Wednesday, August 8, 2018

New Classes in Temecula

Republican Party Headquarters, 28120 Jefferson Ave., Temecula, CA

6:00 pm (1.5 hr)

6:00 pm (1 hr)
2nd and 4th Mondays

Originally formed in 2008 at Faith Armory, the Temecula class is the first manifestation of Doug's efforts to educate the public of the original intent of the United States Constitution.  The class moved from Faith Armory to the Riverside County GOP Headquarters in August of 2018.  Attendance, the pizza, and the pocket constitutions are free, but a monetary contribution may be provided at the end of the class to help with expenses.  The class handouts have been put together in a book form.  Purchase of The Basic Constitution is available at the class, or online.  The Wednesday Class is a 1.5 hour session class with a ten-week goal for completion.  A test will be applied at the end for students who desire to earn a certificate.  The Monday Night Class will be less formal one hour sessions.

Sunday, February 18, 2018

James Madison's Veto of federal public works bill (a.k.a. Bonus Bill)

• 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.

James Madison,

President of the United States

Thursday, December 4, 2014

2014 Temecula Constitution Class Handouts

The class is held every Thursday evening at 6:30 pm - Faith Armory, 41669 Winchester Rd., Temecula, CA

Each session stands on its own merit, you can join us at any time.

Instructor: Douglas V. Gibbs
Author of "25 Myths of the United States Constitution"

As we move through the year, handouts will be added.  Hit the link of the handout you would like to read, or simply scroll down:

Lesson 01: Basics of Government

Lesson 02: Historical Influences on the United States Constitution

Lesson 03: Founding Documents

Lesson 04: The Path to the Constitution

Lesson 05: Murmurings of Independence

Lesson 06: Revolution!

Lesson 07: Introduction to the Constitution - Preamble

Lesson 08: Legislative Branch

Lesson 09: Legislative Authorities

Lesson 10: Executive Branch

Lesson 11: Judicial Branch

Lesson 12: Concerning the States

Lesson 13: Amendments and Conventions

Lesson 14: Debt and Supremacy

Lesson 15: Ratification and Introduction to Bill of Rights

Lesson 16: First Amendment

Lesson 17: Militias and Standing Army, 2nd Amendment, 3rd Amendment

Lesson 18: The Legal Amendments, Amendments 4-8

Lesson 19: Rights and State Sovereignty, Amendments 9 and 10

Glossary of Terms for Temecula Constitution Class

More lessons as they come available. . .

Lesson 19: Rights and State Sovereignty - Amendments 9 and 10

Constitution Class Handout, 12/4/2014                              Faith Armory
Instructor: Douglas V. Gibbs                                                 41669 Winchester Rd.
                                                                                                Temecula, CA
Lesson 19

Rights and State Sovereignty

Amendment IX: A Protection of Rights Not Enumerated
The Bill of Rights was created to appease the Anti-Federalists, but many of the Framers envisioned possible dangers in its creation.  In fact, Alexander Hamilton in Federalist Paper #84 suggested that there existed the possibility of misinterpretations that may place the rights of the people in danger from an overpowering federal government.  In Federalist #84 Hamilton suggested that government may create exceptions to powers not granted, and argue the power exists because it is not denied by the Bill of Rights.  In other words, because the Constitution was designed to grant authorities, and those not listed are not granted, the Bill of Rights muddies the waters because those amendments tell the federal government what it can’t do.  Furthermore, many of the delegates in the Federal Convention of 1787 argued that the Bill of Rights is unnecessary, because prior to the creation of the Bill of Rights, the federal government was not given the authorities by the first seven articles over any of the issues listed in those first ten amendments in the first place.

Regardless, the Anti-Federalists demanded the inclusion of the Bill of Rights in the Constitution, or they would not ratify the document.  Needing the support of the Anti-Federalists in order for the Constitution to be made law, the Founding Fathers that were at odds with the creation of the Bill of Rights compromised, and James Madison was given the task to write out the Bill of Rights based on proposals received from the several States.

Hundreds of proposed amendments were offered by the States.  Only twelve were considered.  Ten were ratified by the States during that time period.  Answering concerns of the Founding Fathers that the federal government may interfere with rights not enumerated by the Bill of Rights, the 9th Amendment was included as one of those ten.

The Founders expected the people to protect their own rights through self-government.  With freedom comes responsibility, therefore the people, when it came to their rights, should be governed by their conscience, not government.  This concept tasked the people, with their individual judgment, to be civil, and to not encroach on one another’s freedoms.  If citizens were guilty of violating someone else’s rights, the civil court system in each State would address the issue.  Local courts were controlled by juries, and left all issues regarding rights at the local level.

The very notion of the federal government putting itself into a position of encroaching on the rights of the people was seen as tyrannical, and dangerous.  After all, how could a centralized, far removed, governmental power that is unfamiliar with local customs and laws properly administer private rights issues?

The problem presented by the Bill of Rights, however, is that by listing specific rights that the government shall not infringe upon, many of the founders believed that would open up the opportunity for the federal government to “interpret” the Constitution to mean that all other rights not listed are fair game.  Therefore, the wording of the 9th Amendment was carefully fashioned to enable the reader to recognize its intent.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

In other words, the government cannot “deny or disparage” any rights, even the ones not listed in the Bill of Rights, because our rights are given to us by God.  This does not give the federal government the authority to guarantee our rights, however.  To allow a central government to force lower governments to abide by the rights enumerated in the Bill of Rights is to open the door for government to later dictate to the lower governments other actions they would have to take regarding rights.  Since rights, as the Declaration of Independence reveals, are “self-evident,” as well as individual possessions, the authority to resolve disputes regarding rights remains at the local level.

Anti-Federalists - Opposed to formation of a federal government, particularly by adoption of the Constitution of the United States.

Bill of Rights - The first ten amendments of the U.S. Constitution; a formal summary of those rights and liberties considered essential to a people or group of people.

Federal Government - System of government in which power is distributed between central authority and constituent territorial units.

Federalist Papers - Series of essays written by John Jay, James Madison, and Alexander Hamilton defending, and explaining the principles of, the Constitution in order to encourage the New York Ratifying Convention to decide to ratify the Constitution.
Questions for Discussion:
1.  Why were the Anti-Federalists so worried about the creation of the federal government through the Constitution?

2.  Who gives us our rights?  Why is this significant?

3.  What are the dangers of enabling the federal government to “interpret” the Constitution?

Alexander Hamilton, Federalist Paper #84, Avalon Project, Yale
Joseph Andrews, A Guide for Learning and Teaching The Declaration of
Independence and The U.S. Constitution - Learning from the Original Texts Using Classical Learning Methods of the Founders; San Marcos: The Center for Teaching the Constitution (2010).
Philip B. Kurland and Ralph Lerner, The Founder’s Constitution –
Volume Five - Amendments I-XII; Indianapolis: Liberty Fund (1987).

Amendment X: State Sovereignty
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

The 10th Amendment was designed to restrict federal powers from encroaching on State authorities.  The article states that any powers not given to the federal government by the Constitution, and any powers not prohibited to the States, belongs to the States.

We must remember that originally all powers belonged to the States, a concept known as Original Authority.  In order to create a central government, the States granted some of their powers to the federal government so that it may function in the manner necessary to protect, preserve, and promote the union.  The States, in Article I, Section 10, are denied powers that would be in conflict with the federal powers granted.  However, since the States originally maintained all powers, any authorities not granted to the federal government, nor denied to the States for the purpose of enabling the federal government to do its job, were retained by the States.

The 10th Amendment was also designed to correct the problems that arose through the creation of the Bill of Rights.  By the Bill of Rights being composed in such a manner that the first ten amendments tell the federal government what it cannot do, the worry was that the argument in support of unconstitutional activity by the federal government would entail the argument, “Where in the Constitution does it say the federal government can’t do that?”  Such an argument by the central government may open up opportunities for the federal government to compromise Americanism, and fundamentally transform into a big government tyranny.

The Constitution was designed to grant authorities to the federal government so that it may function in the manner originally intended.  The powers granted to the federal government are the only authorities the federal government has.  If the powers are not enumerated, the federal government does not have those authorities.  The 10th Amendment was written to remind us that even though the first eight amendments tell the federal government it “shall not infringe,” the rule of the Constitution is that all federal powers are enumerated in the Constitution, and if the power is not granted to the federal government, nor denied to the States, the authority remains with the States.

This article was written to support State Sovereignty.  It is the Tenth Amendment to which one must first go when debating States’ Rights.  The amendment clearly states that all federal powers are enumerated, and the remaining unlisted powers, if not prohibited, belongs to the States.

James Madison makes a clear argument in support of the concept of State Sovereignty in Federalist #45: “. . . each of the principal branches of the federal government will owe its existence more or less to the favor of the State governments. . . The powers delegated by the proposed Constitution to the federal government are few and defined.  Those which are to remain in the State governments are numerous and indefinite.  The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce. . . The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.  The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments in times of peace and security. . .

The States serve in a manner similar to that of parents.  The people, through their States are the parents of the federal government, but the petulant child is not only acting in ways never authorized, but the parents, through representation, and other means, have determined for themselves that they have no ability to rein in the out of control creation.  The 10th Amendment reveals the reality that the States are sovereign, and that the federal government has only limited powers.

When breaking down the language of the Tenth Amendment, the previous articles of the Constitution become clear.  It is in the Tenth Amendment that the principles of a limited government are most clearly articulated.

The concept that the Constitution was designed not to tell the federal government what it cannot do, but to tell it what it can do, is presented clearly in the first portion of this amendment.  Powers not delegated to the federal government by the Constitution are not authorities granted, meaning that the federal government is limited to only the powers enumerated by the Constitution.

Some powers, despite the fact that original authority of all powers belongs to the States, are prohibited to the States.  The authorities prohibited to the States are those that, if the States had those powers, may interfere with the federal government’s task of protecting, preserving, and promoting the union.  The list of powers prohibited to the States, any amendments doing the same notwithstanding, are located in Article I, Section 10.

The word reserved was chosen carefully for this amendment.  “Reserved” is used rather than the word “granted,” because the States are not granted any powers by any source.  All of the powers already belonged to the States from the beginning.  Any powers the States did not grant to the federal government, nor decide to prohibit to themselves through the Constitution, remain with the States.  The presence of the word “reserved” reveals that fact.  Reserved, in the context of this article, also means “To hold for their own use.”


Americanism - A philosophy of freedom that actively seeks less government and more personal responsibility.
Original Authority - Principal agent holding legal authority; initial power to make or enforce laws; the root authority in government.

Reserved - Kept for another or future use; retained.

State Sovereignty - The individual autonomy of the several states; strong local government was considered the key to freedom; a limited government is the essence of liberty.

States’ Rights - The authorities of the States over local issues, and other issues, that are not directly related to the preservation of the union or are considered as federal issues.

Questions for Discussion:

1.  Why was it important to ensure the federal government did not encroach on State authorities?

2.  What did Madison mean when he wrote, “the federal government will owe its existence more or less to the favor of the State governments.”
3.  Why is it important that the enumerated powers limit the authorities of the federal government?
4.  How does the fact that the States have original authority in regards to all powers bring into perspective the relationship between the States and the federal government?

5.  Why was the word “reserved” used in the Tenth Amendment, rather than granted?


About the Tenth Amendment, Tenth Amendment Center:
Definition of Enumerated, 1828 Webster’s Dictionary:,enumerate
Definition of Reserved, 1828 Webster’s Dictionary:,reserved
James Madison, The Federalist Papers #45, Avalon Project, Yale
Joseph Andrews, A Guide for Learning and Teaching The Declaration of
Independence and The U.S. Constitution - Learning from the Original Texts Using Classical Learning Methods of the Founders; San Marcos: The Center for Teaching the Constitution (2010).
Philip B. Kurland and Ralph Lerner, The Founder’s Constitution –
Volume Five - Amendments I-XII; Indianapolis: Liberty Fund (1987).
Thirty Enumerated Powers, Tenth Amendment Center:

Copyright 2014 Douglas V. Gibbs

Wednesday, November 12, 2014

Lesson 18: The Legal Amendments, Amendments 4-8

Constitution Class Handout, 11/13/2014                            Faith Armory
Instructor: Douglas V. Gibbs                                                 41669 Winchester Rd.
                                                                                                Temecula, CA

Lesson 18

The Legal Amendments

Amendment IV
 Warrants, Searches, and Seizures

The 4th Amendment to the United States Constitution was added as part of the Bill of Rights on December 15, 1791.  It was written with the purpose of protecting people from the government searching their homes and private property without properly executed search warrants.

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

What this means is that the federal government, in order to search a person's home, business, papers, bank accounts, computer or other personal items, in most cases, must obtain a search warrant signed by the proper authority, which usually means by a judge.

The issuance of a warrant must accompany reasonable belief that a crime has been committed and that by searching the premises of a particular location, evidence will be found that will verify the crime.  The government officer does not have to be correct in his assumption, he just has to have a reasonable belief that searching someone's private property will yield evidence of the crime.  The task of determining whether or not the officer’s assumptions are a reasonable belief falls on the judge who is considering issuing the search warrant.

The concept that citizens must be protected from unreasonable searches and seizures goes back into English history.  The British Crown was known for performing searches and seizures that were unlawfully conducted.  Often, these searches were conducted by the king's representatives.

The British government saw the American Colonies as a source of revenue.  As a result, taxation against the American colonies was a continuous practice, in the hopes of generating as much money from the colonists as possible.  The colonists resented this and engaged in substantial smuggling operations in order to get around the customs taxes imposed by the British government.

The King responded to the Colonist’s smuggling activities by using writs of assistance, which were search warrants that were very broad and general in their scope.  British agents, once obtaining these writs, could search any property they believed might contain contraband goods.  They could enter someone's property with no notice and without any reason given.  Tax collectors could interrogate anyone about their use of goods and require the cooperation of any citizen.  Searches and seizures of private property based on very general warrants became an epidemic in colonial America.

In 1756, the Massachusetts legislature passed search and seizure laws outlawing the use of general warrants.  The friction created between the Royal Governor and the people of Massachusetts grew with each passing moment.

In 1760 James Otis, a Boston lawyer, strongly objected to these arbitrary searches and seizures of private property and consequently resigned his position with the government, and then became the lawyer for a group of over 50 merchants who sued the government claiming that the writs of assistance were unjust.

James Otis represented these merchants for free.  His speech condemning British policies, including writs of assistance and general search warrants, was so powerful and eloquent, that it was heard of throughout the colonies and catapulted him to a place of leadership in the swelling tide of disillusionment toward Great Britain.

Twenty-five year old John Adams, who would become the second president of the United States some time later, was sitting in the courtroom and heard Otis' famous speech that served as a spark that led to igniting the American Revolution.

The 4th Amendment, a part of The Bill of Rights, became law on December 15, 1791.

The 4th Amendment applies only to the federal government.  State constitutions are written similarly, and States also have laws that are consistent with the intention of the 4th Amendment.  The 4th Amendment provides protection from illegal search and seizure by federal government officials, but not by private citizens.  So, if an employer unreasonably searched your possessions at work, the 4th Amendment would not have been violated, but local laws may have been.

In recent history The PATRIOT Act was seen as a breach of the 4th Amendment because it allowed the federal government to pursue a number of strategies in their search for terrorists that includes warrantless phone taps, access to phone logs, and monitoring of online communications such as email.  The debate still goes on regarding the constitutionality of The PATRIOT Act, with both sides presenting reasonable arguments, ranging from the constitutional necessity of the law for the purpose of “providing for the common defense,” to the argument that the authorities offered by the law allows the federal government to unconstitutionally intrude on the right to privacy of all Americans.

The National Defense Authorization Act (NDAA) of 2014 builds on the powers seized by the federal government through the PATRIOT Act, allowing unrestricted analysis and research of captured records pertaining to any organization or individual “now or once hostile to the United States.”  The definition of “hostile to the United States” is broad, and can include political opposition.  Under NDAA 2014 Sec. 1061(g)(1), an overly vague definition of captured records enhances government power and guarantees indefinite surveillance.

The Internal Revenue Service is another arm of the federal government that routinely violates the 4th Amendment, doing so under the auspice of ensuring all taxes are paid.

Search Warrant - The Search Warrant specifically requires that the government demonstrate to a judge the existence of probable cause of criminal activity on the   part of the person whose property the government wishes to search.  The Fourth Amendment commands that only a judge can authorize a search warrant.

Writs of Assistance - British search warrants that were very broad and general in their          scope.  British agents, once obtaining these writs, could search any property they believed might contain contraband goods.

Questions for Discussion:
1.  What actions by the British prior to the American Revolutionary War inspired the Founding Fathers to include this amendment in the Bill of Rights?

2.  How would our legal system act if Search Warrants were not considered necessary?

3.  How does the Fourth Amendment influence today’s thinking regarding government actions, such as with The PATRIOT Act?


How Congress Has Assaulted Our Freedoms in the Patriot Act by
Andrew P. Napolitano, Lew

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).

Paul A. Ibbetson, Living Under the PATRIOT Act: Educating a Society;
Bloomington, IN: Author House (2007)

Philip B. Kurland and Ralph Lerner, The Founder’s Constitution –
Volume Five - Amendments I-XII; Indianapolis: Liberty Fund (1987).

Amendment V
Due Process and Eminent Domain

            Due Process

The majority of the Fifth Amendment provides additional reinforcement to the concept of due process.  The language of this Amendment was designed to assure those who feared the potential tyranny of a new centralized government created by the United States Constitution that the federal government would be restrained in such a way as to ensure that the government did not perpetrate bloodshed against its citizens.

The first part of the 5th Amendment reads: “No person shall be held to answer for a capital crime, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury. . .

The 5th Amendment attests to the Founding Father's understanding that this is a nation of property owners.  As a republic of property owners, when in jeopardy of legal trouble, our rights and properties must be safeguarded.  Therefore, an American Citizen in the American legal system has a right to a jury, as well as a right to the presentation of evidence.  Conviction is not reached with a majority vote, either.  Conviction requires a unanimous agreement among all of the members of the jury.  These concepts reinforce the concept that one is innocent until proven guilty (A concept found in the Book of Deuteronomy, Chapter 19, Verse 15), and that the United States of America is a RepublicMob rule is not allowed, for as the amendment provides, a person cannot be held until given the opportunity of due process.

Not all persons, however, are awarded this opportunity.  The next part of the amendment reads: “. . . except in cases arising in the land or naval forces, or in the militia, when in actual service in time of War or public danger. . .

The military does not fall under the U.S. Constitution.  Personnel serving in the armed forces are governed by the Uniform Code of Military Justice (UCMJ).  Instead of a civilian trial, a military service member is normally afforded a court martial.  If a civilian trial is deemed appropriate by the U.S. Military, a service member can still stand trial in a civilian court, but the military has the authority to decide whether or not the member shall stand such a trial.

Having a sense of independence, individuals must be protected, then, from the tyrannical trappings of a governmental system that may try to use the judiciary against them (as the King of England had done often).  The protective mechanism, or the rule of law, would be the U.S. Constitution and clauses like the 5th Amendment, which were designed to provide protection to the populace from unfair legal practices. 

One such protection is provided in the next part of this amendment: “. . . nor shall any person be subject for the same offence to be twice put in jeopardy of life and limb. . .”

Protection against Double Jeopardy enables us not to be continuously tried for the same offense, which was a technique often used in some parts of Europe during the eighteenth century.  The idea was that if a person was prosecuted enough, either they would weary of the process and break down, or the defendant would become unable to financially continue, hence unable to defend themselves.

The next part of the amendment serves as a large influence on today’s Miranda Rights.  The section reads: “. . . nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property.”

Miranda Rights are named after the U.S. Supreme Court case, Miranda v. Arizona (1966).  Miranda Rights are a warning given advising the accused of their right to remain silent, their right to an attorney, and the right to an appointed attorney if they are unable to afford counsel - prior to conducting a custodial interrogation. From the 5th Amendment: ". . .nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law."  Miranda Rights exist to secure the 5th Amendment's privilege against self-incrimination, and to make the individual in custody aware not only of the privilege, but also of the consequences of forgoing it.  The judicial opinion from the Miranda v. Arizona case also indicated that in order to protect the person's life, liberty or property with the due process of law, the individual must have the right to an attorney.  With a lawyer present the likelihood that the police will practice coercion is reduced, and if coercion is nevertheless exercised the lawyer can testify to it in court.  The presence of a lawyer can also help to guarantee that the accused gives a fully accurate statement to the police and that the statement is rightly reported by the prosecution at trial.

The words of the Founders continues to resonate today as the majority of the American people seem to firmly agree with the Founding Father’s insistence that no one should be deprived of life, liberty, or property without due process of law.  We can take satisfaction that most of our fellow citizens in our republic still hold these truths to be self-evident.

            Eminent Domain

The provisions of the 5th Amendment are there to keep our courts honest, and the powers of the government constrained.  The last phrase of the 5th Amendment, however, is considered too general by many, and it has been used in a manner by the federal government that is extremely troublesome, because it gives the government the right to take property if there is just compensation.

How is just compensation determined?  Is it based on the market value of the property?  How does the government officials involved in eminent domain calculate the non-intrinsic value?  How do they compensate for the value on which nobody can put a price?

Just compensation was intended to be based on what the property owner deemed to be just.  If the property owner did not deem the offer to be just compensation, then the government, from a constitutional viewpoint, is out of luck.

Capital Crime - A crime for which the punishment is death.  Punishment for a Capital Crime is called Capital Punishment.

Double Jeopardy - The act of putting a person through a second trial for an offense for which he or she has already been prosecuted or convicted.

Due Process - The essential elements of due process of law are notice, an opportunity to be heard, the right to defend in an orderly proceed, and an impartial judge.  It is founded upon the basic principle that every man shall have his day in court, and the benefit of the general law which proceeds only upon notice and which hears and considers before judgment is rendered.  In short, due process means fundamental fairness and substantial justice.

Eminent Domain - The power to take private property for public use by a State, municipality, or private person or corporation authorized to exercise functions of public character, following the payment of just compensation to the owner of that property.

Grand Jury - A group of citizens convened in a criminal case to consider the prosecutor’s evidence and determine whether probable cause exists to prosecute a suspect for a felony.  At common law, a group of persons consisting of not less than twelve nor more than twenty-four who listen to evidence and determine whether or not they should charge the accused with the commission of a crime by returning an indictment.  The number of members on a grand jury varies in different States.

Infamous Crime - A crime which works infamy in the person who commits it.  Infamous crimes tend to be classified as treason, felonies, and any crime involving the element of deceit.

Just Compensation - The value of a property deemed to be just by the property owner.

Miranda Rights - A warning given advising the accused of their right to remain silent, their right to an attorney, and the right to an appointed attorney if they are unable to afford counsel - prior to conducting a custodial interrogation.

Mob-Rule - A government ruled by a mob or a mass of people; the intimidation of legitimate authorities; the tyranny of the majority; pure democracy without due process.

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.

Rule of Law - The restriction of the arbitrary exercise of power by subordinating it to well-defined and established laws; Laws of Nature and of Nature’s God; self-evident standard of conduct and law.

Questions for Discussion:
1.  How is property rights affected by Due Process?

2.  Why do military members not fall under the protections of the U.S. Constitution?

3.  Why is protection against Double Jeopardy important?

4.  What was the inspiration for our Miranda Rights?

5.  Who determines if compensation for one’s property is just?

6.  How is Eminent Domain being used for environmental reasons?

7.  Is Eminent Domain constitutionally in force if a property is rezoned for environmental conservation, forcing the value of the property to be reduced due to the fact that it can no longer be developed?

8.  Is it constitutional for government to use Eminent Domain for the use of the land by private development projects?

Definition of Due Process, Family Rights Association:

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

Philip B. Kurland and Ralph Lerner, The Founder’s Constitution –
Volume Five - Amendments I-XII; Indianapolis: Liberty Fund (1987).

U.S. Supreme Court case, Miranda v. Arizona, 384 US 436 (1966)

Amendment VI
Personal Legal Liberties

The 6th Amendment affords criminal defendants seven discrete personal liberties.  “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Rights afforded in all criminal prosecutions are set forth in this amendment.  The word “all” at the beginning of this amendment establishes a special characteristic regarding this article of the Constitution.  The Constitution applies only to the federal government, unless it states otherwise.  The 6th Amendment, by providing the word “all” in the regard to cases, establishes that this amendment is not only to be applied to the federal courts, but to the State, and lower, courts as well.

As for the rights afforded to the accused:

            Speedy Trial

The concept of a speedy trial was an English concept of justice.  A speedy trial allows for conditions that disallow the powerful from abusing the court system, forcing defendants to languish in jail for an indefinite period while awaiting their trial.  Ensuring a speedy trial minimizes the time in which a defendant's life is disrupted and burdened by a criminal proceeding, and reduces the likelihood of a prolonged delay impairing the ability of the accused to prepare a defense.

Historically, when trials are postponed or drag out for long periods of time, witnesses disappear, and evidence is often lost or destroyed.  Memories of the incident in question are also not as reliable as time passes.

A person's right to a speedy trial arises after the arrest, indictment, or otherwise formal accusation of a crime. 

            Public Trial

The right to a public trial was inherited by the Americans from Anglo-Saxon jurisprudence.  Public criminal proceedings would operate as a natural check against malevolent prosecutions, corrupt judges, and perjurious witnesses.  A trial that is out in the open also aids the fact-finding mission of the judiciary by encouraging citizens to come forward with relevant information.

The right to a public trial is not absolute.  Persons who may disrupt proceedings may be banned from attending the trial because they present a substantial risk of hindering a trial.  A disallowance of the media attending falls under the concept of “potential disruptions,” but otherwise, under normal circumstances, both the public and media have a qualified First Amendment right to attend criminal proceedings.  The right to a public trial does not require the presence of media, and because courtrooms have limited seating, judges may attempt to maintain decorum.  For media, with today’s technology, the media does not have to be in the courtroom to see or hear the proceedings of the case.

            Right to Trial by an Impartial Jury

A part of the effort in achieving an impartial jury is the process of determining who will serve on the jury through a series of questions and observations, in an effort to eliminate biased jurors.  The concept of protecting the defendant from a biased jury can be traced back to the Magna Carta in 1215.  In the United States, the requirement for a trial by an impartial jury does not apply to juvenile delinquency proceedings, or to petty criminal offenses, which consist of crimes punishable by imprisonment of six months or less.  In Great Britain, and Canada, a jury is not required for cases with potential penalties of two years or less, and the concept of an impartial jury is not entertained in the same way as in the United States.  Canada and Britain choose jurors randomly, and then in an open court the jurors for a specific case are selected from the jury panel by ballot.  A juror may be challenged once in the box for bias, but an extensive process to eliminate possible biased jurors before selection through a series of questions and observations is not normal practice.

The Sixth Amendment entitles defendants to a jury that represents “a jury of the defendant’s peers,” which means the jury should be a fair cross section of the community.  From the jury pool, the presiding judge, the prosecution, and attorneys for the defense are allowed to ask members of the jury pool a variety of questions intended to reveal any latent biases, prejudices, or other influences that might affect their impartiality.  The presence of even one biased juror is not permitted under the Sixth Amendment.

It is possible that the potential bias of a juror may be affected by sources outside the courtroom, so jurors are instructed to not consider newspaper, television, and radio coverage before or during trial, and are instructed not to discuss the trial with even family members, when evaluating the guilt or innocence of the defendant.

Jurors are not permitted to begin deliberations until all of the evidence has been offered.  Deliberations do not begin until after the attorneys have made their closing arguments, and the judge has read the instructions.  Premature deliberations have shown the potential, historically, to create early biases, or a juror may form a preconceived notion that they will then compare all evidence to, which they may have entertained as a result of premature deliberations.

            Notice of Pending Criminal Charges

The 6th Amendment guarantees defendants the right to be informed of the nature and cause of the accusation against them.  Defendants must receive notice of any criminal accusations that the government has lodged against them through an indictment, information, complaint, or other formal charge.  Defendants may not be tried, convicted, or sentenced for a crime that materially varies from the crime set forth in the formal charge.

The requirement by the 6th Amendment to inform a defendant of the nature and cause of the accusation is an attempt by the Founding Fathers to create fundamental fairness that was not necessarily present in civil and criminal proceedings in England and the American colonies under English common law.  Receiving notice of pending criminal charges in advance of trial permits defendants to prepare a defense in accordance with the specific nature of the accusation.  In tyrannies, defendants are all too often incarcerated without being apprised of pending charges until the trial begins.  Requiring notice of the nature and cause of the accusation against a defendant eliminates confusion regarding the basis of a particular verdict, which in turn decreases the chances that a defendant will be tried later for the same offense.

            Confrontation of Witnesses Against Him

The 6th Amendment requires that defendants have the right to be confronted by witnesses who offer testimony or evidence against them, as well as the opportunity to subject them to cross-examination. 

Today’s courts have established rules that are enforced at the discretion of the judge who forbids questioning that pursues areas that are irrelevant, collateral, confusing, repetitive, or prejudicial.  Defendants are also forbidden to pursue a line of questioning solely for the purpose of harassment.

            Compulsory Process for Obtaining Witnesses In His Favor

The 6th Amendment recognizes a defendant’s right to use the compulsory process of the judiciary to subpoena witnesses that may be favorable to the defense.  Courts may not take actions to undermine the testimony of a witness who has been subpoenaed by the defense.  Any law that attempts to establish particular persons as being incompetent to testify on behalf of a defendant is not allowed.

Defendants can also testify on their own behalf, a right not afforded in the American Colonies, or Great Britain, prior to the United States dissolving the political bands connecting them to the Crown.  Common law presumed all defendants to be incompetent to give reliable or credible testimony on their own behalf.  The vested interest in the outcome of the trial, it was believed, would taint the testimony of the defendant.  The 6th Amendment does not require, a defendant to testify on his own behalf, but does not prohibit it, either.

            Right to Counsel

The 6th Amendment states that criminal defendants have a Right to Counsel.  A defendant's right to counsel does not become an issue until the government files formal charges.  However, in the 5th Amendment a person has the right not to be compelled to be a witness against himself, allowing him to remain silent until he has counsel present.

In many instances, defendants have the inability to obtain counsel be it because of financial or other reasons.  The 6th Amendment, by listing that assistance of counsel for his defense is a right, has compelled the government to institute a program where counsel can be assigned to a defendant if the person is unable to afford counsel, or obtain counsel for any other reason.  In the occurrence of a defendant unable to afford counsel, the trial judge appoints one on his behalf.  If it turns out that the defendant has financial resources previously unknown to the court, he may be required to reimburse the government for a portion of the fees paid to the court-appointed lawyer.

Defendants are not required to have counsel.  Defendants have a right to counsel.  Defendants also have the right to decline the representation of counsel and proceed on their own behalf.  Defendants who represent themselves must present a waiver of the 6th Amendment right to counsel before a court will allow them to do so.  The waiver must reveal that the defendant is knowingly making the decision, and understands the potential consequences.

Questions for Discussion:

1. Why is having a speedy trial so important in a free society?

2.  How does a public trial better enable the fact-finding mission of the trial?

3.  How is the concept of an impartial jury different in the United States than it is in other countries?

4.  Why is it important for a defendant to be able to confront the witnesses against him?

5.  How is a defendant’s right to counsel enabled in today’s court system?

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

Philip B. Kurland and Ralph Lerner, The Founder’s Constitution –
Volume Five - Amendments I-XII; Indianapolis: Liberty Fund (1987).

Amendment VII
Right of Trial by Jury in Civil Suits

“In suits at Common Law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.”

The 7th Amendment guarantees the right to a jury trial in most civil suits heard in federal court.  Remember, the Constitution, and the Bill of Rights, apply only to the federal government unless the document states otherwise.  The 7th Amendment serves to preserve the historic line separating the province of the jury from that of the judge in civil cases by separating cases that should have a jury in federal court, from those that are smaller cases, and may not require a jury.  During the time the amendment was ratified, a case requiring a jury was one where “the value in controversy” exceeded twenty dollars.  The cutoff in the court system today is $75,000.  Any disputes that involve amounts less than $75,000, in fact, will not even be handled in a federal court.

State courts don’t have to honor this provision in the 7th Amendment, and often don't.  People bringing a suit do not have to have a jury trial.  Individuals can waive their right to a jury trial if they so choose.

The 7th Amendment also expressly forbids federal judges to re-examine any "fact tried by a jury" except as allowed by the common law.  This means that no court, trial or appellate, may overturn a jury verdict that is reasonably supported by the evidence.

Prior to the Declaration of Rights in 1689, English judges served the King of England.  These judges showed bias towards the King, resulting in unfair rulings.  Judges in the American colonies were also biased towards the king, and when King George III got rid of trials by juries in the Colonies, the colonists viewed the decision as more kindling for the fire of independence that had been blazing in the pubs, churches and meeting halls of the Colonies.  The Bill of Rights applied what the Framers learned under the rule of Britain to the American System.  In the American courts the Framers believed it was important to have a fair court system, so the right to have a trial by jury is mentioned a number of times, and is a fundamental part of the United States legal system.

Together with the due process clause of the 5th Amendment and the right to an impartial jury enumerated in the 6th Amendment, the 7th Amendment guarantees civil litigants the right to not just a jury, but to a jury who is not biased for any reason.

Bill of Rights - The first ten amendments of the U.S. Constitution; a formal summary of those rights and liberties considered essential to a people or group of people.

Declaration of Rights - Enacted in 1689, the English Bill of Rights is one of the fundamental documents of English constitutional law, marking a fundamental milestone in the progression of English society from a nation of subjects to a nation of free citizens with God-given rights.  The evolution began with the Magna Carta in 1215.

Questions for Discussion:
1.  What historic line does the 7th Amendment preserve?
2.  Must the States abide by the 7th Amendment?
3.  Can a person bringing suit waive the right to a jury trial?

Amendment VIII
Excessive Bail, Cruel and Unusual Punishment

The 8th Amendment reads, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

As a nation founded on honorable Judeo-Christian principles, the United States legal system is expected to be fair and just.  This means that Americans should insist upon a due process that protects individuals from excesses and abuses by the judicial system.  Such expectations include that no individual should be singled out, or treated differently, in the eyes of the courts.  A fair and equitable judicial system includes no excessive bails or fines, or cruel and unusual punishment, for one person while others guilty of similar crimes do not receive similar treatment.

Today’s definitions attempt to set a limit on where “excessive” or “unusual” lies.  When a harsh penalty is applied for a crime, even when it is similar to the punishment received by others for the same crime, challenges are launched regarding if the penalty matches the crime.  These challenges are fine, and an important part of the American judicial system seeking to adjust itself in regards to its fairness, but the debates during the Federal Convention and State ratification conventions did not focus so much on where the line between excessive and not excessive, or unusual as opposed to usual, exists as much as are the bails, fines and punishment consistent with the bails, fines and punishment consistent with others guilty of the same.

Questions for Discussion:
1.  In the context of the time period during which the 8th Amendment was written, what was meant by “cruel and unusual punishment?”
2.  How has the original definition of “cruel and unusual punishment” changed since the founding of the United States?
3.  How does the 8th Amendment apply the concept of uniformity to cases?
4.  Why would the Founding Fathers see the need to enumerate the right of an individual to be protected from cruel and unusual punishment?

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

Philip B. Kurland and Ralph Lerner, The Founder’s Constitution –
Volume Five - Amendments I-XII; Indianapolis: Liberty Fund (1987).

Copyright 2014 Douglas V. Gibbs