Thursday, September 19, 2019

Basic Civics

Hand-out for a 4H group I spoke to tonight:


Civics/Government Basics                                                      Presented: September 19, 2019
Douglas V. Gibbs
www.douglasvgibbs.com
www.politicalpistachio.com
constitutionspeaker@yahoo.com


What is government?

Declaration of Independence: Governments are instituted among men to secure our rights.  The Constitution of the United States sets up the framework of our government, determines the distribution of power to the different parts of government, and provides a method for changes to the government, if necessary.  The Federal Government consists of three branches; Legislative, Executive, and Judicial.  The Legislative Branch is tasked with creating, modifying, and repealing laws.  The Executive Branch is tasked with executing the laws, and as the figurehead of the United States while dealing with foreign powers.  The Judicial Branch is tasked with applying the black letter of the law to the cases they hear.  While it has become common practice for the judiciary to also review laws for validity, be it by determining constitutionality, or if the law is a just law, there are no constitutional authorities allowing the courts to carry out such a task.  Judicial Review, as it is called, is technically unconstitutional.

What are rights?

Declaration of Independence: Laws of Nature and of Nature’s God.   Among them are Life, Liberty, and the Pursuit of Happiness.  Our rights belong to us based on our birth, and it was believed by the Framers of the U.S. Constitution that our rights are “God-given.”  The Declaration provides the following characteristics to our rights: We are entitled to them, they are our possession, we are endowed by the Creator with our rights, they are self-evident, and they are unalienable.  The Bill of Rights was written as a warning to the federal government to not interfere with our rights.  According to the Constitution the government does not exist to guarantee or protect our rights, but to secure our rights in our possession by restraining itself, and others, from interfering with our rights.

How does government work?

In most governmental systems there are three parts.  Legislative, Executive, and Judicial.  In the United States we have a Federal Government, State Governments, County Governments, and Municipal Governments.  Each of them are broken up into those three parts.
· Federal:  Legislative – Congress.  Executive – President.  Judicial – Court System.
· State: Legislative – Assembly and State Senate.  Executive – Governor.  Judicial – State Courts.
· County: Legislative – County Supervisors.  Executive – Sheriff.  Judicial – County Courts.
· Municipal: Legislative – City Council.  Executive – Mayor and Chief of Police.  Judicial – City Attorney and Municipal Courts.

Structure of the legislature.

Most legislatures consist of two houses.  This is called a “bicameral congress.”  Legislatures work best when there are two houses and the houses are different from each other.  In the Roman Empire the Legislature consisted of an Assembly (voice of the common people), and the Senate (voice of the wealthy and powerful).  In Britain you have the House of Commons (voice of the commoner), and the House of Lords (voice of the nobles).  In the United States, at the founding of our country, the two Houses of Congress were the House of Representatives (voice of the people), and the United States Senate (voice of the States, changed to democratic vote in 1913 with the 17th Amendment).  All State legislatures (except Nebraska) are also broken up into two houses.  The Assembly (or State House of Representatives) and the State Senate.  Prior to 1964 (Reynolds v. Simms) the Assemblies (or State Houses) were the voice of the people, and the State Senate was the voice of the Counties.  The State Senate districts, back then, were based on the county lines.  In an attempt to turn the United States into a democracy, anti-constitution forces fought to change the system so that the Senate districts are designed to break up the States into equally populated districts, and for the senators to be democratically voted into office.  While unconstitutional, today all 50 States follow this model.  Prior to Reynolds v. Simms, States like California saw one senator per county.  Today, State Senate District 2 (which spans along the Northern California Coast between the Oregon State Line and the northern edge of the San Francisco Bay) consists of seven counties, while Los Angeles County contains fourteen senate districts.

How are laws made?

A bill may be presented by one of the houses.  Once it is approved by vote it moves to the other house for approval.  If no amendments are made and the vote approves the bill, it then goes to the executive for signature.  However, if amendments are made, the bill must return to the other house for approval.  The process continues until both houses approve the same exact bill with an agreement on all of the amendments, or the bill dies in the legislature unable to receive enough votes to move forward to the executive.  If the executive disagrees with the bill, or believes it to be unjust or outside legality (unconstitutional), he may veto that bill.  If vetoed, the bill will either die, or can become law if the legislature has enough votes to override the veto.  In the U.S. Congress a two-thirds majority from each house is required to override a veto.

How many members are there in a legislature?

The number varies by State and/or legislature.  In the U.S. Congress there are 435 members of the U.S. House of Representatives (a State’s number of representatives is based on population), and one hundred members of the Senate (two per State).

What is the Electoral College?

The Electoral College is a unique, American-style, way of electing the President of the country.  Electors are chosen to elect the president, and then points are awarded based on a State’s number of representatives in Congress.  For example, California has 53 members of the House of Representatives and two members of the U.S. Senate, giving the State 55 Electoral Votes.  The Electoral College protects the country from the excesses of democracy, changing the vote from a single popular vote to 51 (50 States plus Washington D.C.) separate and distinct contests.  The Electoral College, in the process, reduces the influence heavily populated areas have on the election.  Without the Electoral College, the votes from the Los Angeles, Chicago, New York, Philadelphia, Houston, Washington D.C., and San Francisco metropolitan areas would be sufficient to elect the President, and nobody else’s votes would matter.  All but two States have a “winner take all” system where all of the electoral votes for the State go to the statewide winner.  Nebraska and Maine split up their electoral votes into electoral districts, so it is possible for some of the State’s electoral votes to go to one candidate, and the rest to another.  Some States, in an attempt to sabotage the Electoral College, have been proposing legislation that would change the system in their State to all of their electoral votes going to the national popular vote winner.

What is the difference between a Democracy and a Republic?

In a Democracy the laws and rules of society are only determined by democratic vote.  In a representative democracy the people vote for representatives to make the laws for them.  In a republic the power of the vote is minimized through a series of checks and balances, and any democratic votes are limited. Originally, in the United States, the only federal office democratically voted into power was the House of Representatives.  Thomas Jefferson called democracy the “tyranny of the majority where 51% can vote away the rights of the other 49%.”  John Adams said that “there was never a democracy that did not commit suicide.”  James Madison said, “Democracies are short in their lives and violent in their deaths.”   The United States was originally established as a republic, and in Article IV. of the U.S. Constitution the document states that the United States shall guarantee to each State a republican form of government.

What powers are different between the two Houses of the U.S. Congress?

At one time the Senators were appointed by the State legislatures.  Since 1913 (17th Amendment) the Senators have been democratically voted into office by the populace.  Therefore, the two chambers of Congress are essentially equal, save for these differences: Persons nominated by the President of the United States, such as judges, ambassadors, cabinet officers, and other senior primary officers of the U.S. Government must be confirmed by the Senate by a majority vote; Treaties negotiated with foreign countries must be ratified by the Senate with a two-thirds majority vote; in cases of impeachment, the Senate hears the cases with the President of the Senate (Vice President of the United States) carrying out the duties as chief presiding officer, unless the President is being impeached, at which time the Chief Justice of the Supreme Court will preside over the hearing.  The U.S. House of Representatives alone has the power to establish articles of impeachment, and bills affecting revenue may only originate in the House of Representatives.

Why is government important?

The framers of the U.S. Constitution called government a “necessary evil.”  With government, we run the risk of it becoming a tyranny.  Without it, we live in chaos with no rules regarding how to live together in a society.  As a member of a society with a government, it is our duty to respect the government, obey the laws, and give thoughtful opinions as we participate in the duties of citizenship.  With freedom comes responsibility, and that means we must all participate, and work to change the laws or representation in our government should we believe that the laws or representatives are not best for our society.  As Americans we agree to do what we can to keep our system of government in good working order, and consistent with the Laws of Nature and of Nature’s God.


-- Political Pistachio Conservative News and Commentary

Wednesday, September 18, 2019

Temecula Constitution Class: Amendments, Federal Supremacy

Temecula Constitution Class, Wednesdays 6:00 pm
28120 Jefferson Avenue, Temecula, CA
Riverside County Republican Party Headquarters

Constitution Class Handout
Instructor: Douglas V. Gibbs
douglasvgibbs@reagan.com
 
 
 
 
Lesson 10
Amendments and Conventions
 
Article V is the section in the Constitution that provides the people and the States the opportunity to change the law of the land if needed by establishing the amendment process. Originally, only the States were going to be able to propose amendments. On the second to the last day of the Constitutional Convention, the Founding Fathers added as an afterthought to allow the Congress to propose amendments as well. The amendment process is the only process through which the Constitution may be altered.
 
Amendments, according to Article V, may be proposed by either two-thirds of both Houses of the United States Congress, or by a national convention of States. Amendments must then be ratified by approval of three-fourths of the States either through their legislatures, or through ratifying conventions.
 
Amendments proposed by a national convention is a process known as an Article V. Convention.
 
Current opinion regarding an Article V. Convention varies. Some people and groups have warned against such a convention, fearing a runaway convention that could be used to re-write the Constitution. The Constitution does not allow for a runaway convention. In an Article V. Convention, only amendments may be proposed.
 
The call for an Article V. Convention is nothing new. Forty-Nine States have called for it, many of those calls beginning longer than over a 100 years ago. Over 700 applications have been made. The convention has never taken place because the Congress will not set a time and place (the only federal duty in an Article V. Convention), for fear of the people proposing amendments, and the States ratifying them, that would limit the powers of the federal government. Centralized systems do not like it when the individual mind gets involved, and demands change.
 
There are three kinds of conventions. A con-con, which is a Constitutional Convention, and there was only one, held back in 1787, and there should only be one in our history. In addition to the con-con, and the Article V. Convention, is a kind of convention called Republic Review. A Republic Review may be used to audit the federal government, determine what is unconstitutional, and then form a plan of action to alter the federal government so that it falls in line with the principles of the United States Constitution. An Article V. Convention, or the States working together through nullification, could be the result of a Republic Review. The strategy to convene a Republic Review convention lies primarily with We the People.
 
Amendments, no matter how they are proposed, require three-quarters approval from the States. This approval process is called "ratification." Ratification is the failsafe, according to Alexander Hamilton in his Federalist 85, against conventions that may be used to rewrite the Constitution. Any change to the Constitution is possible, as prescribed by Article V, as long as the amendment is capable of receiving three-quarters of the States' ratification votes.
 
The only exception to any amendment being possible is addressed at the end of Article V. According to the Constitution, no amendment, without the consent of the State in question, may deprive a State of equal suffrage in the Senate. This testifies to the importance, in the minds of the framers, to the need for the United States Senate to remain unchanged, with the Senators being appointed by the State legislatures.
 
Since the Constitution is a document that contains express powers for the federal government, granted by the States, the only way to change or add authorities is through the amendment process, with State approval. When it is understood that the original authorities granted to the federal government were granted to the central government by the States, it is appropriate that it takes three-quarters of the States to ratify an amendment. When Congress proposes an amendment, it is literally a case of the federal government asking for permission of the States to have a new authority, and approval by the States requires three-quarters agreement.
 
 
Terms:
 
Article V. Convention - A convention for the proposal of constitutional amendments applied for by the States and called by Congress.
 
Express Powers - Powers granted to the federal government by enumerated authorities expressly granted in the United States Constitution.
 
Republic Review - A convention of delegates representing the several States in order to audit the laws, actions, and composure of the United States federal government; a review of unconstitutional characteristics of the federal government based on the amendment ratification concept that if it takes three-quarters of the States to ratify an amendment, a quarter (plus one) of the States determining a law, action or department of the federal government to be unconstitutional allows the States to nullify the item.
 
Questions for Discussion:
1. What two sources may propose amendments?
2. Why does it require the States to ratify proposed amendments?
3. How is an Article V. Convention an important part of restraining the federal government?
Resources:
 
Friends of the Article V. Convention: http://foavc.com/
 
G. R. Mobley, We the People: Whose Constitution is it Anyway?;
Hobart, Washington: Mobius Strip Press (2013)
 
G. R. Mobley, We the People: The Strategy to Convene a Convention for
Republic Review; Hobart, Washington: Mobius Strip Press
(2014)
 
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
 
Mark R. Levin, The Liberty Amendments: Restoring the American
Republic; New York: Threshold Editions, a division of Simon & Schuster (2013)
 
Philip B. Kurland and Ralph Lerner, The Founder's Constitution -
Volume Four - Article I I, Section 8, Clause 5 to Article VII; Indianapolis: Liberty Fund (1987)
 
 
 
 
Copyright: Douglas V. Gibbs, 2015
 
 
---------------------------------------

 
Lesson 11
 
Debt and Supremacy
 
            Prior Debt
 
Article VI begins with "All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation."
 
The first clause of Article VI legally transfers all debts and engagements under the Articles of Confederation into the new government. This is not only the debts and engagements by the United States Government under the Articles of Confederation, but also includes all debts of each of the several States. After ratification of the Constitution, each and every State would be debt free, and all debt would be held by the federal government. This condition, according to the Constitution, would be the last time the States would legally be in debt. In Article I, Section 10, the Constitution forbids the States from issuing bills of credit.
 
Alexander Hamilton, the first Treasury Secretary, suggested that the United States should remain in perpetual debt. Maintaining a perpetual debt, he explained, would be a mechanism that could assist in holding together the union, since States would be unlikely to secede when they are responsible for a part of the national debt.
 
Thomas Jefferson disagreed with Hamilton. He recognized the necessity to maintain the ability to borrow, and the need for credit, but found a national debt to be a potentially dangerous proposition.
 
"Though much an enemy to the system of borrowing, yet I feel strongly the necessity of preserving the power to borrow. Without this, we might be overwhelmed by another nation, merely by the force of its credit." -- Thomas Jefferson to the Commissioners of the Treasury, 1788.
 
"I am anxious about everything which may affect our credit. My wish would be, to possess it in the highest degree, but to use it little. Were we without credit, we might be crushed by a nation of much inferior resources, but possessing higher credit." -- Thomas Jefferson to George Washington, 1788.
 
"Though I am an enemy to the using our credit but under absolute necessity, yet the possessing a good credit I consider as indispensable in the present system of carrying on war. The existence of a nation having no credit is always precarious." -- Thomas Jefferson to James Madison, 1788.
 
"I wish it were possible to obtain a single amendment to our Constitution. I would be willing to depend on that alone for the reduction of the administration of our government; I mean an additional article taking from the Federal Government the power of borrowing. I now deny their power of making paper money or anything else a legal tender. I know that to pay all proper expenses within the year would, in case of war, be hard on us. But not so hard as ten wars instead of one. For wars could be reduced in that proportion; besides that the State governments would be free to lend their credit in borrowing quotas." -- Thomas Jefferson to John Taylor, 1798.
 
"I sincerely believe... that the principle of spending money to be paid by posterity under the name of funding is but swindling futurity on a large scale." -- Thomas Jefferson to John Taylor, 1816.
 
"If the American people ever allow private banks to control the issue of their currency, first by inflation, then by deflation, the banks...will deprive the people of all property until their children wake-up homeless on the continent their fathers conquered.... The issuing power should be taken from the banks and restored to the people, to whom it properly belongs." -- Thomas Jefferson in the debate over the Re-charter of the Bank Bill (1809)
 
"I believe that banking institutions are more dangerous to our liberties than standing armies." -- Thomas Jefferson
 
"... The modern theory of the perpetuation of debt has drenched the earth with blood, and crushed its inhabitants under burdens ever accumulating." -- Thomas Jefferson
 
 
 
            The Supremacy Clause
 
Article VI, Clause 2: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."
 
Perhaps one of the most misunderstood and misapplied clauses of the U.S. Constitution, the Supremacy Clause has been used in line with the concept of Federal Supremacy. Federal Supremacy is a concept our first Chief Justice, John Jay, believed in. During his stint on the Supreme Court Jay worked feverously to establish broader powers for the courts, and to transform the federal government into a national government. He quit the Supreme Court after failing, pursuing an opportunity to be governor of New York.
 
Chief Justice John Marshall spent his 36 years on the Supreme Court attempting to establish, and expand federal supremacy, and largely succeeded. Marshall is embraced by statists as the one to develop federal supremacy in his opinion of the Mcculloch v. Maryland case in 1819 where the Court invalidated a Maryland law that taxed all banks in the State, including a branch of Alexander Hamilton's creation, the national Bank of the United States. Marshall held that although none of the enumerated powers of Congress explicitly authorized the incorporation of the national bank, the Necessary and Proper Clause provided the basis for Congress's action. Marshall concluded that "the government of the Union, though limited in its power, is supreme within its sphere of action."
 
During the 1930s, under Franklin Delano Roosevelt, the Court invoked the Supremacy Clause to give the federal government broader national power. The federal government cannot involuntarily be subjected to the laws of any state, they proclaimed, and is therefore supreme in all laws and actions.
 
The legally, and commonly, accepted definition, as a result of the courts and the persistence of, regarding the Supremacy Clause, is that all federal laws supersede all State laws.
 
The commonly understood definition of the Supremacy Clause is in error. To understand the true meaning of this clause, one must pay close attention to the language used.
 
If the federal government has a law on the books, and the law was made under the authorities granted by the States in the United States Constitution, and a state, or city, passes a law that contradicts that constitutional federal law, the federal government's law is supreme based on The Supremacy Clause. However, if the federal law is unconstitutional because it was made outside constitutional authority, it is an illegal law, and therefore is not supreme over similar State laws.
 
An example of the federal government acting upon the assumption that all federal law is supreme over State law is when the medical marijuana laws emerged in California in 1996 after the passage of Proposition 215. Though I do not necessarily agree with the legalization of the casual recreational use of marijuana, and believe "weed" should be heavily regulated like any other pharmaceutical drug if being used for medicinal purposes, the actual constitutional legality of the issue illustrates my point quite well.
 
California's law legalizing marijuana for medicinal purposes was contrary to all federal law that identified marijuana as being illegal in all applications. Using the commonly accepted authority of the federal government based on their definition of the Supremacy Clause, federal agents began raiding and shutting down medical marijuana labs in California. However, there is no place in the U.S. Constitution that gives the federal government the authority to regulate drugs, nor has there been an amendment passed to grant that authority to the federal government. From a constitutional point of view, then, the raids on medical Marijuana labs in California were unconstitutional actions by the federal government.
 
The Supremacy Clause applies only to federal laws that are constitutionally authorized. Therefore, federal drug laws are unconstitutional. As a result, California's medical marijuana laws are constitutional because they are not contrary to any constitutionally authorized federal laws.
 
Language plays an important part in the Constitution, and The Supremacy Clause is no different. The clause indicates that State laws cannot be contrary to constitutionally authorized federal laws. For example, Article I, Section 8, Clause 4 states that it is the job of the U.S. Congress to establish an uniform rule of naturalization. The word "uniform" means that the rules for naturalization must apply to all immigrants, and to all states, in the same way. If a state was to then pass a law that granted citizenship through the naturalization process in a way not consistent with federal law, the State would be guilty of violating the Supremacy Clause.
 
In the case of Arizona's immigration law, S.B. 1070 in 2010, the argument by the federal government that Arizona's law is contrary to federal law was an erroneous argument. Assuming, for just a moment, that the federal government has complete authority over immigration (which is not true since immigration is one of those issues in which the federal government and the States have concurrent powers), Arizona's law would then need to be identical to federal law. And in most ways, the Arizona law was similar to federal immigration law. The only difference was that Arizona's law disallowed racial profiling.
 
The federal government's argument when the United States Department of Justice filed a lawsuit against the state of Arizona in the U.S. District Court for the District of Arizona on July 6, 2010, was that the law must be declared invalid because it interfered with the immigration regulations exclusively vested in the federal government. Therefore, a State cannot enforce immigrations laws if the federal government decides not to, nor can a State pass law regarding an issue that the federal government has sole authority over. In this way, Arizona was considered to be acting "contrary" to the federal government.
 
Article I, Section 9, Clause 1, and Article I, Section 10 in the final clause, provides that States hold concurrent authorities regarding immigration, and securing the border. Therefore, the federal government's argument that they held sole authority over the issue was in error.
 
Eric Holder, when he filed the lawsuit in the U.S. District Court also acted unconstitutionally because in Article III, Section 2, the Constitution states that all cases "in which a State shall be Party, the supreme Court shall have original Jurisdiction." Since the case was the United States v. Arizona, the case, constitutionally, could only be filed with the United States Supreme Court.
 
The language in Article VI, Clause 2 reveals clearly that only laws made under the authorities granted to the federal government have supremacy. Article VI, Clause 2 reads, "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."
 
The clause establishes three things as being potentially the supreme law of the land. First, "This Constitution." Second, "Laws of the United States which shall be made in pursuance thereof." And Third, all Treaties made, or which shall be made."
 
"This Constitution" is the supreme law of the land. Understanding that first part of the clause is easy.
 
The second one has a condition attached to it. "Laws of the United States which shall be made in pursuance thereof."
 
In pursuance thereof? In pursuance of what?
 
Of "This Constitution."
 
Therefore, if a law is not made "in pursuance" of "This Constitution," then the law is an illegal law, and cannot possibly be the supreme law of the land. Unconstitutional laws are not the supreme law of the land, which reveals that all federal laws are not the supreme law of the land. Illegal law made outside the authorities granted by the Constitution of the United States cannot legally be the supreme law of the land.
 
After "pursuance thereof" in the clause, a semicolon is used. The semicolon separates "Treaties" from the "Laws of the United States." The separation by the semicolon means that "in pursuance thereof" applies to "Laws of the United States," but not to "Treaties." This means that treaties not in line with the principles of the Constitution can be accepted as the supreme law of the land.
 
The concern over treaties was not great, because the Senate was the voice of the States, and the States are the final arbiters of the Constitution. If the States are willing to ratify what would be considered an unconstitutional treaty, they must be given the chance. Therefore, "in pursuance thereof" does not apply to treaties.
 
The importance of this part of the Supremacy Clause revealed itself during Jefferson's Louisiana Purchase in 1803. As discussed in Article I, Section 8, Clause 17, the federal government does not have the authority to buy or own land unless it is purchased from a State, by the consent of the State legislature, for the purpose of needful buildings. The details of the Louisiana Purchase did not fit Article I, Section 8, Clause 17's requirement. To get around that, President Thomas Jefferson negotiated the Louisiana Purchase with France through treaties. Since treaties were ratified by the States through the Senate, it kept the States involved in the process, and made the purchase the law of the land even though technically it was not constitutional.
 
            Oath or Affirmation to Support This Constitution
 
Article VI, Clause 3 indicates that all elected officials are bound to support the Constitution by oath or affirmation. An oath is to God, and an affirmation is not a sworn oath to God. This was offered because the Founding Fathers recognized that not everyone believed in God, and that there were some religions that believed swearing to God to be a sin.
 
The final clause of Article VI also states that there shall be no religious test to serve. This was not the case inside the States. This was a provision only required of the federal government. At the State level, established churches, and religious tests were the norm. The Danbury Baptists in Connecticut appealed to President Jefferson because they felt they were being mistreated by the Puritans. The Baptists felt they were being treated like second class citizens in a State dominated by the Puritan Church. Jefferson replied that the federal government could not help them. It was a State issue.
 
Alexis de Tocqueville observed when he visited the United Sates in the 1830s that religious freedom had truly come to The States. In America, the politicians prayed, and the pastors preached politics, yet neither controlled the other. He concluded America's greatness was a result of the good in America, coining the term American Exceptionalism.
 
Terms:
Concurrent Powers - Government powers shared by the State and the federal government.
 
Exceptionalism - The condition of being exceptional or unique; the theory or belief that something, especially a nation, does not conform to a pattern or norm.
 
National Bank - In the United States, a bank chartered by the federal government authorized to issue notes that serve as currency; a bank owned and administered by the government, as in some European countries.
 
Oath - A solemn sworn declaration, or promise, to a deity (God), to fulfill a pledge.
 
Supremacy Clause - Clause in the Constitution that indicates that all federal laws, and treaties, passed under the authorities granted by the Constitution, are the Supreme Law of the Land
 
Questions for Discussion:
1. What was the common opinion by the Founding Fathers regarding a perpetual national debt?
 
2. What limitations on national debt did the Framers of the United States Constitution consider?
 
3. It is a common belief in today's society that all federal laws are supreme to all State and municipal laws. Why is this belief wrong?
 
4. How does the Supremacy Clause enable Nullification?
 
5. Why does the Constitution offer the opportunity for both oaths, and affirmations?
 
Resources:
John Taylor, New Views of the Constitution of the United States; Washington City: By Way and Gideon
(1823)
 
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
 
Philip B. Kurland and Ralph Lerner, The Founder's Constitution -
Volume Four - Article I I, Section 8, Clause 5 to Article VII; Indianapolis: Liberty Fund (1987)
 
Sam Cornell, The Other Founders: Anti-Federalism and the
Dissenting Tradition in America, 1788-1828; Chapel Hill: University of North Carolina Press (1999)
 
Copyright: Douglas V. Gibbs, 2015
 
 

Tuesday, September 17, 2019

Corona Constitution Class: Federal Authorities Concluded

Corona Constitution Class
Tuesdays, 6:00 pm
CARSTAR/ALLSTAR Collision
522 Railroad Street
Corona, CA

Constitution Class Handout
Instructor: Douglas V. Gibbs
douglasvgibbs@reagan.com

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