Senate Republicans pass tax bill and why it proves we don’t know our Constitution

http://thehill.com/homenews/senate/362878-live-coverage-senate-holds-tax-reform-vote-a-rama

For the last few weeks the media has been in a frenzy discussing the proposed tax reform bill moving its way through Congress.  The Senate has worked long days lasting late into the next morning to pass a bill which should be, if we had even a basic understanding of our Constitution, a complete waste of time.

All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

U.S. Constitution Article I, Section 7

The constitutional problem is a matter of origin.  Since this bill deals specifically with raising revenue, the ONLY place it can constitutionally originate is the House.  Therefore any tax reform bill which originates in the Senate is unconstitutional.  The Senate can offer amendments to the House’s bill, but from what I’ve read so far this seems to be a bill created by the Senate, meaning it IS unconstitutional.  There has been sometimes heated discussion about budget reconciliation and filibusters, with all the machinations and back-door deals to put together this bill in a way so it will pass the Senate.  How much real work could have been done if the Senate had spent this time on what it’s constitutionally required to do rather than what should have been recognized as an illegal waste of time from the beginning? This morning talking-heads were discussing what might happen in a conference committee, a process where related bills that are passed in both the House and Senate but with different language are reconciled.  This is another waste of time since according to the Constitution the Senate cannot create revenue bills, only amend them.

Why make such a fuss about where the bill originated?  Because it’s a perfect example of three things that concern me about Washington and should concern you:

  1. A general disregard for the Constitution.  It seems any time the Constitution gets in the way, people in Washington either ignore it or twist its words beyond all recognition.  I was talking to someone a couple of weeks ago who said we don’t have a Constitution anymore.  While I understand his sentiment, the truth is we have a Constitution that everyone, including we the people, just ignore except when it supports our position.
  2. A general ignorance about the Constitution.  Of all the reports, editorials, and public discussion about the Senate tax bill I’ve heard, no one but me-and I am not exaggerating-has even asked if the bill was constitutional.  We know so little about our Constitution that even the basic idea that ALL bills for raising revenue SHALL originate in the House doesn’t even get raised.
  3. A general unwillingness to hold our representatives accountable to their oath to uphold the Constitution.  You want to know why Washington is a political swamp?  It’s because we’ve trained our politicians that they can ignore the law and the Constitution as long as we get what we want, usually taxpayer money of one sort or another.

“The preservation of the sacred fire of liberty . . is finally staked, on the experiment entrusted to the hands of the American People.”

– George Washington

We have been entrusted with the preservation of the sacred fire of liberty and we are failing!  Unless we take our responsibilities seriously and hold ALL of our elected officials accountable, regardless of party, promise, or prominence, we will watch that sacred fire dim.  And when it finally goes out and we point fingers, as we most surely will, the fault will be ours, the American people.

Concealed Carry Reciprocity Act of 2017

Concealed Carry Reciprocity Act of 2017

I’ve seen quite a debate, especially amongst the “firearms crowd”, regarding the “Concealed Carry Reciprocity Act of 2017”, or as it’s commonly called, “National Reciprocity”.  As a firearm owner with a concealed carry permit who frequently travels between states, I find this whole situation quite vexing.  It’s bad enough that each state has it’s own rules about where and how I may be allowed to carry, but which states will recognize what licenses is confusing enough that multiple books and websites exist to help a gun owner keep track.  Add to that the fact that some states have notorious reputations for giving little credence to federal laws regarding the interstate transportation of firearms and I can see why people would desire this type of legislation.  The question is: Does Congress have the constitutional authority to tell states what documents they must accept from other states?

There are actually two constitutional clauses we need to look at: The “full faith and credit” and the “privileges and immunities” clauses.  Lets start with the later. Continue reading “Concealed Carry Reciprocity Act of 2017”

How Long is a Federal Judge’s Term?

Every time there’s a new Supreme Court vacancy we hear talk about judges having a lifetime appointment.  But is that what the Constitution says? In short: No.

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

So, if federal judges hold office during good behavior, who defines “good behavior”?  Congress.  The House of Representatives determines who to impeach and the Senate tries the impeachment.  Are there standards for judging good behavior? Continue reading “How Long is a Federal Judge’s Term?”

Do we have three co-equal branches of government?

As long as I can remember, I’ve been told we have three co-equal branches of government in Washington.  Since I was taught it in government-run schools, I’ve heard it espoused from journalists, politicians, and just about everyone else when the topic comes up.  But is that true?

Size Matters

The Constitution does create three branches of government.  Article I creates the legislative branch, Article II the executive and Article III the judicial.  But are they created equal?

Article I consists of 10 sections and is about 2,200 words long.  Article II has four sections and is about 1,000 words long.  Article III has three sections and is only about 350 words long.  Obviously, our Founding Fathers had a lot more to say about the legislative branch than they did about the other two combined.  But is the amount they said all that matters?

Powers Granted

Article I, Section 8 lists the power granted specifically to Congress.  There are over 20 powers granted to Congress, everything from collecting taxes, coining money, declaring war, and even organizing and disciplining the militia.  Article II, Section 2 describes the powers of the President and lists five specific powers.  The President is commander-in-chief, may require reports from executive departments, make treaties (with restrictions), appoint ambassadors, ministers & judges (also with restrictions), and fill vacancies when the Senate is in recess.  Article III, Section 2 describes where the judiciary is allowed to exercise its one and only power.  And what is this “judicial power”?  In Federalist #78, Alexander Hamilton says, “The interpretation of the laws is the proper and peculiar province of the courts.”   So, by looking at the powers granted, we see the three branches are not equal.  But are these the only way to determine equality?

Sphere of Authority

A quick look at the Constitution shows that there are defined spheres of authority for all three branches.  The legislature makes the laws, the executive executes the laws, and the judicial interprets the laws.  But are those the extent of the powers given? You see, the legislative branch not only writes the laws, but determines if members of the executive and judicial branches are following the laws, including the Constitution.  Only the legislative branch has the power to remove a member of the executive or judicial branches.  The chief executive can appoint judges, but only with the advice and consent of the Senate, a part of the legislative branch.  There is no mechanism in the Constitution for the executive or judicial branches to remove a member of the legislative branch. Only the people can do that.  (Originally a state’s legislature could remove one of their senators, but that was changed by the 17th Amendment.)  It is the legislative branch that creates and oversees all federal courts except the supreme Court.  Even the number of justices (beyond the need for a chief justice), is determined by the legislative branch, not the judicial.  As Hamilton put it in Federalist #78:

Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

The executive has the power of the sword, the legislative of the purse, but the judicial has no power at all, only judgment.

Judicial Review

What about the power of judicial review.? Can the courts not rule a law or executive order unconstitutional and therefore void?  Let’s look at what else Hamilton said in Federalist #78:

Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power.

It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature.

So, what is to stop a court from substituting their own pleasure to the intent of the constitutional intentions of the legislature?  Two things: Enforcement of the court’s will and impeachment.

Enforcement

While the court has judgment, they have no mechanism to enforce their judgment.  Does that mean the legislative and executive branches can simply ignore the judicial?  To do so would be extremely dangerous, but not without precedent.

On April 27th, 1861, President Lincoln issued an order authorizing the suspension of habeas corpus, (a court order for a jailer to appear in court with their charge and explain the incarceration) in a troubled area between Philadelphia and Washington.  When General George Cadwallader ignored Chief Justice Roger Brooke Taney’s writ of habeas corpus, to produce a prisoner taken in that area, the judge “ruled” that the president did not have the authority to suspend the right.  Article I, Section 9 of the Constitution clearly states “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.”  So what did Lincoln do with this challenge to his authority by the court?  He ignored it.  With a clear authority granted to the federal government and no power for the court to bend President Lincoln to their will, the matter ended.

Impeachment

Contrary to popular belief, federal judges are not given lifetime appointments.  Article III, Section 2 states:

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

Who determines good behavior?  The people through their legislative representatives.  Article II, Section 4 of the Constitution states:

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

What are “other high crimes and misdemeanors”?    What I’ve learned from people who have studied the times is that the word “high”, in this construction, refers not to the severity of the offense, but to the office of the person who has offended.  Webster’s 1828 dictionary defines misdemeanor as:

MISDEME’ANOR, noun Ill behavior; evil conduct; fault; mismanagement.

Now if a judge were to violate their oath of office and the law by ruling contrary to the Constitution, would that not be ill behavior?  And would that not violate the term of their stated office, that being good behavior?

Unconstitutional Laws

Like the judicial branch, the legislative branch has no enforcement mechanism.  Should Congress pass unconstitutional laws, then it is up to the president to veto them.  Should the presidential veto be overridden, then the president has a duty to uphold his oath and ask for the court’s opinion.  If the court and the executive agree that a law is unconstitutional, then there is support for the executive not to enforce the offending law.

Executive Overreach

So what if the executive branch acts unconstitutionally, either by doing what they have no authority to do or by abstaining from their duty?  As the most powerful branch of the government, the legislative branch can simply deny funding to the executive branch until the situation is resolved.

 

Supreme Law

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

U.S. Constitution, Article VI

In all of the situations we have looked at, one clear standard has been applied: What does the Constitution say?  Power has been divided to help balance conflicting agendas with the goal of preventing any one part of the government from exercising undue power over the others and the rest of the country.  This works because above all three branches is the Constitution and the laws & treaties created within the sphere and scope it provides.  In other words, there is something with authority over all of the federal government and that is the Constitution.  As Alexander Hamilton said in Federalist #78:

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.

The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

Conclusion

In other words, the idea that we have three co-equal branches of government is not only untrue but a mechanism by which the people lose power over the federal government.  I have spent a lot of time discussing the oversight of the judicial branch because it is the judges and the courts who routinely overstep their bounds today.  We are told that once the supreme Court has ruled it is “settled law”, cannot be challenged, and we had better abide by it, but that is not true. Even the court’s opinions have to stand up to the plain reading of the Constitution.  It is up to us to hold all three branches accountable, not only for their actions but how they discharge their duties to restrict the overreach of the other two.  Since the most powerful branch, the legislature, is chosen by us, it is up to us to make sure they are doing their entire job.  If not, it is up to us to find people who will.  After all, it is We The People who established this Constitution and the government it created.

All three non-equal branches of it.

Can a state ban travel to another state?

There’s been a fair amount of talk lately about states banning travel to other states because of their laws, which states like New York and California deem discriminatory. I’m not here to discuss whether these travel bans are wise or legal in their own states, but whether they are constitutional.

The key fact often overlooked in many of the reports I’ve read and heard is that these are bans on state funded travel. I’ve heard some say this ban is unconstitutional because is violates the Privileges and Immunities clause of Article IV, Section 2 of the U.S. Constitution. The Privileges and Immunities clause states:

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

United States Constitution, Article IV, Section 2

The logic seems to be that the right to travel to another state, what our Founding Fathers referred to as the right of expatriation, is a fundamental privilege, and that denying travel for any reason is a violation of the privileges of a citizen of the state. Now if a state were to ban it’s citizens from travel to another state, that would be a violation, but is that what these state travel bans are doing? When I read the acts of New York and California what I found was not a blanket ban on travel to other states, but a ban on state funded travel to other states. As a sovereign entity, the people of each state have the right through their elected representatives to determine what their money will be spent on. If the people of New York and California do not want their tax-payer funds to pay for travel to other states because of a perceived discrimination, that is their right. And if the people of those states think their representatives went too far in issuing their travel bans, it is up to them to contact their representatives to express their opinion and then decide in the next election if they are representing the people of their state well. In short, the travel bans are not a violation of the privileges and immunities clause, but the call by citizens of other states to overturn them is a violation of state sovereignty.

How can you tell when a politician is lying?

I’m sure you’ve all heard the joke, “How can you tell when a politician is lying?” The answer, of course, is: “When their lips are moving!” While this is a sad commentary on the state of politics in the 21st century, it’s an even sadder commentary on the state of our society! What does it say about us that we hire people to represent us who we know are lying to us? What does it say about Americans that those who lie the best keep their jobs the longest? If these people represent us, what does their character say about us as a nation? Just as in colonial times, more often than not our government represents the worst of our natures, not the best. If there is a problem in Washington it is ultimately our fault. If that is the bad news, the good news is that it means we can fix it. However, it will take a long time and probably not the path you expected.

Continue reading “How can you tell when a politician is lying?”

NY Gov. Cuomo threatens to sue over proposed gun rights legislation

My wife ran across an interesting article yesterday and asked if I’d write about it. So here goes.

NY Gov. Cuomo threatens to sue over proposed gun rights legislation

Now I rarely agree with Gov. Cuomo, and he’s certainly made more than his fair share of mistakes in the quotes in this article, but in this case he is correct: The Second Amendment Guarantee Act, as proposed by Congressman Collins (NY-27), is plainly unconstitutional and should be opposed by all fifty states and their citizens alike.

While the text of the bill was not available at the time I was writing this, what Rep. Collins proposes not only violates Article I, Section 8’s “general welfare” clause, but it violates both the 2nd and 10th Amendments as well.

Continue reading “NY Gov. Cuomo threatens to sue over proposed gun rights legislation”

SAF Michigan Lawsuit

SAF Sues Michigan Agency Over Civil Rights Violations Against Foster Parents

This is a second amendment case, and there are plenty of sites covering that aspect.  I want to look at this from a slightly different angle.  Two alleged statements got my attention.

The lawsuit, filed in U.S. District Court for the Western District of Michigan, alleges that MDHHS caseworkers told Mr. Johnson, a 100-percent disabled Marine Corps veteran who sought custody of his grandson that he would have to give the agency the serial numbers of all of his firearms. When he questioned this, the caseworkers allegedly told him, “If you want to care for your grandson you will have to give up some of your constitutional rights.” This was after the state asked the Johnsons to be foster parents to their grandson.

The idea that an agent of any government can hold someone’s constitutional rights hostage should make your blood boil. To use the welfare of a child to do so is beyond unconscionable!  If we want to return to a constitutional republic and the rule of law, citizens of Michigan should demand their governor (their chief executive) deal with this blatant violation of this man’s rights and the complete disregard of the best interest of the child, which should be the primary concern of the caseworker.

Two weeks later, the lawsuit alleges, a Gogebic County Court judge told the Johnsons that if they wanted their grandson placed in their care, “We know we are violating numerous constitutional rights here, but if you do not comply, we will remove the boy from your home.”

Continue reading “SAF Michigan Lawsuit”

Studying the Constitution is not as hard as you may think

Studying the Constitution is not as hard as you may think. Over the years we have delegated the privilege of reading and understanding the Constitution to a high-priesthood of nine people in black robes, the Supreme Court of the United States and their acolytes, the judges, lawyers and clerks of our legal system. But this is not how the Constitution was written.

We sometimes act like reading the Constitution is some grand accomplishment. The U.S. Constitution is only approximately 8,000 words long including all the amendments and the Declaration of Independence only adds about 1,500 more. Compared to the King James Bible (approx. 780,000 words), War and Peace (approx. 585,000 words), or the first Harry Potter book (approx. 76,000 words), it’s just not that large. In fact, the average reader should be able to get through the Constitution in about 20 minutes and the Declaration in about another 5. I try to read it through 2-3 times a year. It doesn’t take much time and it reminds me how things are supposed to be.

Some say only lawyers can understand it. In one word, HOGWASH! The Constitution was sent around the country for everyone to read before the states voted to ratify it. Essays were published in newspapers for and against provisions in the Constitution. We call these essays the Federalist Papers (for) and the Anti-Federalist Papers (against). They were all written so that the average 18th century farmer could read and understand them.

Sure, some of the words are unfamiliar to us and some of the clauses may require us to think about them to understand. But are 21st century Americans not as literate as an 18th century farmer? Or have we just been taught that it’s too difficult, so just leave it to the professionals? Our Founding Fathers didn’t think so. John Jay, a Founding Father and first Chief Justice of the supreme Court of the United States said, “Every member of the State ought diligently to read and to study the constitution of his country…” Not “every lawyer and politician should read it”, (though I wish they would), and not “only the trained should read it”, but everyone should read it. This is our heritage, created to guarantee our freedom! Don’t you think it’s worth 30 minutes to read? Don’t you think it’s worth some time to study with others?

How do I get started?

You’ve already taken the first step by coming to The Constitution Study.  Here everyone from the curious to the expert can get together to read a study the Constitution. Join our growing band of self-taught patriots. Sign up today and you’ll be notified as new content is available; meanwhile consider supporting our work.  Together we will study the Constitution of YOUR country and help protect the freedoms of your children and your children’s children.

I hope you’ll join us at The Constitution Study. Together we can read and study how our federal government was designed to work, learn how to apply the Constitution to our lives today, and discover how through working together we can make a change in our nation and our lives.