alarming to some, in the end he is still headed in the direction of his campaign promises, and he is fully utilizing the strategies he has laid out in his book, The Art of the Deal.  Perhaps, if his critics were willing to read the book, they'd understand what Trump is up to and realize he's not being what they think he is, but the man his supporters know he is.

-- Political Pistachio Conservative News and Commentary

Temecula Constitution Class: Reconstruction

This month we are meeting December 8, 15 and 22 - but we will be taking the 29th off.  Tonight's class will be studying Amendments 14 and 15 - post civil war period.

Temecula Constitution Class
Thursdays at 6:30 pm
Faith Armory
41669 Winchester Road
Temecula, CA  92590

Constitution Class Handout
Instructor: Douglas V. Gibbs
 
 
 
Lesson 18
 
The Civil War Amendments 13, 14, and 15
 
The End of Slavery

Prior to the Civil War, any federal legislation related to slavery dealt with the importation of slaves.  Aspects of slavery inside State lines were considered a State issue.
 
Article I, Section 9, Clause 1 abolished the Atlantic slave trade, and the United States Government intervened militarily to ensure the law prohibiting the importation of slaves was enforced.  The Framers of the Constitution believed that in order to ensure the southern States did their part in ratifying the Constitution, while remaining consistent with the concept of the federal government only having authority over external issues, and disputes between the States, they could not abolish slavery nationally through the articles presented by the Constitution.  A large number of delegates at the federal convention in 1787 desired the immediate abolition of slavery, but the fear was that the southern States would not only refuse to ratify the Constitution, but that they would refuse to remain a part of the union, eventually succumbing to attacks from Florida and absorbed into the Spanish Empire.
 
A proposed amendment to abolish slavery during the American Civil War finally passed the Senate on April 8, 1864, by a vote of 38 to 6, but the House did not approve it.
 
When the proposed amendment was reintroduced by Representative Ashley, President Lincoln took an active role in working for its passage through the House by ensuring the amendment was added to the Republican Party platform for the upcoming Presidential elections.  Lincoln's efforts, combined with the result of the War Between the States, ensured the House passed the bill on January 31, 1865, by a vote of 119 to 56.
 
The 13th Amendment was ratified into law on December 6, 1865.

Terms:

Atlantic Slave Trade - Started by the Portuguese, but soon dominated by the English, the Atlantic Slave Trade was the sale and exploitation of African slaves by Europeans that occurred in and around the Atlantic Ocean from the 15th century to the 19th century.
 
War Between the States - The Civil War was fought from 1861 to 1865 after Seven Southern slave States seceded from the United States, forming the Confederate States of America.  The "Confederacy" grew to include eleven States.  The war was fought between the States that did not declare secession, known as the "Union" or the "North", and the Confederate States.  The war found its origin in the concept of State's Rights, but became largely regarding the issue of slavery after President Abraham Lincoln delivered the Emancipation Proclamation.  Over 600,000 Union and Confederate soldiers died, and much of the South's infrastructure was destroyed.  After the War, Amendments 13, 14, and 15 were proposed and ratified to abolish slavery in the United States, and to begin the process of protecting the civil rights of the freed slaves.
 
Questions for Discussion:
 
1.  Why wasn't slavery abolished at the founding of this nation?
 
2.  Why did the House of Representatives not originally approve this amendment?
 
3.  How has the abolition of slavery affected this nation since the ratification of the 13th Amendment?
 
Resources:
 
Congressional Proposals and Senate Passage Harper Weekly. The
Creation of the 13th Amendment. Retrieved Feb. 15, 2007
 
Joseph Andrews, A Guide for Learning and Teaching The Declaration of
Independence and The U.S. Constitution - Learning from the Original Texts Using Classical Learning Methods of the Founders; San Marcos: The Center for Teaching the Constitution (2010).
 
Citizenship, Civil Rights, and Apportionment
            Citizenship Clause
 
The 14th Amendment to the United States Constitution failed in 1866 after the southern States rejected the proposed amendment.  After a second attempt to ratify the amendment, it was adopted on July 9, 1868.  The ratification of the 14th Amendment occurred after the federal government began to govern the South through a system of military districts.  Some historians question the validity of the ratification of the 14th Amendment because it is believed by these historians that the southern States ratified the amendment under duress, and pressure applied by the northern governorships in each of the southern States during the early part of the Reconstruction Period.
 
The first clause of the 14th Amendment is known as "The Citizenship Clause."  The clause was intended to ensure the children of the emancipated slaves, as well as the newly freed slaves, would be considered citizens without any room for argument.  The clause reads:
 
"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."
 
This clause has been misinterpreted to mean all persons born in the United States are automatically citizens, which is not the case.  The defining term in this clause that enables the reader to recognize that citizenship needs more than just being born on American soil reads: "subject to the jurisdiction, thereof."
 
To understand the term jurisdiction, one may go to the debates on the congressional record of the 14th Amendment.  In those debates, and in articles of that time period written to explain the intent of the language of the amendment, one finds that "full jurisdiction" was meant to mean "full allegiance to America."  The intention was to protect the nation against persons with divided loyalties.
 
The writers of the 14th Amendment wished to follow the importance of "full loyalty" as portrayed by the Founding Fathers.  As far as the founders were concerned, there could be no divided allegiances.  They expected citizens to be fully American.
 
Despite the defeat of the Confederacy in the American Civil War, the emancipated slaves were not receiving the rights and privileges of American citizens as they should have been.  The former slaves were present in the United States legally, and because they were here legally they were "subject to the jurisdiction thereof," but they were still not receiving any assurance of equal protection under the law.
 
The Civil Rights Act of 1866 was created in the hopes of correcting the problem.  Some of the language in the Civil Rights Act of 1866 states, "All persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States. ... All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other."
 
The definition of "persons within the jurisdiction of the United States" in that act was all persons at the time of its passage, born in the United States, including all slaves and their offspring, but not having any allegiances to any foreign government.
 
Michigan Senator Jacob Howard, one of two principal authors of Section 1 of the 14th Amendment (Citizenship Clause), noted that its provision, "subject to the jurisdiction thereof," excluded American Indians who had tribal nationalities, and "persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers."
 
Senator Howard's responses to questions regarding the language he used in the Citizenship Clause were recorded in The Congressional Globe, which are the recorded transcripts of the debates over the 14th Amendment by the 139th Congress:
 
Mr. HOWARD:  "I now move to take up House joint resolution No. 127."
 
The motion was agreed to; and the Senate, as in Committee of the Whole, resumed the consideration of the joint resolution (H.R. No. 127) proposing an amendment to the Constitution of the United States.
 
"The 1st Amendment is to section one, declaring that all persons born in the United States and Subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside.  I do not propose to say anything on that subject except that the question of citizenship has been fully discussed in this body as not to need any further elucidation, in my opinion.  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 ministers accredited to the Government of the United States, but will include every other class of persons.  It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States.  This has long been a great desideratum in the jurisprudence and legislation of this country."
 
Senator Howard even went out of his way to indicate that children born on American soil of foreign citizens are not included.
 
Clearly, the framers of the 14th Amendment had no intention of freely giving away American citizenship to just anyone simply because they may have been born on American soil.
 
The second author of the Citizenship Clause, Illinois Senator Lyman Trumbull, added that "subject to the jurisdiction of the United States" meant "not owing allegiance to anybody else."
 
The full quote by Senator Trumbull:
 
"The provision is, that 'all persons born in the United States, and subject to the jurisdiction thereof, are citizens.'  That means 'subject to the complete jurisdiction thereof.'  What do we mean by 'complete jurisdiction thereof?'  Not owing allegiance to anybody else.  That is what it means."
 
Trumbull continues, "Can you sue a Navajo Indian in court?  Are they in any sense subject to the complete jurisdiction of the United States?  By no means.  We make treaties with them, and therefore they are not subject to our jurisdiction.  If they were, we wouldn't make treaties with them...It is only those persons who come completely within our jurisdiction, who are subject to our laws, that we think of making citizens; and there can be no objection to the proposition that such persons should be citizens."
 
Senator Howard concurred with what Mr. Trumbull had to say:
 
"I concur entirely with the honorable Senator from Illinois [Trumbull], in holding that the word 'jurisdiction,' as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, whether exercised by Congress, by the executive, or by the judicial department; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now."
 
Based on these explanations by the writers of the clause, then, it is understood that the intention was for those who are not born to American citizens to have no birthright to citizenship just because they simply were born inside the borders of this country.
 
The courts have interpreted the Citizenship Clause to mean other things, but we must remember that the Constitution cannot be changed by the courts.  Changes to the Constitution can only be made by amendment (Article V.).
 
It was through the progressive actions of the Lincoln administration in the American Civil War, and the actions of the courts to incorporate the Bill of Rights to the States, that America ceased to be "The United States Are," and became a more nationalistic "The United States Is."
 
            Privileges and Immunities Clause
 
The next clause, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States," was expected to protect the newly emancipated slaves from local legislation that may treat them differently.  This clause was a direct response to the Black Codes, laws passed in the States that were designed to limit the former slaves from obtaining all of the freedoms they thought they had been guaranteed.
 
The Due Process Clause of the 14th Amendment prohibits state and local governments from depriving persons of the proper due process of law.  The right to a fair trial was to be extended to all persons, including the emancipated slaves.
 
            Due Process Clause and Equal Protection Clause
 
The Due Process Clause, and the Equal Protection clause, have been the subject of debate since the language written by Congressman John Bingham, the principal author of the later part of Section 1 of the 14th Amendment, was first penned.  Bingham believed the federal government should use all national tools available to ensure the southern States behaved as instructed.  Bingham repeatedly stated his belief that the Fourteenth Amendment would enforce the Bill of Rights against the States, but the majority of the members of Congress present did not concur with his muddled and inconsistent argument.
 
Author Raoul Berger, in his book Government by Judiciary, discussed whether the 14th Amendment should be construed to enforce the Bill of Rights against the States.  Relying on the analysis of Professor Charles Fairman in his published article, Does the Fourteenth Amendment Incorporate the Bill of Rights?, Berger concluded that Bingham was a "muddled" thinker whose views should be discounted.  Berger agreed with Fairman that the framers of the 14th Amendment did not intend it to enforce the Bill of Rights against the States.  Berger rejected even selective incorporation, arguing that the Amendment's framers did not intend that any of the first eight amendments should be made applicable to the States through the 14th Amendment
 
Antislavery activists largely supported Bingham's conclusion that that Bill of Rights must be applied to the States, and such application must be enforced by the federal government.  Though the Bill of Rights was originally intended by the Founding Fathers not to apply to the States, and with less than a centuryt since the American Revolution and the writing of the Constitution behind them, Bingham's supporters contended that local jurisdiction over cases regarding an individual's rights could no longer be allowed because the southern States could not be trusted to be fair to the newly emancipated slaves.
 
Bingham's call for an incorporation of the Bill of Rights to the States established the concept that all people's rights are supposed to be protected by the federal government.  The Founding Fathers did not apply the Bill of Rights to the States from the beginning because giving that kind of power to a potentially tyrannical federal government carries with it many pitfalls.  As the quote by Gerald Ford goes, "A government big enough to give you everything you want is a government big enough to take from you everything you have."  Nonetheless, despite the dangers of a central government dictating to the States regarding their laws regarding individual rights, because of the mistreatment of the former slaves by the Southern States, the Privileges and Immunities Clause, the Due Process Clause and the Equal Protection Clause, have been commonly interpreted to mean that the Bill of Rights is applicable to the States.
 
Since the Incorporation of the Bill of Rights did not take hold as a result of the 14th Amendment, as the statists that supported Bingham's position had desired, the federal courts stepped in and took pursuit.  Pursuing a nationalist agenda, the courts disregarded the original intent of the Framers of the Constitution, as well as the conclusions of the Congress regarding the 14th Amendment, and began to selectively incorporate the Bill of Rights to the States, beginning with the Slaughterhouse Cases just five years after the ratification of the 14th Amendment in 1868.  A five to four vote by the high court interpreted the Privileges and Immunities Clause as the authority to enforce The Bill of Rights against the States.  Subsequent cases also used the 14th Amendment as an authority for incorporation.
 
The courts, through this process of incorporating The Bill of Rights to the States, have changed the Constitution through unconstitutional means, and against original intent.  As originally intended, all provisions in the U.S. Constitution apply to the federal government, unless otherwise noted.  The Bill of Rights was originally intended to apply only to the federal government, and if we are to remain in line with the original intent of the Founding Fathers, State sovereignty must remain protected by that original intent.
 
The attitude of the southern States, and their refusal to treat the former slaves fairly led to a perceived need for clarification and enforcement by the federal government, which led to the passage of the Civil Rights Act of 1866, and eventually to the Civil Rights Movement of the 1960s.
 
A separate but equal doctrine existed for more than fifty years, despite numerous attempts to ensure blacks enjoyed full rights and privileges of citizenship.
 
In modern politics, laws continue to test the limits of the Equal Protection Clause.  While the clause was intended to make sure that everyone is treated equally under the law, politicians supporting the Affordable Care Act have handed out exemptions to members of Congress, and some individuals or corporations, allowing those that receive the exemptions to be treated differently under the law.
 
            Apportionment
 
Section 2 of the 14th Amendment altered the rules for the apportioning of Representatives in the Congress to the States.  The enumeration was changed to include all residents, while also calling for a reduction of a State's apportionment if it wrongfully denies any adult male's right to vote.
 
For fear that the former slaves would support the Republicans, southern Democrats worked feverishly to dissuade blacks from voting.  Section 2 addressed this problem by offering to the southern States the opportunity to enfranchise black voters, or lose congressional representation.
 
            Consequences of Insurrection
 
Section 3 of the 14th Amendment prohibits the election or appointment to any federal or state office of any person who had held any of certain offices and then engaged in insurrection, rebellion or treason.  A two-thirds vote by each House of the Congress could override this limitation.  The interest was to ban the service of any members of the Confederacy that refused to renounce their participation in the Confederacy.
 
            Public Debt as a Result of the War
 
Section 4 of the 14th Amendment confirmed the legitimacy of all United States public debt appropriated by Congress.  The clause also indicated that neither the United States nor any State would pay for the loss of slaves or debts that had been incurred by the Confederacy.  This clause was to ensure that all States recognized the validity of the debt appropriated by Congress as a result of the war, while bonds secured by the Confederacy in order to help finance the South's part of the war "went beyond congressional power."
 
Political battles over the debt ceiling in 2011 and 2013 encouraged some politicians to argue that the "validity of the public debt" clause outlawed a debt ceiling, because placing a limit on federal spending interferes with the duty of the government to pay interest on outstanding bonds and to make payments owed to pensioners (such as Social Security).  The clause in the 14th Amendment addressing the validity of the public debt, however, was never intended to be a general clause to be used by future administrations, but a specific clause only addressing the debt accrued as a result of the American Civil War.
 
            Enforcement
 
The final clause of the 14th Amendment authorizes Congress to "enforce, by appropriate legislation, the provisions of this article."  Federal intrusion upon the States, however, has been a long-time fear by those that support the concept of State Sovereignty.  The question regarding enforcement was addressed in the Civil Rights Cases of 1883, where the opinion of the Supreme Court interpreted Section 5 of the 14th Amendment to mean that "the legislation which Congress is authorized to adopt in this behalf is not general legislation upon the rights of the citizen, but corrective legislation".
 
In a more recent case, City of Boerne v. Flores, 1997, the Supreme Court ruled that Congress's enforcement power according to the last clause of the 14th Amendment is limited to only enacting legislation as a response to a "congruence and proportionality" between the injury to a person's 14th Amendment rights and the means Congress adopted to prevent or remedy that injury.
 
Court interpretation of the Constitution can be a dangerous practice, and we must remember that any interpretation of the Constitution offered by the courts in a ruling are merely opinions.  The final authority regarding the definitions of Constitutional law resides with the people, through their States.  Any allowance of the courts to fully define the Constitution at the whims of the judges opens up the opportunity for the courts to change definitions for ideological purposes, resulting in a judicial oligarchy, rather than a constitutional republic driven by the consent of the governed, and the self-evident standards of Natural Law.
 
Terms:

Black Codes - Laws put in place in the United States after the Civil War with the effect of limiting the basic human rights and civil liberties of blacks.
 
Constitutional Republic - Government that adheres to the rule or authority of the principles of a constitution.  A representative government that operates under the rule of law.
 
Equal Protection Under the Law - Laws must treat an individual resident or citizen in the same manner.
 
Incorporation of the Bill of Rights - The process through court rulings based on the interpretation of the 14th Amendment to apply the Bill of Rights to the States.
 
Jurisdiction - Full loyalty, a condition in which all foreign allegiances have been released; not owing allegiance to anybody else.
 
Military Districts - Districts created in the seceded states (not including Tennessee, which had ratified the 14th Amendment and was readmitted to the Union), headed by a military official empowered to appoint and remove state officials.
 
Nationalist - An advocate of Nationalism.
 
Natural Law - Unchanging moral principles regarded as a basis for all human conduct; observable law relating to natural existence; birthright law.
 
Original Intent - Original meaning of the United States Constitution as intended by the framers during the Federal Convention of 1787, and the subsequent State Ratification Conventions.
 
Public Debt - National debt; the financial obligations of a national government resulting from deficit spending.
 
Reconstruction Period - Period following the American Civil War during which the United States government began to rebuild the States that had seceded from the Union to form the Confederacy, lasting from 1865-1877.  During Reconstruction, the federal government proposed a number of plans and committed large amount of resources, to the readmittance to the union, and the rebuilding, of the defeated Confederate States.
 
Separate But Equal - Various laws designed to undermine the 14th Amendment requirement that former slaves be treated equally under the law, contending that the requirement of equality could be met in a manner that kept the races separate.  The result of these laws was a generally accepted doctrine of segregation throughout The South.
 
State Sovereignty - The individual autonomy of the several states; strong local government was considered the key to freedom; a limited government is the essence of liberty.
 
United States are - These States that are united; a group of sovereign member States in America voluntarily united into a republic.
 
United States is - Nation of the United States containing a number of States similar to provinces ruled over by a centralized federal government.
 
Questions for Discussion:
 
1.  How might have the governors of the military districts influenced the ratification of the 14th Amendment?
 
2.  Does the Citizenship Clause have anything to do with Natural Born Citizenship? Why?
 
3.  Why was Congress concerned with the threat of divided allegiance?
 
4.  Did the 14th Amendment eliminate laws like the Black Codes, as intended?
 
5.  How is it that despite the original intent of those that voted for the 14th Amendment that the Bill of Rights not be applied to the States most of the first ten amendments have been applied to the States anyway?
 
6.  What pieces of legislation since the ratification of this amendment have been passed in order to ensure that the Equal Protection Clause is properly enforced?
 
Resources:

Congressional Globe, 39th Congress (1866) pg. 2890: Senator Jacob
Howard States the Intent of the Fourteenth Amendment Published in the Congressional Record, May 30, 1866.
 
Civil Rights Act, The - April 9, 1866,
http://www.tedhayes.us/CVR_civil_rights_act_of_1866.htm
 
Doris Kearns Goodwin, Team of Rivals: The Political Genius of
Abraham Lincoln; New York: Simon & Schuster Paperbacks (2005)
 
Frank J. Williams, Judging Lincoln; Carbondale: Southern Illinois University Press (2002)
 
John F. Marszalek, Sherman: A Soldier's Passion for Order; New York:
Vintage Civil War Library (1993)
 
Joseph Andrews, A Guide for Learning and Teaching The Declaration of
Independence and The U.S. Constitution - Learning from the Original Texts Using Classical Learning Methods of the Founders; San Marcos: The Center for Teaching the Constitution (2010).
 
Thomas J. DiLorenzo, The Real Lincoln: A New Look at Abraham
Lincoln, His Agenda, and an Unnecessary War; Roseville, California: Prima Publishing, a division of Random House (2002)
 
William S. NcFeely, Grant; New York: W.W. Norton & Company
(1981)
 
Voting Rights

The 15th Amendment was designed to protect the voting rights of all citizens, regardless of race, color, or if the voter had previously been a slave or indentured servant.  As stated in the amendment, this article applies to both the federal government, and the States. 
 
As the third reconstruction amendment, the 15th Amendment faced another challenge that was unexpected.  In some States the requirements were that all voters and candidates must be Christians.  As originally written, the amendment would require these States to change their rules regarding the manner of elections.  Realizing the ratification of the amendment may depend on the support of the States with Christianity requirements regarding elections, the amendment was revised in a conference committee to remove any reference to holding office or religion and only prohibited discrimination based on race, color or previous condition of servitude.
 
Democrat Party created militias, like the Ku Klux Klan, continued to try and intimidate black voters and white Republicans.  The federal government promised support, assuring that black and Republican voters could both vote, and serve, in confidence.  When an all-white mob in the Battle of Liberty Place attempted to take over the interracial government of New Orleans, President Ulysses S. Grant sent in federal troops to restore the elected mayor.
 
President Rutherford B. Hayes narrowly won the election in 1876.  To appease the South after his close election, in the hopes of gaining their support and soothing angry Democrats, President Hayes agreed to withdraw the federal troops who had been occupying the South since the end of the Civil War.  The hope was that the southern States were ready to handle their own affairs without a need for any interference from the North.
 
In the process, President Hayes also overlooked rampant fraud and electoral violence in the Deep South, despite several attempts by Republicans to pass laws protecting the rights of black voters and to punish intimidation.  Without the restrictions, voting place violence against blacks and Republicans increased, including instances of murder.
 
By the 1890s many of the southern States had enacted voter eligibility laws that included literacy tests and poll taxes.  Since the black population was normally steeped in poverty, the inability to afford the poll tax kept them from voting in elections.
 
It took nearly a century for the promise of the Fifteenth Amendment to finally take hold.  The ratification of the 24th Amendment in 1964, which eliminated poll taxes, and the passage of the Voting Rights Act of 1965, served to ensure that blacks in the South were able to freely register to vote, and vote without any obstacles.
Terms:
Poll Tax - A tax levied on people rather than on property, often as a requirement for            voting.
 
Questions for Discussion:
 
1.  Why was the wording of the Fifteenth Amendment changed to not include discrimination based on religion?
 
2.  Why do you think the Democrat Party played a part in forming the Ku Klux Klan?
 
3.  Why did President Hayes withdraw federal protections against racial discrimination in the South?
 
4.  How did poll taxes enable the Southern Democrats from keeping Blacks from being able to vote without violating the Constitution?
 
5.  Why do you think it took nearly a century for the promise of the Fifteenth Amendment to be realized?
 
Resources:
 
Congressional Globe, 40th Cong., 3d Sess (1869) pg. 1318
 
Foner, Eric, Reconstruction: America's Unfinished
Revolution, 1863-1877; New York: Harper Perennial Modern
Classics (2002)
 
Gillette, William, The Right to Vote: Politics and the Passage of the
Fifteenth Amendment; Baltimore: John Hopkins Press (1969)
 
 
Copyright 2015 Douglas V. Gibbs

6.5 Earthquake Strikes off Coast of Northern California

By Douglas V. Gibbs
AuthorSpeakerInstructorRadio Host

According to ABC News a 6.5 Earthquake has struck off the coast of Northern California near the City of Eureka.


-- Political Pistachio Conservative News and Commentary

Wednesday, December 07, 2016

Remembering Pearl Harbor

By Douglas V. Gibbs
AuthorSpeakerInstructorRadio Host

Earlier today I had the opportunity to meet Bill, a pilot who fought in World War II.  In short, the image to the left is of three squids.

Bill had pictures of his time in the Navy, including one where the crew was replacing the planks on the flight deck of his aircraft carrier after being struck by a Japanese bombing raid.

I found it very cool that my path crossed Bills on Pearl Harbor Day.

December 7, 1941 Japan attacked Pearl Harbor, Hawaii, crippling our Naval Fleet and nearly demolishing our air power. 2,400 Americans died. Roosevelt wanted nothing to do with fighting a war with Japan, but Japan had other ideas. Some people even allude to the idea that Roosevelt's administration had an idea that the attack was coming, but there has never been any proof to support such conjecture.

The famous "Day of Infamy" speech aired over the radio that day in 1941, and as we did immediately after 9/11, the nation united and rose to the call.

Our men joined the military to fight for our freedom. The women assisted in producing the goods necessary for the war effort. An embargo was imposed on Japan for oil, steel, and scrap metal. Japan’s assets were frozen.

Shortly afterward, Germany declared war on the United States of America, and we joined the fight in Europe as well.

It took four years to defeat the enemy, and the troops came home as heroes. The courage of our parents and grandparents (depending on your age) kept us free, allowed liberty to live on, and forged America into a mighty weapon against evil, and those who would come against liberty and freedom.
-- Political Pistachio Conservative News and Commentary

December 7, 2016: The 75th Anniversary of the Sneak Attack by Japan on Pearl Harbor

By Joseph John

The surprise attack on Pearl Harbor by the Imperial Forces of Japan, executed by Admiral Isoroku Yamamoto’s strike plan “Z”, commenced at 7:48 AM Hawaiian Time.  The base was attacked by 353 Imperial Japanese fighters, bomber, and torpedo planes in two waves, launched from six Japanese aircraft carriers.  All eight U.S. Navy battleships were damaged, with four sunk. All but the USS  Arizona (BB-39) were later raised, and six were returned to service and went on to fight the Imperial Forces of Japan in the WWII. The Japanese also sank or damaged three cruisers, three destroyers, an anti-aircraft training ship, and one minelayer.  In addition 188 U.S. aircraft were destroyed; 2,403 Americans were killed and 1,178 others were wounded.  However, important base installations such as the power station, shipyard, maintenance, and fuel and torpedo storage facilities, as well as the submarine piers and headquarters building (also home of the intelligence section) were not attacked. Japanese losses were light; 29 aircraft and five midget submarines were lost, and 64 servicemen killed. One Japanese sailor, Kazuo Sakamaki, was captured.

In the wake of the attack, 15 Medal Of Honor, 51 Navy Crosses, 53 Silver Stars, 4 Navy and Marine Corps Medals, one Distinguished Flying Cross, four Distinguished Service Crosses, one Distinguished Service Medal, and three Bronze Star Medals were awarded to the American servicemen who distinguished themselves in combat at Pearl Harbor.  Additionally, a special military award, the Pearl Harbor Commemorative medal was later authorized for all military veterans of the attack Japan’s Prime Minister's Will Visit Pearl
Harbor Today Japanese Prime Minister Shinzo Abe announced he would travel to Pearl Harbor today, to recognize the 75th Anniversary of Japan’s attack on the home port of the, US Navy’s Pacific Fleet.   Prime Minister Abe is the first Japanese leader to visit Pearl Harbor to "pay tribute [and] comfort the souls" of those who died from both countries during World War II.  AdmiralIsoroku Yamamoto said that Japan’s attack on Pearl Harbor “awoke a sleeping giant”.  The attack was labeled “A Day of Infamy” by President Franklin Delano Roosevelt.  In the next 3 years, 7 months, and 25 days, the US Armed Forces and their Allies in the Pacific Theatre, defeated the Imperial Forces of Japan.  On September 2, 1945,  General Douglas MacArthur, USMA ’03, USA, representing the Combined Allied Forces, accepted the “Unconditional Surrender” of the Imperial Forces of Japan aboard the USS Missouri (BB-63) in Tokyo Bay. 

Pearl Harbor - 75 years on
In the below linked Op Ed, by Admiral James A. Lyons, Jr. USNA '52, USN (Ret), who was the Commander–in-Chief, of the US Pacific Fleet, and the Senior US Military Representative to the United Nations, exposes the US military personnel who were responsible for failing to alert Admiral Husband E. Kimmel, the Commander-in-Chief of the US Pacific Fleet, and Lt. General Walter Short, who was responsible for the defense of Hawaii, of the pending attack by Japan, were accused of dereliction of duty following the attack.  Admiral Kimmel was reduced in rank to Rear Admiral, and retired from the US Navy.   Lt General Short was reduced in rank to Major General and retired from the US Army.  Admiral Lyons recommends in the below listed Op Ed that Rear Admiral Kimmel and Major General Short have their honor, reputations, and ranks restored by Congress. 


Joseph R. John, USNA ‘62
Capt    USN(Ret)/Former FBI
Chairman, Combat Veterans For Congress PAC
2307 Fenton Parkway, Suite 107-184
San Diego, CA 92108



Then I heard the voice of the Lord, saying, “Whom shall I send, and who will go for Us?” Then I said, “Here am I. Send me!”
-Isaiah 6:8

Doug on the Radio in Connecticut - Topic: U.S. Constitution/Electoral College

Mr. Constitution, Douglas V. Gibbs, is scheduled to be on the radio with Phil Mikan on AM Radio in Connecticut - 1420 WLIS AM and 11540 WMRD AM at 7:05 AM Pacific/10:50 AM Eastern.

Listen live at http://www.wliswmrd.net/.

Tuesday, December 06, 2016

Corona Constitution Class: Legislative Authorities


Before we get to the handout for tonight's class, especially for those of you who are unable to attend, let us understand what legislative authorities truly are.  Law, and really, actions, initiated by the federal government, cannot occur without the Congress first proposing it.  The true power of the federal government lies in its ability to make law.  Once the law exists, then the executive branch can execute the law, and the judicial branch can apply the law to the cases they hear.  Without the law first becoming a piece of legislation as a result of the legislative process, it has no power, and no ability to be anything.

This brings us to President Elect Donald J. Trump.  The businessman can claim he wants to do this, and he wants to do that, but as President of the United States those executive actions must first, from a constitutional point of view, begin in the legislative branch.  We heard President Barack Obama proclaim he has a pen and a phone, as if he thinks he can do whatever he desires, if Congress is not complying with his royal decrees.  That, my friends, is not how it is supposed to work.

The wheels of government are supposed to grind slowly.  The Congress is not supposed to be a rubber stamp for the President's every whim.  The legislative process requires proposals to begin as bills, to fight their way through committees, and earn the vote of both Houses of Congress before it even reaches the desk of the President of the United States.  The power of the purse-strings belongs to the House of Representatives, and the will of the President can only be suggestions for legislation.  The President cannot order Congress to do anything, and if they refuse to comply with his every demand, that doesn't mean Congress is broken.  In truth, that means Congress is doing its job.

That said, President Trump will be able to take unilateral actions to repeal Obama's unconstitutional executive orders - especially the ones that act legislatively when the Chief Executive is supposed to have no such authority.

Tonight is the next class, and below is the handout.  If you can join us in Corona, California, I am excited to meet you.  If not, enjoy the handout.  And, be aware, the handout is but a small portion of my book, The Basic Constitution.


Constitution Class Handout
Instructor: Douglas V. Gibbs, AuthorSpeakerInstructorRadio Host


AllStar Collision, Inc.
522 Railroad Street
Corona, CA

Tuesday Nights, 6:00 pm - 7:00 pm


Lesson 03

Legislative Authorities
Making Law, and Enumerated Powers

Making Law

As covered when we studied Article I, Section 1, all legislative powers belong to the Legislative Branch.  According to Article I, Section 7, Clause 2, all bills must be approved by both the House of Representatives and the U.S. Senate before they can be presented to the President for signature.  Article I, Section 7, Clause 1 indicates that all bills for raising revenue shall originate in the House of Representatives.

The structure for making law was established by the Founding Fathers in the way that it was in order to ensure that all parts of the system had a voice in the approval, or disapproval, of the law.  The people through their representatives in the House of Representatives voted their approval or disapproval of the bill, the States did the same through their voice in the United States Senate, and the federal government’s voice through the executive was the final approval.  If the executive did not like the proposed law, he could veto it.  However, all did not stop there.  If Congress felt strongly enough about the bill, and had enough votes, they could override the veto with two-thirds vote in each House and make the bill a law without the signature of approval from the President.

In 1913, the 17th Amendment changed the process in which United States Senators are chosen. Originally, the State Legislatures appointed the U.S. Senators, making the U.S. Senate quite literally the voice of the States.  The Senators at that time voted with the interests of the States, and more specifically with the intent of protecting their State’s sovereignty, in mind.  With the House of Representatives acting as the voice of the people, and the Senate acting as the voice of the States, the dynamics of making law was quite different from what it is today.

The process of making a law as originally intended ensured that the people, the States, and the federal government, all each had the opportunity to approve or disapprove the piece of legislation.  If either the people or the States did not like the bill, its journey to become a law stopped.  If the federal government, via the President, felt the bill was unconstitutional, or that its passage is not in the best interest of the nation, he could veto the bill.  The veto by the President in turn could be overturned with a two thirds vote from each house of Congress.  The reason for this system was for the purpose of checks and balances, and to keep the States involved in monitoring the federal government through advise and consent authorities.  This gave the people through the House of Representatives, and the States through the U.S. Senate, the ability to check each other, and the ability of them together to check the federal government.   The people and the States together, if in agreement, served as a united check against the federal government, or more specifically in the case of making law, the executive branch.

We The People hold original authority in the process of making law.  The members of the United States House of Representatives and U.S. Senate are voted into office by direct election of the people.  All of the officials involved with appointing or electing members of the branches of the federal government (as well as the U.S. Senate prior to 1913) were also originally voted into office by the general population.  Our original authority also reaches even farther back than the descriptions above, because it was the people, as the sovereign states of the union, who originally held all of the authorities prior to the writing and ratification of the U.S. Constitution.  Under British rule, original authority belonged to the monarchy, as per Royal Prerogative; but in the United States, original authority belonged to the people. 

By Article I, Section 7, Clause 1 establishing that all bills for raising revenue originate in the House of Representatives, the Constitution grants to the voice of the people the power to fund, or defund, any function of government affected by legislative action.  The power of the purse-strings gives the House of Representatives the ultimate check against the other parts of government, and ultimately gives the House of Representatives a significant amount of power. Should the House of Representatives, for example, disapprove of a military action being carried out by the Commander in Chief, the action can be stopped by the House of Representatives simply defunding the military operation by not including funding for that action in a budget proposal.  Refusal to accept the proposal by the Senate, or the Executive, places at risk the funding for other parts of government as well.  The Senate, though unable to originate bills raising revenue, may propose amendments to be added to such a bill that originated in the House of Representatives, but no bill raising revenue may originate in the Senate.  Upon approval by the Senate, if the Senate made changes, the bill would still need to go back to the House of Representatives for approval.  The approval by both houses of Congress must be for an identical bill.

If the President approves the bill, and signs it after it has been approved with a majority vote in each of the two houses of Congress, the bill becomes law.  If the President does not approve of the bill, he may refuse to sign it, or veto the bill, and return it with a written explanation of his disapproval.

Should the Houses of the United States Congress determine with a two-thirds vote in each house to reconsider the bill, the bill will still become law despite the executive objection.

All votes in the two houses of Congress shall be determined by yeas and nays, which will be entered into the respective house’s journal.  The journal entry will include the names and votes of the members voting for, or against, the bill.

If the President refuses to sign the bill presented to him, but does not return the bill with his written objection within ten days (excluding Sundays) the bill becomes law as if the President signed it.  The exception to this clause is if Congress does anything to prevent the bill’s return, such as through their adjournment.  In that case, the bill remains to be only a bill, and only becomes law should any of the afore mentioned processes be met.

Terms:

Original Authority: Principal agent holding legal authority; initial power to make or enforce laws; the root authority in government.

Veto: The power of a chief executive to reject a bill passed by the legislature and thus prevent or delay its enactment into law.

Questions for Discussion:

1.  Why did the Founding Fathers decide to give the power of the purse to the House of Representatives?

2.  How did the Senators being appointed by the State Legislatures enable State involvement in the federal government?

3.  If the people have original authority, how does that affect the relationship between the people through their States, and the Federal Government?

Resources:

Joseph Andrews, A Guide for Learning and Teaching The Declaration of Independence and The U.S. Constitution - Learning from the Original Texts Using Classical Learning Methods of the Founders; San Marcos: The Center for Teaching the Constitution (2010).

Madison’s Notes Constitutional Convention, Avalon Project, Yale University: http://avalon.law.yale.edu/subject_menus/debcont.asp


Enumerated Powers

The powers granted to the federal government in relation to legislative powers are listed in Article I, Section 8.  These authorities are also known as “Express Powers.”

Implied Powers is a concept invented by Alexander Hamilton while he served as treasury secretary in 1791.  He wrote in a report titled, “Opinion on the Constitutionality of the Bank of the United States” that “there are implied, as well as express powers, in the Constitution, and that the former are as effectually delegated as the latter.  Implied powers are to be considered as delegated to the federal government equally with the express ones.”

Hamilton, in his report, went on to argue that a nationalized bank was one of these implied powers.  Hamilton’s argument stated that his power to create a nationalized bank was implied as “necessary and proper” for the federal government to carry out its enumerated powers, such as borrowing money, regulating currency, and providing for the general welfare of the country.

Thomas Jefferson disagreed, arguing that the express powers delegated to the federal government by Article I, Section 8 of the Constitution were expressly stated because they were the only powers granted to the federal government by the sovereign States when they ratified the Constitution.  New authorities could only be granted by the amendment process, which includes the requirement of ratification by three-quarters of the States.

The Concept of Implied Powers remained, and the statists of history have used Implied Powers to rewrite the Constitution through regulatory actions, and liberal judicial activism.

From the emergence of Implied Powers came the theory that the Constitution is a living document that can be modified at will through interpretation and the use of Implied Law.  Hamilton’s concept of Implied Powers laid the groundwork for generations of lawyers and judges using the courts, rather than the amendment process, to alter the Constitution, and render the limiting principals powerless.  The concept of Implied Powers is one of the concepts that have fed the false idea that the courts “interpret” the Constitution.

Alexander Hamilton also argued that there were “resulting powers” as well, which are powers that exist as a result of any action the government takes.  These “resulting powers” are de facto constitutional by virtue of the fact that the action by the federal government occurred in the first place.

With the use of the concepts of Implied Powers and resulting powers, Hamilton believed the central government had unlimited powers to act as any member of the federal government deemed necessary.


General Welfare Clause

"If Congress can do whatever in their discretion can be done by money, and will promote the General Welfare, the Government is no longer a limited one, possessing enumerated powers, but an indefinite one, subject to particular exceptions." --James Madison

The General Welfare Clause is one of the most misunderstood clauses in the U.S. Constitution - and it was not even supposed to be a clause.

Article I, Section 8, Clause 1 includes "General Welfare" not as an authority to the federal government, but as a description of the Republic should the laws of the land be made in accordance with the authorities granted by the Constitution.

If we go back to the Preamble, we read that one of the reasons the Founding Fathers created this new government with the writing of the Constitution was to "insure domestic Tranquility."  One must ask, "Why was there a need for domestic tranquility?"

The States were much like siblings.  The States fought over just about everything.  They argued over commerce, borders, legal jurisdictions, currency, weights and measures, communication, religion, and a number of other issues.  Yet, despite their disagreements, when it came to the American Revolution, they united against a common enemy.  After the war, the quarrels resumed.  The fighting between the States became such a problem that many worried it would tear apart the union.  One of the many reasons for the need of a new government, as provided by the U.S. Constitution, was so that the central government would have enough authorities to act as a mediator between the States.

Acting as a referee in matters that caused disputes between the States would help the federal government provide for the General Welfare of the republic.

Another reason for the writing of the new constitution was to give the federal government enough power to defend the union from invasion and domestic insurrection.  Under the Articles of Confederation, the central government was unable to provide for the common defense because the government did not have the authority, nor the financial means, to field a military.  With the ability to field a fighting force, the federal government would be able to protect the States from foreign invasion, while also keeping internal conflict at bay as well.

By providing for the common defense, the federal government would also be ensuring the General Welfare of the Republic.

In other words, if the federal government was doing what it was supposed to do, as a mediator between the States, and as a protector of the States by providing for the common defense, the States would enjoy a general welfare of the republic.  The Founding Fathers wanted to make sure that squabbles, internal conflict, or foreign intrusion did not place the welfare of the union in jeopardy.

General Welfare is an adjective, not an authority.

The General Welfare of the republic was the goal, which would be achieved if the federal government abided by the limiting principles of the U.S. Constitution.

Taxes and Debt

Article I, Section 8 grants Congress the power to lay and collect Taxes, Duties, Imposts, and Excises.

The authority to tax was for the express purpose of protecting, preserving, and promoting the union.  The federal government could tax the States only if the taxes were uniform throughout the United States.  The federal government could not originally tax the individual citizens directly.

The stated purposes for giving the Congress the power to tax are to “provide for the common Defence and general Welfare of the United States.”

The need for the central government to be able to defend the union militarily was one of the initial reasons the Founding Fathers planned the Constitutional Convention at the Annapolis Convention in 1786.  Shays’ Rebellion proved to the founders that the government under the Articles of Confederation was too weak to defend the union.

Some of the members of the Constitutional Convention were concerned that a military may be used by the federal government against the States, but the reality of the world they lived in was that the union would not survive without the ability to defend itself. It was argued that the independent militias needed to be joined under a single federal army, and for the protection of the trade routes a United States Navy also needed to be established.  In order to have a military, however, the federal government would need the power to tax in order to pay for the military it would be afforded.

The second clause of Article I, Section 8 grants the authority to the U.S. Congress to borrow money on the credit of the United States.  If the federal government ever found the necessity to enter into military operations on the battlefield, to help pay for the expensive endeavor of warfare, the federal government would need to be able to borrow money for the war effort. Therefore, the States through the new Constitution granted to the federal government the authority to create a national debt.  The founders did not recognize any reason other than for war that the United States would need to borrow money.  Alexander Hamilton, however, suggested that a continuous national debt was necessary to hold together the union, for if the States all felt they were responsible for the repayment of the deficit, they would be less likely to break away from the union.

Commerce Clause

Article I, Section 8, Clause 3 grants to the Congress the authority to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.

Remember, the States did not get along too well.  Like siblings, they argued over just about everything.  The individual States bickered over the borders between the states, turf, and interstate trade. As sovereign entities, the States continually tried to gain the upper hand on the other States in regard to commerce across State lines. Recognizing that the squabbles between the States were actually hindering commerce across State lines, the federal government in this clause was given the authority to do what was necessary to enable the flow of commerce to be more regular.

When you turn on a faucet full blast you are regulating the flow, just as you are regulating the flow when you restrict it by turning the faucet off.  Likewise, the federal government was expected to act as a mechanism that ensured that the flow of commerce between the States was more regular.

The 1828 Webster Dictionary defines regulate in its second definition: “To put in good order.”  Some historians state that regulate in the 18th Century meant “To make regular.”  The word “restrict” was not used in the 1828 definition until the third and final definition of the word.  In today’s dictionary “restrict” appears in the first definition of regulate.

Today, the Commerce Clause has been interpreted to mean the opposite of its original intent.  The Commerce Clause in today’s political atmosphere is used as a means to restrict and heavily control commerce between the States. If one was to adopt the progressive definition of the Commerce Clause, one could then surmise that the Founders wrote this clause because commerce was flowing too easily, and needed to be controlled by the federal government. Such a notion is not only untrue, but outside the normal tendencies of the Founding Fathers. The Founders believed in limiting the powers of the Federal Government, so why would they allow the Federal Government the kind of unlimited powers over interstate commerce as suggested by today’s progressive?

The federal government’s role according to the Commerce Clause was to act as a referee, or mediator, whenever the flow of commerce was hindered by disagreements between the States, while with foreign nations and the Indian Tribes the federal government was expected to take a more active role.

Naturalization

Article I, Section 8, Clause 4 gives the Congress the authority to establish a uniform rule of Naturalization.  What this means is that all naturalization rules must be identical in all States.  One State cannot decide to have rules for naturalization that are different than what the federal government has established. This is an example of an “exclusive jurisdiction.”  However, realize that immigration is not mentioned here.  Immigration is a concurrent issue, with authorities held by both federal government and the States.

Bankruptcies

In Article I, Section 8, Clause 4 the federal government is also given the authority to establish uniform rules on the subject of bankruptcies throughout the United States. 

Prior to the ratification of the U.S. Constitution, each State had its own rules on bankruptcy.  Citizens would simply cross state lines to start over financially.  The clause bringing bankruptcy under federal jurisdiction was for the purpose to stop the abuses, and to establish uniform rules nationwide.

Money, Weights, and Measures

Article I, Section 8, Clause 5 establishes that the duty of coining money belonged to Congress.  Note that the Constitution called for coining money, rather than printing federal reserve notes (bills of credit).  The coins produced by Congress were expected to be made of metals that reflected the worth of the coins. In other words, the gold in a coin, if taken to a goldsmith, would be worth the same as the value of the coin. Later, the banks realized they could loan on the gold in their vaults backing the currency, leaving less gold as a reserve.  They did this by issuing receipts, or bills of credit.  When this happened, if there was a bank run, where everyone brought their receipts in to cash it in for gold all at once, the bank would be left in a situation where they did not have enough gold to cover all of the notes.

If one goes back to the Articles of Confederation, it is important to note that under the confederation, there had been no power given to the central government to regulate the value of foreign coin, an omission, which in a great measure would destroy any uniformity in the value of the current coin, since the respective states might, by different regulations, create a different value in each. As a result, the States were prohibited in Article I, Section 10 from coining their own money, thus taking away their ability to manipulate the value of currency as a means of effecting the economies of the other states.

The authority to coin money was given specifically to Congress so that no outside interest could manipulate the value of American money.  This included private banks.  Nonetheless, we have seen three nationalized banks run by private bankers in the United States issuing the currency.  The third is the currently existing Federal Reserve Bank.

Thomas Jefferson was against national banks.  Alexander Hamilton created the “Bank of the United States” in 1791 for the purpose of acting as a depository of government funds, issuing paper currency backed by gold and silver, and creating a system of mercantilism in America.  The bank’s charter lapsed in 1811.  The Second Bank of the United States was formed in 1817, and lasted until President Andrew Jackson vetoed the renewal of its charter in 1836.  The bank existed for 5 more years as an ordinary bank before going bankrupt in 1841.  In a letter to John Taylor in 1816, Thomas Jefferson wrote, “I sincerely believe, with you, that banking establishments are more dangerous than standing armies; and that the principle of spending money to be paid by posterity, under the name of funding, is but swindling futurity on a large scale.”

Article I, Section 8, Clause 5 also establishes that Congress shall have the power to fix the Standard of Weights and Measures.  Fixing a standard of weights and measures was important for the reason of uniformity, and the ease of commerce. This clause suggests that before the Constitutional Convention the States were able to independently fix their own weights and measures, which not only added confusion to commerce, but enabled the States of use unsavory trading tactics against each other.

Article 1, Section 8, Clause 6 establishes that the U.S. Congress will provide for the punishment of counterfeiting the securities and current coin of the United States.  This power would naturally flow, as an incident, from the antecedent powers to borrow money, and regulate the coinage.  Indeed, without the ability to provide for the punishment of counterfeiting, the powers of coining money or creating securities would be without any adequate sanction. The word “securities,” in this clause, means: a contract that can be assigned a value so that it may be traded, like a “bond.”

Post Offices and Roadways

In Article I, Section 8, Clause 7 the Congress is granted the authority to establish post offices and post roads.

As with the other clauses in Article I, Section 8, this clause is designed to promote the Union. In this case, it ensures that communication remains intact.  The clause gives the federal government the authority to establish post offices, but nowhere in the Constitution does the federal government have the authority to partially privatize the post office as we have seen in the modern era.

Article I, Section 8, Clause 7 gives the federal government the authority to “establish” post roads, but not create or maintain them. The Constitution does not give the federal government any other authority over roadways. In fact, this is the only reference to roadways to the federal government in the entire Constitution.  This clause makes the federal highway and Interstate highway system, as well as the other workings of the federal transportation department, unconstitutional. It was up to the States to create and maintain their roadways. If the States desired to remain connected, and receive their mail, they would keep up their roads.

In 1817, Congress proposed a bill that would provide federal funding for boatways and roadways, claiming it was for the “general welfare” of the nation. President James Madison vetoed the bill, claiming it to be unconstitutional, because the federal government was not given the authority to fund transportation routes.

Patents and Copyrights

Article I, Section 8, Clause 8 authorizes Congress to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.

This clause is the basis for the creation of the U.S. Patent Office, and Copyright Office. Patent and copyright protections already existed in the British Empire, and for the protection of American inventions and writings, the Founding Fathers saw the need to establish such a power under the federal government as well, expecting that by being under federal authority, the rules would be uniform.

Federal Inferior Courts

Article I, Section 8, Clause 9 authorizes Congress to constitute tribunals inferior to the Supreme Court.  This means that the legislative branch was tasked with the duty to establish the lower federal courts.  However, by enabling Congress to establish new courts whenever necessary, this has given some administrations an opportunity to abuse this power in the hopes of stacking the courts.  John Adams was the first example of this abuse, when he appointed many midnight judges in order to help retain federalist power in the courts as Jefferson’s Republicans gained the White House, and the majority in Congress.  Some may argue that Adams’ decision to expand the court was not as sinister as Thomas Jefferson made it out to be, for John Adams had been requesting an expansion of the judiciary for years.

President Franklin D. Roosevelt also sought to "pack" the court with justices favorable to his social policies.  His animosity toward the Supreme Court emerged when his New Deal of social and economic reform via government intrusion was struck down as unconstitutional by justices that had been largely appointed by his rival Republicans.

The high court invalidated the Railroad Retirement Act of 1934, a law that had established pensions for railway workers, and the National Industrial Recovery Act of 1933.  Roosevelt’s anger against the justices for their rulings led him to hold contempt for the conservative-minded court of "Nine Old Men."  In January 1936, the court ruled the Agricultural Adjustment Act of 1933 unconstitutional, as well.

In 1937, Roosevelt disclosed to his aides a bill he was going to propose that was designed to reorganize the federal judiciary. The measure called for all federal judges to retire by age 70. If they failed to do so, the president could appoint another judge to serve in tandem with each one older than 70.  If the bill passed, it would enable Roosevelt to appoint six more Supreme Court justices immediately, increasing the size of the court to 15 members.  The Democrat dominated Congress, he believed, would undoubtedly approve the appointment of judges friendly to Roosevelt and his New Deal agenda.

The proposal never got off the ground, as Roosevelt’s explanation regarding why the proposal was necessary fell flat.

Both the federal government, and the States, have court systems.  The shared power by both the federal government and the State governments to establish a judiciary is a concurrent power.

With the ability to establish the inferior courts also comes the authority to eliminate them. Congress, in addition to the authority to establish federal inferior courts, can also shut them down.  When in the 2012 Republican Campaign Newt Gingrich stated that Congress should use the federal marshall to bring unconstitutional judges to face members of Congress and answer for their actions, he was accurate that Congress can do that.

Trade Routes and Offenses Against The Law of Nations

Article I Section 8, Clause 10 authorizes Congress to define and punish piracies and felonies committed on the high seas, and offenses against the Law of Nations.

One of the factors in having this included was the problem with piracy in the Caribbean, as well as difficulties the new nation was having with the Barbary Pirates (Muslims). Though the United States was careful to create a system of justice that included due process for the citizens of the nation, the Constitution gave the federal government the power to punish offenses by foreign forces on the high seas without having to worry about habeas corpus, while still providing a courtroom setting for the offenders. In Federalist 42, Madison carefully explains that this provision “extends no further than to the establishment of courts for the trial of these offenses,” such as military courts, or international courts for international war crimes.

This clause is the only place where the Law of Nations is mentioned.  Some historians claim that the capitalization of the “Law of Nations” suggests that the founders were specifically referring to Vatell’s volumes of which the founders often used for definitions and the clarification of concepts like Natural Born Citizen.

War, Army, and Navy

Article I, Section 8, Clause 11 gives Congress the power to declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.

During the debates, according to Madison’s Notes on the Constitutional Convention, the delegates debated over whether or not to give the legislative branch the power to make war.  After intense debate, it was decided to grant the Commander in Chief, the President of the United States, the authority to “wage” war, and Congress the power to declare war. A declaration of war is a formal declaration that warns those not involved to stay out of the conflict. If those entities become involved, they become open targets.  The president, as per the debates, may wage war without prior approval by Congress, or without a declaration of war being issued.

The ability to wage war, however, is checked by the fact that the House of Representatives are able to refuse to fund any military conflict. This keeps the president from abusing his position as Commander in Chief by giving Congress a way to limit executive wartime authorities.  If the President continues to act upon his war powers in a manner not approved of by Congress, and the President does so despite the lack of funding for the military operations, Congress also has the authority to impeach the President in order to stop the executive’s objectionable actions.

A Letter of Marque and Reprisal was a government license authorizing a private vessel to attack and capture enemy vessels, and bring them before admiralty courts for condemnation and sale. Cruising for prizes with a Letter of Marque was considered an honorable calling combining patriotism and profit, in contrast to unlicensed piracy which was universally reviled.  These mercenaries was also known as “privateers.”

Congress was also given the power to make rules regarding captures on land and water.  This is the clause used when the Bush administration, with the blessings of Congress, decided to hold prisoners captured during the war on terrorism at Guantanamo Bay, and to use military tribunals as the vessel of their trials.

Article I, Section 8, Clauses 12-16 authorizes Congress:

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

Remember that one of the primary reasons for deciding to hold the Constitutional Convention in the first place was to defend the union with a uniformed military.  Note that the fear of an army being used by a centralized government, and a potentially tyrannical government for that matter, as had been in the case with the British Empire, influenced the writings of this document, and encouraged the founders to limit the existence and funding of an army to two years at a time. A navy, however, was deemed as much more important, particularly because of the need to protect trade routes, and America’s immediate waterways and inlets. Therefore, the authority to provide and maintain a navy was granted in perpetuity.  The United States Marine Corps, from the beginning, falls under the umbrella of the United States Navy.

The rules for the governance of the armed forces do not fall under the purview of the Constitution. It is up to Congress to provide the governing rules.  Any claim that rules regarding the military are unconstitutional is a bad argument.  According to Article I, Section 8, Clause 14, it is up to Congress to set the rules, regardless of the Constitution.  Military training in order for the armed forces to be well disciplined may not benefit from same social rules of the civilian world.  Therefore, the basis of governance over the armed forces is not the Constitution, but instead the Uniform Code of Military Justice. However, it is the military’s duty to protect and preserve the U.S. Constitution, and in a manner of tradition, Constitutional Principles have an unofficial influence on military politics.

Congress also has the authority to call forth the Militia to execute the laws of the Union (Constitutional federal laws), suppress insurrections (inserted in response to Shays’ Rebellion), and repel invasions (one may consider the illegal entry into the United States an invasion, therefore this clause gives the federal government the authority to use the militia to guard the national borders).  Currently, in this country, we have an organized militia (National Guard, State Militias), and an unorganized militia (you and I). U.S. Code Title 10 still defines these militias as such.

Federal Properties

Article I, Section 8, Clause 17 calls for the Congress to exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings.

This clause was for the creation of Washington DC, giving the United States Congress exclusive legislative powers over the District of Columbia and other federal properties, and to allow the federal government to erect military bases, and other necessary federal facilities by consent of the Legislatures of the States in which those properties are obtained, and for the federal government to purchase those properties. This makes land seized for conservation, and National Parks, unconstitutional, for those were not approved by the States, nor purchased by the federal government, and finally it is not being utilized for the purpose of the erection of “needful buildings.”

Necessary and Proper Clause

Article I, Section 8, Clause 18 is also known as the “necessary and proper” clause. It reads:

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Today’s government officials misuse this clause greatly. Notice the emphasis on carrying into execution the “foregoing powers” (authorities herein granted).  What that means is that the Congress may make laws that fall within the authorities granted by the U.S. Constitution that the Congress recognizes to be “necessary and proper.”  Today’s federal government has taken this clause to mean they can make “any” law they feel to be necessary and proper.

"The plain import of the clause is, that congress shall have all the incidental and instrumental powers, necessary and proper to carry into execution all the express powers. It neither enlarges any power specifically granted; nor is it a grant of any new power to congress. But it is merely a declaration for the removal of all uncertainty, that the means of carrying into execution those, otherwise granted, are included in the grant." --Joseph Story, Commentaries on the Constitution, 1833

In order to carry out some express powers of the Constitution sometimes certain actions by the government are necessary and proper.  For example, when establishing a post office, as expressly authorized by this article and section, the federal government will have to grade the land, hire construction crews, purchase the equipment for carrying out the services of the post office, and so forth.  All of these things are necessary and proper in order to carry out the “foregoing power” of establishing a post office.

This clause is also sometimes referred to as the “Elastic Clause.”

Terms:

Concurrent Powers: Powers that are shared by the state and the federal government.  The power to enforce immigration is also a concurrent power.

Duties: A tax levied by a government on the import or export of goods.

Excise: Tax on the manufacture, sale, or consumption of goods, or upon licenses to pursue certain occupations, or upon corporate privileges.

Exclusive Powers: Sole authority over a particular power, be it for the States within their own territorial boundaries, or sole federal powers.  Also known as Reserved Powers.

Express Powers: Authorities explicitly authorized to the federal government by the U.S. Constitution.

Implied Powers: Legal or governmental authority not expressly stated by the U.S. Constitution, but considered to be logical extensions or implications of the other powers delegated in the Constitution.  The concept of Implied Powers is often defended by the Necessary and Proper Clause (Article I, Section 8, Clause 18).  Implied Powers is an unconstitutional concept.

Imposts: A tax, especially an import duty; Import Duty is a tariff paid at a border or port of entry to the relevant government to allow a good to pass into that government's territory.

Questions for Discussion:

1.  True power of government is the ability to make law.  Is listing the authorities in Article I the founders way of telling us that?

2.  How has the unconstitutional concept of Implied Powers been used in today’s political atmosphere?

3.  How has the war powers been misused in recent years?

4.  Name examples of how the Commerce Clause has been misused?

5.  If post roads are the only mention of roadways in the Constitution, then what does that say about recent attempts by the federal government to fund public works projects?

6.  The Necessary and Proper Clause depends upon the laws being within Constitutional Authority.  Are there other clauses requiring this as well?

Resources:

Andrew M. Allison, Mr. Richard Maxfield, K. Delynn Cook, and W. Cleon Skousen, The Real Thomas Jefferson; New York: National Center for Constitutional Studies (2009).

Articles of Confederation, March 1, 1781; http://avalon.law.yale.edu/18th_century/artconf.asp

David McCullough, John Adams; New York: Simon and Schuster (2001).

Donald Porter Geddes, Franklin Delano Roosevelt - A Memorial; New York: Pitman Publishing Corporation (1945).

Ethan Pope, America’s Financial Demise; Dallas: Intersect Press (2010).

James Madison, Federalist No. 41: General View of the Powers Conferred by The Constitution (addresses General Welfare Clause as well), http://www.constitution.org/fed/federa41.htm

James Madison, Federalist No. 42: The Powers Conferred by the Constitution, http://avalon.law.yale.edu/18th_century/fed42.asp

James Madison, Veto of Federal Public Works Bill 1817; Constitution dot org: http://www.constitution.org/jm/18170303_veto.htm

Jay A. Parry, Andrew M. Allison, and W. Cleon Skousen, The Real George Washington; New York: National Center for Constitutional Studies (2010).

K. Daniel Glover, FDR’s Court-Packing Fiasco; Enter Stage Right: http://www.enterstageright.com/archive/articles/0799fdrcourt.htm (1999).

Larry Schweikart and Michael Allen, A Patriot’s History of the United States; New York: Sentinel (2004).

Madison’s Notes on the Constitutional Convention, Avalon Project, Yale University: http://avalon.law.yale.edu/subject_menus/debcont.asp

Robert Brown, Gold and Silver Coin or Paper Money?; The John Birch Society: http://www.jbs.org/blog/gold-and-silver-coin-or-paper-money.html (2010)

Thomas J. DiLorenzo, Hamilton's Curse; New York: Three Rivers Press (2008).

U.S. Code, Title 10, Subtitle A, Part 1, Chapter 13, § 311: Militia: composition and classes; http://www.law.cornell.edu/uscode/html/uscode10/usc_sec_10_00000311----000-.html



Copyright: Douglas V. Gibbs, 2014