|
New info added! |
|
Constitutional Rights and Wrongs
For a politics guided by definitions, not polls or power-plays.
By David Corbin and Matt Parks
January 26, 2015
A week and a half ago, the Supreme Court agreed to take up the two constitutional questions at the heart of the contemporary gay marriage debate:
1)Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?
2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?
How will the Court decide? How should the Court decide?
Richard Weaver, in The Ethics of Rhetoric (1953), highlights and evaluates three types of arguments in political rhetoric: reasoning from consequences, reasoning from circumstances, and reasoning from definition. These correspond well to the three approaches to constitutional interpretation that we can expect from the Court as it takes up these questions.
The Progressive pragmatist judges the case based on the result desired; that is, from its consequences. Now that Progressives have adopted the gay marriage cause–and only now that they have done so–the Fourteenth Amendment’s “equal protection” clause must require states to sanction and recognize gay marriages.
The establishment moderate judges the case with a political calculator; that is, from its circumstances. Now that gay marriage is legal in thirty-six states (albeit mostly because of federal court action and inaction) and supporters of gay marriage consistently outpoll opponents (though not in a number of individual states)–and only because such is the case–it is time to square the Fourteenth Amendment with this emerging consensus . . . and thereby strengthen that consensus by putting the moral weight of the Constitution behind it.
The problem with both of these rhetorical approaches is obvious: they make the judge both a sovereign and an interested party rather than the impartial arbiter he is intended to be.
“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law”
The constitutional jurist, on the other hand, would measure the state laws in view against the meaning of the Fourteenth Amendment at the time of its adoption; that is according to the definition of its terms. Most relevant in this case is the second sentence of Section 1: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Anyone reasonably conversant with the history of the Fourteenth Amendment would readily conclude that mandating gay marriage is far beyond its scope: no one in 1868 could have possibly conceived that they were redefining marriage when they voted to ratify the Amendment. But even leaving that aside, there is nothing inconsistent with “the equal protection of the laws” in a law that allows any one (adult) man to marry any one (adult) woman (not of near relation) and excludes, for all, every other combination.
But then, one might argue, wouldn’t the same logic justify a law that allows any one (adult) man to marry any one (adult) woman (not of near relation) of the same race and excludes, for all, every other combination? States, of course, had such laws until the last were annulled by the Supreme Court, rightly applying the Fourteenth Amendment against them in its 1967 decision, Loving v. Virginia. And, in fact, they had justified them on exactly these grounds, winning an 1883 Supreme Court case (Pace v. Alabama) on that basis. What makes the Loving decision right, the Pace decision wrong, and a decision constitutionalizing gay marriage wrong is the same thing: the nature (i.e. the definition) of marriage. Race is an accidental quality of a marriage partner; sex is an essential quality, bound up in the natural complementarity of men and women. The court mistook the accidental for the essential in upholding laws against interracial marriage; it will mistake the essential for the accidental if it strikes down one man-one woman marriage laws.
This pattern–and the implicit appeal to consequences and circumstances, rather than definition–has been the norm rather than the exception in deciding cases through appeals to the Fourteenth Amendment.
For example, in Plessy v. Ferguson (1896) the Supreme Court rendered the clear meaning of the rights entailed in all four clauses of the first section of the Fourteenth Amendment irrelevant, suggesting that Plessy’s inability to ride in a whites-only railcar in no way denied him of his full possession of equal political liberty. Writing for the 7-1 majority, Justice Henry Billings Brown argued:
We consider the underlying fallacy of the plaintiff’s [Plessy] argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.
The Progressive pragmatist judges the case based on the result desired; that is, from its consequences.
For Justice Brown and the rest of the majority, Plessy’s possession of equal political liberty was a subjective matter both on his part and theirs. Since the Court felt that a “separate but equal” rail car was good enough for the Fourteenth Amendment, the onus was on Plessy to put the same construction on the matter. If he didn’t feel equal because he wasn’t allowed to ride in a whites-only train, too bad: the objective reality that he was denied access to a public railcar was of no consequence. Rather, the Court, in quintessential pragmatic and progressive Olympian terms, proclaimed truth in his case subjective, and the lines of admissible subjectivity, their own.
When the Court reversed course in Brown v. Board of Education (1954), it did so utilizing the same circumstantial and outcome-oriented reasoning that the Plessy Court had employed sixty years prior. It might have ground its decision in Justice John Marshall Harlan’s definition-based Plessy dissent, that rightly asserted that “separate but equal” violates the principle of a “color-blind constitution” in which “the law regards man as man, and takes no account of his surrounding or of his color when his civil rights as guaranteed by the supreme law of the land are involved.” Instead, the Brown Court ruled that societal circumstance and elite preference could no longer ignore the subjective damage done by a “separate but equal” legal regime. American ruling elites had come a long way on the race issue, but not so far as to capture the intellectual and moral essence of Justice Harlan’s brave dissent.
Justice Clarence Thomas demonstrated what might have been (and what yet could be) in an important, though widely ignored, statement on the jurisprudence of civil rights, arguing in his concurring opinion in Missouri v. Jenkins (1995) that the Brown Court “[Did] not need to rely upon psychological or social science research in order to announce the simple, yet fundamental truth that the Government cannot discriminate among its citizens according to race. . .that the Government must treat citizens as individuals, and not as members of racial, ethnic or religious groups.”
The rarity of Thomas-style arguments and the ubiquity of circumstance- and consequence-based constitutional reasoning presents a difficult challenge for those committed to preserving a republican judiciary today. At the time of the founding, Alexander Hamilton argued (in Federalist 81) that the danger of systemic judicial abuse “is in reality a phantom,” given the inherent weakness of the judicial branch and its accountability to Congress through the impeachment power. Unfortunately, his argument, as our experience shows, is much less compelling today, for several reasons Hamilton could not have anticipated.
The Congress can still act in ways that encourage responsible judicial behavior, if it wishes.
In Federalist 80, he argues that the federal courts must have the authority to enforce the limits of the Constitution against state laws–a power that, he acknowledges, can be abused. The limits on the states in the original (pre-Bill of Rights) Constitution were few, however, and the interests of the states directly represented in a Senate comprised of members chosen by state legislators. Today, the Court’s expansive application of the Fourteenth Amendment against state laws has increased exponentially the opportunities for abuse–and the shift to a popularly-elected Senate has decreased the incentives for holding the court accountable for abuses. How often can we expect Congress to provoke a fight with the Court over a usurpation of state authority, especially when it may very well like the Court’s judgment?
The Congress can still act in ways that encourage responsible judicial behavior, if it wishes. A careful review of judicial nominees, the use of impeachment where merited, and passing laws that properly define the jurisdiction of the federal courts (as described in Federalist 80 and 81) remain available tools, if some of the institutional motivation for using them has been lost. But the right employment of such tools would likewise require the legislative branch to reason from definition, a prospect more to be dreamed of than expected, given the power that often self-defeating political calculations seem to have over even the most well-intentioned proposals (note to pro-life House Republicans: neither an unborn child’s humanity nor his capacity to feel pain is affected by the circumstances under which he is conceived).
Those wishing to recover republican government, especially those seeking to lead a movement or party, must take the advice of Richard Weaver and engage the larger cause of responsible political argument:
This is a world in which one often gets what one asks for more directly or more literally than one expects. If a leader asks only consequences, he will find himself involved in naked competition for power. If he asks only circumstance, he will find himself intimidated against all vision. But if he asks for principle, he may get that, all tied up and complete, and though purchased at a price, paid for. Therefore it is of first importance whether a leader has the courage to define.
The lesson in all this: As “ideas have consequences,” so will the reasoning we employ to uphold or deny the self-evident truth of human equality continue to have consequences for the American republic.
http://thefederalist.com/2015/01/26/constitutional-rights-and-wrongs/?utm_source=The+Federalist+List&utm_campaign=c0e5bf6fc3-RSS_DAILY_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_cfcb868ceb-c0e5bf6fc3-83785165
By David Corbin and Matt Parks
January 26, 2015
A week and a half ago, the Supreme Court agreed to take up the two constitutional questions at the heart of the contemporary gay marriage debate:
1)Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?
2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?
How will the Court decide? How should the Court decide?
Richard Weaver, in The Ethics of Rhetoric (1953), highlights and evaluates three types of arguments in political rhetoric: reasoning from consequences, reasoning from circumstances, and reasoning from definition. These correspond well to the three approaches to constitutional interpretation that we can expect from the Court as it takes up these questions.
The Progressive pragmatist judges the case based on the result desired; that is, from its consequences. Now that Progressives have adopted the gay marriage cause–and only now that they have done so–the Fourteenth Amendment’s “equal protection” clause must require states to sanction and recognize gay marriages.
The establishment moderate judges the case with a political calculator; that is, from its circumstances. Now that gay marriage is legal in thirty-six states (albeit mostly because of federal court action and inaction) and supporters of gay marriage consistently outpoll opponents (though not in a number of individual states)–and only because such is the case–it is time to square the Fourteenth Amendment with this emerging consensus . . . and thereby strengthen that consensus by putting the moral weight of the Constitution behind it.
The problem with both of these rhetorical approaches is obvious: they make the judge both a sovereign and an interested party rather than the impartial arbiter he is intended to be.
“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law”
The constitutional jurist, on the other hand, would measure the state laws in view against the meaning of the Fourteenth Amendment at the time of its adoption; that is according to the definition of its terms. Most relevant in this case is the second sentence of Section 1: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Anyone reasonably conversant with the history of the Fourteenth Amendment would readily conclude that mandating gay marriage is far beyond its scope: no one in 1868 could have possibly conceived that they were redefining marriage when they voted to ratify the Amendment. But even leaving that aside, there is nothing inconsistent with “the equal protection of the laws” in a law that allows any one (adult) man to marry any one (adult) woman (not of near relation) and excludes, for all, every other combination.
But then, one might argue, wouldn’t the same logic justify a law that allows any one (adult) man to marry any one (adult) woman (not of near relation) of the same race and excludes, for all, every other combination? States, of course, had such laws until the last were annulled by the Supreme Court, rightly applying the Fourteenth Amendment against them in its 1967 decision, Loving v. Virginia. And, in fact, they had justified them on exactly these grounds, winning an 1883 Supreme Court case (Pace v. Alabama) on that basis. What makes the Loving decision right, the Pace decision wrong, and a decision constitutionalizing gay marriage wrong is the same thing: the nature (i.e. the definition) of marriage. Race is an accidental quality of a marriage partner; sex is an essential quality, bound up in the natural complementarity of men and women. The court mistook the accidental for the essential in upholding laws against interracial marriage; it will mistake the essential for the accidental if it strikes down one man-one woman marriage laws.
This pattern–and the implicit appeal to consequences and circumstances, rather than definition–has been the norm rather than the exception in deciding cases through appeals to the Fourteenth Amendment.
For example, in Plessy v. Ferguson (1896) the Supreme Court rendered the clear meaning of the rights entailed in all four clauses of the first section of the Fourteenth Amendment irrelevant, suggesting that Plessy’s inability to ride in a whites-only railcar in no way denied him of his full possession of equal political liberty. Writing for the 7-1 majority, Justice Henry Billings Brown argued:
We consider the underlying fallacy of the plaintiff’s [Plessy] argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.
The Progressive pragmatist judges the case based on the result desired; that is, from its consequences.
For Justice Brown and the rest of the majority, Plessy’s possession of equal political liberty was a subjective matter both on his part and theirs. Since the Court felt that a “separate but equal” rail car was good enough for the Fourteenth Amendment, the onus was on Plessy to put the same construction on the matter. If he didn’t feel equal because he wasn’t allowed to ride in a whites-only train, too bad: the objective reality that he was denied access to a public railcar was of no consequence. Rather, the Court, in quintessential pragmatic and progressive Olympian terms, proclaimed truth in his case subjective, and the lines of admissible subjectivity, their own.
When the Court reversed course in Brown v. Board of Education (1954), it did so utilizing the same circumstantial and outcome-oriented reasoning that the Plessy Court had employed sixty years prior. It might have ground its decision in Justice John Marshall Harlan’s definition-based Plessy dissent, that rightly asserted that “separate but equal” violates the principle of a “color-blind constitution” in which “the law regards man as man, and takes no account of his surrounding or of his color when his civil rights as guaranteed by the supreme law of the land are involved.” Instead, the Brown Court ruled that societal circumstance and elite preference could no longer ignore the subjective damage done by a “separate but equal” legal regime. American ruling elites had come a long way on the race issue, but not so far as to capture the intellectual and moral essence of Justice Harlan’s brave dissent.
Justice Clarence Thomas demonstrated what might have been (and what yet could be) in an important, though widely ignored, statement on the jurisprudence of civil rights, arguing in his concurring opinion in Missouri v. Jenkins (1995) that the Brown Court “[Did] not need to rely upon psychological or social science research in order to announce the simple, yet fundamental truth that the Government cannot discriminate among its citizens according to race. . .that the Government must treat citizens as individuals, and not as members of racial, ethnic or religious groups.”
The rarity of Thomas-style arguments and the ubiquity of circumstance- and consequence-based constitutional reasoning presents a difficult challenge for those committed to preserving a republican judiciary today. At the time of the founding, Alexander Hamilton argued (in Federalist 81) that the danger of systemic judicial abuse “is in reality a phantom,” given the inherent weakness of the judicial branch and its accountability to Congress through the impeachment power. Unfortunately, his argument, as our experience shows, is much less compelling today, for several reasons Hamilton could not have anticipated.
The Congress can still act in ways that encourage responsible judicial behavior, if it wishes.
In Federalist 80, he argues that the federal courts must have the authority to enforce the limits of the Constitution against state laws–a power that, he acknowledges, can be abused. The limits on the states in the original (pre-Bill of Rights) Constitution were few, however, and the interests of the states directly represented in a Senate comprised of members chosen by state legislators. Today, the Court’s expansive application of the Fourteenth Amendment against state laws has increased exponentially the opportunities for abuse–and the shift to a popularly-elected Senate has decreased the incentives for holding the court accountable for abuses. How often can we expect Congress to provoke a fight with the Court over a usurpation of state authority, especially when it may very well like the Court’s judgment?
The Congress can still act in ways that encourage responsible judicial behavior, if it wishes. A careful review of judicial nominees, the use of impeachment where merited, and passing laws that properly define the jurisdiction of the federal courts (as described in Federalist 80 and 81) remain available tools, if some of the institutional motivation for using them has been lost. But the right employment of such tools would likewise require the legislative branch to reason from definition, a prospect more to be dreamed of than expected, given the power that often self-defeating political calculations seem to have over even the most well-intentioned proposals (note to pro-life House Republicans: neither an unborn child’s humanity nor his capacity to feel pain is affected by the circumstances under which he is conceived).
Those wishing to recover republican government, especially those seeking to lead a movement or party, must take the advice of Richard Weaver and engage the larger cause of responsible political argument:
This is a world in which one often gets what one asks for more directly or more literally than one expects. If a leader asks only consequences, he will find himself involved in naked competition for power. If he asks only circumstance, he will find himself intimidated against all vision. But if he asks for principle, he may get that, all tied up and complete, and though purchased at a price, paid for. Therefore it is of first importance whether a leader has the courage to define.
The lesson in all this: As “ideas have consequences,” so will the reasoning we employ to uphold or deny the self-evident truth of human equality continue to have consequences for the American republic.
http://thefederalist.com/2015/01/26/constitutional-rights-and-wrongs/?utm_source=The+Federalist+List&utm_campaign=c0e5bf6fc3-RSS_DAILY_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_cfcb868ceb-c0e5bf6fc3-83785165
Incorporation of the Bill of Rights and Privileges or Immunities Clause
On January 30, 1871, the House Judiciary Committee, led by John Bingham, released a House Report No. 22, authored by Bingham, and interpreted that the provisons of Privileges or Immunities Clause does not include the first eight provisions of the U.S. Bill of Rights, but rather only the provisions in the Privileges and Immunities Clause. The report stated in part that "It had been judicially determined that the first Eight Amendments of the Constitution were not limitations on the power of the States [...]." This was a reference to the U.S. Supreme Court Barron v. Baltimore. In Barron v. Baltimore (1833), the Supreme Court ruled that the Bill of Rights did not apply to the states. While many state constitutions are modeled after the United States Constitution and federal laws, those state constitutions did not necessarily include provisions comparable to the Bill of Rights. According to legal scholar Professor Akhil Reed Amar, the framers and early supporters of the Fourteenth Amendment believed that it would ensure that the states would be required to recognize the individual rights the federal government was already required to respect in the Bill of Rights and in other constitutional provisions; all of these rights were likely understood as falling within the "privileges or immunities" safeguarded by the amendment.[39] However, in the Slaughter-House Cases (1873), the Supreme Court ruled that the amendment's Privileges or Immunities Clause was limited to "privileges or immunities" granted to citizens by the federal government by virtue of national citizenship. The Court further held in the Civil Rights Cases (1883) that the amendment was limited to "state action" and, therefore, did not authorize the Congress to outlaw racial discrimination on the part of private individuals or organizations. Neither of these decisions has been overturned and have been specifically reaffirmed several times.
However, by the latter half of the 20th century, nearly all of the rights in the Bill of Rights had been applied to the states, under what is known as the incorporation doctrine. The Supreme Court has held that the amendment's Due Process Clause incorporates all of the substantive protections of the First, Second, Fourth, Fifth (except for its Grand Jury Clause) and Sixth Amendments and the Cruel and Unusual Punishment Clause of the Eighth Amendment. While the Third Amendment has not been applied to the states by the Supreme Court, the Second Circuit ruled that it did apply to the states within that circuit's jurisdiction in Engblom v. Carey. The Seventh Amendment has been held not to be applicable to the states.
The Court held to the "separate but equal" doctrine for more than fifty years, despite numerous cases in which the Court itself had found that the segregated facilities provided by the states were almost never equal, until Brown v. Board of Education (1954) reached the Court. In Brown the Court ruled that even if segregated black and white schools were of equal quality in facilities and teachers, segregation by itself was harmful to black students and so was unconstitutional. Brown met with a campaign of resistance from white Southerners, and for decades the federal courts attempted to enforce Brown's mandate against repeated attempts at circumvention. This resulted in the controversial desegregation busing decrees handed down by federal courts in various parts of the nation (see Milliken v. Bradley, 1974).[32] In Hernandez v. Texas (1954) the Court held that the Fourteenth Amendment protects those beyond the racial classes of white or "Negro" and extends to other racial and ethnic groups, such as Mexican Americans in this case. In the half century since Brown, the Court has extended the reach of the Equal Protection Clause to other historically disadvantaged groups, such as women and illegitimate children, although it has applied a somewhat less stringent standard than it has applied to governmental discrimination on the basis of race (United States v. Virginia, 1996; Levy v. Louisiana, 1968).
Since Wesberry v. Sanders (1964)[34] and Reynolds v. Sims (1964), the Supreme Court has interpreted the Equal Protection Clause as requiring the states to apportion their congressional districts and state legislative seats according to "one man, one vote". The Court has also struck down redistricting plans in which race was a key consideration. In Shaw v. Reno (1993), the Court prohibited a North Carolina plan aimed at creating majority-black districts to balance historic under-representation in the state's congressional delegations. In League of United Latin American Citizens v. Perry (2006), the Court ruled that Tom DeLay's Texas redistricting plan intentionally diluted the votes of Latinos and thus violated the Equal Protection Clause.
Equal Protection Clause
U.S. circuit judges Robert Katzmann, Damon Keith, and Sonia Sotomayor at a 2004 exhibit on the Fourteenth Amendment,Thurgood Marshall, and Brown v. Board of Education.
The equal protection clause was added to deal with the lack of equal protection provided by law to all in the course of administering justice in the states who had Black codes. Under black codes blacks could not sue, give evidence, be witnesses, received harsher degree of punishment, etc. The principal author of the Equal Protection Clause, John Bingham stated that phrase “equal protection” under the Fourteenth Amendment means that “It confers upon Congress power to see to it that the protection given by the laws of the States shall be equal in respect to life and liberty and property to all persons.” The inclusion of the words equal protection along with the words life, liberty and property provided protection for all persons from arbitrary taking of life, imprisonment or confiscation of property. Bingham said in a speech from March 31, 1871 that "the words “equal protection of the laws” were more than a glittering generality", but "that they were to be enforced to the extent of securing all guarantees of life, liberty, and property as provided by the supreme law of the land, the Constitution of the United States."Thus it was Congress power to enforce laws guaranteed to all for the protection of life, liberty and property from arbitrary government action.[28] The equal protection of the laws disable legislatures and judges from unequally administering those rights of justice the State guarantees to all men (everyone has a right to process of law before being put to death, property confiscated or imprisoned).
However, by the latter half of the 20th century, nearly all of the rights in the Bill of Rights had been applied to the states, under what is known as the incorporation doctrine. The Supreme Court has held that the amendment's Due Process Clause incorporates all of the substantive protections of the First, Second, Fourth, Fifth (except for its Grand Jury Clause) and Sixth Amendments and the Cruel and Unusual Punishment Clause of the Eighth Amendment. While the Third Amendment has not been applied to the states by the Supreme Court, the Second Circuit ruled that it did apply to the states within that circuit's jurisdiction in Engblom v. Carey. The Seventh Amendment has been held not to be applicable to the states.
The Court held to the "separate but equal" doctrine for more than fifty years, despite numerous cases in which the Court itself had found that the segregated facilities provided by the states were almost never equal, until Brown v. Board of Education (1954) reached the Court. In Brown the Court ruled that even if segregated black and white schools were of equal quality in facilities and teachers, segregation by itself was harmful to black students and so was unconstitutional. Brown met with a campaign of resistance from white Southerners, and for decades the federal courts attempted to enforce Brown's mandate against repeated attempts at circumvention. This resulted in the controversial desegregation busing decrees handed down by federal courts in various parts of the nation (see Milliken v. Bradley, 1974).[32] In Hernandez v. Texas (1954) the Court held that the Fourteenth Amendment protects those beyond the racial classes of white or "Negro" and extends to other racial and ethnic groups, such as Mexican Americans in this case. In the half century since Brown, the Court has extended the reach of the Equal Protection Clause to other historically disadvantaged groups, such as women and illegitimate children, although it has applied a somewhat less stringent standard than it has applied to governmental discrimination on the basis of race (United States v. Virginia, 1996; Levy v. Louisiana, 1968).
Since Wesberry v. Sanders (1964)[34] and Reynolds v. Sims (1964), the Supreme Court has interpreted the Equal Protection Clause as requiring the states to apportion their congressional districts and state legislative seats according to "one man, one vote". The Court has also struck down redistricting plans in which race was a key consideration. In Shaw v. Reno (1993), the Court prohibited a North Carolina plan aimed at creating majority-black districts to balance historic under-representation in the state's congressional delegations. In League of United Latin American Citizens v. Perry (2006), the Court ruled that Tom DeLay's Texas redistricting plan intentionally diluted the votes of Latinos and thus violated the Equal Protection Clause.
Equal Protection Clause
U.S. circuit judges Robert Katzmann, Damon Keith, and Sonia Sotomayor at a 2004 exhibit on the Fourteenth Amendment,Thurgood Marshall, and Brown v. Board of Education.
The equal protection clause was added to deal with the lack of equal protection provided by law to all in the course of administering justice in the states who had Black codes. Under black codes blacks could not sue, give evidence, be witnesses, received harsher degree of punishment, etc. The principal author of the Equal Protection Clause, John Bingham stated that phrase “equal protection” under the Fourteenth Amendment means that “It confers upon Congress power to see to it that the protection given by the laws of the States shall be equal in respect to life and liberty and property to all persons.” The inclusion of the words equal protection along with the words life, liberty and property provided protection for all persons from arbitrary taking of life, imprisonment or confiscation of property. Bingham said in a speech from March 31, 1871 that "the words “equal protection of the laws” were more than a glittering generality", but "that they were to be enforced to the extent of securing all guarantees of life, liberty, and property as provided by the supreme law of the land, the Constitution of the United States."Thus it was Congress power to enforce laws guaranteed to all for the protection of life, liberty and property from arbitrary government action.[28] The equal protection of the laws disable legislatures and judges from unequally administering those rights of justice the State guarantees to all men (everyone has a right to process of law before being put to death, property confiscated or imprisoned).
ERROR to the Supreme Court of Missouri - Natural Born Citizen
Minor v. Happersett ()
Argued: February 9, 1875
Decided: March 29, 1875
___
Syllabus
Opinion, Waite
Syllabus
ERROR to the Supreme Court of Missouri; the case being thus:
The fourteenth amendment to the Constitution of the United States, in its first section, thus ordains; [n1]
"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the State wherein they reside. No State shall make or enforce any law, which shall abridge the privileges or immunities of citizens of the United States. Nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction, the equal protection of the laws."
Read more....http://www.law.cornell.edu/supremecourt/text/88/162
A Similar Discussion
All need to stop presenting talking points based on a little fact or one person's OPINION. There are many listed links in this thread that explain the Current and historical meaning of the term "Natural born". Here is the only real simply stated Appeals Court statement on defining the circumstances of Natural born.
This is from the Case Diaz-Salazar in the 7th district Court of appeals. Read the Judges' words . .
The relevant facts which have been placed before the INS, BIA, and this court can be summarized as follows: The petitioner has a wife and two children under the age of three in Chicago; the children are natural-born citizens of the United States. He also has relatives in Mexico. Petitioner has a good job in Chicago and presumably, due to his lack of formal education and current economic conditions in Mexico, would have a difficult time finding similarly good employment in Mexico. Deportation would be very disruptive of the life which he and his second wife have built in Chicago, as well as psychologically distressing to them.3 Considering all of these factors, however, we are nonetheless constrained to conclude that the BIA was within its discretion in finding that petitioner would not succeed in obtaining suspension of deportation under section 244 and in therefore denying his motion to reopen.
As is clearly Stated the Father was not citizen but the mother was so the offspring are "NATURAL BORN CITIZENS." This is now the law of the land as it is the highest court to rule on the matter so case law precedent will use this case as Settled law [Stare decisis].
All can choose to cherry pick but none can overcome the preponderance of evidence supporting that anyone born of one parent that is a citizen coveys the right of natural born citizenship to the child.
You are all just repeating repeating repeating the same misinformation over and over - that will not win the argument without solid factual basis.
Argued: February 9, 1875
Decided: March 29, 1875
___
Syllabus
Opinion, Waite
Syllabus
ERROR to the Supreme Court of Missouri; the case being thus:
The fourteenth amendment to the Constitution of the United States, in its first section, thus ordains; [n1]
"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the State wherein they reside. No State shall make or enforce any law, which shall abridge the privileges or immunities of citizens of the United States. Nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction, the equal protection of the laws."
Read more....http://www.law.cornell.edu/supremecourt/text/88/162
A Similar Discussion
All need to stop presenting talking points based on a little fact or one person's OPINION. There are many listed links in this thread that explain the Current and historical meaning of the term "Natural born". Here is the only real simply stated Appeals Court statement on defining the circumstances of Natural born.
This is from the Case Diaz-Salazar in the 7th district Court of appeals. Read the Judges' words . .
The relevant facts which have been placed before the INS, BIA, and this court can be summarized as follows: The petitioner has a wife and two children under the age of three in Chicago; the children are natural-born citizens of the United States. He also has relatives in Mexico. Petitioner has a good job in Chicago and presumably, due to his lack of formal education and current economic conditions in Mexico, would have a difficult time finding similarly good employment in Mexico. Deportation would be very disruptive of the life which he and his second wife have built in Chicago, as well as psychologically distressing to them.3 Considering all of these factors, however, we are nonetheless constrained to conclude that the BIA was within its discretion in finding that petitioner would not succeed in obtaining suspension of deportation under section 244 and in therefore denying his motion to reopen.
As is clearly Stated the Father was not citizen but the mother was so the offspring are "NATURAL BORN CITIZENS." This is now the law of the land as it is the highest court to rule on the matter so case law precedent will use this case as Settled law [Stare decisis].
All can choose to cherry pick but none can overcome the preponderance of evidence supporting that anyone born of one parent that is a citizen coveys the right of natural born citizenship to the child.
You are all just repeating repeating repeating the same misinformation over and over - that will not win the argument without solid factual basis.
Prelude to America’s Moral Foundation
I wish I could blame just the Progressives or the Democrats, or any faction. The truth appears to lie with WE THE PEOPLE and our inability to agree on any serious method of correction. We are all to busy with our lives and our nightly TV shows, movies and sporting events to take government serious.
It is slowly killing our economy and has killed our entire education system. Now it has closed down access to all of our natural resources even on private land through Rules and Regulations. The EPA/Species act has forced our base value added manufacturing offshore and is now after our technology industries.
If America is to exist as a free nation in 2050 we must Restore the limits on government back to the Original Constitution - no 14th, 16th and 17th amendment - return the powers promised to the States for them to be the stewards over their lands, resources and waters.
If we can do this then the Republic will be KEPT - otherwise we will be a failed Democracy moving to full Communism/Socialism. the choice is in our hands - what will we do?
Mangus Colorado
It is slowly killing our economy and has killed our entire education system. Now it has closed down access to all of our natural resources even on private land through Rules and Regulations. The EPA/Species act has forced our base value added manufacturing offshore and is now after our technology industries.
If America is to exist as a free nation in 2050 we must Restore the limits on government back to the Original Constitution - no 14th, 16th and 17th amendment - return the powers promised to the States for them to be the stewards over their lands, resources and waters.
If we can do this then the Republic will be KEPT - otherwise we will be a failed Democracy moving to full Communism/Socialism. the choice is in our hands - what will we do?
Mangus Colorado
Pro-life and pro-abortion protestors in front of the Supreme Court / AP
America’s Moral Foundation
BY: Andrew Evans
January 18, 2014
Free Beacon
The Civil War was a turning point in the moral history of the United States. Previously the country had tolerated slavery, a direct affront to the founding proposition, contained in the Declaration of Independence, that “all men are created equal, that they are endowed by their Creator with certain unalienable Rights.” The Civil War purged this moral blight from the country by ending the enslavement of some men by others.
But the blight may have reappeared. As Justin Buckley Dyer shows in Slavery, Abortion, and the Politics of Constitutional Meaning (Cambridge University Press, 2013), disturbing parallels exist between the debate over slavery before the Civil War and the debate over abortion now.
Dyer, an assistant professor in political science at the University of Missouri-Columbia, begins his book by observing that both proponents and opponents of abortion invoke America’s legacy of slavery to bolster their arguments. This invocation often takes place in a politically heated environment, however, and Dyer sets out to examine the analogy with scholarly rigor. The result is a short, but dense and challenging book.
Dyer first turns to the legal reasoning behind the Supreme Court’s decision in Roe v. Wade. The Supreme Court found a right to abortion in the due process clause of the 14th Amendment of the Constitution through a legal doctrine known as “substantive due process.” The 14th Amendment prevents states from depriving “any person of life, liberty, or property, without due process of law.”
This amendment, the Supreme Court argued, does not simply protect people from arbitrary government coercion that does not follow set procedures, but it also actually encompasses certain rights and prevents the states from infringing on those rights. One of those rights, the court found, is a right to privacy, which includes abortion.
The Supreme Court used similar reasoning in its 1857 Dred Scott v. Sandford decision, grounding it in the Fifth Amendment’s due process clause (which applied only to the federal government; the 14th Amendment applied the Fifth Amendment to the states). The Dred Scott decision declared that slaves are not people who can sue in federal court and allowed slaveholders to take their slaves into free territories without fear of their slaves becoming free.
Some conservatives, such as U.S. Circuit Court Judge Robert Bork, took issue with the Dred Scott and Roe decisions because they represented judicial activism. The court, Bork argued, was reading more into the due process clause than was really there. Dyer takes issue with this conservative argument, appealing to both the history of the due process clause in the common law and to the reaction of anti-slavery Republicans to the Dred Scott decision.
“The Republican Party in general, and Abraham Lincoln in particular … emphasized the moral wrong of owning other human beings rather than taking swipes at [Chief Justice] Taney’s substantive reading of the Fifth Amendment,” Dyer writes.
The problem with the Supreme Court’s ruling based on substantive due process, Dyer says, is not that it found moral substance in the due process clause, but that it found the wrong moral substance, and thus made a wrong ruling:
…those searching for historical analogs of Roe v. Wade may indeed find a lesson in the history of the Dred Scott case. The proper analogy, however, is not to be found in the common denunciation of a moral reading of the Constitution as inherently problematic. Rather, the nexus penetrates deeper to the principles underlying the constitutional order.
One of these principles is the constitutional standing of human beings. In Dred Scott, the court ruled that African slaves were never intended to be part of the American body politic, and that when the Declaration asserted that “all men are created equal,” it really meant “all white men are created equal.” The Supreme Court ruled similarly in Roe, arguing that the fetus is not a person whose right to life can trump the mother’s choice.
Dyer does not delve deeply into the biological research on the unborn. Instead, he simply asserts the near-uniform scientific consensus that a new human life, a developing body with a unique genetic code, is formed at conception. He moves from here to address the moral-philosophical question of personhood.
Abortion advocates often distinguish between a biological person and a moral person, one that possesses moral rights. A fetus is not a person in the moral sense, and therefore does not have the right to life, because of certain attributes it lacks, such as a moral sense or self-awareness. But this argument is distressingly similar to the argument made against the full equality of African-American slaves, who, pro-slavery advocates argued, lacked some of the characteristics of whites.
This “performance” conception of personhood, when applied to the abortion debate, can also lead to some monstrous conclusions, such as the acceptance of infanticide as morally legitimate. But the deepest problem with it, Dyer notes, is that power determines the criteria used by a society to discriminate between persons and non-persons.
This logic, often cloaked in rhetoric distinguishing between a “fetus” and a “baby,” destroys the fundamental premises of the American political order:
But even if we, as a society, were to reluctantly dispense with the euphemisms, we would remain deeply divided on the moral and political questions involving human beings at this stage of development—Are they moral persons? If so, does it matter? Could there nevertheless be a constitutional right to choose their death? A common answer to these questions is that unborn human beings are not persons, and personhood, in turn, is a concept that is politically constructed. But if one tugs at the threads of this line of reasoning, the entire apparatus supporting the theory of natural rights rooted in a transcendent moral law begins to unravel, and as these theoretical foundations unravel, so, too, do the underlying principles of democracy and the rule of law.
The idea that personhood is politically constructed—that it is created through political processes—is not novel. It was championed by Stephen Douglas, opponent to Abraham Lincoln in the famous Lincoln-Douglas Debates. Douglas wanted the issue of slavery to be decided by the states and territories through democratic elections, what Douglas termed the “principle of self-government.”
Dyer examines other parallels between the debates over abortion and slavery. The relegation of slaves and unborn babies to a level lower than full citizens causes significant legal and constitutional disharmony: Slaves could not vote but were partially counted when determining the number of seats a state received in Congress, while unborn babies are treated as legal persons in some circumstances but can nevertheless be killed until they are born. Both Dred Scott and Roe were decided based on faulty histories. And both slavery and abortion have caused violent crusades that were roundly denounced by people on both sides of the debate.
Undoubtedly, there are differences between slavery and abortion. But the parallels are chilling. Dyer’s book shows that America today is rehashing much of the same debate that occurred 150 years ago.
Running throughout the book is a sense of the moral foundation of America’s constitutional order. The Constitution is not just a document that sets up procedures for how the country should be governed. Rather, the procedures and institutions it created rest on a moral foundation. American political rights rest on what is really and truly right.
The moral underpinning of America’s constitutional order raises a difficult question, however, that Dyer does not fully resolve. Given that America is a democracy, who gets to decide which moral code, if any, should govern our politics? Morality should sit above politics and guide it, but given the United States’ tremendously diverse body politic, what should be the mechanism that gives morality its primacy?
The conservative critique of judicial activism, and its consequent reliance on simple procedural due process and deference to democratic elections, is a response to this problem, but Dyer’s insistence on the legitimacy of substantive due process rules out this accommodation.]
The solution cannot be, Dyer insists, to preclude arguments based on private moral sentiments and rely only on premises that all can accept, as some political theorists, most notably John Rawls, have argued. The personhood of all human beings is connected to one’s deepest convictions, yet there is no reason why someone should believe that an unborn baby is a rights-possessing individual and still accept the murder of babies by the broader society. That would be to allow, and be complicit in, a monstrous wrong.
Dyer’s assertion of the moral foundation of America may be difficult to enact, but that does not make it false. And if Dyer is right that America’s political system—complete with the rights and freedoms Americans hold so dear—are founded on moral principles that affirm the rights of every human being, then abortion is not just immoral. It is un-American.
http://freebeacon.com/americas-moral-foundation/
BY: Andrew Evans
January 18, 2014
Free Beacon
The Civil War was a turning point in the moral history of the United States. Previously the country had tolerated slavery, a direct affront to the founding proposition, contained in the Declaration of Independence, that “all men are created equal, that they are endowed by their Creator with certain unalienable Rights.” The Civil War purged this moral blight from the country by ending the enslavement of some men by others.
But the blight may have reappeared. As Justin Buckley Dyer shows in Slavery, Abortion, and the Politics of Constitutional Meaning (Cambridge University Press, 2013), disturbing parallels exist between the debate over slavery before the Civil War and the debate over abortion now.
Dyer, an assistant professor in political science at the University of Missouri-Columbia, begins his book by observing that both proponents and opponents of abortion invoke America’s legacy of slavery to bolster their arguments. This invocation often takes place in a politically heated environment, however, and Dyer sets out to examine the analogy with scholarly rigor. The result is a short, but dense and challenging book.
Dyer first turns to the legal reasoning behind the Supreme Court’s decision in Roe v. Wade. The Supreme Court found a right to abortion in the due process clause of the 14th Amendment of the Constitution through a legal doctrine known as “substantive due process.” The 14th Amendment prevents states from depriving “any person of life, liberty, or property, without due process of law.”
This amendment, the Supreme Court argued, does not simply protect people from arbitrary government coercion that does not follow set procedures, but it also actually encompasses certain rights and prevents the states from infringing on those rights. One of those rights, the court found, is a right to privacy, which includes abortion.
The Supreme Court used similar reasoning in its 1857 Dred Scott v. Sandford decision, grounding it in the Fifth Amendment’s due process clause (which applied only to the federal government; the 14th Amendment applied the Fifth Amendment to the states). The Dred Scott decision declared that slaves are not people who can sue in federal court and allowed slaveholders to take their slaves into free territories without fear of their slaves becoming free.
Some conservatives, such as U.S. Circuit Court Judge Robert Bork, took issue with the Dred Scott and Roe decisions because they represented judicial activism. The court, Bork argued, was reading more into the due process clause than was really there. Dyer takes issue with this conservative argument, appealing to both the history of the due process clause in the common law and to the reaction of anti-slavery Republicans to the Dred Scott decision.
“The Republican Party in general, and Abraham Lincoln in particular … emphasized the moral wrong of owning other human beings rather than taking swipes at [Chief Justice] Taney’s substantive reading of the Fifth Amendment,” Dyer writes.
The problem with the Supreme Court’s ruling based on substantive due process, Dyer says, is not that it found moral substance in the due process clause, but that it found the wrong moral substance, and thus made a wrong ruling:
…those searching for historical analogs of Roe v. Wade may indeed find a lesson in the history of the Dred Scott case. The proper analogy, however, is not to be found in the common denunciation of a moral reading of the Constitution as inherently problematic. Rather, the nexus penetrates deeper to the principles underlying the constitutional order.
One of these principles is the constitutional standing of human beings. In Dred Scott, the court ruled that African slaves were never intended to be part of the American body politic, and that when the Declaration asserted that “all men are created equal,” it really meant “all white men are created equal.” The Supreme Court ruled similarly in Roe, arguing that the fetus is not a person whose right to life can trump the mother’s choice.
Dyer does not delve deeply into the biological research on the unborn. Instead, he simply asserts the near-uniform scientific consensus that a new human life, a developing body with a unique genetic code, is formed at conception. He moves from here to address the moral-philosophical question of personhood.
Abortion advocates often distinguish between a biological person and a moral person, one that possesses moral rights. A fetus is not a person in the moral sense, and therefore does not have the right to life, because of certain attributes it lacks, such as a moral sense or self-awareness. But this argument is distressingly similar to the argument made against the full equality of African-American slaves, who, pro-slavery advocates argued, lacked some of the characteristics of whites.
This “performance” conception of personhood, when applied to the abortion debate, can also lead to some monstrous conclusions, such as the acceptance of infanticide as morally legitimate. But the deepest problem with it, Dyer notes, is that power determines the criteria used by a society to discriminate between persons and non-persons.
This logic, often cloaked in rhetoric distinguishing between a “fetus” and a “baby,” destroys the fundamental premises of the American political order:
But even if we, as a society, were to reluctantly dispense with the euphemisms, we would remain deeply divided on the moral and political questions involving human beings at this stage of development—Are they moral persons? If so, does it matter? Could there nevertheless be a constitutional right to choose their death? A common answer to these questions is that unborn human beings are not persons, and personhood, in turn, is a concept that is politically constructed. But if one tugs at the threads of this line of reasoning, the entire apparatus supporting the theory of natural rights rooted in a transcendent moral law begins to unravel, and as these theoretical foundations unravel, so, too, do the underlying principles of democracy and the rule of law.
The idea that personhood is politically constructed—that it is created through political processes—is not novel. It was championed by Stephen Douglas, opponent to Abraham Lincoln in the famous Lincoln-Douglas Debates. Douglas wanted the issue of slavery to be decided by the states and territories through democratic elections, what Douglas termed the “principle of self-government.”
Dyer examines other parallels between the debates over abortion and slavery. The relegation of slaves and unborn babies to a level lower than full citizens causes significant legal and constitutional disharmony: Slaves could not vote but were partially counted when determining the number of seats a state received in Congress, while unborn babies are treated as legal persons in some circumstances but can nevertheless be killed until they are born. Both Dred Scott and Roe were decided based on faulty histories. And both slavery and abortion have caused violent crusades that were roundly denounced by people on both sides of the debate.
Undoubtedly, there are differences between slavery and abortion. But the parallels are chilling. Dyer’s book shows that America today is rehashing much of the same debate that occurred 150 years ago.
Running throughout the book is a sense of the moral foundation of America’s constitutional order. The Constitution is not just a document that sets up procedures for how the country should be governed. Rather, the procedures and institutions it created rest on a moral foundation. American political rights rest on what is really and truly right.
The moral underpinning of America’s constitutional order raises a difficult question, however, that Dyer does not fully resolve. Given that America is a democracy, who gets to decide which moral code, if any, should govern our politics? Morality should sit above politics and guide it, but given the United States’ tremendously diverse body politic, what should be the mechanism that gives morality its primacy?
The conservative critique of judicial activism, and its consequent reliance on simple procedural due process and deference to democratic elections, is a response to this problem, but Dyer’s insistence on the legitimacy of substantive due process rules out this accommodation.]
The solution cannot be, Dyer insists, to preclude arguments based on private moral sentiments and rely only on premises that all can accept, as some political theorists, most notably John Rawls, have argued. The personhood of all human beings is connected to one’s deepest convictions, yet there is no reason why someone should believe that an unborn baby is a rights-possessing individual and still accept the murder of babies by the broader society. That would be to allow, and be complicit in, a monstrous wrong.
Dyer’s assertion of the moral foundation of America may be difficult to enact, but that does not make it false. And if Dyer is right that America’s political system—complete with the rights and freedoms Americans hold so dear—are founded on moral principles that affirm the rights of every human being, then abortion is not just immoral. It is un-American.
http://freebeacon.com/americas-moral-foundation/
Amendment 14 - Citizenship Rights
- All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life,liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. {See buttons above for links to underlined wording.}
- Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
Some will see a connection and some will ignore some points presented. This is a very good example of how Con law lives in a real deep weed patch. Notice how the Lawyers keep mentioning CASES like they are more important than the actual words in the Amendment of the Constitution. Issues of equal protection, judicial activism, caste, class, groups, rights, and other issues are presented as argument.
After all is said and done - did they find new words, meanings, and apply the Bill of Rights to the individual States which no Founder - Framer - Ratifier intended even in the time of the ratification of the 14th?
The arguments in favor of 14 base themselves IN 14!!!
Lawyers and the judicial love the 14th...it is their bread and butter.
Public perception has been manipulated for all the years since, that the civil rights of citizens are granted by the 14th...
NOT TRUE. - M.C.
ABUSE OF POWER
Now maybe all will understand the importance of restoring the ORIGINAL Constitution and it's intents and meanings as of the time it was adopted. None of the laws passed or the Precedent case law created using the usurped powers has any effect in law. They by the nature of the usurpation are null and void because the usurpers did not have Constitutional power to change alter or create new rights or find new meaning to the various sections, clauses and amendments.
Any violation of oath of office by way of usurpation of power is the gravest of civic offenses. It is "treasonable usurpation upon the power and majesty of the people," as Alexander Hamilton correctly characterized any flouting of the people's fundamental law. ("letters of Phocion," 1784: regarding violation of the New York Constitution.) Any usurpation "is criminal and odious" as declared by President John Quincy Adams in his first annual Message to Congress 1825. Such condemnation of usurpation-either by misusing granted power, or by grasping power which has not been granted-is in keeping with the Federalist's denunciation of this most heinous offense by any public official as a defaulting public trustee, including especially any and every Judge because especially charged with the particular duty of enforcing respect in practice of this basic law. (all from a book by Hamilton Abert Long).
So as you can surmise they Congress and the Courts are usurpers as they have created new laws where none existed and new rights where none had been before. So, if they usurped the powers and actions the actions and right are hereby voided in the real law.
Any violation of oath of office by way of usurpation of power is the gravest of civic offenses. It is "treasonable usurpation upon the power and majesty of the people," as Alexander Hamilton correctly characterized any flouting of the people's fundamental law. ("letters of Phocion," 1784: regarding violation of the New York Constitution.) Any usurpation "is criminal and odious" as declared by President John Quincy Adams in his first annual Message to Congress 1825. Such condemnation of usurpation-either by misusing granted power, or by grasping power which has not been granted-is in keeping with the Federalist's denunciation of this most heinous offense by any public official as a defaulting public trustee, including especially any and every Judge because especially charged with the particular duty of enforcing respect in practice of this basic law. (all from a book by Hamilton Abert Long).
So as you can surmise they Congress and the Courts are usurpers as they have created new laws where none existed and new rights where none had been before. So, if they usurped the powers and actions the actions and right are hereby voided in the real law.
The Virginia Plan and the General Welfare Clause
This editorial is a re-print from:
http://tenthamendmentcenter.com/2013/03/18/the-virginia-plan-and-the-general-welfare-clause/
Posted by Rob Natelson
EDITOR’S NOTE: The following commentary is an excerpt from Professor Natelson’s paper, The General Welfare Clause and the Public Trust: An Essay in Original Understanding, published in The Kansas Law Review (Vol. 52, p. 1, 2003). The paper examines the original understanding behind the U.S. Constitution’s controversial “General Welfare Clause.” Based on Founding-Era word usage, public representations by advocates of the Constitution, and other historical evidence, the paper concludes that the General Welfare Clause is a limitation on the taxing power. The position of the modern Supreme Court — that the Clause authorizes spending for the general welfare — is based on insufficient research and an anachronistic understanding of language.
The inadequacy of the Articles of Confederation as a governing charter induced the delegates at the federal convention to look for other models. The perils of extreme decentralization, coupled with the understandable influence of British precedents, help explain why the first instinct of convention leaders was to propose a “consolidated” rather than a “federal” union.
This consolidationist vision was embodied in the Virginia Plan, so called because it was proposed by the Virginia delegation, led de facto by Governor Edmund Randolph and by James Madison. In effect, the Virginia Plan was a scheme in which the states would survive only as “corporations,” fulfilling the kind of subordinate roles that local government played in England. One delegate, Delaware’s George Read, proposed abolishing the states entirely.’ Most of the delegates believed, however, that the states should be preserved, if merely for instrumental reasons: The general government simply could not “extend Its care to every requisite object’” over such a large territory.
The Virginia Plan served as the basis of discussion during the first few weeks of the convention. The Virginia Plan was premised on the conclusion that the Articles were inadequate to “accomplish the objects proposed by their institution; namely, ‘common defence, security of liberty and general welfare.”, By the terms of the scheme, the new government would receive the cumulative total of powers (1) that Congress had enjoyed under the Confederation, (2) in which “the separate states are incompetent,” and (3) necessary to “the harmony of the United States… In addition, Congress would receive (4) a plenary veto over state legislation. At this stage, proposals for a more limited list of federal powers were dismissed as impractical. When the New Jersey delegation offered its own, more decentralized proposal on June 16, 1787 (the New Jersey Plan) the delegates rejected it by a decisive vote. On the other hand, they quietly laid aside the proposal of Alexander Hamilton, offered on June 18, which would have granted Congress legislative authority without limit-”with power to pass all laws whatsoever”-subject only to the executive veto. While not going quite as far as Hamilton, the delegates at this point still appeared willing to grant the new government even the power to interfere with the “internal police” (internal governance) of states. Indeed, when Roger Sherman proposed that the states retain exclusive jurisdiction over such matters, Gouverneur Morris responded that in some cases they ought not even have that.
Sherman introduced his proposal in the form of a motion to enumerate the powers of the central government, with a proviso that states should be able to legislate when “the General welfare of the United States is not concerdned’ The convention rejected it, adopting instead a resolution allowing Congress “to legislate in all cases for the general interests of the Union, and also in those to which the States are separately incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation.”
Yet the day the convention rejected Sherman’s motion-July 17, 1787-marked the high tide of proposed centralization. He was only one of several delegates contending that the states should not be mere “corporations,” but should be left with considerable authority. Later the same day they won their first battle when the convention voted to abandon the congressional veto over state legislation and to replace it with a general supremacy clause. On July 23, when the draft constitution was submitted to the Committee of Detail, the new government was not yet limited to enumerated powers, but when the Committee submitted its revision on August 1, the sweeping language of the Virginia Plan was gone and a modest enumeration had replaced it. Efforts later in the convention to add powers to the list were mostly unsuccessful.
Meanwhile, the process had begun of tacking general welfare language onto the new government’s financial powers. On August 6, the Committee of Detail presented to the convention a draft constitution embodying the delegates’ agreements thus far. The draft did not include a general welfare qualification on federal tax authority, so Dickinson added the following words on his copy: “no Preference or Advantage to be given to any persons or places-Laws to be equal..” Soon thereafter, Dickinson was placed on a Committee of Eleven chaired by William Livingston to deal further with financial issues. On August 21, that committee proposed a general welfare qualification to the payment of debts. On August 25, Roger Sherman offered a proposal to connect the previously-granted power to pay Confederation debts with the Taxation Clause, qualifying them both with general welfare language. Madison reported:
Mr. Sherman thought it necessary to connect with the clause for laying taxes duties &c [sic] an express provision for the object of the old debts &c-and moved to add to the Ist. clause of 1st. sect—of art VII “for the payment of said debts and for the defraying the expences that shall be incurred for the common defence and general welfare”
The proposition, as being unnecessary was disagreed to, Connecticut alone, being in the affirmative.
However, just as Roger Sherman initially lost on enumerating federal powers only to win via committee, here he also recovered to win via committee. On September 4, a Committee of Eleven, headed by Judge David Brearley-and also numbering among its members John Dickinson recommended insertion in the Taxation Clause the phrase “to pay the debts and provide for the common defence and general welfare.” Historian Charles Warren argues that this was but a replacement for Sherman’s earlier wording, “for the payment of said debts and for the defraying the expences that shall be incurred for the common defence and general welfare..” Again, we see the future~ orientation of the reference to spending. A more recent historian, Forrest McDonald, contends that “[t]he phraseology … was understood as prohibiting the expenditure of money for such ‘internal improvements’ as roads and canals, since those must, of necessity, promote the particular welfare of specific states rather than the ‘general’ welfare…” Both of these seem consistent with Dickinson’s apparent reason for the Clause: that “no Preference or Advantage to be given to any persons or places.”
Thus, the Taxation Clause now read, “[t]he Legislature shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defence and general welfare of the United States…” A Committee of Style and Arrangement chaired by Gouverneur Morris later added a requirement that indirect taxes be uniform. Finally, on September 12 and 13, Dickinson cooperated with George Mason to insert in the Constitution a Congressional power to revise state inspection duties. The idea was to prevent states with ports from oppressing those without–consistent with Dickinson’s consistently-stated view.
Regarding Gouverneur Morris, a stubborn tradition has it that he thought that the General Welfare Clause was a separate and copious fount of legislative power. The basis for this tradition rests on the convention notes of James McHenry for September 6:
Spoke to Gov Morris Fitzimmons and Mr Goram to insert a power in the confederation enabling the legislature to erect piers for protection of shipping in winter and to preserve the navigation of harbours-Mr Gohram against. The other two gentlemen for it-Mr Gov: thinks it may be done under the words of the I clause I sect 7 art. amended” and provide for the common defence and general welfare.["]-If this comprehends such a power, it goes to authorise the legis!. to grant exclusive privileges to trading companies etc.
McHenry apparently understood Morris’s point to be that the General Welfare Clause was plenary in nature because it could serve as a source of authority to erect piers and therefore create monopolies. McHenry was likely confused. He tells us that Morris and Thomas Fitzsimmons were in favor of “insert[ing] a power . . . enabling the legislature to erect piers.” If Morris was in favor of inserting such a power, he could not have thought the General Welfare Clause broad enough to include it. Morris’ suggestion that “it may be done under the words … ‘and provide for the common defence and general welfare”, may mean only that the insertion could be placed in the part of the enumeration that follows (i.e., is physically “under”) the Taxation Clause.
Gouverneur Morris plays the villain in another doubtful story. This is the tale that, as chairman of the Committee of Style and Arrangement he surreptitiously tried to create an independent general welfare power by setting off the General Welfare Clause from the language immediately preceding with a semicolon rather than a comma. The tale was told more than a decade later by Albert Gallatin on the floor of Congress.
This story also seems unlikely, and Gallatin could not have known the truth personally since he wasn’t at the convention. The story assumes that Morris thought he was playing with fools, easily hoodwinked-at the Philadelphia convention, the “assembly of demigods!” Of course, any sleight of hand was likely to be caught, and this error was indeed caught. The convention’s decision to remove the semicolon corroborates the conclusion that the General Welfare Clause was not an independent power.
In private life, Rob Natelson is a long-time conservative/free market activist, but professionally he is a constitutional scholar whose meticulous studies of the Constitution's original meaning have been published or cited by many top law journals. (See: www.constitution.i2i.org/about/.) Most recently, he co-authored The Origins of the Necessary and Proper Clause (Cambridge University Press) and The Original Constitution (Tenth Amendment Center). After a quarter of a century as Professor of Law at the University of Montana, he recently retired to work full time at Colorado's Independence Institute.
This entry was posted on Monday, March 18th, 2013 at 1:40 pm. It is filed under Featured, Founding Principles. You can follow any responses to this entry through the RSS 2.0 feed.
http://tenthamendmentcenter.com/2013/03/18/the-virginia-plan-and-the-general-welfare-clause/
Posted by Rob Natelson
EDITOR’S NOTE: The following commentary is an excerpt from Professor Natelson’s paper, The General Welfare Clause and the Public Trust: An Essay in Original Understanding, published in The Kansas Law Review (Vol. 52, p. 1, 2003). The paper examines the original understanding behind the U.S. Constitution’s controversial “General Welfare Clause.” Based on Founding-Era word usage, public representations by advocates of the Constitution, and other historical evidence, the paper concludes that the General Welfare Clause is a limitation on the taxing power. The position of the modern Supreme Court — that the Clause authorizes spending for the general welfare — is based on insufficient research and an anachronistic understanding of language.
The inadequacy of the Articles of Confederation as a governing charter induced the delegates at the federal convention to look for other models. The perils of extreme decentralization, coupled with the understandable influence of British precedents, help explain why the first instinct of convention leaders was to propose a “consolidated” rather than a “federal” union.
This consolidationist vision was embodied in the Virginia Plan, so called because it was proposed by the Virginia delegation, led de facto by Governor Edmund Randolph and by James Madison. In effect, the Virginia Plan was a scheme in which the states would survive only as “corporations,” fulfilling the kind of subordinate roles that local government played in England. One delegate, Delaware’s George Read, proposed abolishing the states entirely.’ Most of the delegates believed, however, that the states should be preserved, if merely for instrumental reasons: The general government simply could not “extend Its care to every requisite object’” over such a large territory.
The Virginia Plan served as the basis of discussion during the first few weeks of the convention. The Virginia Plan was premised on the conclusion that the Articles were inadequate to “accomplish the objects proposed by their institution; namely, ‘common defence, security of liberty and general welfare.”, By the terms of the scheme, the new government would receive the cumulative total of powers (1) that Congress had enjoyed under the Confederation, (2) in which “the separate states are incompetent,” and (3) necessary to “the harmony of the United States… In addition, Congress would receive (4) a plenary veto over state legislation. At this stage, proposals for a more limited list of federal powers were dismissed as impractical. When the New Jersey delegation offered its own, more decentralized proposal on June 16, 1787 (the New Jersey Plan) the delegates rejected it by a decisive vote. On the other hand, they quietly laid aside the proposal of Alexander Hamilton, offered on June 18, which would have granted Congress legislative authority without limit-”with power to pass all laws whatsoever”-subject only to the executive veto. While not going quite as far as Hamilton, the delegates at this point still appeared willing to grant the new government even the power to interfere with the “internal police” (internal governance) of states. Indeed, when Roger Sherman proposed that the states retain exclusive jurisdiction over such matters, Gouverneur Morris responded that in some cases they ought not even have that.
Sherman introduced his proposal in the form of a motion to enumerate the powers of the central government, with a proviso that states should be able to legislate when “the General welfare of the United States is not concerdned’ The convention rejected it, adopting instead a resolution allowing Congress “to legislate in all cases for the general interests of the Union, and also in those to which the States are separately incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation.”
Yet the day the convention rejected Sherman’s motion-July 17, 1787-marked the high tide of proposed centralization. He was only one of several delegates contending that the states should not be mere “corporations,” but should be left with considerable authority. Later the same day they won their first battle when the convention voted to abandon the congressional veto over state legislation and to replace it with a general supremacy clause. On July 23, when the draft constitution was submitted to the Committee of Detail, the new government was not yet limited to enumerated powers, but when the Committee submitted its revision on August 1, the sweeping language of the Virginia Plan was gone and a modest enumeration had replaced it. Efforts later in the convention to add powers to the list were mostly unsuccessful.
Meanwhile, the process had begun of tacking general welfare language onto the new government’s financial powers. On August 6, the Committee of Detail presented to the convention a draft constitution embodying the delegates’ agreements thus far. The draft did not include a general welfare qualification on federal tax authority, so Dickinson added the following words on his copy: “no Preference or Advantage to be given to any persons or places-Laws to be equal..” Soon thereafter, Dickinson was placed on a Committee of Eleven chaired by William Livingston to deal further with financial issues. On August 21, that committee proposed a general welfare qualification to the payment of debts. On August 25, Roger Sherman offered a proposal to connect the previously-granted power to pay Confederation debts with the Taxation Clause, qualifying them both with general welfare language. Madison reported:
Mr. Sherman thought it necessary to connect with the clause for laying taxes duties &c [sic] an express provision for the object of the old debts &c-and moved to add to the Ist. clause of 1st. sect—of art VII “for the payment of said debts and for the defraying the expences that shall be incurred for the common defence and general welfare”
The proposition, as being unnecessary was disagreed to, Connecticut alone, being in the affirmative.
However, just as Roger Sherman initially lost on enumerating federal powers only to win via committee, here he also recovered to win via committee. On September 4, a Committee of Eleven, headed by Judge David Brearley-and also numbering among its members John Dickinson recommended insertion in the Taxation Clause the phrase “to pay the debts and provide for the common defence and general welfare.” Historian Charles Warren argues that this was but a replacement for Sherman’s earlier wording, “for the payment of said debts and for the defraying the expences that shall be incurred for the common defence and general welfare..” Again, we see the future~ orientation of the reference to spending. A more recent historian, Forrest McDonald, contends that “[t]he phraseology … was understood as prohibiting the expenditure of money for such ‘internal improvements’ as roads and canals, since those must, of necessity, promote the particular welfare of specific states rather than the ‘general’ welfare…” Both of these seem consistent with Dickinson’s apparent reason for the Clause: that “no Preference or Advantage to be given to any persons or places.”
Thus, the Taxation Clause now read, “[t]he Legislature shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defence and general welfare of the United States…” A Committee of Style and Arrangement chaired by Gouverneur Morris later added a requirement that indirect taxes be uniform. Finally, on September 12 and 13, Dickinson cooperated with George Mason to insert in the Constitution a Congressional power to revise state inspection duties. The idea was to prevent states with ports from oppressing those without–consistent with Dickinson’s consistently-stated view.
Regarding Gouverneur Morris, a stubborn tradition has it that he thought that the General Welfare Clause was a separate and copious fount of legislative power. The basis for this tradition rests on the convention notes of James McHenry for September 6:
Spoke to Gov Morris Fitzimmons and Mr Goram to insert a power in the confederation enabling the legislature to erect piers for protection of shipping in winter and to preserve the navigation of harbours-Mr Gohram against. The other two gentlemen for it-Mr Gov: thinks it may be done under the words of the I clause I sect 7 art. amended” and provide for the common defence and general welfare.["]-If this comprehends such a power, it goes to authorise the legis!. to grant exclusive privileges to trading companies etc.
McHenry apparently understood Morris’s point to be that the General Welfare Clause was plenary in nature because it could serve as a source of authority to erect piers and therefore create monopolies. McHenry was likely confused. He tells us that Morris and Thomas Fitzsimmons were in favor of “insert[ing] a power . . . enabling the legislature to erect piers.” If Morris was in favor of inserting such a power, he could not have thought the General Welfare Clause broad enough to include it. Morris’ suggestion that “it may be done under the words … ‘and provide for the common defence and general welfare”, may mean only that the insertion could be placed in the part of the enumeration that follows (i.e., is physically “under”) the Taxation Clause.
Gouverneur Morris plays the villain in another doubtful story. This is the tale that, as chairman of the Committee of Style and Arrangement he surreptitiously tried to create an independent general welfare power by setting off the General Welfare Clause from the language immediately preceding with a semicolon rather than a comma. The tale was told more than a decade later by Albert Gallatin on the floor of Congress.
This story also seems unlikely, and Gallatin could not have known the truth personally since he wasn’t at the convention. The story assumes that Morris thought he was playing with fools, easily hoodwinked-at the Philadelphia convention, the “assembly of demigods!” Of course, any sleight of hand was likely to be caught, and this error was indeed caught. The convention’s decision to remove the semicolon corroborates the conclusion that the General Welfare Clause was not an independent power.
In private life, Rob Natelson is a long-time conservative/free market activist, but professionally he is a constitutional scholar whose meticulous studies of the Constitution's original meaning have been published or cited by many top law journals. (See: www.constitution.i2i.org/about/.) Most recently, he co-authored The Origins of the Necessary and Proper Clause (Cambridge University Press) and The Original Constitution (Tenth Amendment Center). After a quarter of a century as Professor of Law at the University of Montana, he recently retired to work full time at Colorado's Independence Institute.
This entry was posted on Monday, March 18th, 2013 at 1:40 pm. It is filed under Featured, Founding Principles. You can follow any responses to this entry through the RSS 2.0 feed.
Anti-Federalists and Usurpation
PREFACE BY: Harold W. Bolinger, Founder and Director of LEADERS
In contrast to Hamilton, Madison and Jay who supported ratification of the Constitution of the United States, many others did not. While the former's works were more logically organized (and eventually won the debate), the Antifederalist writers were nonetheless articulate. Serious questions were raised which eventually led to some of the Federalist writings that served as answers to allegations of the Antifederalists.
No serious student of the Constitution can be without both sides of the story. Some Antifederalist prophecies have strangely come true. Writings by "Brutus" and "A Federal Farmer," particularly relating to the "necessary and proper" clause (Article I, Section 8, Clause 18), view the future under an unrestrained Congress. Although the "necessary and proper" clause was never meant to be a blanket grant of power, over the years, as the intentions of the Founding Fathers have passed further and further from our memories, all three branches of the federal government have assumed things that simply do not--and never did--exist. As the states have forgotten how to be a check against a Congress run amok, things are getting worse.
This document, like the Federalist Papers themselves, cannot be considered all inclusive. Many other pro and con pieces appeared in newspapers, in the state ratification conventions, in pamphlets, books, and other sources of the time. But these are considered the premier Anti-federalist writings, organized somewhat to coincide with the Federalist Papers.
I personally scanned this document into ASCII, converted the text, spell checked it, and proofed it several times. Undoubtedly, I may have missed a dropped character, hyphenation may be inadvertently missing, or other minor flaws may appear. Please note any such mistakes and call them to my attention so that future releases can be more accurate.
Also note it was scanned from the following document:
The Anti-federalist Papers
Edited with an Introduction by Morton Borden
Michigan State University Press, 1965
Library of Congress Catalog Card Number: 65-17929
This author’s writings have been removed, so as to keep the information strictly public domain. Mr. Borden's intellect on the subject matter is very good, and the reader of this text is strongly encouraged to review the book cited above for a more thorough inquiry into the names behind the alias', and other such pertinent insights provided by Mr. Borden's original works on the Antifederalist papers. (Deleting this information has also saved considerable space, and that should be a welcome note to those of us who are cramming more and more onto our limited storage capacity.)
No intention is made to plagiarize Mr. Borden or the Michigan State University Press. This work is considered public domain to the extent that the information is historic, and intended for non-commercial, informational purposes only. Any other uses are hereby denied and rejected by LEADERS. Full credit is given to Mr. Borden and the Michigan State University Press for their work in assembling this information. Questions regarding content should be directed to them.
Further information about our research projects may be requested by writing to LEADERS; P.O. Box 3245; Frederick, MD 21705. Donations to support ongoing World Wide Web access are appreciated and encouraged. LEADERS can be found on the World Wide Web at:
http://www.wepin.com/articles/afp/afp17.html
In contrast to Hamilton, Madison and Jay who supported ratification of the Constitution of the United States, many others did not. While the former's works were more logically organized (and eventually won the debate), the Antifederalist writers were nonetheless articulate. Serious questions were raised which eventually led to some of the Federalist writings that served as answers to allegations of the Antifederalists.
No serious student of the Constitution can be without both sides of the story. Some Antifederalist prophecies have strangely come true. Writings by "Brutus" and "A Federal Farmer," particularly relating to the "necessary and proper" clause (Article I, Section 8, Clause 18), view the future under an unrestrained Congress. Although the "necessary and proper" clause was never meant to be a blanket grant of power, over the years, as the intentions of the Founding Fathers have passed further and further from our memories, all three branches of the federal government have assumed things that simply do not--and never did--exist. As the states have forgotten how to be a check against a Congress run amok, things are getting worse.
This document, like the Federalist Papers themselves, cannot be considered all inclusive. Many other pro and con pieces appeared in newspapers, in the state ratification conventions, in pamphlets, books, and other sources of the time. But these are considered the premier Anti-federalist writings, organized somewhat to coincide with the Federalist Papers.
I personally scanned this document into ASCII, converted the text, spell checked it, and proofed it several times. Undoubtedly, I may have missed a dropped character, hyphenation may be inadvertently missing, or other minor flaws may appear. Please note any such mistakes and call them to my attention so that future releases can be more accurate.
Also note it was scanned from the following document:
The Anti-federalist Papers
Edited with an Introduction by Morton Borden
Michigan State University Press, 1965
Library of Congress Catalog Card Number: 65-17929
This author’s writings have been removed, so as to keep the information strictly public domain. Mr. Borden's intellect on the subject matter is very good, and the reader of this text is strongly encouraged to review the book cited above for a more thorough inquiry into the names behind the alias', and other such pertinent insights provided by Mr. Borden's original works on the Antifederalist papers. (Deleting this information has also saved considerable space, and that should be a welcome note to those of us who are cramming more and more onto our limited storage capacity.)
No intention is made to plagiarize Mr. Borden or the Michigan State University Press. This work is considered public domain to the extent that the information is historic, and intended for non-commercial, informational purposes only. Any other uses are hereby denied and rejected by LEADERS. Full credit is given to Mr. Borden and the Michigan State University Press for their work in assembling this information. Questions regarding content should be directed to them.
Further information about our research projects may be requested by writing to LEADERS; P.O. Box 3245; Frederick, MD 21705. Donations to support ongoing World Wide Web access are appreciated and encouraged. LEADERS can be found on the World Wide Web at:
http://www.wepin.com/articles/afp/afp17.html
Origin and Design of Government
by Thomas Paine, Excerpted from Common Sense
Society in every state is a blessing, but Government, even in its best state, is but a necessary evil; in its worst state an intolerable one: for when we suffer, or are exposed to the same miseries BY A GOVERNMENT, which we might expect in a country WITHOUT GOVERNMENT, our calamity is heightened by reflecting that we furnish the means by which we suffer. Government, like dress, is the badge of lost innocence; the palaces of kings are built upon the ruins of the bowers of paradise. For were the impulses of conscience clear, uniform and irresistibly obeyed, man would need no other lawgiver; but that not being the case, he finds it necessary to surrender up a part of his property to furnish means for the protection of the rest; and this he is induced to do by the same prudence which in every other case advises him, out of two evils to choose the least. Wherefore, security being the true design and end of government, it unanswerably follows that whatever form thereof appears most likely to ensure it to us, with the least expense and greatest benefit, is preferable to all others.
In order to gain a clear and just idea of the design and end of government, let us suppose a small number of persons settled in some sequestered part of the earth, unconnected with the rest; they will then represent the first peopling of any country, or of the world. In this state of natural liberty, society will be their first thought. A thousand motives will excite them thereto; the strength of one man is so unequal to his wants, and his mind so unfitted for perpetual solitude, that he is soon obliged to seek assistance and relief of another, who in his turn requires the same. Four or five united would be able to raise a tolerable dwelling in the midst of a wilderness, but one man might labour out the common period of life without accomplishing anything; when he had felled his timber he could not remove it, nor erect it after it was removed; hunger in the meantime would urge him to quit his work, and every different want would call him a different way. Disease, nay even misfortune, would be death; for, though neither might be mortal, yet either would disable him from living, and reduce him to a state in which he might rather be said to perish than to die.
Thus necessity, like a gravitating power, would soon form our newly arrived emigrants into society, the reciprocal blessings of which would supersede, and render the obligations of law and government unnecessary while they remained perfectly just to each other; but as nothing but Heaven is impregnable to vice, it will unavoidably happen that in proportion as they surmount the first difficulties of emigration, which bound them together in a common cause, they will begin to relax in their duty and attachment to each other: and this remissness will point out the necessity of establishing some form of government to supply the defect of moral virtue.
Some convenient tree will afford them a State House, under the branches of which the whole Colony may assemble to deliberate on public matters. It is more than probable that their first laws will have the title only of Regulations and be enforced by no other penalty than public disesteem. In this first parliament every man by natural right will have a seat.
But as the Colony increases, the public concerns will increase likewise, and the distance at which the members may be separated, will render it too inconvenient for all of them to meet on every occasion as at first, when their number was small, their habitations near, and the public concerns few and trifling. This will point out the convenience of their consenting to leave the legislative part to be managed by a select number chosen from the whole body, who are supposed to have the same concerns at stake which those have who appointed them, and who will act in the same manner as the whole body would act were they present. If the colony continue increasing, it will become necessary to augment the number of representatives, and that the interest of every part of the colony may be attended to, it will be found best to divide the whole into convenient parts, each part sending its proper number: and that the ELECTED might never form to themselves an interest separate from the ELECTORS, prudence will point out the propriety of having elections often: because as the ELECTED might by that means return and mix again with the general body of the ELECTORS in a few months, their fidelity to the public will be secured by the prudent reflection of not making a rod for themselves. And as this frequent interchange will establish a common interest with every part of the community, they will mutually and naturally support each other, and on this, (not on the unmeaning name of king,) depends the STRENGTH OF GOVERNMENT, AND THE HAPPINESS OF THE GOVERNED.
Thus necessity, like a gravitating power, would soon form our newly arrived emigrants into society, the reciprocal blessings of which would supersede, and render the obligations of law and government unnecessary while they remained perfectly just to each other; but as nothing but Heaven is impregnable to vice, it will unavoidably happen that in proportion as they surmount the first difficulties of emigration, which bound them together in a common cause, they will begin to relax in their duty and attachment to each other: and this remissness will point out the necessity of establishing some form of government to supply the defect of moral virtue.
Some convenient tree will afford them a State House, under the branches of which the whole Colony may assemble to deliberate on public matters. It is more than probable that their first laws will have the title only of Regulations and be enforced by no other penalty than public disesteem. In this first parliament every man by natural right will have a seat.
But as the Colony increases, the public concerns will increase likewise, and the distance at which the members may be separated, will render it too inconvenient for all of them to meet on every occasion as at first, when their number was small, their habitations near, and the public concerns few and trifling. This will point out the convenience of their consenting to leave the legislative part to be managed by a select number chosen from the whole body, who are supposed to have the same concerns at stake which those have who appointed them, and who will act in the same manner as the whole body would act were they present. If the colony continue increasing, it will become necessary to augment the number of representatives, and that the interest of every part of the colony may be attended to, it will be found best to divide the whole into convenient parts, each part sending its proper number: and that the ELECTED might never form to themselves an interest separate from the ELECTORS, prudence will point out the propriety of having elections often: because as the ELECTED might by that means return and mix again with the general body of the ELECTORS in a few months, their fidelity to the public will be secured by the prudent reflection of not making a rod for themselves. And as this frequent interchange will establish a common interest with every part of the community, they will mutually and naturally support each other, and on this, (not on the unmeaning name of king,) depends the STRENGTH OF GOVERNMENT, AND THE HAPPINESS OF THE GOVERNED.
Here then is the origin and rise of government; namely, a mode rendered necessary by the inability of moral virtue to govern the world; here too is the design and end of government, viz. Freedom and security. And however our eyes may be dazzled with show, or our ears deceived by sound; however prejudice may warp our wills, or interest darken our understanding, the simple voice of nature and reason will say, ’tis right.
I draw my idea of the form of government from a principle in nature which no art can overturn, viz. that the more simple any thing is, the less liable it is to be disordered, and the easier repaired when disordered; and with this maxim in view I offer a few remarks on the so much boasted constitution of England. That it was noble for the dark and slavish times in which it was erected, is granted. When the world was overrun with tyranny the least remove therefrom was a glorious rescue. But that it is imperfect, subject to convulsions, and incapable of producing what it seems to promise is easily demonstrated.
I draw my idea of the form of government from a principle in nature which no art can overturn, viz. that the more simple any thing is, the less liable it is to be disordered, and the easier repaired when disordered; and with this maxim in view I offer a few remarks on the so much boasted constitution of England. That it was noble for the dark and slavish times in which it was erected, is granted. When the world was overrun with tyranny the least remove therefrom was a glorious rescue. But that it is imperfect, subject to convulsions, and incapable of producing what it seems to promise is easily demonstrated.
Absolute governments, (tho’ the disgrace of human nature) have this advantage with them, they are simple; if the people suffer, they know the head from which their suffering springs; know likewise the remedy; and are not bewildered by a variety of causes and cures. But the constitution of England is so exceedingly complex, that the nation may suffer for years together without being able to discover in which part the fault lies; some will say in one and some in another, and every political physician will advise a different medicine.
I know it is difficult to get over local or long standing prejudices, yet if we will suffer ourselves to examine the component parts of the English Constitution, we shall find them to be the base remains of two ancient tyrannies, compounded with some new Republican materials.
First. — The remains of Monarchical tyranny in the person of the King.
Secondly. — The remains of Aristocratical tyranny in the persons of the Peers.
Thirdly. — The new Republican materials, in the persons of the Commons, on whose virtue depends the freedom of England.
I know it is difficult to get over local or long standing prejudices, yet if we will suffer ourselves to examine the component parts of the English Constitution, we shall find them to be the base remains of two ancient tyrannies, compounded with some new Republican materials.
First. — The remains of Monarchical tyranny in the person of the King.
Secondly. — The remains of Aristocratical tyranny in the persons of the Peers.
Thirdly. — The new Republican materials, in the persons of the Commons, on whose virtue depends the freedom of England.
The two first, by being hereditary, are independent of the People; wherefore in a CONSTITUTIONAL SENSE they contribute nothing towards the freedom of the State.
To say that the constitution of England is an UNION of three powers, reciprocally CHECKING each other, is farcical; either the words have no meaning, or they are flat contradictions.
First. — That the King it not to be trusted without being looked after; or in other words, that a thirst for absolute power is the natural disease of monarchy.
Secondly. — That the Commons, by being appointed for that purpose, are either wiser or more worthy of confidence than the Crown.
But as the same constitution which gives the Commons a power to check the King by withholding the supplies, gives afterwards the King a power to check the Commons, by empowering him to reject their other bills; it again supposes that the King is wiser than those whom it has already supposed to be wiser than him. A mere absurdity!
There is something exceedingly ridiculous in the composition of Monarchy; it first excludes a man from the means of information, yet empowers him to act in cases where the highest judgment is required. The state of a king shuts him from the World, yet the business of a king requires him to know it thoroughly; wherefore the different parts, by unnaturally opposing and destroying each other, prove the whole character to be absurd and useless.
To say that the constitution of England is an UNION of three powers, reciprocally CHECKING each other, is farcical; either the words have no meaning, or they are flat contradictions.
First. — That the King it not to be trusted without being looked after; or in other words, that a thirst for absolute power is the natural disease of monarchy.
Secondly. — That the Commons, by being appointed for that purpose, are either wiser or more worthy of confidence than the Crown.
But as the same constitution which gives the Commons a power to check the King by withholding the supplies, gives afterwards the King a power to check the Commons, by empowering him to reject their other bills; it again supposes that the King is wiser than those whom it has already supposed to be wiser than him. A mere absurdity!
There is something exceedingly ridiculous in the composition of Monarchy; it first excludes a man from the means of information, yet empowers him to act in cases where the highest judgment is required. The state of a king shuts him from the World, yet the business of a king requires him to know it thoroughly; wherefore the different parts, by unnaturally opposing and destroying each other, prove the whole character to be absurd and useless.
Some writers have explained the English constitution thus: the King, say they, is one, the people another; the Peers are a house in behalf of the King, the commons in behalf of the people; but this hath all the distinctions of a house divided against itself; and though the expressions be pleasantly arranged, yet when examined they appear idle and ambiguous; and it will always happen, that the nicest construction that words are capable of, when applied to the description of something which either cannot exist, or is too incomprehensible to be within the compass of description, will be words of sound only, and though they may amuse the ear, they cannot inform the mind: for this explanation includes a previous question, viz. HOW CAME THE KING BY A POWER WHICH THE PEOPLE ARE AFRAID TO TRUST, AND ALWAYS OBLIGED TO CHECK? Such a power could not be the gift of a wise people, neither can any power, WHICH NEEDS CHECKING, be from God; yet the provision which the constitution makes supposes such a power to exist.
But the provision is unequal to the task; the means either cannot or will not accomplish the end, and the whole affair is a Felo de se: for as the greater weight will always carry up the less, and as all the wheels of a machine are put in motion by one, it only remains to know which power in the constitution has the most weight, for that will govern: and tho’ the others, or a part of them, may clog, or, as the phrase is, check the rapidity of its motion, yet so long as they cannot stop it, their endeavours will be ineffectual: The first moving power will at last have its way, and what it wants in speed is supplied by time.
But the provision is unequal to the task; the means either cannot or will not accomplish the end, and the whole affair is a Felo de se: for as the greater weight will always carry up the less, and as all the wheels of a machine are put in motion by one, it only remains to know which power in the constitution has the most weight, for that will govern: and tho’ the others, or a part of them, may clog, or, as the phrase is, check the rapidity of its motion, yet so long as they cannot stop it, their endeavours will be ineffectual: The first moving power will at last have its way, and what it wants in speed is supplied by time.
That the crown is this overbearing part in the English constitution needs not be mentioned, and that it derives its whole consequence merely from being the giver of places and pensions is self-evident; wherefore, though we have been wise enough to shut and lock a door against absolute Monarchy, we at the same time have been foolish enough to put the Crown in possession of the key.
The prejudice of Englishmen, in favour of their own government, by King, Lords and Commons, arises as much or more from national pride than reason. Individuals are undoubtedly safer in England than in some other countries: but the will of the king is as much the law of the land in Britain as in France, with this difference, that instead of proceeding directly from his mouth, it is handed to the people under the formidable shape of an act of parliament. For the fate of Charles the First hath only made kings more subtle — not more just.
Wherefore, laying aside all national pride and prejudice in favour of modes and forms, the plain truth is that IT IS WHOLLY OWING TO THE CONSTITUTION OF THE PEOPLE, AND NOT TO THE CONSTITUTION OF THE GOVERNMENT that the crown is not as oppressive in England as in Turkey.
An inquiry into the CONSTITUTIONAL ERRORS in the English form of government is at this time highly necessary; for as we are never in a proper condition of doing justice to others, while we continue under the influence of some leading partiality, so neither are we capable of doing it to ourselves while we remain fettered by any obstinate prejudice. And as a man who is attached to a prostitute is unfitted to choose or judge of a wife, so any prepossession in favour of a rotten constitution of government will disable us from discerning a good one.
The prejudice of Englishmen, in favour of their own government, by King, Lords and Commons, arises as much or more from national pride than reason. Individuals are undoubtedly safer in England than in some other countries: but the will of the king is as much the law of the land in Britain as in France, with this difference, that instead of proceeding directly from his mouth, it is handed to the people under the formidable shape of an act of parliament. For the fate of Charles the First hath only made kings more subtle — not more just.
Wherefore, laying aside all national pride and prejudice in favour of modes and forms, the plain truth is that IT IS WHOLLY OWING TO THE CONSTITUTION OF THE PEOPLE, AND NOT TO THE CONSTITUTION OF THE GOVERNMENT that the crown is not as oppressive in England as in Turkey.
An inquiry into the CONSTITUTIONAL ERRORS in the English form of government is at this time highly necessary; for as we are never in a proper condition of doing justice to others, while we continue under the influence of some leading partiality, so neither are we capable of doing it to ourselves while we remain fettered by any obstinate prejudice. And as a man who is attached to a prostitute is unfitted to choose or judge of a wife, so any prepossession in favour of a rotten constitution of government will disable us from discerning a good one.
Purchase Our Rights?
It is un-American to require citizens to purchase their rights from government. It is un-American to force individuals to join unions. It is un-American to dictate wages, prices, working conditions, and benefits. It is un-American to legislate from the bench. It is un-American to rule by decree using executive orders to circumvent the legislative process. Forced equality of outcome is a fundamentally un-American goal.
It is un-American to grant special government privileges to one group at the expense of others. It is un-American to subsidize industries, corporations, and technologies. It is un-American to tax some citizens and not others. It is un-American to invade other nations without a declaration of war. It is un-American to take from those who earned and give to those who did not. Redistribution of wealth is the primary objective of socialism; it is a particularly un-American goal.
The Democratic Party has sold out entirely; the Republicans only somewhat less so. Socialist government is like a grizzly bear mauling and devouring everything it encounters. Democrats want to rile it up and point it towards their successful neighbors, while Republicans think they can potty train it to keep its crap out of their family rooms. Libertarians want to kill it, or at least send it back to Canada.
By The Way: Un-American= Unconstitutional IMO
Our thanks to Mark
It is un-American to grant special government privileges to one group at the expense of others. It is un-American to subsidize industries, corporations, and technologies. It is un-American to tax some citizens and not others. It is un-American to invade other nations without a declaration of war. It is un-American to take from those who earned and give to those who did not. Redistribution of wealth is the primary objective of socialism; it is a particularly un-American goal.
The Democratic Party has sold out entirely; the Republicans only somewhat less so. Socialist government is like a grizzly bear mauling and devouring everything it encounters. Democrats want to rile it up and point it towards their successful neighbors, while Republicans think they can potty train it to keep its crap out of their family rooms. Libertarians want to kill it, or at least send it back to Canada.
By The Way: Un-American= Unconstitutional IMO
Our thanks to Mark
Not In The Constitution
I find nothing in the Constitution or Article V that prevents 38 States from creating an amendment as instructed by the people of the many States to say revoke the 14th, 16th and 17th amendments. Then this amendment is submitted to the vote for approval of 38 State legislatures for approval; after which it is resubmitted for a ratification vote by each State. If the amendment is so ratified then it is presented to Congress and it becomes the law of the land.
[or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress;] In other words 3/4 or 38 States can change the Constitution anyway they desire and Congress has no say in the matter.
There is no language that says it cannot be done by direct amendment by 3/4 of the States. There are volumes of writings by the Founders as to nullification and the Article V protections. These methods were devised to allow a peaceful rebellion by the States to protect the people from an oppressive usurping Federal Government and Congress gone wild.
In fact, many said it was the absolute duty of the States [legislators] to protect the people from a usurping government. Many in fact went so far as to say that defense is mandatory on the States to nullify unconstitutional laws.
So, in my estimation there is no prohibition of the use of the Article V amendment process by the States alone.
Article V - Amendment Note1 - Note2 - Note3
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; 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.
[or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress;] In other words 3/4 or 38 States can change the Constitution anyway they desire and Congress has no say in the matter.
There is no language that says it cannot be done by direct amendment by 3/4 of the States. There are volumes of writings by the Founders as to nullification and the Article V protections. These methods were devised to allow a peaceful rebellion by the States to protect the people from an oppressive usurping Federal Government and Congress gone wild.
In fact, many said it was the absolute duty of the States [legislators] to protect the people from a usurping government. Many in fact went so far as to say that defense is mandatory on the States to nullify unconstitutional laws.
So, in my estimation there is no prohibition of the use of the Article V amendment process by the States alone.
Article V - Amendment Note1 - Note2 - Note3
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; 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.
Judges Make Law
(Using British Common Law)
Excerpt
B. Judges Are Lawmakers, Not Just Technicians So what if the Missouri Plan lacks democratic legitimacy? While the politicians in the legislative and executive branches should be democratically elected, judges are not supposed to be politicians, are they? Judges, advocates
of the Missouri Plan argue, should be selected on their professional merit, not their political popularity.52
The problem with this view is that it rests on a one-sided view of the role of a judge. It emphasizes the judge’s role as legal technician at the expense of the judge’s role as lawmaker. Of course, judging does involve the narrow, lawyerly task of applying to the facts of a case the law made by someone other than the judge (e.g., a legislature). But judging also involves
the exercise of discretion. Within the bounds of this discretion, the judge makes law.
This point is not new or controversial. Our common law system – going back centuries to England – rests on judge-made law.53 And judges do not 51. Id. at 154.
52. See, e.g., Honorable Jay A. Daugherty, The Missouri Non-Partisan Court Plan: A Dinosaur on the Edge of Extinction or a Survivor in a Changing Socio-Legal Environment?, 62 MO. L. REV. 315, 318-19 (1997) (“The Plan seeks to improve the selection process and promote superior decision making from the bench by emphasizing professional qualifications rather than political influence.”).
B. Judges Are Lawmakers, Not Just Technicians So what if the Missouri Plan lacks democratic legitimacy? While the politicians in the legislative and executive branches should be democratically elected, judges are not supposed to be politicians, are they? Judges, advocates
of the Missouri Plan argue, should be selected on their professional merit, not their political popularity.52
The problem with this view is that it rests on a one-sided view of the role of a judge. It emphasizes the judge’s role as legal technician at the expense of the judge’s role as lawmaker. Of course, judging does involve the narrow, lawyerly task of applying to the facts of a case the law made by someone other than the judge (e.g., a legislature). But judging also involves
the exercise of discretion. Within the bounds of this discretion, the judge makes law.
This point is not new or controversial. Our common law system – going back centuries to England – rests on judge-made law.53 And judges do not 51. Id. at 154.
52. See, e.g., Honorable Jay A. Daugherty, The Missouri Non-Partisan Court Plan: A Dinosaur on the Edge of Extinction or a Survivor in a Changing Socio-Legal Environment?, 62 MO. L. REV. 315, 318-19 (1997) (“The Plan seeks to improve the selection process and promote superior decision making from the bench by emphasizing professional qualifications rather than political influence.”).
53. See, e.g., Maimon Schwarzschild, Keeping It Private, 44 SAN DIEGO L. REV. 677, 680 (2007) (“For many centuries in England, and well into the twentieth century there and in other English-speaking jurisdictions, the law of tort and contract – the 2009] MISSOURI PLAN IN NATIONAL PERSPECTIVE 767 always find the law; sometimes they make the law and make it in accord with their own political views. This, of course, is the basic reality exposed by Legal Realism nearly a hundred years ago.54 And it is virtually impossible to find anybody who disputes it today. That “we are all realists now” is so thoroughly ccepted as to be a cliché.55 “It is a commonplace that law is ‘political.’”
56. So honesty requires defenders of the Missouri Plan to acknowledge frankly that judges are not merely technicians; they are also lawmakers. Just as it is one-sided to denigrate the technical, lawyerly side of judging by claiming that judges are simply “politicians in robes,”57 it is also one-sided to denigrate the lawmaking side of judging by claiming that the political views of a judge are irrelevant to his or her job as a judge.
56. So honesty requires defenders of the Missouri Plan to acknowledge frankly that judges are not merely technicians; they are also lawmakers. Just as it is one-sided to denigrate the technical, lawyerly side of judging by claiming that judges are simply “politicians in robes,”57 it is also one-sided to denigrate the lawmaking side of judging by claiming that the political views of a judge are irrelevant to his or her job as a judge.
Heart of private law – was mostly judge-made common law, with statutes few and far
between. Even today, much of the law of tort is common law, and although contract law in the United States is substantially governed by the Uniform Commercial Code, the UCC itself is largely a codification or restatement of common law doctrines and rules.”); James E. Herget, Unearthing The Origins of a Radical Idea: The Case of Legal Indeterminacy, 39 AM. J. LEGAL HIST. 59, 64 (1995) (“unlike the continental legal tradition, the common law tradition recognized and accepted as authoritative, the proposition that judges make law”).
54. See, e.g., MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1870-1960, at 169-212 (1992) (legal realism’s most important legacy was its challenge to the notion that law has an autonomous role separate from politics); Michael C. Dorf & Charles F. Sabel, A Constitution of Democratic Experimentalism, 98 COLUM. L. REV. 267, 274 (1998) (“[T]he program of unmasking law as politics [was]
central to American Legal Realism . . . .”); Thomas W. Merrill, High-Level, “Tenured” Lawyers, 61 LAW & CONTEMP. PROBS. 83, 88 (1998) (“We live in a post-Legal Realist Age, when most legal commentators take it for granted that law cannot be disentangled from politics and that legal judgment is driven by the political beliefs of the decisionmaker.”); Frederick Schauer, Do Cases Make Bad Law?, 73 U. CHI. L. REV. 883, 886 (2006) (“Now, having for generations bathed in the teachings of Holmes and the Realists, we heed their lessons. We no longer deny the creative and forward-looking aspect of common law decisionmaking, and we routinely brand those who do as ‘formalists.’ It is thus no longer especially controversial to insist that common law judges make law.”).
55. Brian Leiter, Rethinking Legal Realism: Toward a Naturalized
Link to total document:
http://law.missouri.edu/lawreview/docs/74-3/Ware.pdf [This link is no longer active.]
between. Even today, much of the law of tort is common law, and although contract law in the United States is substantially governed by the Uniform Commercial Code, the UCC itself is largely a codification or restatement of common law doctrines and rules.”); James E. Herget, Unearthing The Origins of a Radical Idea: The Case of Legal Indeterminacy, 39 AM. J. LEGAL HIST. 59, 64 (1995) (“unlike the continental legal tradition, the common law tradition recognized and accepted as authoritative, the proposition that judges make law”).
54. See, e.g., MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1870-1960, at 169-212 (1992) (legal realism’s most important legacy was its challenge to the notion that law has an autonomous role separate from politics); Michael C. Dorf & Charles F. Sabel, A Constitution of Democratic Experimentalism, 98 COLUM. L. REV. 267, 274 (1998) (“[T]he program of unmasking law as politics [was]
central to American Legal Realism . . . .”); Thomas W. Merrill, High-Level, “Tenured” Lawyers, 61 LAW & CONTEMP. PROBS. 83, 88 (1998) (“We live in a post-Legal Realist Age, when most legal commentators take it for granted that law cannot be disentangled from politics and that legal judgment is driven by the political beliefs of the decisionmaker.”); Frederick Schauer, Do Cases Make Bad Law?, 73 U. CHI. L. REV. 883, 886 (2006) (“Now, having for generations bathed in the teachings of Holmes and the Realists, we heed their lessons. We no longer deny the creative and forward-looking aspect of common law decisionmaking, and we routinely brand those who do as ‘formalists.’ It is thus no longer especially controversial to insist that common law judges make law.”).
55. Brian Leiter, Rethinking Legal Realism: Toward a Naturalized
Link to total document:
http://law.missouri.edu/lawreview/docs/74-3/Ware.pdf [This link is no longer active.]
And Uses British Common Law To Do It
It is interesting that Law Schools teach case Law Theory - Stare decisis theory (settled Law by prior cases decisions) and no longer the Constitution and its Rule-by-Law theory.
They cannot twist the Constitution at will so they just adopted the British Common Law System for use in America courts and it's Rule-by-Man theories. It is all based on case law one case becomes the base law for the next case which leads to Stare decisis (settled Law). This is how the courts have usurped the Constitution in my opinion. They are allowed under this system to MAKE LAW not just review as the Constitution calls for. That is why there are now so many Attorneys in America they have created a entire separate set of laws to argue in court keeping the sovereign individual out of the process. The system we now use was created because England has a Parliamentarian Democracy with "NO" Constitution as the base of laws.
America has a Constitution so why are the courts using Common Law and even using foreign courts cases to decide American cases? This must be ended; no one has seen where this legal system was adopted by the legislature of a state or federal?
It seems as though the courts just did what they wanted without adult supervision?
My understanding of the Constitution is that only the legislature can create laws with the assistance of the Executive branch. Judges cannot alter, change, add to, take away or create laws that are the sole responsibility of the other two branches.
They cannot twist the Constitution at will so they just adopted the British Common Law System for use in America courts and it's Rule-by-Man theories. It is all based on case law one case becomes the base law for the next case which leads to Stare decisis (settled Law). This is how the courts have usurped the Constitution in my opinion. They are allowed under this system to MAKE LAW not just review as the Constitution calls for. That is why there are now so many Attorneys in America they have created a entire separate set of laws to argue in court keeping the sovereign individual out of the process. The system we now use was created because England has a Parliamentarian Democracy with "NO" Constitution as the base of laws.
America has a Constitution so why are the courts using Common Law and even using foreign courts cases to decide American cases? This must be ended; no one has seen where this legal system was adopted by the legislature of a state or federal?
It seems as though the courts just did what they wanted without adult supervision?
My understanding of the Constitution is that only the legislature can create laws with the assistance of the Executive branch. Judges cannot alter, change, add to, take away or create laws that are the sole responsibility of the other two branches.
Environmental Protection Agency (EPA)
Let us review the actions of the environmental movements and groups over the last 100 years. First they started by creating huge national parks in effect removing land from the possibility of development. They continued to pass local zoning laws while working at the Federal level to pass laws that they could use to halt or even reduce progress in our economic growth.
Fast forward to the Formation of the EPA and the passage of the Endangered Species Act along with the Clean Water Act, and many other regulating agencies. However for the desire to be somewhat brief let us review how these three acts were used by the various groups to delay, stop, double or triple the costs, and lock up lands in reserves. All endeavors related to advance of our standard of living and growing our employment base [GDP] were slowed or stopped using the courts as weapons backed by the new laws.
First they sued to stop many types of heavy manufacturing [exported to China and India] then they went after highways and delayed some super congested areas for decades. Now that the traffic was so horrid it polluted the air and they sued to stop all industrial expansion due to emissions. From there they went to the CFC and ozone depletion [now gone], dust and particulates, Volatile organic compounds [VOC] [paint drying], dust from farming, smoke from farms burning rice straw.
Fast forward to the Formation of the EPA and the passage of the Endangered Species Act along with the Clean Water Act, and many other regulating agencies. However for the desire to be somewhat brief let us review how these three acts were used by the various groups to delay, stop, double or triple the costs, and lock up lands in reserves. All endeavors related to advance of our standard of living and growing our employment base [GDP] were slowed or stopped using the courts as weapons backed by the new laws.
First they sued to stop many types of heavy manufacturing [exported to China and India] then they went after highways and delayed some super congested areas for decades. Now that the traffic was so horrid it polluted the air and they sued to stop all industrial expansion due to emissions. From there they went to the CFC and ozone depletion [now gone], dust and particulates, Volatile organic compounds [VOC] [paint drying], dust from farming, smoke from farms burning rice straw.
Air was not getting enough done so they found a new way to sue and delay stop or increase the costs of all kinds of economic activity - it was to find a bird, bug, or plant that was possibly endangered. The spotted owl is an example where they got the lumber industry closed in N. Californian and Oregon only later to find out it was no endangered species after all. They stopped a new telescope for the University of Arizona to protect a small animal that was a possible subspecies. Next they moved to the farms of California and the kangaroo rat subspecies forcing farmers to stop using their land and cities stopped all building on lots where the rat might be?
Before these examples they stopped the Tennessee Valley Authority huge damn - flood control and power generation project after hundreds of millions had been spent and construction was well underway. The little animal called a snail darter was alleged to be endangered by the environmentalist groups and again they sued and actually got the project shut down and made them remove the improvements made. All this and later they found the snail darter was not at risk.
This kind of thing is happening across the nation as we discuss the issue - California farmers had their contracted water shut off by the court and thousand were unemployed for years by a small fish. In Texas ground water from limestone underground aquifers is being limited after they sued and found some small bugs, and animals in these caves that were not found outside the cave system. These cave systems go for hundreds or thousands of miles and have never been fully explored or had bio-studies completed so it is easy to stop projects.
Before these examples they stopped the Tennessee Valley Authority huge damn - flood control and power generation project after hundreds of millions had been spent and construction was well underway. The little animal called a snail darter was alleged to be endangered by the environmentalist groups and again they sued and actually got the project shut down and made them remove the improvements made. All this and later they found the snail darter was not at risk.
This kind of thing is happening across the nation as we discuss the issue - California farmers had their contracted water shut off by the court and thousand were unemployed for years by a small fish. In Texas ground water from limestone underground aquifers is being limited after they sued and found some small bugs, and animals in these caves that were not found outside the cave system. These cave systems go for hundreds or thousands of miles and have never been fully explored or had bio-studies completed so it is easy to stop projects.
The next big target was energy production. The environmental groups have sued to stop off shore drilling, on land drilling, pipelines, nuclear power plants, gas powered power plants, coal fired power plants, solar power plants, wind turbine farms, and in fact they have fought any energy production system. They burn SUVs, they sit in trees, they riot in the streets, and they fight any advancement of our energy industry.
All this leaves a series of questions - why do the environmental and the Progressive movements fight and stop all these things from growing the economy even if they are not polluting? They want to stop farming and reduce the acreage being farmed, they want less energy to be produced, and they want people to live in high density urbane high rise apartments like Asia and Europe. One of the chief scientists said in an interview some years back that the groups he represented wanted humans to reduce their numbers to what they have determined to be a sustainable number which is about 1/3 of the current population. Are you ready to limit human numbers and issue birth permits so we can remove 2/3 of the people now on planet earth?
Progressive elite educated environmentalists are very extreme and they have set the rules of how America picks winners and losers in our industrial manufacturing economies - it is apparent if one really looks at the total elimination of the skilled blue collar middle class employers with arbitrary regulations and misuse of laws meant to applied fairly and not to be a club to use in courts to beat the possible profits out of any economic activity.
All this leaves a series of questions - why do the environmental and the Progressive movements fight and stop all these things from growing the economy even if they are not polluting? They want to stop farming and reduce the acreage being farmed, they want less energy to be produced, and they want people to live in high density urbane high rise apartments like Asia and Europe. One of the chief scientists said in an interview some years back that the groups he represented wanted humans to reduce their numbers to what they have determined to be a sustainable number which is about 1/3 of the current population. Are you ready to limit human numbers and issue birth permits so we can remove 2/3 of the people now on planet earth?
Progressive elite educated environmentalists are very extreme and they have set the rules of how America picks winners and losers in our industrial manufacturing economies - it is apparent if one really looks at the total elimination of the skilled blue collar middle class employers with arbitrary regulations and misuse of laws meant to applied fairly and not to be a club to use in courts to beat the possible profits out of any economic activity.
TOP ACTIVIST SAYS ENVIRONMENTAL MOVEMENT IS FAILING
March 25, 2013 Michael Bastasch
In advance of a talk at the University of Louisville, CBS News environmental contributor and lead scientist at the Nature Conservancy M. Sanjayan told the Courier-Journal that the environmental movement was failing.
“On virtually every measure, the environmental movement is not keeping up with the needs at hand,” Sanjayan told the Journal.
“Species extinction, deforestation, climate change — we are playing and have been for two decades a rear-guard action,” Sanjayan added. “We are slowing the decline, perhaps, but not nearly enough. We don’t have a movement. We have a niche. It’s mostly mono-chromatic in culture, in political belief, and in socioeconomic status.”
Sanjayan said that the environmental movement was fractured and that environmentalists needed to demonstrate the value of nature to businesses, include more rural people in the movement, and motivate young people.
“And we need the type of messengers who can be both thought- and inspirational- leaders to people from all walks of life, more representative of the planet we are trying to save,” he said.
“The cost of doing nothing is catastrophic,” Sanjayan said. “But for a relatively modest amount per person, basically a latte a week, we can dramatically alter our climate profile for the future.”
Sanjayan said that the developed world needed to invest in technology and tax carbon emissions to help address climate change. He added that people in developed countries needed to modify their behaviors as well.
“In the developing world we need leaders to acknowledge that they are part of the problem as well, and while their needs in absolute terms are great, their ability to leap-frog is also great,” Sanjayan said. “And investing in the future is better than following our path to development.”
Despite Sanjayan’s concerns, the Obama administration threatened to use his executive authority to tackle climate change, if Congress failed to act on the issue.
The administration has already used the Environmental Protection Agency to set stricter emissions standards for power plants. Last year, the American Coalition for Clean Coal Electricity reported that within the next three to five years more than 200 coal-fired electric generating units will be shuttered across 25 states due to EPA regulations and other factors, including low-priced natural gas.
Obama’s EPA nominee Gina McCarthy has drawn criticism for her role in advancing aggressive regulations on fossil fuel energy sources.
“Throughout her career McCarthy has implemented policies that attempt to constrain the use of reliable energy sources,” said Institute for Energy Research President Thomas Pyle. “As the EPA Assistant Administrator for the Office of Air and Radiation, McCarthy has played a large role in the shuttering of coal-fired power plants around the country, which has resulted in tens of thousands of layoffs and permanent job losses.”
Furthermore, efforts by environmental groups have led to the shutdown of coal plant across the country. Recently environmentalists won obtained a legal settlement forcing a utility to stop burning coal at plants in Indiana, Ohio and Kentucky,bringing the total of announced or actual coal plant retirements nationwide to 142 since 2010.
Coal-fired power makes up 79 percent of carbon emissions — a greenhouse gas — from electricity generation, according to the Energy Information Administration.
http://dailycaller.com/2013/03/25/top-activist-says-environmental-movement-is-failing/#ixzz2Oeohnmbj
In advance of a talk at the University of Louisville, CBS News environmental contributor and lead scientist at the Nature Conservancy M. Sanjayan told the Courier-Journal that the environmental movement was failing.
“On virtually every measure, the environmental movement is not keeping up with the needs at hand,” Sanjayan told the Journal.
“Species extinction, deforestation, climate change — we are playing and have been for two decades a rear-guard action,” Sanjayan added. “We are slowing the decline, perhaps, but not nearly enough. We don’t have a movement. We have a niche. It’s mostly mono-chromatic in culture, in political belief, and in socioeconomic status.”
Sanjayan said that the environmental movement was fractured and that environmentalists needed to demonstrate the value of nature to businesses, include more rural people in the movement, and motivate young people.
“And we need the type of messengers who can be both thought- and inspirational- leaders to people from all walks of life, more representative of the planet we are trying to save,” he said.
“The cost of doing nothing is catastrophic,” Sanjayan said. “But for a relatively modest amount per person, basically a latte a week, we can dramatically alter our climate profile for the future.”
Sanjayan said that the developed world needed to invest in technology and tax carbon emissions to help address climate change. He added that people in developed countries needed to modify their behaviors as well.
“In the developing world we need leaders to acknowledge that they are part of the problem as well, and while their needs in absolute terms are great, their ability to leap-frog is also great,” Sanjayan said. “And investing in the future is better than following our path to development.”
Despite Sanjayan’s concerns, the Obama administration threatened to use his executive authority to tackle climate change, if Congress failed to act on the issue.
The administration has already used the Environmental Protection Agency to set stricter emissions standards for power plants. Last year, the American Coalition for Clean Coal Electricity reported that within the next three to five years more than 200 coal-fired electric generating units will be shuttered across 25 states due to EPA regulations and other factors, including low-priced natural gas.
Obama’s EPA nominee Gina McCarthy has drawn criticism for her role in advancing aggressive regulations on fossil fuel energy sources.
“Throughout her career McCarthy has implemented policies that attempt to constrain the use of reliable energy sources,” said Institute for Energy Research President Thomas Pyle. “As the EPA Assistant Administrator for the Office of Air and Radiation, McCarthy has played a large role in the shuttering of coal-fired power plants around the country, which has resulted in tens of thousands of layoffs and permanent job losses.”
Furthermore, efforts by environmental groups have led to the shutdown of coal plant across the country. Recently environmentalists won obtained a legal settlement forcing a utility to stop burning coal at plants in Indiana, Ohio and Kentucky,bringing the total of announced or actual coal plant retirements nationwide to 142 since 2010.
Coal-fired power makes up 79 percent of carbon emissions — a greenhouse gas — from electricity generation, according to the Energy Information Administration.
http://dailycaller.com/2013/03/25/top-activist-says-environmental-movement-is-failing/#ixzz2Oeohnmbj
CO2 Report Debunks Climate Change Catastrophes
For decades, climate change alarmists have generated a host of doomsday scenarios, all based on the theory of anthropogenic global warming: human CO2 emissions will force Earth's climate to warm uncontrollably causing all manner of unpleasantness. A new study, published by the Center for the Study of Carbon Dioxide and Global Change, addresses the major predicted effects of global warming head on. Making extensive use of peer reviewed research papers, the dire predictions of climate alarmists are demolished point by point. In fact, the authors conclude that rising atmospheric CO2 concentrations associated with the development of the Industrial Revolution have actually been good for the planet.
The 168 page report, “Carbon Dioxide and Earth’s Future: Pursuing the Prudent Path,” authored by Craig D. Idso and Sherwood B. Idso, addresses the bewildering morass of climate change disinformation using solid science to refute predictions of future environmental disaster. As the authors' state “The villain of the story is industrial man, who has "altered the course of nature" by releasing large quantities of carbon dioxide into the air via the burning of coal, gas and oil.” The questions the report addresses are framed in the executive summary:
As presently constituted, earth’s atmosphere contains just slightly less than 400 ppm of the colorless and odorless gas we call carbon dioxide or CO2. That’s only four-hundredths of one percent. Consequently, even if the air's CO2 concentration was tripled, carbon dioxide would still comprise only a little over one tenth of one percent of the air we breathe, which is far less than what wafted through earth’s atmosphere eons ago, when the planet was a virtual garden place. Nevertheless, a small increase in this minuscule amount of CO2 is frequently predicted to produce a suite of dire environmental consequences, including dangerous global warming, catastrophic sea level rise, reduced agricultural output, and the destruction of many natural ecosystems, as well as dramatic increases in extreme weather phenomena, such as droughts, floods and hurricanes.
As strange as it may seem, these frightening future scenarios are derived from a single source of information: the ever-evolving computer-driven climate models that presume to reduce the important physical, chemical and biological processes that combine to determine the state of earth’s climate into a set of mathematical equations out of which their forecasts are produced. But do we really know what all of those complex and interacting processes are? And even if we did -- which we don't -- could we correctly reduce them into manageable computer code so as to produce reliable forecasts 50 or 100 years into the future?
Craig D. Idso, who is the founder and chairman of the board of the Center for the Study of Carbon Dioxide and Global Change, has a PhD in Geography from Arizona State University. He is the brother of Keith E. Idso and son of Sherwood B. Idso. In 2009 he coauthored the book “CO2, Global Warming and Species Extinctions: Prospects for the Future” with his father.
Sherwood B. Idso assumed the Presidency of the Center for the Study of Carbon Dioxide and Global Change on 4 October 2001. Prior to that time he was a Research Physicist with the US Department of Agriculture's Agricultural Research Service at the US Water Conservation Laboratory in Phoenix, Arizona.
Dr. Idso is the author or co-author of over 500 scientific publications including the books Carbon Dioxide: Friend or Foe? (1982) and Carbon Dioxide and Global Change: Earth in Transition (1989). He served on the editorial board of the international journal Agricultural and Forest Meteorology from 1973 to 1993 and since 1993 has served on the editorial board of Environmental and Experimental Botany. Over the course of his career, he has been an invited reviewer of manuscripts for 56 different scientific journals and 17 different funding agencies, representing an unusually large array of disciplines. In other words, he is very much a main stream environmental scientist.
According to Idso and Idso's detailed analysis, real-world observations fail to confirm essentially all of the alarming predictions made by global warming catastrophists and, in the case of climate models, they reveal many shortcomings and inadequacies. Observation of nature demonstrates that, even though the world has warmed substantially over the past century or more, none of the nasty environmental side effects that are predicted by climate alarmists has ever come to pass.
The report directly addresses ten different assertions made by the IPCC reports and associated climate scientists. All are purported to be a direct result of rising atmospheric CO2 levels—levels that are being driven by human activity. Here are the specific charges that are examined:
Unprecedented Warming of the Planet — With respect to air temperature, the climate-alarmist contention is multifaceted. It is claimed that over the past several decades: (a) earth’s temperature has risen to a level that is unprecedented over the past millennium or more, (b) the world has been warming at a rate that is equally unprecedented, and (c) both of these dubious achievements have been made possible by the similarly unprecedented magnitude of anthropogenic CO2 emissions, due to humanity’s ever-increasing burning of fossil fuels such as coal, gas and oil.
The 168 page report, “Carbon Dioxide and Earth’s Future: Pursuing the Prudent Path,” authored by Craig D. Idso and Sherwood B. Idso, addresses the bewildering morass of climate change disinformation using solid science to refute predictions of future environmental disaster. As the authors' state “The villain of the story is industrial man, who has "altered the course of nature" by releasing large quantities of carbon dioxide into the air via the burning of coal, gas and oil.” The questions the report addresses are framed in the executive summary:
As presently constituted, earth’s atmosphere contains just slightly less than 400 ppm of the colorless and odorless gas we call carbon dioxide or CO2. That’s only four-hundredths of one percent. Consequently, even if the air's CO2 concentration was tripled, carbon dioxide would still comprise only a little over one tenth of one percent of the air we breathe, which is far less than what wafted through earth’s atmosphere eons ago, when the planet was a virtual garden place. Nevertheless, a small increase in this minuscule amount of CO2 is frequently predicted to produce a suite of dire environmental consequences, including dangerous global warming, catastrophic sea level rise, reduced agricultural output, and the destruction of many natural ecosystems, as well as dramatic increases in extreme weather phenomena, such as droughts, floods and hurricanes.
As strange as it may seem, these frightening future scenarios are derived from a single source of information: the ever-evolving computer-driven climate models that presume to reduce the important physical, chemical and biological processes that combine to determine the state of earth’s climate into a set of mathematical equations out of which their forecasts are produced. But do we really know what all of those complex and interacting processes are? And even if we did -- which we don't -- could we correctly reduce them into manageable computer code so as to produce reliable forecasts 50 or 100 years into the future?
Craig D. Idso, who is the founder and chairman of the board of the Center for the Study of Carbon Dioxide and Global Change, has a PhD in Geography from Arizona State University. He is the brother of Keith E. Idso and son of Sherwood B. Idso. In 2009 he coauthored the book “CO2, Global Warming and Species Extinctions: Prospects for the Future” with his father.
Sherwood B. Idso assumed the Presidency of the Center for the Study of Carbon Dioxide and Global Change on 4 October 2001. Prior to that time he was a Research Physicist with the US Department of Agriculture's Agricultural Research Service at the US Water Conservation Laboratory in Phoenix, Arizona.
Dr. Idso is the author or co-author of over 500 scientific publications including the books Carbon Dioxide: Friend or Foe? (1982) and Carbon Dioxide and Global Change: Earth in Transition (1989). He served on the editorial board of the international journal Agricultural and Forest Meteorology from 1973 to 1993 and since 1993 has served on the editorial board of Environmental and Experimental Botany. Over the course of his career, he has been an invited reviewer of manuscripts for 56 different scientific journals and 17 different funding agencies, representing an unusually large array of disciplines. In other words, he is very much a main stream environmental scientist.
According to Idso and Idso's detailed analysis, real-world observations fail to confirm essentially all of the alarming predictions made by global warming catastrophists and, in the case of climate models, they reveal many shortcomings and inadequacies. Observation of nature demonstrates that, even though the world has warmed substantially over the past century or more, none of the nasty environmental side effects that are predicted by climate alarmists has ever come to pass.
The report directly addresses ten different assertions made by the IPCC reports and associated climate scientists. All are purported to be a direct result of rising atmospheric CO2 levels—levels that are being driven by human activity. Here are the specific charges that are examined:
Unprecedented Warming of the Planet — With respect to air temperature, the climate-alarmist contention is multifaceted. It is claimed that over the past several decades: (a) earth’s temperature has risen to a level that is unprecedented over the past millennium or more, (b) the world has been warming at a rate that is equally unprecedented, and (c) both of these dubious achievements have been made possible by the similarly unprecedented magnitude of anthropogenic CO2 emissions, due to humanity’s ever-increasing burning of fossil fuels such as coal, gas and oil.
More Frequent and Severe Floods and Droughts — As a result of the global warming and change in weather patterns that climate models predict will occur in response to the ongoing rise in the air’s CO2 content, it is claimed that floods and droughts will become both more numerous and severe throughout the world.
More Frequent and Severe Hurricanes — CO2-induced global warming will increase the frequency, intensity and duration of hurricanes.
Rising Sea Levels Inundating Coastal Lowlands — Anthropogenic-induced global warming will lead to rapidly melting polar ice sheets, rapidly rising sea levels and catastrophic coastal flooding.
More Frequent and Severe Storms — Among the many highly-publicized catastrophic consequences that climate alarmists contend will attend the ongoing rise in the air’s CO2 content are predicted increases in the frequency and severity of a variety of different types of storms.
Increased Human Mortality — Human mortality will escalate due to increasingly more severe and frequent heat waves, as well as a result of the enhanced spreading abroad of numerous vector-borne diseases, all brought about by CO2-induced global warming.
Widespread Plant and Animal Extinctions — With respect to plants and animals, global warming alarmists have long contended that the increase in temperature predicted to result from the ongoing rise in the atmosphere’s CO2 concentration will be so great and occur so fast that many species of plants and animals will not be able to migrate poleward in latitude or upward in elevation rapidly enough to avoid extinction.
Declining Vegetative Productivity — Rising temperatures and increased weather extremes will decimate the productivity of critical earth ecosystems.
Frequent Coral Bleaching — Rising ocean temperatures driven by CO2-induced global warming is killing the world's corals.
Marine Life Dissolving Away in Acidified Oceans — Rising atmospheric CO2 concentrations are lowering seawater pH, resulting in reduced calcification, metabolism, fertility, growth and survival of many marine species.
Resilient Earth readers will find all of these claims familiar and searching our site will return many articles addressing these same topics. The great service that the Idso study performs is consolidating many lucid counter arguments and a wealth of supporting references in a single document. It would be hard to do justice to each of the ten categories in a single blog post so, instead, I will try to capture the flavor of the study by examining the first topic, Unprecedented Warming of the Planet.
Unprecedented Warming of the Planet
The authors begin by quoting work done by Petit et al. in 1999 (see “Climate and atmospheric history of the past 420,000 years from the Vostok ice core, Antarctica”). They found that during the Holocene, which is actually just the latest in a long series of interglacial periods, peak temperatures have been the coldest of the last five interglacials. The four interglacials that preceded the Holocene were, on average, more than 2°C warmer (see figure below).
More Frequent and Severe Hurricanes — CO2-induced global warming will increase the frequency, intensity and duration of hurricanes.
Rising Sea Levels Inundating Coastal Lowlands — Anthropogenic-induced global warming will lead to rapidly melting polar ice sheets, rapidly rising sea levels and catastrophic coastal flooding.
More Frequent and Severe Storms — Among the many highly-publicized catastrophic consequences that climate alarmists contend will attend the ongoing rise in the air’s CO2 content are predicted increases in the frequency and severity of a variety of different types of storms.
Increased Human Mortality — Human mortality will escalate due to increasingly more severe and frequent heat waves, as well as a result of the enhanced spreading abroad of numerous vector-borne diseases, all brought about by CO2-induced global warming.
Widespread Plant and Animal Extinctions — With respect to plants and animals, global warming alarmists have long contended that the increase in temperature predicted to result from the ongoing rise in the atmosphere’s CO2 concentration will be so great and occur so fast that many species of plants and animals will not be able to migrate poleward in latitude or upward in elevation rapidly enough to avoid extinction.
Declining Vegetative Productivity — Rising temperatures and increased weather extremes will decimate the productivity of critical earth ecosystems.
Frequent Coral Bleaching — Rising ocean temperatures driven by CO2-induced global warming is killing the world's corals.
Marine Life Dissolving Away in Acidified Oceans — Rising atmospheric CO2 concentrations are lowering seawater pH, resulting in reduced calcification, metabolism, fertility, growth and survival of many marine species.
Resilient Earth readers will find all of these claims familiar and searching our site will return many articles addressing these same topics. The great service that the Idso study performs is consolidating many lucid counter arguments and a wealth of supporting references in a single document. It would be hard to do justice to each of the ten categories in a single blog post so, instead, I will try to capture the flavor of the study by examining the first topic, Unprecedented Warming of the Planet.
Unprecedented Warming of the Planet
The authors begin by quoting work done by Petit et al. in 1999 (see “Climate and atmospheric history of the past 420,000 years from the Vostok ice core, Antarctica”). They found that during the Holocene, which is actually just the latest in a long series of interglacial periods, peak temperatures have been the coldest of the last five interglacials. The four interglacials that preceded the Holocene were, on average, more than 2°C warmer (see figure below).
Proxy temperature anomalies derived by Petit et al.
This position is backed up with a more recent study (2009) by L. C. Sime et al. (see “Evidence for warmer interglacials in East Antarctic ice cores”). According to that paper the “maximum interglacial temperatures over the past 340,000 years were between 6.0°C and 10.0°C above present-day values.” These findings led Idso and Idso to conclude that temperatures during the current interglacial were indeed unusual, but not unusually warm—quite to the contrary, they have been unusually cool.
They also discuss more recent temperature history citing work by F. C. Ljungqvist, who developed a 2000-year temperature history of the extra-tropical portion of the Northern Hemisphere (30-90° North Latitude). Contrary to attempts by Mann et al. to rewrite the temperature history of the last 2000 years, Ljungqvist found “a Roman Warm Period c. AD 1-300, a Dark Age Cold Period c. AD 300-800, a Medieval Warm Period c. AD 800-1300 and a Little Ice Age c. AD 1300-1900, followed by the twentieth-century warming.” These data are shown below.
This position is backed up with a more recent study (2009) by L. C. Sime et al. (see “Evidence for warmer interglacials in East Antarctic ice cores”). According to that paper the “maximum interglacial temperatures over the past 340,000 years were between 6.0°C and 10.0°C above present-day values.” These findings led Idso and Idso to conclude that temperatures during the current interglacial were indeed unusual, but not unusually warm—quite to the contrary, they have been unusually cool.
They also discuss more recent temperature history citing work by F. C. Ljungqvist, who developed a 2000-year temperature history of the extra-tropical portion of the Northern Hemisphere (30-90° North Latitude). Contrary to attempts by Mann et al. to rewrite the temperature history of the last 2000 years, Ljungqvist found “a Roman Warm Period c. AD 1-300, a Dark Age Cold Period c. AD 300-800, a Medieval Warm Period c. AD 800-1300 and a Little Ice Age c. AD 1300-1900, followed by the twentieth-century warming.” These data are shown below.
Reconstructed extra-tropical (30-90°N) mean decadal temperature variations
These alternating warm/cold periods, in Ljungqvist's words, “probably represent the much discussed quasi-cyclical c. 1470 ± 500-year Bond Cycles (Bond and Lotti, 1995; O’Brien et al., 1995; Bond et al., 1997, 2001; Oppo, 1997),” which “affected both Scandinavia and northwest North America synchronically (Denton and Karlen, 1973)” and have “subsequently also been observed in China (Hong et al., 2009a,b), the mid-latitude North Pacific (Isono et al., 2009) and in North America (Viau et al., 2006), and have been shown to very likely have affected the whole Northern Hemisphere during the Holocene (Butikofer, 2007; Wanner et al., 2008; Wanner and Butikofer, 2008), or even been global (Mayewski et al., 2004).” As can be seen, the Idso report is replete with references.
The section ends with an analysis of the impact of CO2 on Earth's temperature. The observed disconnect between temperature and atmospheric CO2 levels is examined and the amount of CO2 increase is put into perspective. Much more detail is available in the actual report but here is how the chapter ends:
In light of these results, it is difficult to claim much about the strength of the warming power of the approximate 75-ppm increase in the atmosphere’s CO2 concentration that occurred from 1875 to 2000, other than to say it was miniscule compared to whatever other forcing factor, or combination of forcing factors, was concurrently having its way with the climate of the Arctic. One cannot, for example, claim that any of the 1917 to 1937 warming was due to the 8-ppm increase in CO2 that accompanied it, even if augmented by the 12-ppm increase that occurred between 1875 and 1917; for the subsequent and much larger 55-ppm increase in CO2 led to no net warming over the remainder of the record, which suggests that just a partial relaxation of the forces that totally overwhelmed the warming influence of the CO2 increase experienced between 1937 and 2000 would have been sufficient to account for the temperature increase that occurred between 1917 and 1937. And understood in this light, the air’s CO2 content does not even begin to enter the picture.
Its detailed level of analysis and abundance of references make this study an invaluable asset for climate change skeptics everywhere. If you have any interest in climate change and the global warming debate I urge you to download the PDF today. Perhaps the most controversial portion of the document is the closing commentary, in which the case is made that rising CO2 emissions are actually a blessing and something humanity should not try to stop. Their stand echos sentiments expressed in my post “The Case For Doing Nothing About Global Warming.” Here is how the report concludes.
We humans, as stewards of the earth, have got to get our priorities straight. We must do all that we possibly can, in order to preserve nature by helping to feed humanity and raise living standards the world over; and to do so successfully, we have got to let the air's CO2 content maintain its natural upward course for many decades to come. This is the prudent path we must pursue.
No doubt that statement will raise the ire of traditional climate scientists. Irrespective of the actual findings, this document stands as proof that claims of scientific consensus are bunk, that no respected scientists doubt the global warming gospel. Both Idso's are established scientist and the elder Idso is an Institute for Scientific Information (ISI) highly cited researcher. Together, these two skeptical scientists have driven another sizable nail into the coffin of anthropogenic global warming.
Science marches on as it always does: weak and erroneous theories are discarded along the way based on the strength of observed real-world phenomena. No incorrect theory can survive forever, no mater how insistent or how vocal its supporting clique of self-serving scientists is. So it will be with anthropogenic global warming. AGW will rank with perpetual motion machines and Piltdown man in the scientific fraud hall of fame, an object of ridicule and derision, and a cautionary tail for future generations of scientists—this is not how science is supposed to be done.
Be safe, enjoy the interglacial and stay skeptical.
http://theresilientearth.com/?q=content/co2-report-debunks-climate-change-catastrophes
These alternating warm/cold periods, in Ljungqvist's words, “probably represent the much discussed quasi-cyclical c. 1470 ± 500-year Bond Cycles (Bond and Lotti, 1995; O’Brien et al., 1995; Bond et al., 1997, 2001; Oppo, 1997),” which “affected both Scandinavia and northwest North America synchronically (Denton and Karlen, 1973)” and have “subsequently also been observed in China (Hong et al., 2009a,b), the mid-latitude North Pacific (Isono et al., 2009) and in North America (Viau et al., 2006), and have been shown to very likely have affected the whole Northern Hemisphere during the Holocene (Butikofer, 2007; Wanner et al., 2008; Wanner and Butikofer, 2008), or even been global (Mayewski et al., 2004).” As can be seen, the Idso report is replete with references.
The section ends with an analysis of the impact of CO2 on Earth's temperature. The observed disconnect between temperature and atmospheric CO2 levels is examined and the amount of CO2 increase is put into perspective. Much more detail is available in the actual report but here is how the chapter ends:
In light of these results, it is difficult to claim much about the strength of the warming power of the approximate 75-ppm increase in the atmosphere’s CO2 concentration that occurred from 1875 to 2000, other than to say it was miniscule compared to whatever other forcing factor, or combination of forcing factors, was concurrently having its way with the climate of the Arctic. One cannot, for example, claim that any of the 1917 to 1937 warming was due to the 8-ppm increase in CO2 that accompanied it, even if augmented by the 12-ppm increase that occurred between 1875 and 1917; for the subsequent and much larger 55-ppm increase in CO2 led to no net warming over the remainder of the record, which suggests that just a partial relaxation of the forces that totally overwhelmed the warming influence of the CO2 increase experienced between 1937 and 2000 would have been sufficient to account for the temperature increase that occurred between 1917 and 1937. And understood in this light, the air’s CO2 content does not even begin to enter the picture.
Its detailed level of analysis and abundance of references make this study an invaluable asset for climate change skeptics everywhere. If you have any interest in climate change and the global warming debate I urge you to download the PDF today. Perhaps the most controversial portion of the document is the closing commentary, in which the case is made that rising CO2 emissions are actually a blessing and something humanity should not try to stop. Their stand echos sentiments expressed in my post “The Case For Doing Nothing About Global Warming.” Here is how the report concludes.
We humans, as stewards of the earth, have got to get our priorities straight. We must do all that we possibly can, in order to preserve nature by helping to feed humanity and raise living standards the world over; and to do so successfully, we have got to let the air's CO2 content maintain its natural upward course for many decades to come. This is the prudent path we must pursue.
No doubt that statement will raise the ire of traditional climate scientists. Irrespective of the actual findings, this document stands as proof that claims of scientific consensus are bunk, that no respected scientists doubt the global warming gospel. Both Idso's are established scientist and the elder Idso is an Institute for Scientific Information (ISI) highly cited researcher. Together, these two skeptical scientists have driven another sizable nail into the coffin of anthropogenic global warming.
Science marches on as it always does: weak and erroneous theories are discarded along the way based on the strength of observed real-world phenomena. No incorrect theory can survive forever, no mater how insistent or how vocal its supporting clique of self-serving scientists is. So it will be with anthropogenic global warming. AGW will rank with perpetual motion machines and Piltdown man in the scientific fraud hall of fame, an object of ridicule and derision, and a cautionary tail for future generations of scientists—this is not how science is supposed to be done.
Be safe, enjoy the interglacial and stay skeptical.
http://theresilientearth.com/?q=content/co2-report-debunks-climate-change-catastrophes
The Keystone Pipeline System
Keystone is a pipeline system to transport petroleum products from Canada and the northern United States "primarily to refineries in the Gulf Coast" of Texas.
The Keystone XL proposal faced lawsuits from oil refineries and criticism from environmentalists and some members of the United States Congress.
In January 2012, President Barack Obama rejected the application amid protests about the pipeline's impact on Nebraska's environmentally sensitive Sand Hills region. TransCanada changed the original proposed route of Keystone XL to minimize "disturbance of land, water resources and special areas" and the new route was approved by Nebraska Governor Dave Heineman in January 2013.
On March 22, 2012, Obama endorsed the building of its southern half that begins in Cushing, Okla. The President said in Cushing OK on March 22, “Today, I’m directing my administration to cut through the red tape, break through the bureaucratic hurdles, and make this project a priority, to go ahead and get it done.”
In its Supplemental Environmental Impact Statement (SEIS) released for public scrutiny in March 2013, the United States Department of State Bureau of Oceans and International Environmental and Scientific Affairs, described a number of changes to the original proposals including the shortening of the pipeline to 875 miles (1,408 km); its avoidance of "crossing the NDEQ-identified Sand Hills Region" and "reduction of the length of pipeline crossing the Northern High Plains Aquifer system, which includes the Ogallala formation (USSD SEIS March 1, 2013 ES-22)"; and stated "there would be no significant impacts to most resources along the proposed Project route."
In response to the Department of State's report which recommended neither acceptance nor rejection, the editor of the New York Times recommended that President Obama, who acknowledges climate change as one of humanity's "most challenging issues", should reject the project which "even by the State Department’s most cautious calculations — can only add to the problem (The Editor. March 10, 2013. New York Times)."
You may continue the rest of this article at:
http://en.wikipedia.org/wiki/Keystone_Pipeline
The Keystone XL proposal faced lawsuits from oil refineries and criticism from environmentalists and some members of the United States Congress.
In January 2012, President Barack Obama rejected the application amid protests about the pipeline's impact on Nebraska's environmentally sensitive Sand Hills region. TransCanada changed the original proposed route of Keystone XL to minimize "disturbance of land, water resources and special areas" and the new route was approved by Nebraska Governor Dave Heineman in January 2013.
On March 22, 2012, Obama endorsed the building of its southern half that begins in Cushing, Okla. The President said in Cushing OK on March 22, “Today, I’m directing my administration to cut through the red tape, break through the bureaucratic hurdles, and make this project a priority, to go ahead and get it done.”
In its Supplemental Environmental Impact Statement (SEIS) released for public scrutiny in March 2013, the United States Department of State Bureau of Oceans and International Environmental and Scientific Affairs, described a number of changes to the original proposals including the shortening of the pipeline to 875 miles (1,408 km); its avoidance of "crossing the NDEQ-identified Sand Hills Region" and "reduction of the length of pipeline crossing the Northern High Plains Aquifer system, which includes the Ogallala formation (USSD SEIS March 1, 2013 ES-22)"; and stated "there would be no significant impacts to most resources along the proposed Project route."
In response to the Department of State's report which recommended neither acceptance nor rejection, the editor of the New York Times recommended that President Obama, who acknowledges climate change as one of humanity's "most challenging issues", should reject the project which "even by the State Department’s most cautious calculations — can only add to the problem (The Editor. March 10, 2013. New York Times)."
You may continue the rest of this article at:
http://en.wikipedia.org/wiki/Keystone_Pipeline
Natural Born Citizens
This is a 14th Amendment issue of "NATURAL BORN" and what the Court says is their position.
SCOTUS cases on issue - the Slaughter house case addresses citizenship as a citizen of the United States of America and a separate citizenship of an individual State. The others all come off Slaughter and show the new found power of reach through to the States by the Federal government and the courts. Ending and diminishing States rights and powers. If the Founders intended the Bill of Rights to apply to the States, would they have not spelled that out in detail?
We have debated this many times but There are those that keep trying to say that the SCOTUS must define Natural Born - that is not within their power nor is it going to rule on that issue; it would at best specify a conflict and send it to Congress for legislative action - IMHO
Here's a case from 1983 affirming that an anchor baby is a Natural Born.
http://www.lanepowell.com/15164/practical-problems-with-attempts-to-change-the-fourteenth-amendment-through-an-interstate-birth-certificate-compact/ [This link is no longer active.]
see also, e.g., Diaz-Salazar v. I.N.S., 700 F.2d 1156, 1160 (7th Cir. 1983) (noting in its recitation of the facts that despite the fact father was not a citizen of the United States, he had children who were “natural-born citizens of the United States”), cert. denied 462 U.S. 1132, 103 S. Ct. 3112 (1983).
http://law2.umkc.edu/faculty/projects/ftrials/conlaw/slaughter.html
http://law2.umkc.edu/faculty/projects/ftrials/conlaw/adamson.html
http://law2.umkc.edu/faculty/projects/ftrials/conlaw/duncan.html
http://law2.umkc.edu/faculty/projects/ftrials/conlaw/mcdonaldvchica... [This link is no longer active]
SCOTUS cases on issue - the Slaughter house case addresses citizenship as a citizen of the United States of America and a separate citizenship of an individual State. The others all come off Slaughter and show the new found power of reach through to the States by the Federal government and the courts. Ending and diminishing States rights and powers. If the Founders intended the Bill of Rights to apply to the States, would they have not spelled that out in detail?
We have debated this many times but There are those that keep trying to say that the SCOTUS must define Natural Born - that is not within their power nor is it going to rule on that issue; it would at best specify a conflict and send it to Congress for legislative action - IMHO
Here's a case from 1983 affirming that an anchor baby is a Natural Born.
http://www.lanepowell.com/15164/practical-problems-with-attempts-to-change-the-fourteenth-amendment-through-an-interstate-birth-certificate-compact/ [This link is no longer active.]
see also, e.g., Diaz-Salazar v. I.N.S., 700 F.2d 1156, 1160 (7th Cir. 1983) (noting in its recitation of the facts that despite the fact father was not a citizen of the United States, he had children who were “natural-born citizens of the United States”), cert. denied 462 U.S. 1132, 103 S. Ct. 3112 (1983).
http://law2.umkc.edu/faculty/projects/ftrials/conlaw/slaughter.html
http://law2.umkc.edu/faculty/projects/ftrials/conlaw/adamson.html
http://law2.umkc.edu/faculty/projects/ftrials/conlaw/duncan.html
http://law2.umkc.edu/faculty/projects/ftrials/conlaw/mcdonaldvchica... [This link is no longer active]
The Case for “NATURAL-BORN”
This is a 14th Amendment issue of "NATURAL BORN" and what the Court says is their position.
SCOTUS cases on issue - the Slaughter house case addresses citizenship as a citizen of the United States of America and a separate citizenship of a individual State. the others all come off Slaughter and show the new found power of reach through to the States by the Federal government and the courts. Ending and diminishing States rights and powers. If the founders intended the Bill of rights to apply to the States would they have not spelled that out in detail?
We have debated this many times but some keep trying to say that the SCOTUS must define Natural born - that is not within their power nor is it going to rule on that issue it would at best specify a conflict and send it to Congress for legislative action - IMHO
The button below is a case from 1983 affirming that an anchor baby is a Natural Born.
Below are cases regarding the "Natural Born" Citizens:
SCOTUS cases on issue - the Slaughter house case addresses citizenship as a citizen of the United States of America and a separate citizenship of a individual State. the others all come off Slaughter and show the new found power of reach through to the States by the Federal government and the courts. Ending and diminishing States rights and powers. If the founders intended the Bill of rights to apply to the States would they have not spelled that out in detail?
We have debated this many times but some keep trying to say that the SCOTUS must define Natural born - that is not within their power nor is it going to rule on that issue it would at best specify a conflict and send it to Congress for legislative action - IMHO
The button below is a case from 1983 affirming that an anchor baby is a Natural Born.
Below are cases regarding the "Natural Born" Citizens:
See also, e.g., Diaz-Salazar v. I.N.S., 700 F.2d 1156, 1160 (7th Cir. 1983) (noting in its recitation of the facts that despite the fact father was not a citizen of the United States, he had children who were “natural-born" citizens of the United States”), cert. denied 462 U.S. 1132, 103 S. Ct. 3112 (1983). Click button below. Item 10 shows the NATURAL BORN STATEMENT , , , this is the current court precedent on NATURAL BORN CITIZENS.
Obama’s War on Libya: A Constitutional View
[obama-libya-war] by Michael Boldin
With military action taking place in Libya right now, the essential question must be asked: Is it even Constitutional? For those of you who don’t want to read more than a sentence or two, here’s the short answer. Absolutely not.
DELEGATED POWERS
The ninth and tenth amendments, while they didn’t add anything new, defined the Constitution. In short, they tell us that the federal government is only authorized to exercise those powers delegated to it in the Constitution…and nothing more. Everything else is either prohibited or retained by the states or people themselves.
What does this have to do with Libya? Well, whenever the federal government does anything, the first question should always be, “where in the Constitution is the authority to do this?” What follows here is an answer regarding American bombs being dropped on Libya.
WHO DECIDES?
Ever since the Korean War, Article II, Section 2 of the Constitution has been regularly cited as justification for the President to act with a seemingly free reign in the realm of foreign policy – including the initiation of foreign wars. But, it is Article I, Section 8 of the Constitution that lists the power to declare war, and this power is placed solely in the hands of Congress.
Article II, Section 2, on the other hand, refers to the President as the “commander-in-chief of the army and navy of the United States.” What the founders meant by this clause was that once war was declared, it would then be the responsibility of the President, as the commander-in-chief, to direct the war.
Alexander Hamilton clarified this when he said that the President, while lacking the power to declare war, would have “the direction of war when authorized.”
Thomas Jefferson reaffirmed this quite eloquently when, in 1801, he said that, as President, he was “unauthorized by the Constitution, without the sanction of Congress, to go beyond the line of defense.”
With military action taking place in Libya right now, the essential question must be asked: Is it even Constitutional? For those of you who don’t want to read more than a sentence or two, here’s the short answer. Absolutely not.
DELEGATED POWERS
The ninth and tenth amendments, while they didn’t add anything new, defined the Constitution. In short, they tell us that the federal government is only authorized to exercise those powers delegated to it in the Constitution…and nothing more. Everything else is either prohibited or retained by the states or people themselves.
What does this have to do with Libya? Well, whenever the federal government does anything, the first question should always be, “where in the Constitution is the authority to do this?” What follows here is an answer regarding American bombs being dropped on Libya.
WHO DECIDES?
Ever since the Korean War, Article II, Section 2 of the Constitution has been regularly cited as justification for the President to act with a seemingly free reign in the realm of foreign policy – including the initiation of foreign wars. But, it is Article I, Section 8 of the Constitution that lists the power to declare war, and this power is placed solely in the hands of Congress.
Article II, Section 2, on the other hand, refers to the President as the “commander-in-chief of the army and navy of the United States.” What the founders meant by this clause was that once war was declared, it would then be the responsibility of the President, as the commander-in-chief, to direct the war.
Alexander Hamilton clarified this when he said that the President, while lacking the power to declare war, would have “the direction of war when authorized.”
Thomas Jefferson reaffirmed this quite eloquently when, in 1801, he said that, as President, he was “unauthorized by the Constitution, without the sanction of Congress, to go beyond the line of defense.”
In Federalist #69, Alexander Hamilton explained that the President’s authority:
“would be nominally the same with that of the King of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first general and admiral of the confederacy; while that of the British king extends to the declaring of war, and to the raising and regulating of fleets and armies; all which by the constitution under consideration would appertain to the legislature.”
James Madison warned us that the power of declaring war must be kept away from the executive branch when he wrote to Thomas Jefferson:
“The constitution supposes, what the history of all governments demonstrates, that the executive is the branch of power most interested in war, and most prone to it. It has accordingly with studied care vested the question of war in the legislature.”
WORDS HAVE MEANING
If, like any legal document, the words of the Constitution mean today just what they meant the moment it was signed, we must first look for the 18th Century meaning of the words used. Here are a few common 18th-century definitions of the important words:
War: The exercise of violence against withstanders under a foreign command.
Declare: Expressing something before it is promised, decreed, or acted upon.
Invade: To attack a country; to make a hostile entrance.
“would be nominally the same with that of the King of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first general and admiral of the confederacy; while that of the British king extends to the declaring of war, and to the raising and regulating of fleets and armies; all which by the constitution under consideration would appertain to the legislature.”
James Madison warned us that the power of declaring war must be kept away from the executive branch when he wrote to Thomas Jefferson:
“The constitution supposes, what the history of all governments demonstrates, that the executive is the branch of power most interested in war, and most prone to it. It has accordingly with studied care vested the question of war in the legislature.”
WORDS HAVE MEANING
If, like any legal document, the words of the Constitution mean today just what they meant the moment it was signed, we must first look for the 18th Century meaning of the words used. Here are a few common 18th-century definitions of the important words:
War: The exercise of violence against withstanders under a foreign command.
Declare: Expressing something before it is promised, decreed, or acted upon.
Invade: To attack a country; to make a hostile entrance.
What does this all mean? Unless the country is being invaded, if congress does not declare war against another country, the president is constitutionally barred from waging it, no matter how much he desires to do so. Preemptive strikes and undeclared offensive military expeditions are not powers delegated to the federal government in the Constitution, and are, therefore, unlawful.
HOW IT APPLIES TODAY
Here’s the quick overview of how this all plays out:
In Constitutional terms, the United States is currently at war with Libya.
Libya is not invading the United States, nor has it threatened to do so.
Congress has not declared war. Barack Obama did.
The Original Constitution Get the New Book Today!
Some would claim, and news articles are already reporting on it, that the 1973 war powers resolution authorizes the President to start a war as long as it’s reported to Congress within 48 hours. Then, Congress would have 60 days to authorize the action, or extend it.
The only question you should have to ask for this would be – “where in the Constitution is congress given the authority to change the constitution by resolution?”
It doesn’t. And that resolution, in and of itself, is a Constitutional violation. More on that in a future article, of course.
James Madison had something to say about such a plan when he wrote:
“The executive has no right, in any case, to decide the question, whether there is or is not cause for declaring war.” [emphasis added]
War Powers resolution or no war powers resolution – without a Congressional declaration, the president is not authorized to start an offensive military campaign. Period.
The bottom line? By using US Military to begin hostilities with a foreign nation without a Congressional declaration of war, Barack Obama has committed a serious violation of the Constitution. While he certainly is not the first to do so in regards to war powers, it’s high time that he becomes the last.
Michael Boldin is the founder of the Tenth Amendment Center. He was raised in Milwaukee, WI, and currently resides in Los Angeles, CA. Follow him on twitter - @michaelboldin - and visit his personal blog - www.michaelboldin.com
HOW IT APPLIES TODAY
Here’s the quick overview of how this all plays out:
In Constitutional terms, the United States is currently at war with Libya.
Libya is not invading the United States, nor has it threatened to do so.
Congress has not declared war. Barack Obama did.
The Original Constitution Get the New Book Today!
Some would claim, and news articles are already reporting on it, that the 1973 war powers resolution authorizes the President to start a war as long as it’s reported to Congress within 48 hours. Then, Congress would have 60 days to authorize the action, or extend it.
The only question you should have to ask for this would be – “where in the Constitution is congress given the authority to change the constitution by resolution?”
It doesn’t. And that resolution, in and of itself, is a Constitutional violation. More on that in a future article, of course.
James Madison had something to say about such a plan when he wrote:
“The executive has no right, in any case, to decide the question, whether there is or is not cause for declaring war.” [emphasis added]
War Powers resolution or no war powers resolution – without a Congressional declaration, the president is not authorized to start an offensive military campaign. Period.
The bottom line? By using US Military to begin hostilities with a foreign nation without a Congressional declaration of war, Barack Obama has committed a serious violation of the Constitution. While he certainly is not the first to do so in regards to war powers, it’s high time that he becomes the last.
Michael Boldin is the founder of the Tenth Amendment Center. He was raised in Milwaukee, WI, and currently resides in Los Angeles, CA. Follow him on twitter - @michaelboldin - and visit his personal blog - www.michaelboldin.com
General Welfare
OK, HERE IS THIS WEEKS SPECIAL FOOD FOR THOUGHT - WAS THE USURPATION OF THE CONSTITUTION BY FDR AND CONGRESS LEGAL OR WAS ITBLACK MAIL OF THE SUPREME COURT JUSTICES? YOU MUST TELL ME?
The "General Welfare" Clause
We Americans find ourselves faced with the disquieting specter of a five trillion dollar national debt, a sum truly inconceivable. Many economists and politicians tell us this debt portends a
disastrous financial collapse in the future and we worry. Once debt free, we are now the largest debtor nation in the world and as we find ourselves on the precipice we are confounded as to how we got there.
For answers, however, we need look no further than the farewell address of our first President, George Washington, who, in reference to our constitution, warned, "Let there be no change [in the Constitution] by usurpation. For though this, in one instance may be the instrument of good, it is the customary weapon by which free governments are destroyed."
Change in the constitution by usurpation?
When did that happen?
It happened in 1937!
Few Americans realize that up until 1937 the Congress of the United States conducted its business within the boundaries of seventeen enumerated powers granted under Article I Section 8 of the United States Constitution. [Appx. 1] these powers defined clearly the areas of national purposes over which Congress could enact legislation including the allocation of funds and levying of taxes.
Anything not set down in the enumerated powers was considered outside the purview of the national government and hence, a matter for the states. There were occasional challenges to the concept but it was not until Franklin Roosevelt's new deal that it was attacked in deadly
earnestness.
The "General Welfare" Clause
We Americans find ourselves faced with the disquieting specter of a five trillion dollar national debt, a sum truly inconceivable. Many economists and politicians tell us this debt portends a
disastrous financial collapse in the future and we worry. Once debt free, we are now the largest debtor nation in the world and as we find ourselves on the precipice we are confounded as to how we got there.
For answers, however, we need look no further than the farewell address of our first President, George Washington, who, in reference to our constitution, warned, "Let there be no change [in the Constitution] by usurpation. For though this, in one instance may be the instrument of good, it is the customary weapon by which free governments are destroyed."
Change in the constitution by usurpation?
When did that happen?
It happened in 1937!
Few Americans realize that up until 1937 the Congress of the United States conducted its business within the boundaries of seventeen enumerated powers granted under Article I Section 8 of the United States Constitution. [Appx. 1] these powers defined clearly the areas of national purposes over which Congress could enact legislation including the allocation of funds and levying of taxes.
Anything not set down in the enumerated powers was considered outside the purview of the national government and hence, a matter for the states. There were occasional challenges to the concept but it was not until Franklin Roosevelt's new deal that it was attacked in deadly
earnestness.
Ill winds prevailed against the Constitution in the 1930'S. The country was in the depression and Franklin D. Roosevelt asked for extraordinary "powers similar to those necessary in time of war," to meet the emergency. Poorly crafted legislation, some of it not printed in time for floor vote was rammed through a docile and Compliant 73RD Congress. Everything he asked for was given, with little or no debate.
The first of the new deal statutes to reach the Supreme Court for Review, arrived in January 1935. In the sixteen months following, The court decided ten major cases or groups of cases involving new deal statutes.
In eight instances out of ten the decisions went in favor of the United States Constitution and against the new deal. Eight of the ten pieces of "must legislation" were found to be unconstitutional.
The President reacted as one would after having received a kick in a sensitive area. He went to the American people with a fireside chat and stated "we have therefore, reached the point as a nation where we must take action to ……(March 9,1937) [II [P.754]
The first of the new deal statutes to reach the Supreme Court for Review, arrived in January 1935. In the sixteen months following, The court decided ten major cases or groups of cases involving new deal statutes.
In eight instances out of ten the decisions went in favor of the United States Constitution and against the new deal. Eight of the ten pieces of "must legislation" were found to be unconstitutional.
The President reacted as one would after having received a kick in a sensitive area. He went to the American people with a fireside chat and stated "we have therefore, reached the point as a nation where we must take action to ……(March 9,1937) [II [P.754]
The President declared war on the Supreme Court.
To appreciate the depth of FDR's resolve in such issues, one need only read his correspondence to representative Snyder of Pennsylvania asking Congress to pass the national bituminous coal conservation act regardless of any doubts, "however reasonable," that it might have about the bill's Constitutionality. It appeared in this case at least, the President was urging Congress to disregard the Constitution. [2] [p.738]
"In November 1936 the Democratic Party won an overwhelming victory at the polls. The election confirmed the Roosevelt administration in power and inspired the President to attempt a reorganization of the Judiciary in order to win control of that last remaining outpost of conservative Constitutionalism, the United States Supreme Court." [2] [P.749]
Constitutional historians refer to what happened next as the "Revolution of 1937." The President proposed that for each sitting justice over the age of seventy there be appointed one new Justice to "help them with their case load."
In reality FDR wanted to pack the court with six additional justices willing to declare all of his "must legislation" Constitutional.
Chief Justice Hughes was traumatized. He looked for a way to disengage the President’s plan which appeared almost certain to pass both houses and be signed into law. What to do? What was about to happen would ultimately lead our country to the clear and present danger of economic insolvency.
One observer noted "Hughes was profoundly convinced that what was at stake in the crises precipitated by the [Presidents] court plan was nothing less than the fate of the Supreme Court's historic role as guardian of the Constitution." He went on to state that what happened next was a "decision to retreat in the immediate skirmish in order to insure victory in the larger, struggle for judicial supremacy." [3] CP.111)
The Supreme Court at the time consisted of four conservatives, three liberals, one moderate, and one swing. The liberals were; Stone, Cardozo and Brandeis. The conservatives were:
McReynolds,
Sutherland,
Butler, and
Van Deventer.
The moderate was Hughes.
The swing was Roberts.
Hughes prevailed on Roberts to desert the Conservative camp, swing over with him and join the three liberals in declaring the social security cases [Steward Machine Co. v. Davis (301 us 548, May 24, 1937)] Constitutional.[4] [P.56]
To appreciate the depth of FDR's resolve in such issues, one need only read his correspondence to representative Snyder of Pennsylvania asking Congress to pass the national bituminous coal conservation act regardless of any doubts, "however reasonable," that it might have about the bill's Constitutionality. It appeared in this case at least, the President was urging Congress to disregard the Constitution. [2] [p.738]
"In November 1936 the Democratic Party won an overwhelming victory at the polls. The election confirmed the Roosevelt administration in power and inspired the President to attempt a reorganization of the Judiciary in order to win control of that last remaining outpost of conservative Constitutionalism, the United States Supreme Court." [2] [P.749]
Constitutional historians refer to what happened next as the "Revolution of 1937." The President proposed that for each sitting justice over the age of seventy there be appointed one new Justice to "help them with their case load."
In reality FDR wanted to pack the court with six additional justices willing to declare all of his "must legislation" Constitutional.
Chief Justice Hughes was traumatized. He looked for a way to disengage the President’s plan which appeared almost certain to pass both houses and be signed into law. What to do? What was about to happen would ultimately lead our country to the clear and present danger of economic insolvency.
One observer noted "Hughes was profoundly convinced that what was at stake in the crises precipitated by the [Presidents] court plan was nothing less than the fate of the Supreme Court's historic role as guardian of the Constitution." He went on to state that what happened next was a "decision to retreat in the immediate skirmish in order to insure victory in the larger, struggle for judicial supremacy." [3] CP.111)
The Supreme Court at the time consisted of four conservatives, three liberals, one moderate, and one swing. The liberals were; Stone, Cardozo and Brandeis. The conservatives were:
McReynolds,
Sutherland,
Butler, and
Van Deventer.
The moderate was Hughes.
The swing was Roberts.
Hughes prevailed on Roberts to desert the Conservative camp, swing over with him and join the three liberals in declaring the social security cases [Steward Machine Co. v. Davis (301 us 548, May 24, 1937)] Constitutional.[4] [P.56]
This Roberts did, and by so doing, took the wind from the sails of the President's court packing plan. It went back to committee and died. One Administration official called the court's action, "the switch in time that saved nine."
This decision said in effect, Congress would no longer be held to enumerated powers but instead could tax and spend for anything; so long as it was for "general welfare."
But the words "General Welfare" in the introduction to the enumerated powers of Article I Section 8 were never intended to be an object for extension of the power to tax and spend; and up until the cases noted above, no court ever so averred. [Appx. 1]
The supreme court surrendered to the new deal on the most fundamental of constitutional issues. "It is scarcely conceivable that Chief Justice Hughes and Justice Roberts... were unaware of the political implications of their move. The President had lost a battle but won a war.
In a remarkable series of decisions . ..the Court executed the most abrupt change of face in its entire history..."-[2] [p.753-754]
Justice Roberts, writing in 1951, said in effect -
His exact words were:
“Looking back it is difficult to see how the Court could have resisted the popular urge ... an insistence by the Court on holding Federal power to what seemed its appropriate orbit when the Constitution was adopted might have resulted in even more radical changes to our dual structure than those which have gradually accomplished through the extension of limited jurisdiction conferred on the federal government.” [3] [p.I13]
This decision said in effect, Congress would no longer be held to enumerated powers but instead could tax and spend for anything; so long as it was for "general welfare."
But the words "General Welfare" in the introduction to the enumerated powers of Article I Section 8 were never intended to be an object for extension of the power to tax and spend; and up until the cases noted above, no court ever so averred. [Appx. 1]
The supreme court surrendered to the new deal on the most fundamental of constitutional issues. "It is scarcely conceivable that Chief Justice Hughes and Justice Roberts... were unaware of the political implications of their move. The President had lost a battle but won a war.
In a remarkable series of decisions . ..the Court executed the most abrupt change of face in its entire history..."-[2] [p.753-754]
Justice Roberts, writing in 1951, said in effect -
His exact words were:
“Looking back it is difficult to see how the Court could have resisted the popular urge ... an insistence by the Court on holding Federal power to what seemed its appropriate orbit when the Constitution was adopted might have resulted in even more radical changes to our dual structure than those which have gradually accomplished through the extension of limited jurisdiction conferred on the federal government.” [3] [p.I13]
His statement "limited jurisdiction" - "conferred on the federal government" is understandable only when one considers that very few "extensions" of "limited jurisdiction" had been executed by Congress from the time of the great retreat decisions,[1937] Up to the year 1951.
(The year Robert’s book was published.)
Nothing much happened immediately after these decisions because of WW II; then post war reconstruction with a strong conservative Republican leadership under Bob Taft and a coalition of conservative democrats; then Korea; then the Eisenhower years; then Kennedy [who basically was a fiscal conservative]; then Dallas; then Lyndon B. Johnson and the Great Society, [1965] the arrival of which signaled the commencement of the full implementation of "Stewart Machine Co. v. Davis"--1937.
Until this time, the American peoples’ demands on government were modest and for the most part the government lived within its means.
But LBJ and his cohorts, both Democrat and moderate Republican, said in effect,
"damn the enumerated powers, full speed ahead." Something for everyone: spend now, pay later.
As time went on elected representatives in Washington found it virtually impossible to say no to constituent demands. Many of the demands were for good things. [It seemed so, if someone else paid the bill.]
Most if not all of these things are best left to the states, regional authorities, voluntary agencies and, yes, families. [In terms of sheer economic efficiency, nothing in all of history ever equaled the family. [Whatever happened to them?]
(The year Robert’s book was published.)
Nothing much happened immediately after these decisions because of WW II; then post war reconstruction with a strong conservative Republican leadership under Bob Taft and a coalition of conservative democrats; then Korea; then the Eisenhower years; then Kennedy [who basically was a fiscal conservative]; then Dallas; then Lyndon B. Johnson and the Great Society, [1965] the arrival of which signaled the commencement of the full implementation of "Stewart Machine Co. v. Davis"--1937.
Until this time, the American peoples’ demands on government were modest and for the most part the government lived within its means.
But LBJ and his cohorts, both Democrat and moderate Republican, said in effect,
"damn the enumerated powers, full speed ahead." Something for everyone: spend now, pay later.
As time went on elected representatives in Washington found it virtually impossible to say no to constituent demands. Many of the demands were for good things. [It seemed so, if someone else paid the bill.]
Most if not all of these things are best left to the states, regional authorities, voluntary agencies and, yes, families. [In terms of sheer economic efficiency, nothing in all of history ever equaled the family. [Whatever happened to them?]
Fifty legislative debates on the merits and uses of taxpayers’ dollars for local purposes is very healthy.
Our founding fathers believed in the idea and we practiced it, almost perfectly until 1965.
This gave great power and strength to our country. People retained more than 80% of their wages, whereas today they are left with less than 50% and many of us find ourselves reduced to asking the general government for this or that. "Give me, give me, give me."
Consider the national debt - approaching five trillion dollars. How did this happen?
A "General Welfare Congress" [session after session] made this happen.
With no limits on their taxing and spending power, they became like children in a candy store.
Study the national debt and mandatory program curves; they rise exponentially after the full implementation of the great society [APPX.2]. Both national parties must share blame for the
enormous catastrophe befalling our country and its posterity.
It's really a "Catch 22". You want to serve your country. To serve your country you must be in power [in Congress]. To be in power you must be re-elected. To be re-elected you must out promise your opponent. To out-promise your opponent you must promise to spend for the "General Welfare."
And it goes on and on and on, forever, until one of three things happen:
1. We adopt good moral sense and courage and say no to the inordinate demands of our constituents and the special interest groups.
* This will never happen. Congress prefers to possess the power to buy the allegiance of their constituents by providing for their "general welfare." It is a payoff from organized government and "we the people" have been led to believe someone else will pay for it down the line. i.e. our children.
* Look at the behavior of the "new Congress". Farm district Representatives won't give back on subsidies. Inner city Representatives won’t give back on aid to teenage mothers. Defense industry Representatives won’t give back on defense spending. The cotton and tobacco
representatives won’t give back on their subsidies. Good Americans all. Some are signers of the Contract for America. But they won't give back a dime.
They love the power.
Our founding fathers believed in the idea and we practiced it, almost perfectly until 1965.
This gave great power and strength to our country. People retained more than 80% of their wages, whereas today they are left with less than 50% and many of us find ourselves reduced to asking the general government for this or that. "Give me, give me, give me."
Consider the national debt - approaching five trillion dollars. How did this happen?
A "General Welfare Congress" [session after session] made this happen.
With no limits on their taxing and spending power, they became like children in a candy store.
Study the national debt and mandatory program curves; they rise exponentially after the full implementation of the great society [APPX.2]. Both national parties must share blame for the
enormous catastrophe befalling our country and its posterity.
It's really a "Catch 22". You want to serve your country. To serve your country you must be in power [in Congress]. To be in power you must be re-elected. To be re-elected you must out promise your opponent. To out-promise your opponent you must promise to spend for the "General Welfare."
And it goes on and on and on, forever, until one of three things happen:
1. We adopt good moral sense and courage and say no to the inordinate demands of our constituents and the special interest groups.
* This will never happen. Congress prefers to possess the power to buy the allegiance of their constituents by providing for their "general welfare." It is a payoff from organized government and "we the people" have been led to believe someone else will pay for it down the line. i.e. our children.
* Look at the behavior of the "new Congress". Farm district Representatives won't give back on subsidies. Inner city Representatives won’t give back on aid to teenage mothers. Defense industry Representatives won’t give back on defense spending. The cotton and tobacco
representatives won’t give back on their subsidies. Good Americans all. Some are signers of the Contract for America. But they won't give back a dime.
They love the power.
* We need a Constitutional Amendment clearly defining just what they can tax and spend for.
[Governments control people--constitutions control governments] and if we the people want them to keep all the power they now have, then so be it. We can join together, singing,
"we don’t have to live in the future, our children do. We want ours and we want it now."
2. Our nation suffers an economic collapse and/or a total loss of freedom due to excessive taxation and national debt. This is why the balanced budget amendment is a danger.
Congress will balance the budget on the backs of the American workers and entrepreneurs.
Congress will not resist unlimited spending power. Why? Because it feels too good and they are spending other peoples’ money. Your money and my money. It’s painless when it’s not your money.
And the nation as we know it today, will continue the ongoing surrender of individual and economic liberty to a form of government that can best be described as legislative despotism.
3. Our newly-elected Representatives propose a Constitutional Amendment to the Several States for their consideration, which shall state that:
1. The phrase "the Common Defense and the General Welfare" in Article I Section 8 of the U.S. Constitution are not grants of power but merely introductions to the enumerated powers concerning the common defense and the general welfare.
2. That all powers seized and accrued to the federal government since the "revolution of 1937" be submitted to the several states as part of this amendment and they as a whole shall vote up and down as to whether or not these seized powers should be returned to their rightful owners, i.e. the states or the people, or be added to the enumerations presently extant in Article I Section 8 of the U.S. Constitution.
3. And that all future additions to those enumerated powers for taxing and spending found in Article I Section 8 of the U.S. Constitution be done as the founding fathers provided, by Amendment to the Constitution.
In his farewell address, George Washington speaking on our dual federal system stated: "the spirit of encroachment tends to consolidate the powers...in one, and thus to create, . . . a real despotism”.
*He went on to warn: “Let there be no change in the constitution by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed.”
[Governments control people--constitutions control governments] and if we the people want them to keep all the power they now have, then so be it. We can join together, singing,
"we don’t have to live in the future, our children do. We want ours and we want it now."
2. Our nation suffers an economic collapse and/or a total loss of freedom due to excessive taxation and national debt. This is why the balanced budget amendment is a danger.
Congress will balance the budget on the backs of the American workers and entrepreneurs.
Congress will not resist unlimited spending power. Why? Because it feels too good and they are spending other peoples’ money. Your money and my money. It’s painless when it’s not your money.
And the nation as we know it today, will continue the ongoing surrender of individual and economic liberty to a form of government that can best be described as legislative despotism.
3. Our newly-elected Representatives propose a Constitutional Amendment to the Several States for their consideration, which shall state that:
1. The phrase "the Common Defense and the General Welfare" in Article I Section 8 of the U.S. Constitution are not grants of power but merely introductions to the enumerated powers concerning the common defense and the general welfare.
2. That all powers seized and accrued to the federal government since the "revolution of 1937" be submitted to the several states as part of this amendment and they as a whole shall vote up and down as to whether or not these seized powers should be returned to their rightful owners, i.e. the states or the people, or be added to the enumerations presently extant in Article I Section 8 of the U.S. Constitution.
3. And that all future additions to those enumerated powers for taxing and spending found in Article I Section 8 of the U.S. Constitution be done as the founding fathers provided, by Amendment to the Constitution.
In his farewell address, George Washington speaking on our dual federal system stated: "the spirit of encroachment tends to consolidate the powers...in one, and thus to create, . . . a real despotism”.
*He went on to warn: “Let there be no change in the constitution by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed.”
Presently our ship of state is aground on the shoals of uncertain centralism. At this very moment a great storm -and high tide of optimism have begun to shake her free; but any freedom will be short lived without an amendment enunciating clearly what the
founding fathers intended:
The General Welfare clause in Article I Section 8 is an introduction to the enumerated powers that follow and not itself a grant of power.
CLOSING
The limits on federal power to legislate for the "general welfare" remains, to this date, undefined and presumably, boundless.
The question that begs an answer is, "If the framers of our Constitution, who labored so resolutely in Philadelphia that torridly hot summer in 1787 intended the powers of Congress to have no boundaries, why did they bother to enumerate seventeen?"
founding fathers intended:
The General Welfare clause in Article I Section 8 is an introduction to the enumerated powers that follow and not itself a grant of power.
CLOSING
The limits on federal power to legislate for the "general welfare" remains, to this date, undefined and presumably, boundless.
The question that begs an answer is, "If the framers of our Constitution, who labored so resolutely in Philadelphia that torridly hot summer in 1787 intended the powers of Congress to have no boundaries, why did they bother to enumerate seventeen?"
James Madison, when asked if the "general welfare" clause was a grant of power, replied in 1792, in a letter to Henry Lee, “If not only the means but the objects are unlimited, the parchment.” [The Constitution] [6] [p.257]
DEDICATION
This effort is dedicated to the memory of my mother and father, and to all service men and women who gave their lives for the survival of our posterity.
John W. Bugler
Constitutional Awareness
bugler@bugler.org
REFERENCES
1. Pusey, Merlo, J., Charles Evans Hughes [Vol.2] [Columbia University Press New York, 1963
2. Kelly, A.H. and Harbison, W.A., The American Constitution - Its Origins and Development [W.W.Norton & Co. Inc. New York, 1948
3. Mason, Alpheus, The Supreme Court from Taft to Warren [Louisiana State University Press: Baton Rouge, 1958]
4. Krock, Arthur, The Consent of the Governed - And Other Deceits, [ Little, Brown and Company---Boston, Ma. 1971]
5. Hickey, W., The Constitution of the United States of America, with Papers of George Washington. [Philadelphia, 1853] [Farewell Address of George Washington, President, to the people
of the United States, September 17, 1796 ]
6. Brant, Irving the Fourth President - A Life of James Madison [Eyre & Spottiswoode (Publishers) Ltd. London, 1970
APPENDIX 1
Article I, Section 8.
The Congress shall have Power
To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and General Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; To borrow money on the credit of the United States; To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies; To coin Money, regulate the Value thereof, and of foreign
Coin, and fix the Standard of Weights and Measures; To provide for the Punishment of counterfeiting the Securities and current Coin of the United States; To establish Post Offices and post Roads; To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries; To constitute Tribunals inferior to the Supreme Court; To define and punish piracies and Felonies committed on the high Seas, To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; To provide and maintain a Navy; To make Rules for the Government and Regulation of the land and naval Forces; To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress; To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, Dock-Yards, and other needful Buildings ;-And 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, of in any department or Officer thereof.
DEDICATION
This effort is dedicated to the memory of my mother and father, and to all service men and women who gave their lives for the survival of our posterity.
John W. Bugler
Constitutional Awareness
bugler@bugler.org
REFERENCES
1. Pusey, Merlo, J., Charles Evans Hughes [Vol.2] [Columbia University Press New York, 1963
2. Kelly, A.H. and Harbison, W.A., The American Constitution - Its Origins and Development [W.W.Norton & Co. Inc. New York, 1948
3. Mason, Alpheus, The Supreme Court from Taft to Warren [Louisiana State University Press: Baton Rouge, 1958]
4. Krock, Arthur, The Consent of the Governed - And Other Deceits, [ Little, Brown and Company---Boston, Ma. 1971]
5. Hickey, W., The Constitution of the United States of America, with Papers of George Washington. [Philadelphia, 1853] [Farewell Address of George Washington, President, to the people
of the United States, September 17, 1796 ]
6. Brant, Irving the Fourth President - A Life of James Madison [Eyre & Spottiswoode (Publishers) Ltd. London, 1970
APPENDIX 1
Article I, Section 8.
The Congress shall have Power
To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and General Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; To borrow money on the credit of the United States; To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies; To coin Money, regulate the Value thereof, and of foreign
Coin, and fix the Standard of Weights and Measures; To provide for the Punishment of counterfeiting the Securities and current Coin of the United States; To establish Post Offices and post Roads; To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries; To constitute Tribunals inferior to the Supreme Court; To define and punish piracies and Felonies committed on the high Seas, To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; To provide and maintain a Navy; To make Rules for the Government and Regulation of the land and naval Forces; To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress; To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, Dock-Yards, and other needful Buildings ;-And 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, of in any department or Officer thereof.
A History on the Evolution of Society
In the beginning, humans existed as members of small bands of nomadic unter/gatherers. They lived on deer in the mountains during the summer & would go to the coast and live on fish and lobster in winter.
The two most important events in all of history were the invention of beer and the invention of the wheel. The wheel was invented to get man to the beer. These were the foundation of modern civilization and together were the catalyst for the splitting of humanity into two distinct subgroups: Liberals and Conservatives.
Beer required grain, which led to the beginning of agriculture. Neither the glass bottle nor aluminum can were invented yet, so while our early human ancestors were sitting around waiting for them to be invented, they just stayed close to the brewery. That’s how villages were formed.
Some men spent their days tracking and killing animals to B-B-Q at night while they were drinking beer. This was the beginning of what is known as "the Conservative movement."
Other men who were weaker and less skilled at hunting learned to live off of the conservatives by showing up for the nightly B-B-Q’s and doing the sewing, fetching and hair dressing. This was the beginning of the Liberal movement. Some of these liberal men eventually evolved into women.
Some noteworthy liberal achievements include the domestication of cats, the invention of group therapy and group hugs and the concept of Democratic voting to decide how to divide the meat and beer that conservatives provided.
Over the years conservatives came to be symbolized by the largest, most powerful land animal on earth, the elephant. Liberals are symbolized by the jackass.
Modern liberals like imported beer (usually with lime added), but most prefer white wine or imported bottled water. If they drink liquor it generally must be accompanied by a pink umbrella. They eat raw fish but like their beef well-done. Sushi, tofu, and French food are standard liberal fare.
Another interesting evolutionary side note: most liberals’ companions have higher testosterone levels than their men. Most social workers, personal injury attorneys, journalists, Hollywood residents, and therapists are liberals. Liberals invented the designated hitter rule because it wasn’t "fair" to make the pitcher also bat.
Conservatives drink domestic beer. They eat red meat and still provide for their women. Conservatives are big-game hunters, rodeo cowboys, lumberjacks, construction workers, firemen, medical doctors, police officers, corporate executives, athletes, soldiers, economists, and generally anyone who works productively. Conservatives who own companies hire other conservatives who want to work for a living.
Liberals produce little or nothing. They like to "govern" the producers and decide what to do with the production. Liberals believe Europeans are more enlightened than Americans. That is why most of the liberals remained in Europe when conservatives were coming to America. They crept in after the Wild West was tamed and created a business of trying to get something for nothing.
The two most important events in all of history were the invention of beer and the invention of the wheel. The wheel was invented to get man to the beer. These were the foundation of modern civilization and together were the catalyst for the splitting of humanity into two distinct subgroups: Liberals and Conservatives.
Beer required grain, which led to the beginning of agriculture. Neither the glass bottle nor aluminum can were invented yet, so while our early human ancestors were sitting around waiting for them to be invented, they just stayed close to the brewery. That’s how villages were formed.
Some men spent their days tracking and killing animals to B-B-Q at night while they were drinking beer. This was the beginning of what is known as "the Conservative movement."
Other men who were weaker and less skilled at hunting learned to live off of the conservatives by showing up for the nightly B-B-Q’s and doing the sewing, fetching and hair dressing. This was the beginning of the Liberal movement. Some of these liberal men eventually evolved into women.
Some noteworthy liberal achievements include the domestication of cats, the invention of group therapy and group hugs and the concept of Democratic voting to decide how to divide the meat and beer that conservatives provided.
Over the years conservatives came to be symbolized by the largest, most powerful land animal on earth, the elephant. Liberals are symbolized by the jackass.
Modern liberals like imported beer (usually with lime added), but most prefer white wine or imported bottled water. If they drink liquor it generally must be accompanied by a pink umbrella. They eat raw fish but like their beef well-done. Sushi, tofu, and French food are standard liberal fare.
Another interesting evolutionary side note: most liberals’ companions have higher testosterone levels than their men. Most social workers, personal injury attorneys, journalists, Hollywood residents, and therapists are liberals. Liberals invented the designated hitter rule because it wasn’t "fair" to make the pitcher also bat.
Conservatives drink domestic beer. They eat red meat and still provide for their women. Conservatives are big-game hunters, rodeo cowboys, lumberjacks, construction workers, firemen, medical doctors, police officers, corporate executives, athletes, soldiers, economists, and generally anyone who works productively. Conservatives who own companies hire other conservatives who want to work for a living.
Liberals produce little or nothing. They like to "govern" the producers and decide what to do with the production. Liberals believe Europeans are more enlightened than Americans. That is why most of the liberals remained in Europe when conservatives were coming to America. They crept in after the Wild West was tamed and created a business of trying to get something for nothing.
Liberty or Tyranny
The founders of our nation knew that if the government was allowed to be the judge, the jury and the executioner, the people would become victims of tyranny. They also understood that the concentration of power was potentially dangerous power corrupts and absolute power corrupts absolutely. When a government that writes the law also has the power to interpret the law and to enforce the law, the people become victims of tyranny.
The purpose of a just law is to promote liberty and to protect property. The purpose of unjust law is to allow governments to legalize the plunder of other people's property. According to the Supreme Court in Marbury vs Madison 1803 laws that are repugnant to the Constitution are null and void.
The Constitution was written to protect the rights of the people not give the government the power to control the people. They knew that if the government that was supposed to be our servant would one day become our master. They knew that power corrupts and that absolute power corrupts absolutely. They understood that those in power would to write laws that would benefit themselves personally as well as their partners in crime.
They designed our government to have limited power. They did not want the government that they had just created to endanger the life, liberty and property of the people. That is why in Article I Section 8 of the Constitution they sought to control the government by limiting the legislative authority of Congress to an area not to exceed ten miles square. The jurisdiction of our federal government does not exist outside to the territory known as the District of Columbia.
Before the ink on the Constitution had dried, there were those in high places that sought to use the Constitution to create an empire in America,. These individuals, led by Alexander Hamilton, knew that if the Constitution were to be strictly followed they would be unable to achieve their objectives.
Hamilton and his disciples were determined to have the Constitution interpreted in a manner that would enable them to achieve their goals. The founders believed the newly formed government should only have the authority that was specifically granted to them in Article I Section 8. Hamilton believed that there were powers that were not delegated but were implied.
Most of the problems we have today are the result of the acceptance of the idea that the government can do whatever our leaders feel are necessary and proper. This doctrine of Implied Powers has allowed our government to assume powers and authority beyond those delegated to them in the Constitution.
The purpose of a just law is to promote liberty and to protect property. The purpose of unjust law is to allow governments to legalize the plunder of other people's property. According to the Supreme Court in Marbury vs Madison 1803 laws that are repugnant to the Constitution are null and void.
The Constitution was written to protect the rights of the people not give the government the power to control the people. They knew that if the government that was supposed to be our servant would one day become our master. They knew that power corrupts and that absolute power corrupts absolutely. They understood that those in power would to write laws that would benefit themselves personally as well as their partners in crime.
They designed our government to have limited power. They did not want the government that they had just created to endanger the life, liberty and property of the people. That is why in Article I Section 8 of the Constitution they sought to control the government by limiting the legislative authority of Congress to an area not to exceed ten miles square. The jurisdiction of our federal government does not exist outside to the territory known as the District of Columbia.
Before the ink on the Constitution had dried, there were those in high places that sought to use the Constitution to create an empire in America,. These individuals, led by Alexander Hamilton, knew that if the Constitution were to be strictly followed they would be unable to achieve their objectives.
Hamilton and his disciples were determined to have the Constitution interpreted in a manner that would enable them to achieve their goals. The founders believed the newly formed government should only have the authority that was specifically granted to them in Article I Section 8. Hamilton believed that there were powers that were not delegated but were implied.
Most of the problems we have today are the result of the acceptance of the idea that the government can do whatever our leaders feel are necessary and proper. This doctrine of Implied Powers has allowed our government to assume powers and authority beyond those delegated to them in the Constitution.
