Constitution Study with Douglas V. Gibbs
Thursday, June 24, 2010
24th Amendment, Implied Law, Open Primaries; Article I, Section 9, Clause 3 - Bill of Attainder
Supporters of Open Primaries contend that Closed Primaries are in violation of the 24th Amendment because limiting who can vote in a primary by party membership is a poll tax as per implied law.
Poll Tax: NOUN: A tax levied on people rather than on property, often as a requirement for voting.
A poll tax is a uniformed tax levied on every adult in the community. Poll taxes have their roots in ancient tax systems and have been criticized as an unfair burden on the poor. Historically, in the U.S., they were enacted in the South as a prerequisite for voting disfranchising many African Americans and poor whites.
The 24th Amendment to the U.S. Constitution ratified in 1964 that made it illegal for a state to use payment to all taxes as a requirement to vote in national elections. Few blacks could vote because they had a little money. The poll tax to vote was $1.50. A woman decided to take the poll tax issue to court. In October 1965, the U.S. Supreme Court agreed to hear Evelyn T. Butts' appeal. In 1966 the Supreme Court of the United States declared Poll Taxes unconstitutional.
A recent shake-down by the Obama administration of British Petroleum forced the oil company to take responsibility for their failure regarding the oil spill in the Gulf of Mexico at the Deepwater Horizon rig. The White House has declared BP to be guilty of negligence, is the responsible party, and non-compliance with the demands of the Obama administration will not be tolerated.
Is the meeting between Obama and the BP CEO that resulted in a $20 billion fund paid out by BP as a punishment for their negligence constitutional?
The Constitution is very specific, and calls such action a Bill of Attainder. A Bill of Attainder is by definition a "legislative act which declares a named person guilty of a crime, particularly treason." Such bills are prohibited by Article I, Section 9 of the Constitution.
A bill of attainder (also known as an act or writ of attainder) is an act of the legislature declaring a person or group of persons guilty of some crime and punishing them without the benefit of a trial.
Bills of attainder find their history in connection to America's disdain for such an action in 18th century England. Bills of attainder were also applied to the British colonies. Anger about bills of attainder was one of the motivations for the American Revolution. The colonists considered bills of attainder an injustice. Later debate, however, arose when the American Colonies used bills of attainder themselves to confiscate the property of British loyalists (called Tories) during the revolution. The American dissatisfaction with attainder laws motivated the prohibition of bills of attainder in the Constitution.
The U.S. Constitution forbids bills of attainder under Article I, Section 9. The colonists considered bills of an excess or abuse of the British monarchy and parliament. Attainder as such was also a legal consequence of convictions in courts of law, but this ceased to be a part of punishment in 1870. The provision forbidding state law bills of attainder reflects the importance that the framers attached to this issue, since the unamended constitution imposes very few restrictions on state governments' power. (Article I, Section 10, Clause 1)
Two purposes are served by the presence of the clauses forbidding attainder laws. The attainder laws reinforce the separation of powers, by forbidding the legislature to perform judicial functions - since the outcome of any such acts of legislature would of necessity take the form of a bill of attainder. Also, the clauses embody the concept of due process, which was later reinforced by the Fifth Amendment of the Constitution.
Up until 2002, only five acts of Congress had ever been overturned on bill of attainder grounds. The Elizabeth Morgan Act was overturned in 2003 as a bill of attainder. many suggested that the Palm Sunday Compromise in the case of Terri Schiavo was also a bill of attainder. The cases of U.S. v. Brown, U.S. v. Lovett, and In re Yung Sing Hee establish bills of pains and penalties as punishment without trial, and included within the prohibitions of bills of attainder. The precedent that best reflects most of the original intention of the mandates is from Cummings v. Missouri. It states a bill of attainder is a legislative act which inflicts punishment without judicial trial and includes any legislative act which takes away the life, liberty or property of a particular named or easily ascertainable person or group of persons because the legislature thinks them guilty of conduct which deserves punishment.
U.S. v. Lovett was a case historically relevant to taking away pay checks of government workers Congress could accuse of being Communists. This was an asset forfeiture case. It states: Legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a trial, are 'bills of attainder' prohibited under this clause.
a Special Thanks to:
Faith Armory, 27498 Enterprise Cir W #2, Temecula, CA 92562
951-699-7500, www.faitharmory.com - For providing us with a classroom to meet in.
Thursday, June 24, 2010
Thursday, June 17, 2010
Constitution Study, June 17, 2010
The Pledge of Allegiance
"I pledge allegiance to the Flag
Of the United States of America,
And to the Republic for which it stands:
One Nation under God, indivisible,
with Liberty and Justice for all"
The Pledge of Allegiance is a traditional oath of loyalty to the United States of America. It was written in 1892 by Francis Bellamy, a Baptist minister and socialist.
In the United States, the Pledge of Allegiance is recited on many formal occasions, including at the beginning of the school day, and the opening of certain kinds of meetings. When the Pledge is recited, civilians face the Flag and place their right hands over their hearts. Men remove any non-religious headdress and hold it in the right hand. Military personnel in uniform remain silent and salute the flag. Under many public circumstances, in a display of patriotism, the Pledge will be followed with the singing of "America the Beautiful" and the National Anthem, "The Star Spangled Banner".
The phrase "under God" was added in 1954, by a bill signed into law by President Eisenhower on June 14, 1954 (Flag Day), largely driven by the lobbying of the Knights of Columbus, as a means of differentiating America from the "godless" Communists of the USSR.
Bellamy wrote the Pledge in the hopes that it would create a sense of nationalism in America, and convince her to adopt the principles of socialism, a concept akin to his cousin’s (Edward Bellamy) writings regarding utopianism.
The original "Pledge of Allegiance" was published in the September 8 issue of the popular children's magazine The Youth's Companion as part of the National Public-School Celebration of Columbus Day, a celebration of the 400th anniversary of Christopher Columbus's discovery of America. The event was conceived and promoted by James B. Upham, a marketer for the magazine, in a campaign to encourage patriotism and the display of the American flag in public schools.
Bellamy's original Pledge read as follows:
I pledge allegiance to my Flag and to the Republic for which it stands, one nation indivisible, with liberty and justice for all.
President Benjamin Harrison’s proclamation ensured the Pledge was first used in public schools on October 12, 1892, during Columbus Day observances. Bellamy hoped the pledge would involve children across the country in a large demonstration of national solidarity and nationalism.
In 1923 the National Flag Conference called for the words "my Flag" to be changed to "the Flag of the United States", for the benefit of new immigrants. The words "of America" were added a year later. The United States Congress officially recognized the Pledge as the official national pledge on June 22, 1942.
The Pledge stirred controversy, and violence, when in the 1940 the Supreme Court decision, in Minersville School District v. Gobitis, it was ruled that students in public schools could be compelled to swear the Pledge. The ruling intended to ensure the Pledge was recited, even though Jehovah's Witnesses like the defendants in that case who considered the flag salute to be idolatry. A rash of mob violence and intimidation against Jehovah's Witnesses followed the ruling. In 1943 the Supreme Court reversed its decision, ruling in West Virginia State Board of Education v. Barnette that "compulsory unification of opinion" violated the First Amendment.
The right hand over the heart was not the original salute to the flag. Though some schools used a “right hand, palm down, across the chest” salute, the salute that Bellamy created for the Pledge, adopted in 1892, and known as the Bellamy salute, started with the hand outstretched toward the flag, palm down, and ended with the palm up. The similarity between the Bellamy salute and the Nazi salute decades later encouraged President Franklin D. Roosevelt to institute the hand-over-the-heart gesture as the salute to be rendered by civilians during the Pledge of Allegiance and the national anthem in the United States, instead of the Bellamy salute. Removal of the Bellamy salute occurred on December 22, 1942, when Congress amended the Flag Code language first passed into law on June 22, 1942.
The words "under God" being added to the Pledge was initiated by Louis A. Bowman, a Chaplain of the Illinois Society of the Sons of the American Revolution. At a meeting on February 12, 1948 of the organization, Lincoln's Birthday, Bowman led the Society in swearing the Pledge with the two words added, "under God." Bowman repeated his revised version of the Pledge at other meetings as well.
In 1951, the Knights of Columbus, also began including the words "under God" in the Pledge of Allegiance. On April 30, 1951, in New York City, the Board of Directors of the Knights of Columbus adopted a resolution to amend the text of their Pledge of Allegiance to include the words "under God" after the words "one nation." Over the next two years, the idea spread throughout Knights of Columbus organizations nationwide. On August 21, 1952, the Supreme Council of the Knights of Columbus at its annual meeting adopted a resolution urging that the change be made universal. Copies of their resolution resolution were sent to the President, the Vice President (as Presiding Officer of the Senate) and the Speaker of the House of Representatives. Early attempts to change the Pledge nationally failed.
In 1952, Holger Christian Langmack wrote a letter to President Truman suggesting the inclusion of "under God" in the Pledge of Allegiance. Mr. Langmack was a Danish philosopher and educator who came to America in 1911. He was one of the originators of the Prayer Breakfast and a religious leader in Washington, D.C. President Truman met with him along with several others to discuss the inclusion of "under God". At the suggestion of a correspondent, Representative Louis C. Rabaut of Michigan sponsored a resolution to add the words "under God" to the Pledge in 1953, but the resolution failed.
Prior to February 1954, no attempt to get the Pledge officially amended succeeded. The final successful push came from George MacPherson Docherty. After George MacPherson Docherty delivered a sermon based on the Gettysburg Address titled "A New Birth of Freedom," in which he argued that the nation's might lay not in arms but its spirit and higher purpose, President Eisenhower, though raised a Jehovah's Witness, but had been baptized a Presbyterian just a year before, responded enthusiastically to Docherty in a conversation following the service. Eisenhower acted on his suggestion the next day and on February 8, 1954, Rep. Charles Oakman (R-Mich.), introduced a bill to that effect. Congress passed the necessary legislation and Eisenhower signed the bill into law on Flag Day, June 14, 1954. The phrase "under God" was incorporated into the Pledge of Allegiance June 14, 1954, by a Joint Resolution of Congress amending §7 of the Flag Code enacted in 1942.
Allegiance: Loyalty to a person, cause, nation, etc.
Communism: Theoretical economic system characterized by collective ownership of property and the organization of labor for the common advantage of all members.
Communist: Member of a movement or political party that advocates communism.
Idolatry: Worship of idols.
Loyalty: A feeling or attitude of devoted attachment or affection.
Nationalism: Devotion to one’s nation, love of one’s government.
Oath: A solemn formal declaration or promise, often calling on God. Something declared or promised.
Patriotism: Love of and devotion to one’s country.
Socialism: The stage in Marxist theory between Capitalism and Communism.
Socialist: An advocate of the theory of social organization in which the means of producing and distributing goods is owned collectively or by a centralized government that often plans and controls the economy.
Utopianism: Social theory of principles of an ideally perfect place in its social, political, and moral aspects.
Douglas V. Gibbs
Special Thanks to for letting us use their classroom:
Faith Armory, 27498 Enterprise Cir. W. #2, Temecula, CA
Thursday, June 10, 2010
(click image to enlarge)
Constitution Study - The Branches of Government and the Political Spectrum
June 10, 2010
Article I of the United States Constitution establishes the first of the three branches of the U.S. Government, the Legislative Branch. Article II establishes the Executive Branch. Article III establishes the Judicial Branch. Amendments IX and X confirms the limiting nature of the Constitution, and the 11th Amendment places more limits on the judiciary.
The U.S. Constitution is a contract between the States and the federal government. The agreement allows the existence of the federal government so that it may serve the States as a protective mechanism in regards to the union. The authorities of the federal government are few, and the Constitution is written in such a way to limit the powers of the federal government, while promoting the sovereignty of the States.
Evidence of the limiting principles of the Constitution, aside from the text of the document itself, is contained in the numerous writings of the Founding Fathers, including, but not limited to:
- The Federalist Papers
- Madison's Notes on the Constitutional Convention
- John Taylor's New Views of the U.S. Constitution
- Various Letters written by the Founders
- Various Opinions written by the Founding Fathers, such as James Madison's veto of the Public Works bill of 1817
The arrangement of the branches of the government is also determined, and explained, by the U.S. Constitution, and the original writings of the patriots that forged this nation. By close study, it becomes apparent that the myth that states the three branches of government are three co-equal branches is a false teaching. The branches, in order of power, are also in line with the order provided in the first three articles of the U.S. Constitution.
Congress, or the Legislative Branch, holds the most power. They are given the power to impeach both President and Justices, override vetoes, ratify treaties (Senate), propose amendments, and in the case of the House of Representatives, defund policies or programs.
The President, his cabinet, and his supporting staff, or the Executive Branch, holds the second most power, with the authority to veto bills, wage war without the necessity of a declaration, and the ability to sign treaties.
The Judicial Branch, headed by the U.S. Supreme Court, is supposed to be the weakest of the three branches. Though they may rule on cases by applying the law (Constitution and appropriate law) to the cases, their allowance is supposed to be limited to cases that either name the federal government as one of the parties of the case, or cases that fall under the authority of the federal government as provided by the U.S. Constitution. Though Supreme Court Justices are given lifetime appointments, they can be impeached by Congress should the Justice be considered to have practiced bad behavior unbecoming of the court, or unlawful, in regards to the law.
Today's political viewpoint has perverted the original intent of the Founding Fathers, placing the Supreme Court as the most powerful branch, able to repeal law, interpret the Constitution, make law, and change the Constitution through the concepts of implied law, and precedent law.
Another false belief has emerged as well. We have been taught that federal law supersedes State law, and that federal courts supersede State courts - setting aside the State sovereignty the Founders fought so hard to protect.
Part of the deception regarding the American Form of Government has been fueled by the erroneous perception of the Political Spectrum. Today's worldview places Communism and Monarchies on the far left, Fascism and Nazism on the far right, and moderates closer to the center. In reality, the Political Spectrum in America is based more on the consideration of the amount of government. In such a model, the far left is 100% government. Left of center includes Monarchies, Oligarchies, Socialism, Fascism, Progressivism, Theocracies, and Hamiltonianism. To the far right is Anarchy, or 0% government. Right of center, but closer to the center than to anarchy, includes Republicanism, Conservatism, Libertarianism, and the U.S. Constitution.
The old style of the political spectrum used by the American Liberal is based on an old outdated political spectrum that originated in France just prior to the French Revolution. On the right of the assembly sat those that supported no change, supported the ruling monarchy, and supported the state church. The left was populated by those that demanded change through secular government that rejected a monarchy, but embraced a centralized government model.
Today's American Left is attempting to move America into the direction of a more centralized government, under the guise of the general will and democracy, which is a transitional government that historically always leads to a more centralized system that mirrors socialism, or other leftist systems of government.
The truth is out there. All one must ask is, "What Does The Constitution Say?"
Join us tonight at 6:00 pm in Temecula, California for our weekly Constitution Study - because We The People have the duty to restrain a government operating outside Constitutional boundaries. To facilitate our Constitutional rights we must understand what our powers are by discovering our American heritage and birthright.
The Constitution Study at 6:00 pm will be held at Faith Armory (next door to Birth Choice) at 27498 Enterprise Circle West in Temecula, California. Free Pocket Constitutions will be handed out to all attendees.
Join us in the cause of preserving our God-given Liberty, and restoring our Constitutional Republic. After all, if you don't defend Liberty, who will?
A special thanks to Faith Armory for providing the classroom for us to meet in each week. www.faitharmory.com
FEDERALIST No. 51
The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments
From the New York Packet.
Friday, February 8, 1788.
Alexander Hamilton or James Madison
To the People of the State of New York:
TO WHAT expedient, then, shall we finally resort, for maintaining in practice the necessary partition of power among the several departments, as laid down in the Constitution? The only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied, by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places. Without presuming to undertake a full development of this important idea, I will hazard a few general observations, which may perhaps place it in a clearer light, and enable us to form a more correct judgment of the principles and structure of the government planned by the convention.
In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others. Were this principle rigorously adhered to, it would require that all the appointments for the supreme executive, legislative, and judiciary magistracies should be drawn from the same fountain of authority, the people, through channels having no communication whatever with one another. Perhaps such a plan of constructing the several departments would be less difficult in practice than it may in contemplation appear. Some difficulties, however, and some additional expense would attend the execution of it. Some deviations, therefore, from the principle must be admitted. In the constitution of the judiciary department in particular, it might be inexpedient to insist rigorously on the principle: first, because peculiar qualifications being essential in the members, the primary consideration ought to be to select that mode of choice which best secures these qualifications; secondly, because the permanent tenure by which the appointments are held in that department, must soon destroy all sense of dependence on the authority conferring them.
It is equally evident, that the members of each department should be as little dependent as possible on those of the others, for the emoluments annexed to their offices. Were the executive magistrate, or the judges, not independent of the legislature in this particular, their independence in every other would be merely nominal.
But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.
This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other that the private interest of every individual may be a sentinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the State.
But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit. It may even be necessary to guard against dangerous encroachments by still further precautions. As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified. An absolute negative on the legislature appears, at first view, to be the natural defense with which the executive magistrate should be armed. But perhaps it would be neither altogether safe nor alone sufficient. On ordinary occasions it might not be exerted with the requisite firmness, and on extraordinary occasions it might be perfidiously abused. May not this defect of an absolute negative be supplied by some qualified connection between this weaker department and the weaker branch of the stronger department, by which the latter may be led to support the constitutional rights of the former, without being too much detached from the rights of its own department?
If the principles on which these observations are founded be just, as I persuade myself they are, and they be applied as a criterion to the several State constitutions, and to the federal Constitution it will be found that if the latter does not perfectly correspond with them, the former are infinitely less able to bear such a test.
There are, moreover, two considerations particularly applicable to the federal system of America, which place that system in a very interesting point of view.
First. In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.
Second. It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure. There are but two methods of providing against this evil: the one by creating a will in the community independent of the majority that is, of the society itself; the other, by comprehending in the society so many separate descriptions of citizens as will render an unjust combination of a majority of the whole very improbable, if not impracticable. The first method prevails in all governments possessing an hereditary or self-appointed authority. This, at best, is but a precarious security; because a power independent of the society may as well espouse the unjust views of the major, as the rightful interests of the minor party, and may possibly be turned against both parties. The second method will be exemplified in the federal republic of the United States. Whilst all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority. In a free government the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects. The degree of security in both cases will depend on the number of interests and sects; and this may be presumed to depend on the extent of country and number of people comprehended under the same government. This view of the subject must particularly recommend a proper federal system to all the sincere and considerate friends of republican government, since it shows that in exact proportion as the territory of the Union may be formed into more circumscribed Confederacies, or States oppressive combinations of a majority will be facilitated: the best security, under the republican forms, for the rights of every class of citizens, will be diminished: and consequently the stability and independence of some member of the government, the only other security, must be proportionately increased. Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit. In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger; and as, in the latter state, even the stronger individuals are prompted, by the uncertainty of their condition, to submit to a government which may protect the weak as well as themselves; so, in the former state, will the more powerful factions or parties be gradnally induced, by a like motive, to wish for a government which will protect all parties, the weaker as well as the more powerful. It can be little doubted that if the State of Rhode Island was separated from the Confederacy and left to itself, the insecurity of rights under the popular form of government within such narrow limits would be displayed by such reiterated oppressions of factious majorities that some power altogether independent of the people would soon be called for by the voice of the very factions whose misrule had proved the necessity of it. In the extended republic of the United States, and among the great variety of interests, parties, and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good; whilst there being thus less danger to a minor from the will of a major party, there must be less pretext, also, to provide for the security of the former, by introducing into the government a will not dependent on the latter, or, in other words, a will independent of the society itself. It is no less certain than it is important, notwithstanding the contrary opinions which have been entertained, that the larger the society, provided it lie within a practical sphere, the more duly capable it will be of self-government. And happily for the REPUBLICAN CAUSE, the practicable sphere may be carried to a very great extent, by a judicious modification and mixture of the FEDERAL PRINCIPLE.
THAT many eminent and respectable men have ever preferred, and ever will prefer, a consolidated national government to our federal system; that the constitution, under the influence of this predilection, has been erroneously construed; that these constructions are rapidly advancing towards their end, whether it shall be consolidation or disunion; that they will become a source of excessive geographical discord; and that the happiness and prosperity of the United States will be greater under a federal than under a national government, in any form, are the opinions which have suggested the following treatise. If the survey taken of these subjects is not proportioned to their importance, it yet may not be devoid of novelty, nor wholly ineffectual towards attracting more publick attention towards a question involving a mass of consequences either very good or very bad.
The Meaning of Certain Primary Words
I shall attempt to ascertain the nature of our form of government, and the existence of a project to alter it. Principles and words are the disciplinarians of construction, but the latter require definitions to come at truth.
The word union is inexplicit. It may imply either a perfect consolidation; or an association for special purposes, reaching only stated objects, and limited by positive restrictions. Of civil unions, the matrimonial is the most intimate; and yet the parties to it are invested with separate and independent rights. The ancient union of the independent kingdoms of Spain, effected by marriage or conquest, left to each many local privileges. The union of England and Scotland, effected by compact, contains stipulations beyond the power of the united government to alter, especially that in relation to the religion of the latter kingdom. That between England and Ireland is a political consolidation. The latter kingdom did not obtain an establishment of the Roman Catholick religion. Had the majority of the people possessed free will, they would have reserved this local right; and the Roman Catholick religion, like the Presbyterian, would have been placed beyond the reach of the united representation in parliament; just as the reserved rights of the states are placed beyond the reach of our united representation in Congress; because political unions for special purposes, cannot be defeated by inferences from the form adopted for their execution. In order to determine whether the United States meant by the term union, to establish a supreme power or a limited association, we must commence our inquiry at their political birth, and accommodate our arguments with the principles they avowed in proclaiming their political existence. These are stated in the declaration of independence: "We the representatives of the United States of America, in general Congress assembled, appealing to the Supreme Judge of the world, for the rectitude of our intentions, do, in the name and by the authority of the good people of these colonies, solemnly publish and declare, that these United Colonies are, and of right ought to be, free and independent states; and that as free and independent states, they have full power to levy war, conclude peace, contract alliances, establish commerce, and do all other acts and things, which independent states may of right do." Such is the origin of our liberty, and the foundation of our form of government. The consolidating project ingeniously leaves unexamined the arguments suggested by this declaration, and commences its lectures at the end of the subject to be considered. If the declaration of independence is not obligatory, our intire political fabrick has lost its magna charta, and is without any solid foundation. But if it is the basis of our form of government, it is the true expositor of the principles and terms we have adopted.The word "united" is used in conjunction with the phrase "free and independent states," and this association recognises a compatibility between the sovereignty and the union of the several states. The regulation of commerce is enumerated among the rights of sovereignty, and this right having been exercised by each state under their first confederation, because it was not surrendered, is an evidence of what was meant by the sovereignty of the states, and a proof that the separate sovereignty of each, and not a consolidated sovereignty of all, was established by the declaration of independence. The same observation applies to the sovereign rights of the states, not surrendered by the existing federal constitution.Take from the states the political character they assumed by the declaration of independence, and they could not have united. To contract, to stipulate, to unite, are among the "acts and things which independent states may of right do." The first confederation or union recognises the compatibility between the union and the sovereignty of the states. The existing union adheres to the same idea, professes to establish a more perfect union of states created by the Declaration of Independence, and contains many provisions incapable of being executed except by state sovereignty. It uses the words "United States," taken by the first confederation from the declaration of independence, and transplanted from both these instruments, in which they are associated with positive assertions of the independence and sovereignty of each state; and therefore the last instrument, like the others, recognises the compatibility between the union and the sovereignty of the several states.
The notion that the "freedom and independence of the states" refers to a consolidation of states, admits of a perfect refutation. It would render the language of the declaration of independence ungrammatical, because had this been intended, it ought to have recognised the rights of sovereignty as residing in one consolidated state, and not in several states. It would have rendered the confederation unnecessary; because, had the declaration of independence invested a consolidation of states with a power to do "all acts and things which a free and independent state may of right do," there would not have existed the least reason for delegating powers to a federal Congress. It would have divested each province or state of the right to make and alter its own constitution and its own laws; and it would have converted the exercise of any sovereign power by a state, subsequently to the declaration of independence, into usurpation. The contemporary construction of the declaration of independence was completely adverse to the idea that it had conferred any sovereign power, whatever, upon a consolidation of states. Hence a confederation became necessary; and hence the several states exercised, among others, the sovereign powers of raising armies, imposing taxes, and regulating commerce. The language used in the declaration of independence was adopted and explained by the confederation framed in 1777. It is entitled a "perpetual union," its style was "The United States of America," and it declares that "each state retains its sovereignty." So far state sovereignty is explicitly recognised, and no idea existed that it had been lost by a union of states. Upon trial, it being discovered that the powers bestowed upon Congress by the first confederation, were insufficient "for their common defence and general welfare," the ends it expresses; another union was framed by the constitution of 1787, rendered more perfect by enlarging federal powers, and repeating the same words of "common defence and general welfare" as its chief ends. If this phrase was understood, as neither creating a supreme national government, nor extending the powers delegated by the confederation of 1777, it must have been also understood in the same sense when used in the constitution of 1787. Its meaning is ascertained by the tenth section of the latter instrument. The individual states are prohibited from exercising certain attributes of sovereignty, particularly those of making war, treaties, and regulating commerce, because, except for the prohibition, they would have retained them, as adjuncts of sovereignty. The prohibition is therefore a construction of this phrase, corresponding with the construction it received when used in the confederation of 1777, and uniting both instruments with the public opinion, that neither the word union, nor this specification of its objects, extended delegated powers, created a general government or supremacy, or deprived the states of any attributes of sovereignty except those prohibited.
The word consolidation, colloquially adopted, expresses an idea opposite to that universally supposed to be conveyed by a political union of sovereign and independent states, and inconsistent with limited powers, or positive restrictions. It implies a fusion of the state sovereignties into one mass, so that each would lose its individuality. Had this event taken place, the aggregate sovereignty would certainly have imbibed all the powers annexed to the materials of which it was compounded, and the several states would not have retained a single power. We must therefore either conclude that a consolidated sovereignty was established, or that every attribute of sovereignty remained with the states, except the attributes prohibited, because these prohibitions are the only rule by which those they surrendered can be distinguished from those they retained. Had a concentrated sovereignty or supremacy been contemplated by either of our three political instruments, it would have been expressed by consolidation or an equivalent word. As this was not the case at either era, the declaration of independence, the confederation of 1777, and the constitution of 1787, have used the same words and phrases to express the publick opinion; and if the Jesuit, construction, can extract a consolidated supremacy or sovereignty out of the last of these instruments, it must have been created by the two former.
The word Congress requires attention. It was adopted by the provinces, and the declaration of independence was framed "by the representatives of the United States in Congress assembled." The representative character, was common to the Congress of the provinces, of the states under the confederation of 1777, and of the states under the constitution of 1787; but neither this character, nor the intrinsick meaning of the word, were supposed to convey any powers until very lately. If the phrase "Congress of the United States," or the representative character of one branch of that body, had conveyed implied powers, it would have been useless to grant specified legislative powers to this "Congress of the United States" by the first article of the constitution. The numerous sovereign powers not granted by this article, must either pass by implication, or not pass at all. If they did not pass by this mode of conveyance, they remained with the states. The implication or inference is obviated by selecting the word "Congress" in preference to the words parliament or assembly, to the comprehensiveness of which the states had been accustomed. It was the precise word used to express a congregation of deputies from independent states or governments. In that sense it was adopted by the provinces, used in the confederation of 1777, and repeated in the constitution. No word could have been selected with equal felicity, to convey the idea contemplated by a federal system. It avoided the implications which the usual words parliament or assembly might have furnished, and demonstrated that a body of men invested with powers equivalent to those exercised by such denominations, was not intended to be established. And it intimated the independence of the several states as being similar to the independence of the several provinces of each other, as well as to that of distinct kingdoms. The assemblage of men which framed the constitution, was called "A convention of deputies from the states of New-Hampshire, Massachusetts, Connecticut, New-York, New-Jersey, Pennsylvania, Delaware, Maryland, Virginia, North-Carolina, South-Carolina, and Georgia." By what authority did the states appoint these deputies, if not in virtue of their respective sovereignties, existing in common with a "Congress of the United States?" If a Congress did not destroy the sovereignties of the states at that time, is it reasonable to suppose that the present "Congress of the United States" was constituted to destroy them? The deputies of the states in the convention, though representatives, could not have enacted a constitution, because it would have violated the limited powers which they received from state sovereignties; and in like manner, the deputies of the states now composing a Congress, though representatives, cannot exceed their powers. It is upon this principle, that Congress cannot alter the terms of the union.
The word "federal," also adopted into our political phraseology, is a national construction of the terms used in forming our system of government, comprising a definite expression of pub-lick opinion, that state sovereignties really exist. It implies a league between sovereign nations, has been so used by all classes of people from the commencement of our political existence down to this day, and is inapplicable to a nation consolidated under one sovereignty.
The meaning of the word "state" accords with that of the words associated with it. Used in reference to individuals, it comprises a great variety of circumstances, but in reference to the publick, it means a political community. Johnson thus expounds it, and adds, that it implies a republick, or a government not monarchical. What other word was more proper to describe the communities recognised by the declaration of independence, the union of 1777, and the union of 1787? Can the same word have been intended to convey an idea in the last, inconsistent with the idea it conveys in the two first instruments? Neither monarchy nor aristocracy would have fitted the case, and the word republick itself would have been exposed to uncertainties, with which the word state is not chargeable; because it has been applied to governments discordant with those which were established by our revolution. As no word more explicitly comprises the idea of a sovereign independent community; as it is used in conjunction with a declared sovereignty and independence; as it is retained by the union of 1787, and in all the operations of our governments; and as sovereign powers only could be reserved by states; there seems to be no sound argument by which it can be deprived of its intrinsick meaning, contrary to these positive constructions.
Against this concomitancy of interpretation, the consolidating school takes refuge under the word "people," and contends that it is susceptible of a meaning which inflicts upon many of its associates the character of nonsense, and deprives them of their right to assist in the construction of the constitution. Let us therefore endeavour to defend it against the aspersion of hostility to its best friends, and to save it from the crime of self-murder. In all ages metaphysicians have been so skilful in splitting principles, as to puzzle mankind in their search after truth; and morality itself would be lost by the minuteness of their dissections, except for the resistance of common sense, and the dictates of unsophisticated conscience. But the achievement of losing twenty-four sovereign states by the acuteness of construction, and getting rid of a people in each, by means of the word necessary to describe them, was reserved for the refined politicians of the present day; and is equivalent to the ingenuity of a fisherman, who should lose a whale by a definition of his name, which would destroy his qualities.
At the commencement of the revolutionary war, emergency dictated temporary expedients, and delayed the formal adoption of measures for constituting a people in each province. A Congress was therefore appointed by provincial legislatures, by one branch of these legislatures, or by districts in a province; but when disorder was exchanged for independence, it was appointed, and its powers were derived from the state governments, who were deemed sufficient to ratify the declaration of independence, because they represented a people circumscribed within each state territory. The same species of sanction was resorted to, for the ratification of both the union of 1777 and the union of 1787.The ratification of the first was to be made by "the legislatures of all the United States," and of the latter by "the conventions of nine states." The reference to their representatives in both cases, far from acknowledging that each state was without a people, acknowledged the contrary. The differences between the two modes of ratification, consisted in the distinction between the words "legislatures and conventions," and between the necessity for unanimity in one case, and the sufficiency of nine states in the other, to establish the proposed unions. In neither, could the object be effected by a majority of the people of the United States. Whatever may be the difference between the words legislatures and convention, in other cases, there is none in this, because both were representatives of the same people. Why did the first union require a unanimity of states? Because a people of each state had been created by the declaration of independence, invested with sovereignty, and therefore entitled to unite or not. Why were the ratifying nine states only to be united by the second? For the same reason; demonstrating, that as to the ratification of both, no distinction was made between legislatures and conventions; and that a concurrence or rejection of either, was considered as a sovereign act of a state people by their representatives. This principle is confirmed beyond all doubt, by the different modes in which men act when framing a constitution for a consolidated people, or creating a federal union between distinct states. In the first case, neither the consent of every individual, nor of every county, is necessary, because no individual possesses sovereign power, and because no county comprises a people politically independent. If there are thirteen counties in a state, and the deputies of four dissent from a constitution, it is yet obligatory upon all, because all are subject to the sovereign power of one people. The constitution of the United States was only obligatory upon the ratifying states, because each state comprised a sovereign people, and no people existed, invested with a sovereignty over the thirteen states. This consent, whether expressed by state legislatures or state conventions, was the consent of distinct sovereignties, and therefore the consent of nine states could not bind four dissenting states, or even one. A majority of a state legislature or convention dictates to a minority, because it exercises the sovereignty of an associated people over individuals. If state nations had not existed, they could not have exercised this authority over minorities, and therefore it is necessary to admit their existence in order to bestow validity upon the federal constitution.
The establishment of state governments, demonstrates the existence of state nations. No act can ascertain the existence of a sovereign and independent community more completely, than the creation of a government; nor any fact more completely prove that these communities were each constituted of a distinct people, than that of their having established different forms of government. If the art of construction shall acquire the power both of dispensing with the meaning of words, and also with the most conclusive current of facts by which these words have been interpreted, it will be able, like the dispensing power of kings, to subvert any principles, however necessary to secure human happiness, and to break every ligament for tying down power to its good behaviour.
Veto of federal public works bill
March 3, 1817
To the House of Representatives of the United States:
Having considered the bill this day presented to me entitled "An act to set apart and pledge certain funds for internal improvements," and which sets apart and pledges funds "for constructing roads and canals, and improving the navigation of water courses, in order to facilitate, promote, and give security to internal commerce among the several States, and to render more easy and less expensive the means and provisions for the common defense," I am constrained by the insuperable difficulty I feel in reconciling the bill with the Constitution of the United States to return it with that objection to the House of Representatives, in which it originated.
The legislative powers vested in Congress are specified and enumerated in the eighth section of the first article of the Constitution, and it does not appear that the power proposed to be exercised by the bill is among the enumerated powers, or that it falls by any just interpretation with the power to make laws necessary and proper for carrying into execution those or other powers vested by the Constitution in the Government of the United States.
"The power to regulate commerce among the several States" can not include a power to construct roads and canals, and to improve the navigation of water courses in order to facilitate, promote, and secure such commerce without a latitude of construction departing from the ordinary import of the terms strengthened by the known inconveniences which doubtless led to the grant of this remedial power to Congress.
To refer the power in question to the clause "to provide for common defense and general welfare" would be contrary to the established and consistent rules of interpretation, as rendering the special and careful enumeration of powers which follow the clause nugatory and improper. Such a view of the Constitution would have the effect of giving to Congress a general power of legislation instead of the defined and limited one hitherto understood to belong to them, the terms "common defense and general welfare" embracing every object and act within the purview of a legislative trust. It would have the effect of subjecting both the Constitution and laws of the several States in all cases not specifically exempted to be superseded by laws of Congress, it being expressly declared "that the Constitution of the United States and laws made in pursuance thereof shall be the supreme law of the land, and the judges of every state shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding." Such a view of the Constitution, finally, would have the effect of excluding the judicial authority of the United States from its participation in guarding the boundary between the legislative powers of the General and the State Governments, inasmuch as questions relating to the general welfare, being questions of policy and expediency, are unsusceptible of judicial cognizance and decision.
A restriction of the power "to provide for the common defense and general welfare" to cases which are to be provided for by the expenditure of money would still leave within the legislative power of Congress all the great and most important measures of Government, money being the ordinary and necessary means of carrying them into execution.
If a general power to construct roads and canals, and to improve the navigation of water courses, with the train of powers incident thereto, be not possessed by Congress, the assent of the States in the mode provided in the bill can not confer the power. The only cases in which the consent and cession of particular States can extend the power of Congress are those specified and provided for in the Constitution.
I am not unaware of the great importance of roads and canals and the improved navigation of water courses, and that a power in the National Legislature to provide for them might be exercised with signal advantage to the general prosperity. But seeing that such a power is not expressly given by the Constitution, and believing that it can not be deduced from any part of it without an inadmissible latitude of construction and reliance on insufficient precedents; believing also that the permanent success of the Constitution depends on a definite partition of powers between the General and the State Governments, and that no adequate landmarks would be left by the constructive extension of the powers of Congress as proposed in the bill, I have no option but to withhold my signature from it, and to cherishing the hope that its beneficial objects may be attained by a resort for the necessary powers to the same wisdom and virtue in the nation which established the Constitution in its actual form and providently marked out in the instrument itself a safe and practicable mode of improving it as experience might suggest.
President of the United States
Thursday, June 3, 2010
Separation of Church and State - Truth or Myth?
Constitution Study with Douglas V. Gibbs
June 3, 2010
Even the textbooks in the public school system reveals that the Pilgrims first came to The New World in search of religious freedom. With this in mind, the Founding Fathers desired to protect religion from the federal government. In today’s political arena, however, it seems that things have been twisted into a strange turn that proclaims that government must be protected from religion.
The first part of the 1st Amendment reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . .”
Why was the 1st Amendment written in such a manner? And where does the idea of the Separation of Church and State come in? The concept is obviously not written in the Constitution.
To discover the origination of the idea of Separation of Church and State, one must understand the history of the colonies, and carefully read the writings of the Founding Fathers, including the series of letters between the federal government and the Danbury Baptists of Connecticut, culminating in the letters to Thomas Jefferson after he became President of the United States in 1800.
Tonight in our study of the Constitution we will discuss the early laws in the colonies regarding religion, The Fundamental Orders of Connecticut that the Danbury Baptists were subject to, and the series of letters from the Danbury Baptists with a final reading of the letter Jefferson wrote to the Danbury Baptists from which the infamous concept of Separation of Church and State was eventually derived from.
The Founding Fathers desired that Americans be free to worship as they wished, without being compelled by government through an established religion. The key, however, is that they not only did not want the federal government compelling a person through laws regarding religion, but that the government shall not “prohibit the free exercise thereof.”
Thomas Jefferson, as indicated in his letter and his other writings, was against the government establishing a “State Church.” However, he also believed that men should be free to exercise their religion as they deem fit, and not to follow a government mandate. The key in the 1st Amendment is “Congress shall make no law.” Court rulings, precedent law in regards to judicial rulings, and proclamations are not law.
The Danbury Baptists were concerned over local religious freedoms, but Jefferson was clear, the federal government could not mandate anything in regards to religion. It is a State issue, and the Danbury Baptists needed to address the issue themselves. Jefferson’s reference to a wall of separation, however, did not give the federal government the right to prohibit the free exercise of religion for any reason, including on public grounds.
The Virginia Act For Establishing Religious Freedom
Thomas Jefferson, 1786
Well aware that Almighty God hath created the mind freeÖ
Be it therefore enacted by the General Assembly, That no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burdened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinions in matters of religion, and that the same shall in nowise diminish, enlarge, or affect their civil capacities.
Ö the rights hereby asserted are of the natural rights of mankind, and that if any act shall be hereafter passed to repeal the present or to narrow its operation, such act will be an infringement of natural right.
Letter to Thomas Jefferson
Danbury Baptist Association's letter to Thomas Jefferson, October 7, 1801.
Sir, — Among the many millions in America and Europe who rejoice in your Election to office; we embrace the first opportunity which we have enjoyd in our collective capacity, since your Inauguration, to express our great satisfaction, in your appointment to the chief Majestracy in the United States; And though our mode of expression may be less courtly and pompious than what many others clothe their addresses with, we beg you, Sir to believe, that none are more sincere.
Our Sentiments are uniformly on the side of Religious Liberty — That Religion is at all times and places a matter between God and individuals — That no man ought to suffer in name, person, or effects on account of his religious Opinions - That the legitimate Power of civil government extends no further than to punish the man who works ill to his neighbor: But Sir our constitution of government is not specific. Our ancient charter together with the Laws made coincident therewith, were adopted on the Basis of our government, at the time of our revolution; and such had been our Laws & usages, and such still are; that Religion is considered as the first object of Legislation; and therefore what religious privileges we enjoy (as a minor part of the State) we enjoy as favors granted, and not as inalienable rights: and these favors we receive at the expense of such degradingacknowledgements, as are inconsistent with the rights of freemen. It is not to be wondered at therefore; if those, who seek after power & gain under the pretense of government & Religion should reproach their fellow men — should reproach their chief Magistrate, as an enemy of religion Law & good order because he will not, dare not assume the prerogatives of Jehovah and make Laws to govern the Kingdom of Christ.
Sir, we are sensible that the President of the United States, is not the national legislator, and also sensible that the national government cannot destroy the Laws of each State; but our hopes are strong that the sentiments of our beloved President, which have had such genial affect already, like the radiant beams of the Sun, will shine and prevail through all these States and all the world till Hierarchy and Tyranny be destroyed from the Earth. Sir, when we reflect on your past services, and see a glow of philanthropy and good will shining forth in a course of more than thirty years we have reason to believe that America's God has raised you up to fill the chair of State out of that good will which he bears to the Millions which you preside over. May God strengthen you for the arduous task which providence & the voice of the people have cald you to sustain and support you in your Administration against all the predetermined opposition of those who wish to rise to wealth & importance on the poverty and subjection of the people
And may the Lord preserve you safe from every evil and bring you at last to his Heavenly Kingdom through Jesus Christ our Glorious Mediator.
Signed in behalf of the Association.
Ephram Robbins The Committee
Stephen S. Nelson
Jefferson's Letter to the Danbury Baptists
The Final Letter, as Sent
To messers. Nehemiah Dodge, Ephraim Robbins, & Stephen S. Nelson, a committee of the Danbury Baptist association in the state of Connecticut.
The affectionate sentiments of esteem and approbation which you are so good as to express towards me, on behalf of the Danbury Baptist association, give me the highest satisfaction. my duties dictate a faithful and zealous pursuit of the interests of my constituents, & in proportion as they are persuaded of my fidelity to those duties, the discharge of them becomes more and more pleasing.
Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should "make no law respecting an establishment of religion, or prohibiting the free exercise thereof," thus building a wall of separation between Church & State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.
I reciprocate your kind prayers for the protection & blessing of the common father and creator of man, and tender you for yourselves & your religious association, assurances of my high respect & esteem.
Jan. 1. 1802.