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Alexander Hamilton’s “Implied Powers” Wrecked the Constitution

During the ratification debates, supporters of the Constitution insisted that the new general government would only exercise the powers explicitly enumerated in the document. But less than three years after ratification, Alexander Hamilton did a complete 180, suddenly discovered “implied powers” and wrecked the Constitution.

During the Philadelphia Convention, many framers favored a strong national government. In fact, James Madison even proposed a federal veto on state laws. But as the convention wore on, delegates voted down proposals to create a centralized “national” government one by one – including Madison’s federal veto. The Constitution that emerged from the Convention created a general government with a few, defined, enumerated powers.

Opponents of the Constitution warned that the proposed “federal” government would quickly grow in power and scope. But, supporters of the Constitution, including Hamilton, swore this wouldn’t happen. They “sold” the Constitution to a relatively skeptical public by promising that the general government would not be able to go beyond the specific powers laid out in the document.

James Madison gave perhaps the most succinct and clear explanation of the limited nature of the federal government in Federalist #45.

“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation and foreign commerce; with which the last the power of taxation will for the most part be connected. The powers reserved to the several States will extend to all objects which, in the ordinary course of affairs, concern the lives, liberties and properties of the people, and the internal order, improvement and prosperity of the State.” [Emphasis added]

Harry Lee, a delegate to the Virginia ratifying convention, emphasized the limited nature of the proposed government as he summed up the proper way to interpret the Constitution.

“It goes on the principle that all power is in the people, and that rulers have no powers but what are enumerated in that paper. When a question arises with respect to the legality of any power, exercised or assumed by Congress, it is plain on the side of the governed. Is it enumerated in the Constitution? If it be, it is legal and just. It is otherwise arbitrary and unconstitutional.” [Emphasis added]

Even Hamilton took up the limited federal power banner, writing in Federalist #32.

“The State governments would clearly retain all rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the United States.” [Emphasis added]

It didn’t take Hamilton long to change his tune. Less than three years after the ratification of the Constitution, Hamilton discovered “implied powers” hidden in the Constitution to justify Congress chartering the First Bank of the United States.

Opponents of the bank, including Thomas Jefferson and James Madison, argued that the lack of specific delegated authority barred Congress from chartering a bank. In response, Hamilton affirmed the doctrine of delegated powers, and then effectively nullified its limiting force. He wrote, “The main proposition here laid down, in its true signification is not to be questioned.” But he continued, insisting, “It is not denied that there are implied as well as express powers, and that the former are as effectually delegated as the latter.”

It’s important to note that had such a concept been advanced during the ratification debates, the states would have never adopted the Constitution.

Madison warned against “the doctrine of implication,” saying, “the danger of it has been felt in other governments. The delicacy was felt in the adoption of our own; the danger may also be felt, if we do not keep close to our chartered authorities.”

The question becomes: who decides the extent of these implied powers? Who determines their limits?

In effect, Hamilton conjured up an almost unlimited reservoir of power the general government can dip into in order to take whatever actions it deems appropriate. Again, this was a 180-degree reversal from the position he took during the ratification debates when he insisted that the new general government would only have the authority to exercise its expressly enumerated powers.

Hamilton’s arguments won the day and Geroge Washington signed the bill chartering the First Bank of the United States.

Hamilton’s victory was a profound defeat for the Constitution. His “implied powers” doctrine set the stage for much of the federal overreach we live with today. Hamilton effectively flipped the constitutional structure on its head. Instead of exercising powers “few and defined,” the powers of the federal government today are “numerous and indefinite.”

The post Alexander Hamilton’s “Implied Powers” Wrecked the Constitution first appeared on Tenth Amendment Center.

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The Founders’ words were not “meaningless” or “vague”

A common accusation, especially from liberal academics and judges, is that many constitutional phrases are vague or meaningless. Or, as stated by former Supreme Court Justice William J. Brennan, they are “luminous and obscure.”

Advocates of an all-powerful central government draw two lessons from their belief that constitutional clauses are vague. The first is that the document doesn’t deserve great respect because it isn’t well drafted. The second is that vagueness justifies a very wide scope for exercise of federal and judicial power.

But the charge of “vagueness” is based on ignorance. The usual reason critics think constitutional phrases are vague or meaningless is that they don’t know that those phrases had specialized meanings in 18th century law. The Constitution is a legal document, and most of the framers and leading ratifiers were top-flight lawyers. In the founding era, even the general public was unusually knowledgeable about law. Hence, many of the Constitution’s ordinary-sounding expressions are packed with legal content. Here are some illustrations:

  • “regulate … Commerce,”
  • “establish Post Offices,”
  • “post Roads,”
  • “natural born Citizen,”
  • “Corruption of Blood,”
  • “Privileges and Immunities,” and
  • “necessary and proper.”

Several years ago I wrote a book explaining these and other terms. Behind that book were many individual investigations into the true meaning of constitutional words and phrases. Following is the story of one investigation.

Critics leveling the “vagueness” charge long pointed to the Necessary and Proper Clause as an example. Confused law professors and students scratched their heads over the clause and the most important Supreme Court case on the subject: Chief Justice John Marshall’s famous opinion in McCulloch v. Maryland (1819). Some tagged it “the elastic clause” and claimed it could justify almost anything.

The Necessary and Proper Clause (Article I, Section 8, Clause 18) ends a long list of powers the Constitution grants to Congress. It reads as follows:

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

Critics asked, “What makes a law ‘necessary’ to carry out another power? What does ‘proper’ mean? Moreover, the Constitution grants authority only to agencies and officials; ‘Powers vested … in the Government of the United States’ must be a typo!”

No one seems to have consulted 18th century legal materials about these questions – until I did so, beginning in 2003.

I labored under some disadvantages. I had no internet access to materials I needed. The law school where I was a faculty member had only a small library and was 200 miles from any other law school. The administration was uninterested in my research, even hostile.

But I had one huge advantage that the overwhelming majority of other constitutional scholars did not have: I had practiced law for many years. And although my law practice was in the 20th century rather than in the 18th, I had worked with many of the same kinds of legal documents the Founders employed.

As I examined the Necessary and Proper Clause, a little voice told me, “You’ve seen this kind of wording before! It looks like a phrase in a trust instrument or an agency agreement.”

During my law practice I’d frequently consulted form books. These are huge collections of sample documents lawyers traditionally used to draft legal instruments. “I bet,” I thought, “there were form books in the 18th century. And if there were, I probably can find language in them that looks a lot like ‘necessary and proper.’”

Shortly thereafter I visited Philadelphia. The law librarian at the University of Pennsylvania (Ben Franklin’s favorite school) gave me access to their rare book collection. It turned out that there were plenty of 18th century form books. While thumbing through one of them, I found a form for a “letter of attorney”—a kind of agency agreement we now call a “power of attorney.”

This is what I saw:

Epoch Times Photo
Extract from an 18th century form book. (Rob Natelson)

Further checking confirmed that letters of attorney and other documents listing powers often finished up the list with an additional grant of “necessary and proper” powers.

I soon found that phrases like “necessary and proper” also were exceptionally common in English and American statutes, trusts, leases, commissions, and charters. Study of 18th century English court cases taught me that in this context the word “necessary” meant “incidental.” I also learned that “necessary and proper” was a translation of an earlier Latin phrase, necessaria et opportuna. My knowledge of Latin (another skill rare among modern academics) confirmed that “necessary” meant “incidental.”

Still more investigation showed that “proper” meant that the person exercising authority was governed by legal duties of trust. Investigation also demonstrated that the Constitution really did grant powers to “the Government of the United States.” Those powers were implicit in clauses imposing obligations on the government, such as the Constitution’s mandate that the federal government protect the states from invasion.

The most significant finding was that “necessary” meant “incidental.” Here’s why:

When a document grants a list of explicit powers, it quietly grants unmentioned powers as well. The unmentioned powers permit the agent to carry out his duties by some methods not listed explicitly in the document. For example, depending on local custom, a document authorizing a person to manage a store might include an unmentioned power to advertise. Unmentioned powers are called “incidental.”

Eighteenth-century law imposed tight constraints on incidental powers. They could be exercised only to carry out listed powers. They had to be of lesser importance (“less worthy”) than listed powers. They had to be methods customary or reasonably required in the circumstances. Someone given authority to manage a business couldn’t claim that he had “incidental power” to use his boss’s money to take over an entirely unrelated business.

Let’s consider a related example from the Constitution. It grants Congress explicit power to “regulate Commerce … among the several States.” Those adopting the Constitution understood “commerce” to be mercantile trade and some associated activities, such as navigation and marine insurance. A federal law requiring standardized labels on goods shipped across state lines would be incidental to the commerce power and therefore authorized by the Necessary and Proper Clause.

By contrast, manufacturing and agriculture are major economic categories distinct from commerce —even though (as the Founders knew) these categories impact each other greatly. Manufacturing and agriculture are not mere incidents of commerce, and a law governing them is not incidental to “regulat[ing] … Commerce.”

Thus, my research taught me that 20th century Supreme Court decisions were wrong when they ruled that the Necessary and Proper Clause gave Congress sweeping power over manufacturing and agriculture.

Once you know the background of the Necessary and Proper Clause, you see that it helps make the Constitution flexible—but as not as flaccid as advocates of unlimited federal control would like it to be. The background also helps you grasp the true meaning of Justice Marshall’s opinion in McCulloch v. Maryland. I’m happy to report that, possibly based in part on my research, Chief Justice Roberts recaptured some of this meaning in a case decided in 2012.

It’s not the Constitution that’s vague or meaningless. On this subject, vagaries exist principally in the minds of the critics.

EDITOR’S NOTE: This essay first appeared in the May 27, 2021 Epoch Times. This is the ninth in a series of articles defending the U.S. Constitution against accusations from political “progressives.”

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Defending the Constitution: Limits on federal authority

One of the Constitution’s most important features – limits on the central government – has been the target of a propaganda campaign for many decades.

“Progressive” commentators in politics, academia, and the media claim these limits impede creative and effective solutions to social problems. Over the years, they’ve enlisted many issues to promote their cause:

  • “We can end poverty only through bold federal initiatives!”
  • “To save the planet we need more federal regulation!”
  • “The path to college affordability is for the federal government to pay full tuition!”
  • “The way to jump-start the economy is through massive federal stimulus spending!”

Other issues on the list have included civil rights, consumer protection, inequality, K-12 education, climate change, racism, and “crumbling infrastructure.” Whatever the malady, the prescription—federal action beyond what the Constitution authorizes—is always the same.

Just for once, I’d like to hear one of the propagandists admit that, in retrospect, too much federal intervention made a problem worse. They would have a lot of examples to choose from, but I don’t ever expect to hear it.

Unfortunately, the campaign to persuade Americans that the federal government is and should be omnipotent has enjoyed great success. One reason is that public school civics education often misrepresents the Constitution’s meaning and the reasons behind that meaning. This essay helps fill the gap by explaining how the Constitution confines federal power and why it does so.

The Constitution limits the federal government in four general ways:

First: The Constitution is the legal document by which the American people granted authority to certain public officials, mostly (but not exclusively) federal officials. The Constitution specifically enumerates (lists) all powers granted. The list is long but finite. The items enumerated include, among others, national defense, coining money, creating and operating the post office, building and maintaining post roads (intercity highways) (pdf), regulating foreign and interstate trade and some activities associated with trade, and control of immigration.

A longstanding legal rule tells us that because the Constitution lists the federal government’s powers, any power not on the list is denied.

Second: The Constitution specifically prohibits some federal activities. The prohibitions appear mostly, but not entirely, in the first eight amendments of the Bill of Rights. For example, the government is barred from discriminating among religions, restricting freedom of speech, infringing the right to keep and bear arms, or adopting those retroactive measures called ex post facto laws. We often refer to prohibitions on government action as creating or recognizing “rights.”

Third: The Tenth Amendment reinforces the rule that the only powers granted to the federal government are those the Constitution enumerates.

Fourth: The enumeration of exceptions to federal power (“rights”) might suggest that the government has authority over everything outside the exceptions. So the Ninth Amendment rules out any such suggestion. It reinforces the rule that federal powers stop when enumerated powers stop. As one of my law students once remarked, the Ninth Amendment is an exclamation point.

All these constitutional restrictions are anathema to “progressives.” So they alternate frontal attacks on the Constitution with claims that the document doesn’t mean what the document clearly says. They also launched the decades-long propaganda campaign to convince us that all power should flow from the center.

But why shouldn’t it? Why didn’t the Founders establish an omnipotent central authority?

History provides part of the answer. Before 1763, the founding generation lived happily within the British Empire. The empire was governed as an informal federation, leaving individual colonies with a great deal of local control. But when British political functionaries decided to centralize power in London, the founding generation rebelled. Once Independence was achieved, Americans were disinclined to adopt a constitution granting the national government the omnipotence they had denied to the imperial government.

On a broader level, the Founders understood that limits on the federal government, especially when checked by potent states, would help preserve human freedom. In New York v. United States (1992) the Supreme Court explained it this way:

“The Constitution does not protect the sovereignty of States for the benefit of the States or state governments as abstract political entities, or even for the benefit of the public officials governing the States. To the contrary, the Constitution divides authority between federal and state governments for the protection of individuals. State sovereignty is not just an end in itself: ‘Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.’ … ‘Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in anyone branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front.”

Moreover, the Founders understood that decentralization usually improves governance. A decentralized system allows states to tailor local policies to local preferences, local culture, and local needs. For example, one reason the COVID-19/CCP virus response should be executed at the state and local levels is that health restrictions that make sense in densely populated New York City would be ridiculous in the wide open spaces of Montana or South Dakota.

A final reason for decentralization is much less widely understood: Political decentralization promotes human progress.

Recall some of the greatest moments in the advance of civilization: The awakening of human intellect in ancient Greece. The quickening of trade and culture, rule of law, and rise in living standards in the early Roman Empire. The flowering of arts and commerce in Renaissance Italy and Germany, the beginnings of the Industrial Revolution in England, and the economic and technological take-offs in 19th century Europe and America.

You may have been taught about these events in school, but you almost certainly were not taught what they all have in common: They all occurred in environments of political decentralization. Sometimes the decentralization was so extreme that the central authorities (if, indeed, there were any) could not even keep the peace. Yet society leapt ahead anyway.

Decentralization permitted the Aristotles and Galileos to move to neighboring jurisdictions more hospitable to their work. It permitted ethnic and religious groups, such as the Jews and Huguenots, to escape persecution and continue productive lives in relatively tolerant Holland and England. It allowed the Ptolomies, Bacons, and Edisons to carry out scientific and technological research in comparative freedom.

Decentralization also encouraged competition among sovereignties and semi-sovereignties for people and for talent. The most welcoming places were rewarded with the most progress.

Political centralizers call themselves “progressives.” But the name embodies a falsehood. Decentralization, not centralization, is more consistent with rapid human progress.

Americans built modern society in an explosion of progress during the period when the Constitution’s constraints on federal authority were still honored. During that period Americans, along with those living in a politically fragmented Europe, tamed electricity … developed modern medicine … and invented the telegraph, telephone, radio, television, railroad, automobile, and airplane. We still depend heavily on basic technology created during the era of decentralization.

Certainly progress has continued since that time, but the rate is slower. If you doubt it, ask yourself this: If two bicycle shop owners tried to invent the airplane in the current regulatory state, how far do you think they would get?

Or weigh the issue from another perspective: Automobiles, then called “road locomotives,” were invented over 200 years ago. They were first mass-produced over a century ago. Why are we still driving them instead of using more exotic modes of personal transportation—such as household flying vehicles? Why have so many of the advances predicted by 20th century science authors failed to come true? In 1940, speculative writers thought we’d have colonies on the moon by now. Based on the pace of progress over the preceding 150 years, they had every reason to think so. But under government pressure, progress slows.

Centralized power, not the Constitution, impedes creative and effective solutions to social problems. The propagandists are wrong. The Founders were right.

Note: When I was seeking an image for this essay on Google Images, I entered “states rights” as a search term. What Google produced were images heavily laced with slavery, the Confederacy, and racism—and nothing on the real purposes of federalism. Google’s biased engineering is a part of the propaganda campaign discussed in this essay.

This essay first appeared in the May 16, 2021 Epoch Times.

The post Defending the Constitution: Limits on federal authority first appeared on Tenth Amendment Center.

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Major Bible publisher scraps ‘God Bless the USA’ Bible that included America’s founding documents, patriotic lyrics

Book publisher HarperCollins announced Tuesday that publication of an America-themed Bible, complete with founding documents and patriotic song lyrics, would not move forward.

News about the Bible’s publication, which surfaced last week, immediately triggered criticism from prominent Christians who believe Christianity and the Bible should not be with American nationalism.

What are the details?

The Bible was slated to include the New International Version translation of the biblical text, which is the best-selling translation in America.

However, HarperCollins, which holds the exclusive rights to the translation and publishes it through its imprint Zondervan, canceled a manufacturing agreement in negotiation that would have allowed the Bible’s creator to use the NIV translation, according to Religion Unplugged.

“Zondervan is not publishing, manufacturing or selling the ‘God Bless the USA Bible.’ While we were asked for a manufacturing quote, ultimately the project was not a fit for either party, and the website and marketing of the NIV project were premature,” Zondervan said in a statement.

The custom Bible was slated to ship to customers in September to commemorate the 20th anniversary of the 9/11 terrorist attacks.

Religion Unplugged reported:

In its last pages, the custom Bible pre-selling for $49.99 includes the full texts of the U.S. Constitution, Bill of Rights, Declaration of Independence and pledge of allegiance. The holy book also includes licensed lyrics to the popular 1984 song by country music singer-songwriter Lee Greenwood, “God Bless the USA.”

The “God Bless the USA Bible” is a product of Elite Source Pro, a Middle, Tenn.-based company that helps businesses with sales, marketing and strategy, including in Nashville’s entertainment industry. Hugh Kirkpatrick, president of Elite Source Pro, confirmed to Religion Unplugged that Zondervan granted the required licensing for the custom Bible.

Kirkpatrick told Religion Unplugged the seed idea for the new Bible was planted last fall after he took notice of culture wars increasingly eroding traditional American history.

“We noticed the divide in the public where some people started seeing pro-American images like the flag, the bald eagle, the statue of liberty as weaponized tools of the Republican party, and we didn’t understand that,” he explained.

“In past civilizations, libraries have been burned. Documents torn down. We started seeing statutes coming down and we started seeing history for good or bad trying to be erased,” Kirkpatrick added. “That’s when we started thinking, okay how far does this erasing of history go? Love it or hate it, it’s history. But how far does it go…? Part of having these statues…is so that we don’t repeat those same mistakes.”

What did critics say?

Prominent Christian authors and speakers like Lisa Sharon Harper, Jemar Tisby, and Shane Claiborne, all of whom are Zondervan authors, published a letter condemning the project.

They argued it promoted “American nationalism.”

American nationalism is its own civil religion, where America rather than Jesus is the center of attention. Instead of Jesus and the Church being the light of the world and the hope for humanity, America becomes the Messianic force in the world. Like any religion it has its own liturgy, saints and holidays. These symbols are on full display in this new Bible – the eagle, the flag, the red, white and blue. America’s civil religion has its own creeds too in the new Bible – “We hold these truths to be self-evident…” It has its own “worship” songs – like “God Bless the USA” and “I’m Proud to be an American,” both by Lee Greenwood. It has its own theology – manifest destiny, the doctrine of discovery and American exceptionalism. And this is precisely why it is dangerous to mesh patriotism with orthodox Christian faith.

After all, the Bible does not say “God bless America.” It says, “God so loved the world.” The national anthem should not be in the church hymnal, and the Pledge of Allegiance to the United States should not be in the Bible.

What is next?

Although Kirkpatrick’s project cannot contain the NIV translation, he told Religion Unplugged the project will move forward with the outdated King James translation instead.

In most countries, the KJV translation — which is more than 500 years old and does not include modern manuscript discoveries — is public domain and does not require licensure for publication.

“They’re [HarperCollins] trying to figure a way to get it done,” Kirkpatrick said. “They want to keep everybody happy. They want to keep their fans on the left and right.”

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Supreme Court unanimously sides against Biden admin, further protects Fourth Amendment rights

The United States Supreme Court unanimously ruled Monday that a so-called exception to the Fourth Amendment called “community caretaking” does not permit police officers to enter and search your home without first obtaining a search warrant, even if doing so may be in the public’s interest.

What is the background?

The Supreme Court heard the case — Caniglia v. Strom — upon appeal by Edward Caniglia, a Rhode Island man whose house was searched by warrantless police officers in 2015. During that search, police seized two firearms, which Caniglia recovered only after jumping through numerous bureaucratic hoops.

Caniglia later sued law enforcement, arguing their actions violated his Fourth Amendment right against a warrantless search and seizure.

However, police claimed they acted lawfully under the “community caretaking” exception, which originated from Cady v. Dombrowski, a 1973 Supreme Court case that said police officers can conduct certain “community caretaking functions” if done in a “reasonable” manner. In that case, police officers had seized a gun located in an impounded car without a warrant.

The ruling overturned rulings by the federal district court and First Circuit Court of Appeals.

What did the high court say?

In a 9-0 ruling, the Supreme Court ruled the “community caretaking” exception does not apply to private residences.

“What is reasonable for vehicles is different from what is reasonable for homes. Cady acknowledged as much, and this Court has repeatedly ‘declined to expand the scope of … exceptions to the warrant requirement to permit warrantless entry into the home,'” Justice Clarence Thomas wrote in the majority opinion.

In fact, Thomas specifically rebuked the First Circuit Court of Appeals for extending the exception.

The First Circuit’s “community caretaking” rule, however, goes beyond anything this Court has recognized. The
decision below assumed that respondents lacked a warrant
or consent, and it expressly disclaimed the possibility that
they were reacting to a crime. The court also declined to
consider whether any recognized exigent circumstances
were present because respondents had forfeited the point.

Nor did it find that respondents’ actions were akin to what
a private citizen might have had authority to do if petitioner’s wife had approached a neighbor for assistance instead of the police.
Neither the holding nor logic of Cady justified that approach. True, Cady also involved a warrantless search for
a firearm. But the location of that search was an impounded vehicle—not a home—”‘a constitutional difference'” that the opinion repeatedly stressed. In fact, Cady expressly contrasted its treatment of a vehicle already under police control with a search of a car “parked adjacent to the dwelling place of the owner.”

“But this recognition that police officers perform many civic tasks in modern society was just that—a recognition that these tasks exist, and not an open-ended license to perform them anywhere,” Thomas added.

Anything else?

In rejecting the extension of the “community caretaking” exception to the Fourth Amendment, the Supreme Court rejected an argument from the Biden administration, which had urged the court to uphold as legal the violation of Caniglia’s constitutional rights.

An amicus brief filed by Justice Department lawyers said:

The touchstone of the Fourth Amendment is reasonableness. For criminal investigations, this Court has generally incorporated the Warrant Clause into the Fourth Amendment’s overarching reasonableness requirement, but it has not generally done so for searches or seizures objectively premised on justifications other than the investigation of wrongdoing. The ultimate question in this case is therefore not whether the respondent officers’ actions fit within some narrow warrant exception, but instead whether those actions were reasonable. And under all of the circumstances here, they were.

The brief further argued that warrants should not be “presumptively required when a government official’s action is objectively grounded in a non-investigatory public interest, such as health or safety.”

The Justice Department, in fact, was so keen on the Supreme Court not ruling in Caniglia’s favor that they urged the court to uphold the officers’ actions “by concluding that the officers are entitled to qualified immunity” if they rejected the Fourth Amendment argument.

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Prince Harry rips 1st Amendment as ‘bonkers’ — and more than a few Americans get plenty annoyed: ‘Show some utter respect’

Fresh on the heels of boldly commanding top podcaster — and MMA fighter — Joe Rogan to “just stay out of it” in regard to Rogan suggesting that young people should not get the COVID-19 vaccine, Prince Harry’s outspoken mouth is getting him in trouble again.

What did he say this time?

The Duke of Sussex — who recently left his royal family behind in England for the sunnier environs of southern California, since which he’s nabbed a considerable windfall through deals with American companies like Netflix and Spotify, the Daily Mail reported — was conversing on Dax Shepard’s podcast Thursday when the subject of paparazzi taking photos of celebrities’ children came up.

“I don’t want to start, sort of, going down the First Amendment route because that’s a huge subject and one in which I don’t understand because I’ve only been here for a short period of time, but you can find a loophole in anything,” Harry said, adding that “laws were created to protect people.”

The prince added, “I believe we live in an age now where you’ve got certain elements of the media redefining to us what privacy means. There’s a massive conflict of interest. And then you’ve got social media platforms, trying to redefine what free speech means. … And we’re living in this world where we’ve almost, like, the laws have been completely flipped by the very people that need them flipped so they can make more money, and they can capitalize off our pain, grief, and this sort of general self-destructive mode that is happening in the moment.”

And soon Harry delivered the shot heard ’round the world: “I’ve got so much I want to say about the First Amendment. I still don’t understand it, but it is bonkers.” (In fairness, Shepard agreed: “It is bonkers.”)

The prince’s comments can be heard in context after the 39-minute mark of the podcast.

How did folks react?

To put it mildly, a number of Americans didn’t much care for Harry’s commentary on the Constitution’s First Amendment, which guarantees citizens the right to freely express themselves, practice whatever religions they choose — or none at all — and to assemble and petition the government.

To say nothing of the fact that the prince is a guest here, making a load of cash here, and enjoying a lifestyle here protected by U.S. laws — and on top of that admitting that “I still don’t understand” the First Amendment, yet summoning the arrogance to dismiss it as “bonkers” — a number of notable U.S. citizens fired back hard.

“We fought a war in 1776 so we don’t have to care what you say or think,” Meghan McCain of “The View” said in reaction to Harry’s comments. “That being said, you have chosen to seek refuge from your homeland here and thrive because all of what our country has to offer and one of the biggest things is the 1st Amendment — show some utter respect.”

Others shared McCain’s sentiments:

  • Republican U.S. Sen. Ted Cruz of Texas quipped in rather understated fashion that it’s “nice” that Harry “can say that.”
  • GOP U.S. Rep. Dan Crenshaw, also of the Lone Star State, noted that Harry “just doubled the size of my Independence Day party.”
  • Megyn Kelly reminded him that it’s “‘better to remain silent and be thought a fool than to speak and remove all doubt.’ (Lincoln or Twain or someone smarter than Prince Harry.)”
  • “Don’t let the door knob hit you, Windsor,” Fox News’ host Laura Ingraham tweeted.

Author Nick Adams — who’s from Australia and says in his Twitter bio that he’s “American by choice” — declared that “Prince Harry should go back to the UK!”

Even fellow Brits got into the act. Former Brexit leader Nigel Farage observed that “for Prince Harry to condemn the USA’s First Amendment shows he has lost the plot. Soon he will not be wanted on either side of the pond.”

Dan Wootton of the UK’s GBNews tweeted that “the First Amendment is one of the biggest reasons why the USA is a bastion of free speech and freedom of expression. The fact Prince Harry doesn’t like it because he thinks rich privileged folk deserve more rights than everyone else says a lot!”

Speaking of, Harry and Meghan just added more to their already considerable coffers with a new partnership with Proctor and Gamble, Yahoo Finance reported Sunday.

Anything else?

According to the Daily Mail, Harry also criticized Prince Charles, Prince Philip, and the queen during the podcast and complained he had suffered “genetic pain,” which led to royal aides demanding that give up his royal titles.

During the 2020 election cycle, Harry and Meghan issued a video widely interpreted as a campaign ad for then-candidate Joe Biden.

When asked for his reaction to the couple weighing in on the race at the time, then-President Donald Trump said, “I’m not a fan of hers, and I would say this — and she probably has heard that — but I wish a lot of luck to Harry, ’cause he’s gonna need it.”

Harry and Meghan also were famously interviewed by Oprah Winfrey recently, during which they alleged racism within the Royal Family.

Constitution Founding Principles Intelwars Living Constitution

Defending the Constitution from the ‘living constitutionalists’

“Originalism” means applying the Constitution as the Founders understood it. Originalism is just a modern name for how English and American judges and lawyers have read most legal documents for at least 500 years (pdf).

By respecting the understanding behind a document, originalism keeps the document alive.

By contrast, there’s no simple definition of “living constitutionalism” because “living constitutionalists” differ greatly among themselves. They’re united by dislike of many of the Constitution’s rules and standards, and they all want to adjust the Constitution to serve their political goals. But beyond that, their unity ends: They sometimes have different goals, and they propose different ways of justifying constitutional manipulation.

“Living constitutionalism” is a misnomer, because when we abandon a document’s rules and standards, the document dies. In practice, “living constitutionalism” converts our Constitution into a parchment loin cloth to cover political pudenda.

Among the inconsistencies of living constitutionalists are claims that our Basic Law is both “too rigid” and “too vague.” One who thinks it’s too rigid is David A. Strauss, a law professor on President Joe Biden’s Supreme Court commission. He wants constitutional law to evolve much as the common law evolves. Such “common law constitutionalists” underappreciate the fact that our decision to adopt a written document was a clear rejection of the British-style “evolving” constitution.

By contrast, William Brennan, a living constitutionalist who afflicted the Supreme Court from 1956 to 1990, thought much of the Constitution was so vague as to be virtually meaningless. He referred to constitutional provisions as “luminous and obscure.” He wanted judges to replace the shimmering fog with structures of their own making.

The “too vague” and “too rigid” accusations are not only inconsistent with each other. They also are incorrect.

Let’s apply a dash of common sense to a serving of history. The Constitution’s framers weren’t the kind of people who write overly rigid or meaningless terms. They included Oliver Ellsworth of Connecticut, John Dickinson of Delaware, and John Rutledge of South Carolina, each the leading attorney in his respective state. Eight framers had been educated in London’s Inns of Court, the schools for training English barristers. The framers included other celebrated lawyers as well, such as James Wilson of Pennsylvania and Alexander Hamilton of New York. Even most of the non-lawyers, such as James Madison and Nathaniel Gorham, had been immersed in legal subjects throughout their careers. The framers had composed written legal documents in business, in law practice, in the state legislatures, and in Congress.

They were, moreover, deeply familiar with the 600-plus-year Anglo-American tradition of composing constitutional-style documents.

They drafted the Constitution as a legal document should be drafted: tuning each provision to the level of rigidity or flexibility necessary to its purpose.

As a result, some constitutional phrases are rigid—but properly so. For example:

  • The president “shall hold his Office during the Term of four Years.”
  • “No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.”

Few of us would want to live under the “living constitutionalist” versions, which might read:

  • “The president shall hold [insert politically correct pronoun here] office as long as the judges, balancing all factors, decide it promotes good social policy,” and
  • “A person may be convicted of treason if the judges find the evidence persuasive after they have balanced its reliability and quantity with the needs of social justice.”

But when rigidity wasn’t appropriate, the framers could write terms flexible enough to satisfy any living constitutionalist. For example:

  • “Each House shall keep a Journal … and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy,” and
  • “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” (Italics added)

And as explained below, the Constitution also has many provisions that are neither particularly rigid nor overly flexible.

One reason some people think the Constitution is too vague or too rigid is that they don’t understand what many of its clauses actually mean.

For 25 years I’ve been working to cure that by writing a series of research articles exploring sections of the Constitution. My research has demonstrated that many charges of rigidity or vagueness are wrong.

For example, some law professors used to laugh at how “rigid” the Coinage Clause is. The Coinage Clause (Article I, Section 8, Clause 5) grants Congress power “To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures.” The scoffers assumed that “To coin Money” meant only to strike metallic coin. They said that in modern society this is impractical: We need paper and electronic money as well.

But if they’d read the clause carefully, they might have noticed that interpreting “coin” as only metal made no sense. When the Constitution says “regulate the Value … of foreign Coin,” it means setting foreign exchange rates. If “Coin” meant only metal, then Congress could set exchange rates for foreign metal tokens but not for foreign paper money. Surely the Founders didn’t intend such an absurd result.

And they didn’t. As I documented in a 2008 article (pdf) published by one of the Harvard journals, the Founders understood the Constitution’s word “coin” to include money in any medium, including paper. The scoffers were flat wrong: The Coinage Clause wasn’t rigid at all!

I also have disproved the once-common charge that the Constitution permits only male presidents, and other scholars have rebutted (pdf) the charge that its original meaning permits segregation of schools.

The living-Constitution crowd leveled the opposite accusation against the Necessary and Proper Clause (Article I, Section 8, Clause 18). They claimed it was so open-ended they branded it the Elastic Clause.

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

“What in the world does ‘necessary and proper’ mean?” the scoffers asked. “And what about these powers ‘in the Government of the United States’? Is that a drafting mistake? The Constitution grants powers to government departments and officers, but not to ‘the Government of the United States.’” Some living constitutionalists even claimed it refers to federal authority not otherwise mentioned in the Constitution.

Most constitutional commentators have had little experience practicing law. But I had, and to me the Necessary and Proper Clause looked like a phrase I’d seen in agency and trust documents. I suspected “necessary and proper” was a common term in 18th century documents and had a specific meaning.

Investigation proved my hunch correct. During the Founding Era, “necessary and proper” and variants of that phrase were exceedingly common in legal documents. In this context, “necessary” was a technical term for “incidental,” and “proper” meant “in compliance with fiduciary duty.” I don’t have space here to explain all of these legal expressions, but I can assure you they’re not “vague.”

The Necessary and Proper Clause authorized Congress to undertake a limited number of subordinate activities the Constitution doesn’t list explicitly. My investigation also showed that the Supreme Court had misapplied the Clause in some very important cases.

I also found—contrary to what the scoffers were saying—that the part of the clause referring to powers granted to “the Government of the United States” wasn’t a drafting error or a reference to mysterious extra-constitutional authority. The Constitution explicitly grants some powers to the federal government as an entity. This last point became clear from examining colonial documents familiar to the framers but unknown to most commentators.

My Necessary and Proper Clause findings were published in a book issued by Cambridge University Press and in other outlets (pdf).

Over the past quarter century, I have examined many other parts of the Constitution previously pronounced rigid, vague, or meaningless. I have found that all have fairly well-defined meanings. Moreover, most are flexible enough to accommodate modern political activity consistent with the Constitution’s underlying principles of freedom, federalism, and limited government. Admittedly, they’re inconsistent with the goals of many of the “living constitutionalists”—regimentation, centralization, and cultural destruction.

Of course, altered conditions occasionally do require constitutional change. To respond, we can use the amendment process. We don’t need to kill the Constitution on the pretense of letting it live.

The post Defending the Constitution from the ‘living constitutionalists’ first appeared on Tenth Amendment Center.

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What Does the Constitution Mean by a State Legislature?

The Constitution’s multiple references to “state legislatures” raise difficult and significant issues.  The main question is whether we can give a consistent answer to the meaning of this term across a large number of different constitutional clauses that both fits the constitutional text and gives a plausible answer.  In this essay, I begin to offer a solution to this significant matter.

Developing a satisfactory answer is important for several reasons.  First, it provides an originalist answer to a difficult interpretive question – something important in its own right that also demonstrates the power of originalism as an interpretive method.  But it is also important because it addresses two of the most significant questions involving elections in recent years – questions such as (1) whether courts can use state constitutional provisions to displace laws passed by state legislatures that regulate the presidential election and (2) whether state referenda can be used to bypass state legislative redistricting decisions by assigning redistricting decisions to independent commissions.

The Constitution’s frequent use of “state legislatures” requires two main questions to be answered.  One question involves whether an entity other than the state legislature can take an action when the Constitution assigns that action to the state legislature.  For example, the Constitution provides that “each State shall appoint, in such Manner as the Legislature thereof may direct,” the members of the electoral college.  Does that provision allow the state Constitution to override the state legislature’s decision as to the manner of appointing the electors?  And if it does, can the courts enforce that constitutional provision to the detriment of the state legislature?  In the 2020 election, the Pennsylvania Supreme Court used the state constitution to override the election law that the state legislature had enacted.  While the United States Supreme Court refused to hear the challenges to that decision, the question remains whether that action was constitutional under the U.S. Constitution.

A similar issue that arises here occurs when the state, either through its constitution or some other means, assigns a decision of the state legislature to another entity.  For example, the Constitution provides that “the Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.”  Does this provision allow the state constitution or the voters through a referendum to assign redistricting decisions to an independent commission rather than the state legislature?  Some states have done exactly that and the Supreme Court in 2015 approved of the action in Arizona State Legislature v. Arizona Independent Redistricting Comm’n.  My short answer to these questions is that the United States Constitution prevents the state constitution or the voters from assigning any of these decisions to anyone other than the state legislature.

The second question raised by the state legislature provisions involves which entity makes a decision when the state legislature is assigned that task.  Is the decision to be made by the state legislature proper – that is, both legislative houses but with no opportunity for the governor to veto it?  Or is it to be made by the state legislature with opportunity for a gubernatorial veto?  Sometimes the practice is for one (for example, state legislative ratification of constitutional amendments), at other times the practice is for the other (state legislative determination of the times, places and manner of holding congressional elections).  Is the practice correct, and if so, why?  Here, I argue that the Constitution draws a distinction between tasks for the state legislature that involve enacting laws and tasks that do not.

State Legislatures or Constitutions and Popular Votes

Let me start out with the first question.  Can the state constitution make a decision instead of the state legislature?  The short answer is no.  The U.S. Constitution means what it says.  The fact that the state legislature is assigned the decision means the state constitution (especially if enacted in part by an entity other than the state legislature) cannot override the state legislature.  The U.S. Constitution takes priority over the state constitution.  This indicates that the Pennsylvania Supreme Court acted unconstitutionally prior to the 2020 presidential election when it relied upon the state constitution to override the state statute that had required a mail in ballot to be received by 8:00 PM on election night and instead held that the ballot could be received up to three days after the election.

Similarly, if the people of the state, through a popular vote allowed by the state constitution, assign the decision on how to hold congressional elections to a redistricting commission, that too is unconstitutional.  The Supreme Court in Arizona Independent Redistricting Comm’n (2015) sought to defend the constitutionality of these commissions by arguing that the people of the state are exercising legislative power and therefore constitute a state legislature.  But the term “state legislature” does not refer to anyone or anything that exercises legislative power.  Rather, it refers to a specific type of institution and therefore the people of the state in a popular vote are not a state legislature.  While the Supreme Court’s approval allows states to combat gerrymandering through popular referenda and redistricting commissions, it does so in an unconstitutional manner.  The only constitutionally authorized ways to combat gerrymandering is through state or congressional legislation.

In fact, various constitutional provisions are inconsistent with understanding the people of the state as the state legislature, as, for example, in the clause that provides “if [Senate] Vacancies happen by Resignation or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the legislature, which shall then fill such vacancies.”  The people of the state do not take recesses.  The Constitution may contemplate some variety in types of state legislatures, but it does not contemplate a popular vote of the people as a state legislature.

State Legislatures Alone or With Governors

Now, consider the second question.  Sometimes the practice treats the state legislature as simply the two houses and at other times it treats it as the two houses along with presentment to the governor.  But how can that practice be made consistent with the constitutional text?

Here, the answer turns on the type of activity that is assigned to the state legislature.  If the activity involves passing a law, then the state legislature can use its normal process for passage of a law, which in virtually all states involves the possibility of a gubernatorial veto.  Thus, when the Constitution confers on the state legislature the power to regulate “the Times, Places and Manner of holding Elections” for members of the House of Representatives,” it contemplates an election governed by laws enacted by the state legislature.  The legislature can then use its ordinary process for passing such laws.

By contrast, if the activity is simply a vote on a matter that does not require the passage of a law but instead is simply part of a process established by the Constitution, then the Constitution assigns the task entirely to the state legislature, without the governor’s participation.  For example, the original Constitution provided that the “Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years.”  Since selecting a Senator does not involve passage of a law, the governor is not involved.  A similar result applies to the ratification of constitutional amendments, which does not involve passage of a law, but is simply part of a two part process established by the Constitution.

If this is the distinction that the Constitution draws, then how can we derive it from the text?  In other words, how do we derive two different meanings from largely the same language, and how do we then determine which of these meanings apply in which situations?  Let’s begin with deriving two different meanings from largely the same language.  Significantly, this language is capable of both meanings.  Sometimes the words state legislature are used to mean only the two houses – what we can call “the state legislature proper.”  At other times, the words are used to refer to the two houses of the state legislature along with presentment to the governor – as when someone describes a law as having been enacted by the state legislature, even though the governor was involved.  Thus, the language is perfectly consistent with both meanings.

Which of the two meanings was employed depends on the context.  In the case of the Constitution assigning a task that involves passage of a law, such as regulating the times, places, and manner of holding congressional elections, the context suggests enactment by the normal state legislative process for passing a law.  In that situation, the Constitution is saying, the state legislature has the power to regulate by law the times, places and manner of holding elections.  It does not need to say that explicitly because it is understood that such actions would normally be enacted through laws.  By contrast, in the case of the Constitution assigning a task, such as selecting a Senator that does not involve passing a law, the term “state legislature” has its more straightforward or proper meaning.

The hardest provision to interpret is the one governing the selection of the electoral college.  The provision states “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . . .”  Historically, it appears that state legislatures have proceeded in two ways under this provision.  When the legislature selected the electors, as happened in the early years of the Republic, the legislature proper would make the decision.  When the legislature authorized an election to select the electors, the legislature did so through the ordinarily lawmaking process with an opportunity for gubernatorial veto.

Interpreting the provision to authorize this practice is something of a challenge.  One would have to understand the provision to require that the legislature act by law when legislation is required and through the legislature proper when a law is not needed.  That would require reading the provision to say “Each State shall appoint, in such Manner as the Legislature by law or on its own, as the circumstances require, may direct . . . .”  Is this a permissible textual interpretation?

Admittedly, this interpretation is a bit of a stretch, but it does have some significant support in addition to fitting the practice.  First, given that the other constitutional provisions involving the state legislature are properly interpreted as using the term to mean either the legislature proper or the legislature by law, depending on the context, this interpretation gains support as having a meaning that is reflected in these other constitutional provisions.  It is a traditional canon of textual interpretation to read constitutional provisions to accord with other provisions in the Constitution.  Second, since this interpretation fits the practice, this reading appears to be how state legislatures historically must have interpreted the provision.

In the end, the question of how to interpret the different constitutional provisions involving state legislatures is a challenge both for our constitutional understanding and for originalism.  If it were impossible to reconcile these different provisions in a consistent way, as seems to be assumed by some nonoriginalists, then we would have a much poorer understanding of our Constitution.  And it would give nonoriginalists greater freedom to choose how to interpret provisions, permitting them to reach results that they prefer on political grounds.  But if I am right, the original meaning makes sense, can be understood, and places strict limits on how the Constitution applies to state legislatures in some extremely important cases.

NOTE: This post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission.

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The Framers did not violate their trust

This is the fifth in a series of essays defending the U.S. Constitution against common accusations against it. This essay examines the claim that that the framers – the Constitution’s drafters – staged a coup d’état by proposing a new Constitution. As usually stated, the allegation is that:

“The Confederation Congress adopted a resolution calling a convention limited only to proposing amendments to the Articles of Confederation. But the convention disregarded limits on its authority and instead drafted an entirely new document. Moreover, the Articles could be amended only by approval of Congress and unanimous consent of the states. But the convention unilaterally changed the rule to allow ratification by nine states.”

This charge is very old: It first arose during the ratification debates of 1787–1790. Although modern scholars have debunked it (pdf), the Constitution’s critics continue to peddle it. In doing so, they –

  • overlook critical events leading up to the convention;
  • fail to read Congress’s resolution carefully;
  • are unaware of the real source of the framers’ powers;
  • are unaware that Congress actually approved the convention’s product; and
  • overlook important historical sources.

Let’s review each of these.

Events Leading to the Convention

In 1787, the states were bound by a loose agreement called the Articles of Confederation. Under the Articles, the states delegated to the Confederation narrow responsibilities, mostly over defense and foreign affairs.

Although some refer to the Articles as “our first constitution,” this is a misnomer. During the founding-era, a “confederation” meant a treaty or alliance. The Articles were analogous to NATO and Congress was analogous to NATO’s administering body, the North Atlantic Council.

Like other treaties, the Articles left individual states free to address most issues themselves. Even when issues were common to several states, the states often did not present them to Congress. Instead, they entered bilateral negotiations or they negotiated multilaterally through “conventions of the states.”

A convention of states met in Annapolis in September 1786. It recommended to the state legislatures that they send commissioners (delegates) to a new convention in Philadelphia the following May with power to propose a stronger central authority.

The New Jersey legislature responded in November 1786 by appointing commissioners to the new convention. The legislature granted its commissioners extensive powers to discuss and propose any change in the political system they deemed appropriate for the benefit of the union.

The following month the Virginia legislature issued a formal convention “call” (invitation) to the other states. Virginia appointed commissioners and granted them powers similar to those the New Jersey legislature granted its commissioners:

“devising and discussing all such Alterations and farther Provisions as may be necessary to render the Foederal [sic] Constitution adequate to the Exigencies of the Union and in reporting such an Act for that purpose to the United States in Congress as when agreed to by them and duly confirmed by the several States will effectually provide for the same.”

Note that the phrase “Foederal constitution” means, in accordance with then-prevailing usage, the entire political system. It does not refer solely to the Articles of Confederation, as some critics assume.

The powers listed in the Virginia “call” – to propose any “Provisions as may be necessary” to render the political system “adequate” – became the basis on which five additional states agreed to participate in the weeks leading up to Feb. 21, 1787.

Congress’s Resolution Was Not the Convention Call

In February, a committee headed by John Dickinson of Delaware (who had chaired the Annapolis Convention) moved that Congress endorse the pending Philadelphia conclave. Dickinson believed a recommendation, although non-binding, would build public support.

The congressional proceedings make it clear everyone understood that unless something changed, the convention would be able to propose reform of the entire political system. But New York did not want that. New York congressional delegates moved that Congress recommend that the convention reduce its scope to proposing amendments to the Articles.

New York’s motion failed. But on Feb. 21, 1787, the Massachusetts congressional delegation obtained a compromise resolution. This resolution merely expressed Congress’s “opinion” that the convention focus on amendments to the Articles. As I wrote in a 2013 research study (pdf):

“[T]he successful resolution neither ‘called’ a convention nor made a recommendation. In fact, it omitted the language of recommendation in the committee proposal and in the New York motion. The adopted resolution merely asserted that ‘in the opinion of Congress it is expedient’ that a convention be ‘held at Philadelphia for the sole and express purpose of revising the Articles of Confederation’ ….

“It is, perhaps, truly extraordinary that so many writers have repeated the claim that Congress called the Constitutional Convention and legally limited its scope. First, the Confederation Congress had no power to issue a legally-binding call. If the states decided to convene, as a matter of law they – not Congress – fixed the scope of their delegates’ authority. Second, the Articles gave Congress no power to limit that scope. To be sure, Congress, like any agent, could recommend to its principals a course of action outside congressional authority. But this is not the same as legally restricting the scope of a convention. Third, by its specific wording the congressional resolution was not even a recommendatory call or restriction. As shown above, Congress dropped the formal term ‘recommend’ in favor of expressing ‘the opinion of Congress.’”

Congress could express its “opinion,” but within their own sphere the states could do what they deemed best. After Feb. 21, five additional states voted to send commissioners to Philadelphia – but only Massachusetts and New York limited them to amending the Articles. And none of the first seven states to commit narrowed the scope of their commissioners’ powers.

It was only later that critics re-fabricated Congress’s “opinion” into a claim that Congress had called the convention and limited its scope.

The Framers’ Real Source of Authority

Eighteenth-century law and convention practice tell us that the convention’s authority was defined by the broad commissions or credentials issued by a majority of states. Other documents, including a letter written in early 1787 by John Jay to George Washington, confirm this.

Critics point out that some commissioners, particularly those from Massachusetts and New York, questioned the source and extent of their authority. But the majority’s credentials were clear. They even adopted a resolution that, as South Carolina’s Charles C. Pinckney noted, effectively “declar[ed] that the convention does not act under the authority of the recommendation of Congress.”

Hugh H. Brackenridge, a distinguished Pennsylvania lawyer (and later a justice of the state supreme court) summarized the legal situation shortly after the Convention adjourned:

“[T]he calling the late convention did not originate with Congress; it began with the state of Virginia which was followed by this state, without any hint of the necessity of this measure from Congress whatever; it was a proceeding altogether out of the confederation, and with which Congress had nothing to do.”

Approval by Congress and Ratification by All States

Critics complain that Congress did not pass a formal resolution of approval. But that was not the framers’ fault: They sent the Constitution to Congress for approval, but Congress doubted its power to formally endorse it. Congress did vote unanimously to send the document to the states for ratification, and this action was understood to constitute informal approval.

What of the claim that the Articles of Confederation required all 13 states to approve any amendment? One response is that all 13 states did, in fact, eventually ratify the Constitution. But a more fundamental response is that the Constitution was not an amendment to the Articles. It was a decision by signatories to a treaty to replace that treaty with a new arrangement. Treaty signatories always have this power. That was doubly so in this instance, because several states had breached the terms of the Articles by, for example, failing to pay required financial assessments. Breach of a treaty by one party releases other parties from their obligations.

Relying on Too Few Sources

The charge that the framers staged a coup is, like many other slanders against the Constitution, based on misreading a small handful of sources. Some people seem to think they are constitutional “experts” because they have scanned James Madison’s convention notes and the Federalist Papers. But those sources comprise only a tiny fraction of the historical record.

For example, some of the Constitution’s enemies seem to think Madison’s tepid defense of convention authority in Federalist No. 40 was all that was said on the subject. But the delegates’ commissions show that Madison understated his case, probably because he did not have copies of the commissions when he wrote No. 40. (He, after all, was far from home at the time.) In my experience, most of the Constitution’s enemies would rather attack than seek the truth.

In sum: The claim that the Constitution was a “coup” is a slander against the framers. The vast majority of convention delegates had full authority to act as they did. And of the small minority who did not, most did not sign the Constitution.

This essay first appeared in the April 12, 2021 Epoch Times.

The post The Framers did not violate their trust first appeared on Tenth Amendment Center.

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Federalism Is the Best Step

Although the word federalism does not appear in the Constitution, it is one of the most important and innovative concepts in it.

When the Constitution was adopted in 1789, a federal republic, not a democracy, was established. As future president James Madison wrote in The Federalist, No. 10: “Democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths.”

Federalism is the division of power between the national and state governments. Articles I through III of the Constitution delegate certain powers to the three branches of the national government. The Ninth and Tenth Amendments make it clear that all rights and powers not delegated to the federal government are retained by the people and the states.

The states of the United States of America created the national government — not the other way around. The states had been in existence as independent, sovereign colonies for many, many years. Only Georgia (1732) among the original 13 colonies was not established in the 1600s.

The Declaration of Independence (1776) states:

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these united Colonies are, and of Right ought to be Free and Independent States.

This status continued when the states adopted the Articles of Confederation (1781): “Article II. Each state retains its sovereignty, freedom, and independence, and every Power, Jurisdiction, and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.” And most importantly, this status persisted after the Constitution was adopted. The Constitution refers to the United States in the plural in Article III, Section 3, Paragraph 1: “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.”

The best explanation of American-style federalism is that given by Madison in The Federalist, No. 45:

The powers delegated by the proposed Constitution to the Federal Government, are few and defined. Those which are to remain in the State Governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will for the most part be connected. The powers reserved to the several States will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people; and the internal order, improvement, and prosperity of the State.

Since as far back as the New Deal, liberals and progressives have been derisive of federalism and supportive of increasing the spending, size, and scope of the federal government.


The U.S. federal government has become a monstrosity. With an annual budget of over $5 trillion and a national debt of over $28 trillion, federal spending is out of control. According to the nonpartisan Congressional Budget Office (CBO), federal debt now exceeds GDP. Even before the COVID-19 “pandemic” relief efforts, the federal government was spending over $11 billion per day, $468 million per hour, $7.8 million per minute, or $130,000 per second.

There are two types of spending by the federal government: mandatory and discretionary. Mandatory spending, which accounts for about two-thirds of the federal budget, refers to the portion of the budget that Congress legislates outside of the annual appropriations process: Social Security, Medicare, Medicaid, welfare and subsidies, food stamps, unemployment benefits, and refundable tax credits. Discretionary spending, which accounts for about one-third of the federal budget, refers to the portion of the budget that is decided by Congress through the annual appropriations process: military spending, education, NASA, foreign aid, job training, Head Start, and research grants.

But it’s not just the spending of the federal government that is the problem, it is also the size and scope of the federal government.


The federal government contains a multitude of agencies, bureaus, corporations, commissions, administrations, authorities, and boards organized under 15 departments. The following is a list of the Cabinet-level, executive-branch departments, along with the dates of their creation: Agriculture (1862), Commerce (1913), Defense (1947), Education (1979), Energy (1977), Health and Human Services (1979), Homeland Security (2002), Housing and Urban Development (1965), Interior (1849), Justice (1870), Labor (1913), State (1789), Transportation (1966), Treasury (1789), and Veterans Affairs (1989). (Some of the departments existed earlier under other names.) The Department of Agriculture includes the food stamp program. The Department of Energy operates national laboratories and maintains the Strategic Petroleum Reserve. The Department of Health and Human Services includes Medicare, Medicaid, and myriad other welfare programs. The Department of Homeland Security includes the Federal Emergency Management Agency (FEMA) and the Transportation Security Administration (TSA). The Department of Housing and Urban Development administers Section 8 housing vouchers. The Department of the Interior includes the National Park Service and the Bureau of Land Management (BLM). The Department of Justice includes the Drug Enforcement Administration (DEA), the Federal Bureau of Investigation (FBI), and the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF). The Department of State funds the United Nations and foreign aid. The Department of the Treasury includes the Internal Revenue Service (IRS) and the U.S. Mint.

There is also the alphabet soup of independent agencies of the federal government, each of which has its own budget. The most well-known ones are the Federal Reserve, the National Aeronautics and Space Administration (NASA), the Consumer Product Safety Commission (CPSC), the Securities and Exchange Commission (SEC), the National Endowment for the Arts (NEA), the National Endowment for the Humanities (NEH), the Federal Communications Commission (FCC), the Federal Trade Commission (FTC), the Small Business Administration (SBA), the Central Intelligence Agency (CIA), the National Security Agency (NSA), the Environmental Protection Agency (EPA), the Equal Employment Opportunity Commission (EEOC), and the Social Security Administration (SSA)

And then there are the federal corporations, many of which Americans have never heard: the Corporation for Public Broadcasting (CPB), the Tennessee Valley Authority (TVA), the Corporation for National and Community Service (Ameri-Corps), the Legal Services Corporation, the National Endowment for Democracy, the National Railroad Passenger Corporation (Amtrak), the Neighborhood Reinvestment Corporation, the Export-Import Bank of the United States, the Federal Crop Insurance Corporation (FCIC), and, of course, the United States Postal Service (USPS).

According to the latest report on the federal workforce by the Congressional Research Service, over 2.1 million federal civilian employees work at these departments, independent agencies, and corporations, not counting the post office, which employs about 580,000 people, and not counting the legislative and judicial branches, which employ another 64,000 people. And then there are the 1.4 million active-duty uniformed military personnel — most of whom are not actively engaged in defending the United States by securing U.S. borders, protecting U.S. soil, guarding U.S. shores, patrolling U.S. coasts, and enforcing no-fly zones over U.S. skies. They are too busy doing these things in other countries, and being the world’s policemen, firemen, and social workers.

Although it makes sense that tax evasion, mail fraud, and counterfeiting are federal crimes, the federal government has categorized over 4,000 actions as federal crimes, including things such as domestic assault by a habitual offender, drug possession, carjacking, obscenity, animal cruelty, and art theft from a museum. The exact number of federal crimes is unknown. As the American Bar Association’s Task Force on the Federalization of Crime concluded a few years ago: “So large is the present body of federal criminal law that there is no conveniently accessible, complete list of federal crimes.”

Does the Constitution authorize all of these federal departments, agencies, corporations, employees, and crimes? Does the Constitution authorize any of them? (Please, go and look for such authorization.)


The scope of the federal government is without limit. There is no area of American life that the federal government does not have an impact on. The federal government reads our e-mails, listens to our phone conversations, tracks our bank deposits and withdrawals, regulates the size of the holes in our Swiss cheese, gropes us and forces us to throw away tubes of toothpaste over 3.4 ounces before we can board airplanes, regulates the amount of water that toilets are allowed to flush, and owns more than 40 percent of the land in nine states. As Charlotte Twight wrote almost 20 years ago in Dependent on DC: The Rise of Federal Control Over the Lives of Ordinary Americans:

Growing federal power-driven by legislation, validated by Supreme Court decisions, and accelerated by presidential ambition — has eroded the rule of law in our nation, leaving almost no activity that the central government cannot at its discretion regulate, manipulate, or prohibit. A constitutional counterrevolution has occurred in America — one so profound that few today can imagine Americans free of dependence on government.

And this was all before the “pandemic.”

During the holiday season last year, the federal government’s Centers for Disease Control and Prevention (CDC) issued “guidelines” for holiday celebrations and gatherings. Americans were told not to travel, not to get within six feet of anyone who didn’t live with them, not to go out in public or be around people who didn’t live with them without wearing a mask, not to have indoor gatherings, not to have long gatherings, not to have crowded gatherings, not to hug, not to shake hands, not to take off their face mask unless eating or drinking, not to shout, not to sing, not to play loud music, not to drink alcohol, not to let pets interact with anyone from outside of the household, not to have potluck-style gatherings, not to have more than one person serve food, not to have sharable items such as salad dressings and condiments, and not to touch their mask, eyes, nose, or mouth.

Earlier this year, the CDC even sought to control how Americans watched the Super Bowl. Sports junkies were reminded to wear masks, maintain social distancing, wash their hands often, only have small gatherings, and bring their own “food, drinks, plates, cups, utensils, and condiment packets” to parties, if they dare go to one. The CDC even warned Americans against “shouting, cheering loudly, or singing” while they watched they game.


The United States is far removed from the limited government of the Founders, and has been for some time. The liberties of the American people are in peril as never before. But this is not just because of the spending, size, and scope of the federal government. As we especially saw last year throughout the COVID-19 “pandemic,” the state governments — mainly the ones headed by Democratic governors, but not exclusively — can be authoritarian, tyrannical, and even totalitarian.

Many Americans took the CDC’s paternalistic and draconian “guidelines” as law. But in some states, government officials turned the guidelines into de facto laws. Holiday gatherings in California were restricted to no more than three households, had to be outside, had to have enough space so that everyone could stay six feet apart, had to use single-serve disposable containers, and were restricted to two hours.

In Oregon, no more than six people could gather in one home, and they could not represent more than two households. Church funeral services were limited to 25 people. Restaurants could only offer take-out.

The city of Philadelphia banned all indoor dining at restaurants and indoor gatherings of any size, public or private, of people from different households.

The mayor of Tampa, Florida, was furious that thousands of people ignored the city’s mask and social-distancing mandates while celebrating the Tampa Bay Buccaneers’ Super Bowl win. Some cities shut down all indoor dining for many months in 2020.

According to the National Restaurant Association, more than 110,000 restaurants have permanently closed in the United States because of state government restrictions due to the “pandemic.”


There are a number of steps that have been proposed to help restore the constitutional federal republic of the Founders in which liberty was proclaimed throughout the land. Since the advent of the Biden administration, the nullification of unconstitutional federal actions by the states has been increasingly mentioned. Term limits for members of Congress are a perennial step that some have proposed, even though voters can remove anyone from Congress at any election. Some have called for a new constitutional convention to propose additional amendments to the Constitution, as if Congress actually follows the Constitution in the first place. Others say that we just need to elect more Republicans to Congress, even though congressional Republicans rarely reverse the bad policies enacted by Democrats and often enact bad policies of their own. But in spite of the problems with the governments of the several states, federalism is still the best step to reining in the out-of-control federal government and restoring the liberties of the American people. And what a big step it is. Let’s look at some key issues through the lens of federalism.

The Drug War: Not only does the Constitution not mention drugs of any kind, it nowhere authorizes the federal government to regulate, monitor, or restrict the medical, recreational, or consumption habits of Americans. The federal government has no authority under the Constitution to prohibit or otherwise criminalize the manufacture, sale, possession, or use of any drug; no authority under the Constitution to interfere with what Americans put in their mouths, noses, veins, or lungs; no authority under the Constitution to intrude itself into the personal eating, drinking, or smoking habits of Americans; no authority under the Constitution to have an Office of National Drug Control Policy, a Drug Enforcement Administration, a Controlled Substances Act, a Substance Abuse and Mental Health Services Administration, a National Drug Control Strategy, a National Survey on Drug Use and Health, or a drug czar. Under our federal system of government, any laws banning drugs would have to exist only at the state level.

Education: The Constitution nowhere authorizes the federal government to have anything to do with education or to pay for anyone’s education. This means not only no Department of Education, but no Higher Education Act, no Elementary and Secondary Education Act, no bilingual-education or special-education mandates, no math and science initiatives, no desegregation orders, no Pell Grants, no student loans, no research grants to colleges, no scholarships, no school accreditation, no anti-discrimination policies, no standardized-testing requirements, no Common Core standards, no Race to the Top funds, no No Child Left Behind Act, and no Head Start funding. If there is to be any government involvement in education, it must be limited to the state level.

Welfare: The Constitution nowhere authorizes the federal government to provide welfare in cash or in kind, feed anyone, have a safety net, fight poverty, or help the sick, aged, disadvantaged, underprivileged, or disabled. This means no Supplemental Nutrition Assistance Program (SNAP, formerly known as food stamps), no Women, Infants, and Children (WIC), no Temporary Assistance to Needy Families (TANF), no Low Income Home Energy Assistance Program (LIHEAP), no Special Milk Program (SMP), no refugee assistance programs, no job training programs, no Commodity Supplemental Food Program (CSFP), no Community Development Block Grants (CDBG), no housing-assistance programs, no homeless-assistance grants, no family-planning programs, no adult basic-education grants, no legal-services block grants, no Healthy Marriage and Responsible Fatherhood (HMRF) initiative, and no refundable tax credits. If there are to be government welfare programs, they must be provided only on the state level.

Subsidies: The Constitution nowhere authorizes the federal government to provide subsidies for art, culture, science, housing, agriculture, the humanities, or any particular segment of the economy or society. This means that there is no justification for the existence of the National Endowment for the Arts (NEA), the National Endowment for the Humanities (NEA), section 8 housing vouchers, farm bills, or the National Science Foundation (NSF). If there are to be government subsidies for these things, they must be provided only on the state level.

Healthcare: The Constitution nowhere authorizes the federal government to have anything to do with healthcare or health insurance. This means no laws, mandates, regulations, requirements, licensing, standards, programs, agencies, funding, guidelines, oversight, restrictions — absolutely nothing of any kind on the federal level. Nowhere does the Constitution authorize the federal government to have programs such as Medicare, Medicaid, SCHIP, or ObamaCare. Nowhere does the Constitution authorize the federal government to have agencies such as the National Institutes of Health (NIH), the Food and Drug Administration (FDA), or the Department of Health and Human Services. Nowhere does the Constitution authorize the federal government to fund clinical trials, laboratories, community health centers, medical research, HIV/AIDS prevention initiatives, or family planning. Nowhere does the Constitution authorize the federal government to have nutrition guidelines, vaccination mandates, drug schedules, or prescription drug plans. Nowhere does the Constitution authorize the federal government to mandate the reduction of co-payments and deductibles, the elimination of annual and lifetime caps on benefits, or the issuance of insurance policies without regard to pre-existing conditions. Nowhere does the Constitution authorize the federal government to provide a healthcare safety net or ensure that anyone has affordable healthcare and health insurance. If there is to be any government involvement in healthcare or health insurance, it must be limited to the state level.

Now, none of this means that the states should have a drug war, should provide or pay for education, should provide welfare, should subsidize anything, or should provide or pay for healthcare. It simply means that the federal government should have nothing to do with any of these things, since they are not among the enumerated powers of the national government and, under our federal system, are retained by the states or the people. Federalism is not some policy proposal issued by a Republican politician or conservative think tank. It is part and parcel of the very fabric of the Constitution and the limited government established by the Founders.

Although the state governments have their problems, a strict adherence to federalism is the best step to reining in the out-of-control federal government and restoring the liberties of the American people.

The post Federalism Is the Best Step first appeared on Tenth Amendment Center.

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Why state equality in the Senate makes sense

Political “progressives” have intensified their attack on the U.S. Constitution. This is the fourth in a series of essays showing why their principal charges are false.

The first essay answered the charge that the Constitution discriminated against women. As that essay shows, the Constitution is gender-neutral. The second essay rebutted the claim that the three-fifths compromise was motivated by racism. Actually, the compromise arose out of a negative economic assessment of slavery. The third essay responded to the assertion that the Constitution was designed to protect slavery.

This column addresses “progressive” attacks on the institution of the U.S. Senate.

The more extreme critics, such as the author of a 2018 GQ article, argue that we should abolish the Senate entirely and reduce Congress to a single chamber. But the dangers of unicameralism are too widely understood for this idea to have much traction. What James Madison wrote in 1788 remains true today: “[H]istory informs us of no long-lived republic which had not a senate.” That is, without a senior legislative body to moderate volatility and prevent hasty mistakes, a fully sovereign republic doesn’t last long.

There’s another problem with abolishing the Senate. The Constitution assigns that chamber specific tasks, such as approving presidential appointments, trying impeachments, and ratifying treaties. If the Senate were abolished, all those functions would have to be re-assigned. The political wrangling over reassignment could go on for decades.

More superficially persuasive is the view that we should allocate senators by population (or by a similar formula) rather than assign two of them to each state. A flippant version of this view appeared in a 2011 Time Magazine editorial: “[T]he idea that … South Dakota should have the same number of Senators as California … is kind of crazy.”

But is it?

Let’s start with some background:

Underlying the Constitution’s text are political principles that guided the drafting of the document. One of these principles, borrowed from the law of fiduciary trusts (pdf), is impartiality. In the Constitution this includes (1) impartiality toward persons and (2) impartiality toward states. When impartiality toward persons and states conflicted, the framers chose one or the other (depending on the issue) or they balanced the two.

A goal behind impartiality toward states is fair treatment of all regions, which in turn helps keep the country together. That we are still united 230 years later is testimony to the framers’ success. Tellingly, the most important incident of disunion—the Civil War—arose because one region did not think it was being treated fairly.

The allocation of members of Congress is the product of the framers balancing impartiality toward persons and impartiality toward states. The House of Representatives is allocated (primarily) by population and the Senate by states.

Suppose we abandoned impartiality toward states and instead allocated senators by population. What would be the results?

For one thing, regional coalitions more readily could oppress other parts of the country. For example, a coalition of legislators from populous northeastern and Pacific coast states could inflict almost anything on the rest of us.

Moreover, the dominant coalition would be motivated to upset the state–federal balance by concentrating power in the Congress they controlled.

Another result of allocating both the House and Senate by population would be to impair the quality of congressional decision making even below its currently low level.

The framers had experience with bicameral systems in which upper and lower chambers differed from each other in many ways—mode of selection, terms of office, qualifications to serve, districts represented, and so forth. They had learned that when a proposal is examined from diverse viewpoints you get better results. As Alexander Hamilton wrote in the context of the presidential veto (Federalist No. 73):

“The oftener the measure is brought under examination, the greater the diversity in the situations of those who are to examine it, the less must be the danger of those errors which flow from want of due deliberation, or of those missteps which proceed from the contagion of some common passion or interest.”

It’s remarkable that the modern social justice warriors so fixated on “diversity” profess not to understand this.

Social justice warriors also may be offended by my outlining another way the Senate improves decision making. Here it is:

Although big cities are sources of creativity, culture, and technical progress, they do some other things less well. One thing they don’t do very well is popular government.

The young and talented flock to (or remain in) big cities. But so also do hucksters, the dependent, the irresponsible, and the criminal. They rely on the anonymity, atomism, pockets of wealth, and density of urban life to enable them to carry out their plans. So it’s not surprising that big cities can be notoriously corrupt and difficult to govern, and that their levels of crime and other social dysfunction are generally higher than elsewhere.

In less populated places, people are more likely to know each other, or of each other. They are more likely to own their own homes and commit to their locality for a lifetime, often near life-long friends and family. They may not be (in Clark Kent’s words) “Metropolis sophisticates.” But outside of some university towns, they usually have more stake in the community, a wider sense of civic responsibility, and are more sober about public affairs. They also are far more likely to know, and be able to assess, their politicians personally.

Skeptical? Just compare the reckless governance of places like New York City and Detroit with the relatively sober management of small towns and counties throughout America.

Large cities’ poor political decision making has an outsize influence on those of us who live elsewhere. The national and regional media are based in big cities. The national capital is in a big city, and so are many state capitals. Most big cities have wealthy elites eager to buy political influence. Urban population density makes political organizing easier, as does the presence of a large, relatively idle, and often aggrieved underclass. A person living in, say, Boston or Phoenix, has far more opportunities for political influence than most inhabitants of Lewistown, Montana, or Rifle, Colorado.

Equal representation in the Senate helps keep the union together by maximizing fair treatment of all regions and by improving the quality of national decision making. It also promotes fairness by offsetting, in some degree, dysfunctional urban control over the rest of us.

This essay first appeared in the April 4, 2021 Epoch Times.

The post Why state equality in the Senate makes sense first appeared on Tenth Amendment Center.

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Why the Founders Couldn’t Abolish Slavery

This is the third in a series of essays defending our Constitution against unfair accusations from so-called “progressives.” The first essay rebutted the charge that the Constitution discriminated against women. The second corrected the claim that the three-fifths compromise was motivated by racism.

This essay responds to incessant efforts to link the Constitution with slavery.

Why a Key ‘Progressive’ Claim Is Deceptive

“Progressives” base some of their case on that fact that perhaps 25 of the Constitution’s 55 Framers (drafters) were slaveholders.

But this statistic is deceptive. The constitutional convention also included influential opponents of slavery. John Dickinson had inherited bondsmen, but freed them all. Benjamin Franklin, James Wilson, and Gouverneur Morris, among others, were abolitionists. Even among the minority who held slaves, some, such as James Madison, favored gradual emancipation. There was much criticism of slavery at the constitutional convention, and only the South Carolina delegates offered even a tepid defense.

Another reason the statistic is deceptive is that the Framers composed only a tiny slice among the 2,000-or-so Founders. The Founders also included leading participants in the constitutional debates, such as Noah Webster of Connecticut and Tench Coxe of Pennsylvania, as well as the elected delegates to the state conventions that ratified the Constitution. Relatively few of these people owned slaves.

Slavery Seemed Headed for Extinction

Why then, didn’t the Constitution abolish or curb slavery?

One reason is that issues of “property” were seen as matters of state, rather than federal, law. A more important reason was that slavery seemed to be on the path to early extinction.

The English-speaking peoples were the first major demographic group in history to abolish slavery—a fact the “woke” crowd always overlooks. This process was well underway when the Constitution was written. In 1772, the English Court of King’s Bench had decided Somerset v. Stewart, which banished slavery from the English homeland. Soon after American Independence, 10 of the 13 states abolished the slave trade and one (North Carolina) imposed steep taxes upon it. Several states also began general emancipation. Five granted the vote to free African Americans.

That’s why constitutional convention delegate Roger Sherman of Connecticut remarked that “the abolition of slavery seem[s] to be going on in the U.S. & that the good sense of the several States would probably by degrees compleat it.” His Connecticut colleague, Oliver Ellsworth—later Chief Justice of the United States—predicted that “Slavery in time will not be a speck in our Country.” Tragically, they did not foresee the invention of the cotton gin.

Compromise Was Necessary for Unity

Still, it was clear that the elite in a few states were clinging to slavery and would not approve a Constitution that curbed it. South Carolina delegate Charles Cotesworth Pinckney said, “[I]f himself & all his colleagues were to sign the Constitution & use their personal influence, it would be of no avail towards obtaining the assent of their Constituents. S. Carolina & Georgia cannot do without slaves.”

The Framers were forced to conclude that a constitution curbing slavery could not unify the country and might even fail the nine-state ratification threshold.

Only Unity Would Prevent War

Why was unity so important? Because the probable result of disunion would be never-ending war on the American continent.

The common cause against Great Britain tied together colonies that never had much to do with each other—but by 1787, this connection was unraveling. The Confederation Congress was widely ignored. Rhode Island and Connecticut were in a creditor-debtor spat that threatened resort to arms. Many spoke of dividing the country into several confederations, with some states remaining entirely independent.

On the costs of disunity, European history was instructive. The previous 150 years had witnessed about 70 European wars (in addition to rebellions), and the results were horrific. The Thirty Years’ War, which ended in 1648, may have killed, directly or indirectly, as many as 8 million people. The War of the Austrian Succession (1740–48) resulted in perhaps half a million casualties; the Seven Years’ War (1756–63) caused perhaps a million.

That was why Gov. Edmund Randolph introduced his Virginia Plan by emphasizing that the current system could not protect against foreign invasion, could not prevent states from provoking foreign powers, and could not prevent interstate conflict. To do that, a stronger government was necessary.

The Constitutional Debates Emphasized Unity

During the public debates on the Constitution, an important part of the advocates’ successful argument was the need for unity to avoid war. Although I believe modern writers rely too heavily on “The Federalist Papers” when searching for constitutional meaning, those essays do offer a good sample of the arguments for unity.

John Jay, who had served as the Confederation’s foreign secretary, wrote in Federalist No. 4:

“But the safety of the people of America against dangers from foreign force depends not only on their forbearing to give just causes of war to other nations, but also on their placing and continuing themselves in such a situation as not to invite hostility or insult; for it need not be observed that there are pretended as well as just causes of war . . .

“One government can collect and avail itself of the talents and experience of the ablest men, in whatever part of the Union they may be found. It can move on uniform principles of policy. … In the formation of treaties, it will regard the interest of the whole. … It can apply the resources and power of the whole to the defense of any particular part, and that more easily and expeditiously than State governments or separate confederacies can possibly do, for want of concert and unity of system. It can place the militia under one plan of discipline, and, by putting their officers in a proper line of subordination to the Chief Magistrate, will, as it were, consolidate them into one corps, and thereby render them more efficient than if divided into thirteen or into three or four distinct independent companies.” (Emphasis in original.)

But …

“Leave America divided into thirteen or, if you please, into three or four independent governments—what armies could they raise and pay—what fleets could they ever hope to have? If one was attacked, would the others fly to its succor, and spend their blood and money in its defense?”

In Federalist No. 5, Jay outlined the danger of warfare among the American states themselves, and in Federalist No. 6, Alexander Hamilton carried the argument further:

“If these States should either be wholly disunited, or only united in partial confederacies, the subdivisions into which they might be thrown would have frequent and violent contests with each other. … To look for a continuation of harmony between a number of independent, unconnected sovereignties in the same neighborhood, would be to disregard the uniform course of human events, and to set at defiance the accumulated experience of ages.”

In Federalist No. 41, Madison pointed out that European nations would intervene to turn American states against each other:

“The fortunes of disunited America will be even more disastrous than those of Europe. The sources of evil in the latter are confined to her own limits. No superior powers of another quarter of the globe intrigue among her rival nations, inflame their mutual animosities, and render them the instruments of foreign ambition, jealousy, and revenge.”

Madison summarized in Federalist No. 45: “[T]he union … [is] essential to the security of the people of America against foreign danger [and] essential to their security against contentions among the different states.”

So before criticizing the Founders for permitting the states to allow slavery, we must understand the choice they faced: (1) tolerating a vile institution that was (then) dying anyway or (2) consigning the American continent to perpetual warfare at a cost of millions of lives and incalculable misery.

Parting Shots

The “progressive” crowd attacks the Constitution in part because some slaveholders advocated it. But slaveholders were at least as prominent among the Constitution’s active opponents. By the “woke” crowd’s own reasoning, their criticism is tarred by antifederalist slaveholders such as Virginia’s Richard Henry Lee and North Carolina’s Willie Jones.

Finally: The claim that the Founders should have abolished slavery at all costs—no matter how horrible the results—ill becomes those who accept, or even promote, evils such as street violence, government attacks on freedom, and infanticide. Such people should re-assess their own conduct before railing against the Founders.

This essay first appeared in the March 29, 2021 Epoch Times.

The post Why the Founders Couldn’t Abolish Slavery first appeared on Tenth Amendment Center.

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Horowitz: What ever happened to the right to breathe freely?

No right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.” ~Union Pacific Railway Co. v. Botsford (1891)

For how long can American governments continue denying the basic human right to breathe freely without showing a modicum of evidence that masking is effective, necessary in all circumstances, and outweighs the cost to liberty and human health?

Some rights are so natural that they need not be enumerated in the Constitution

We know there is a right to freely exercise religion or bear arms, but how do we know there is a right to breathe without the cruel and draconian covering of our mouths? Sadly, our court system seems to believe that no such right exists, even as judges concoct novel rights to numerous privileges and enshrine them in the Constitution nearly every day through ordinary litigation. However, some rights are so natural and inalienable that they need not be written. Breathing without a dangerous bacteria and carbon dioxide trap over our mouths is a pretty obvious one.

In fact, in many ways, this is why Madison initially opposed the concept of a written Bill of Rights – because it would imply that only those rights listed are inalienable and that rights only come from government and are not indeed self-evident truths of nature. Even as he was pragmatically introducing the Bill of Rights on the House floor on June 8, 1789, Madison noted that some objected to it on the grounds that “by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration, and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the general government, and were consequently insecure.”

While introducing his first draft, Madison even conceded that he found this argument to be “one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system.” The only reason he felt he “guarded against” this concern was because of the language he originally proposed in “the last clause of the 4th resolution.” That original draft language was very strong and categorical:

“The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people; or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.”

Although part of the spirit of this clause remained in the final versions of the Ninth and Tenth Amendments, the language is not as strong as Madison’s original draft. Perhaps the fact that we think government can indefinitely regulate human breath is a fulfillment of Madison’s original concern.

On Friday, the Supreme Court, yet again, slapped down a California executive branch edict using COVID to interfere with freedom of religious worship. In a 5-4 decision, the court issued an injunction on the California health department’s rule banning home-based group worship or Bible study during the reign of COVID terror. “The government has the burden to establish that the challenged law satisfies strict scrutiny,” wrote the unsigned order. “To do so in this context, it must do more than assert that certain risk factors ‘are always present in worship, or always absent from the other secular activities’ the government may allow.”

I found myself shouting “Amen!” while reading this, but at the same time wondering why the courts only seem to apply strict scrutiny to COVID rules affecting a selection of very specific liberties, such as religious practice or gun rights, but not the more fundamental natural right to move freely and unrestricted, without one’s nose and mouth being restrained, or shutdown orders in general. Somehow it seems like our court system only recognizes unenumerated rights when they are fabricated and not rooted in natural law.

Even without questions of cruel and unusual punishment or a violation of the Fourth Amendment’s dictate against illegal search and seizure, it’s obvious that making someone cover his or her nose and mouth – to the draconian extent the government has applied it – violates the most basic definition of individual liberty itself. As defined by Blackstone, individual liberty is “the power of loco-motion, of changing situation, or removing one’s person to whatsoever place one’s own inclination may direct; without imprisonment or restraint, unless by due course of law.” William Blackstone wrote that the right to “personal security” includes “a person’s legal and uninterrupted enjoyment of his life, his limbs, his body, [and] his health,” as well as “the preservation of a man’s health from such practices as may prejudice or annoy it.” [1 Commentaries *125, *130.]

It’s one thing to mandate masks for a limited time on certain people in certain places – for example, for people with clear symptoms, in health care settings, or on mass transit. But to mandate them indefinitely in order to move freely, obtain vital goods and services, and basically live life in any way clearly violates the most basic individual liberties that never needed to be enumerated in the Constitution. And to do so without showing evidence that someone is a threat or aren’t already immune, or that the masks even work, violates the Fifth and 14th Amendments’ due process clause.

Ex post facto criminalizing human breath

The Supreme Court stated in the landmark Calder v. Bull (1798) case that a legislature cannot go so far as to violate natural law even if the “authority should not be expressly restrained by the constitution or fundamental law of the state.”

Chief Justice Samuel Chase stated: “An act of the legislature (for I cannot call it a law) contrary to the great first principles of the social compact cannot be considered a rightful exercise of legislative authority.” Chase was referring to the idea of a state criminalizing behavior ex post facto. His point was that even if Art. I Sec. 10 of the Constitution didn’t explicitly bar legislatures from passing ex post facto laws, “To maintain that our federal or state legislature possesses such powers if it had not been expressly restrained would, in my opinion, be a political heresy altogether inadmissible in our free republican governments.”

In many ways, the mask mandates going on indefinitely forever for children to obtain an education or for humans to live a free life is the ultimate form of ex post facto “law,” which was defined in Calder v. Bull as making “an action done before the passing of the law, and which was innocent when done, criminal.” We were all born as humans and are forced to live and obtain certain services. It’s one thing to force someone to wear a mask for a limited time, place, or scope. But to do so essentially all his life or for a child in school when healthy is retroactively criminalizing human existence predating COVID.

Mind you, Chase was speaking of a law duly passed by both branches of government, not the government edicts we have today. The notion that the CDC can simply mandate masks on two- and three-year olds, which fundamentally violates their bodily integrity and their cognitive abilities in the most basic function of their individual liberty, shocks the conscience. It’s mind-numbing how there hasn’t been a major lawsuit on this issue. This is especially jarring given the lack of evidence that children pose a risk of spreading the virus or that masks are even effective.

It’s impossible to harmonize COVID fascism with decades of case law on right to privacy

It’s not like we haven’t lived through decades of the courts inventing novel rights that aren’t written in the Constitution and most certainly aren’t natural. For example, in 2017, the Supreme Court, in Packingham v. North Carolina, ruled that the state’s law restricting child sex offenders from accessing social media was not enough of a “compelling interest” to outweigh what the court believed to be an important right, even though the state clearly had a much more compelling case for blocking pedophiles from social media than masking children for COVID.

The court in Packingham designated social media a place “to engage in a wide array of protected First Amendment activity” like streets and parks and noted, “By prohibiting sex offenders from using those websites, North Carolina with one broad stroke bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge.”

Think about that: One has a right to access social media even as a convicted child sex offender because one basically can’t live life properly without it, according to the court. Yet, at the same time, government can restrict human breathing in nearly every setting without having to provide any evidence one is a threat or that the experimental medical device of masks – authorized only under an emergency use authorization – even works. They can place people at risk for shortness of breath, headaches, lack of cognitive function, bacterial infections and rashes, and self-contamination, all without showing that they work.

Justice William Douglas was able to suggest in the famous Griswold v. Connecticut (1965) case, “The First Amendment has a penumbra where privacy is protected from governmental intrusion,” even though there is no right to privacy in the Constitution. Justice Arthur Goldberg stated in his concurrence that birth control is covered by the unenumerated rights of the Ninth Amendment. “The concept of liberty … embraces the right of marital privacy” and The right of privacy is a fundamental personal right.

Well, if birth control is a concept of liberty and privacy so fundamental as to serve as the backbone for Roe v. Wade to kill babies, then what about the privacy and liberty of breathing? If anything, in this case it’s worse because you are not asking to take an action (consume birth control), but to refrain from an inaction and not have government force you to wear an experimental medical device that has not been approved for respiratory viruses.

As Clarence Thomas stated in his famous dissent in Obergefell:

“In the American legal tradition, liberty has long been understood as individual freedom from governmental action, not as a right to a particular governmental entitlement.”

The court punctuated this right to privacy under the 14th Amendment by stating in the Lawrence v. Texas (2003) sodomy case, “The State cannot demean their existence or control their destiny by making their private sexual conduct a crime.”

Think of how they are demeaning the existence of people who are in pain and have trouble breathing under a mask and are controlling the destiny of the most sensitive parts of our body with these Chinese face burka edicts. Mandatory mask-wearing for long periods of time to obtain vital services (especially outdoors) clearly violates the liberty of “bodily integrity” enumerated in the landmark Glucksberg (1997) case among those liberty interest secured under the 14th Amendment.

Moreover, a person certainly has a greater right and compelling human need to breathe without oxygen reduction and rebreathing their own toxins left on a mask than to engage in sodomy. This is especially true for children being forced to exercise and play sports for a protracted period of time with a face covering that undoubtedly compromises their intake of oxygen and exfiltration of CO2 while laboring with rigorous physical activity.

In Roe v. Wade, the court said, “The abortion decision in all its aspects is inherently, and primarily, a medical decision.” The court applied that even to when that decision is 100% directly killing a particular baby. It’s extremely hard to see how that doesn’t apply to human breathing, especially when there is no evidence that an individual is carrying the virus, has the ability to spread it, is a danger to a particular individual, or that said governmental regulation even helps.

When the court established the right to bodily integrity in the aforementioned Union Pacific Railway Co. v. Botsford case, Justice Gray noted, “The right to one’s person may be said to be a right of complete immunity; to be let alone.” That would imply that perhaps the forcing of a human to place something over his nose and mouth might not even be subject to any government interest balancing test. But even if we are to believe that the pandemic would align bodily integrity more in line with a typical right, like any fundamental right, it can indeed be regulated to some extent, but the burden of proof must be on the government to demonstrate it is necessary and efficacious in that particular circumstance, not the other way around.

Indeed, 80 years into the Supreme Court’s crusade to invent new rights not mentioned in the Constitution, the only rights the justices won’t recognize are those that didn’t even need to be stated in that document, such as the right to breathe.

Constitution Founding Principles Intelwars SLAVERY Three Fifths Compromise Three-Fifths Clause

The ‘Three-Fifths Compromise’ was not based on racism

This is the second in a series of essays answering defamatory charges leveled against the U.S. Constitution. The first in the series addressed the allegation that the Constitution discriminated against women. In fact, as that essay showed, the framers took pains to ensure the document was gender-neutral.

Another false charge is that the Constitution stems from, and continues to reflect, “systemic racism.” Critics point to Article I, Section 2, Clause 3—the “three-fifths compromise” explained below—even though that provision was amended out of the document more than 150 years ago.

By way of illustration, a 2011 Time magazine cover story asserted, “The framers … gave us the idea that a black person was three-fifths of a human being.” Last year, Time doubled down with a column stating that “the Constitution defined African-Americans as only three-fifths of a person.” Similarly, a Teen Vogue item misinformed its young readers with these words:

“White supremacy is systemic. … It thrives in politics with systems … like the electoral college, a process originally designed to protect the influence of white slave owners, which is still used today to determine presidential elections [because] … [e]nslaved black people … were declared three fifths of a person in order to strengthen the power of the white men who kept them in bondage.”

The Internet is littered with such drivel.

The truth is that the Constitution’s text was racially neutral. The framers employed the same word—“person”—to refer to humans of all races. They rejected the racial qualifications for voting and office-holding that marred some state constitutions. For all purposes, they treated Indians who paid taxes and the significant number of free African-Americans exactly as they treated white people.

So what was the three-fifths compromise? And what is the basis of the charge that it was racist?

The three-fifths compromise addressed two issues: (1) the size of each state’s delegation in the House of Representatives and (2) each state’s contribution of federal direct taxes. Direct taxes were levies imposed on individual persons (“capitations”) and on a wide range of items, such as property, income, wealth, and professions. Direct taxes were distinguished from “indirect taxes” or “duties,” which were primarily levies on consumption and on transportation of goods across political boundaries.

The Constitution provided that every state would have at least one representative in the House of Representatives. The three-fifths compromise added that both the additional representatives and direct taxes would be split among the states according to their population. But for these purposes only, each state’s population figure would be reduced (1) to exclude “Indians not taxed” and (2) to rate each slave as three-fifths of a free person.

If you assume that counting persons is the proper basis for congressional representation, it’s easy to see how one could misread the reduction for slaves and the exclusion of non-tax-paying Indians as expressions of racism. However, many, probably most, of the framers did not think counting persons was the proper basis for representation. They believed representation should follow ability to contribute federal tax revenue. This view was inherited from English history, and was reflected in the Revolutionary War slogan, “No taxation without representation!”

But when the framers tried to find a formula for calculating each state’s ability to contribute tax revenue, they ran into practical difficulties. After rejecting several proposed formulas as unworkable, they conceded that, at least over the long run, a state’s tax capacity would correlate with its population.

As James Wilson of Pennsylvania said, “[I]n districts as large as the States, the number of people was the best measure of their comparative wealth. Whether therefore wealth or numbers were to form the ratio it would be the same.”

There were two exceptions to the rule that tax capacity followed population. First, some states contained substantial numbers of Indians who were governed exclusively by their tribes. They did not pay state taxes and would not pay federal taxes. Second, the framers recognized that, on average, slaves produced far less than free people.

This recognition had nothing to do with race. It was because slaves—of any race—could not sell their labor and talents in the free market. They were stuck in a centralized system of command and control, rather like Communism.

Thus, the framers had to find a way to reduce a state’s representation according to the proportion of its population held in bondage.

Fortunately, the Confederation Congress already had done the work for them. In 1783, Congress studied the relative productivity of slave and free workers. Among the factors it considered were

  • The differing incentives of enslaved and free people;
  • the value of their respective output, which was much less among slaves because of poor incentives;
  • the respective costs of feeding and clothing free and slave labor;
  • the ages at which young free people and slaves began working (found to be lower for free children than for slave children);
  • the differing climates in free and slave states;
  • the value of imports and exports in free and slave states; and
  • that slaves were disproportionately confined to agriculture as opposed to manufacturing and other activities.

Race wasn’t even on Congress’s list!

One is reminded of Thomas Jefferson’s quotation of the Greek poet Homer: “Jove fix’d it certain, that whatever day, Makes man a slave, takes half his worth away.” As Jefferson knew, Homer was speaking of white slaves.

In other words, the three-fifths compromise was not a statement about race at all. It was a statement about the economic inefficiency of slavery.

Critics contend that the three-fifths compromise rewarded slave states. Actually, it punished them with reduced congressional representation. Here’s how it worked: Suppose a state had a population of 300,000. Suppose this population included 210,000 whites, 10,000 free blacks, 50,000 slaves, 20,000 citizen-Indians who paid taxes, and 10,000 tribal Indians who did not pay taxes. Only the tax-producing Indians would be counted, and the count of slaves would be reduced to reflect their relatively poor productivity. Thus, for purposes of allocating representatives and direct taxes, the state’s population would be credited as only 270,000 rather than 300,000. That is: 210,000 + 10,000 + [3/5 x 50,000] + 20,000 + 0 = 270,000.

It’s true that the compromise also reduced a slave state’s direct taxes. But that was not a particularly good deal for the slave states, because except in wartime Congress was expected to resort only to indirect taxes—a prediction that proved true for many years.

Nearly all the framers understood that slavery was evil. But as I shall explain in a later essay, they needed to come to terms with it if they hoped to hold the union together. Failure would have led to a fractured continent and European-style internecine warfare.

But let’s not make more of the framers’ concession than the facts dictate: The three-fifths compromise was not an endorsement of, or subsidy for, slavery. It was based on a finding that slavery was economically stupid as well as unjust.

This essay first appeared in the March 21, 2021 Epoch Times.

The post The ‘Three-Fifths Compromise’ was not based on racism first appeared on Tenth Amendment Center.

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States Just Need to Say No!

I’ve never attended Mardi Gras, but I have experienced the pirate-themed mega-party known as Gasparilla in Tampa. And I watched d a lot of people “breaking the law.”

I witnessed hundreds of revelers drinking alcohol from open containers. I bumped into countless publicly intoxicated partiers. I even saw women exposing their breasts in exchange for 10 cent plastic beads. And I could go on. There were much debauchery and “illegal” activity.

I also saw a lot of cops.

But I didn’t personally witness one arrest.

Mostly, cops just looked on as thousands of people flouted the law. In fact, many of the cops seemed somewhat amused by the antics.

Try engaging in any of the above activities in downtown Tampa on a normal Tuesday night, and you will quickly find yourself taking up residence at the Hillsborough County Jail.

Sure, police make some arrests and issue a few citations during Gasparilla – 11 arrests in 2019.  Yes. You read that right. Eleven. Did I mention an estimated 300,000 people attended the event?

Fact — hundreds of thousands of revelers cram into downtown Tampa for Gasparilla, and huge numbers of those people break one or more laws with impunity. Simply put, the relatively small number of cops could never hope to control the masses and force compliance with the law. So they sat back and generally just tried to contain the mayhem.

This illustrates an important reality: as more and more people simply ignore a command, those trying to enforce it find it increasingly difficult to do so. It boils down to a simple matter of resources, manpower and scale. A few hundred cops cannot enforce their will on 300,000 people.

Herein lies the secret to our nullification strategy. States don’t have to actually do anything. They just have to stop helping the feds enforce federal laws or implement federal programs. The laws may remain on the books, but they become impossible to enforce. For all practical purposes, noncompliance renders them null, void and of no effect.

State and local non-compliance with federal acts, rules, regulations, and the implementation of federal programs, creates the same dynamic for federal agencies as Mardi Gras or Gasparilla does for local law enforcement. When enough states refuse to comply or cooperate with the enforcement of a federal act, D.C. finds it increasingly difficult to impose its will.

James Madison understood this dynamic. That’s why his blueprint to stop federal overreach in Federalist #46 was “a refusal to cooperate with officers of the union.” Madison said a single state refusing to cooperate would create “impediments.”

” And were the sentiments of several adjoining States happen to be in Union, would present obstructions which the federal government would hardly be willing to encounter. “

In fact, the federal government depends on state and local cooperation for virtually everything it does – from enforcing drug laws to implementing its many programs. During the run-up to the 2013 federal government shutdown, the National Governors Association sent a panicked letter to congressional leadership begging them to avoid the shutdown. In this email, the governors affirmed the feds need the states.

“States are partners with the federal government in implementing most federal programs. A lack of certainty at the federal level from a shutdown therefore translates directly into uncertainty and instability at the state level.” [Emphasis added]

Did you catch that?

Most federal programs.

That means states can refuse to serve as cooperative partners and shut down most federal programs.

There is great power in the word no. Cops can’t control Gasparilla partiers. And the feds can’t control states. State governments just need to stand up and assert their authority. They need to say no.

This article was adapted from an excerpt from Our Last Hope: Rediscovering the Lost Path to Liberty.

The post States Just Need to Say No! first appeared on Tenth Amendment Center.

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When Can an Originalist Scholar Begin with the Constitution’s Text?

This article first appeared in The Originalism Blog on March 1, 2021. It is somewhat technical, and I recommend it only for constitutional wonks.

I. The question

I recently wrote a post for the Federalist Society Blog, in which I examined the Constitution’s enumeration of who can be impeached and convicted. I concluded that the enumeration, coupled with the rules of construction the Founders intended to accompany the document, created a presumption that ex-officers could not be. But I added that this presumption was rebuttable by extraneous evidence.

Professor Michael Ramsey wrote a notice on the posting. He remarked that most originalist inquiries can proceed as I did—that is:

*          examine the text and apply the rules of construction to it, thereby establishing a presumptive meaning, and then

*          turn to outside evidence to see of it rebuts, qualifies, or reinforces the presumptive meaning.

I agree with Professor Ramsey. However, his comment got me thinking about the minority of cases where one cannot proceed in that manner. These are instances in which the text remains unclear even after applying the rules of construction. Moreover, sometimes after examining the text it even remains unclear whether that text is unclear. In fact, what seems obvious on initial examination may be entirely wrong.

In such cases, we must consult outside evidence to establish a presumptive meaning.

Fortunately, the impeachment enumeration I addressed in my FedSoc post was clear, at least as far as I needed to go. However, as explained below, on first reading another impeachment phrase—“high . . . Misdemeanors” —is not.

In this post I offer some guidance as to when an initial resort to extraneous evidence is necessary to establish the text’s presumptive meaning. For illustrations, I’ve mined my thirty or so articles and book chapters on the original meaning/understanding of specific constitutional clauses.

II. Dictionaries

In some cases, I have been able to reach a presumptive meaning by examining 18th century dictionaries. Mind, though, that when consulting dictionaries, one must not stop with Samuel Johnson, because his definitions are sometimes archaic or idiosyncratic. I have about 25 18th century dictionaries in PDF form, not counting multiple editions. Some are specialized, such as dictionaries focusing on law, military terms, Latin, or Law French. Most are general-purpose. When writing on original meaning I consult all or most of them. I find I can learn much from how their definitions vary or track each other.

But dictionary searches can prove inconclusive. Sometimes dictionaries offer multiple definitions, so you have to examine extraneous evidence to determine which one the Constitution employs. Sometimes a term appears in a specialized dictionary, but not in others. Sometimes the definition employed by the Constitution does not appear in any dictionary at all.

Results like this compel resort to extrinsic evidence to determine presumptive meaning. Here are some typical scenarios.  You will notice that some of them overlap.

III. Some Scenarios

Scenario #1: The dictionaries offer several common meanings of a word or phrase, but it is not clear which one the Constitution employs

I encountered an example when researching my article on the Coinage Clause. The Coinage Clause reads, “The Congress shall have Power . . . To coin Money, regulate the Value thereof, and of foreign Coin . . . ” As is true today, during the 18th century the most common use of the verb “to coin” was to strike metallic tokens. Libertarians long relied on the assumption that this was the Constitution’s meaning, and therefore claimed paper money is unconstitutional. Left-of-center commentators relied on the same assumption to illustrate the impracticality of originalism.

However, no one seems to have noticed a textual problem with interpreting coinage as referring only to metal. That interpretation would leave Congress in the unlikely position of enjoying power to regulate foreign metallic tokens, but bereft of power to regulate foreign paper currency.

The 18th century dictionaries reported a secondary meaning of “to coin:” to fabricate. Today that usage is exceedingly rare: a survival is the expression “to coin a phrase.” But a survey of 18th century databases revealed that the secondary meaning was then much more common. People spoke of “coining” paper money, leather money, and so forth.

Thus began a full-bore investigation into the history of money, especially the extraordinary monetary innovations undertaken in the colonies of British North America. After acquiring this background, my presumptive conclusion was that the Coinage Clause authorized Congress to issue and regulate “coin” in media other than metal. Ambiguous comments during the Constitutional Convention were insufficient to rebut this result, and the ratification-era debates only reinforced it.

When researching my early article statutory retroactivity, I encountered another problem with which the dictionaries offered no help. This was ambiguity of the phrase “ex post facto law.” During the 18th century, the term might refer only to criminal statutes, or it could include retroactive civil statutes as well. The framing and ratification records clarified that the prevalent understanding was the former. A search for contradictory evidence led only to confirmation: James Madison’s and John Lansing’s subsequent drive for Takings and Due Process clauses to limit the scope of civil retroactivity.

Scenario #2: A word or phrase with an ordinary meaning appears in the Constitution, but as a legal term of art

In this scenario, a colloquial meaning may appear in lay dictionaries, but the manner in which the Constitution uses the word appears in law dictionaries or other legal works.

Over the years, I’ve been impressed by how often a puzzling word—or even, at first blush, an unpuzzling one—turns out to be an 18th century legal term of art. It’s not so surprising, if you think about it. The chatter about how the Constitution is written in “plain language” is not quite the truth. The Constitution is a legal document and it was written by a group of people about two-thirds of whom had been practicing lawyers. Most of advocates who explained it to the public were lawyers, Madison and Tench Coxe being the most notable exceptions.

Nor were their explanations necessarily unintelligible to the involved American public, because that public was then unusually well educated in law: As Edmund Burke remarked when urging conciliation with America, “In no country perhaps in the world is the law so general a study.”

Of course, you expect a phrase like “habeas corpus” to embody a legal meaning. You don’t expect the same from a word like “necessary.” Yet in research on the Necessary and Proper Clause, I found that the Constitution uses “necessary” as a signal for incidental powers—a very common approach in 18th century legal documents.

Learning enough to establish a presumptive meaning for the Necessary and Proper Clause required deep initial research into contemporaneous law books, documents, and judicial cases.

Other examples of 18th century legal boilerplate reproduced in the Constitution include “Privilege” and “Privileges and Immunities.” A search through contemporaneous law and legal documents found that they denoted government-created entitlements, including very important ones such as trial by jury and “the Privilege of the Writ of Habeas Corpus.” But as the Constitution used those words, they did not comprehend rights established by nature and nature’s God. They were creations of government. Justice Bushrod Washington therefore got it largely wrong in his famous, and somewhat incoherent, passage in Corfield v. Coryell.

It probably comes as no surprise that “direct tax” was another legal term of art. What did surprise me is that the concept was far more defined and comprehensive than commonly supposed.

Both Britain and American states adopted omnibus tax statutes that provided for assessment of certain items and imposed levies upon them. In Britain and some states these were called “Land Tax” laws. But they levied on much more than real estate. They taxed human beings (capitations on both free and slave); status; wealth; professions (“faculties”) and other activities; wages, interest, profits and other kinds of income; household items, livestock, and other personal property. All the levies imposed by these omnibus statutes, and others like them, were called “direct taxes.” (Other statutes imposed indirect taxes, primarily on consumption or discrete events: excises and other “duties.”)

Thus, the Supreme Court’s much-abused case of Pollock v. Farmers’ Loan and Trust Company was correctly decided, for income taxes are direct taxes after all.

Obviously, arriving at a presumptive meaning of “direct tax” required a great deal of work with extrinsic evidence, including but not limited to 18th century tax statutes.

One final example: For decades commentators had argued over the Constitution’s term “high . . . Misdemeanors” as a ground for impeachment. Apparently only one researcher, Raoul Berger, had considered whether the phrase might be a legal term of art. But his investigation, undertaken without the benefit of modern word-search technology, was cursory and unsuccessful. Too late to prevent me from embarrassing myself in print with another hypothesized definition, I finally thought to check legal sources and certain lay sources (such as encyclopedias) explaining legal terms.

The answer was decisive: High misdemeanors were serious crimes not meriting the death penalty, such as bribery (which the Constitution mentions in this context) and assault. A mere breach of fiduciary duty was not, as I previously had thought, a high misdemeanor.

Scenario #3: The Constitution’s use of a term is not in dictionaries at all

Sometimes the framers employed words and phrases in ways that don’t appear in 18th century dictionaries or similar reference works. Instead, the constitutional meaning arose in a context the lexicographers had overlooked.

I encountered this situation when researching the Constitution’s use of the word “emolument.” The dictionary definitions were very broad: “profit” or “advantage.” Those broad definitions, I found, accurately reflected much lay usage, but for various reasons they made no sense in the constitutional text. Hence it became necessary to consult extraneous evidence to arrive at a presumptive meaning.

It turns out that in political discourse, “emoluments” carried any of three narrower meanings: (1) financial gain or, more commonly (2) gain from salary or wage plus associated fringe benefits, or (3) fringe benefits alone. Placing the Constitution’s emoluments clauses within the wider context of a then-current trans-Atlantic movement to reform how government officials were compensated enabled me to fix on what I believe is correct: An “emolument” as the Constitution uses the term refers to gain from a salary or wage plus associated fringe benefits.

Scenario #4: Some of the Constitution’s words are Americanisms

This is really a subset of Scenario #3, because these are usages that do not appear in the dictionaries, almost all of which were published in Britain.

For example, in researching my article on the Taxation Clause I found that “Eighteenth century British lay dictionaries defined ‘duty’ widely enough to include almost any financial exaction” and commercial dictionaries defined it more narrowly. But in American usage, a duty was “any financial exaction that did not qualify as a direct tax.” Thus, a duty could mean an indirect tax or a non-revenue-producing exaction to regulate commerce or other conduct. Other evidence reinforced this presumed meaning.

In 1787, the word “constitution” was an Americanism-in-development. In Britain it referred only to the political system, and that is how all contemporaneous dictionaries defined it. That was the American meaning when the Declaration of Independence was written (“a jurisdiction foreign to our Constitution”), and it was still employed that way in Virginia’s 1786 call for the 1787 federal convention. (Contrary to common belief, the convention was called in late 1786 by the Virginia legislature, not by Congress; Congress’s February 21, 1787 resolution merely endorsed the effort after seven states already had accepted Virginia’s invitation.)

However, the meaning was in flux. The “frames of government” adopted in the states often were called “constitutions.” Then came the U.S. Constitution, whose title sealed the change. A new Americanism was born.

Scenario #5: A word may have a constitutional meaning we don’t suspect because that meaning is now archaic

My favorite example of this—in fact, I think a perfect one—is the appearance of “perfect” in the Constitution’s Preamble. Modern Americans sometimes puzzle over how a Union can be made “more perfect.” This is because we almost always use this word to mean “without flaw.” How can something be “more without flaw?”

The answer is that the more common 18th century use of the term was the Latinate meaning of “complete” (Latin: perficere, to finish). The new Union was to be more complete—more tightly woven together—than the union formed by the Articles of Confederation.

Fortunately, there are not many non-legal archaisms in the Constitution—at least not many that sneak up on you. They are more likely to do that when you read other Founding-Era materials.

A good example was Leonard Levy’s mistaken conclusion that the Senate was to be the primary conductor of foreign policy because the framers sometimes referred to the president as the foreign policy “agent.” Levy didn’t realize that there was another, more Latinate, meaning of “agent” then common. Although an “agent” could mean a representative, it also could mean a “doer” or “driver” (from agere, to do or drive). The founders were using the latter sense: The president, not the Senate, was to be the primary driver of foreign policy.

Of course, you might not realize that a word is an archaism and therefore not think to consult a dictionary. That is one reason I recommend that constitutional scholars immerse themselves in 18th century writings and become familiar with the Latin language. (“But that’s time-consuming and hard!” Answer: “You bet it is.”) Latin was the Founders’ second language and significantly influenced 18th century English usage. If you have it, you see much more.

IV. Conclusion

Professor Ramsey is correct to say that we usually can reach a presumptive meaning of a constitutional provision from the text alone. But there are many situations in which you have to consult extrinsic sources before arriving at a presumptive meaning.

If you find yourself in such a situation, I can offer two sources of comfort: First, much of the evidence you explore while seeking the presumptive meaning leads you to evidence that rebuts or reinforces that meaning. Second, the historical journey is usually fascinating.

The post When Can an Originalist Scholar Begin with the Constitution’s Text? first appeared on Tenth Amendment Center.

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CNN tweet says CDC is ‘giving limited freedoms’ to fully vaccinated people — and a blistering backlash follows

CNN announced on Twitter Monday that the Centers for Disease Control released new guidelines “giving limited freedoms” to people fully vaccinated against COVID-19:

What was the reaction?

More than a few folks didn’t take too kindly to CNN’s tweet, which has been getting decidedly ratioed — attracting twice as many comments as likes as of Tuesday morning. And it’s clear from a cursory look at the comments that CNN’s use of the phrase “giving limited freedoms” isn’t appreciated:

  • “The CDC does not have the authority to give me my freedom,” one commenter offered. “You f***ing jackasses at CNN and the rest of you idiot liberal s**t heads need to learn … the government doesn’t give you freedom… God did.”
  • “Little thing called the Bill of Rights says the CDC holds no authority over me,” one user added. “You morons ought to take a glance at some of those amendments and articles from time to time to keep from looking so godawful stupid.”
  • “Our freedoms — including assembly — do not come from the f***ing CDC, you ignorant buffoons,” another user pointed out. “Go to hell, you wannabe Stalins.”
  • “Since when is the CDC in charge of freedom?” another commenter asked.
  • “I can’t fault the CDC for how CNN words its tweets, but it’s alarming if a news organization believes an unelected government agency is in the business of ‘giving … freedoms,’ limited or not,” one commenter wrote.
  • “Last time we read the Declaration of Independence and the Constitution, we found nothing to suggest or even hint that our freedoms are granted by the U.S. government or any agency thereof,” another user noted. “The CDC and its sycophants in the media might want to do a little remedial reading.”
  • “Giving limited freedoms. Oh F off we should have all our freedoms back,” another user declared. “I can’t believe so many people were OK with all of this.”
  • One commenter responded with the following: “”1. The CDC doesn’t have authority to give/take freedom. 2. My freedom is inherent in my existence. Vaccines have nothing to do with it. 3. There’s no role for the CDC to define rules which private citizens must follow. Authoritarian creep keeps on creeping, with CNN leading.”
  • “This is unconstitutional on its face. My freedom is not granted by a government organization,” another user wrote.

Anything else?

Interestingly, the CNN story that the tweet points to doesn’t mention “giving limited freedoms” — in fact, the word “freedom” doesn’t appear in the headline or body of the story.

Rather, CDC Director Dr. Rochelle Walensky used the word “recommendations” in saying that those fully vaccinated against COVID-19 can now safely visit with other vaccinated people and small groups of unvaccinated people in some circumstances, according to the CNN article.

In a related development, CNN’s Fareed Zakaria hosted a Sunday segment featuring a New York University medical ethics professor who said coronavirus “vaccine passports” are coming to America — and will provide bearers “freedom,” “mobility,” and access to “certain jobs.”

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Federal judge rules government’s eviction moratorium unconstitutional

A Texas federal judge ruled Thursday that the moratorium on evictions instituted by the federal government during the coronavirus pandemic is unconstitutional.

U.S. Eastern District of Texas Judge John Barker did not issue a preliminary injunction against the moratorium first imposed by the Trump administration last fall, but did say he expects the Centers for Disease Control and Prevention to “respect his ruling and withdraw the moratorium,” CNN reported.

The temporary halt on evictions began in September with an order from then-President Donald Trump’s CDC and Department of Health and Human Services. The moratorium was initially supposed to stop evictions through the end of 2020 as states worked to deal with the growing COVID problem.

The second stimulus package that Congress passed last year extended the moratorium through January. And just hours after he was inaugurated, President Joe Biden signed an executive action pushing federal departments to extend the eviction halt until at least the end of March.

Landlords and property owners across the country bore the brunt of the moratorium, so a group of them from Texas sued the CDC and HHS in October claiming the federal government does not have the authority to stop evictions. Judge Barker agreed and wrote in his ruling, “Congress also lacked the authority to grant the CDC the power to halt evictions nationwide, and noted that the moratorium threatened to encroach on landlords’ rights under state law,” CNN said.

“The federal government cannot say that it has ever before invoked its power over interstate commerce to impose a residential eviction moratorium,” Judge Barker, who was appointed by President Trump, wrote. “It did not do so during the deadly Spanish Flu pandemic. Nor did it invoke such a power during the exigencies of the Great Depression. The federal government has not claimed such a power at any point during our Nation’s history until last year.”

Barker noted that though the COVID pandemic persists, “so does the Constitution.”

CNN reported that the U.S. Department of Justice declined to comment on the ruling and that it is not clear whether the DOJ plans to appeal Barker’s decision.

Constitution constitutional republic Executive Orders Intelwars Oklahoma Oklahoma legislature State constitutional powers

Horowitz: Oklahoma House votes to enable legislature to block Biden’s executive orders

James Madison once asserted that “in a republican government, the legislative authority necessarily predominates.” Well, today, only executive power predominates, because federal and state executive agencies seem to be the only ones doing the legislating. As Joe Biden continues to pass sweeping “laws” unilaterally with no authority from Congress, the red states are the only even potential check on his abuse of power. It appears that the state of Oklahoma has now taken up the mantle as the second state to move to block these executive orders.

On Thursday, the Oklahoma House overwhelmingly passed a bill, HB 1236, that would grant the state’s attorney general and state legislature the authority to review the president’s executive orders to determine constitutionality. Specifically, the bill would authorize the legislature to recommend that the attorney general review any executive order, federal agency rule, or federal congressional action to determine whether the state should seek an exemption or declare it unconstitutional. If either the attorney general or the legislature, by concurrent resolution, declares the act unconstitutional, then all state and local officials and any publicly funded organization are prohibited from enforcing it.

The federal actions covered under this bill include any orders pertaining to health emergencies; the regulation of natural resources, agriculture, and land use; infringements upon the Second Amendment; the regulation of the financial sector as it relates to environmental, social, or governance standards, the regulation of education; the regulation of college or school sports; or any other powers reserved by the State of Oklahoma or the people of Oklahoma.

This bill is probably the single most direct and effective way of countering federal power-grabs. As written, it would potentially pave the way for the legislature to block Biden’s mask mandate, transgender agenda in school sports, and racially biased orders in finance and commerce, just to name a few.

Oklahoma’s House is now the second chamber to pass a state sovereignty bill against federal overreach. The North Dakota House passed a similar bill, HB 1282, earlier this month. However, that bill passed by a narrow margin, 51-43, with nearly 30 Republicans voting against it. The Oklahoma bill, on the other hand, was introduced by the speaker himself, Rep. Charles McCall, and passed 79-18 along party lines, which means it has a good chance of going to the governor’s desk.

A few minutes after passage of HB 1236, Rep. Jay Steagall introduced HR 1005, a resolution expressing the right of a state to defend the Constitution and intervene on behalf of the liberties of its citizens.

“Oklahoma hereby asserts sovereignty under the Tenth Amendment to the Constitution of the United States over all powers,” states the text of the resolution, which passed 80-14. “THAT this resolution shall serve notice to the federal government of our intent to maintain the balance of powers where the Constitution of the United States established it. THAT we intend to ensure that all federal government agencies and their agents and employees operating within the geographic boundaries of Oklahoma, or whose actions have an effect on the inhabitants, lands or waters of Oklahoma, shall operate within the confines of the original intent of the Constitution of the United States.”

In introducing the bill, Rep. Steagall, who is the chairman of the States Rights Committee, stated plainly the intent of the legislative effort this week. “I submit to you that it is the duty of the state to interpose between the central government’s abuse of power and the people in order to secure the authorities, rights, and liberties of the people, and that duty falls squarely on the shoulders of the state legislature.”

While so many conservatives are focused on Congress, many fail to see that the states are where the power resides. Republicans control both houses in 31 state legislatures, the majority of them with supermajorities. If every chamber were to mimic this legislation, there would be large swaths of the country free from the totalitarian edicts of the left, regardless of what happens in Washington.

Clarence Thomas Constitution Ginni Thomas Intelwars Pennsylvania Supreme Court

Opponents attack wife of Clarence Thomas over his dissent bashing decision to not hear critical election case

Supreme Court Justice Clarence Thomas issued a searing dissenting opinion after the Supreme Court refused to hear a pivotal case involving a controversial Pennsylvania electoral directive that allowed the counting of ballots received up to three days after Election Day.

Now, Thomas’ opponents are using his opinion to attack his wife.

What did Thomas say?

Thomas believes the court’s refusal to hear the case opens the door for more election controversies in the future.

The central concern, according to Thomas, is whether state executives have the power to usurp their state legislatures in determining election laws, despite the U.S. Constitution explicitly assigning that power to legislators.

“[Pennsylvania’s] decision to rewrite the rules seems to have affected too few ballots to change the outcome of any federal election. But that may not be the case in the future,” Thomas wrote. “These cases provide us with an ideal opportunity to address just what authority nonlegislative officials have to set election rules, and to do so well before the next election cycle. The refusal to do so is inexplicable.”

Thomas later added:

One wonders what this Court waits for. We failed to settle this dispute before the election, and thus provide clear
rules. Now we again fail to provide clear rules for future
elections. The decision to leave election law hidden beneath
a shroud of doubt is baffling. By doing nothing, we invite
further confusion and erosion of voter confidence. Our fellow citizens deserve better and expect more of us. I respectfully dissent.

Justices Neil Gorsuch and Samuel Alito joined Thomas in dissent.

Why did opponents attack his wife?

Thomas’ wife, Ginni Thomas, has been outspoken about her political beliefs and support for Donald Trump.

Despite the fact that Thomas raised serious constitutional concerns with the Pennsylvania case, Democrats implied his wife’s politics drove his dissent — and even demanded that she be investigated to determine what role, if any, she played in the deadly violence at the U.S. Capitol on Jan. 6.

Christine Pelosi, daughter of House Speaker Nancy Pelosi said, “I’m concerned that #SCOTUS Justice Thomas dissented—we will have to learn more about the role his wife Gini Thomas played in raising money for Trump’s deadly #Jan6 ‘Insurrection Day.'”

Duty to Warn, an “association of mental health professionals warning Trump is psychologically unfit,” attacked Thomas for not disavowing his wife’s politics.

“Today, SCOTUS refused to hear an appeal from the PA GOP about extending mail-in voting deadlines. Clarence Thomas wrote a dissent. His wife Ginni endorsed the 1/6 protest, demanded an overturn of the election, and sent ‘LOVE’ to demonstrators. He’s not dissented to any of that,” the organization tweeted.

“Justice Thomas by the very fact that Ginni Thomas participated in 1/6 attack needs to recuse himself,” another critic said.

“For the sake of the integrity of the highest court in the United States of America, Justice Thomas must resign. Ginni Thomas must be investigated for her role in the January 6 insurrection. He and his wife are clearly radicalized,” another person said.

There is no evidence that Ginni Thomas played any role in the deadly violence at the Capitol.

Anything else?

Ginni Thomas apologized to Thomas’ staff earlier this month in emails obtained by the Washington Post.

“I owe you all an apology. I have likely imposed on you my lifetime passions,” Ginni Thomas wrote. “My passions and beliefs are likely shared with the bulk of you, but certainly not all. And sometimes the smallest matters can divide loved ones for too long. Let’s pledge to not let politics divide THIS family, and learn to speak more gently and knowingly across the divide.”

Constitution constitutional republic Intelwars Mask mandates Tennessee

Horowitz: Tennessee lawmakers introduce bill to prevent businesses from discriminating against customers without masks

In our society, businesses are sued for not looking at customers the right way or for not taking expensive actions to accommodate the needs of employees and customers through OSHA, ADA regulations, and anti-discrimination laws. Since when did it become OK, then, for businesses to force customers and employees to take very definite actions against their bodily integrity, such as wearing face masks, no matter their personal conditions? A group of conservatives are pushing a bill in the Tennessee legislature to address this problem, and it just might become a model for other states.

Tennessee is one of 12 states that currently does not criminalize breathing without a Chinese face burka, but the damage done by the local and federal mandates has made businesses feel as if they need to enforce it to cover their backs. Despite no statewide mask mandate and overall fewer restrictions than other states, RINO Gov. Bill Lee he has still declared going to church in person dangerous and tried to dictate to Tennesseans how many people with whom they could gather. He has also enabled and empowered localized health board tyranny instead of individual liberty, and even put out a video promoting face masks. Thus, like in every other state, Tennessee businesses are enforcing this mask tyranny on the citizenry.

A group of Tennessee lawmakers have introduced the Medical Non-Discrimination Business and Consumer Act (SB 0320/ HB 0794) to ensure that businesses are not enforcing what government is clearly incapable of doing. It is also designed to place anti-discrimination and disability laws vis-à-vis mask-wearing in line with every other practice of business regulation that prevents even private businesses from wholesale discrimination, invasion of medical privacy, and violation of the ADA.

Specifically, this bill would prohibit a person from denying an individual the full and equal enjoyment of goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation, resort, or amusement on the grounds of the wearing or use of a medical device, or whether the individual has received medical treatment, such as a vaccine.

On a practical level, this bill would prevent grocery stores, restaurants, movie theaters, and gyms from requiring masks or proof of vaccination in order to receive services. This is in line with current anti-discrimination law as it relates to every other facet of society. Just a year ago businesses would have been shut down for the rampant and cruel discrimination they are engaging in today.

Pursuant to the ADA (36.201), no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of goods and services, without retaliation or coercion (36.206) covering any condition whether a physical or mental impairment (36.302.1) wherein mere presence does not constitute direct threat, even if contagious or noncontagious with transmissible diseases (36.302.b.2, 36.208).

Universal masking within businesses is unattainable because it does not address the chaos variable of the many who have an ADA right to reasonable accommodation to receive full access to goods and services, and you do not get to know what is wrong with them. Exemptions include PSTD from trauma, rape, and bound torture, autism, cancer, COPD, asthma, lung disease, pregnancy, and exposure/illness. Yet masking is the one thing that can violate anti-discrimination and disability laws, despite the fact that masks are worthless in combatting a respiratory virus.

Thus, this bill would merely place mask policies in line with every other ADA and anti-discrimination regulation we enforce on businesses today. It takes away the liability that businesses would potentially incur for allowing people to come in without a mask. It further prohibits local governments within the state of Tennessee from enforcing such mandates, a step Gov. Lee has failed to take until now.

The Senate bill is sponsored by Sen. Joey Hensley, and the House bill is sponsored by Rep. Susan Lynn. The bill is being promoted statewide by Tennessee Stands, a grassroots organization promoting a more rational approach to the virus.

Are you sick of the left regulating businesses into oblivion, then suddenly empowering them to enforce the ultimate form of discrimination when it comes to their sacred masks? If a mom-and-pop bakery must bake a cake for a gay wedding when the couple can find one hundred other businesses willing to service their event, then certainly businesses can’t shut off all vital goods and services to a human being for merely breathing, especially when there is no evidence they even have the virus. Moreover, if “businesses can do whatever they want,” then businesses can open without capacity restrictions or other lockdown policies. It’s time to apply anti-discrimination law and business regulations as a two-way street.

Let’s be clear, unless this legislation is passed in all the 31 states with GOP-controlled legislatures, the mask cult will never end. It’s time to even up the score and push back against government tyranny with equal and opposing force. The Medical Non-Discrimination Business and Consumer Act is that opposing force we’ve been waiting for.

Constitution Hillary Clinton IMPEACHMENT Intelwars Marco Rubio Trump Impeachment

Marco Rubio questions whether Trump impeachment sets ‘new precedent’ that could target Hillary Clinton

Could the Democratic Party’s pursuit of another Trump impeachment have consequences for one of their own? That is exactly what Sen. Marco Rubio (R-Fla.) suggested could happen.

What happened?

During former President Donald Trump’s Senate impeachment trial on Friday, Rubio asked whether retroactively using the Constitution’s impeachment mechanisms against Trump would create a ripple effect allowing other former government officials to be impeached and face a Senate trial.

In his question, Rubio asked about a “former secretary of state,” a clear reference to Hillary Clinton.

Rubio asked, according to Mediate:

Voting to convict the former president would create a new precedent that a former official can be convicted and disqualified by the Senate. Therefore, is it not true that under this new precedent a future House facing partisan pressure to “lock her up” could impeach a former Secretary of State and a future Senate be forced to put her on trial and potentially disqualify from any future office?

In response, Rep. Jamie Raskin (D-Md.), the lead House Impeachment Manager, claimed the “jurisdictional issue is over.”

Raskin added that Rubio’s hypothetical question “has no bearing on this case because I don’t think you’re talking about an official who was impeached while they were in office for conduct that they committed while they were in office.”

What did Trump’s lawyer say?

Michael van der Veen, one of former President Donald Trump’s defense attorneys, disagreed.

He told Rubio that Democrats are setting a precedent that could not only be applied to the “former secretary of state,” but “to a lot of people and that’s not the way this is supposed to work and not only could it happen to a lot of people, it would become much more regular, too.”

Van der Veen added that Rubio’s question highlights the “absolutely slippery slope” of Democrats decision to pursue an impeachment trial despite Trump no longer being president.

“The original question is an absolutely slippery slope that I don’t really think anybody here wants to send this country down,” van deer Veen said.

Anything else?

Trump’s trial will most likely end on Saturday with his acquittal.

Earlier in the day, the Senate voted to call witnesses, which would have extended the trial indefinitely. However, the Senate quickly reached an agreement that included not calling witnesses.

Senate Minority Leader Mitch McConnell (R-Ky.) also announced that he would vote to acquit Trump.

“While a close call, I am persuaded that impeachments are a tool primarily of removal and we therefore lack jurisdiction,” McConnell said in a letter to Senate Republicans.

Constitution constitutional republic Constitutional sanctuary Intelwars north dakota

Horowitz: North Dakota House votes to block all existing and future unconstitutional federal policies

On Wednesday, North Dakota took another step toward becoming a constitutional sanctuary to protect individual rights from federal encroachments. The question now is whether Governor Doug Burgum will put the bill over the top.

By a vote of 51-43, the North Dakota House passed HB 1282, which would create a joint committee on nullification to review all federal laws or executive orders that are suspected of violating the Constitution. The committee, which is to be composed of the House and Senate leadership and six members from each body who would serve for two years, would recommend to the legislative body whether to nullify the federal policies based on constitutional violations. Upon the committee’s recommendation, the legislative assembly, by concurrent resolution, shall consider whether to nullify the federal action.

The consequence of this bill is that if the legislative assembly approves the concurrent resolution by a simple majority, all state agencies or political subdivisions of the state and all individuals employed by a state agency or political subdivision of the state are prohibited from enforcing the said federal law, regulation, or executive order.

Under the proposed legislation, the committee may review all existing federal statutes, regulations, and executive orders enacted before the effective date of this proposed law for the purpose of determining constitutionality and shall recommend whether to nullify in its entirety a specific federal statute, regulation, or executive order.

As I mentioned last week, this bill is probably the most important piece of legislation a state can pass given today’s political climate. It’s exactly what our Founders had in mind in the nightmare scenario where the federal government becomes tyrannical and inexorably hostile to the Bill of Rights. For example, if this bill passes, it would likely force a vote in the legislature on the implementation of the CDC’s unconstitutional and inhumane mask mandate on travelers.

You might notice that this bill only passed 51-43, despite Republicans enjoying an 80-14 majority in the House. More than a third of the Republicans voted against it. These were the 43 no votes: Adams; Anderson, B.; Anderson, D.; Anderson, P.; Beltz; Boe; Boschee; Brandenburg; Buffalo; Devlin; Dobervich; Guggisberg; Hager; Hanson; Hatlestad; Ista; Johnson, D.; Karls; Keiser; Klemin; Longmuir; Martinson; Mitskog; Mock; Nathe; Nelson, J.; Nelson, M.; O’Brien; Ostlie; Owens; Pollert; Porter; Richter; Roers Jones; Sanford; Schneider; Schreiber-Beck; Strinden; Thomas; Trottier; Vigesaa; Westlind; and Zubke.

The bill now heads to the Senate, where Republicans enjoy a 40-7 majority. However, there are many liberal Republicans in the Senate, and the governor has yet to endorse the bill. A number of liberal Republicans have bought into the erroneous notion that only courts can decide the constitutionality of issues. House Judiciary Committee Chairman Larry Klemin opposed the bill on the floor, claiming that it isn’t the legislature’s job to determine the constitutionality of a law.

As chairman, Klemin already watered down another similar bill, HB 1164, which I referred to last week. On Thursday, the new “modified” version of HB 1164 passed 79-13 – with all the fake Republicans pretending to support the Constitution. That bill, as modified, would only allow courts to determine the constitutionality of a presidential executive order, rather than the attorney general, as originally drafted.

Here’s the subterfuge we need to watch out for in other states only pretending to pass constitutional sanctuary legislation. What this effectively does is make the bill do the exact same thing as current practice, effectively gutting the entire effort. Thus, the chairman of the committee gets to brag about fighting for the 10th Amendment and standing up to tyranny, while doing absolutely nothing.

Worse, this bill continues to legitimize the myth that, somehow, only the judicial branch can interpret the Constitution. Indeed, each branch of government – both at the state and federal levels – has an obligation to use its respective powers to protect constitutional rights. For example, with Biden’s illegal and unscientific COVID mandates, it is the executive branch of the state that must defend the Constitution and refuse to implement them and the legislative branch that must prohibit and defund them from being implemented.

The judicial branch of government, with very few exceptions, has ignored flagrant violations of the Bill of Rights for 10 months. Fighting Washington at the local level will become a popular campaign issue for state and local politicians in the coming months and years. Perfidious Republicans understand this and plan to misdirect the grassroots energy away from bills that actually have teeth in them and send that force into a black hole.

If states are going to finally fight back against tyranny, it needs to come from the legislature. It’s time for legislators to stop running away from their constitutional obligations to represent the people and to protect their rights.

In a 2017 report, the Congressional Research Service observed that “early history of the United States is replete with examples of all three branches of the federal government playing a role in constitutional interpretation.” Members of Congress weren’t so complacent in their duties and, as the CRS observed, never sat idly allowing the courts to wield “a final or even exclusive role in defining the basic powers and limits of the federal government.” They subscribed to Madison’s view in Federalist #49 that “the several departments being perfectly co-ordinate by the terms of their common commission, neither of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers.” He emphatically believed that “each [department] must in the exercise of its functions be guided by the text of the Constitution according to its own interpretation of it.”

Thankfully, the stronger bill, HB 1282, wound up passing over Chairman Klemin’s objections, but this demonstrates the struggle conservatives have even in red states in getting GOP supermajorities in both houses, not to mention the Republican governors, to work for the constitutional sanctuary movement.

As the legislative sessions reach their peak work weeks, conservatives should make HB 1282 the model bill. Rather than empowering the judiciary or even the executive to have exclusive authority over nullifying unconstitutional federal powers, it places the authority in the hands of the democratically elected legislature. This will force red-state Republicans to either finally stand up and fulfill their campaign promises or reveal to their voters that they are a false opposition to the Left, as over 25 Republicans in North Dakota did this week.

In order to make red states red again, we will have to make state legislatures great again.

Constitution constitutional republic Intelwars Sanctuary counties Second Amendment

Horowitz: Missouri county authorizes arrest of feds who violate Second Amendment

What is our recourse when our own government criminalizes our most basic rights while it allows Black Lives Matter and Antifa to rampage through our streets with impunity? Is there no Plan B when the federal or state governments treat all conservatives like terrorists, business owners like pariahs, and those who yearn to breathe unmasked air like murderers? Well, one Missouri county is demonstrating the importance of sheriffs and county officials returning to self-government and interposing between the governmental usurpers and the most sacred rights of the people.

On Feb. 3, the Newton County, Missouri, Commission passed a bill that will not only block federal enforcement of unconstitutional gun policies, but criminalize their implantation thereof within the jurisdiction of the county. The “Second Amendment Preservation Act of Newton County Missouri” declares that “all federal acts, laws, orders, rules, and regulations passed by the federal government and specifically any Presidential Administration whether past, present, or future, which infringe on the people’s right to keep and bear arms as guaranteed by the Second Amendment of the United States Constitution and Article I, Section 23 of the Missouri Constitution shall be invalid in the county.”

That section of the Missouri constitution reads as follows:

That the right of every citizen to keep and bear arms, ammunition, and accessories typical to the normal function of such arms, in defense of his home, person, family and property, or when lawfully summoned in aid of the civil power, shall not be questioned. The rights guaranteed by this section shall be unalienable. Any restriction on these rights shall be subject to strict scrutiny and the state of Missouri shall be obligated to uphold these rights and shall under no circumstances decline to protect against their infringement.

Specifically, the ordinance targets federal policies that order the tracking or registering of firearms of ammunition, an idea that Democrats have been floating recently. It also bars the enforcement of any effort to confiscate guns except from those who are “suspected criminals.”

The Second Amendment sanctuary movement has been growing throughout the country, with hundreds of counties passing some form of a declaration protecting gun rights from encroachments perpetrated by higher levels of government. The sanctuary movement has only recently come to the state of Missouri, with several counties recently declaring themselves Second Amendment sanctuaries and the state legislature pushing similar bills. But Newton County might have adopted the strongest language in the entire country – going so far as to criminalize enforcement or cooperation with federal law enforcement who seek to enforce such policies.

This is a takeoff of what states like New York did when they criminalized the cooperation between state and county government officials and Immigration and Customs Enforcement with regard to enforcement of federal immigration laws, even against illegal aliens with criminal records. The difference, of course, is that the Second Amendment sanctuary movement seeks to protect legitimate constitutional rights for Americans and, unlike the illegal alien sanctuary movement, does not harbor suspected criminals.

Specifically, section 4a of the Newton County ordinance grants the sheriff’s department “full authority to make an arrest of any and all federal agents that violate state laws and enforce regulations” that violate the Second Amendment. Finally, the ordinance bars anyone “who enforces or attempts to enforce any of the infringements identified in this ordinance” from “being hired as a law enforcement officer or to supervise law enforcement officers in the county.”

It is to be hoped that this will spawn a debate in the country over what citizens should do when the higher levels of government violate the very essence of the social compact by wielding one executive power after another to confiscate the most foundational of natural rights, including self-defense, free speech, property rights, and the right to breathe free air unrestrained, which absolutely is a natural right that predated any government.

The Newton ordinance was signed by commissioners Bill Reiboldt, Alan Cook, and David Osborn on Feb. 3 and is effective immediately.

While most sanctuary ordinances have thus far targeted Second Amendment violations, some counties have begun to pass sanctuary resolutions protecting local business owners and citizens from COVID restrictions that violate the First, Fourth, Fifth, and Fourteenth Amendments of the Constitution. is a website that tracks the growing list of these sanctuary counties. Also, a group of listeners of my podcast have organized a network (Constitution Action Network) for people of the same state and county to meet, collaborate, and raise awareness of the power of state and local government to interpose against the growing list of blatant constitutional violations and extra-lawful lawmaking at the stroke of Biden’s executive pen.

The left-wing sanctuary city politicians, while wrong on the policy and legal merits of their arguments, will likely rue the day they created this monster that will now serve as the only remaining beacon for patriots to protect legitimate rights of American citizens.