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ONE DAY CONSTITUTION BOOT CAMP VIII

Welcome !!!

What you will learn will amaze you ! 1

“Educate and inform the whole mass of the people…they are the only sure reliance for the

preservation of our liberty”

Thomas Jefferson

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BARNEY AND THE PREAMBLE

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LET’S BEGIN – WHAT YOU WILL LEARN

• Who were the main influences on the Founders

• What is “Natural Law” vs. “Positive/Political Law”

• How the Founders view government

• Why did the Founders decide on a Constitutional Republic over a democracy

• Rule of Law versus Rule of the Majority

• Greeks said “Where there is Law, there is Freedom”

• What is the relationship between the Declaration of Independence and the Constitution

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LET’S BEGIN – WHAT YOU WILL LEARN

• Original Intent versus Living Document

• How to read, define, understand, validate, and know the Constitution

• What are the tools available to help us

• What is Federalism

• The Constitution

• Not an outdated document, it is alive and well

• Enumerated powers of the three branches

• The three most abused clauses

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LET’S BEGIN – CLASS GOALS

• The goals of this class are for you to learn:

• You need to know that despite what the “experts” tell you, you don’t have to have constitutional scholar or lawyer interpret the Constitution for you.

• It does take thinking to read and understand the Constitution. Remember the founders said a lot in few words (economy)

• You will have the tools necessary to do this for yourself.

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LET’S BEGIN – CLASS GOALS

• The goals of this class are for you to learn:

• Our Constitution is one of "enumerated" powers ONLY. If a power is not listed, Washington cannot do it, there are no implied powers

• The Federal government is permitted to do ONLY a FEW things.

• States, on the other hand, are prohibited from doing ONLY a FEW things

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Main Influences on Founders

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POLYBIUS

• Polybius - (203 B.C. – 120 B.C.) Greek statesman and historian who wrote of the rise of Rome to world prominence in “The Histories”

• He is also renowned for his ideas of political balance in the government, which was later used in Montesquieu's “The Spirit of the Laws” and the drafting of the United States Constitution.

• The mixed constitution combines monarchy, aristocracy, and democracy in such a way that each element keeps the others in line, and the government does not become abusive

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POLYBIUS - QUOTES

• “Monarchy degenerates into tyranny, aristocracy into oligarchy, and democracy into savage violence

and chaos”

• “All historians have insisted that the soundest education and training for political activity is the

study of history, and that the surest and indeed the only way to learn how to bear bravely the

vicissitudes of fortune is to recall the disasters of others.“

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CICERO

• Marcus Tillius Cicero (106–43 B.C.), Roman statesman and consul, preeminent orator, lawyer and significant moral and political philosopher

• Cicero expressed principles that became the bedrock of liberty in the modern world. He insisted on the primacy of moral standards over government laws. These standards became known as natural law.

• Cicero influenced the discussion of natural law for many centuries to come, up through the era of the American Revolution, even until today

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CICERO

• The most direct and noted statements of Cicero on the character and basis of Natural Law can be found in three works, On the Republic (54–51 B.C.), On the Laws (51 B.C. ff.), and On Duties (44 B.C.)

• In these writings Cicero projected the promise of a society based on Natural Law

• His works were an essential part of the education of the 18th century Americans who participated in the creation of the Declaration and U. S. Constitution

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CICERO QUOTES

"Freedom is participation in power"

“Do not blame Caesar, blame the people of Rome who have so enthusiastically acclaimed and adored him and rejoiced in their loss of freedom and danced in

his path and gave him triumphal processions. … Blame the people who hail him when he speaks in the

Forum of the ‘new, wonderful good society’ which shall now be Rome’s, interpreted to mean ‘more

money, more ease, more security, more living fatly at the expense of the industrious.’”

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SYDNEY

• Algernon Sydney - (1623 – 1683) Algernon Sidney (also Sydney) is an English martyr for republican government. Sidney was the most radical man of his time

• Sidney was a pioneer in natural rights theory. "The common Notions of Liberty are not from School Divines, but from Nature” he declared

• Sidney’s book, Discourses Concerning Government, was considered by Jefferson to be the best fundamental text on principles of government

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SYDNEY

• A more accurate title for the Discourses might be History of Liberty. Sidney saw history largely as an eternal conflict between virtue and vice

• John and Samuel Adams, George Mason, James Madison, Thomas Jefferson and Benjamin Franklin all acknowledged Sidney's influence on American political thought

• Thomas Jefferson believed that Sidney (and Locke) to be the two primary sources for the Founding Fathers' view of liberty

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SYDNEY QUOTES

• “The right to rule is in the people therefore no person can rightfully rule the people without their

consent”

• "That which is not just, is not Law; and that which is not Law, ought not to be obeyed”

• "Ense petit placidam sub libertate quietem”

• “By the sword we seek peace, but peace only under liberty"

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LOCKE

• John Locke (1632 – 1704) was an English philosopher and physician

• Locke's landmark book, Two Treatises of Government, put forth his revolutionary ideas concerning the natural rights of man and the social contract

• He expressed the radical view that government is morally obliged to serve people by protecting life, liberty and property

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LOCKE

• He explained the principle of checks and balances to limit government power

• His theories concerning the separation of Church and State, religious freedom, and liberty, not only influenced European thinkers, but shaped the thinking of America's founders

• Thomas Jefferson cited Locke as a source of the principles of the Declaration of Independence

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LOCKE QUOTES

• “Wherever law ends tyranny begins”

• “The end of law is not to abolish or restrain, but to

preserve and enlarge freedom. For in all the states

of created beings capable of law, where there is no

law, there is no freedom”

• “I have always thought the actions of men the best

interpreters of their thoughts”

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MONTESQUIEU

• Baron Charles de Montesquieu – (1689 – 1755) a French political thinker and jurist

• Wrote “The Spirit of the Laws” in 1748. It outlined his ideas on how government would best work

• Montesquieu believed that a government that was elected by the people was the best form of government

• He thought it most important to create separate branches of government with equal but different powers

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MONTESQUIEU

• He thought England - which divided power between the king (who enforced laws), Parliament (which made laws), and the judges of the English courts (who interpreted laws) - was a good model of this

• According to Montesquieu, each branch of government could limit the power of the other two branches

• Therefore, no branch of the government could threaten the freedom of the people

• His ideas about separation of powers became the basis for the United States Constitution

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MONTESQUIEU QUOTES

• "When the [law making] and [law enforcement] powers are united in the same person... there can be no liberty.“

• “A thing is not just because it is law. But it must be law because it is just”

• “Luxury ruins republics; poverty, monarchies.”

• “The less men think, the more they talk”

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NATURAL LAW

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NATURAL LAW - CICERO’S FUNDAMENTAL PRINCIPLES

• Natural Law, or the law of nature, is a system of law that is determined by God, and thus is universal

• Natural Law is a universal law of nature that is not written, but inborn. It is not learned by training, but rather “imbibed” from nature herself. It is the universal law within which we are born

• Since man is born into a natural world which must follow the universal natural order, man is born with Natural Rights. Among which are Life, Liberty and Property

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• Natural Law is eternal, universal, reasonable, it cannot be altered or repealed, it’s comprehensible and totally correct

• Natural Law summons to duty by it’s command – it makes you do things you should do, i.e. food, money, work

• Natural Law averts from wrong-doing by it’s prohibitions, i.e. the stove is hot you’ll get burned if you touch it

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• We cannot be freed from it’s obligation by senate (government) or people

• Natural Law is so understandable, so common-sense, so reasonable that you need no one to interpret it for you

• Natural Law is the same everywhere and for all times

• Cicero said that:

• “God’s law is right reason, when perfectly understood it is called wisdom, when applied by government in regulating human relations it is called justice”

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NATURAL LAW VERSUS POLITICAL LAW

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FOUNDERS VIEW OF GOVERNMENT

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REPUBLIC VERSUS DEMOCRACY

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HOW DID THE FOUNDERS VIEW GOVERNMENT ?

• Today we view government in terms of left or right

• Part of the genius of the Founding Fathers was their political frame of reference

• It was their yardstick for measuring the political power in any particular system of government

• The founders viewed governments in terms of the amount of coercive power which a particular system of government exercises over its people

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THE FOUNDERS POLITICAL SPECTRUM

Rulers Law Peoples Law No Law

100% (Tyranny)

0% (Anarchy)

The U.S. Constitution

The U.S. Constitution was designed to maintain the political equilibrium between the people in the states and the federal government

The idea was to keep the power base close to the people

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The Founder’s political spectrum might be graphically illustrated as follows:

WHAT IS FEDERALISM ?

• Under People’s Law the Founders chose a Constitutional Republic utilizing a system of government called Federalism

• The U.S. Constitution establishes a government based on federalism, or the sharing of power between the federal, state and local governments

• A federal government is an alliance of Sovereign States associated together in a federation with a federal government to which is delegated supremacy over the States in specifically defined areas only

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WHAT IS FEDERALISM ?

• These specifically defined areas are the enumerated powers WE THE PEOPLE delegated to the three branches of the federal government.

• Legislative

• Executive

• Judicial

• The States and The People

• retained all other powers

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WHAT THE FOUNDERS SAID

• Thomas Jefferson said:

• “The two enemies of the people are criminals and government so let us tie the second down with the chains of the Constitution so the second will not become the legalized version of the first”

• The Constitution established clear limits to the federal governments power

• The Constitution is the

• LAW TO THE GOVERNMENT

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• The Constitution was written to RESTRAIN THE POWERS OF GOVERNMENT by stating only what power the federal government would possess

• Except for those few powers (primarily relating to national defense & other external objects) that the People and the States specifically delegated to the national government, the People and the States remain independent and sovereign

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• James Madison wrote in The Federalist Papers, No. 45 (9th paragraph):

• “The powers delegated by the proposed Constitution to the federal government are few and defined. Those that 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; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people….”

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NATIONAL vs. FEDERAL GOVERNMENT

JOHN HINDERY

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“NATIONAL” VS. “FEDERAL” GOVERNMENT

• A “National” government is the government of a nation-state and is more typically a characteristic of a unitary state.

• As opposed to a “Federal” government which may have distinct powers at various levels authorized or delegated to it by its member states.

• This poses two critical questions.

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“NATIONAL” VS. “FEDERAL” GOVERNMENT

• First, were the states independent sovereign entities prior to ratification of the Constitution?

• Second, where in the Constitution did the states dissolve themselves as part of their ratification of the Constitution?

• In a “National” government the states serve as administrators for the central government. In a “Federal” governments the central government serves the states.

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POLITICAL STRUCTURE OF THE COLONIES

• We the People were never “One People.”

• Each colony was formed at different times and under unique charters from the British Crown.

• The people of each colony held their allegiance to their own colonial government and the British Crown and not a common allegiance to any other colony.

• Citizens of one colony were not subject to laws or taxation of another colony, unless they were located in that colony.

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THE ARTICLES OF CONFEDERATION

• The Articles of Confederation were drafted and sent to the states for ratification on 15 November 1777, and were finally ratified on 22 February 1781.

• The Treaty of Paris 1783 recognized each individual colony, by name, as free, sovereign and independent States.

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WHAT DOES THE CONSTITUTION SAY?

• Article I, Legislature(House of Representatives):

• Section 2, Representatives are chosen from each state independent of other States.

• Representatives must be residents of the States they represent.

• Representation does not cross State lines, i.e. a surplus of electors in one state is not added to a deficiency of electors in another State to allow a multi-State representative.

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• Article I, Legislature (Senate):

• Section 3, Each State, regardless of population, has 2 Senators

• Senators must reside in the State they represent

• Senators appointed by the individual State

legislatures (changed to election by the people of each

State by the 17th amendment)

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• Article II, Executive:

• Section 1, Each State appoints electors for president equal to the number of Senators and Representatives to which the State is entitled

• Electors meet in their respective States and the vote tally is certified be each State

• Should there by a tie, the House of Representatives will vote, but each State is allotted only one vote

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• Article III, Judicial Power:

• Section 2, The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more States;--between a State and citizens of another State;--between citizens of different States;--between citizens of the same State claiming lands under grants of different States, and between a State, or the citizens thereof, and foreign States, citizens or subjects..

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• Article V, Amendment:

• The Congress, whenever two thirds of both Houses shall

deem it necessary, shall propose Amendments to this

Constitution, or on the application of the legislatures of

two thirds of the several States, shall call a convention

for proposing amendments, which, in either case, shall be

valid to all intents and purposes, as part of this Constitution,

when ratified by the legislatures of three fourths of

the several States, or by conventions in three fourths

thereof, as the one or the other mode of ratification may be

proposed by the Congress; 47


• Article V, Amendment continued:

• provided that no amendment which may be made

prior to the year one thousand eight hundred and

eight shall in any manner affect the first and fourth

clauses in the ninth section of the first article; and

that no State, without its consent, shall be

deprived of its equal suffrage in the Senate.

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•Article VII, Ratification:

• “The ratification of the conventions of nine States, shall be sufficient for the establishment of this Constitution between the States so ratifying the same”

•Tenth Amendment:

• “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”

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LET’S BEGIN

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• Alexander Hamilton said in The Federalist Papers,

No. 33, (6th paragraph):

• “If the federal government should overpass the just

bounds of its authority and make a tyrannical use of

its powers, the people, whose creature it is,

must appeal to the standard they have formed [the

Constitution], and take such measures to redress

the injury done to the Constitution as the exigency

may suggest and prudence justify”

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YOU NEED A PARADIGM SHIFT

• You will need a paradigm shift when reading and interpreting the U.S. Constitution

• In the United States of America, it is “We the People” who are sovereign.

• Always remember, the federal government is the “creature” of our creation

• “We The People” have been brainwashed by a complicit media and a failing public school system to accept a position of inferiority.

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UNDERSTAND THESE THINGS

• It is the Constitution that sets the agenda for government

• WE cannot appeal to our servant (government) for our sovereignty.

• The federal government will never limit its own power; it’s up to the states, and us, to act to limit the federal creature.

• Having the “correct mindset" when reading the constitution is a must

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THINGS TO REMEMBER

• WE the People created the Federal government when WE, as States, ratified the Constitution.

• WE determined its powers and duties and enumerated those powers and duties in a written Constitution.

• WE then delegated those enumerated powers to the Federal government in the Constitution

• None of the three branches of the Federal government: neither the Legislative, nor the Executive, nor the Judiciary, may do ANYTHING unless WE first gave them permission in the Constitution.

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RIGHTS

• The Declaration of Independence says:

• “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed…”

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OUR RIGHTS

• The future of our Posterity depends on a proper understanding of the Source of our Rights

• Our Declaration of Independence says our Rights come from God and our Humanity.

• Our rights thus pre-date and pre-exist

• the Declaration of Independence

• and the U.S. Constitution

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FOUNDATIONAL PRINCIPLES

• These then are the foundational principles of our Constitutional Republic:

• Our Rights are unalienable and come from God

• The purpose of civil government is to protect our God-given Rights

• Civil government is legitimate only when it operates with our consent

• Since the US Constitution is the formal expression of the Will of the People, the federal government operates with our consent only when it obeys the Constitution

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• On keeping our Republic….

• John Adams said:

“Our Constitution was made only for a moral and

religious people”; “[I]t is religion and morality alone

which can establish the principles upon which freedom

can securely stand. The only foundation of a free

constitution is pure virtue”

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• George Washington:

“Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports… Let it simply be asked, Where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths, which are the instruments of investigation in Courts of Justice”

Richard Henry Lee:

“It is certainly true that a popular government cannot flourish without virtue in the people”

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• Benjamin Rush:

“The only foundation for a useful education in a republic is to be laid in religion. Without this there can be no virtue, and without virtue there can be no liberty, and liberty is the object and life of all republican governments”

• Benjamin Franklin:

“[O]nly a virtuous people are capable of freedom. As nations become corrupt and vicious, they have more need of masters”

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• Charles Carroll:

“Without morals a republic cannot subsist any length of time…”

• Samuel Adams:

“[N]either the wisest constitution nor the wisest laws will secure the liberty and happiness of a people whose manners are universally corrupt”

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Declaration of Independence

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THE DOI – 9 KEY CONCEPTS

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THE DOI AND THE USC WORKING TOGETHER

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DOI & THE USC

• The DOI serves as the Charter or Purpose document

• A Charter is a document issued by a sovereign, legislature or other authority defining its privileges (principles & beliefs), and its purposes

• The US Constitution serves as Bylaws or Organizational document

66 Information Only

DOI & THE USC

• Bylaws are the rules adopted by an organization chiefly for the government of its members and the regulation of its affairs

• In business a Charter defines why a company goes into business, the bylaws tell how a company will organize and govern itself

• The USC “serves” the principles put forth in the DOI

67 Information Only

DECLARATION OF INDEPENDENCE

• There are nine key concepts we need to understand about the DOI

• We can break them down into three more broad categories

• Understanding the basic structure of the DOI

• Understanding the seven component parts within this basic structure

• Understanding that the DOI and USC work together

68 Information Only


• Understanding the basic structure of the DOI

• Total length of the DOI is just under 1400 words

• About 400 key words spell out the essence of the principles and beliefs upon which the US was founded

• The 400 key words are split just about evenly between the opening and closing statements of the DOI

• The other 1000 words appear in the body of the document and they outline over 25 abuses by King George III over a period of 10 years

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Information Only


• The seven component parts of the DOI – first four in opening

• Reason for the DOI

• The self evident truths

• The purpose of government

• Reasons for altering or abolishing a form of government

70 Information Only


• Component parts in body of DOI

• The list of grievances or abuses included:

• Unfair taxation, cutting off trade, abolishing good and helpful laws, making of arbitrary laws by the king, creating new government departments with officials that harass the people, depriving colonists of trial by jury, protecting his own officials that had committed heinous crimes, attempting to establish military rule, hiring mercenaries to harass and kill colonists, etc..

• Last two components in closing

• Statement of actual Declaration

• The rights of the united sovereign states

71 Information Only

THE CONSTITUTION

• The opening statement of the USC is a statement of the six core purposes of the USC:

• WE THE PEOPLE of the United States in order

• To form a more perfect union

• To establish justice

• To ensure domestic tranquility

• To provide for common defense

• To promote the general welfare and

• To secure the blessings of liberty to ourselves and our posterity

• Do ordain and establish this Constitution

72 Information Only

THE TOOLS

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WHEN READING THE CONSITUTION

• Remember, we never have the right to look into our own minds for the meaning of any provision of the USC. Our own personal views are irrelevant

• We must look to the objective meaning only and THAT can be found in viewing everything written from the founders perspective; what were they thinking when they wrote it, how did they view the different clauses?

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TOOLS

• To do this you will need to use the following tools:

• Federalist Papers

• Webster’s 1828 Dictionary

• Madison’s Notes of the 1787 Convention

• The Notes of the State’s Ratifying Conventions

• Publius Huldah’s Blog

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THE FEDERALIST PAPERS

JOHN HINDERY

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“On every question of construction let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning can be squeezed out of the text, or invented against it, conform to the

probable one which was passed.”

~ Thomas Jefferson

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IMPORTANT CONCEPTS

• Federalists were pro-ratification and were either “Nationalists” or “Monarchists” and advocated a “Unitary Government.”

• Anti-federalists were actually the real ”Federalists”

• Delegata potestas non potest delegari;

“No delegated power can be further delegated,” therefore the Federal Government cannot re-delegate any powers between the branches.

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OVERVIEW

• An 85-essay series

• 77 first appeared in two New York City newspapers

• Some later reprinted in other States

• No State in which all were reprinted

• Organized by Alexander Hamilton

• 55 essays by Alexander Hamilton, 5 essays by John Jay & the remainder by James Madison

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Enumerated Powers NOT Implied Powers

Page 289, second paragraph

“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which remain in State governments are numerous and indefinite. The former will be exercised principally on external objects as war, peace, negotiation and foreign commerce; with which last the power of taxation will, for the most part be connected.” Federalist 45 (James Madison)

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HOW TO USE THE INDEX TO THE CONSTITUTION

Pg. 546, Article l Section 8; “General Welfare”

Pg. 259; Federalist 41 (Madison)

“ … For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural or more common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. …”

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ALSO NOT REFERENCED

• Pg. 97; Federalist 14 (Madison) “… the general [federal] government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects...”

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ALSO NOT REFERENCED

• Pg. 173; Federalist 27 (Hamilton) “…It merits particular attention in this place, that the laws of the Confederacy [the federal government], as to the ENUMERATED and LEGITIMATE objects of its jurisdiction, will become the SUPREME LAW of the land…Thus the legislatures, courts, and magistrates, of the respective members, will be incorporated into the operations of the national government AS FAR AS ITS JUST AND CONSTITUTIONAL AUTHORITY EXTENDS… [caps in original]

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ALSO NOT REFERENCED

• Pg. 496; Federalist 83 (Hamilton) “…The plan of the [constitutional] convention declares that the power of Congress…shall extend to certain enumerated cases. This specification of particulars evidently excludes all pretension to a general legislative authority, because an affirmative grant of special powers would be absurd, as well as useless, if a general authority was intended… “

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• Pg. 547, Article l Section 8; “Commerce Clause”

• Pg. 264; Federalist 42 (Madison) “… A very material object of this power [to regulate interstate commerce] was the relief of the States which import and export through other States, from the improper contributions levied on them by the latter. Were these at liberty to regulate the trade between State and State … ways would be found out to load the articles of import and export, during the passage through their jurisdiction, with duties which would fall on the makers of the latter and the consumers of the former…”

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• Pg. 547, Article l Section 8; “Commerce Clause”

• Pg. 264; Federalist 42 (Madison) “ … The necessity of a superintending authority over the reciprocal trade of confederated States has been illustrated by other examples … each canton is obliged to allow merchandises a passage through its jurisdiction into other cantons, without augmentation of the tolls. …”

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• Pg. 548, 2nd paragraph; “Necessary and Proper clause

• Pg. 199-201; Federalist 33 (Hamilton) “… authorizes the national legislature to pass all necessary and proper laws. If there be exceptional, it must be sought for in the specific powers upon which this general declaration is predicated. The declaration itself, though it may be chargeable with tautology or redundancy, is at least perfectly harmless …”

• Pg. 281-284; Federalist 44 (Madison) “… whenever a general power to do a thing is given every particular power necessary for doing it is included. …”

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• Pg. 555, Article VI 2nd paragraph; “Supremacy clause”

• Pg. 200; Federalist 34 (Hamilton) “… But it will not follow from this doctrine that acts of the larger society which are not pursuant its constitutional powers, but which are invasions of the residuary authorities of the smaller societies will become the supreme law of the land. These will be merely acts of usurpation and will deserve to be treated as such…”

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ALSO NOT REFERENCED

• Pg. 555, Article VI 2nd paragraph; “Supremacy clause”

• Pg. 173; Federalist 27 (Hamilton) “…the laws of the Confederacy [the federal government], as to the ENUMERATED and LEGITIMATE objects of its jurisdiction, will become the SUPREME LAW of the land; to the observance of which all officers, legislative, executive, and judicial, in each State, will be bound by the sanctity of an oath. Thus the legislatures, courts, and magistrates, of the respective members [the States], will be incorporated into the operations of the national government AS FAR AS ITS JUST AND CONSTITUTIONAL AUTHORITY EXTENDS…

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ADDITIONAL COMMENTS

• The series’ is the view of Jay and Madison (“Nationalists”) and Hamilton who was a “Monarchist,” therefore, is could be considered a “Big Government” view of the Constitution.

• We must look to the “Anti-federalist” essays and the Documentary history of the State Ratification debates (6,000+ pages) to see more of the “Limited Government” side. (see Supplemental Reading List for Constitution Boot Camp)

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ADDITIONAL COMMENTS

• Only in New York were they all published, and even there they did not bring about ratification

• 2/3 of delegates to New York Ratification Convention elected on pledge to vote “no”

• Virginia and New Hampshire ratified while New Yorkers met

• New York City delegates threatened to secede from New York if it did not ratify

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THE CONSTITUTION

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HOW MUCH DO YOU KNOW ?

• How many Constitutions has the U.S. had ?

• Two – The Articles of Confederation & the current USC

• In ratifying the Constitution, did the people vote directly?

• No, ratification was by special State conventions (Art. VII)

• The vote of how many States was necessary to ratify the Constitution?

• Nine (Art. VII)

• Date USC was Ratified?

• June 21, 1788

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• When did the United States government go into operation under the Constitution?

• On March 3, 1789, the old Confederation went out of existence and on March 4 the new government of the United States began legally to function

• Who was called the "Expounder of the Constitution"?

• Daniel Webster, of Massachusetts, because of his forceful and eloquent orations interpreting the document

• Who is considered the “Father of the Constitution”?

• James Madison

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• Was Thomas Jefferson a member of the Constitutional Convention?

• No Jefferson was American Minister to France at that time

• How many Articles are in the USC?

• Seven

• How many Amendments are there?

• 27

• What are the first 10 called?

• The Bill of Rights

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• What is the difference between a joint and a concurrent resolution of Congress?

• A joint resolution has the same force as an act, and must be signed by the President

• A concurrent resolution is not a law, but only a measure on which the two Houses unite for a purpose concerned with their organization and procedure

• How many branches of government are there?

• Three

• What do the first three Articles of the USC cover?

• The first three Articles cover the three branches of the federal government.

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• Why is the legislative branch covered first, then the executive branch, and the Judicial branch third?

• They were placed in the order of power granted by the Constitution

• What is the main duty of legislative branch?

• Make the laws

• What is the main duty of executive branch?

• Enforce laws

• What is the main duty of the judicial branch?

• Apply the law to legal cases

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• Must all revenue and appropriation bills originate in the House of Representatives?

• The Constitution provides that all bills for raising revenue shall originate in the House of Representatives. It is customary for appropriation bills to originate there also (A1S7C1)

• Like any Law or Act, is a Constitutional amendment submitted to the President for signature ?

• No. A resolution proposing an amendment to the Constitution, after having passed both houses of Congress by a two-thirds vote, is sent to the States to be ratified

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• What does:

• Delegata potestas non potest delegari mean ?

• “No delegated power can be further delegated”

• What is the U.S. Constitution?

• The Constitution is “the law to the government”

• What is the purpose of the Constitution ?

• To restrain government

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A LITTLE HISTORY

• The United States has operated under two constitutions

• First were the Articles of Confederation, which were agreed to by Congress November 15, 1777; ratified and in force, March 1, 1781

• Under the “Articles”, congress was the sole organ of the national government, without a national court to interpret laws nor an executive branch to enforce them

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A LITTLE HISTORY

• Annapolis Convention in September 1786 ; Nine of the thirteen United States appointed commissioners to meet at Annapolis

• They were to only formulate recommendations for improvements to the Articles

• Only five States were represented

• Because so few states participated, the Annapolis Convention did not deem “it advisable to proceed on the business of their mission”

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A LITTLE HISTORY

• Leaders including Virginians Edmund Randolph and James Madison wrote a unanimous report suggesting that a convention of delegates from all thirteen States meet at Philadelphia in May 1787

• Again, their purpose would only be to examine the defects of the Articles of Confederation government and to formulate "a plan for supplying such defects as may be discovered"

• The Articles Congress then called the convention at Philadelphia

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A LITTLE HISTORY

• Twelve state legislatures, Rhode Island being the only exception, sent delegates to convene at Philadelphia in May 1787

• The resolution calling the Convention specified that its purpose was to propose amendments to the Articles

• Through discussion and debate it became clear by mid-June that the Convention would propose a Constitution with a fundamentally new design

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A LITTLE HISTORY

• On September 17, 1787, the new Constitution was completed and submitted to the Articles Congress

• On September 28, 1787, the Articles Congress resolved "unanimously" to transmit the new Constitution to State legislatures for ratification

• Delaware, on December 7, 1787, became the first State to ratify the new Constitution

• The second, our current Constitution, replaced the Articles when it was ratified by New Hampshire on June 21, 1788

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THE CONSTITUTION

• The Constitution with its 7 Articles is written on 4 pages of paper

• Each page of paper is approximately 28 3/4 in. by 23 5/8 in. each

• There are 4,543 words, including signatures, in the Constitution

• By comparison, Obamacare is written on over 2,700 sheets of paper !

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THE CONSTITUTION

• The body of the Constitution has seven large divisions called Articles

• Article 1 is about the Legislative branch

• Article 2 is about the Executive branch

• Article 3 is about the Judicial branch

• Article 4 is about the States

• Article 5 is about Amendments to the Constitution

• Article 6 is about Supreme Law

• Article 7 is about Ratification

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THE CONSTITUTION

• The divisions within Articles are called Sections

• The divisions within Sections are called Clauses

• Any given clause is normally referred to by it’s location, such as Article 1, Section 8, Clause 1

• There are 27 Amendments, also known as Articles of Amendment, after the first seven Articles

• The first 10 Amendments are known as the Bill of Rights.

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THE CONSTITUTION

• What the Constitution is:

• The Constitution is a contract between the States, whereby they (the States), created a general government for their benefit. The Constitution granted “powers” to this new general government to do certain things for the States that the States could not reasonably or feasibly do for themselves.

• Remember that the Constitution was drafted by men who were familiar with world history and human nature

• This affected how and what they wrote

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THE CONSTITUTION

• There are two very different methods of interpreting the Constitution

• Original Intent

• Living Document (“Magical Method”)

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THE CONSTITUTION

• Original Intent considers written works from:

• The perspective of history

• The meaningful use of language

• The goal is to discover the meaning the writers intended

• It takes into consideration the:

• authorship

• occasion on which the author’s wrote the document

• intended audience, the literary genre, and the design of the document itself

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THE CONSTITUTION

• Living Document / “Magical Method”

• Permits the Constitution to mean whatever the interpreter wants or needs it to mean at any given moment

• Often pursued by scholars who are working towards a predetermined goal, never intending to draw out the original meaning

• They say nice things about the Constitution, but their words are designed to mask their political objective of concentrating great power, or even absolute power, in a central government

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THE CONSTITUTION

• George Washington said in his Farewell Address;

• “But the Constitution which at anytime exists, till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all. The very idea of the power and the right of the people to establish government presupposes the duty of every individual to obey the established government.”

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THE CONSTITUTION

• How do we know the Founders intended for the powers of our government to be limited ?

• And where would those limits be found ?

• First, look at the first five words of the first Article of the Constitution A1S1C1:

• “All legislative powers herein granted”

• This means all powers to write laws are granted in here

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THE CONSTITUTION

• The second way we would discover that powers were to be limited is that they were written out in Article 1, Section 8

• The third place we could look inside the Constitution is the last power listed in Article 1 Section 8

• “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

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THE CONSTITUTION

• The fourth piece of evidence that the powers of the general government were to be limited can be found in Article 6, Section 2, the Supremacy Clause

• “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding”

• The 10th Amendment is deliberately redundant. It acts as a backstop in case the concept of enumerated powers got lost or ignored

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10TH AMENDMENT

• The 10th Amendment states:

• “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”

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READING THE CONSTITUTION

• You can tell by the above illustrations just how clear the founders were in wording the Constitution. Simplicity, clarity, and economy

• The founders wanted this document to be one that THE PEOPLE could read and understand easily

• It's our elected officials that have the comprehension problems

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THE LEGISLATIVE BRANCH

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• Article 1, Section 1:

• “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives”

CONGRESS

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THE HOUSE OF REPRESENTATIVES

• Qualifications / Terms

• A1S2C1 : The House of Representatives shall be composed

of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature

• A1S2C2 : No Person shall be a Representative who shall

not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.

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• A1S2C3 : Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons… The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative

• A1S2C4 : When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies

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• A1S2C5 - The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment

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THE SENATE

• A1S3C1 - The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof for six Years; and each Senator shall have one Vote

• A1S3C3 - No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen

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http://www.archives.gov/exhibits/charters/constitution_amendments_11-27.html#17

http://www.archives.gov/exhibits/charters/constitution_amendments_11-27.html#17

THE SENATE

• A1S3C4 - The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided

• A1S3C6 - The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present

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THE SENATE

• In Federalist No. 62 (3rd & 5th paras), Madison pointed out that the appointment of Senators by the State legislatures was to secure the authority of the State governments in the federal government;

• “…the equal vote allowed to each State is at once a constitutional recognition of the portion of sovereignty remaining in the individual States and an instrument for preserving that residuary sovereignty…” in order to guard “…against an improper consolidation of the States into one simple republic”

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ENUMERATED POWERS OF CONGRESS

• Article 1, Section 8, Enumerated powers of congress

• 1To lay and collect taxes, duties, imposts and excises , 2 pay debts

• 3 To borrow money on the credit of the U.S.

• 4 To regulate commerce with foreign Nations

• and among the States

• and with the Indian Tribes

• 5 To establish uniform Rules of Naturalization

• 6 To establish uniform laws on subject of bankruptcies

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• Enumerated powers of congress continued

• 7 To coin money, regulate the value thereof and of foreign coin

• 8 To fix the standard of weights and measures

• 9 To provide punishment for counterfeiting securities and current coin of the U.S.

• 10 To establish post offices and post roads

• 11 To provide for patents and copyrights

• 12 To constitute tribunals inferior to the supreme court

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• 13 To define and punish piracies on high seas

• 14 To define and punish for offenses against the laws of nations

• 15 To declare war

• 16 Grant letters of marque and reprisal

• 17 make Rules concerning Captures on Land and Water

• 18 To raise and support armies

• No appropriation of money can be longer than two years

• 19 To provide and maintain a navy

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• 20 To make rules for the government and regulation of the land and naval forces

• 21 To provide for calling forth the militia to execute the laws of the union, suppress insurrection and repel invasions

• 22 To provide for organizing, arming and disciplining the militia

• 23 To exercise exclusive legislation over district of columbia

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• To exercise like authority over all purchased property

• Must have consent of state legislature where property is located

• 24 To make all laws which shall be necessary and proper for carrying into execution the forgoing powers

• And all other powers vested by this constitution in the government of the U.S., or in any department or officer thereof

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CONGRESS’ POWER RESTRICTED

• Our Framers insisted repeatedly that Congress is restricted to its enumerated powers. James Madison says in Federalist No. 45 (9th para):

• “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; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people”….

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CONGRESS’ POWER RESTRICTED

• In Federalist No. 39 (14th para):

• …”the proposed government cannot be deemed a national one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects”.

• And in Federalist No. 14 (8th para):

• …”the general [federal] government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects”…

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10TH AMENDMENT


• “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”

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CONGRESS

• As you read through the FEW enumerated powers of Congress, were there any surprises that you discovered?

• In line with changing your thinking, when a bill is submitted in Congress, your first thought should be:

• Does the Constitution contain any powers for Congress to do this?

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EXECUTIVE BRANCH

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THE EXECUTIVE - QUALIFICATIONS

• A2S1C1

• “The executive power shall be vested in a president”

• “He shall hold his Office during the Term of four Years”

• A2S1C5

• “No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President”

• “..neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years”

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ENUMERATED POWERS OF THE EXECUTIVE

• A1S7C2&3

1. Grants to the President the power to approve or veto Bills and Resolutions passed by Congress

• A1S9C7

2. Grants to the executive Branch – the Treasury Department – the power to write checks pursuant to Appropriations made by law

• A2S1C1

3. Vests “executive Power” in the President

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• A2S1C8

4. Sets forth the President’s Oath of Office – to “preserve, protect and defend the Constitution of the United States”

• A2S2C1

5. Makes the President Commander in Chief of the armed forces when they have been called by Congress into the actual service of the United States

6. Authorizes the President to require the principal Officers in the executive Departments to provide written Opinions upon the Duties of their Offices

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• A2S2C1

7. Grants the President power to grant Reprieves and Pardons for offenses against the United States, but he cannot stop impeachments of any federal judge or federal officer

• A2S2C2

8. To make Treaties – with the advice and consent of the Senate, provided two thirds of the Senators present concur

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• A2S2C2

9. “and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for”

• A2S2C3

10. grants to the President the power to make recess appointments, which expire at the end of Congress’ next session

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• A2S3C1:

11. Imposes the duty on the President to periodically advise Congress on the State of the Union, and authorizes the President to recommend to Congress such measures as he deems wise

12. Authorizes the President, on extraordinary Occasions, to convene one or both houses of Congress [e.g., when he asks Congress to declare War]; and if both houses cannot agree on when to adjourn, he is authorized to adjourn them to such time as he deems proper

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• A2S3C1:

13. Imposes the duty upon the President to receive Ambassadors and other public Ministers

14. Imposes the duty upon the President to take care that the Laws be faithfully executed

15. Imposes the duty upon the President to Commission all the Officers of the United States

• That’s it! Anything else the President does is unlawful and a usurpation of powers not granted

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EXECUTIVE POWER

• What is “Executive Power” ?

• “Executive Power” is not a blank check giving the president power to do whatever he wants, it is merely the power to put into effect – to implement – those Acts of Congress which are within Congress’ enumerated powers

• If Congress establishes “an uniform Rule of Naturalization” (as authorized by A1S8C4), it is the President’s duty to implement and enforce the law Congress makes

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EXECUTIVE POWER

• What is “executive power” continued ?

• Since the President’s Oath requires him to “preserve, protect and defend the Constitution“, the President must refuse to enforce an unconstitutional “law” made by Congress

• Acting as a check on Congress (and federal courts) by refusing to enforce unconstitutional “laws” (and opinions), as well as the duty of entertaining foreign dignitaries, are the only occasions where the President may act alone. His prime responsibility is to do what Congress tells him

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ADMINISTRATIVE LAW STATE

• What is “Administrative Law” ?

• It is rulemaking or making laws, by Executive Agencies

• A1S1C1, U.S. Constitution, says:

• “All legislative Powers herein granted shall be vested in a Congress of the United States”

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ADMINISTRATIVE LAW STATE

• A1S1C1 says only Congress may make laws: laws are to be made only by Representatives whom we can fire every two years, and by Senators whom we can fire every six years

• Starting with the administration of Woodrow Wilson, Congress began delegating its lawmaking powers to agencies within the Executive Branch

• Remember :

• “Delegata potestas non potest delegari”


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EXECUTIVE ORDERS

• May the President Lawfully Make “Executive Orders”?

• Respecting those matters within his Constitutional authority & duties, and authority & duties imposed by Constitutional statutes, the President may make “orders”

• To illustrate: Say Congress makes a law, as authorized by A1S8C6, making it a felony to counterfeit the Securities and current Coin of the United States. If U.S. Attorneys are not prosecuting counterfeiters, the President should “order” them to do it

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EXECUTIVE ORDERS

• The President is the one who is charged with carrying out the Acts of Congress – he has the “executive Power”

• The President may lawfully make orders to carry out his constitutionally imposed powers and duties, and powers bestowed by statutes which are constitutional; and he may address “housekeeping” issues within the Executive Branch

• But a President may not lawfully, by means of “orders”, exercise powers not delegated to him by the Constitution or by (constitutional) Acts of Congress

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EXECUTIVE ORDERS

• Executive agencies may not, by means of “administrative rulemaking”, usurp the powers of Congress. (Remember, because of A1S1C1, all rulemaking by executive agencies is unconstitutional)

• Congress did not pass “Cap and Trade“, this bill is unconstitutional as outside the scope of the legislative powers granted by our Constitution to Congress

• Yet the Environmental Protection Agency is implementing “Cap and Trade” by agency regulation on orders by the president

149

EXECUTIVE ORDERS

• What should we do about illegal Executive Orders & Rules made by Executive Agencies?

• In Federalist Paper No. 66 (2nd para), Hamilton expressly states that impeachment is an essential check on any President who encroaches on the powers of Congress

• And in Federalist No. 77 (last para), points out that impeachment is the remedy for “abuse of the executive authority”

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IMPEACHMENT

• The Constitution provides six clauses on impeachment – the most often-mentioned subject in the Constitution

• Alexander Hamilton in Federalist #65 said:

• “[T]he practice of impeachments [is] a bridle in the hands of the Legislative body”

• James Iredell, a ratifier of the Constitution:

• “Every government requires it [impeachment] … It will be not only the means of punishing misconduct but it will prevent misconduct”

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GROUNDS FOR IMPEACHMENT

• A2S4C1 says:

“The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors”

• Alexander Hamilton points out in Federalist No. 66, 2nd para, that “the president may be impeached & removed for encroachments”, i.e., usurpations

• Hamilton points out in Federalist No. 81,8th para, that “federal judges may be impeached & removed” for usurpations

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• Throughout the Federalist, it is stated that impeachment is for “political offenses”

• Justice Joseph Story, appointed to the Supreme Court by President James Madison said:

• “The offenses to which the power of impeachment has been and is ordinarily applied as a remedy. . . . are aptly termed political offences, growing out of personal misconduct, or gross neglect, or usurpation, or habitual disregard of the public interests”

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• William Rawle, legal authority and author of early Constitutional commentary:

• “the inordinate extension of power, the influence of party and of prejudice as well as attempts to “infringe the rights of the people””

• James Wilson, signer of the Constitution, original Justice on the U. S. Supreme Court:

• “[I]mpeachments are confined to political characters, to political crimes and misdemeanors, and to political punishments”

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•The language at A2S4C1 about "Treason, Bribery, or other high Crimes and Misdemeanors" is far broader than one might at first glance think; the "high" refers to the status of the official - it does not refer to the severity of the offense

•"Misdemeanor" has a much broader meaning than a lesser category of criminal offenses

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•Webster's 1828 Dictionary shows the primary meaning of "misdemeanor" to be:

•Ill behavior

•evil conduct

•fault

•mismanagement

• This shows that a president, vice-president, supreme court justice and all civil Officers of the United States may be impeached, tried, convicted, and removed from office for "mismanagement” or “encroachment”

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JUDICIAL BRANCH

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SCOTUS

• A3S1C1

• The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish

• The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour

• “Judicial Power” refers to a court’s power to hear and decide cases

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ENUMERATED POWERS OF SCOTUS

• A3S2C1 , U.S. Constitution, lists the cases which federal courts are permitted to hear. They may hear only cases:

• 1 Arising under the Constitution, or the 2 Laws of the United States, or 3 Treaties made under the Authority of the United States [“federal question” jurisdiction]

• 4 Affecting Ambassadors, 5 other public Ministers & Consuls; 6 cases of admiralty & maritime Jurisdiction; or 7 cases in which the U.S. is a Party [“status of the parties” jurisdiction]

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• A3S2C1, U.S. Constitution, listing continued:

• 8 Between two or more States; (between a State & Citizens of another State removed by the 11th amendment); 9 between Citizens of different States; 10 between Citizens of the same State claiming Lands under Grants of different State’s; or 11 between a State (or Citizens thereof) & foreign States, Citizens or Subjects[“diversity” jurisdiction]

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• A3S2C2

• 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.

• In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make

• These are the ONLY cases which federal courts have Constitutional authority to hear

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JUDICIAL BRANCH

• The Judiciary is not a co-equal branch of government

• James Madison wrote in Federalist #51:

• “the legislative authority necessarily predominates”

• Alexander Hamilton said in Federalist #78:

• “The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither force nor will”

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JUDICIAL BRANCH

• Also in Federalist #78:

• “The judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution. . . . [T]he judiciary is, beyond comparison, the weakest of the three departments of power. . . . [and] the general liberty of the people can never be endangered from that quarter”

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JUDICIAL BRANCH

• Congress determines the operation of the Judiciary, not vice versa

• Congress sets the number of judges and courts

• What issues may come before the courts

• Judges’ salary and compensation

• How often the courts meet and the length of their sessions

• And just as Congress can establish and set the number of lowers courts, so, too, can Congress also abolish them

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JUDICIAL BRANCH

• The Judiciary is not to be an independent branch of government

• Joseph Nicholson, early Member of Congress, on repeal of the Judiciary Act of 1801 : • “If the feelings and interests of the nation require that

new laws should be enacted, that existing laws should be modified, or that useless and unnecessary laws should be repealed, they [the people] have reserved this power to themselves by declaring that it should be exercised by persons freely chosen for a limited period to represent them in the National Legislature. On what ground is it denied to them in the present instance? By what authority are the judges to be raised above the law and above the Constitution?”

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JUDICIAL BRANCH

• Joseph Nicholson goes on:

• “Give [judges] the powers and the independence now contended for and they will require nothing more, your government becomes a despotism and they become your rulers”

• John Dickinson, signer of the Constitution:

• “[W]hat innumerable acts of injustice may be committed – and how fatally may the principles of liberty be sapped – by a succession of judges utterly independent of the people?”

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JUDICIAL BRANCH

• Thomas Jefferson said: • “It should be remembered as an axiom of eternal truth in

politics that whatever power in any government is independent is absolute also; in theory only, at first, while the spirit of the people is up, but in practice as fast as that relaxes. Independence can be trusted nowhere but with the people in mass”

• Jonathan Mason, law student trained by John Adams and an early Member of Congress: • “The independence of the judiciary so much desired will

– if tolerated – soon become something like supremacy. They will, indeed, form the main pillar of this goodly fabric; they will soon become the only remaining pillar, and they will presently be so strong as to crush and absorb the others into their solid mass”

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JUDICIAL BRANCH

• The Judiciary is not the sole branch capable of determining Constitutionality

• James Madison said:

• “But the great objection . . . is that the Legislature itself has no right to expound the Constitution – that wherever its meaning is doubtful, you must leave it to take its course until the Judiciary is called upon the declare its meaning. . . . I beg to know upon what principle it can be contended that any one department draws from the Constitution greater powers than another in marking out the limits”

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JUDICIAL BRANCH

• Rufus King, signer of the Constitution, framer of the Bill of Rights: • “The judges must interpret the laws; they ought not to be

legislators”

• John Randolph of Roanoke: • “The decision of a constitutional question must rest

somewhere. Shall it be confided to men immediately responsible to the people – the Congress, or to those who are irresponsible…the judges?”

• Alexander Hamilton in Federalist #81 said: • “[T]here is not a syllable in the plan [the Constitution]

which directly empowers the national courts to construe the laws according to the spirit of the Constitution”

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POWERS OF SCOTUS DEFINED

• Alexander Hamilton wrote in Federalist No. 83, 8th para:

• “…the judicial authority of the federal judicatures is declared by the Constitution to comprehend certain cases particularly specified. The expression of those cases marks the precise limits beyond which the federal courts cannot extend their jurisdiction, because the objects of their cognizance being enumerated, the specification would be nugatory if it did not exclude all ideas of more extensive authority.”

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POWERS OF SCOTUS

• So, what happened ?

• How and when did the SCOTUS become so powerful?

• Slowly over a long period of time

• In a 1907 speech Former Chief Justice Charles Evans Hughes stated “we are under a Constitution, but the Constitution is what the judges say it is...”

• Still, prior to 1937 SCOTUS ruled most of FDR’s new deal programs and regulations unconstitutional

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POWERS OF SCOTUS

• In 1937, Roosevelt attempted to pack the Court with six additional justices to insure a majority

• Basically, this was the executive branch extorting the judicial branch to get the rulings it wanted

• In the end, FDR didn’t need to pack the court, because people being people, Conservative Associate Justice Owen Roberts switched sides

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POWERS OF SCOTUS

• Consider State laws criminalizing abortion. Are these “proper objects” of the judicial power of the federal courts?

• Nothing in the Constitution forbids States from criminalizing abortion

• The federal courts have no “federal question jurisdiction”

• No jurisdiction based on “status of the parties”

• No “diversity jurisdiction” to hear such cases

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POWERS OF SCOTUS

• Yet, in Roe v. Wade (1973) seven judges on the U.S. Supreme Court said a right of privacy, founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action (p. 153), renders unconstitutional state laws making abortion a criminal offense

• Anthony Kennedy, who wrote the majority opinion in Lawrence v. Texas, said:

• “…As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.” (p. 579)

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POWERS OF SCOTUS

• Justice Kennedy just tossed A3S2 out the door !

• Just name an act you want legalized and if 5 judges agree, Voila! A new “liberty right”!

• Since federal judges also claim the right to “set policy” for all of these United States, and we have let them do it, State laws throughout the land prohibiting that act bite the dust

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POWERS OF SCOTUS

• This is how the concept of a Constitution with an objective meaning easily learned from an old American dictionary, The Federalist Papers, & Madison’s Records of the Federal Convention of 1787 was taken away from us

• It was replaced with the judges’ claim, that the Constitution is an evolutionary document which means whatever they say it means.

• Remember the Magic Method !

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CONSTITUTIONAL REMEDY FOR THE JUDICIARY

• Alexander Hamilton addressed judicial usurpations & the judiciary’s “total incapacity to support its usurpations by force” in The Federalist No. 81, 9th para:

• …”the important constitutional check which the power of instituting impeachments in one part of the legislative body [House], and of determining upon them in the other [Senate], would give to that body [Congress] upon the members of the judicial department. This is alone a complete security. There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it [the impeachment power], while this body [Congress] was possessed of the means of punishing their presumption by degrading them from their stations”. [italics added]

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Last Thoughts

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A LESSON IN CRITICAL THINKING

• Process to determine if something is lawful

• First question:

• Is the power in question enumerated in the Constitution ?

• Is it necessary and proper to enforce an enumerated power ?

• Second question:

• Where is it in the Constitution, Article, Section, Clause ?

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• If no, then prove it by using the Constitution,

Federalist Papers, etc.

• Remember, ours is a government of

“ENUMERATED POWERS”

• Definition of enumerated:

• Counted or told, number by number; reckoned or

mentioned by distinct particulars

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• Definition of distinct:

• So separated as not to be confounded with any other thing; clear; not confused

• Definition of particulars:

• Individual; noting or designating a single thing by way of distinction; Single; not general; A distinct, separate or minute part

• These words were “chosen” well

181


• What does Delegata potestas non potest delegari mean ?


• What is the U.S. Constitution?

• The Constitution is “the law to the government”

• What is the purpose of the Constitution ?

• To restrain government

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THE TEN CANNOTS

You cannot strengthen the weak by weakening the strong You cannot help small men by tearing down big men

You cannot help the poor by destroying the rich You cannot lift the wage earner by pulling down the wage payer

You cannot keep out of trouble by spending more than your income You cannot further the brotherhood of man by inciting class hatreds

You cannot establish security on borrowed money You cannot build character and courage by taking away a man's

initiative and independence You cannot help men permanently by doing for them what they could

and should do for themselves

William J. H. Boetcker, 1916

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FINALLY


“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”

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