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Sunday, September 29, 2019

Impeachment? Bring it on!!!

Douglas V. Gibbs
Author, Speaker, Instructor, Radio Host

A liberal said to me the other day, "Trump is so unpopular, even with Republicans, he may resign before we get the chance to impeach him."

The liberal left lives in fantasyland.  The members of the GOP I know, aside from the rare never-trumpers, all support our president, and if anything, Donald Trump is more popular with the Republican Party than ever before.  Meanwhile, the anti-values antics of the Democrat Party have sent a horde of former democrats walking away from their party.  If the Democrats impeach President Trump, more democrats will walk away, and the support for our president by Republicans will increase even more.

On top of all of that, no matter what the Democrats do with impeachment, they will lose votes.

If they decide to abandon their call for impeachment they will betray their hard-left base who is demanding it.

If they do hold an impeachment vote in the House of Representatives, one of two things will happen.  Either Trump will be impeached, and the matter will then move to the Senate for trial, or he will not be impeached, and the Democrats will have egg on their face.

The vote, itself, carries a certain amount of drama.  Many of the new Democrats came to office on the backs of retiring Republicans, or voted out RHINOs.  Therefore, their districts are largely Republican, or at least right-of-center, but they were in a sense lucky to pull off the win.  In their minds, they can't vote for impeachment, because it would likely kill their reelection chances.  If they do, while it is commendable that they would be putting their leftist principles above holding their seat, it would all but solidify their defeat in the next election, ensuring that the GOP regains control of those seats, and regains control of the House.

The very fact that impeachment is even on the table, I believe, assures a Republican re-takeover of the House, anyway.

If Pelosi and her Democrat crazies pull off an impeachment vote, the process is not over, and if anything I would be excited if it got so far as moving to the U.S. Senate.

I personally don't think it'll go to the Senate, but if it does, here's what you can expect.

The Republicans control the Senate, and aside from maybe Susan Collins, or what's-her-name Murkowski, the Republicans are going to stand together in support of the president.  While in the House impeachment only needs a majority vote, conviction and removal from office by the Senate requires two-thirds of a vote.  In short, it is almost a 100% likelihood that the President will not be removed from office.

With the GOP in control of the impeachment trial in the Senate, that means they will control the narrative ... and, anything goes.  The democrats will be called to the stand and they will be set against each other, eating their own, hammered by the President's team.  Heck, I would not be surprised if the Trump Team wants an impeachment trial in the Senate.  It would, to be honest, get very ugly for the Democrats very fast.

And it would even more so lead to a landslide for the President, and the Republicans in both Houses of Congress, in next year's election.

So, Democrats, if you want impeachment, my response is, "Bring it on!  But realize, you do it at the risk of your own peril."

-- Political Pistachio Conservative News and Commentary

Saturday, September 28, 2019

Constitution Radio: Reclaiming the Republic?

Host Douglas V. Gibbs, and his crew of co-hosts (Alex Ferguson, Dennis Jackson, and Alan Meyers) returns to two hours today on KMET 1490-AM.  The radio program begins at 1:00 pm and will not finish until 3:00 pm.  If you miss the program, be sure and catch the podcast later at https://soundcloud.com/kmet-1490-am/sets/constitution-radio ...

Today's topics:

◉ Liberal Left's Obstacles:

  • Electoral College
  • American Christian
    • Destroy the Faith
    • Destroy the Family
    • Infiltrate the Church
    • Destroy God by Eliminating God from the Culture
◉ The word "Entitled" as used regarding our rights in the Declaration of Independence

◉ Killing the Voice of the States (and therefore, our dual constituency)
  • 16th Amendment
    • Direct Taxation
    • Eliminating State Voice Regarding Budget
    • Unconstitutional IRS
  • 17th Amendment
    • The Journey towards Democracy
      • Neutralizing Bicameral Congress
      • Neutralizing State Sovereignty
      • Changing State Systems Away from Republicanism
◉ Bill of Rights, Natural Rights
  • Endowed by Our Creator
  • Self-Evident
  • Unalienable
◉ Impeachment of President Donald J. Trump



Friday, September 27, 2019

What the hell am I supposed to think?

Opinion by Allan McNew

Wednesday, 9/25/19, I called the office of my Congressman, Raul Ruiz (D CA). To begin, I stated that I had an important thought for the Congressman and added it would take a while to explain the circumstances behind my opening statement and that I was embarking on a dialogue rather than a long winded, abusive tirade.

The message:

The Democrats in the House of Representatives must be banking on the notion that the American people are frickin’ stupid with the perpetual impeachment circus they’ve been putting on for the last three years.

I did some research on Jerry Nadler (D NY), Judiciary Committee Chair, active Democratic Socialists of America (DSA) member and relentless pursuer of impeachment proceedings against the President. While his name wasn’t directly connected to the RCP that I could find, there were numerous search results from his searched name pointing to the Revolutionary Communist Party in Berkeley. I found a fiery RCP manifesto dated to just shortly after Trump was elected in 2016 that obstruction and resistance of every type was to be implemented. While the RCP intended for the resistance to be conducted in the streets as they want to foment direct violent revolution rather than engage in politics of any type, that’s exactly what’s going on in the House of Representatives.

Then I found the Communist Party USA had released a statement, while not so foaming at the mouth as the RCP rant, which stated their goal of changing the government was suspended for now (italics in original statement) due to the priority of stopping Trump. There was also some discussion of their members in the Democratic Party in Congress not making their CPUSA affiliation known as it would hinder their goals.

I went into the relevant under the circumstances fact that House Speaker Nancy Pelosi, both California Senators (Harris, Feinstein) and nearly all the Democrat presidential candidates, including Bernie Sanders, are bourgeoisie who’s personal lives and business dealings don’t match their political rhetoric.

Enter House Member Ocasio-Cortez (D NY), who is also a DSA member. She was elected by about 57% of the minority of about 13% of those eligible to vote in her district. By the manner in which the DSA affiliated “Justice Democrats”ran her campaign they have an iron grip on her, for if she strays from the DSA / “Justice Democrats” script she will be dumped overboard and primaried out at the next election. She is essentially a brainless political puppet with a resume of being a bartender in a genteel restaurant and demonstrably someone who learned nothing but far left ideology at college. As someone who has few skills borne of life experience besides mastering social media, she has been appointed to the House Oversight and Reform Committee along with fellow freshmen DSA members Ayanna Pressley (D,MA) and Rashia Tlaib (D, MI), who are also “Justice Democrats” minions.

With all the restraint and respect of a spoiled rotten 16 year old rebelling against her parents, freshman Ocasio-Cortez shouldered ranking Democratic House Speaker Nancy Polosi out of her way and assumed command of the House in virtually every way short of assuming Pelosi’s title – and it flew.

Ocassio-Cortez vociferously clamors for impeaching Trump despite three years of an overly obsessive-aggressive Nadler dragging around an empty impeachment bag in spite of all his Herculean efforts employing third hand hearsay and obviously manufactured “evidence”.

So, it comes full circle: impeachment crusader Jerry Nadler, the DSA, the RCP manifesto to obstruct Trump, Congressional members of the CPUSA working within the Democratic party to stop Trump, DSA members working within the Democratic Party, hypocritical establishment Democrats, Ocasio-Cortez and her three pals maneuvered into office by DSA affiliate “Justice Democrats” in order to push the Democratic party to the extreme left, impeachment crusader Jerry Nadler.

So, what the hell am I supposed to think?

Thursday, September 26, 2019

Definition of Entitled (Now, and Then)

By Douglas V. Gibbs
Author, Speaker, Instructor, Radio Host




-- Political Pistachio' Conservative News and Commentary

Liberal Talking Points Series

Douglas V. Gibbs
Author, Speaker, Instructor, Radio Host

The liberal left speaks in sound-bytes, and the list here is the latest and most common.  So, I have written a series of posts addressing each one.  Enjoy.
-- Political Pistachio Conservative News and Commentary

Wednesday, September 25, 2019

Temecula Constitution Class: Introduction to the Bill of Rights

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

Constitution Class Handout
Instructor: Douglas V. Gibbs
 
 
 
Lesson 12
Bill of Rights: Introduction to, and Incorporation of
 
Introduction to the Bill of Rights
The Bill of Rights does not guarantee your rights, nor was it designed to allow the federal government to protect your rights. The language used in the first ten amendments is clear. The 1st Amendment begins, "Congress shall make no law..." The 2nd Amendment ends with the words, "...shall not be infringed." The 3rd Amendment begins, "No Soldier shall..." The key phrase in the 4th Amendment is "shall not be violated." The entire Bill of Rights was designed to confirm what the first seven articles had already established. The federal government was granted only certain authorities, and for the purpose of clarity, the Bill of Rights was written to reinforce the concept that the federal government has no business infringing upon the rights of the people. The federal government is not charged with protecting those rights, or guaranteeing those rights, anywhere in the Bill of Rights. The first ten amendments were written to tell the federal government, "Hands off, do not touch, thou shalt not."
 
The concept that the federal government exists to guarantee our rights, or protect our rights, emerged after the ratification of the 14th Amendment. The Civil War Amendment tasked the federal government with ensuring the newly emancipated slaves were treated fairly, and that their rights were protected - even at the State level. In an effort to capitalize on that idea, the courts got involved to ensure that the former slave States behaved. The southern States, the North was convinced, could not be trusted, and often the South confirmed the lack of confidence the Union States harbored with laws designed to get around the new restrictions placed upon them.
 
After the American Civil War, the three amendments proposed and ratified to protect the emancipated slaves were specifically designed for the purpose of ensuring the newly freed slaves were treated equally in the eyes of the law. Statism, however, seized upon the ideas planted by Congressman John Bingham, and through the courts worked to weave an intricate tapestry that would change the culture of the United States from a union of voluntary members, to a nation of states joined in an unbreakable union. The country no longer resembled the union of sovereign states it had once been, and instead became a nation held together by the statist consequences of the ravages of war.
 
The federal government telling States what they can and can't do regarding our rights opens a Pandora's Box the framers of the Constitution never intended to be breached. By allowing the federal government to dictate to the States what they can and can't do regarding rights, even with the best of intentions, the precedent is established allowing federal control. A federal government that can force a State to behave in an acceptable manner can later dictate to a State to follow a federal mandate designed to reduce your access to your rights.
 
As President Gerald Ford once wisely said, "A government big enough to give you everything you want is a government big enough to take from you everything you have."
 
A significant segment of the Founding Fathers believed the Bill of Rights to be unnecessary. The first seven articles of the U.S. Constitution were written in such a way that the concerns of the Anti-Federalists had been addressed, but they still feared that the federal government would compromise the natural rights of the citizens if a Bill of Rights was not included in the Constitution.
 
The Constitution was written in a manner that allowed the new federal government only the authorities granted to it by the Law of the Land. Regarding arms, for example, the possession of guns was never an issue granted to the federal government in the first seven articles of the U.S. Constitution, therefore the federal government had no authority to restrict guns in any way, shape, or form. The Anti-Federalists, however, did not believe the federal government would abide by the limitation of authorities placed on the United States Government, and demanded that a Bill of Rights be written. Failure to provide a Bill of Rights, indicated the Anti-Federalists, would result in a failure of those States dominated by Anti-Federalists to ratify the new Constitution.
 
The Framers of the Constitution, understanding that without the critical approval of the Anti-Federalists, the new Constitution would never be ratified, agreed to include a Bill of Rights. James Madison was asked to gather the amendments to be proposed and potentially ratified by the States, and use them to write a Bill of Rights.
 
Originally, there were a large number of amendments proposed, but the final proposal that went to the States for ratification was narrowed down to twelve amendments. Only ten were ratified. Of the remaining two, one regarding apportionment remains unratified, and the other became the Twenty-Seventh Amendment in 1992.
 
The debates over the adoption of the Constitution found the Anti-Federalists fearful that as drafted, the Constitution created a central government that may have the opportunity to become a tyranny. These fears were based on the memory of the British violation of basic civil rights before and during the American Revolution. With past British tyranny as a frame of reference, the Anti-Federalists demanded that a "bill of rights" be written that would clarify without question the immunities of individual citizens. Though the amendments of the Bill of Rights were not proposed until 1789, several state conventions during their ratification conventions ratified the Constitution with the understanding that the amendments would be offered.
 
One of the fears regarding the proposal of the Bill of Rights was that by trying to protect specific rights, it might imply that any unmentioned rights would not be protected. It was believed by many that as a result, the Bill of Rights was actually unnecessary, for in the British system of common law natural rights were not defined, nor quantified. Adding a Bill of Rights to the Constitution may actually limit the rights of the people to those listed in the Constitution. As a result of this argument, included in the Bill of Rights is the Ninth Amendment, which indicates that rights not enumerated would also be protected.
 
Another argument against the Bill of Rights is that the ten amendments muddy the waters of the Constitution, because the first seven articles were designed to grant authorities to the federal government, and if an authority is not granted, the federal government does not have that power. The Bill of Rights tells the federal government what it cannot do. This enables those who oppose the Constitution to claim that the Constitution does not only grant express powers. By focusing on the Bill of Rights, the opposition responds to constitutional challenges with the question, "Where in the Constitution does it say the federal government can't do that?" Considering the Bill of Rights was not even necessary, this provides unnecessary ammunition to those that oppose the Constitution.
Terms:
Anti-Federalists - Opposed to formation of a federal government, particularly by adoption of the Constitution of the United States.
 
Arms - Weapons, firearms; a gun that may be used for protection of property or as part of a militia.
 
Bill of Rights - The first ten amendments of the U.S. Constitution; a formal summary of those rights and liberties considered essential to a people or group of people.
 
Common Law - The part of English law that is derived from custom and judicial precedent rather than statutes, able to be changed by the whims of the governed, or their representatives.
 
Enumerated - Counted or told, number by number; reckoned or mentioned by distinct particulars.
 
Questions for Discussion:
  1. Why does the Constitution offer the opportunity for both oaths, and affirmations?
2.                                                                                                               Why did some of the Founding Fathers consider the Bill of Rights unnecessary?
3.   What did the Anti-Federalists think of the creation of the federal government? Why?
4. Why were the Founding Fathers willing to add the Bill of Rights even though they believed the
      amendments to be unnecessary?
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).
 
Philip B. Kurland and Ralph Lerner, The Founder's Constitution -
Volume Five - Amendments 1-12; Indianapolis: Liberty Fund (1987)
 
The Charters of Freedom: The Bill of Rights, National Archives and
Records Administration: http://archives.gov/exhibits/charters/bill_of_rights.html
 
Incorporation of the Bill of Rights
The Bill of Rights was originally intended to be applied only to the federal government. Even the most ardent opponent to the originalist view of the Constitution concedes that it is commonly understood that originally the Bill of Rights was not intended to apply to the States whatsoever. The text of the U.S. Constitution does not necessarily clearly exhibit that the Bill of Rights was only intended to apply to the federal government, but a deep study of the text of the first ten amendments, and the various writings of the Founding Fathers on the topic, reveals without a doubt that the Bill of Rights was indeed originally intended to only apply to the federal government.
 
Though even the most ardent opponent of the United States Constitution will admit that the Bill of Rights was originally intended to only apply to the federal government, the rule of inapplicability to the States was abandoned by statists after 1868, when it became argued that the 14th Amendment changed this rule, and served to extend most of the Bill of Rights to the States.
 
The section of the 14th Amendment that has been interpreted to extend the Bill of Rights to the States comes from the second sentence of Section 1 of the 14th Amendment, which reads:
 
"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
 
Through a series of court rulings, the Supreme Court has changed the Constitution by applying parts of the Bill of Rights to the States. The process over the time period since the ratification of the 14th Amendment which works to apply the Bill of Rights to the States through court rulings and written opinions is called "The Incorporation of the Bill of Rights."
 
The Bill of Rights was originally not meant to be a guarantee of individual freedoms at all, but a limitation of federal authority against our God given rights. In other words, the Bill of Rights was not written for the people, but for the federal government as a means of telling the federal government what it cannot do in regards to our unalienable rights.
 
Why not apply these amendments to the States as well?
 
The States already had a Bill of Rights in their own State Constitutions (and those that did not have a constitution yet, did include a Bill of Rights later). The Founding Fathers were confident that the people of the States could control their own State officials, and would be involved in their local governments. The people did not fear their local governments acting in a tyrannical manner similar to the potential of a centralized government system. Their fears were of the new and distant central government.
 
Originally, parts of the first amendments proposed by James Madison did in fact address the States, seeking to limit the State governments with provisions such as, "No state shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases." The parts of the Bill of Rights that sought to be applied to the powers of the States, however, were not approved by Congress, and therefore were not a part of the proposed amendments to the States.
 
The Bill of Rights was understood, at its ratification, to be a bar on the actions of the federal government. Prior to the incorporation of the Bill of Rights to the States by the courts as based on their interpretation of the 14th Amendment, the Bill of Rights did not apply to the States, and was never intended to be fully applied to the States.
The argument used, despite original intent, that the Bill of Rights must also apply to the States is based more on philosophy, than historical evidence. One of the philosophical standpoints used is that if the specific rights given in the Bill of Rights are based on the more general rights to life, liberty, and property which in turn are considered to be God-given and unalienable, then State governments do not have the authority to infringe on those rights any more than can the federal government.
 
The argument, however, simply suggests that the Bill of Rights ought to apply at the State level, not that it originally did.
 
If the Bill of Rights originally only applied to the Federal Government, and over time has changed to be something that was applicable on the State level through court decisions, the reality is that the Constitution itself has never allowed the Bill of Rights to be applied to the States. The change was done by judicial means, meaning that the Constitution has been changed by judicial activism. The problem, however, is that according to the Constitution, the only way to change the Constitution is through an amendment process. Therefore, the incorporation of the Bill of Rights to the States occurred unconstitutionally.
 
This returns us to the argument that the 14th Amendment is the source and authority of the incorporation of the Bill of Rights to the States. The Supreme Court's first ruling regarding the scope of the 14th Amendment, and if the amendment enables the Bill of Rights to be applied to the States, was rendered in 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 to be the authority they needed to enforce The Bill of Rights against the States. Subsequent cases also used the 14th Amendment as an authority for incorporation. During the early twentieth century a number of court cases, using the arguments referencing the 14th Amendment, began selectively incorporating some of the specific provisions of the Bill of Rights while rejecting the incorporation of others.
 
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.
 
Congressman John A. Bingham of Ohio was the primary author of the first section of the 14th amendment, and it was his personal intention the Bill of Rights be applied to the States as well. His argument was that it was necessary in order to secure the civil rights of the newly appointed slaves. However, most of the representatives during the five months of debate on the floor of Congress argued against incorporating the Bill of Rights to the States, and so when the amendment was agreed upon for proposal, the majority of those involved intended for the 14th Amendment to not influence how the Bill of Rights was applied. In the beginning, the courts ruled that the Amendment did not extend the Bill of Rights to the States. It was after the realization that Black Codes were emerging in the South that the courts decided for the purpose of protecting the civil rights of the emancipated slaves, they would begin to apply parts of the Bill of Rights to the States.
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.
 
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.
 
Judicial Activism - When judges violate the Separation of Powers through their rulings; when a judge rules legislatively by modifying or striking down a law using the unconstitutional authority of judicial review.
 
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.
 
Originalist view of the Constitution - View that the Constitution as written should be interpreted in a manner consistent with what was meant by those who drafted and         ratified it.
 
Questions for Discussion:
 
1.   Why is the originalist view of the Constitution so important?
 
2.   How have Statists changed the Constitution through the courts over the last two hundred years?
 
3.   What is the only legal way to change the Constitution?
 
4.   Why is the Bill of Rights not a guarantee of individual freedoms?
 
5.   From where do our rights come from?
 
6.   How did the Black Codes play a part in the incorporation of the Bill of Rights?
 
Resources:
 
14th Amendment to the U.S. Constitution: Civil Rights (1868), Our
Documents dot gov: http://www.ourdocuments.gov/doc.php?flash=true&doc=43
 
Intent of the Fourteenth Amendment was to Protect All Rights (argument
supporting incorporation of the Bill of Rights to the States), Constitution dot org (2000): http://www.constitution.org/col/intent_14th.htm
 
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).
 
Philip B. Kurland and Ralph Lerner, The Founder's Constitution -
Volume Five - Amendments 1-12; Indianapolis: Liberty Fund (1987)
 
Richard L. Aynes, On Misreading John Bingham and the Fourteenth
Amendment (1993): http://www.constitution.org/lrev/aynes_14th.htm
 
The Fourteenth Amendment and Incorporation, The Tenth Amendment
Center (2010): http://newyork.tenthamendmentcenter.com/2010/05/the-14th-amendment-and-incorporation/
 
To Whom Does The Bill Of Rights Apply?, Lew Rockwell dot com
(2005): http://www.lewrockwell.com/browne/browne27.html
 
What is the Bill of Rights?, About dot com Civil Liberties (argument
supporting incorporation of Bill of Rights to the States: http://civilliberty.about.com/od/historyprofiles/f/what_is_bill.htm
Copyright 2015 Douglas V. Gibbs

Kindness is Everything, Until Reality Sets In

By Douglas V. Gibbs
Author, Speaker, Instructor, Radio Host

The Golden Rule is from the Bible.  Do unto others as you would have them do unto you.  We are instructed to be kind, fair, reasonable, and when necessary, to turn the other cheek.

The problem is, there is this nasty thing called human nature.  We all fall short of the Glory of God.  There is none righteous, no not one.

Therefore, kindness, as much as I appreciate it, is not everything.  The fact is, while I am a good-natured person, and wish nothing but the best for everyone, and play by the rules the best I can, the world is full of jerks.

The jerks of the world celebrate over our tears.  They relish life when they make us angry or frustrated.  And some of them are not happy living in peaceful coexistence.  We can try to love them all we want, but in the end they are happiest when they can control, dominate, and silence anyone who doesn't like it.

We've all experienced those people in our lives.  They foment anger when we do nothing but try to make peace with them.  They do diabolical things, and reject any sign of acceptance.  They are angry, deceitful, liars, manipulators, and all of the other arrogant and narcissistic things we can't stand.  And, they are not necessarily that way because they didn't get a fair shake as a child, or someone once stole their lollipop, as Hollywood may wish to convince us.  Some people are just evil.

That said, I do not believe there is anybody who is unreachable.  God's Grace can crack even the toughest shell.  But, sometimes God's Grace is not in the cards.  Sometimes all of the kindness in the world can't stop whatever evil is going on in a person's head.

While kindness is a wonderful thing, peace through strength and might is sometimes necessary.  Bullies sometimes can't be talked to ... sometimes, they need to be beaten up.  And in some cases, they need to be removed from society, and locked away.

I believe God gave us love, and it is our responsibility to spread it generously, but that does not mean we shouldn't carry a firearm for protection, or recognize that sometimes, just sometimes, evil will try to have its way despite all of our good intentions.

I believe people should be judged by their content of character, but when evil rears its head, we must be willing and ready to recognize it for what it is, and stop it with force should it try to invade our lands, infiltrate our culture, or dominate our way of life.  That is simply the reality of things, and to think otherwise is to reside in a land of fantasy and unrealistic expectations.

Read the other articles in this series:
-- Political Pistachio Conservative News and Commentary

Tuesday, September 24, 2019

Legislative Prohibitions, Corona Constitution Class

Tuesdays, 6:00 pm
CARSTAR/AllStar Collision
522 Railroad Street
Corona, CA


Constitution Class Handout
Instructor: Douglas V. Gibbs



Lesson 04

Legislative Prohibitions

Prohibitions to the Federal Government, and the States


-  Prohibitions to the Federal Government

The Slave Trade and Immigration

The common misconception is that Article I, Section 9, Clause 1 is obsolete.  The abolition of slavery in the United States made the clause obsolete, we are told.  In reality, only a part of the clause is not longer in force.  The clause addressed the Atlantic slave trade, and the migration of people into the United States. Slavery was abolished by Amendment 13 so the part of Article I, Section 9, Clause 1 that addresses slavery is obsolete. But is the part about migration still in force?

One could say that the “migration” portion of the clause is still in force because the 13th Amendment only addresses slavery. The standard belief among historians is that the entire clause is no longer in force.

The ramifications of this clause may indeed reach into today's issue regarding illegal immigration.

Why would the Founding Fathers include a mention of migration in a clause that is essentially geared toward the abolition of the importation of slaves?

The word “importation” in this clause applies wholly to slaves.

The word, migration, then, would seem to apply wholly to non-slaves.

The intention was that since the Constitution, as the contract that created our federal government, is a document that grants powers to the federal government, and that all authorities not expressly delegated, are reserved to the States, it was expected that immigration would remain as an issue that would be addressed by the States.

Other national governments prohibited migration as they saw fit, so the Founding Fathers determined that the new United States Government must have that same authority.

According to the clause, however, from the year 1808 Congress would possess the power to stop the importation of slaves, as well as the migration of people the Congress felt must be prohibited from entering this country as immigrants, through the Congress’ power of legislation.

The Constitution was written specifically in regards to the federal government.  All powers originally belonged to the States.  Some of those authorities were granted to the federal government for the purpose of protecting and preserving the union.  Therefore, all authorities regarding immigration originally belonged to the States, and before 1808 the States had sole authority regarding all immigration issues. 

In Article I, Section 9, the federal government was given the opportunity to regulate immigration, but not until 1808.  The reason for delaying the power to prevent migration were, to be simply put, to give the States twenty years to attract as many people as possible without Congressional regulatory consideration. After all, at this time in history we had immense and almost immeasurable territory, peopled by not more than two and a half million inhabitants. Therefore, migration was encouraged, especially of the kind of people that would bring a benefit to the new nation. The immigration of able, skilful, and industrious Europeans was encouraged.

Note that this clause gives the federal government the authority to prohibit certain persons from migrating into the United States, but it does not give the federal government the authority to dictate to the States which persons the States must admit inside their borders.

Habeas Corpus

Article I, Section 9, Clause 2 states that “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”

Habeas corpus is a legal term that means quite literally in Latin: "you may have the body." In legal terms, Habeas corpus is a writ that releases a prisoner from unlawful detention. Habeas corpus comes from British common law, and has historically served as an important legal instrument safeguarding individual freedom against arbitrary state action that includes detention without the due process of law.

A writ of habeas corpus is a summons with the force of a court order that demands a prisoner be taken before the court, and that the custodian present proof of authority, allowing the court to determine if the custodian has lawful authority to detain the person. If the custodian does not have authority to detain the prisoner, then the prisoner must be released from custody.

Habeas corpus is designed to protect citizens against any detention that is forbidden by law. The U.S. Constitution specifically includes the habeas procedure, and instructs the Congress not to suspend such unless the detainment is the result of a “Rebellion or Invasion,” adding that “the public Safety may require it.”

Normally, habeas corpus proceedings accompany questions of jurisdiction and authorities of the court that sentenced a defendant. The suspension of habeas corpus has recently become an issue regarding the detainment of terrorists, but one must ask if the public safety requires the suspension of habeas corpus in the case of terrorists, as prescribed in the Constitution. Secondly, one must consider that the Constitution applies to American citizens, so the question on whether or not Article I, Section 9, Clause 2 applies to captured combatants seems to be a moot point since it is obvious that the detained are not American Citizens, and therefore are not protected by Constitutional protections.  Also, remember that Congress has the sole authority to make rules regarding captures on land and water as per Article I, Section 8, Clause 11.

Bills of Attainder

A Bill of Attainder is when the legislature declares the guilt of a person or group of persons, and punishes them without due process (the benefit of a trial).

In Britain, bills of attainder were used as a convenient way for the King to convict subjects of crimes and confiscate their property without the bother of a trial, and without the need for a conviction or indeed any evidence at all. Such actions were seen as tyrannical because often this power was used against political enemies, and the Founding Fathers did not wish to give the new federal government those same kinds of powers. Some states, prior to the Constitution, did use attainders against British loyalists, but the practice all but disappeared after the Constitution so specifically forbid the use of attainders by the U.S. Congress, and the States.

Prohibiting the use of bills of attainder serves a number of purposes. One purpose is that by disallowing the bills of attainder the separation of powers is reinforced. By disallowing bills of attainder, it literally forbids the legislature from performing a judicial function. Another purpose is in regard to the protection of the concept of due process, which was later reinforced by the Fifth Amendment to the Constitution.

The true danger of a bill of attainder is that such a legislative act inflicts punishment without a judicial trial, and takes away the life, liberty or property of the target.

Ex Post Facto law

Ex post facto Law is literally retroactive law, or a law that retroactively changes the legal consequences (or status) of actions committed or relationships that existed prior to the enactment of the law. Ex post facto law could criminalize actions that were legal when committed, or in the case of amnesty laws, decriminalize certain acts or alleviate possible punishments. Generally speaking, ex post facto laws are seen as a violation of the rule of law as it applies in a free and democratic society. Ex post facto laws are expressly forbidden by the United States Constitution.

Direct Taxation

The U.S. Constitution originally forbade direct taxation upon the people by the federal government.  Taxation of the people by the federal government could only be laid in relation to population.  When the idea for the income tax came to fruition, an amendment (16th) had to be passed to allow for the direct taxation of the people without dependence upon the enumeration of the population.

Article I, Section 9, Clause 4 states that in addition to direct taxation, the federal government was forbidden from using Capitation.  Capitation is a head tax.  A Poll Tax is a kind of head tax.  In the context of the period, any tax that singles out groups both directly and indirectly regardless of possession of lands or personal property is Capitation. Since Article I, Section 9 is a prohibitory section, the specific call by the Founding Fathers in that clause was that there shall be No Capitation, which included No Poll Tax.

In early New England, in keeping with traditions from the homeland, capitation (caput, meaning head), or poll taxes, were common. These taxes were levied as a way to manipulate the people for the “good of the government.”

Alexander Hamilton, though condemning capitation taxes in his Federalist Papers writings, was in favor of “head taxes” for emergency revenue reasons. He felt that since sources for revenue were so few, if the government needed to expand for any reason, the ability to lay head taxes, or direct taxation, needed to be an option. However, most of the Founding Fathers disagreed, not only because of their belief that taxation must be indirect and small, but also because of their opinion that the federal government must remain limited to the few authorities granted to it by the U.S. Constitution.

Article I, Section 9, Clause 4 forbids Congress to lay a tax upon individuals except uniformly, and in proportion to the census provided for in Article I, Section 2, Clause 3, where this subject is first brought up.  In other words, direct taxation was forbidden.  What the federal government did was tax the States, based on proportion to the census, or enumeration.  The States then taxed the people in order to pay the tax to the federal government.  The method of taxation by the States was left up to each individual State.  The federal government, in this way, used indirect taxation to tax the people.

As we have learned, the U.S. Constitution is not designed to necessarily tell the federal government what it can't do as much as it is designed to tell the federal government what few authorities it has. But the Founders felt this to be so important that in addition to not giving direct taxation to the Federal Government as an authority, they felt they must also spell it out that the Federal Government cannot tax in this manner in any form. This clause restricts the Congress a lot more because it is prohibitive. Article 1, Section 8 provides a list of "enumerated powers," but knowing that politicians would bend and twist meanings to gain more power, Article 1, Section 9 was designed to spell out some very specific things the Congress is prohibited from doing (such as direct taxation and capitation taxes).

Preference in Commerce

Article I, Section 9, Clause 6 states that “No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.”

This proposal was placed before the Constitutional Convention by the delegates from Maryland, their fear being that congressional legislation might prefer Chesapeake Bay ports of Virginia to those of their State. Under the Articles of Confederation, each State was free to impose duties and make regulations to the disadvantage of others, and it was desired that equality in commerce be maintained in the future. This also gives us a clue to the intentions of the Commerce Clause in Article I, Section 8. The Founding Fathers did not wish to give the Federal Government control over commerce, only the ability to ensure that commerce was maintained in an equitable manner in regards to the several States.

U.S. Treasury

Article I, Section 9, Clause 7 reads: “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.”

This clause was inspired by the lessons learned in regards to merry old England. The Founding Fathers did not believe it should be in the power of the Executive alone, or of the legislature alone, to raise or spend the money at will. Article I, Section 7, Clause 1 requires that all bills for raising money must originate in the House of Representatives; but they must then pass the Senate and be signed by the President. In 1842 Congress began to make appropriations by joint resolution; but as that also must be approved by both Houses, and signed by the President, there is no real difference. Also, in the interest of transparency to the people, the records of all monetary transactions both of receipts and expenditures must be made available for public scrutiny.

Divided Allegiance

Article I, Section 9, Clause 8 reads: “No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”

The Founding Fathers did not believe there should be any foreign influences in the affairs of our government.

This provision was taken from a provision in the first section of Article VI of the Articles of Confederation. It permitted persons holding office under a State to accept, with the consent of Congress, the objectionable gifts or distinctions; but the constitutions of at least two of the States at that time forbade them altogether. This republic, being a nation born as a result of the tyranny of a monarchy, should not grant titles of nobility, that much was easily understood. Nobility betrayed the trust and honor of the people through the use of prestige and favoritism. This was the kind of government that did not protect the liberties of the people.

Jefferson, as President, accepted from Alexander I of Russia a bust of that Emperor, which he said would be "one of the most valued ornaments of the retreat I am preparing for myself at my native home." He said that he had laid it down as a law of his official conduct not to accept anything but books, pamphlets, or other things of minor value; but his "particular esteem" from the Emperor "places his image in my mind above the scope of the law." However, without the consent of Congress, who was the final determining factor, he could not have accepted that gift.

In 1810 Congress proposed an amendment, the original Thirteenth amendment (some would call it the lost 13th Amendment because some records showed it was ratified, then suddenly disappeared - as explained below), to add a heavy penalty to this clause by this wording:

"If any citizen of the United States shall accept, claim, receive or retain any title of nobility or honor, or shall, without the consent of Congress, accept and retain any present, pension, office or emolument of any kind whatever, from any emperor, king, prince or foreign power, such person shall cease to be a citizen of the United States, and shall be incapable of holding office of trust or profit under them, or either of them."

The people were told that the proposed amendment lacked the necessary ratifying votes. Ongoing research has shown that the proposed amendment was indeed properly ratified, the State Department WAS notified, and the amendment was on the books and records of the various States until at least 1876. From 1810 to 1812, twelve states ratified this amendment. The War of 1812 destroyed the library of Congress and these documents were thought destroyed, but in 1994 it was discovered they still exist after a chance discovery in Maine in 1983 made historians aware of the existence of the original 13th Amendment.

Terms:

Indirect Taxation: An indirect tax is contrasted with a direct tax which is collected directly by government from the people.  An indirect tax, for example, may increase the price of a good so that consumers are actually paying the tax by paying more for the products.  Another example of indirect taxation is for one entity to tax another entity, and then the second entity taxing the people to recoup the taxes it paid.

Joint Resolution: A joint resolution is a legislative measure requiring approval by the Senate and the House and then is presented to the President for approval or disapproval.  There is generally no legal difference between a joint resolution and a bill.  Laws enacted by virtue of a joint resolution are not distinguished from laws enacted by a bill. Constitutional amendments are passed by joint resolutions, which are instead presented to the States for ratification.  Resolutions are often temporary in nature.

Questions for Discussion:

1.  How was immigration regarded by the Founding Fathers?

2.  Why is Habeas Corpus so important?

3.  If the Founding Fathers disagreed with divided allegiance, what would they think of dual citizenship?

Resources:

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

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

The Original 13th Article of Amendment; American Patriot Friend’s Network:
http://www.apfn.org/apfn/13th.htm Thomas J. DiLorenzo, Hamilton's Curse; New York: Three Rivers Press (2008).

-  Prohibitions to the States

The articles in the U.S. Constitution all apply to the federal government unless otherwise noted.  Article I, Section 10, notes otherwise.  Each clause begins with the words “No State shall,” making Article I, Section 10 prohibitive to the States.

Article I, Section 10, Clause 1 begins by disallowing the States to enter into any treaty, alliance, or Confederation.  The goal was to keep the union intact, have all dealings with foreign governments go through the federal government, and to ensure there was no divided loyalties among the States.  Treaties and alliances are external issues.

The disallowance of the States entering into a confederation was the argument used against the Confederacy during the American Civil War.  President Lincoln considered the southern states seceding and joining into a confederation to be unlawful, partly due to this clause in the Constitution.  However, by seceding, the States no longer fell under the jurisdiction of the Constitution, making the Confederacy a legal arrangement.

No State could grant letters of Marque and Reprisal, or coin money.  These authorities were granted to the federal government in Article I, Section 8.  States were not allowed to coin money so that they would not use currency as a means to gain an unfair advantage over each other in relation to interstate commerce.

Article I, Section 10 prohibits the States from emitting bills of credit.  Bills of credit take two forms.  Bills of credit are receipts for currency, such as a treasury note, and bills of credit can be items of credit such as bonds.  What this means is that the States could not issue paper money, nor could States issue instruments of debt.  In other words, the States were not allowed to borrow money.  Today, all but two States of the union are in debt.  The State deficits are in violation of the U.S. Constitution.

The States were also disallowed from passing bills of attainder, ex post facto law, or passing any law that would impair the obligation of contracts.  The States, as the federal government, could not issue any title of Nobility.  Ex post facto law has become a large concern in recent politics.  Ex post facto law is retroactive law.  By disallowing the passage of ex post facto law, the States (just like the federal government) cannot constitutionally pass laws retroactively.  A gun legal at the time of purchase cannot be made retroactively illegal.  Immigrants who entered the State illegally cannot be made retroactively legal.  A tax cannot be retroactively imposed, creating a sudden large balance of tax due.

States are allowed to tax imports or exports, but only with the consent of Congress.  Because States are tasked with having their own inspection laws, any costs necessary for executing those inspection laws may be recouped through imposts or Duties without the consent of Congress.

“The net produce of all duties and imposts, laid by any State on imports or exports, shall be for the use of the Treasury of the United States.”  In other words, the States cannot over tax imports and exports.  They are only to charge taxes necessary to cover their costs, such as “executing inspection laws.”  Any net produce, or what would be considered “profit” in the private sector, goes to the U.S. Treasury.  All of the States inspection laws, or other laws regarding imports and exports, are also subject to revision and control by the Congress.

Having a military is also forbidden to the States in time of peace, except with the consent of Congress.  However, if a State is invaded, or the State feels they are in imminent danger, they are allowed to form a military.  Currently, 23 States have State Defense Forces, or “State Militias.”  In recent years, State Defense Forces have proven vital to homeland security and emergency response efforts.



Questions for Discussion:

1.  What does the various prohibitions to the States have in common?

2.  How do the prohibitions to the States relate to concepts like the Tenth Amendment?

Resources:

21st-Century Militia: State Defense Forces and Homeland Security, Heritage Foundation: http://www.heritage.org/Research/Reports/2010/10/The-21st-Century-Militia-State-Defense-Forces-and-Homeland-Security

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

UNITED STATES v. COMSTOCK (No. 08-1224), Clarence Thomas Dissenting Opinion (State Sovereignty): http://www.law.cornell.edu/supct/html/08-1224.ZD.html (2010)


Copyright: Douglas V. Gibbs, 2015