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Tuesday, September 28, 2021

Fallbrook Constitution Class: The Courts

Tuesday Morning, 11:00 am


Fallbrook Class

Tuesdays, 11:00 am

Emmanuel Baptist Church, 911 E Elder St Fallbrook, CA 92028

Constitution Class Handout

Instructor: Douglas V. Gibbs

douglasvgibbs@reagan.com

 

www.politicalpistachio.com

www.douglasvgibbs.com

www.constitutionassociation.com

 

 Lesson 08

 

Judicial Branch

 

Establish Justice

 

The United States Constitution was written to establish a federal government for the United States of America. Article III establishes the federal court system. Article I, Section 8 gives the Congress the power to “constitute tribunals inferior to the supreme Court.” Given the power to establish these courts, Congress also has the authority to do away with any of these inferior courts. This power of Congress is repeated in Article III, Section 1 during the first sentence.

 

When reading Article III, one must keep in mind the fact that the article was specifically written to affect the federal court system, not the state courts. The authorities contained within this article, and the restrictions thereof, are to be applied to the federal courts, not the state courts. One must also bear in mind, as one reads this article, the additional limits placed on the federal courts by the 11th Amendment. No case against a state by citizens of another state, or by the citizens or subjects of a foreign state, shall be heard by a federal court.

 

In other words if citizens of a State sues a State, or foreign government sues a State, the case can’t go to the federal courts. The highest that case can go is the State Supreme Court. These limitations placed upon the court system by the 11th Amendment were proposed by the people (House of Representatives) and the States (Senate), and finally ratified by the States, in order to better control a federal court system that was attempting to compromise State Sovereignty. Judges, the lesson of the 11th Amendment shows us, are not the wielders of the rule of law. They are not the powerful men of honor when it comes to the law.  The guardians of the rule of law are the people, and the States. The courts had proven that they can become an enemy of the law, proclaiming that their rulings are the rule of law, but as the 11th Amendment reminds us, the judges are merely men, and their system is the rule of man attempting to manipulate the law through their rulings. For their bad behavior, the people and the States judged them, and further limited them with a new constitutional amendment.

 

 

Good Behavior

 

The conventional understanding of the terms of federal judges is that they receive lifetime appointments because no time restriction is placed upon them in the Constitution. The only limitation on term placed upon the judges can be found in Article III, Section 1 where the Constitution states that judges, both of the supreme and inferior courts, “shall hold their offices during good behavior.” Conventional wisdom dictates that bad behavior is defined as unlawful activities.

 

The definition of bad behavior is not limited to only illegal activities. Judges take an oath to preserve, protect, and defend the United States Constitution, which is the Law of the Land. Bad behavior, then, from the point of view of the Founding Fathers, may also include unconstitutional actions, or failure to preserve, protect, and defend the Constitution.

 

Impeachment by Congress may be used if a judge acts in bad behavior. If a judge refuses to attend the hearing at the behest of the United States Senate, the federal marshall may be used to retrieve the judge, and compel them to stand before Congress to answer for their bad behavior. Congress is the check and balance against the courts, not the other way around.

 

 

 

 

 

Limits

 

The powers of the federal courts “shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and Treaties made, or which shall be made, under their authority.”

 

The federal courts, in other words, may hear all cases that fall within their authority. These cases are regarding those in which the federal government has authority, be it by laws passed within the authorities granted to the federal government by the Constitution, or regarding issues related to treaties made that have been signed by the President and ratified by the U.S. Senate. The courts may not hear cases that are regarding issues not within the authorities of the federal government.

 

A recent example would be the flurry of federal court rulings against State laws defining marriage as between a man and a woman. In California, the State’s attempt to protect the government definition of marriage was with Proposition 8. The proposition changed the State Constitution to read that marriage is between a man and a woman. Marriage is not an issue that falls under the authorities of the federal government as expressly granted by the Constitution, nor is the issue of marriage prohibited to the States. Therefore, as per the authorities granted, and not granted, in line with the 10th Amendment, the government authority over marriage is reserved to the States. Since the issue of marriage is a State issue, the case should not have gone beyond the State Supreme Court. The federal courts hearing the case regarding Proposition 8, or any of the State laws regarding marriage, are acting unconstitutionally. The governors of these States, whose marriage laws were overturned by an activist federal court system, have the right to disregard all rulings by the federal courts on this issue. The action of ignoring the rulings is a type of nullification, and States have the right to nullify unconstitutional laws or actions by the federal government..

 

Other limitations have been placed upon the federal courts as well. The 11th Amendment changed the intent of Article III. As limited as the courts were supposed to be, the Founding Fathers realized the courts weren't limited enough, and as a result, the 11th Amendment wound up being ratified in 1795. The 11th Amendment was encouraged by a federal case called Chisolm v. Georgia (1793).

 

 

Chisolm v. Georgia (1793)

 

An increasing problem with federal intrusion on the States via the federal court system culminated in the case of Chisholm v. Georgia in 1793, which eventually led to the proposal, and ratification, of the 11th Amendment. A citizen of South Carolina sued the State of Georgia for the value of clothing supplied by a merchant during the Revolutionary War. After Georgia refused to appear, claiming immunity as a sovereign state, as per the Constitution (Article III, Section 2) the federal courts took the case. The judges in the court system tended to embrace a nationalist view of the federal government, and their nationalist point of view encouraged the judges to deem that in the Chisolm v. Georgia case, Georgia was not a sovereign state, therefore the Supreme Court entered a default judgment against Georgia. What ensued was a conflict between federal jurisdiction and state sovereignty that reminded the anti-federalists of their fears of a centralized federal government consolidating the states, and destroying their right to individual sovereignty.

 

Realizing that the clause in Article III gave the federal courts too much power over state sovereignty, Congress immediately proposed the 11th Amendment in order to take away federal court jurisdiction in suits commenced against a State by citizens of another State or of a foreign state. This is the first instance in which a Supreme Court decision was superseded by a constitutional amendment, and evidence that the founders saw the legislative branch, and the States, as being a more powerful part of government over the federal judiciary.

 

Authorities

 

The 10th Amendment to the Constitution of the United States of America states that the powers not delegated to the United States by the Constitution, or prohibited by it to the States, are reserved to the States respectively, or to the people. The federal courts are included in that, as being a part of the United States federal government. As a result of the nature of how federal authorities are granted, the federal court system can only hear cases that fall within the constitutional authorities for the federal government.

 

When one understands the importance of protecting state sovereignty, and that the courts are supposed to be very limited in their scope and power, Article III becomes much simpler to understand.

 

As stated earlier in this section, the first sentence of Article III, Section 2, reads: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States (which are only supposed to be passed if they are within the authorities granted by the Constitution), and Treaties made . . .

 

Notice the phrase, "arising under this Constitution." If the case is not involving the federal government as one of the parties, or is not regarding an issue that falls under the authorities of the U.S. Constitution, the federal courts can simply not take the case. The State Supreme Court, in those cases, is the highest court the case can go to.

 

 

Judicial Review

 

Federal judges maintain that the federal courts have the power of judicial review, or the power to determine the constitutionality of laws. In response to the judicial urgings for the powers to judge the extent of the federal government's powers, in the Kentucky and Virginia Resolutions of 1798, Thomas Jefferson and James Madison warned us that giving the federal government through its courts the power of judicial review would be a power that would continue to grow, regardless of elections, putting at risk the all important concept of the separation of powers, and other much-touted limits on power. The final arbiters of the Constitution are not the courts, argued the Founding Fathers who supported the foundation of limiting principles of the U.S. Constitution. The power of the federal government must be checked by State governments, and the people. The States and the People are the enforcers and protectors of the U.S. Constitution.

 

In today’s society it is commonly accepted that one of the roles of the federal court system is to interpret the Constitution, and issue rulings determining the constitutionality of laws. The Constitution does not grant this authority. The power of Judicial Review was given to the courts by themselves.

 

The first attempt to establish “Judicial Review” as an authority to the federal court system was through the Judiciary act of 1789, but the authority allowing the United States federal courts to hear a civil case because the plaintiff has alleged a violation of the United States Constitution, federal law, or a treaty to which the United States is a party, was limited to only the United States Supreme Court. The lower federal courts, at this point, were not allowed hear cases questioning the federal government’s “federal question jurisdiction.” Anti-federalists, and Jefferson Republicans immediately railed against the legislation, arguing that legislation cannot determine authorities granted.

 

The Federalists, in an attempt to allow the lower courts to wield the power of judicial review, briefly created such jurisdiction in the Judiciary Act of 1801, but it was repealed the following year. Unable to establish the federal court system as the final arbiters of the United States Constitution through legislative means, the Federalists turned to the courts themselves to drive into place the controversial authority.

 

During John Adams' final moments in the presidency, he appointed a whole host of "midnight judges" (appointing 16 Federalist circuit judges and 42 Federalist justices of the peace to offices created by the Judiciary Act of 1801) in the hopes of retaining federalist control of the courts as Jefferson's Democratic-Republicans gained control of the Congress, and Jefferson himself accepted the presidency.

 

Thomas Jefferson’s Democratic-Republicans were appalled by the appointment of the Midnight Judges, recognizing the stacking of the courts as a desperate attempt by the Federalists to try and continue Federalist influence despite their election loss. 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."

 

While Adams was still in office, most of the commissions for these newly appointed judges were delivered. However, unable to deliver all of them before Adams' term expired, some of them were left to be delivered by the incoming Secretary of State, James Madison. Jefferson ordered them not to be delivered, and without the commissions delivered, the remaining new appointees were unable to assume the offices and duties to which they had been appointed to by Adams. In Jefferson's opinion, the undelivered commissions were void.

 

One of those appointed judges was a man named William Marbury. He sued, and the case worked its way up to the Supreme Court. After all of the dust settled, on February 24, 1803, the Court rendered a unanimous (4-0) decision that Marbury had the right to his commission, but the court did not have the power to force Madison to deliver the commission. Chief Justice Marshall wrote the opinion of the court, and in that opinion he wrote that the federal court system has the power of judicial review. Rather than simply applying the law to the cases, Marshall decided, based on case law and precedent, that the courts have the authority to determine the validity of the law as well. This opinion, however, went against all of the limitations placed on the courts by the Constitution.

 

One of the most obvious fundamental principles of the Constitution is the limitations it places on the federal government. The Constitution is designed not to tell the federal government what it can't do, but to offer enumerated powers to which the authorities of the federal government are limited to. The powers are granted by the States, and any additional authorities must also be approved by the States through the ratification of any proposed amendments. It takes 3/4 of the States to ratify an amendment. The congressional proposal of an amendment, with the ratification of that amendment, in the simplest terms, is the federal government asking the States for permission to a particular authority.

 

The power of Judicial Review, or the authority to determine if laws are constitutional, was not granted to the courts by the States in the Constitution. The courts took that power upon themselves through Justice Marshall's opinion of Marbury v. Madison.

 

The federal courts are a part of the federal government. The Constitution was designed to limit the authorities of the federal government by granting only a limited number of powers. Judicial Review enables the federal government, through the courts, to determine if the laws that the federal government made are constitutional. In other words, the federal government, through Judicial Review, can determine for itself what its own authorities are.

 

The idea that the federal court system has the authority to interpret the Constitution, and can decide if a law is constitutional or not, is unconstitutional, and is simply an attempt by those that believe in big government to gain power, and work towards a more centralized big federal governmental system.

 

 

Original Jurisdiction

 

In Article III, Section 2, Clause 2 the Constitution reads: "In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction."

 

What this means is that in all of those above listed cases, the federal appellate courts cannot take the case. Such cases must bypass the federal appellate system, and go straight to the Supreme Court. Since one of those stipulations is in regards to cases "in which a State shall be a Party," that means that the case "U.S. v. Arizona" where the federal government sued Arizona to block the State's immigration law, was unconstitutional. It was unconstitutional for the inferior federal courts to hear the case. The Supreme Court had original jurisdiction. Therefore, when the district court ruled in July of 2010 on the case, and struck down parts of the Arizona immigration law, not only did that court not have jurisdiction to hear the case in the first place, but the very act of striking down portions of the law was unconstitutional. After all, Article I, Section 1 grants the legislative branch all legislative powers, and those powers would include the ability to strike down law. The courts were not vested with any legislative powers, and therefore cannot strike down laws, or portions of laws.

 

 

Trial by Jury

 

Article III, Section II, Clause 3 sets up the right to a trial by jury, except in the cases of impeachment.

 

This clause also requires that a trial must be held in the state where the crime was committed. If the crime was not committed in any particular state, then the trial is held in such a place as set forth by the Congress.

 

 

 

Treason

 

Article III, Section 3 defines treason, as well as the granting of the power by the Congress to declare the punishment. When the Constitution says that "no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attained," it means that the punishment cannot be inherited or passed down (corruption of blood), nor shall the person be denied due process (attainder).

 

Corruption of blood also means that all inheritable qualities are destroyed, and the Founding Fathers did not believe this English practice should be an American one.

 

No forfeiture meant that despite treason, the properties of the person could not be forfeited to the government. The property would remain as property of the individual, or remain with family. Even when it came to the despicable act of treason, the founders believed that the individual should be able to retain certain rights.

 

 

Terms:

 

Corruption of Blood: Punishment inherited or passed down, all inheritable qualities are destroyed.

 

Judicial Review: The unconstitutional authority of the federal courts to review law, interpret the Constitution regarding laws, and then determine the constitutionality of laws.

 

Original Jurisdiction: In the Constitution the Supreme Court has original jurisdiction on some cases, which means the case must proceed directly to the Supreme Court, and the high court must make a determination on whether or not to accept the case.

 

Treason: Levying war against the States, or adhering to the enemies of the States, giving aid and comfort to the enemy.

 

Questions for Discussion:

 

1. How would life in the United States be different if there was no federal court system?

 

2. Why did the Founding Fathers limit the authorities of the federal courts?

 

3. How has Judicial Review changed our system of government?

 

4. Why do you think the Supreme Court has Original Jurisdiction over some cases?

 

5. In what ways is the presence of a Judicial Branch important?

 

Resources:

 

Draft of the Kentucky Resolutions (Jefferson’s Draft), Avalon Project, Yale University: http://avalon.law.yale.edu/18th_century/jeffken.asp

 

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

 

Virginia Resolution - Alien and Sedition Acts, Avalon Project, Yale University:

http://avalon.law.yale.edu/18th_century/virres.asp

Copyright: Douglas V. Gibbs, 2015

 


 

Monday, September 27, 2021

Huntington Beach Constitution Class: Executive Procedures

We are back at Bergman Family Chiropractic, this week, but at Monday Night's Class we need to make a decision about location. Do we use the Bergman office three nights a month and IHOP one night a month, or do we move the class each Monday Night to IHOP? Let's talk about it at class...

6:00 pm

Mondays

@ Bergman Family Chiropractic

  18582 Beach Blvd

  Huntington Beach


Constitution Class Handout

Instructor: Douglas V. Gibbs

 

www.politicalpistachio.com

www.douglasvgibbs.com

www.constitutionassociation.com

 

 

Lesson 5: Establishing the Executive Branch

 

Article II, Section 1, Executive Power Established

 

Article II establishes the Executive Branch. The Founding Fathers were anxious regarding the creation of the office of the executive because they feared that a leader with too much power had the potential of being tyrannical. Many of the founders even argued that there should not be one executive, but many, so that they may serve as checks against each other. Their concerns were well placed, if one considers that their frame of reference was the authoritarian king of the British Empire.

 

Despite their fears, they knew that the authorities of the president under the Articles of Confederation were too few, leaving the office of the president much too weak to adequately serve the union. The founders were looking for a strong leader that also recognized the limitations on the authorities of the federal government as granted by the States through the articles of the Constitution. The best model for the presidency was a simple choice. Article II was written, some believe, with George Washington in mind.

 

Article II, Section 1, Clause 1 states that the powers of the executive are “vested.” This word, as we learned when we went over Article I, Section 1, carries a meaning similar to that of the word “granted.” Vested means “legally transferred.” The President’s authorities are powers given to him through a legal transfer of authorities.  The powers vested to the Executive Branch were granted by the States.

 

The founders understood that whenever there is a “leader,” there is a struggle for power. America has been no different. The office of the president has increased its powers over the years, mostly through unconstitutional means. The Founding Fathers sought to limit the powers to the executive. Among those limitations of powers is also a term-limit. The executive is limited to a term of four years, as is the Vice President.

 

Election

 

The election of the President and Vice President is not accomplished by direct election. Appointed electors vote for the President and Vice President. The electors were originally appointed by the States during the early elections of American History. The formula for determining the number of electors is determined by taking the number of Representatives and Senators the State is entitled in Congress, and combining those two numbers. This method of indirect election is also known as The Electoral College, which was designed in this manner specifically to protect the United States against the excesses of democracy.

 

After the 2000 election, where the winner of the popular vote was denied the presidency because he did not win the fight for electors, questions regarding the Electoral College arose. It was only the fourth time in history such an event occurred. To find precedents resembling the 2000 election one has to go back to the 19th century, to the elections of 1888, 1876, and 1824. Those were the only elections in American history prior to the election in 2000 where a winner in the popular vote was denied the presidency through the Electoral College system.

 

Recently, there has been a number of officials promising to introduce legislation to abolish the Electoral College, claiming that it no longer serves a good purpose in modern politics. The reasoning of these folks that oppose the Electoral College suggests that the United States should simply allow the popular vote of the American people be followed every four years when we elect our president.

 

A number of Americans have voiced their agreement with this opinion, arguing that the individual running for President receiving the most votes should win. An indirect election such as the Electoral College, argue these folks, is simply unfair and undemocratic. In other words, they believe the American political system should operate as a direct democracy.

 

The Founding Fathers purposely did not make this country a democracy. The United States is a Republic, equipped with checks and balances at all levels of government, including the voting process. Democracies were proven, according to the founders, to be failures.

 

John Adams was quoted to say, “Democracy never lasts long. It soon wastes, exhausts, and murders itself. There is never a democracy that did not commit suicide.”

 

Thomas Jefferson said, “The democracy will cease to exist when you take away from those who are willing to work and give to those who would not.”

 

The founders are not the only historical figures to recognize that a democracy opposes liberty.

 

Karl Marx once said, “Democracy is the road to socialism.”

 

Karl Marx, the father of communism, understood that the implementation of a democracy is a necessary step in the process of destroying our Constitutional Republic. Once the people are fooled to believe that they can receive gifts from the treasury rather than achieve for their livelihood, they will continually vote in the people who ensure the entitlements continue to flow. Eventually, this mindset becomes the majority. This group then changes over time from an involved and informed electorate to a populace that lacks the understanding of the principles of liberty and can easily be manipulated into believing that sacrificing individual liberty in exchange for social justice and security is a price that we must be willing to pay. A group that is dependent upon the government in such a manner, then, is prime to vote into power a tyranny. Eliminating the Electoral College would make it easier for these members of our society to vote into office those that promise more entitlements.

 

Once the majority of the voters in a Democracy become the recipients of benefits from the Federal Government, the government achieves unchecked power, and may then violate the property rights of the productive members of society in order to provide benefits to the non-productive members of society. This is best characterized in the "tax the rich," or “redistribution of wealth,” scheme we are now seeing emerge as the rally cry by the current administration. The founders called this method a “scheme of leveling.”

 

The founders were aware of this danger, which is why they established our system of government, and the electoral college, in the manner they did. A true democracy becomes “mob rule,” and the principles of liberty become a target for elimination.

 

“A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other forty-nine.” -- Thomas Jefferson

 

In order to preserve our Constitutional Republic it was imperative for the vote of the people to be indirect, except when it came to voting for their representatives in the House of Representatives. The Founding Fathers divided power as much as possible, including the power of the vote.

 

Originally, the State Legislatures appointed the electors that cast their votes in the Presidential Election. That changed in 1824 when all but six states decided the electors should to vote in line with the popular vote.

 

U.S. Senators were initially appointed by the State Legislatures, which ensured the voice of the States was present in the federal government. That changed in 1913 with the 17th Amendment, which transferred the vote for the U.S. Senators to the popular vote. The 17th Amendment took away from the States their representation in the federal government.

 

The Founding Fathers divided the voting power as they did partially because if the power to vote for president, the House, and the Senate all fell to the people, and if the people were fooled by some political ideology that wished to destroy the republic by fundamentally changing the American System, a tyranny could be easily voted into control of all parts of the government without any checks present whatsoever. When the majority of voters are uninformed in such a manner, and are given the full voting power, tyranny is inevitable.

 

Winston Churchill understood the dangers of trusting an uninformed electorate with the capacity to govern. He was quoted as saying, “The best argument against democracy is a five minute conversation with the average voter.”

The elimination of the Electoral College would take away the voice of the smaller states, give the election of the President to the seven largest metropolitan centers in the United States, and lead America even closer to becoming a democracy.

 

Democracy is a transitional governmental system that ultimately leads to tyranny. This was true in the days of the French Revolution no less than it is true today.

While democracy lasts it becomes more bloody than either aristocracy or monarchy…Democracy never lasts long. It soon wastes, exhausts, and murders itself. There is never a democracy that did not commit suicide. -- John Adams

 

Democracy is two wolves and a sheep voting on what to have for dinner” -- James Bovard

 

Our country is not a democracy. Our nation was founded as a constitutionally limited republic. The indirect election of the President through the Electoral College reflects that truth, and the Electoral College is one of the last vestiges of the system of checks and balances as they apply to the voters.

 

Article II, Section 1, Clause 4 indicates that the Congress may determine the time and day the electors are chosen, and give their votes. The day they vote for President and Vice President, according to this clause, will be the same day nationally. The rules for the popular election, if you will remember from Article I, are to be established by the State legislatures.

 

Eligibility

 

Article II, Section 1, Clause 5 states that the eligibility for President includes the requirement that the individual be a natural born Citizen.

 

Notice that the Constitution says a natural born citizen, “or” a citizen of the United States at the time of the adoption of the Constitution. This was to ensure that anyone alive at the time of the adoption of the Constitution who was a citizen was eligible, and anyone born after the adoption of the Constitution had to be a natural born citizen to be eligible. The word “or” gives us a clue that there is a difference between “natural born citizen,” and “citizen.”

 

Some people will use the Fourteenth Amendment as an argument regarding the definition of natural born citizen. The Fourteenth Amendment says, “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.”

 

The Fourteenth Amendment, in this clause, as it states, only addresses “citizenship” - not the concept of being a natural born citizen. Therefore, it does not apply when discussing the concept of natural born citizenship. The clause was written as it was to protect the citizenship of the children of the emancipated slaves. The word “jurisdiction” was placed in that clause to mean “full allegiance.” There was a fear during that time, as there had been during the founding of this nation, of divided allegiance, or divided loyalties.

 

Natural Born Citizen is not defined in the Constitution primarily because it was common knowledge. People understood what the term “Natural Born Citizen” meant.

 

Today we have a number of terms that are understood without needing to be defined. One of those terms is “fast food.” Without needing a definition provided, most people know what “fast food” is. That does not mean the term will be readily understood by some historian of the future. He may ask himself, when he comes across that term in our literature, “Why is it their food was fast? Did it run quickly away from them?” To understand what “fast food” meant to us, he may have to refer to a number of writings before he finally comes across the definition.

 

One of the sources the Founding Fathers used when it came to establishing the definition of “Natural Born Citizen” was Vatell’s “Law of Nations.”

 

Vatell’s Law of Nations is mentioned once in the Constitution in Article I, Section 8, Clause 10, and it is capitalized - which suggests the mention of the Law of Nations to be a proper noun, thus supporting the argument that it is a direct reference to Vatell’s writings.

 

Recently, it was discovered that George Washington failed to return a couple library books to the New York City Public Library. One of those books was Vatell’s Law of Nations. Washington checked the book out in 1789, shortly after the Constitutional Convention, probably because of the heavy influence the definitions in Vatell’s Law of Nations played on the writing of the U.S. Constitution.

 

Benjamin Franklin owned three copies of the Law of Nations - two for the convention, and one for his personal use. He received those copies from the editor, Dumas, in 1775.

Vatell’s Law of Nations Section 212 indicates that to be a Natural Born Citizen both parents must be citizens at the time of the birth of the child. As with the Fourteenth Amendment, there was a fear of divided allegiance.

 

Vetell’s Law of Nations required also that the child be born on American Soil, but if you read further down the section addresses other possibilities. The Immigration and Naturalization Act of 1790 confirmed the definition not requiring the child to be born on American soil, but still requiring that both parents be American citizens at the time of the child’s birth. The section in the Naturalization Act of 1790 I am referring to specifically reads: “And the children of citizens of the United States that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States.”

 

Note that the fifth word, citizens, is in the plural, which means it requires both parents to be citizens at the time of the birth of the child in order for the child to be a “Natural Born Citizen.”

 

Article II also establishes that in order to be eligible for the presidency the candidate must be at least the age of 35. This requirement, reasoned the founders, would ensure that the immaturities of youth had passed away. Along with a relatively mature age, the Constitution indicates that the president must also have been a resident of the United States for the last fourteen years. This, once again, was a guard against divided loyalties.

 

The Vice President must also meet all eligibility requirements. In the 18th century the Vice President was the second place winner in the election, and therefore had to be eligible because he was originally running for President. Now, the Vice President is elected as a part of the presidential ticket. However, to ensure it was clear that the Vice President also had to be eligible for the presidency, especially since he was next in line for the presidency should the Office of President be vacated, the 12th Amendment ends with a sentence that demands the Vice President is eligible for the presidency.

 

In Case of Death

 

Article II, Section 1, Clause 6 was changed by the Twelfth Amendment. This clause established the rules in case of the death of the President while in office. The clause gave the Office of the President to the Vice President in the case of death. The ambiguity of the clause, however, created confusion. In the case of President Benjamin Harrison who died after only 30 days in office, it created a constitutional crisis. The officials of that time did not know what to do. When old Tippecanoe died, he was succeeded by his Vice-President John Tyler, but since no President had died in office before, no one was quite sure how Presidential succession worked. The Constitution stipulated that the Vice-President should become the new President, but it was not clear if the Vice-President should be considered a "real" President, or if he only “acted” as President. The Tyler administration made it clear that Vice-Presidents who became President after the death of the elected President should be treated as legitimate Presidents.

 

The Twelfth Amendment later addressed the problem with more specified rules. Later, succession was resolved once and for all with the ratification of the 25th Amendment in 1967.

 

Compensation

 

Article II, Section 1, Clause 7 allows for the President to be compensated for his service as President of the United States. This salary is not to be increased or diminished while the President serves. The President, according to this clause, is also not allowed to receive any other governmental salary from the federal government during his term as President. In George Washington’s First Inaugural Address, he announced that he would accept no salary as President.

 

Oath or Affirmation

 

In the final Clause of Article II, Section 1, the Oath or Affirmation for the Office of President was established.

 

The reason for the clause indicating Oath “or” Affirmation was because an Oath is to God, and an Affirmation is not. The founders understood that not all Americans believe in God, therefore an option needed to be available for non-believers. Affirmation was also included as an option because there were some Christians that believed swearing to God to be a sin. Offering the opportunity to “affirm” gave these Christians an opportunity to take the affirmation of office without compromising their religious beliefs.

 

Note that the President is expected, according to the text of the oath or affirmation, to preserve, protect, and defend the Constitution of the United States.

 

You will also note that placing one’s hand on a Bible is not in this Article. The placement of a hand on a Bible while reciting the Oath or Affirmation was something that George Washington chose to do, and it has been a tradition ever since.

 

Terms:

 

Democracy: A form of government in which all citizens have an equal say in the decisions that affect their lives. Such a system includes equal participation in the proposal, development and passage of legislation into law.

 

Electoral College: A body of electors chosen by the voters in each state to elect the President and Vice President of the U.S.

 

Executive Branch: The branch of government responsible for executing, or carrying out, the laws. An executive in government can be a president, or a governor.

 

Leveling: Moving money from one group of people to another by raising and lower taxes accordingly in an effort to achieve economic equity in society.

 

Republic: Form of government that uses the rule of law through a government system led by representatives and officials voted in by a democratic process. The United States enjoys a Constitutional Republic.

 

Questions for Discussion:

 

1. Why didn’t the Founding Fathers make the President a king?

 

2. How does the Electoral College ensure fairness for the minority States?

 

3. What is the difference between a democracy and a republic?

4. Why did the Founding Fathers divide the voting power?

 

5. How is “citizen,” and “natural born citizen,” different?

 

6. Why were the Founding Fathers concerned about divided loyalty?

 

7. How does the eligibility requirements ensure that the President, especially as Commander in Chief, holds full allegiance for the United States?

 

8. How was the way the Vice President was chosen in the 18th century different from how the Vice President is chosen today?

 

Resources:

 

Alexander Hamilton, The Law of Nations and the U.S. Constitution, http://east_west_dialogue.tripod.com/vattel/id4.html

 

Associated Press, “Hillary Clinton Calls for End to Electoral College,” CBS News (2009) http://www.cbsnews.com/stories/2000/11/10/politics/main248645.shtml

 

George Washington, The First Inaugural Address of George Washington, The Avalon Project - Yale University (1789/2008) http://avalon.law.yale.edu/18th_century/wash1.asp

 

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

 

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

 

Marjorie Kehe, “How George Washington racked up a $300,000 fine for overdue library books,” Christian Science Monitor, http://www.csmonitor.com/Books/chapter-and-verse/2010/0419/How-George-Washington-racked-up-a-300-000-fine-for-overdue-library-books

 

Mountain Publius Goat, “Law of Nations, 1758 law book defines Natural Born Citizen,” Kerchner (2008) http://www.kerchner.com/protectourliberty/goatsledge/20081212%20Law%20of%20Nations.pdf

 

Naturalization Act of 1790, Harvard University: http://pds.lib.harvard.edu/pds/viewtext/5596748?n=1&imagesize=1200&jp2Res=.25&printThumbnails=no

 

Ron Paul, “Hands Off The Electoral College,” Lew Rockwell (2004) http://www.lewrockwell.com/paul/paul226.html

 

Ron Paul, “The Electoral College vs. Mob Rule,” Lew Rockwell (2004) http://www.lewrockwell.com/paul/paul214.html

 

Sean Rooney, “The Death of President William Henry Harrison,” Associated Content (2008) http://www.associatedcontent.com/article/518591/the_death_of_president_william_henry.html?cat=37

 

Vatell’s Law of Nations: http://www.constitution.org/vattel/vattel_01.htm

 



Copyright Douglas V. Gibbs 2015