Thursday, October 28, 2010

Constitution is a Social Contract; A General Will; Exclusive and Concurrent Jurisdiction

The Constitution is the Solution
Temecula Constitution Study with Douglas V. Gibbs
October 28, 2010

The Contract Between the States and the United States Federal Government

Elements of a Contract

1. An agreement reached to do, or refrain, from doing an action.

2. Validated when two of more parties with capacity make an agreement.

These elements must be reached after sufficient consideration.

Three basic components of a contract are:

1: Offer
2: Consideration
3: Acceptance

Agreement is essential to any contract.

Does the U.S. Constitution fit the criteria of a contract?

The U.S. Constitution is a Social Contract, which is one of the foundations of our system of government. Our social contract was agreed upon with the belief that government only exists to serve the people. They can choose to give, or withhold, this power. In America the contract was designed to be an agreement to only give government enough power to provide protection of their well being.

Supporters of a large centralized system took it a step further, proposing that government must exist because of the existence of a “General Will.”

A General Will

The General Will according to Jean Jacques Rousseau is a will not necessarily expressed by the general public in any way, but is presumed to be known by the ruling elite. No aspect of life is excluded from the control of the General Will. Whosoever refuses to obey the General Will must in that instance be restrained by the body politic, “forcing them to be free.”

Those believing in the General Will wished to dissolve the people into a homogenous mass, abolish decentralization, and remove representative institutions.

The Founding Fathers hated and feared the concept of the General Will, and designed the contract known as the U.S. Constitution with protecting the union against this kind of tyranny; hence, the existence of the Limiting Principles, State Sovereignty, Individual Rights, and a Separation of powers. In order for such a tyranny to dominate a governmental system such as ours, the wool would need to be pulled over the public’s eyes using rhetoric like “these laws are for the public good.”

Exclusive and Concurrent Jurisdiction

Exclusive Jurisdiction: An authority that only a State, or the Federal Government, has.

Concurrent Jurisdiction: An authority that both the states and the federal government has.

A Special Thanks to:

Faith Armory, 27498 Enterprise Cir W #2, Temecula, CA 92562
951-699-7500, - For providing us with a classroom to meet in.

Political for Donating Pocket Constitutions.

Thursday, October 21, 2010

Article I, Section 9, Clauses 2 and 3: Habeas Corpus, Bill of Attainder, ex post facto law

Constitution Study with Douglas V. Gibbs, Thursday, October 21, 2010

Topic: Article I, Section 9, Clauses 2 and 3 - Habeas Corpus, Bill of Attainder, ex post facto law

We must remember that Article I, Section 8 is a list of authorities granted to the federal government, but Article I, Section 9 is prohibitive. This means that Section 9 is a list of things the federal government shall not do. Clauses 2 and 3 are integral to the working of our judicial system, as well as being prohibitive in nature to our U.S. Congress.

Article I, Section 9, Clause 2:

“The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”

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

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

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

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

Article I, Section 9, Clause 3:

“No Bill of Attainder or ex post facto Law shall be passed.”

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

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

A question regarding bills of attainder arose regarding President Obama’s treatment of British Petroleum. The President considered BP guilty of the crime of spilling oil in the Gulf of Mexico, and demanded they pay retribution without the benefit of due process. However, the argument was that the President did not legislate a bill of attainder, and therefore was innocent of acting in an unconstitutional manner.

In reality, that made him even more guilty, for it was evidence that President Obama was acting in lieu of the Judiciary and Legislature. In other words, he took on their authorities without even the consideration that what he was doing was a usurpation of the powers of the other branches of government.

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

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

Ex post facto Law is literally retroactive law, or a law that retroactively changes the legal consequences (or status) of actions committed or relationships that existed prior to the enactment of the law. Ex post facto law could criminalize actions that were legal when committed, or in the case of amnesty laws, decriminalize certain acts or alleviate possible punishments. Generally speaking, ex post facto laws are seen as a violation of the rule of law as it applies in a free and democratic society. Ex post facto laws are expressly forbidden by the United States Constitution.
Thank you to Faith Armory, 27498 Enterprise Circle West, Temecula, California for the use of their classroom for our Constitution Studies. Be sure to visit to read my daily writings.

Thursday, October 14, 2010

Definition of "Limited Government"; Shays Rebellion; Article I, Section 9, Clause 1

Constitution Study, Temecula, California with Douglas V. Gibbs
October 14, 2010

Limited Government

Folks sometimes fail to understand what a limited government truly is. The assumption is that limited government means less government, and that is not necessarily the case. A limited government is one that limits its functions to the authorities granted to it.

Shays’ Rebellion

Shays' Rebellion played an important role in the writing of the U.S. Constitution, and was even a key event that led to the Founding Father's decision to hold a constitutional convention in the first place.

The Founding Fathers did not intend to write a new constitution. Their intentions were to update the Articles of Confederation. However, at the Annapolis Convention in 1786 it became apparent to the Founders that there was no saving the document. A new constitution would need to be written. They originally scheduled the convention for a new constitution to begin May 2, 1787.

Shays' Rebellion began a month before the Annapolis Convention, in August of 1786. The new nation found itself on the verge of a civil war. The rebellion against the republic threatened to disunite the new United States, though from France Thomas Jefferson proclaimed, regarding the conflict, that "A little rebellion now and then is a good thing. It is a medicine necessary for the sound health of government. God forbid that we should ever be twenty years without such a rebellion."

The rebels during Shays' Rebellion caused riots, raids, and the shut down of courts. They were men of the fields, and their agrarian way of life was being destroyed by high taxes and mounting federal debt put into place by New England's merchants and shippers who held a more cosmopolitan social structure than the rural majority. The merchants, who held the positions of power in the new government, were putting into place trans-Atlantic trade that they felt was good for the new nation. Free trade with Europe without protections in place for America, combined with the mounting debt, depressed the economy that was already struggling in the postwar years.

Many of the farmers were veterans of the Revolutionary War who had poured their blood, sweat, and tears into the battles against England. Their service was not paid by a single month's pay, but instead by government certificates many had sold away to speculators along the way. Now, back on their farms, the fragile financial structure of the new nation, along with high taxes, made it difficult to provide a living. The rural communities found that their furniture, grain, livestock, and other food stuffs were being sold for much less than their value. To fight the debtors' in court the members of the agrarian communities were charged high legal fees, and were threatened with prison if they did not pay their debts. The farmers of Massachusetts feared that they were incrementally being reduced to the status of tenant farmers.

The farmers worked to modify the government to work in their favor, but as 1786 wound down the only favors the agrarians received were only token reforms designed to keep them happy for the moment. These small reforms came a little too late, as far as the farmers were concerned.

As debtors' courts remained a reality, the farmers found that they had no redress but to engage in open rebellion.

Daniel Shays served at the Battle of Lexington, was distinguished for his service at the Battle of Bunker Hill, and had participated in the crucial Battle of Saratoga in 1770. Though reluctantly, he found himself commanding an insurgency Springfield, Massachusetts.

Shays' men wore no uniforms, save for the coats and hats some wore during the Revolutionary War as soldiers. They identified themselves by wearing a sprig of hemlock (evergreen) in their hats.

During the autumn of 1786 organized groups of farmers formed into squads and companies so that they may march on the hated debtors' courts and force them to postpone their business. Shays and his men blocked the Springfield courthouse, and the coastal merchants and legislators in Boston viewed these court closings fearfully, seeing such actions by the farmers as being severely detrimental to the very foundations of their society. In response, the Congress of the Confederation authorized the raising of troops to combat the rebels, but the national government proved powerless to gather the financing necessary to form a cohesive military force.

Finding that the U.S. Government did not have the ability to rise to the occasion, Massachusetts' governor James Bowdoin, and other merchant leaders in Massachusetts, used their own funds to field an army.

Shays and his men never anticipated their actions would lead to charges of sedition, and treason, against the republic. In fact, they held dear the republican principles they had fought for in 1776. However, some political leaders saw the uprising as being a recipe for undoing the gains of the Revolution, calling the farmers "knaves and thieves" who "intended tyranny." Governor Bowdoin warned that interference with the legal system would "frustate the great end of government -- the security of life, liberty and property."

One of the demands of the farmers was the need for a circulating paper currency. The commercial sector in Boston, however, felt that such a currency would bring depreciation and fiscal chaos.

While the rebellion remained in place, the politicians also realized that the non-payment of state taxes put the wealthy who had lent large sums of money to the war effort at a financial disadvantage. The States, and the wealthy merchants, may face bankruptcy instead of an economic expansion they had been anticipating. By the beginning of 1787, Massachusetts had divided into two armed camps.

In January of 1787, the rebels marched on the government arsenal at Springfield in the hopes of standing off the troops that were advancing from Boston. At the arsenal, the defending militia fired their cannons into the ranks of the advancing insurgents, killing four and injuring 20.

"Murder!" became the cry of the farmers who never anticipated that their fellow war veterans would fire upon them. Shays' men retreated, pursued by government soldiers.

As 1787 proceeded, the rebellion became isolated flareups. The rebellion had been broken, however, and Shays himself fled to Vermont, which was not yet a part of the union and not bound to obey the appeals for extradition by Massachusetts.

Though the rebellion had ended, Massachusetts' officially declared state of insurrection remained in place. 200 rebels were indicted by a special court. In April 1787, five Shays men charged with treason were condemned to hang

In the election of June 1787, Governor Bowdoin was roundly defeated by the state's most popular politician, John Hancock, famous signer of the Declaration.

Clemency was requested, but Samuel Adams, the influential Revolutionary patriot and head of the governor's advisory council, called for the execution of convicted traitors to the republic.

The Hancock administration continued to hedge on this potentially explosive problem. At last a formula was devised which would equally dramatize the justice and the mercy of government. The rebels were paraded at the gallows on June 21, 1787, before a large crowd of spectators -- and were reprieved only at the last instant.

Shays' Rebellion further convinced those pushing for a stronger national government that the Articles of Confederation were too weak. George Washington, for whom the insurrection was a large reason for his own attendance at the Constitutional Convention in Philadelphia, said, "there could be no stronger evidence of the want of energy in our governments than these disorders."

Shays' Rebellion was a recurring example used in the debates of the Constitution. For the Federalists, Shays' Rebellion was evidence enough to adopt the "Virginia plan," which called for an unprecedented and powerful centralized government. Those opposed to a strong central government touted the alternative "New Jersey plan," which favored state sovereignty.

The Virginia plan was adopted, with compromises attached. Though the government would have a number of powers authorized to it, the government would be limited to only function within those authorities. Checks and balances were inserted throughout the Constitution. A federal government was formed to protect the rights and properties of the people, while also insuring the States retained much of their sovereignty. The vote was seven to three on June 19, 1787. The proposed Constitution of the United States, safeguarding the institution of property from financial disruption and from future taxpayer rebellions, was signed by 39 representatives of 12 states on September 17, 1787

Nearly all of the rebels were reprieved or pardoned, although two were hanged (for burglary) in 1787. Daniel Shays was pardoned in 1788 and lived to an old age in New York state.

Article I, Section 9, Clause 1

Article I, Section 9, Clause 1 is obsolete, or so we are told. The clause addressed the importation of slaves and the migration of people into the United States. Slavery was abolished by Amendment 13 so the part of Article I, Section 9, Clause 1 that addresses slavery is obsolete. But is the part about migration still in force?

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

The ramifications of this clause, as well as how it affects today's issue regarding illegal aliens, reach farther than most people realize. But one must ask, why would the Founding Fathers include a mention of migration in a clause that is essentially geared toward the abolition of the importation of slaves?

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

The word, migration, then, would seem to apply wholly to free whites, or at least to non-blacks, or ultimately to non-slaves.

The intention was that since the Constitution, as the contract that created our federal government, is a document that grants powers to the federal government, and that all authorities not expressly delegated, is reserved to the people or the States, it was supposed, that, without some express grant to them of power on the subject of migration, Congress would not be authorized ever to touch the question.

All governments possessed the power to prohibit migration as it saw fit, so the Founding Fathers determined that the new United States Government must have that same authority.

The word migration was placed, and according to the clause, from the year 1808, Congress would possess the complete power to stop the importation of slaves, as well as the migration of people the Congress felt must be prohibited from entering this country as immigrants.

As with the power to prohibit the importation of new slaves, the power to prohibit migration was put off for twenty years after the writing of the Constitution, giving Congress the authority to legislate on the matter in 1808. The reason for delaying the power to prevent migration were, to be simply put, to give the States twenty years to attract as many people as possible without Congressional regulatory consideration. After all, at this time in history we had immense and almost immeasurable territory, peopled by not more than two and a half million inhabitants. Therefore, migration was encouraged, especially of the kind of people that would bring a benefit to the new nation. The immigration of able, skilful, and industrious Europeans was encouraged.


Thank you to: Faith Armory, 27498 Enterprise Circle West, #2 in Temecula, California for giving us a classroom to study in.

Thank you for joining in the cause of preserving our God-given Liberty and
restoring our Constitutional Republic. After all, if you don’t defend Liberty, who will?