Thursday, January 27, 2011

Article VI, VII

Temecula Constitution Study with Douglas V. Gibbs, January 27, 2011

Article VI, VII

Article VI, Clause 1. Validity of Prior Debts and Engagements. All prior debts and engagements, even though they were incurred under the Articles of Confederation, are transferred to the new government under the U.S. Constitution as per this clause.

Article VI, Clause 2. The Supremacy Clause. Perhaps one of the most misunderstood and misapplied clauses of the U.S. Constitution. Many believe this clause states that all federal laws supersede all State laws, and that is simply not true. To understand the true meaning of this clause, one must pay close attention to the language used.

John Marshall, the fourth Chief Justice of the United States (the justice that also wrote an opinion seizing the power of Judicial Review for the courts - Marbury v. Madison, 1803) wrote that there is a priority of national claims over state claims in his opinion regarding McCulloch v. Maryland, 1805, which upheld an act of 1792 asserting for the United States a priority of its claims over those of the States against a debtor in bankruptcy. With subsequent opinions, Marshall, Joseph Story, and many courts since, have fostered the belief that the federal courts, and laws, have total supremacy over all state courts and laws. However, this concept contradicts the 10th Amendment, which specifically states that powers not delegated to the federal government, nor prohibited to the States, belong to the States.

What this means is that not all federal laws are supreme over State laws, and the federal courts are not supreme over state courts when it comes to issues that fall under the sole authority of the States.

If the federal government has a law on the books, and the law was made under the authorities granted by the States in the United States Constitution, and a state, or city, passes a law that contradicts that constitutional federal law, the federal government’s law is supreme based on The Supremacy Clause. However, if the federal law is unconstitutional because it was made outside constitutional authority, it is an illegal law, and therefore is not supreme over similar State laws.

An example of the federal government acting upon the assumption that all federal law is supreme over State law is the medical marijuana laws in California. Though I do not agree with the legalization of marijuana, even for medicinal purposes, the actual constitutional legality of the issue illustrates my point quite well.

California passed a law legalizing marijuana for medicinal purposes, but federal law has marijuana as being illegal in all applications. Therefore, using the authority of the federal government based on the Supremacy Clause, federal agents (or at least until recently) have been raiding and shutting down medical marijuana labs in California. However, there is no place in the U.S. Constitution that gives the federal government the authority to regulate drugs, nor has there been an amendment passed to grant that authority to the federal government, therefore the raids on medical Marijuana labs in California are unconstitutional actions by the federal government.

The Supremacy Clause applies only to federal laws that are constitutionally authorized. Therefore, federal drug laws are unconstitutional. As a result, California's medical marijuana laws are constitutional because they are not contrary to any constitutionally authorized federal laws.

"Contrary" is a key word in the Article VI, Section 2.

Language plays an important part in the Constitution, and The Supremacy Clause is no different. The clause indicates that state laws cannot be contrary to constitutionally authorized federal laws. For example, Article I, Section 8, Clause 4 states that it is the job of the U.S. Congress to establish an uniform rule of naturalization. The word "uniform" means that the rules for naturalization must apply to all immigrants, and to all states, in the same way. If a state was to then pass a law that granted citizenship through the naturalization process in a way not consistent with federal law, the State would be guilty of violating the Supremacy Clause.

In the case of Arizona’s immigration law, the argument by the federal government that Arizona’s law is contrary to federal law is a bad argument. Assuming, for just a moment, that the federal government has complete authority over immigration (which is not true since immigration is one of those issues in which the federal government and the States have concurrent jurisdiction), Arizona's law would then need to be identical to federal law. And in most ways, the Arizona law is similar to federal law. However, if Arizona was to follow the federal government's recommendation, and truly pass a law completely in line with federal law, Arizona would remove its text that disallows racial profiling because the federal law does not contain such protections, which is actually the only way the law is contrary to federal law.

The language in Article VI, Clause 2 reveals clearly that only laws made under the authorities granted to the federal government have supremacy. Article VI, Clause 2 reads: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; . . . in pursuance of what? Of the Constitution.

The language is simple. The conclusion is easy. The truth is obvious.

Article VI, Clause 3. This clause indicates that all elected officials are bound to support the Constitution by oath or affirmation. An oath is to God, and an affirmation is not a sworn oath to God. This was offered because the Founding Fathers recognized that not everyone believed in God, and that there were some religions that believed swearing to God to be a sin. This clause also states that there shall be no religious test to serve. This was not the case in all of the states. For example, the Danbury Baptists in Connecticut appealed to President Jefferson because they felt they were being mistreated by the Puritans, who were the dominant religion in that state. Jefferson replied that the federal government could not help them. It was a State issue. But we will have more on that next week when we discuss the 1st Amendment.

Article VII.

To ratify the Constitution, the Founding Fathers determined it should be at least nine states. This meant that both northern and southern states would be needed to ratify the Constitution. The number “9”, of 13, represented 2/3 of the total states at the time.

When reviewing the list of signers of the Constitution, one may notice that Rhode Island was not present, and only Alexander Hamilton signed for New York. The anti-federalists feared a federal government, afraid that the system could become centralized, and ultimately tyrannical. Such a system would infringe upon States’ Rights, and the sovereignty of the States was a very important aspect of the new nation. The federal government was only supposed to protect and preserve the union, and nothing more.

The New York anti-federalists were so angry over the proceedings that they all got up and walked out, leaving Hamilton alone. Later, in the hopes of convincing the anti-federalists in New York to support the new Constitution, the 85 Federalist Papers were written by James Madison, Alexander Hamilton, and John Jay.

Because of the Supremacy Clause, not only is it assumed by many that the federal government’s laws are all supreme, but that the federal government has implied powers. Below is an explanation regarding the difference between expressed and implied powers.

Implied v. Expressed Powers

By Douglas V. Gibbs

When one studies the United States Constitution, and also studies the various opinions regarding the U.S. Constitution, one discovers the existence of two schools of thought when it comes to the authorities of the federal government. One contends that all federal powers are expressly given, or enumerated, by the U.S. Constitution (primarily in Article I, Clause 8, and all subsequent Amendments). The second school of thought recognizes two different types of powers in the Constitution: Expressed powers and implied powers.

Expressed powers include the power to tax, maintain a military, coin money, establish post roads and post offices, and to establish uniform rules of naturalization.

Those that do not agree with the strict constructionist view of the U.S. Constitution will argue that there are more powers granted to Congress that you can find within the body of the Constitution and its amendments. These are implied powers, which means that there are powers beyond those enumerated that are given to Congress so that they can write laws to make sure what needs to happen happens. In other words, those that believe in the existence of implied powers argue that such powers add to Congress's expressed powers.

Implied powers, according to those that support this concept, relate specifically to the Legislative Branch, but actually all branches have some form of implied powers.

The Constitutional argument used to support their belief in the existence of implied powers is in Article I, Section 8, Clause 18, also known as the "necessary and proper clause." The clause reads: To make all law which shall be necessary and proper to carrying into execution the foregoing powers, and all other powers vested in this Constitution in the government of the United States, or in any department or officer thereof.

The language of this clause, however, actually denies the existence of implied powers, for the clause specifically states that the laws necessary and proper must be passed in order to carry into execution the foregoing powers, and all other powers vested in this Constitution.

Foregoing powers means the powers expressly granted preceding this clause. All other powers vested in this Constitution means any other powers granted by amendment.

Also notice the word "vested." Vested means "legally transferred." If the powers are legally transferred, they must be transferred from someplace. If you read Article I, Section 1 and the Tenth Amendment, it becomes apparent that the original possessors of the powers granted to the federal government is the States, therefore the laws must be in accordance with those powers granted, and any new powers must be obtained through the amendment process (Article V) which does not reach fruition until the States ratify the request with a vote of 3/4 of the States.

So, any laws passed by the federal government must be in line with their authorities from the Constitution itself, which means they cannot possess any implied powers that do not find their foundations in the express powers granted.

Those that support the concept of implied powers will also argue that Article I, Section 7 of the Constitution grants the concept of implied powers as they relate to committees, subcommittees, conference committees, limits on debate, how a law will be introduced, or any other details. The assumption is that those procedures were created out of the implied power of Congress. However, the ability for the Houses of Congress to make their own rules is not an implied power, but a specific enumerated power provided for in Article I, Section 5, Clause 2, where it establishes Congress's allowance to make their own rules of operation.

Another assumption of an implied power is the power of the military draft. Those that support the concept of implied powers will tell you that the military draft is an implied power of Congress to raise and maintain an Army and Navy. However, there is no place in the Constitution that actually allows for a military draft, so as a strict constructionist, it is apparent to me that the military draft is actually an unconstitutional action.

Thomas J. DiLorenzo, in his book "Hamilton's Curse," explains that implied powers were an invention of Alexander Hamilton, a federalist that believed in a more centralized governmental system. DiLorenzo wrote:

Hamilton also invented the myth that the Constitution somehow grants the federal government "implied powers." "Implied powers" are powers that are not actually in the Constitution but the statists like Hamilton wish were there. As Rossiter pointed out, "One finds elaborations of this doctrine throughout his writings as Secretary of the Treasury." The most notable articulation of this idea can be found in Hamilton's Opinion on the Constitutionality of the Bank of the United States. He wrote this report in 1791, while serving as treasury secretary. President Washington had asked both Hamilton and Jefferson for their opinions on the subject. In his opinion, Hamilton wrote that "there are implied, as well as express powers [in the Constitution], and that the former are as effectually delegated as the latter" . . . He added, "Implied powers are to be considered as delegated [to the federal government] equally with express ones." A nationalized bank, he went on to argue, was one of those implied powers.

Jefferson vehemently disagreed, arguing that the express powers delegated to the federal government in Article I, Section 8, of the Constitution (providing for the national defense, coining of money, etc.) were expressly stated because they were the only powers delegated to the federal government by the sovereign states that ratified the Constitution. Any new powers, Jefferson believed, could be delegated only by a constitutional amendment. He realized that such a doctrine as "implied powers" would essentially render the Constitution useless as a tool for limiting government if the limits of government were simply left up to the imaginations of ambitious politicians like Hamilton. . . the shock troops of the Federalist Party - federally appointed judges - would use Hamilton's arguments to essentially rewrite history and the Constitution. Thus was "liberal judicial activism" born.

. . . George Washington had condemned the notion of a "living constitution" in his Farewell Address (which, oddly enough, is said to have been at least partly ghostwritten by Hamilton). In that address President Washington said, "If in the opinion of the People, the distribution of modification of the Constitutional powers be in any particular wrong, let it be corrected by an amendment in the way the Constitution designates. But let there be no change by usurpation . . . the customary weapon by which free governments are destroyed." Hamilton's theory of implied powers ignored this warning, laying the template for generations of lawyers who would use the courts, rather than the formal amendment process, to essentially render the constitutional constraints on government null and void.

Not only were there supposedly "implied" powers in the Constitution that only the wise and lawyerly like Hamilton recognized (but that were foreign to James Madison, who like Jefferson was a strict constructionist) . . . unconstitutional powers would magically become constitutional, in Hamilton's opinion. Taken to logical ends, this argument implies that any action of the government would be de facto "constitutional" by virtue of the fact that the action occurred. This is how Hamilton viewed the Constitution - as a potential blank check for unlimited powers of government. (Thomas J. DiLorenzo, Hamilton's Curse, New York: Three Rivers Press, 2008, pages 26-29.)


Thank you to Faith Armory for the use of the Classroom at 27498 Enterprise Cir. W., #2, Temecula, CA.

Thursday, January 20, 2011

Article V. Convention

Temecula Constitution Study with Douglas V. Gibbs, January 20, 2011, Article V Convention.

When the Tea Party movement emerged on the scene, many Americans flocked to the patriotic rallies. People knew in their gut that something was wrong as liberalism tightened its grip on the American form of government. We knew that liberalism's stranglehold on America was dangerous, but we weren't quite sure how to combat the leftist attack on our freedoms. Patriots moved on the symptoms while initiating a revolt against the establishment leadership in the Republican Party.

Ultimately, however, to turn this nation around, there are only a few solutions available. Some of the solutions are much more desirable than others. The taking back of America can be achieved through Peaceful Revolution, Violent Revolution, Nullification, or through an Article V. Convention.

Violent Revolution: The least preferred of the four is a violent revolution. The founding of this nation was largely achieved through a violent revolution. Violence broke out only after the British fired the first shots. First, at the Boston Massacre, and second at Lexington Green. Today, a bloody revolution is not desired, nor should it be. But, if the federal government under tyrannical control was to act in a manner against the American People by using force, a violent revolution could be the result. The Founding Fathers understood the possibility of another bloody revolution. This was one of the primary reasons for the 2nd Amendment. The right to keep and bear arms was not afforded simply for home protection and hunting. The Founding Fathers wished that the populace be armed so that the people could fend off a tyranny should one arise in the United States.

Nullification: The U.S. Constitution is a social contract between the States and the federal government. The federal government exists because the States allow it to. The Constitution grants the federal government enumerated powers, but if the federal government were to act in an unconstitutional manner, or pass unconstitutional laws, the States have at their disposal "nullification." Nullification is simply a State refusing to abide by a federal mandate or law simply because it is unconstitutional. If the federal government passes any legislation that does not fall within the authorities granted by the Constitution, the States have the right to not follow the federal mandate or law. However, people cringe when nullification is discussed, because many falsely believe that it was nullification that angered the federal government into acting against the Southern States, thus launching us into the War Between the States.

Peaceful Revolution: John Adams once wrote, "The Revolution was effected before the War commenced. The Revolution was in the minds and hearts of the people." The founders did not expect to go to war. They had hoped the differences between the King and the colonies could be settled peacefully. The King, however, had other plans. Today, in America, a peaceful revolution is currently in play. The Tea Party has launched a revolution against tyranny, and the result was the GOP gaining the House of Representatives in Election 2010. Taking back America through a peaceful revolution is one of the preferred methods, but can only be achieved if we continue to gain ground, and if the politicians put into office don't abandon their Tea Party principles.

Article V. Convention: The most desirable method of taking back America. Through an Article V. Convention, the States have a way of taking back control, by passing amendments designed to grab a hold of the reins and reeling back in the out of control federal government. The Constitution offers this opportunity through an Article V. Convention, where the States may propose amendments, and then approve them by a 3/4 ratification vote. This is the tool that many believe may be used best against a tyrannical federal government.

Thank you to Faith Armory, 27498 Enterprise Cir. W. #2, Temecula, California for the use of their classroom.

Thursday, January 13, 2011

Articles IV and V

Constitution Study with Douglas V. Gibbs, Articles IV and V,
January 13, 2011

Article IV:

The Full Faith and Credit Clause is a clause in the Constitution of the United States which states that: “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.” Put in simple language, under the Full Faith and Credit Clause judgments rendered in one state are acknowledged in others; when a United States citizen resolves an issue within one of the States that resolution must be recognized by all other States.

The Founding Fathers originally intended, with the Full Faith and Credit Clause, to protect the self-government autonomy of the states, while also promoting union of the sovereign states as well. To do this, the Founding Fathers needed to make sure that judicial rulings in one state would be respected by all states, because otherwise there would be a substantial opportunity for abuse. Doing so affirmed the autonomy of the individual states, while also ensuring that the states remained unified.

Without the Full Faith and Credit Clause, something as simple as a divorce would not be recognized outside the state where the proceeding took place. If one of the members of the divorced couple moved to another state, it would be necessary to file all over again, otherwise that person would still be considered married. However, thanks to the Full Faith and Credit Clause, the state that serves as the new home of the transplanted divorcee recognizes the divorce filed and approved in the state of origin.

The Full Faith and Credit Clause also protects against abusive litigation. If someone in one state sues someone and the court delivers a valid judgment, this person cannot file the same suit in another state. Under the Full Faith and Credit Clause, the outcome of the suit in the first state is recognized and considered to be the final judgment. Likewise, someone who is ruled against in litigation in a state cannot flee to another state to evade punishment, because the ruling in the first state's court is still valid in the new state.

Because of the Full Faith And Credit Clause, professionals like doctors and lawyers only need to go to school once. As they move to new states, they can apply for reciprocity in certification so that they can practice in their new location. Things like drivers licenses also benefit from the Full Faith and Credit Clause, because when people move to different states, they can renew their driving licenses in the new state without having to go through drivers' education a second time. As long as the standards for licensure are similar between the two states, no additional training or certification will be required for reciprocity.

Article IV, Section 2, Clause 1 gives the people of each state all the same privileges and immunities uniformly in each state. In other words, if a Texan moved to California, the Texan must be treated by California in no different manner than it treats Californians. A state, for example, could not pass a law keeping Texans out of their state, but letting others in. This violates the Constitution. A state cannot play favoritism in such a manner. All persons must be treated uniformly.

Because of this article, many have argued that the 14th Amendment and Civil Rights legislation are unnecessary, because States are instructed by this part of the Constitution, to treat all citizens equally.

Article IV, Section 3:

Clause 1 gives Congress the authority to admit new States. However, if a new State is formed within the borders of an existing State, from a portion of an existing State, or by combining two States, then the State legislatures of all States affected must also get involved. A great example of when this provision came into play is when West Virginia was formed from part of Virginia during the Civil War.

Clause 2 gives the Federal Government "power over the territory and property of the United States." Territories like Puerto Rico falls under this clause, treating the territories not as individual sovereign states, but as territories under the control of the U.S. Government.

Article IV, Section 4:

“The United States shall guarantee to every State in this Union a Republican Form of Government,” meaning that each state may have its own constitution, as well as a representative government based on the rule of law. The Federal Government, according to this clause, must also protect each State from invasion, which is a firm directive to the federal government to keep the national borders sealed as to protect the States from foreign invasion.

The Federal Government, in this clause, is also tasked with quelling insurrection. The writing of this clause was directly influenced by the occurrence of Shays' Rebellion.

Article V:

Article V establishes amendments. Originally, only the States were going to be able to propose amendments. On the second to the last day of the Constitutional Convention, the Founding Fathers added as an afterthought to allow the Congress to propose amendments as well. The amendment process is the process through which the Constitution may be altered.

Amendments, according to Article V, may be proposed by either two-thirds of both houses of the United States Congress or by a national convention. Amendments must then be ratified by approval of three-fourths of the states either through their legislatures, or through ratifying conventions held in three-fourths of the states.

As stated earlier, amendments may also be proposed by a national convention. Such a convention is called an "Article V. Convention."

Some people have warned against such a convention, which can be called by two-thirds of the states. The fear is that if such a convention was to convene, the attendees would re-write the Constitution. However, the constitution does not allow for that. Only amendments may be proposed during an Article V Convention.

The call for an Article V. Convention is nothing new. All 50 states have called for it, many of those calls beginning longer than over a 100 years ago. The convention has never taken place because the Congress will not set a time and place (the only federal duty in an Article V. Convention), for fear of the people proposing amendments, and the States ratifying them, that would limit the powers of the federal government. Centralized systems do not like it when the individual mind gets involved.

Amendments may change the Constitution as necessary, as long as no amendment, without the consent of the State, deprives a State of equal suffrage in the Senate. The 17th Amendment, unfortunately, eliminated State suffrage in the Senate, handing the U.S. Senate over to the popular vote, thus eliminating the States' voice from the federal government.


Thank you to Faith Armory for allowing us to use their classroom for our Constitution Study, held from 6pm to 7pm at Faith Armory, 27498 Enterprise Cir. W. #2, Temecula, California.

Thursday, January 6, 2011

Article III - The Judicial Branch

January 6, 2011 - Temecula Constitution Study with Douglas V. Gibbs

Article III - The Judicial Branch

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

The 11th Amendment changes the intent of Article III. As limited as the courts were supposed to be, the Founding Fathers realized the courts weren't limited enough, and as a result, the 11th Amendment wound up being ratified in 1795.

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

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

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

The Tenth Amendment to the Constitution of the United States of America states that the powers not delegated to the United States by the Constitution, or prohibited by it to the States, are reserved to the States respectively, or to the people. The federal courts are included in that, as being a part of the United States federal government. Which means that federal courts can only hear cases that fall within the constitutional authorities for the federal government.

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

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

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

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

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

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

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

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

No forfeiture meant that despite treason, the properties of the person could not be forfeited to the government. The property would remain as property of the individual, or remain with family.


Thank you to Faith Armory, 27498 Enterprise Circle West, #2 in Temecula, California for the use of their classroom.

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Ó 2011 Douglas V. Gibbs