Monday, August 31, 2015

Rule of Law

By Douglas V. Gibbs

The Rule of Law is defined as “the restriction of the arbitrary exercise of power by subordinating it to well-defined and established laws.” In the Declaration of Independence, the Rule of Law is referred to as being “The Laws of Nature and of Nature’s God.” The principles of the American System find much of their foundation in the writings of John Locke, an English political philosopher during the 1600s, who expressed a view that government is obligated to serve the people, primarily by protecting life, liberty and property. In order for the government to be restrained enough to serve the people, the system would need to be representative, and subject to a series of checks and balances. Locke’s preference was that the law, the standard on which the government system in question would need to be subordinated to, was written in the form of a constitution, and for that constitution to be guided by Divine Providence, and serve as the Law of the Land.

According to John Locke, the Rule of Law is inherent, making our rights God-given, and self-evident. The principles that stem from the laws of nature and of nature’s God serve as the parameters of law, be they the authorities granted to government, or the restrictions necessary to restrain the greed for power by tyrants. Without government there is anarchy, a condition that always transitions into a tyrannical oligarchy. When there is too much government, there is too much political oppression, which also leads to a tyrannical oligarchy.

As the Founding Fathers were establishing the government in the former English Colonies, they realized that the government they agreed upon during the Revolutionary War was too weak. The central government had no power under the Articles of Confederation, and the States naturally held all of the power. Historically, central governments concentrate all of the power at the top, forming a ruling elite that always became tyrannical and rules from the top down. What the founders were seeking was a system that located a balanced center, where a central government was formed, but restrained by the chains of the Rule of Law, as recognized by the people, and maintained through their States.

A consolidated national government was preferred by some of the men of early America, because they doubted the wisdom of establishing a representative government that gave too much power to the people. Democracies, after all, always committed suicide. A Democracy, which puts all power into the hands of the people, always results in mob-rule, and ultimately, a tyrannical oligarchy.

A federal system was preferred by the majority of the delegates in attendance at the Constitutional Convention in 1787. The likelihood of the happiness and prosperity of the United States would be greater under a federal system, the supporters of federalism contended. The need was to “form a more perfect union,” while protecting, preserving, and promoting the individuality of the various States.

The Articles of Confederation was a limited association. A national government, it was feared, would establish a supreme power that would eventually discard the Rule of Law, and instead resort to ruling in accordance to the rule of man. Under the rule of man, the laws of Nature’s God would be in jeopardy, changing often based on the fickled whims of men. Instead of the law existing as a strict standard, the law would be considered as being living and breathing, and able to be changed by the opinions of important politicians, or powerful judges.

The Rule of Law, as applied through a federal system, would serve as the First Principle of a free and just government. John Adams explained the opinion of the Founding Fathers regarding the Rule of Law when he wrote that good government and the very definition of a republic “is an empire of laws.” By requiring the leaders to enact and publish the law, and to adhere to the same law that applies to each citizen, the Rule of Law acts as a potent barrier against tyrannical and arbitrary government.

When a society exists under the Rule of Law, the system requires that the same law governs all citizens. Samuel Adams observed that the Rule of Law means that “There shall be one rule of Justice for the rich and the poor; for the favorite of the Court, and the Countryman at the Plough.”

By requiring both the government and the people to adhere to the law, the Rule of Law serves as the foundational First Principle for protecting our liberty.

The Anti-federalists argued that creating a federal government opened up the opportunity for tyranny. Those that defended the Constitution through speeches and essays (like the Federalist Papers) made the case that though a federal government could potentially lead to a tyrannical system, the complete lack of a federal government was an even more dangerous proposition. If the States had not united against the British Empire, the Revolutionary War would never have been won. As a nation, without a central government wielding enough power to field an army, or tax in order to pay for that army, the new country would not long survive. The Articles of Confederation proved to be too weak in the face of Shays’ Rebellion.

For the external issues, such as common defense, the new country of united States required a lion, and the Articles of Confederation gave the thirteen States a lamb. However, the problem with lions is that if you let them, they will eat you. The predicament created a puzzle dating back to the beginning of time. How can a free people establish a central government as strong as a lion, yet restrain it in such a way that it does not turn against the populous?

The former colonies were free and independent States. The individual-centric nature of State Sovereignty is the source of our freedom, and must be a part of the foundation of the new government. The concepts of liberty provided for in the Declaration of Independence were obligatory, as far as the founders were concerned, and the solid foundation of a government that protects the individual sovereignty of the States, and the citizens, must be the Rule of Law.

The concept of an individual-centric society was inherited by the Americans, based on a Saxon system of individualism based on land ownership. The Saxons in England considered themselves to be a commonwealth of freemen who existed in liberty under the auspices of the Rule of Law as defined by Nature’s God. Leadership was required to make their decisions by the consent of the governed, and the laws by which the people were governed were considered to be natural laws provided by divine dispensation.

Over time, the power became concentrated in the monarchy. The English believed power to be temporarily granted, and since nobody was above the law, the people had the right to remove rulers from their lofty positions when necessary. When the Saxon system of individual-centric government was under threat, the people put the principles of limited government in writing, producing the Magna Carta in 1215. With the principles of honest government in writing, it would be more difficult for tyrants to trample on the rights of the individual.

In 1688, the leadership of England was once again put on notice, and an ill-conceived plan to force absolute rule on the liberty-loving English was thwarted. The end result of the Glorious Revolution was the English Bill of Rights, a written charter guaranteeing God-given rights to all Englishmen.

The events in England, guided by the desire to be ruled by the Rule of Law as inspired by Divine Providence, rather than the tyrannical rule of man, set in motion the creation of the foundation for the system that would be designed during the American Constitutional Convention in 1787.

During the Revolutionary War, the patriots of the English Colonies had determined the British Empire was being ruled by despotic men, and the concept of the Rule of Law had been discarded. From the point of view of the revolutionaries, the King believed Britain and the colonies to be his realm, therefore the concept of property ownership should only be limited to a small group of land owners that had earned favor with The Crown. It was parliament’s job to determine the laws and taxes the colonists should live under, regardless of representation. Britain claimed the colonies enjoyed virtual representation, but in the end, the King, the nobles, and the judges had complete power over making law, and imposing taxes.

The British Empire had become an oligarchy, and the consent of the governed across the Atlantic Ocean was considered irrelevant by the ruling elite in England. After the Revolutionary War, the framers of the United States Constitution understood that a nation ruled by an oligarchy of political elite is not compatible with a society that champions liberty, and individual rights. The government they aimed to create needed to be individual-centric, and one that was founded upon the concept of the Rule of Law, if it was going to protect the rights of the people, and preserve the individual ownership of property.

A nation throwing off the bonds of oligarchy, and embracing self-rule, however, did not mean that the United States would be a democracy. Though some democratic functions exists in America’s mixed constitution, the United States is not a pure democracy. A Democracy is a system of government ruled completely by the people. All laws and governmental functions, in such a system, are determined by the whims of the people, and their direct vote. Historically, democracies are transitional governments that, when the people seek a governmental system more efficient and stable than their fickled democracies, become oligarchies, or a governmental system characterized by the many being ruled over by a few political elites. Therefore, the founders did not desire to create a democratic governmental system. Ultimately, a democracy always breaks down, and the system that replaces it centralizes, becoming nothing more than a system like the monarchy that the Americans had fought so hard against in order to gain independence.

The conclusion was that the United States must not be subject to the laws of men, be subjected to the rule of men, or open itself up to become an oligarchy by creating a system that enables too much power to be granted to a single person, group of people, or governmental entity. The new country needed to be a nation subject to the laws of God, governed by the Rule of Law, and have a republican form of government that features a representative system of governance. The States, and the people, hold sovereign power. The federal government is designed to be limited to authorities only necessary for protecting, preserving and promoting the union. All other authorities, specifically those authorities that would address issues directly affecting the people, is the responsibility of the States, and the local governments, where the people have more control over governmental functions.

To achieve their goal, the Founding Fathers determined that the components of the new federal government, as opposed to being a national government, would need to be one with three separate branches of government, whose powers are separated so that no collusion between the branches would be possible, with numerous checks and balances to ensure no part of government wields too much power, have a limitation of authorities to the federal government granted by the States, provide due process of the law with the right of a trial by jury, and be a system that ensures that the federal government does not betray the unalienable rights of the people of the United States.

The American Form of Government, when operated in pursuance of its constitution, serves as a protector of the fires of liberty by preserving the union of States, and ensuring that individual freedoms and state sovereignty maintain a voice in the system. The Rule of Law was based on God’s Law, and the Rule of Law was articulated in the Constitution to serve as the Supreme Law of the Land.

Not everyone supported the principles contained on the pages of the United States Constitution. The federalists, after losing the Presidency, and Congress, in 1800, realized that their attempt to grow government by political means was a failure. President John Adams, in an attempt to preserve some of the power of the Federalist Party before Thomas Jefferson was able to take the office of the presidency, created new judicial offices, appointing as many new judges as possible. Adams’ flurry of judicial appointments shortly before departing from his presidency is historically called, “the appointment of midnight judges.”

John Adams’ expansion of the judiciary through the appointment of midnight judges was called by Jefferson's Democratic-Republicans "appalling." In Jefferson's view, the Federalists "retired into the judiciary as a stronghold . . . and from that battery all the works of Republicanism are to be beaten down and destroyed."

By the 1820s, the Federalists became irrelevant, and faded into history as the party became incapable of winning any elections. But, their statist idealism lived on, and still does today, in a federal court system strengthened by John Marshall, the Chief Justice of the Supreme Court appointed by John Adams in 1801. The judicial branch, under Marshall, changed the face of the American System, catapulting the federal court system to the top of the political food chain through a series of court rulings that misrepresented the powers of the judiciary. These rulings, along with a series of bullying tactics from the bench, flipped the hierarchy of government, changing the dynamics of federal government, and thwarting it toward tyranny through judicial fiat. Marshall was the longest serving Chief Justice in American history, giving him plenty of years to orchestrate damage to the original principles of the United States Constitution, and changing the definition of the Rule of Law.

John Marshall repeatedly confirmed his opinion that all federal law is supreme over all State law, and redefined "The Rule of Law" to mean the same as “The Rule of the Courts.” He instructed that judicial decisions were the components that makes up the rule of law because judges were the people tasked with ruling on the law.

John Marshall redefined the American System, putting in place the mechanism that would increase the power of the courts, and alter the definition of the Rule of Law. The original intent of the States serving as the final arbiters of the Constitution was replaced by judicial review, establishing case law as the rule of law – making the rule of law based on the opinions of men, or more accurately, changing our system to one that is governed by the rule of man through a judicial oligarchy.

Figuratively speaking, once a society abandons the Rule of Law, and replaces it with the rule of man, it is not very long before they begin dancing around a golden calf.

The Founding Fathers knew that the courts were a danger, and in the beginning, the Judicial Branch was the weakest of the three branches of government. The Rule of Law is based on Nature's Law, and what the written Law of the Land is, not the wavering interpretation of the law by men seeking power. When the Rule of Law is abandoned, we become governed by the whims of culture, politicians, and judges.

"It was understood to be a rule of law that where the words of a statute admit of two constructions, the one just and the other unjust, the former is to be given them." --Thomas Jefferson to Isaac McPherson, 1813.

"Where an excess of power prevails, property of no sort is duly respected. No man is safe in his opinions, his person, his faculties, or his possessions." -- James Madison

John Locke proposed that the rule of law was governed by Nature's Law (God's Law) and that no man, including a country's leader, or members of the judicial system, are above that law. Because the rule of law is based on natural law it cannot be interpreted, or changed, by the whims of men. To allow such latitude in the law is to have no law at all, and the society under such a system is not governed by the rule of law, but by the rule of man. When courts can make rulings as the arbiters of the law, they are not ruling based on the rule of law, but by judicial fiat.

-- Political Pistachio Conservative News and Commentary

SCOTUS Crushes Kentucky Anti-Sodomarriage Rebellion

by JASmius

The inevitable end of the line for Rowan County Clerk and devout evangelical Christian Kim Davis's heroic civil disobedience stand against forced participation in the new "institution" of sodomarriage.  My only surprise is that the Sixth Circuit Court of Appeals got bypassed and a direct certiorari writ was sought with the SCOTUS.  Miss Davis was always going to lose, but this end-around just hastened that defeat a lot sooner than it would otherwise have been suffered:

A Kentucky county clerk must issue marriage licenses to [homosexual] "couples" after the U.S. Supreme Court rejected contentions that she is being forced to violate her religious convictions.

The justices, without explanation, refused to lift a lower court order requiring Rowan County Clerk Kim Davis to resume distributing marriage licenses. She stopped issuing any licenses....

Thus complying with the Fourteenth Amendment's equal protection clause.

....and defied an order from the State’s [Democrat] governor -- after the Supreme Court ruled in June that [sodo]marriage is a constitutional right.

Which it did and does not have the constitutional authority to do, but rather did via raw, usurped, tyrannical power.

The emergency appeal marked an early test of how the Supreme Court will handle religious objections to [sodo]marriage in the aftermath of the landmark June 26th ruling.

Like that "test" was going to turn out any other way.

And now the day of reckoning that was always coming for Miss Davis has arrived: Will she deny Christ and proclaim Sodom as Lord in order to keep her job and livelihood, or will she stand on biblical principles and either resign as Rowan County clerk or be fired - and perhaps criminally prosecuted as well.

Our LORD said throughout the Gospels to "count the cost" of following Him.  American Christians, including myself, have never really had to seriously do that.  But we will now.  Kim Davis is just the first of many, and eventually all that will be forced into that crucible.

And it will only get hotter.

UPDATE (9/1): I was just reminded that Miss Davis's is an elected position, so the only people that can "fire" her are local Rowan County voters.  Given that (1) Rowan County is Democrat-leaning, (2) Miss Davis is, astonishingly given her courageous stand for marriage, a Democrat, and (3) she was either elected or re-elected Rowan County Clerk last November with 53% of the vote, that "firing" would (assuming a four year term) be a little over three years away at worst.  At least barring a recall election, which would take at least some time to gather signatures for, get them filed (through Miss Davis's office, presumably), and the recall election scheduled.  Would there be enough such local pressure put upon her from that direction?  Beats me.  If it was, would she fight it to the end or would she resign at some point?

I'm guessing the answer that last question, at least, will be no:

A Kentucky county clerk on Tuesday rejected requests for marriage licenses for two homosexual "couples" despite a decision by the U.S. Supreme Court's against the clerk, according to media reports. The top U.S. court on Monday turned down Rowan County Clerk Kim Davis' request for an emergency order allowing her to continue to deny marriage licenses to [homosexual] "couples" while she appeals a federal judge's order requiring her to do so.

Davis' office rejected requests for marriage licenses for the first two homosexual "couples" to enter the courthouse on Tuesday, the Washington Post reported.

James Yates and Will Smith Jr. marched....

Interestingly "martial" choice of term, that.

....into Rowan County clerk Kim Davis' office, their fifth attempt to obtain a "marriage" license, and they once again were turned away.

They left red-eyed and shaking, and declined to talk to reporters gathered at the office.

Yeah, right, like they're the victims in this equation.

Her office could not immediately be reached for comment, but Kentucky Public Radio quoted Davis as saying on Tuesday that she made the decision to continue denying marriage licenses "under God's authority."

Just so.  And just to confirm that the "couple's" tears were of the crocodile variety and this whole thing has been a setup since the beginning, they're now going to have their attorneys (ever at the ready) file contempt charges against Miss Davis.  So it looks like she's willing to go to jail for her LORD, just like the Apostles once did.

As I said last night, note her path and plight well, because all the Brethren (and Sistren) will be trodding it eventually, and probably sooner than we think.

Rand Paul Rips Donald Trump Rips Jeb Bush, Etc.

by JASmius

For most, if not all, Tea Partiers, it's the "establishment" that drives them nuts.  Guys like Boehner and McConnell and Jeb Bush don't even have to do or say anything to elicit that reaction except show their faces in public and keep breathing.  Heck, humble little pundits like me paying one of them the most casual of compliments is enough to send them off the deep end.  Which makes it effortless, and therefore entertaining, to push their buttons on occasion for casual amusement.  It can be a lot of fun if you know how, and it isn't difficult in the slightest to learn.

I, by contrast, do not have that vulnerability, because the thing that makes my eyes bleed is the incessant Tea Party-"establishment" bickering.  Ted Cruz calling Mitch McConnell a "liar," John Boehner calling Ted Cruz a "jacksass," etc, etc., etc.  It's like the Siberian escape scene in Fantastic Four II: Rise Of The Silver Surfer when Johnny Storm/Human Torch and Ben Grimm/Thing start their using argument over who gets to fly air-gizmo-thingie Reid Richards built and the latter finally snaps and screams, "Oh, SHUT UP!!!  I'M driving!"

And that's domestic tranquility compared to the bleep-stirring that Donald Trump has been doing and continues to do, as with this latest ball-shot web ad aimed at Jeb Bush:

Tea Party Trumpsters will love it because it bludgeons Jeb's nads into two dimensions.  It won't matter to them that the ad is a blatant fraud, that when Bush III made his "illegal immigration is an act of love" comment, he was referring to lettuce-pickers, not serial killers.  I disagree with William Jacobson that this ad is "Willie Horton II," because the original Willie Horton ad was actually true.  That's what made it so devastating to Michael Dukakis's 1988 presidential candidacy.  This is an ill-concealed lie, and if anybody but Trump was running it it would backfire spectacularly.  AND it such distortions wouldn't - shouldn't - be necessary because Jeb's pro-amnesty stance is already more than sufficiently obnoxious.

But, again, the ad isn't intended to accurately convey information, it's designed and intended to be grossly unfair to the right candidate.  And in that it succeeds spectacularly, and will probably draw even more center-right support.

Do you see why I find Trump so migraine-inducingly aggravating?  He's all but forcing me to come to Jeb's defense, and I can't stand Jeb either.  But I loathe Trump even more for what he's doing to the GOP in an election cycle in which constitutional conservatism HAS to win by bamboozling so many Tea Partiers with a lot of phony, caricatured huffing and puffing on a single over-emotive issue - illegal immigration - that is completely distracting them from all his hard-left issue stances which he really has not renounced even now, as well as making them look like every stereotype the Left has ever hurled at them.

That's another remarkable irony: In essence, Trump has stolen what was to have been Bush III's standard "establishment" strategy, only using celebrity and "populist" boorishness instead of a buttload of fundraising:

Bush seems to have jettisoned his [tack to the center, stay in the center] strategy before he could even implement it. Aside from his wan countenance, which some see as evidence of “moderation,” and his minor[?] heresy on Common Core, Bush is running pretty much as a down-the-line conservative, trumpeting his record cutting taxes, defunding Planned Parenthood, and blaming Hillary Clinton and Barack Obama for the sorry state of Iraq. Note to pundits: wearing glasses and speaking softly does not a RINO make.

Until he clinches the nomination, anyway.

There is, however, one candidate who has implemented the Jeb strategy: Donald Trump. While he’s been widely derided by liberals for his tough stance on illegal immigration, many of his positions stand markedly to the left of the rest of the GOP field. He’s defended Planned Parenthood; trumpeted his early opposition to the Iraq war; and supported a wealth tax. There’s a cunning political logic at work here: Because of his tough position on immigration and his take-no-prisoners aura, Trump can count on the continuing support of some on the hard right, including among talk radio hosts. But, at the same time, he can appeal to the general electorate; Trump’s support for taxing the rich, for example, is wildly popular in every segment of the population except the GOP base. [emphasis added]

I wouldn't count on that if I were you, Mr. Epstein.  With this Trump "populist" mass psychosis running wild and unchecked through the ranks of the Right, I have no reason to believe that his Tea Party supporters won't back soaking the rich or funding Planned Parenthood or expanding ObamaCare or continuing the Obama Doctrine abroad as long as Trump is the one who is calling for this policy continuity.  I really believe that if he somehow got elected and then did a complete about-face and kept Obamnesty in place, Tea Party Trumpsters would roar their approval.  Because their support of Trump is fundamentally emotional and irrational, it literally now does not matter what he does, he can't lose them.

TPTers are groupies, in other words.  And, having been "out-establishmented" by supremely non-establishment means, Jeb is forced to be what he's not as well - a "true conservative" - without any of the ersatz PR camouflage that Trump enjoys.

Trump is kicking Jeb's ass because he's an orders-of-magnitude better liar and demagogue.  Which reflects the fact that in 2015, American voters don't want statesmen or leaders, they want burlesque - lowest-brow entertainers.  Why else would there even be a "Draft Biden" movement, after all?

Which brings us to the one "hopeful" in the thundering GOP herd who is more "professorial," soft-spoken, and just plain boring than Jeb.  The problem is, when Rand Paul tries to be colorful, it comes across like a bad version of the movie Rudy, and the only time his heart is really in such wince-inducing displays is also when he dispenses with aim and smears his (purportedly) fellow Republicans with the broadest brush possible:

“There have been a lot of dumb ideas put out,” Paul said, speaking with Boston Herald Radio. “One that the Mexicans will pay for a wall, [which] was probably the dumbest of dumb ideas. But putting a wall up between us and Canada is sort of a ridiculous notion. It is sort of like everybody is now competing to say, ‘Oh no, I’ll put them in camps. Oh no, I’ll throw them out. Oh no, I’ll put everyone in jail. And I’ll have an electric fence, and I’ll do this.’ And it’s like, you know, the biggest thing we need to do is have a functioning immigration system, with a good work program.”

Up until the swipe at Scott Walker Senator Paul was okay.  Because the notion that Mexico can be forced to pay for a border wall or that putting up another along the entire length of the northern frontier with Canada are, at the very least, highly impractical.  But then he lurches into Hillary Clinton territory, not just at Trump, which would at least be logically justified, but at "everybody," which I interpret as Rand knowing that (1) he's bumping along the bottom of the race and (2) he can't possibly out-Trump Trump, so he's going to go the opposite direction to try and set himself apart and perhaps, somehow, attract some fresh attention to himself that way, even if it's by putting himself on the diametically wrong side of the core issue that's driving Trump's juggarnaut.  That's enough of a Hail Mary as it is, but when you also figure in that in order to try this last-ditch counterintuition gambit, Senator Paul is having to flip-flop even more egregiously than Jeb is, it makes you wonder if Rand has reached the end of the line but is refusing to recognize it.

I really wish he would, if only to get him out of the race before we have to suffer any more moronic tweets like this one:

View image on Twitter

Behind me is the NSA. When I'm President we'll turn it into a Constitutional Center to study the Fourth Amendment!

I'm going to guess that Bush III would call that Tweet just as much of ludicrous fantasy as forcing Mexico to pay for a border wall.  The telling part is that I'm not certain how Trump would react to it.  Pity we'll probably never find out, as Paul is so far behind that nobody has any need to respond to anything he says.

So much for Rand "getting" Trump, I guess.

Hillary Clinton Maximum Emailgate Jail Time Up To Fifteen Centuries

by JASmius

Drip, drip, drip:

The State Department will release roughly seven thousand pages of Hillary Rodham Clinton's emails Monday, including about one hundred fifty emails that have been censored because they contain information that is now deemed classified.

Department officials said the redacted information was classified in preparation for the public release of the emails and not identified as classified at the time [Mrs.] Clinton sent or received the messages. All the censored material in the latest group of emails is classified at the "confidential" level, not at higher "top secret" or compartmentalized levels, they said.

"It's somewhere around one hundred fifty that have been subsequently upgraded" in classification, State Department spokesman Mark Toner told reporters.

A distinction without a difference per 18 U.S.C. 793.  But Foggy Bottom and La Clinton Nostra will continue their "When was it classified?" shell game in hopes of putting over that the Empress was more incompetent than corrupt.  Which isn't gaining much, if any traction, either.  But there's not a whole lot else they can do other than shriekingly vomit smears at the GOP as a frantic distraction, which will also doubtless continue.

And in the mean time....drip, drip, drip....

Enumerated Express Powers: Lake Elsinore Constitution Class

Instructor: Douglas V. Gibbs

Constitution Class
C.H.O.B., 119 W. Peck Street, Lake Elsinore
6:00 pm to 7:00 pm

We begin tonight with the Commerce Clause.  Contrary to popular opinion, the Commerce Clause was not originally intended to allow the federal government to control, tax, or subsidize anything and everything the crosses State lines.

James Madison's notes on the Federal Constitution gives us clues regarding the original intent of the Commerce Clause.  The word "commerce," in its nearly one hundred appearances in Madison's notes, and the Federalist Papers, was used only to mean "trade" and "exchange."  In the various debates during the State ratification conventions the same definition is applied to "commerce," specifically trade or exchange after production, and prior to when the product comes to rest.

The condition of interstate commerce at the time of the writing of the United States Constitution leaves no doubt that the primary purpose behind the Commerce Clause was to give Congress power to eliminate the trade restrictions and barriers by and between the states that had existed under the Articles of Confederation. Such obstructions to commerce were destructive to the Union and believed to be precursors to war.

The desire of the Founding Fathers was to find a way to encourage interstate trade without federalizing interstate trade.  The States, holding original authority over all issues, and creating the federal government for the purpose of protecting and preserving the union by allowing the federal government to handle external issues, were intent upon preserving the power they had over their internal affairs.  So, the word "regulate" was carefully chosen to explain Congress's power over interstate trade.

Among the definitions of the word regulate, one must seek its root to locate what the Founding Fathers intended the word to mean.  The word comes from Latin's "regula," or "rule."  "Regula" is the same Latin word that our word "regular" comes from.  From the point of view of the Founding Fathers, "regulate" meant "to make regular."  To make something "regular" would be to "put it in good order."  In today's dictionary, "to put in good order" is the fourth definition listed at

In Webster's 1828 Dictionary, "to put in good order" is the second definition listed, right behind "to adjust by rule."  To control or restrict, in 1828, is listed as the least used definition.

To regulate interstate commerce, then, according to the original intent, is not a call for the federal government to control or restrict commerce, but to take actions to ensure it flows. . . which means it is the task of the federal government through legislation to act as a mediator, to resolve conflicts between the States regarding interstate commerce so that it may flow regularly.  Otherwise, the federal government is not to interfere.  Congress's only role regarding commerce is to make sure it flows by acting as a referree between the States.

-- Political Pistachio Conservative News and Commentary

Hard Starboard Radio: Causes & Effects

Hillary Clinton's shitzkrieg continues: Republicans want to "put illegals in boxcars," while Mexico threatens Texas over its refusal to issue illegal alien birth certificates; Latest Obama taunt: Iran "deal" will "improve Iran-Israel relations" while Hassan Rouhani tells Iranian "parliament" Iran nuclear "deal" is a "suggestion"; Thai police arrest a "foreign man" they refuse to identify in Bangkok bombing at the same time that ISIS is spreading all over the world; White Texas sheriff's deputy is executed by black gunman, and America's greatest sheriff - who also happens to be black - is mad as hell and is not going to take it anymore; and while the EPA is blowing off the federal court injunction against Barack Obama's seizure of all American water, it's fining an ecologically enlightened Wyoming farmer into oblivion.

A week's worth of material for a single day at 6PM Eastern/3PM Pacific.

Sheriff David Clarke Blames War On Police On Obama, Holder

by JASmius

Testify, Brother Clarke, testify!:

"War has been declared" on police officers in the United States, Milwaukee County Sheriff David Clarke said this weekend, and he blames that on Barack Obama and the U.S. Department of Justice.

"I'm too pissed tonight to be diplomatic about what's going on," the sheriff told Fox News' Judge Jeanine Pirro on her Justice With Judge Jeanine program Saturday night, just hours after a Houston-area deputy sheriff was murdered while putting gasoline in his police cruiser....

Clarke said he'd pointed out said last December that war had been declared on the country's police departments by Obama and former Attorney General Eric Holder, and now, he thinks "it's open season."

Quite so.  And Sheriff Clarke's cathartic ire wasn't limited to The One and Eric "The Red," either:

The African-American sheriff said he's also tired of hearing people involved in police protests labeled as "black activists," as "they're not activists. This is black slime and it needs to be eradicated from American society."...

He said he's renamed the "Black Lives Matter" movement to "Black Lies," because it's "all based on a lie" based on the Ferguson shootings.

I dubbed them part of the "Black Klan" a long time ago, but "Black Slime" and "Black Lies" works.  And since Sheriff Clarke has the "ethnic authenticity" your pasty white pundit lacks, I by all means defer to the guardian of Milwaukee County, Wisconsin.

For however much longer he lives until he meets Darren Goforth's fate, anyway.

UPDATE: This is rapidly becoming a coast-to-coast local law enforcement rebellion:

The Black Lives Matter movement is a "reincarnation" of the Black Panther Party and Black Liberation Army whose "anti-cop rhetoric" and "domestic terrorism" is causing attacks like the cold-blooded murder of a Texas sheriff's deputy, New York Police Commissioner Bernard Kerik charges.

In an interview on Newsmax TV Monday with The Hard Line host Ed Berliner, Kerik, author of From Jailer to Jailed, said, "I see them as domestic terrorists – I don't see any difference in what they're doing and what they're calling for than what the Black Liberation Army and the Black Panther Party was in the '60s and '70s."

"It's the same rhetoric, it's the same language. It's all the same," he said. "And then you have somebody go out and basically assassinates a cop – if the reports are right, more than a dozen rounds put into this cop in Texas. This is insane."

Indubitably.  It is all the same.  The difference being that back in the sixties and seventies, the Black Panthers and Black Liberation Army didn't have one of their own in the White House.

Time until The One has another of his patented "racial fireside chat" pressers: By the end of the week at the latest.  Which is time enough for many more prominent law enforcement figures to "act stupidly" by speaking the truth to power.

Auschwitz Installs (Wait For It, Wait For it) Mist Showers

by JASmius

For some reason, I'm reminded of this Bill Engvall bit from Blue Collar Comedy III: One For The Road:

"I can't have sausage anymore.  Not because of any health reasons but because of a commercial that scared me to death.  I was watching TV one night and this commercial comes on.  This is what the announcer said word for word: 'The eggs are from real chickens; the milk is from real cows; the sausage is from Jimmy Dean.'....Really?  You'd think somebody would have caught that."

And you'd have thought the management of the Auschwitz concentration camp historical museum would have caught this:

In an attempt to battle the summer temperatures in Poland and "cool down" visitors, management of the Auschwitz concentration camp reportedly installed mist showers at the museum entrance, sparking outrage and horror among Jewish visitors, the Washington Free Beacon reports.

"Israel visitors to the museum could not ignore the connotation of showers being put in place at a site where more than a million Jews were murdered by the Nazis in gas chambers during the Holocaust," Israel Hayom reported on Monday. [emphasis added]

Apparently this historical symbolism was lost on them.  Which may, in turn, be another symptom of the burgeoning neo-anti-Semitism that is erupting all across Europe.

On the bright side, the Dachau and Bergen-Belson waterparks are reputedly right on schedule.  I understand they're going to be an absolute gas.

Kanye West Kicks Off The 2020 Presidential Campaign

by JASmius

Ten years ago I would have had a hearty laugh and ignored this story.  I desperately want to do so now.  But after eight years of "the world's biggest celebrity"....

....and the same disastrous dynamic now taking over the Republican Party as well....

....who's to say that a burned-out reefer addict who delivers acceptance speeches in a drugged-out haze won't capture the White House?

"Reality Television uber alles," and all that:

Kanye West shocked the crowd at the 2015 MTV Video Music Awards Sunday night by announcing his intentions to run for president in 2020 in a long, rambling and, at times, incoherent acceptance speech.

In a move that would make Kim Kardashian first lady and Kris and [Bruce] Jenner White House babysitters to North West....

No, that's not a typo, that's what they named their kid.  Who knows, maybe they're Seahawks fans.  Heaven knows everybody else is.

....the music and fashion mogul fit in his political ambitions into his nearly thirteen-minute speech acceptance speech for the Michael Jackson Video Vanguard Award, a sort-of lifetime achievement award.

If any of you Tea Party Trumpsters are scoffing at the prospect of President West, I'll just remind you that you are pushing to make as FLOTUS what Kevin Williamson recently described as a "plastic surgery disaster" who has posed nude for lesbian publications.

Compared to Melonia - oh, sorry, MelAnia - Trump, Kim Kardashian might actually be a step up in class.  Though we'd still have to change their unofficial title to "First Bimbo".

This serves as a very instructive illustration of how this country's culture is going down the crapper and taking the country down the same poop chute with it.  Indeed, this is the wages of "populism": Unseriousness.  If you had told me even a decade ago that the American voting public was going to become such a bipartisanly tacky, puerile collective laughingstock, so incapable of self-governance and popular sovereignty that they would seriously even entertain the notion of turning American politics and government into a hideously grotesque hybrid of Survivor, American Idol, and Dancing With The Stars, I'd have asked you if you were indulging from Kanye's "hospitality bowls".

But here we are ten years later.  And hey, Trump and West aren't "professional politicians" and therefore don't know what the hell they're doing, which is now their chief qualification for the highest office in the land, right?  Just the men we need in possession of nuclear launch codes.

Maybe President West's "nuclear football" will be his hospitality bowls.  President Trump's will be Melonia's - oh, sorry, MelAnia's - ample artificial cleavage.  Until he gets divorced again, anyway.

UPDATE: Ben Carson to the rescue?:

The Monmouth University Poll of likely Iowa Republican caucusgoers finds Ben Carson and Donald Trump tied for the top spot. This marks the first time since July 26th that a poll in any of the first four nominating states has not shown Trump with a nominal lead. Not surprisingly, given the top two contenders in the poll, most Iowa Republicans prefer someone without a traditional political pedigree.

i.e. Somebody completely unqualified for the presidency.

At this early stage, though, the vast majority of voters say their eventual support could go to one of several other candidates in spite of their current preference.

When Iowa Republicans are asked who they would support in their local caucus, Ben Carson (23%) and Donald Trump (23%) tie for the top spot. The next tier of candidates includes Carly Fiorina (10%) and Ted Cruz (9%), followed by Scott Walker (7%), Jeb Bush (5%), John Kasich (4%), Marco Rubio (4%), and Rand Paul (3%). The last two Iowa caucus victors, Mike Huckabee and Rick Santorum, each garner 2% of the vote. None of the other six candidates included in the poll register more than 1% support.

“These results mark a significant shake-up in the leaderboard from Monmouth’s Iowa poll taken before the first debate,” said Patrick Murray, director of the independent Monmouth University Polling Institute in West Long Branch, NJ. “Carson and, to a lesser extent, Fiorina have surged, while Walker has faded into the background.”

Even though Governor Walker is the best of all worlds, an anti-"establishment" candidate WITH ample executive experience AND a proven track record of conservative policy accomplishments AND Tea Party "street cred".  In a sane country and political climate, he'd already be the presumptive nominee.

But, to use a Carsonesque analogy, Americans are fervently clamoring for a seizure-prone, Parkinsons-suffering, epileptic ditch-digger to perform the delicate brain surgery on which their very lives depend.  TOTALLY rational, right?

If Dr. Carson turns out to be the compromise candidate that averts this burgeoning national tragedy, I'll buy it in a heartbeat.

Rouhani Tells Iranian Parliament Iran Nuclear "Deal" Is A "Suggestion"

by JASmius

Is this even newsworthy?  The mullahs have been cheating and double-dealing their way through these circle-jerking "negotiations" for the past twelve years and have no evident intention of suddenly committing themselves to Barack Obama's complete capitulation based upon that perfidious track record.  I'm not sure what the term "legally binding" would even mean to them.

But the "moderate" and "reasonable" "President" Rouhani has told them on behalf of "Supreme Leader" Ali Khamenie that they don't have to bother with it:

President Hassan Rouhani said Saturday he opposes a parliamentary vote on the landmark nuclear deal reached with world powers because terms of the agreement would turn into legal obligations if passed by lawmakers.

Rouhani told a news conference that the deal was a political understanding reached with the five permanent members of the U.N. Security Council and Germany, not a pact requiring parliamentary approval. The deal also says Iran would....


....implement the terms voluntarily, he said. …
“If the Joint Comprehensive Plan of Action is sent to (and passed by) parliament, it will create an obligation for the government. It will mean the president, who has not signed it so far, will have to sign it,” Rouhani said. “Why should we place an unnecessary legal restriction on the Iranian people?” [emphases added]

What is this?  Monkey see, monkey do?  I can't fathom for what audience Rouhani's kabuki theater is intended.  It can't be the Iranian people, since they're irrelevant and have no voice or say in the matter.  It can't be the American people, who are already thoroughly rejecting the "deal" (and, really, are just as irrelevant as their - our - Iranian counterparts).  And it surely can't be the U.S. Congress, for which I would think the mullahs wouldn't want to set the example of effectively voting down the "deal" or confirming that it isn't a "treaty" but just a "political understanding" and "not a pact".  But then again, with thirty-one "yes" votes confirmed and in the bank with more doubtless on the way, it's not as if Senate Democrats need much encouragement in that direction.

And yet the Iranian theatrics bafflingly continue:

Indeed, the successful conclusion of the nuclear talks has led to the development of a new pragmatism in Iran, personified by prominent decision-makers who have more sober and practical views on foreign and domestic policy. This phenomenon has seen the joining of political figures who hail from historically opposing camps, namely the moderate Rouhani and the principalist speaker of parliament, Ali Larijani. This heretofore unseen alliance is a significant development in Iran’s political landscape and has positioned pragmatism as a palpable political force in Iran.

What should be of chief importance to Western policymakers is that the prospect for a more cooperative Iran rests with them reciprocating Iran’s pragmatic outreach proportionately. For their efforts thus far, the pragmatists, led by the president and the speaker, have garnered vociferous criticism from hard-liners, who accuse them of having given far too many concessions on the nuclear program. If there was nothing to show for these concessions, pragmatism would be marginalized and Iran would be forced to retract from its "commitments". Thus, durable sanctions relief is critical to ensuring a more amicable Iran. …

Congress’s overriding the deal would surely lead to radicalism once again at the expense of pragmatism in Iran. Moreover, the nuclear deal has the potential for far-reaching positive implications for the volatile Middle East region and for Iran’s relations with the West. [emphases added]

In other words, if Congress doesn't rubber-stamp this "deal" that gifts nuclear weapons to the Iranian mullahgarchy with which they will incinerate Israel, Europe, and the United States at the earliest opportunity, the mullahs might become "radicals" who might grow less "amicable to the West".  Because "pragmatism" is defined as leading daily bellowing chants of "DEATH TO AMERICA!  DEATH TO ISRAEL!" and waging a terrorist war against both for the past thirty-six years.  And if we do not now provide this enemy with the means of our destruction, they may REALLY get bad.

Who is Tehran trying to fool with this nonsense?  The only remotely plausible audience is wavering Democrats, but congressional aquiescence or lack of it isn't relevant to how the mullahs will proceed with their nuclear weapons buildup any more than the "negotiations" and "interim agreements" have been.  Even "for this history books" doesn't make sense because it's the winners that write them, and Iran surely looks like it's going to be on the winning side of this clash of civilizations.  I don't get it.

Any intelligent suggestions?  Leave 'em in the comments.  I'll be all ears.

ObamaCare 'Cadillac Tax' Will Eliminate Millions Of Tax-Free HSAs & FSAs

by JASmius

Behold, the next - well, no, the next one will be the impact of the Employer Mandate after the 2016 election, so it's really the next after the next - ObamaCare Frankenstein's monster.

And don't you believe for an instant that this dawning fear is bipartisan, either:

The ObamaCare "Cadillac tax" won't take effect until 2018....

Unless Barack Obama decides to unilaterally move up the trigger date by Executive decree, of course.

....but lawmakers from both parties....

In a pig's eye.

....are concerned the assessment could endanger tax-free flexible health spending and are calling for it to be junked.

“It’s a death knell for them," Rich Stover, a healthcare actuary and principal at Buck Consultants, told Politico. "If the Cadillac tax doesn’t change, FSAs will go away very quickly.”

The reason why is sublimely simple.  Employers, particularly larger ones, get an open-ended tax break for providing health care benefits to their employees.  Flexible Spending Accounts and Health Savings Accounts expand that deduction by the amounts by which employers match their employees' contributions to them.  The "Cadillac tax," which - until The One waves his magic putter again and lowers the thresholds - will apply to benefits that are worth more than $10,200 for individuals and $27,500 for families, will, according to the Kaiser Family Foundation, hit more than half of ALL employers.

And the bitterest irony?  FSAs and HSAs actually do "bend the cost curve downward" by bypassing the third-party payment system of healthcare that has dominated this country since World War II and is the systemic reason for the upward spiral of healthcare costs and restoring direct patient-provider dealings on healthcare transactions, representing the only thing that can reverse the aforementioned upward cost spiral: the free market.  Is it any wonder that ObamaCare targets it?

Heck, the wonder is that it was deferred to 2018.

But we can count on the following Donk assurances being as transitory as the four winds:

The tax may be one of the first items to cross a new president's desk after he or she takes office in 2017, and already, Democrat presidential candidate Bernie Sanders has promised to kill the tax. Frontrunner Hillary Clinton has said she is open to changing it, telling the American Federation of Teachers she is worried "that it may create an incentive to substantially lower the value of the benefits package and shift more and more costs to consumers."

Translation: Sanders and Hillary know that ObamaCare is an at least big liability to their 2016 chances and are pandering to voters they need now that both will happily (heh) herd into universal Medicaid boxcars after either is safely elected.

Nevada Republican Senator Dean Heller, who is working on legislation on the the issue....

That will never survive the inevitable Democrat filibuster.

....said the the tax is one way ObamaCare continues to "overpromise and underdeliver."

At a robust overprice, he neglected to mention.

And, just to anecdotalize, the radiation treatments for my wife's basil-cell skin cancer with which she was diagnosed last summer were paid for out of her FSA.  And did I mention that she's the only employed member (following my involuntarily premature "retirement" two years ago) of a household that is already hemorrhaging cash to the tune of approximately twenty thousand dollars annually?  That Flex Spending Account sure was nice to have.  I can't wait to see how we're going to make ends not meet when it's gone.

But then who knows?  She might get laid off long before then and we can embark on a complete financial freefall at terminal velocity to splatter all over the economic rocks below.  Or maybe the Final Collapse will come even before that and we'll have plenty of company in our misery.  Something that I frankly expect sometime in the next 435 days.

As Plato once said in Beetle Bailey, "Things are never so bad that they can't still get worse."

Have a nice day!

EPA Fines Farmer Into Oblivion For Building A Pond

by JASmius

We've written about the horrifying plight of Wyoming's Andy Johnson before.  Think of his case as Barack Obama's nationalization of American water in the microcosm:

Farmer Andy Johnson hasn’t sent millions of gallons of gold-mine wastewater down any rivers, but he’s facing more than $16 million in fines from the Environmental Protection Agency for running afoul of the Clean Water Act.

His violation? In 2012, Mr. Johnson built a stock pond for his horses and cattle on his eight-acre property in Fort Bridger, Wyoming. [emphasis added]

By damming up a little gurgling stream (Six Mile Creek) that is shallower than the water level of the baths Mrs. Hard Starboard takes.

Even though the Clean Water Act exempts stock ponds, and Mr. Johnson had obtained the necessary State permits.... [emphases added]

Which, constitutionally speaking, should have settled the matter.

....the EPA ordered him in January 2014 to restore the area to its original condition or accumulate fines of $37,500 a day. Instead, Mr. Johnson hired a lawyer.

“The EPA is out to expand its power, and I’m a test case,” said Mr. Johnson in a statement. “We’re going to fight them all the way.”

And, almost certainly, lose.  But at this point - as I'm pretty sure Mr. Johnson doesn't have sixteen million dollars sitting around his back-forty, and if he can't pay the fines, the only other penalty has to be lifetime imprisonment - what has he got to lose?  At least everybody will know that he's a political prisoner.

And I'll give him credit - this Wyoming farmer recognizes perfect public relations timing when he sees it:

“The EPA’s double standard is mind-blowing,” said PLF staff attorney Jonathan Wood in a statement after the motion was filed Thursday in U.S. District Court in Wyoming.

He referred to the torrent of wastewater "accidentally" released August 5th by an EPA-led team from the Gold King Mine near Silverton, Colorado, which contaminated water supplies along the Animas River in Colorado and New Mexico’s San Juan River.

“This is the same agency that just created a toxic mess in Colorado’s Animas River, with no accountability for the blundering bureaucracy,” said Mr. Wood. “But here they are, threatening Andy Johnson with astronomical fines, for building an environmentally beneficial stock pond that actually purifies the water that runs through it.” [emphasis added]

Oh, did I neglect to mention that part?  Mr. Johnson's little "dam" does indeed purify Six Mile Creek downstream from it by filtering out sediment.  It's made of sand, gravel, clay, and concrete blocks (otherwise known as "the ground") but EPA called the building materials "pollutants" anyway on the same "creative" "logic" as they designated Six Mile Creek a "navigable waterway," which isn't true even for a "boat" that doubles as a bathtub toy.  Seriously, Ernie's rubber ducky couldn't drown in this trickle.  Even Delta Smelt would have no use for it.

And as an added ecological bonus, it provides an additional water source for Mr. Johnson livestock and the local fauna....

....but they're the Environmental Pollution Agency, so [BLEEP] you, Mr. Johnson, for daring to infringe upon their gimmick, even though you didn't.

Ordinarily I'd tack on a sardonic, hyperbolic exit question, but with EPA deliberately befouling waterways and terrorizing ecologically conscientious private landowners, that rhetorical cupboard is bare.  Feel free to take stabs at it yourselves in the comments.

Constitution Classes This Week. . .

Three of the most controversial clauses in the United States Constitution are this week's topics in the various Constitution Classes I teach in Southern California. Below is information on each class, and a short write up about the clauses.

Instructor Douglas V. Gibbs

On Monday Night, August 31, 2015, 6:00 pm to 7:00 pm
C.H.O.B., 119 W. Peck Street, Lake Elsinore (near Main Street shopping district)
Article I, Section 8 with special attention on the Commerce Clause.

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.

The States were often at odds regarding a number of issues. Interstate commerce was among their disagreements. The States implemented Protectionist Tariffs, designed to protect domestic industries against competition from other States. As sovereign entities, the States continually tried to gain the upper hand on each other in regard to commerce across State lines. Recognizing that the squabbles between the States were actually hindering the movement of 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 the flow of commerce between the States was more regular.

The 1828 Webster Dictionary defines regulated in its second definition: “To put in good order.” Some historians state that the word “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, or as the “least used” definition. In today’s dictionary “restrict” appears in the first definition of regulate.

In modern politics, 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 is not consistent with the context of the times. 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 progressives?

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 or conflicts between the States, while with foreign nations and the Indian Tribes the federal government was expected to take a more active role.


On Tuesday Night, September 1, 2015, 6:00 pm to 7:00 pm
AllStar Collision, 522 Railroad Street, Corona (near Main and Grand intersection at 91 Fwy)
14th Amendment, Citizenship Clause

Citizenship Clause

The 14th Amendment to the United States Constitution failed in 1866 after the southern States rejected the proposed amendment. After a second attempt to ratify the amendment, it was adopted on July 9, 1868. The ratification of the 14th Amendment occurred after the federal government began to govern the South through a system of military districts. Some historians question the validity of the ratification of the 14th Amendment because it is believed by these historians that the southern States ratified the amendment under duress, and pressure applied by the northern governorships in each of the southern States during the early part of the Reconstruction Period.

The first clause of the 14th Amendment is known as “The Citizenship Clause.” The clause was intended to ensure the children of the emancipated slaves, as well as the newly freed slaves, would be considered citizens without any room for argument. The clause reads:

“All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

This clause has been misinterpreted to mean all persons born in the United States are automatically citizens, which is not the case. The defining term in this clause that enables the reader to recognize that citizenship needs more than just being born on American soil reads: "subject to the jurisdiction, thereof."

To understand the term jurisdiction, one may go to the debates on the congressional record of the 14th Amendment. In those debates, and in articles of that time period written to explain the intent of the language of the amendment, one finds that “full jurisdiction” was meant to mean “full allegiance to America.” The intention was to protect the nation against persons with divided loyalties.

The writers of the 14th Amendment wished to follow the importance of "full loyalty" as portrayed by the Founding Fathers. As far as the founders were concerned, there could be no divided allegiances. They expected citizens to be fully American.

Despite the defeat of the Confederacy in the American Civil War, the emancipated slaves were not receiving the rights and privileges of American citizens as they should have been. The former slaves were present in the United States legally, and because they were here legally they were "subject to the jurisdiction thereof," but they were still not receiving any assurance of equal protection under the law.

The Civil Rights Act of 1866 was created in the hopes of correcting the problem. Some of the language in the Civil Rights Act of 1866 states, "All persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States. ... All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other."

The definition of "persons within the jurisdiction of the United States" in that act was all persons at the time of its passage, born in the United States, including all slaves and their offspring, but not having any allegiances to any foreign government.

Michigan Senator Jacob Howard, one of two principal authors of Section 1 of the 14th Amendment (Citizenship Clause), noted that its provision, "subject to the jurisdiction thereof," excluded American Indians who had tribal nationalities, and "persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers."

Senator Howard’s responses to questions regarding the language he used in the Citizenship Clause were recorded in The Congressional Globe, which are the recorded transcripts of the debates over the 14th Amendment by the 139th Congress:

Mr. HOWARD: “I now move to take up House joint resolution No. 127.”

The motion was agreed to; and the Senate, as in Committee of the Whole, resumed the consideration of the joint resolution (H.R. No. 127) proposing an amendment to the Constitution of the United States.

“The 1st Amendment is to section one, declaring that all persons born in the United States and Subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside. I do not propose to say anything on that subject except that the question of citizenship has been fully discussed in this body as not to need any further elucidation, in my opinion. This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country.”

Senator Howard even went out of his way to indicate that children born on American soil of foreign citizens are not included.

Clearly, the framers of the 14th Amendment had no intention of freely giving away American citizenship to just anyone simply because they may have been born on American soil.

The second author of the Citizenship Clause, Illinois Senator Lyman Trumbull, added that "subject to the jurisdiction of the United States" meant "not owing allegiance to anybody else."

The full quote by Senator Trumbull:

"The provision is, that 'all persons born in the United States, and subject to the jurisdiction thereof, are citizens.' That means 'subject to the complete jurisdiction thereof.' What do we mean by 'complete jurisdiction thereof?' Not owing allegiance to anybody else. That is what it means."

Trumbull continues, "Can you sue a Navajo Indian in court? Are they in any sense subject to the complete jurisdiction of the United States? By no means. We make treaties with them, and therefore they are not subject to our jurisdiction. If they were, we wouldn't make treaties with them...It is only those persons who come completely within our jurisdiction, who are subject to our laws, that we think of making citizens; and there can be no objection to the proposition that such persons should be citizens."

Senator Howard concurred with what Mr. Trumbull had to say:

"I concur entirely with the honorable Senator from Illinois [Trumbull], in holding that the word 'jurisdiction,' as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, whether exercised by Congress, by the executive, or by the judicial department; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now."

Based on these explanations by the writers of the clause, then, it is understood that the intention was for those who are not born to American citizens to have no birthright to citizenship just because they simply were born inside the borders of this country.

The courts have interpreted the Citizenship Clause to mean other things, but we must remember that the Constitution cannot be changed by the courts. Changes to the Constitution can only be made by amendment (Article V.).

It was through the progressive actions of the Lincoln administration in the American Civil War, and the actions of the courts to incorporate the Bill of Rights to the States, that America ceased to be “The United States Are,” and became a more nationalistic “The United States Is.”


On Thursday Night, September 3, 2015, 6:30 pm to 7:30 pm
Faith Armory, 41669 Winchester Road, Temecula (just west of Jefferson Ave)
14th Amendment, Equal Protection Clause

Privileges and Immunities Clause

The next clause, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,” was expected to protect the newly emancipated slaves from local legislation that may treat them differently. This clause was a direct response to the Black Codes, laws passed in the States that were designed to limit the former slaves from obtaining all of the freedoms they thought they had been guaranteed.

The Due Process Clause of the 14th Amendment prohibits state and local governments from depriving persons of the proper due process of law. The right to a fair trial was to be extended to all persons, including the emancipated slaves.

Due Process Clause and Equal Protection Clause

The Due Process Clause, and the Equal Protection clause, have been the subject of debate since the language written by Congressman John Bingham, the principal author of the later part of Section 1 of the 14th Amendment, was first penned. Bingham believed the federal government should use all national tools available to ensure the southern States behaved as instructed. Bingham repeatedly stated his belief that the Fourteenth Amendment would enforce the Bill of Rights against the States, but the majority of the members of Congress present did not concur with his muddled and inconsistent argument.

Author Raoul Berger, in his book Government by Judiciary, discussed whether the 14th Amendment should be construed to enforce the Bill of Rights against the States. Relying on the analysis of Professor Charles Fairman in his published article, Does the Fourteenth Amendment Incorporate the Bill of Rights?, Berger concluded that Bingham was a "muddled" thinker whose views should be discounted. Berger agreed with Fairman that the framers of the 14th Amendment did not intend it to enforce the Bill of Rights against the States. Berger rejected even selective incorporation, arguing that the Amendment's framers did not intend that any of the first eight amendments should be made applicable to the States through the 14th Amendment

Antislavery activists largely supported Bingham’s conclusion that that Bill of Rights must be applied to the States, and such application must be enforced by the federal government. Though the Bill of Rights was originally intended by the Founding Fathers not to apply to the States, and with less than a centuryt since the American Revolution and the writing of the Constitution behind them, Bingham’s supporters contended that local jurisdiction over cases regarding an individual’s rights could no longer be allowed because the southern States could not be trusted to be fair to the newly emancipated slaves.

Bingham’s call for an incorporation of the Bill of Rights to the States established the concept that all people’s rights are supposed to be protected by the federal government. The Founding Fathers did not apply the Bill of Rights to the States from the beginning because giving that kind of power to a potentially tyrannical federal government carries with it many pitfalls. As the quote by Gerald Ford goes, “A government big enough to give you everything you want is a government big enough to take from you everything you have.” Nonetheless, despite the dangers of a central government dictating to the States regarding their laws regarding individual rights, because of the mistreatment of the former slaves by the Southern States, the Privileges and Immunities Clause, the Due Process Clause and the Equal Protection Clause, have been commonly interpreted to mean that the Bill of Rights is applicable to the States.

Since the Incorporation of the Bill of Rights did not take hold as a result of the 14th Amendment, as the statists that supported Bingham’s position had desired, the federal courts stepped in and took pursuit. Pursuing a nationalist agenda, the courts disregarded the original intent of the Framers of the Constitution, as well as the conclusions of the Congress regarding the 14th Amendment, and began to selectively incorporate the Bill of Rights to the States, beginning with the Slaughterhouse Cases just five years after the ratification of the 14th Amendment in 1868. A five to four vote by the high court interpreted the Privileges and Immunities Clause as the authority to enforce The Bill of Rights against the States. Subsequent cases also used the 14th Amendment as an authority for incorporation.

The courts, through this process of incorporating The Bill of Rights to the States, have changed the Constitution through unconstitutional means, and against original intent. As originally intended, all provisions in the U.S. Constitution apply to the federal government, unless otherwise noted. The Bill of Rights was originally intended to apply only to the federal government, and if we are to remain in line with the original intent of the Founding Fathers, State sovereignty must remain protected by that original intent.

The attitude of the southern States, and their refusal to treat the former slaves fairly led to a perceived need for clarification and enforcement by the federal government, which led to the passage of the Civil Rights Act of 1866, and eventually to the Civil Rights Movement of the 1960s.

A separate but equal doctrine existed for more than fifty years, despite numerous attempts to ensure blacks enjoyed full rights and privileges of citizenship.

In modern politics, laws continue to test the limits of the Equal Protection Clause. While the clause was intended to make sure that everyone is treated equally under the law, politicians supporting the Affordable Care Act have handed out exemptions to members of Congress, and some individuals or corporations, allowing those that receive the exemptions to be treated differently under the law.


Free Pocket Constitutions handed out to each attendee. Free Class. Monetary gifts are welcomed to help cover printing and travel expenses.