By Paul Engel

October 10, 2022

• Do the federal courts have the legal authority to overturn federal law?
• Can the only unelected branch of the federal government rule over the elected branches?
• What are the consequences of “constitutional law” overruling the Constitution itself?

If you spend any significant time discussing court opinions, you’ve encountered the concept of “Judicial Review”. What is judicial review, where does it come from, and is it used today the way it was originally defined? These are the questions every American should have a basic understanding of if they wish to live free. So that’s what we’re going to look at in this article.

When it comes to understanding a term, the best place to start is with a dictionary definition:

A court’s authority to examine an executive or legislative act and to invalidate that act if it is contrary to constitutional principles.

The power of courts of law to review the actions of the executive and legislative branches is called judicial review. Though judicial review is usually associated with the U.S. Supreme Court, which has ultimate judicial authority, it is a power possessed by most federal and state courts of law in the United States. The concept is an American invention. Prior to the early 1800s, no country in the world gave its judicial branch such authority.

Judicial Review – The Free Legal Dictionary

For a contemporary understanding of judicial review, this is an accurate definition. Is that the original understanding of judicial review though? Is that what our framers intended when they drafted the Constitution? What does the Constitution say?

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

U.S. Constitution, Article III, Section 1

So what is this judicial power the Constitution is talking about? The closest definition I can find from Noah Webster is:

That branch of government which is concerned in the trial and determination of controversies between parties, and of criminal prosecutions; the system of courts of justice in a government.

JUDI’CIARY – Webster’s 1828 Dictionary

So where does this idea the federal courts have the authority to invalidate acts of Congress or the President come from? What happened in the early 1800s to bring this power into existence? The answer is the case Marbury v. Madison.

Marbury v Madison

When John Adams lost his bid for re-election in 1800, he, along with other federalists in Congress, attempted to pack the courts by passing the Judiciary Act of 1801 and appointing 16 new circuit judges and 42 new justices of the peace. While these appointments were approved by the Senate, their commissions were not delivered before the Jefferson administration was inaugurated. James Madison, Jefferson’s Secretary of State, refused to deliver the commissions. William Marbury, one of the new Justices of the Peace, petitioned the Supreme Court to compel Mr. Madison to deliver his commission via a writ of mandamus.

A (writ of) mandamus is an order from a court to an inferior government official ordering the government official to properly fulfill their official duties or correct an abuse of discretion.

Wex Legal Dictionary

Does the court have the legal authority to issue such a writ?

It has been insisted at the bar, that, as the original grant of jurisdiction to the Supreme and inferior courts is general, and the clause assigning original jurisdiction to the Supreme Court contains no negative or restrictive words, the power remains to the Legislature to assign original jurisdiction to that Court in other cases than those specified in the article which has been recited, provided those cases belong to the judicial power of the United States.

Marbury v. Madison Opinion

You see, lawyers playing games with words is nothing new. The Constitution clearly states that:

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

U.S. Constitution, Article III, Section 2, Clause 2

So the Constitution delegates original jurisdiction to the Supreme Court in this case, since it involves a public minister, Secretary of State James Madison. Did you notice the twist? Congress can make exceptions for the question of jurisdiction, and set regulations for the process of the court, but does that mean it can grant to the court a power not delegated by the Constitution?

To enable this court then to issue a mandamus, it must be shown to be an exercise of appellate jurisdiction, or to be necessary to enable them to exercise appellate jurisdiction.

Marbury v. Madison Opinion

This is an important question, and what drove the court to the question of judicial review. The Tenth Amendment to the Constitution is quite clear:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

U.S. Constitution, Amendment X

So if the Constitution does not grant to the courts the general power to issue writs of mandamus against another branch of the government and it’s not included as part of their jurisdiction, then Congress cannot give to the court a power not delegated to it by the Constitution of the United States.

The authority, therefore, given to the Supreme Court by the act establishing the judicial courts of the United States to issue writs of mandamus to public officers appears not to be warranted by the Constitution, and it becomes necessary to inquire whether a jurisdiction so conferred can be exercised.

Marbury v. Madison Opinion

That brings us back to the question of judicial review.

Judicial Review

It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each. …

If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.

Marbury v. Madison Opinion

Notice the definition of judicial review used by Chief Justice Marshall. It’s not a question of invalidating a law, but determining, in the context of a specific case, whether laws are in conflict with one another. And if one of those laws happen to be the Constitution of the United States, then it must win.

Compare this with how courts use judicial review today.

A court’s authority to examine an executive or legislative act and to invalidate that act if it is contrary to constitutional principles.

Judicial Review – The Free Legal Dictionary

See the difference? Chief Justice Marshall made the point that in a case where both a legislative and constitutional law apply, the Constitution must govern the case. Yet today, that has morphed into courts invalidating laws they believe violate the Constitution. This is not a question of applying the law to a case before the court, but of the nullification of laws created by the representatives of the people. Chief Justice Marshall went on.

Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument.

The rule must be discharged.

Marbury v. Madison Opinion

Yes, an act repugnant to the Constitution is void and invalid. Yes, the court claims that the rule must be discharged, but do you see the Chief Justice claiming that the courts can invalidate a law with a simple opinion, much less order other courts and departments to follow their opinion? Yet for as long as I have been following their decisions, courts have used this language to not only overturn laws of the United States, but to place their opinions above the law.

Modern Judicial Review

The most blatant example of this violation of judicial review I can think is the question of “levels of scrutiny”.

In U.S. constitutional law, when a court finds that a law infringes a fundamental constitutional right, it may apply the strict scrutiny standard to nevertheless hold the law or policy constitutionally valid if the government can demonstrate in court that the law or regulation is necessary to achieve a “compelling state interest”. The government must also demonstrate that the law is “narrowly tailored” to achieve the compelling purpose, and uses the “least restrictive means” to achieve the purpose. Failure to show these conditions may result in a judge striking down a law as unconstitutional.

The standard is the highest and most stringent standard of judicial review and is part of the levels of judicial scrutiny that courts use to determine whether a constitutional right or principle should give way to the government’s interest against observance of the principle. The lesser standards are rational basis review and exacting or intermediate scrutiny. These standards are applied to statutes and government action at all levels of government within the United States.

Strict scrutiny – The Free Legal Dictionary

Do you see the inversion here? According to Article VI, Clause 2 of the Constitution:

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, Clause 2

Yet today, using the concepts of judicial review and “constitutional law”, courts claim that they can overrule the Constitution if, in their opinion, the government has a good enough reason. Compare that to the origins of judicial review in the Marbury v Madison opinion and you’ll see the courts have not only claimed to rule over the representative branches of government, but have placed their opinion, and those of their predecessors, above the supreme law of the land. Why has this abomination of the republican form of government, not to mention the idea of self-government, been allowed to continue? Because those in the federal government, state governments, and yes, We the People, are generally ignorant about the Constitution. We have all simply sat back while this oligarchy has been allowed to take over our republic. When was the last time you demanded that your representative in the House impeach a justice for such bad behavior? We should not use impeachment against every judge who issues an opinion we disagree with; that is not what I’m saying. I’m not talking about disagreements about the law, but the fundamental usurpation of the Constitution and the violation of the judges’ oaths to support the Constitution. That borders on the level of a coup d’etat against the rightful law and government of this nation. So how can that be considered “good behavior”?

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

U.S. Constitution, Article III, Section 1

Conclusion

I hope this explanation of judicial review, along with the abuses thereof, have opened your eyes to the tyranny of the oligarchs in black robes that currently rule over our country. I do not think it is an exaggeration to state that what the courts have done is usurp the Constitution, the supreme law of the land, and replace it with a government of their own design. Isn’t it about time those we employ to represent us do their job to oversee the judicial branch? There is a reason why the only non-elected branch of the federal government was not given any power.

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 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.

Alexander Hamilton – Federalist Papers #78

Isn’t it time We the People, through our elected representatives, restore the courts to their rightful place in our government? Shouldn’t we remove the force and will the courts have stolen from us, and return them to a body of mere judgment? Unless We the People stand up to the long train of abuses the federal courts have committed against us and throw off such despotism, we condemn our children to live as subjects of an oligarchy rather than a free and secure people in a constitutional republic.

But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

© 2022 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

October 7, 2022

• Can a religious university be forced to recognize and support a student group who wishes to change the nature of the university?
• Do students have the right to change the nature of a private university?
• Does our nation’s obsession with the sexual agenda mean your rights must bow to it?

None of us want to be judged by our race, sex, or how we live our lives. So what right do we have to impose our views on others, even to the point of controlling their private property? That is the question in a complaint against Yeshiva University. Does the City of New York have the legal authority to make a private university recognize a student group? Can the state order a religious school to violate its core beliefs to accommodate the wishes of a student? If we wish to live at liberty, doesn’t that mean we have to allow others to enjoy their own liberty, even if we disagree with it?

When does protecting one person’s rights involve infringing on the rights of another? And when is it OK to do so? These are perennial questions in America, ones that have garnered a lot of attention and several Supreme Court cases over the last decade or so. Today, I want to look at another example, one that is still making its way through the courts. The case of Yeshiva University v YU Pride Alliance questions whether or not New York City’s Human Rights Law can be used to override the Freedom of Religion of a religious school, those who own and operate it, and even the students who attend it.

Yeshiva University v YU Pride.

The question of a conflict of rights is not only nothing new in America, but based on the questions I’ve been asked, it’s also one of the most confusing topics to most Americas. The questions presented by Yeshiva University in this case all revolve around a single core question: Can the City of New York force a private university to recognize a student group that is antithetical to its religious beliefs?

The case started when Yeshiva University decided not to approve a Yeshiva Pride Alliance club. The university was sued by YU Pride in New York Superior Court, which granted a permanent injunction against Yeshiva University, ordering them to immediately approve the club. The University filed a motion to stay the injunction pending appeal, which was denied by the New York Appellate Court, and attempts to appeal the denial were not even heard by either the New York Appellate Division and New York Court of Appeals. This led Yeshiva to petition the Supreme Court for a stay of the permanent injunction until their appeal was resolved. This is where I first heard about this case, and this emergency application for a stay that I will be reviewing.

Freedom of Religion

As a deeply religious Jewish university, Yeshiva cannot comply with that order because doing so would violate its sincere religious beliefs about how to form its undergraduate students in Torah values.

Yeshiva Univ. v YU Pride – Emergency Application for Stay to SCOTUS

Here we see the conflict of rights. On the one hand you have the students who wish to not only form a Pride Alliance club, but to have it recognized by the school. On the other, you have a school whose religious beliefs cannot condone the behavior related to the Pride Alliance. Can the school be forced to subject its religious liberty to the desires of the students who attend it? By what authority can the City of New York, along with the New York Judicial System, force those who own and operate an organization to violate their religious beliefs? There is even more to this case though, than allowing a club to be created on campus.

This extraordinary situation arises from what all parties—and the trial court— acknowledge was a religious decision not to approve a Yeshiva Pride Alliance club. All parties agree that Yeshiva made this decision in consultation with its Roshei Yeshiva, or senior rabbis. And all parties agree that Yeshiva has a deeply religious character as a Jewish university. In fact, Plaintiffs admit that they want to force the creation of a Yeshiva Pride Alliance precisely to alter Yeshiva’s religiousenvironment—for example, by distributing school-sponsored “Pride Pesach” packages for Passover—and to upend Yeshiva’s understanding of Torah, with which Plaintiffs disagree.

Yeshiva Univ. v YU Pride – Emergency Application for Stay to SCOTUS

This has become a common tactic among the sexual movements. Enter an organization or business you disagree with, then attempt to subvert it using so called SOGI (Sexual Orientation & Gender Identity) laws. The students that want to create a “Pride Alliance” club admit that their purpose is to change the university, and they have accomplices both in New York law and courts.

The trial court held that the decision whether to have an official Pride Alliance organization on campus can be made by the government rather than Yeshiva itself in consultation with its rabbis.

Yeshiva Univ. v YU Pride – Emergency Application for Stay to SCOTUS

In effect, the New York trial court claimed the government has power to assume control over a private religious university. Where did the court find such power?

Relying on the New York City Human Rights Law (NYCHRL), the court concluded that the government can force Yeshiva to recognize an official Pride Alliance club because Yeshiva purportedly offers too many secular degrees to qualify for the law’s express exemptions for religious organizations.

Yeshiva Univ. v YU Pride – Emergency Application for Stay to SCOTUS

Many of you are probably thinking of an argument based on the First Amendment to the Constitution of the United States. This was the argument brought by Yeshiva to the Supreme Court, but there’s a problem with this argument: Congress did not make this law.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;

U.S. Constitution, Amendment I

That fact is very important. While the courts routinely “incorporate” the First Amendment against the States under the Fourteenth Amendment’s Privileges and Immunities Clause,

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;

U.S. Constitution, Amendment XIV

The First Amendment still says “Congress shall make no law…” What the trial court has done is effectively establish the standards for a religion to be recognized, at least when it comes to their schools. The trial court said the Yeshiva University is a religious school, just not religious enough to be treated as a religious organization.

Worse, the court ignored Yeshiva’s First Amendment church autonomy arguments entirely and cursorily rejected its Free Exercise arguments. In essence, the court found that Yeshiva is not a religious entity and has no right to control how its religious beliefs and values are interpreted or applied on its campuses.

Yeshiva Univ. v YU Pride – Emergency Application for Stay to SCOTUS

The term “church autonomy” refers to a Supreme Court precedent that supports the “independence of religious institutions”. Again, since Congress did not pass New York City’s Human Rights Law, this is not a First Amendment issue. This law, and the actions of the trial court, do violate the Constitution of the State of New York.

The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed in this state to all humankind;

Constitution of the State of New York, Article I, Section 3

Telling the University that they must allow the formation of an organization within their school whose purpose is to fundamentally change the religious nature of the school, certainly does infringe on the free exercise and enjoyment of religious professions and worship. By placing the rights of the students who wish to form a club as superior to those who own and operate the University, the court has clearly discriminated against the school because of its religious nature. Furthermore, by claiming that the owners of the school have no right to control its own beliefs and values, the court has denied the owners both their liberty and the property they have in the school. This is a violation of the Due Process clause of both the Fifth and Fourteenth Amendments to the Constitution of the United States.

No person shall … be deprived of life, liberty, or property, without due process of law;

U.S. Constitution, Amendment V

nor shall any State deprive any person of life, liberty, or property, without due process of law;

U.S. Constitution, Amendment XIV

Although not part of the University’s argument, some of you may be thinking about an Establishment Clause violation. As I noted before, the trial court has established a standard for what makes a school religious enough for recognition. This appears to be a clear case of establishing a religion. The Constitution of the State of New York, like the constitutions of many of our states, does not prohibit the the state from establishing a religion. And since only Congress is prohibited from establishing a religion, that argument doesn’t apply here.

Yet because of the permanent injunction below, Yeshiva and its President are now being ordered to violate their religious beliefs or face contempt. That ruling is an unprecedented intrusion into Yeshiva’s religious beliefs and the religious formation of its students in the Jewish faith. It is also an indisputably clear violation of Yeshiva’s First Amendment rights.

Yeshiva Univ. v YU Pride – Emergency Application for Stay to SCOTUS

While I’ve already shown that the First Amendment claim is flawed, federal courts have frequently ignored the language of the Constitution in an attempt to protect religious freedom. What we have here is a clear violation of Freedom of Religion, both of the operators of the university and of the students who attend specifically for its religious culture and instruction. The pcfermanent injunction is a grave injustice to the school and its students, which is why, failing in the New York State Courts, the university appealed for protection from the Supreme Court of the United States.

Supreme Court

When a petition like this comes to the Supreme Court, it is directed to one of the justices. This justice may deal with the petition themselves, or bring the matter up to the court as a whole. You may have noticed that there are nine justices on the Supreme Court and nine circuits in the court of appeals. Each justice has a circuit they are accountable for. (They are called circuit courts because justices used to ride a circuit every year.) The Second Circuit is overseen by Justice Sonia Sotomayor. Her response was brief, but strong:

UPON CONSIDERATION of the application of counsel for the applicants and the response and reply filed thereto,

IT IS ORDERED that the injunction of the New York trial court, case No. 154010/2021, is hereby stayed pending further order of the undersigned or of the Court.

Yeshiva Univ. v. YU Pride, Supreme Court Order

This means that the courts of the State of New York are prohibited from enforcing their injunction until further notice from the Supreme Court.

Conflicting Rights

Before I conclude, I want to take some time and deal with the question of conflicting rights. Here we have the religious freedom of the school and the assembly of those who wish to have the club. There are many other examples I’m asked about, mandates to enter buildings, restrictions on the carrying of firearms, even the ability to express oneself. It all comes down to an understanding of rights.

I have an entire lecture on What is a Right? that I can summarize in two simple sentences. The legitimate exercise of a right cannot infringe on the rights of another. Therefore, for a right to be legitimate, you must be able to exercise it without infringing the rights of another.

How does that apply in this case? The operators and students of Yeshiva University have several rights in play here. We’ve focused on the free exercise of religion, but they also have the right to be at liberty to decide where they will attend school, the property they have in that school, and even the right to peaceably assemble with like-minded people. The students that wish to form a pride club also have the right to be at liberty in where they go to school and to peaceably assemble. In this conflict between two sets of rights, who should win? The question comes down to who is attempting to impose their will upon the other?

Some will argue that Yeshiva University is attempting to impose their religious viewpoint on the students who want to change it. Remember though, the school did not force the students to attend, neither did they hide their religious standards to trick the students when they were deciding where to go to school. So while the school does have its religious viewpoint, they are not attempting to force it on anyone, rather, they are trying to defend it from attempts to change it.

Now, let’s look at this from the pride standpoint. Nothing I’m aware of is stopping these students from gathering together in a pride club. Instead, what they want is recognition by the school. So their right to peaceably assemble is not being infringed. As I’ve already mentioned, the students are not forced to attend Yeshiva University, neither were they deceived about the religious environment it maintains. So their liberty has not been infringed. According to court records, these students wish to force the creation of this club specifically to alter the religious environment of the university. In other words, these students are attempting to illegitimately use their rights to infringe on the rights of the operators and other students of this school.

Lastly, if we look at the City of New York and the courts of the State of New York, both are attempting to impose their will on the University. While the state does have an interest in preventing discrimination, that is not what is happening here.

it is undisputed that Yeshiva has recently emphasized continued enforcement of its policies prohibiting “any form of harassment or discrimination”; updated its “diversity, inclusion and sensitivity training” to better reflect concerns of LGBTQ students; ensured that there are staff in its counseling center “with specific LGBTQ+ experience”; “appoint[ed] a point person to oversee a Warm Line that will be available” for anyone to “report any concerns pertaining to non-inclusive behavior”; and continued “to create a space for students, faculty and Roshei Yeshiva to continue this conversation.”

Yeshiva Univ. v. YU Pride, Supreme Court Order

Yeshiva University has continued to protect all communities, including the LGBTQ community, from harassment or discrimination. What the City and courts of New York are attempting to do is harass a religious organization into endorsing a lifestyle that is opposed to their beliefs and discriminating against the university because, in the eyes of the court, it is not religious enough.

Based on these three viewpoints, who is attempting to impose their will on whom?

Conclusion

While the stay from the Supreme Court is good news, it doesn’t mean that Yeshiva University is out of the woods. My guess is there will be plenty of opinions, appeals, and legal maneuvering before this case is finally decided. As Thomas Jefferson said:

Eternal vigilance is the price of liberty.

Thomas Jefferson, Thomas Jefferson Papers

I can only hope that Yeshiva University will remain vigilant, and the freedom loving people of America will stand with them in their struggle.

Update

After writing this article, the Supreme Court offered an opinion overturning Justice Sotomayor’s stay on the permanent injunction issued by the New York State trial court. The reasons for this reversal are stated by the court below.

The application is denied because it appears that applicants have at least two further avenues for expedited or interim state court relief. First, applicants may ask the New York courts to expedite consideration of the merits of their appeal. Applicants do not assert, nor does the Appellate Division docket reveal, that they have ever requested such relief. Second, applicants may file with the Appellate Division a corrected motion for permission to appeal that court’s denial of a stay to the New York Court of Appeals, as the Appellate Division clerk’s office directed applicants to do on August 25. Applicants may also ask the Appellate Division to expedite consideration of that motion.

Yeshiva University v. YU Pride Alliance – On Application for Stay

I must admit that my first reaction was disappointment in the court, a feeling with which I am well familiar. Reading the opinion though, that disappointment has lessened. It appears the court did not consider the merits of the application for stay, but rather decided that the case was not “ripe” for the high court. The court noted that there are at least two further actions Yeshiva University can take for relief in the state court system. I generally agree that such cases are better served in state courts than in federal. However, I am still unsettled. Having seen in this case the general distain the New York State courts have shown Yeshiva University’s petitions, I do not expect further appeals to the same courts that have summarily rejected even considering previous petitions to fare any better than their predecessors.

Justice Alito dissented from this decision, and was joined by Justices Thomas, Gorsuch, and Barrett. (Are you interested in the fact that Justice Sotomayor who originally issued the stay, joined with the majority to rescinding it.) In his dissent, Justice Alito stated:

The First Amendment guarantees the right to the free exercise of religion, and if that provision means anything, it prohibits a State from enforcing its own preferred interpretation of Holy Scripture. Yet that is exactly what New York has done in this case, and it is disappointing that a majority of this Court refuses to provide relief.

Yeshiva University v. YU Pride Alliance – On Application for Stay

While I agree that the state is establishing religious standards, I would not put it quite that way. What the State of New York has done through its courts is determine whether or not a religious school is religious enough for the protection of its rights. By ordering the school to recognize a student group whose purpose, as shown in previous court proceedings, is to fundamentally change Yeshiva into a University that complies with the YU Pride Alliance’s interpretation of the Torah. In effect, the State of New York has ordered the hens to bring the fox into the hen-house. Now the Supreme Court has decided force the hens to wait while they petition the wolf for protection.

If anyone at Yeshiva University or involved on in this case should see these words, I can only offer you my support and hope it gives you some comfort, and possibly an argument to be used to support your position. Though I know these words cost me nothing, the fight you are in may cost you everything, I wish to remind you of the words of Hananiah, Mishael, and Azariah, or as they are better known, Shadrach, Meshach, and Abed-Nego.

Shadrach, Meshach, and Abed-Nego answered and said to the king, “O Nebuchadnezzar, we have no need to answer you in this matter.  If that is the case, our God whom we serve is able to deliver us from the burning fiery furnace, and He will deliver us from your hand, O king.  But if not, let it be known to you, O king, that we do not serve your gods, nor will we worship the gold image which you have set up.”

 The New King James Version (Da 3:16–18). (1982). Thomas Nelson.

© 2022 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

September 26, 2022

• How far will pro-abortion politicians go to get others to comply with their agenda?
• Can California require churches to pay for abortion coverage in the health insurance they provide to their employees?
• In the battle between religious freedom and those who wish to promote abortion, who will win?

“By hook or by crook” seems to be the sentiment of some who promote abortion in this country. When they could not get their way by federal law, they engaged the federal judiciary. When the judiciary abandoned them, they went back to using state law to get their way. And when state law didn’t get them all they wanted, they used regulation to “back door” themselves around the law. Such seems to be the case in California.

In 2014, the California Department of Managed Health Care (DMHC) sent letters to several private health insurers, directing that they remove any limitations or exclusions regarding abortion care services from their health care coverage. It seemed that the agency had approved plans with such limitations, which the DMHC’s Director believed to be in error.

Several churches, Foothill Church, Calvary Chapel Chino Hills, and Shepherd of the Hills Church, after receiving the Director’s letters, asked if they could receive exemptions as religious organizations. They requested health care insurance coverage that did not cover all legal abortions. Specifically, they requested that their policies either excluded abortions or only covered abortions where the pregnancy unquestionably threatens the life of the mother. They were told by two insurers that they understood the DMHC letter to preclude even religious exemptions. This was incorrect. The DMHC had previously determined that religious employers could legally restrict abortion coverage consistent with their beliefs. The DMHC would later approve a request to exclude abortion care services for religious employers, except when the abortion was necessary to save the life of the mother. However, these churches were unable to secure coverage that aligned with their beliefs, leading to the case of federal district court Foothill Church, et al., v Mary Watanabe, in her official capacity as Director of the California Department of Managed Healthcare (Foothill Church v. Watanabe).

After nearly three years of litigation, the churches requested a religious exemption from DMHC. California’s Attorney General stated that:

DMHC could only consider granting exemptions to health plans, not employers or other plan customers.

Foothill Church v. Watanabe

As of the issuing of the court order in Foothill Church v. Watanabe, no plan had asked for approval for an exemption for abortion coverage from DMHC.

In 2019, the District Court for the Eastern District of California dismissed the churches’ claims. The Ninth Circuit affirmed the District Court’s dismissal of the Establishment Clause claim, but sent the case back to consider the plaintiff’s free exercise and equal protection claims. The court has reviewed the case, including an additional amicus (third-party) brief from the California Catholic Conference. Let’s look at the two claims separately, starting with the Free Exercise Claim.

Free Exercise Claim

The Free Exercise Clause of the First Amendment, which applies to the states through the Fourteenth Amendment, … provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” U.S. Const. amend. I. However, the right to freely exercise one’s religion “does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’”

Foothill Church v. Watanabe

I know, Congress did not make this law, but the courts have been ignoring that little fact for decades. Even looking at the section of the First Amendment being quoted shows problems with the court’s interpretation. The Constitution says Congress (which the courts have extended to all governments), shall make no law prohibiting the free exercise of religion. Yet here, the court says that is not entirely true. The court claims, based on previous opinions from the Supreme Court, that your right to freely exercise your religion “does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’” Doesn’t that mean that governments can coerce you into violating your religious beliefs as long as the law was neutral and generally applicable? Don’t give up on this judge yet though.

Scrutiny

A law is not generally applicable if it “‘invite[s]’ the government to consider the particular reasons for a person’s conduct by providing ‘a mechanism for individualized exemptions.’” … Nor is it generally applicable if it includes “a formal system of entirely discretionary exceptions . . . .” …

A valid and neutral law of general applicability must be upheld if it is rationally related to a legitimate governmental purpose. … In contrast, laws that are not neutral or are not generally applicable are subject to strict scrutiny. …. Under strict scrutiny, laws “must be justified by a compelling governmental interest and must be narrowly tailored to advance that interest.”

Foothill Church v. Watanabe

If you’ve followed The Constitution Study for any time, you shouldn’t be surprised that the question of “scrutiny” would come up in this case. Like most federal courts, rather than following the supreme law of the land, their standards seem focused on allowing government to meddle where the law does not allow. This is most easily shown by the standard of judicial review, or scrutiny, the court assigns to a case.

In U.S. constitutional law, when a court finds that a law infringes a fundamental constitutional right, it may apply the strict scrutiny standard to nevertheless hold the law or policy constitutionally valid if the government can demonstrate in court that the law or regulation is necessary to achieve a “compelling state interest”.

Strict Scrutiny, The Free Legal Dictionary

Notice, scrutiny, also known as standards of judicial review, is not based in the Constitution of the United States, but in “constitutional law”, which is nothing more than the opinion of judges about the Constitution. Whenever you hear the term “scrutiny” in a legal case, understand that what the court is doing is deciding how hard the government must work in order for the court to allow it to infringe on your rights. In this case, the judge says the claims are subject to strict scrutiny, which is the highest level of effort the government must show to violate the Constitution.

Getting back to the case and the Free Exercise Claim:

The Churches argue “the mere ‘creation of a formal mechanism for granting exceptions renders a policy not generally applicable, regardless of whether any exceptions have been given,’” …, and thus challenge the “State’s decision to enforce the Abortion Coverage Requirement against the Churches’ healthcare plans in the first place.” … The Director argues the Churches are challenging her refusal to “extend an exemption to [p]laintiffs because they are not entities subject to regulation by DMHC under the [Knox Keene Act].” … In other words, the Churches argue the Director would not extend a religious exemption to them, while the Director claims she did not because [she] could not.

Foothill Church v. Watanabe

Seems like a bit of a “He said, She said”, but not really.

Nonetheless, as the court was careful to confirm at the hearing, the Director now concedes that the existence of a “system of individual exemptions” in the Knox Keene Act subjects her decision not to expand the plan exemption framework to the Churches to strict scrutiny. … Accordingly, the court must decide whether this policy “advances ‘interests of the highest order’ and is narrowly tailored to achieve those interests.”

Foothill Church v. Watanabe

Now everyone in the case agrees that the law under which the Director of DMHC acted is subject to “strict scrutiny”. That means the court, and specifically this judge, will determine if the interests advanced by this law are sufficient to deny the people of California their rights protected under the Constitution. Does anyone else see how insidious this is? You have a government actor, the judge, determining whether or not a government’s interest is sufficient to infringe on your rights. This is exactly what the Bill of Rights was created to prevent.

While all parties in this case agree that the state needs to meet the highest burden of proof that they can infringe on your rights, the state still needs to make that case.

Director explains her decision not to make an exception at the Churches’ request by citing her policy not to entertain requests for exceptions unless they come from a plan. She cites three compelling government interests.

Foothill Church v. Watanabe

The Director of DMHC gives three reasons why the state should be allowed to infringe on the rights of these churches and their members. I want to look at them individually.

First, the policy prevents “a flood of exemption requests from over 26 million enrollees” who may object to their plan’s covered care services.

Foothill Church v. Watanabe

Look at the very first concern the Director brings up. She does not seem concerned with the impact on the people, or the infringement on their rights, but on how much work it might make for her department. Think of the arrogance that shows. In her mind, you should be forced to support the murder of unborn children because allowing you an exemption might make too much work for her department.

Second, it prevents “significant third-party harm to enrollees,” which may occur if employers opt out of legally mandated healthcare coverage.

Foothill Church v. Watanabe

I’m not an expert in the California Constitution, but I am pretty sure the mandate the Director is referring to is not legal. Did the citizens of California delegate to their government the authority to regulate healthcare coverage? A quick search of the state’s Constitution showed:

Notwithstanding any other provision of this Constitution or existing law, a person elected to or serving in the Legislature on or after November 1, 1990, shall participate in the Federal Social Security (Retirement, Disability, Health Insurance) Program and the State shall pay only the employer’s share of the contribution necessary to such participation.

Constitution of the State of California, Article IV, Section 4.5

Beyond the members of the legislature, I could find no power delegated by the people to the State of California to place requirements on their healthcare coverage. Furthermore, by mandating that citizens of California purchase healthcare that meets certain requirements, they are depriving them of the liberty to choose a plan that best meets both their needs and beliefs. This violates the Due Process Clause of the constitution of both California and the of the United States.

Persons may not twice be put in jeopardy for the same offense, be compelled in a criminal cause to be a witness against themselves, or be deprived of life, liberty, or property without due process of law.

California Constitution, Article I, Section 15

No person shall … be deprived of life, liberty, or property, without due process of law;

U.S. Constitution, Amendment V

The Director’s last argument is:

Third, it appropriately restricts DMHC’s jurisdiction as authorized by the California State Legislature.

Foothill Church v. Watanabe

The Director seems more worried about the restrictions put in place by the Legislature than the Constitutions she took an oath to support. Thankfully, none of these arguments persuaded the judge.

None of these interests are sufficiently compelling, nor is the department’s rigid approach narrowly tailored.

Foothill Church v. Watanabe

Equal Protection Clause Claim

What about the church’s claim of a violation of the Equal Protection Clause?

The Equal Protection Clause of the Fourteenth Amendment prohibits a state from “deny[ing] to any person within its jurisdiction the equal protection of the law,” U.S. Const. amend. XIV, which essentially “direct[s] that all persons similarly situated should be treated alike,” … A viable Equal Protection claim must also “show that the defendants acted with an intent or purpose to discriminate against the plaintiff based upon membership in a protected class.”

Foothill Church v. Watanabe

The question the judge is trying to answer is, did the Director target these churches because they were religious organizations? In other words, was the Director of DMHC attempting to discriminate against them. Here, the judge was not convinced.

This court previously dismissed the Churches’ Equal Protection Clause claim for two reasons. …. First, the Churches did not allege facts giving rise to a reasonable inference that the Director treated them differently than “similarly situated” persons and businesses. … The court noted “the challenged letters apply to [p]lans, not purchasers, and do not make any classification with respect to purchasers.” … Second, the Churches did not allege facts showing that defendant acted “at least in part because of, not merely in spite of,” plaintiffs’ religious beliefs.

Foothill Church v. Watanabe

Conclusion

The judge in this case split the decision. She granted summary judgment for the churches on their free exercise claim, but found for DMHC on the Equal Protection Claim. The case, however, is not over. While this order is in place, the judge also ordered both parties to provide supplemental briefings.

While this case moves forward, and whether you live in California or not, I want you to consider this: The only reason this judge found for the churches is she did not believe the Director made a sufficiently compelling case to infringe on the rights of these churches. Think about that for just a minute. Yes, this case was about the free exercise of religion, specifically whether or not churches could be forced to provide abortion coverage in their employee’s health insurance, but the underlying jurisprudence came down to scrutiny and how hard government had to work to overrule the Constitution of the United States. Also, it seems that the reason the judge granted judgment to the Director on the Equal Protection Clause claim was because the state did not apply its rule to the churches directly, but got private third-parties to do it for them. Is this what passes for justice in America today? Is this what people call the rule of law? The protection of your rights determined by a single judge? How safe do you feel when the protection of your rights comes down to how a judge feels about a “compelling government interest”? What about the compelling government interest laid down in the Declaration of Independence?

That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, 

Declaration of Independence

Doesn’t the current abuse of judicial review, making the rights of the people subject to government interest, turn the purpose of government upside down?

© 2022 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

September 14, 2022

• What are the rules when a government agent comes to your door?
• When does a government actor need a warrant to enter your home?
• Looking at some previous Supreme Court cases, we’ll see that you may have more legal authority than you realize.

When a government agent stands at your door asking to come in, do you know what your rights are? What would you do if that agent tries to enter your house illegally? If that day comes, the difference between liberty and incarceration may well depend on how well you know your rights and how prepared you are to assert and defend them.

A situation like this was at the core of a 1967 case involving Roland Camara. He was charged with violating the San Francisco Housing Code for refusing to allow city housing inspectors to enter his home without a warrant. The city claimed that the ground-floor quarters violated the building’s occupancy permit. Mr. Camara sued in State Superior Court, claiming the inspection ordinance was unconstitutional because it failed to require a warrant for inspections. The court denied his request for a writ of prohibition, relying on the 1959 case Frank v. Maryland.

Frank v. Maryland

In the case of Frank v. Maryland, a Baltimore City health inspector discovered evidence of a rat infestation at the rear of Frank’s home. When Frank refused access to the health inspector, who did not have a warrant to search, an arrest warrant was sworn out under Article 12 §120 of the Baltimore City Code.

Whenever the Commissioner of Health shall have cause to suspect that a nuisance exists in any house, cellar or enclosure, he may demand entry therein in the day time, and if the owner or occupier shall refuse or delay to open the same and admit a free examination, he shall forfeit and pay for every such refusal the sum of Twenty Dollars.

Frank v. Maryland

Is a city law that allows government agents access to your home valid? After all, wouldn’t such a law violate the Fourth Amendment’s protections against unreasonable searches? The court looked at history and the laws of Maryland and came to this conclusion:

In light of the long history of this kind of inspection and of modern needs, we cannot say that the carefully circumscribed demand which Maryland here makes on appellant’s freedom has deprived him of due process of law.

Frank v. Maryland

What I found interesting in this opinion is the fact that while the court looked at the Fourteenth Amendment, they paid little attention to the Fourth. Notice the court found that an unwarranted search did not violate due process, but said nothing about the search being unreasonable. As I understand the court’s reasoning, since a health inspector is not law enforcement, meaning the inspector is not looking for evidence of a crime, the Fourth Amendment does not apply. This opinion was the basis for the decision of the Superior against Camara, which was upheld by the District Court.

Camara v. Municipal Court

Which brings up back to 1967 and the Camara v, Municipal Court case. This time the court saw things differently.

1. The Fourth Amendment bars prosecution of a person who has refused to permit a warrantless code enforcement inspection of his personal residence.  Frank v. Maryland, supra, pro tantooverruled.

Camara v. Municipal Court

The Fourth Amendment prohibits unreasonable searches and seizures. By extension, you cannot be prosecuted for refusing to allow a warrantless search. Based on this, the court overturned Frank v. Maryland, pro tanto, latin for “only to the extent”. That means only the question of warrantless code enforcement inspections are affected.

(a) The basic purpose of the Fourth Amendment, which is enforceable against the States through the Fourteenth, through its prohibition of “unreasonable” searches and seizures is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.

Camara v. Municipal Court

I know the courts claim the Bill of Rights doesn’t apply to the states except through the Fourteenth Amendment, which I’ve dealt with before. Notice though, that the court says the purpose of the Fourth Amendment is to protect you from arbitrary invasion by government officials. The Fourth Amendment isn’t simply about privacy, but your own security. Is that what the Constitution actually says?

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. 

U.S. Constitution, Amendment IV

It’s quite simple; the Fourth Amendment doesn’t simply protect you from arbitrary searches, but from unreasonable ones. What makes a search reasonable? One with a warrant based in probable cause or an exigent (urgent) circumstance. Or as the court put it, “carefully defined exceptions”.

(b) With certain carefully defined exceptions, an unconsented warrantless search of private property is “unreasonable.”

Camara v. Municipal Court

One of the most common examples of the “carefully defined exceptions” the court is referring to is a situation where human life is in imminent danger, such as a fire or cries for help.

(d) Warrantless administrative searches cannot be justified on the grounds that they make minimal demands on occupants; that warrant in such cases are unfeasible; or that area inspection programs could not function under reasonable search warrant requirements.

Camara v. Municipal Court

It’s not a question of how invasive the search is, how much of an impact it has on the occupants, or that the inspection program couldn’t function if they had to obtain warrants; a law claiming to allow warrantless inspections is not justified under the Fourth Amendment. Of course, that’s not to say that the court doesn’t see a legitimate reason for inspections.

2. Probable cause upon the basis of which warrants are to be issued for area code enforcement inspections is not dependent on the inspector’s belief that a particular dwelling violates the code, but on the reasonableness of the enforcement agency’s appraisal of conditions in the area as a whole. The standards to guide the magistrate in the issuance of such search warrants will necessarily vary with the municipal program being enforced.

Camara v. Municipal Court

If code enforcement can show the reasonableness of their inspections, then the court has said that satisfies probable cause. However, is that a probable cause? Not according the the Free Legal Dictionary:

Apparent facts discovered through logical inquiry that would lead a reasonably intelligent and prudent person to believe thatan accused person has committed a crime, thereby warranting his or her prosecution, or that a Cause of Action hasaccrued, justifying a civil lawsuit.

Probable cause is a level of reasonable belief, based on facts that can be articulated, that is required to sue a person in civil court or to arrest and prosecute a person in criminal court. Before a person can be sued or arrested and prosecuted, the civil plaintiff or police and prosecutor must possess enough facts that would lead a reasonable person to believe that the claim orcharge is true.

Probable Cause – The Free Legal Dictionary

So how can the court claim probable cause for code enforcement if there isn’t a reasonable belief that a civil or criminal violation has occurred? I cannot see one.

3. Search warrants which are required in nonemergency situations should normally be sought only after entry is refused.

Camara v. Municipal Court

This sentence is important. The court isn’t asking code enforcement to get a warrant every time they want to perform an inspection, but only if entry is first refused. That doesn’t mean you shouldn’t ask for a warrant when they show up, just that they likely won’t bother getting one unless you ask for it.

4. In the nonemergency situation here, appellant had a right to insist that the inspectors obtain a search warrant.

Camara v. Municipal Court

The court sums up their position here. Unless there is an emergency, the appellant had a right to insist that inspectors get a search warrant to enter their property, and so do you.

Conclusion

So where does that leave you if and when you find a government agent at your door? First, unless they have a warrant, you are not required to grant them entry. Even if you don’t think you’ve done anything wrong, I’ve had multiple attorneys tell me there is no benefit to allowing law enforcement entry to your home, business, or even your car. The warrant, and the probable cause that is required to get one, is for your protection. Don’t let code enforcement, or any other government agent claim they do not need a warrant to search; that is only true if you grant them access or if there is an articulable emergency. If they threaten to have you arrested for refusing them, remind them of the Fourth Amendment and the fact that the Supreme Court has confirmed that you cannot be prosecuted for refusing to allow an inspection without a warrant. If you can remember the case Camara v. Municipal court, even better.

I’m still concerned about the court’s willingness to defer to so called “compelling government interest” over the language of the Constitution. According to the court in Camara, as long as the government agent can convince a judge that the inspection is “reasonable”, then the warrant can be issued. Which brings us back to the big question: What is a reasonable search or seizure?

Suitable; just; proper; ordinary; fair; usual.

Reasonable – The Free Legal Dictionary

What makes a search just? When does “public good” outweigh your right to private property? And just how does the reasonableness of an inspection equate to probable cause for a warrant? These are all good questions, ones that should be answered before government agents start getting warrants to perform “inspections” on your property.

To sum this all up, this is an excellent examples of the words of John Jay:

Every member of the State ought diligently to read and to study the constitution of his country, and teach the rising generation to be free. By knowing their rights, they will sooner perceive when they are violated, and be the better prepared to defend and assert them.

John Jay, First Chief Justice of the supreme Court

Having read the Constitution, we have a better understanding of our rights, which means we should quickly recognize when they are violated. And having read a bit of court opinion, we are even more prepared to defend and assert them. I hope this helps you feel more prepared and secure in your home. I know it makes me feel more secure in mine.

© 2022 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

September 9, 2022

• What role does the judicial branch have in the federal government?
• Why is the speech that Justice Elena Kagan made at a recent judicial conference so dangerous?
• How can We the People protect ourselves from an out of control federal judicial system?

In Federalist Papers #78, Alexander Hamilton said the the federal judiciary would be the branch of government least dangerous to our rights. Is that how the courts are working in the 21st century? What makes the courts today so injurious to our rights? We get a clue from current Associate Justice Elena Kagan, in a speech she gave at a judicial conference in Montana this July. By comparing her statements to the Constitution and the writings of those who helped frame it, we should not only be able to answer what makes the court dangerous to our rights, but how to protect our rights from them.

Associate Justice Kagan made a statement that many probably took in stride, but for me was jaw dropping.

I’m not talking about any particular decision or even any particular series of decisions, but if over time the court loses all connection with the public and with public sentiment, that’s a dangerous thing for a democracy,

Elena Kagan at a judicial conference in Montana

As I said, I expect most people to read this sentence and not give it a second thought, but when I read this, I see the failure of the republic. Let me explain.

Some of you may be thinking I’m pointing out the repeated lie that America is a democracy. We are not, we are a constitutional republic. While that fact is important to understanding just how jaw dropping Justice Kagan’s statement is, it’s nothing compared to heart of her error. Justice Kagan is concerned that the court may loose its connection with the public and public sentiment, but the court is not elected by the public, and for a very good reason. The court’s job is not to court public opinion, but to decide controversies and criminal prosecutions based on the law.

That branch of government which is concerned in the trial and determination of controversies between parties, and of criminal prosecutions; the system of courts of justice in a government. An independent judiciary is the firmest bulwark of freedom.

JUDICIARY, noun – Webster’s 1828 Dictionary

The fact that a judge can rise to the level of the Supreme Court of the United States and think that the court should be swayed by public opinion should scare the American people. The branch of government that represents the people and the states is Congress, not the courts. How can we say that we have a representative government if unelected judges can supersede the representative branch? We are not a nation of laws when those who are to apply the law think they can make it up for themselves. What Justice Kagan is describing is not a constitutional republic. It’s not even a democracy. It’s an oligarchy! She believes it’s the role of the court to determine public sentiment, then apply that to the cases before them. But who decides what the “public sentiment” is? According to Justice Kagan, it’s the unelected members of the Supreme Court, the rulings of nine high priests in black robes. The very tyranny that we declared independence from?

The Role of The Judiciary

In his essay on the judiciary, which became known as Federalist Papers #78, Alexander Hamilton described the role of the courts within the central government plainly.

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…

Alexander Hamilton, Federalist Papers #78

Hamilton starts out by stating the judicial branch is the least dangerous to our rights, because they have the least capacity to injure us. Why is that? It seems today that the courts are frequently trampling our rights, so how can it be they are least able to injure us? The answer comes from the rest of the paragraph.

… The Executive not only dispenses the honors, but holds the sword of the community. …

Alexander Hamilton, Federalist Papers #78

The President is not only responsible for the nomination of numerous officials, but the commissioning of all officers, both public and military.

… he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

U.S. Constitution, Article II, Section 3

The President helps choose who works in the Executive Branch, meaning all of those bureaucrats that pass rules and regulations that impact our lives every day.

… The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. …

Alexander Hamilton, Federalist Papers #78

Congress controls the purse. They have the power to tax, spend, and even borrow against the credit of the United States. Furthermore, with the power to legislate means the power to make laws. These laws may impact everyone in America. But what about the courts?

… 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. …

Alexander Hamilton, Federalist Papers #78

The courts are supposed to have no influence over either the sword (military and police) or the purse (the taxing and spending of money). Yet today courts claim the authority to tell the other branches how they can use the strength or wealth of society. Think about that last statement. Yes, a judge must sign a warrant, but the courts cannot execute it. A judge may even find a law unconstitutional, but they have no strength to make the other branches comply.

… [The judiciary] 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.

Alexander Hamilton, Federalist Papers #78

Compare that to the view of the court Justice Kagan appears to have. She wants the court to assume the will of the people, then use that to force others to comply. This is not the courts that our Founding Fathers envisioned. This is not a court that offers opinions and not rulings. This is not a court with mere judgment, but with power.

Overall, the way the court retains its legitimacy and fosters public confidence is by acting like a court, is by doing the kinds of things that do not seem to people political or partisan

Elena Kagan at a judicial conference in Montana

While Justice Kagan claims the court retains its legitimacy by acting like a court, her expectations that they enact the sentiment of the people would have them acting as a legislature not a court. Justice Kagan also claims she’s is not referring to any recent decisions of the court, though I would remind the reader this is the justice who dissented in that same court’s decision that would restore the abortion question to the people and their representatives. A justice who complained that the majority of the court read the actual language of the Constitution, as understood by the people who wrote and ratified the document. Does that sound like a court acting like a court? And lest we forget, this is the same justice who put her feelings about gun violence above the law.

The Solution

What can be done about a judicial branch occupied by would-be legislators in black robes? Let’s return to the words of Alexander Hamilton for some advice.

According to the plan of the convention, all judges who may be appointed by the United States are to hold their offices DURING GOOD BEHAVIOR; … The standard of good behavior for the continuance in office of the judicial magistracy, is certainly one of the most valuable of the modern improvements in the practice of government.

Alexander Hamilton, Federalist Papers #78

Contrary to popular belief, federal judges do not have lifetime appointments, they serve during their good behavior.

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

U.S. Constitution, Article III, Section 1

But who decides what’s good behavior for a judge? The first step is the House of Representatives.

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

U.S. Constitution, Article I, Section 2

That means the power of impeachment rests in the hands of the representatives of the people, your employees in the federal government. This is followed by the Senate.

The Senate shall have the sole Power to try all Impeachments.

U.S. Constitution, Article I, Section 3

While the role of the Senate is to represent the states, since the ratification of the Seventeenth Amendment the people choose these representatives as well. That means the ultimate decider of what will be considered good behavior for federal judges is We the People.

Conclusion

During this talk, Justice Kagan made an important point: She said there were times when justices…

really just attempted to basically enact their own policy or political or social preferences

Elena Kagan at a judicial conference in Montana

I would suggest the justice heed her own counsel. Her position in recent cases before the court seem to be based more on her political or social preferences. They are supported not by the Constitution or laws of the United States, but by the previous opinions of judges, many of whom have been just as much political actors as Justice Kagan has been.

I hope by now you have seen the jaw-dropping arrogance of the little talked about words of Associate Justice Kagan. While experience tells me she is not likely to pay any price for her bad behavior, much less the oath she took to support the Constitution of the United States, I can only hope that the American people will take this lesson to heart. If we are to have a judiciary that is least able to injure our rights, we must make sure that those who sit on these courts be on their best behavior. And when they claim the power of the sword or the purse, that their bad behavior be appropriately punished.

© 2022 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

August 29, 2022

• Do you understand Dual Sovereignty and the threat it poses to your rights?
• Did you know that the Eighteenth Amendment and prohibition was the basis of this idea of dual sovereignty?
• How has the court taken a limited concurrent jurisdiction clause and turned it into federal oversight of just about every law in the nation?

Most of us are aware of Double Jeopardy, the right to not be tried for the same crime twice, but the courts have adopted a “dual sovereign” doctrine to get around this pesky little problem. Two Supreme Court cases out of Oklahoma show how good intentions often lead to problems, and how the court makes up the rules as they go along. We’ll also look at how this concept of dual sovereignty can be used to violate both your rights and the Constitution of the United States.

Dual Sovereignty

To understand the dual sovereignty doctrine, we need to understand the Double Jeopardy Clause of the Fifth Amendment.

nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; 

U.S. Constitution, Fifth Amendment

The idea of the Double Jeopardy Clause is simple: Government only gets one chance to convict you of a crime. In the United States we have multiple governments. We have the federal government, one for each of the fifty states, and I don’t know how many county and city governments. Does the Fifth Amendment apply to all of these governments? Yes. There is nothing in the language of the Fifth Amendment to limit it to just one government. So what happens when a state tries someone, yet doesn’t get a conviction? Is it possible to get another chance once “jeopardy has attached”, as the legal-eagles would say? Enter the case of United States v. Lanza and the dual sovereignty doctrine.

It follows that an act denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of both and may be punished by each. … Here the same act was an offense against the state of Washington, because a violation of its law, and also an offense against the United States under the National Prohibition Act. The defendants thus committed two different offenses by the same act, and a conviction by a court of Washington of the offense against that state is not a conviction of the different offense against the United States, and so is not double jeopardy.

United States v. Lanza

This case was somewhat unique. Lanza was charged in 1920 with manufacturing intoxicating liquor, which had been made illegal in 1919 with the ratification of the Eighteenth Amendment:

After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.

U.S. Constitution, Amendment XVIII, Section 1

What makes this unique comes from Section 2.

The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.

U.S. Constitution, Amendment XVIII, Section 2

The language of the Eighteenth Amendment specifically provides for concurrent power held by both the United States. and the Several States. It was the only instance where power was shared between two governments. In no other place under the Constitution of the United States is power shared.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

U.S. Constitution, Amendment X

So when the Supreme Court found that Lanza had committed offenses against both the State of Washington and the United States, it would seem valid because, under the Eighteenth Amendment, both governments had concurrent jurisdiction. However, as courts often do, they have taken one phrase from this opinion and used it to come to decisions completely divorced from the original opinion. In the Lanza case opinion we find:

We have here two sovereignties, deribing [sp?] power from different sources, capable of dealing with the same subject matter within the same territory. 

United States v. Lanza

The Lanza court made one mistake in this language. While they were dealing with two sovereignties, they both derived their power in this case from the same source: The Eighteenth Amendment. Since this is the only place in the Constitution that gives concurrent jurisdiction to both the States and the United States, and since the Eighteenth Amendment was repealed in 1933 by the Twenty-First Amendment, this unique situation no longer exists.

Oklahoma v. Castro-Huerta

Which brings us to the case Oklahoma v. Castro-Huerta.

Held: The Federal Government and the State have concurrent jurisdiction to prosecute crimes committed by non-Indians against Indians in Indian country.

Oklahoma v. Castro-Huerta

Victor Manuel Castro-Huerta was charged and convicted by the State of Oklahoma for child neglect. What brought this case to the Supreme Court was the question of jurisdiction. While Mr. Castro-Huerta is not an Indian, his daughter is. Also, the crime took place in the City of Tulsa, which, according to the Supreme Court in the case McGirt v. Oklahoma, is mostly part of the Creek Reservation, making it “Indian country” and therefore under the jurisdiction of the United States. This is where the problems with the dual sovereignty doctrine shows up. Was Mr. Castro-Huerta in “Indian country” and subject to federal jurisdiction, or was he in the State of Oklahoma and subject to their jurisdiction? According to the Supreme Court, both the State and Federal government have concurrent jurisdiction. How can that be?

Does it matter that the defendant is not an Indian while the victim is? No. If you, as an American citizen, commit a crime in Canada or Mexico, the United States does not have jurisdiction. If the crime occurred in both Indian and non-Indian jurisdictions, then maybe both governments would have a case, but that is not concurrent jurisdiction, it is a crime committed in multiple jurisdictions. For example, if someone performs a mass shooting crossing state lines, the states can charge the accused with the shootings within their states. However, because the crime crossed state lines, does that make it a federal crime? The federal courts say yes, but the Constitution does not.

This case is a little different. Crimes like kidnapping and murder are not inherently federal crimes. Congress only has the power:

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;—And

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

U.S. Constitution, Article 1, Section 8, Clauses 16 & 17

This means that Congress can make laws for “Indian country”, but not for the rest of the city of Tulsa. Remember, under the Sixth Amendment we find:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, 

U.S. Constitution, Amendment VI

That means that Mr. Castro-Huerta has the right to be tried in both the state and district where the crime was committed. This should determine which government has jurisdiction, but the court had other ideas.

Conclusion

I have not taken the time to discuss the question of whether or not the United States has the legal authority to own “Indian country”. That will have to be a discussion for another day, but by holding that the State of Oklahoma and the United States have concurrent jurisdictions, the court has violated both the Constitution of the United States and the rights of Mr. Castro-Huerta. Since child neglect is not a power delegated to the United States, the only place they have jurisdiction is in Indian country. Since, as far as I can tell from the Court’s opinion, the crime occurred in “Indian country”, then Mr. Castro-Huerta’s appeal should have been upheld, since the crime took place on federal land. By allowing the State of Oklahoma to try him for a crime that took place on federal land, the court has exposed Mr. Castro-Huerta to Double-Jeopardy. If the court is allowed to make up the rules to satisfy the justice’s own sense of what is right, then the rule of law has failed. Of course, this would not be such an issue if Congress had not taken over vast tracks of public lands as the price of admission into the union.

The protection against Double Jeopardy is very important to due process. While so far the federal government hasn’t attempted to prosecute Mr. Castro-Huerta, think of how many cases where the defendant was found not-guilty in state court only to be charged for the same crime in federal court. That is a violation of Double Jeopardy, but the Supreme Court has given its stamp of approval under the Dual Sovereign doctrine. While I have shown that the Constitution does recognize multiple sovereigns, it does not give them concurrent jurisdictions since the repeal of the Eighteenth Amendment. So when Congress empowers federal law enforcement to enforce laws outside of federal land, it’s just one more example of laws of the United States that are not made pursuant to the Constitution and are therefore void (Marbury v. Madison). Keep that in mind the next time you hear of someone being charged in both state and federal court.

© 2022 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

August 22, 2022

• Since attempts to pack the Supreme Court has failed, is there another way for the politicians to take control of the court?
• What are the constitutional issues with attempting to place term limits on the court via legislation rather than amending the Constitution?
• There is more to this legislation that just limiting the terms of Supreme Court Justices.

After years of trying to pack the Supreme Court, there’s been a new attempt to take control of the third branch of government. Rather than placing extra justices on the court (all of which would be appointed by the current President), they want to set term limits for, and a complicated method of, appointing justices. Is any of this constitutional? How will Congress and the courts react to this abuse of power? Will the American people meekly sit back and watch while the Constitution is once again set aside by Congress for political ends? What would happen to America if this legislation is allowed to see the light of day?

Term limits in general are a controversial subject. Many believe that allowing people to remain in an office for extended periods of time is detrimental to the republic, while others value the experience that comes with time in service. Still, when it comes to offices created by the Constitution of the United States, is legislation all that is required to establish term limits? A brief look at our history should provide the answer.

Presidential Term Limits

After serving two terms, Franklin D. Roosevelt told the Democratic convention that he would run only if drafted. Roosevelt won nomination on the first ballot then won a decisive victory over Wendell Willkie, becoming the only President to serve more than eight years. Term limits became an issue during Roosevelt’s 1944 campaign against Thomas Dewey. As Dewey put it:

“ four terms, or sixteen years is the most dangerous threat to our freedom ever proposed.”

FDR, Dewey, and the Election of 1944. – Jordan, David M. (2011)

Though he won the 1944 election, President Roosevelt died just 82 days after his fourth inauguration on April 12, 1945. However, after the mid-term elections in 1946, Republicans took control of both the House of Representatives and the Senate by campaigning on the issue of Presidential term limits. To fulfill their election promise, Congress did not simply offer legislation, but a resolution to amend the Constitution itself. The language that was sent to the states became the Twenty-Second Amendment.

No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once.

U.S. Constitution, Amendment XXII

Why was it necessary for Congress to propose a constitutional amendment to impose term limits on the President? Because the language of the Constitution does not place a limit on the number of terms a President serves.

The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows

U.S. Constitution, Article II, Section 1, Clause 1

Since only laws of the United States made pursuant to the Constitution can be valid, the only way to impose term limits on the President was by an amendment.

Supreme Court Term Limits

The first problem with H.R. 5140 is the fact that it violates the supreme law of the land.

This Act may be cited as the “Supreme Court Term Limits and Regular Appointments Act of 2021”.

H.R. 5140, Section 1

Congress does not have the legal authority to set term limits on the Supreme Court of the United States. Congress can determine the number of justices, primarily by the advice and consent of the Senate, but there is nothing in the Constitution that allows Congress to set term limits or to force a justice to step down except via the impeachment process that requires the bad actions of the justice.

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

U.S. Constitution, Article III, Section 1

This legislation starts by establishing a schedule for appointing justices to the Supreme Court.

“The President shall, during the first and third years after a year in which there is a Presidential election, nominate, and by and with the advice and consent of the Senate, appoint one Justice of the Supreme Court.

H.R. 5140, Section 2

Right off the bat, we run into several problems. First, Congress does not have the legal authority to force the President to nominate federal justices. While the President is required to execute the laws of the United States, that does not include when they infringe on the powers delegated to him by the Constitution.

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court,

U.S. Constitution, Article II, Section 2, Clause 2

The second problem this section of the legislation creates is too many justices. Congress has placed a limit on the number of Justices at nine.

The Supreme Court of the United States shall consist of a Chief Justice of the United States and eight associate justices, any six of whom shall constitute a quorum.

28 U.S.C. §1

So how would Congress deal with this particular problem? By effectively replacing all of the justices.

“(a) In General.—Except as provided in subsection (c), the panel of justices exercising Judicial power in Cases and Controversies shall comprise the nine most junior Justices.

“(b) Deemed Retired.—After a Justice has served 18 years, that Justice shall be deemed a Justice retired from regular active service under section 371(b).

“(c) Exception.—No Justice appointed before the date of enactment of this Act shall be counted toward the panel of nine Justices described in subsection (a), nor shall they be required to retire from regular active service under subsection (b).

H.R. 5140, Section 2

So Congress plans to simply “put out to pasture” the most senior justices as they add new ones? Did you notice this panel of nine justices are not exercising the powers of the Supreme Court, but judicial powers in general? Furthermore, subsection (c) says that the current justices are not counted toward the panel of nine justices who are to exercise the judicial power. Does that mean they are immediately removed from the court, even if they’ve served less that 18 years? It does say they will not be required to retire, but they cannot serve on the panel, so what would they be doing? Also, since the currently sitting justices could not be on this panel, does that mean we effectively start with one justice on the Supreme Court, and wait for years for more to be appointed?

“If the Senate does not exercise its advice and consent authority with respect to a President’s nominee to the Supreme Court within 120 days after the nomination, the Senate shall be deemed to have waived its advice and consent authority with respect to such nominee, and the nominee shall be seated as a Justice of the SupremeCourt.”.

H.R. 5140, Section 2

H.R. 5140 wants to put a 120 day time limit on the Senate’s advice and consent role, but what defines the Senate exercising its authority to advice and consent? Would the Senate Majority Leader be advising the Senate to not hear nominations by exercising its advice authority? Would there have to be a vote? Isn’t this infringing on the authority of the Senate to set their own rules for their own proceedings?

Each House may determine the Rules of its Proceedings, …

U.S. Constitution, Article I, Section 5, Clause 2

As another insult to the Constitution, this legislation would create a new type of justice called a “Senior Justice”. Just what would the “Senior Justice” do?

“(a) Any Chief Justice of the United States or Associate Justice of the Supreme Court who has retired from regular active service under section 371(b) of this title shall be known and designated as a Senior Justice and may continue to perform such judicial duties as such Justice is willing and able to undertake, when designated and assigned by the Chief Justice of the United States.”;

H.R. 5140, Section 3

I’m not sure quite what to call this? Semi-retirement? This does, however, give us a clue as to what this legislation is all abut, and what the ultimate goals of the sponsors are.

Conclusion

While the official title of this legislation is “Supreme Court Term Limits and Regular Appointments Act of 2021”, it should be called “The Reinvent the Federal Judiciary Act”. Not only is Congress claiming the authority to change the duration of a justice’s service, but also how and when they are appointed, by creating a “post court” position they may fill.

Whether you think there should be term limits for justices on the Supreme Court, or federal judges in general, it cannot legally be done by simple legislation. What these Congressmen want to do requires an amendment to the Constitution. If there’s one thing that has become obvious, it’s that Congress has become disconnected from the Constitution, their oaths of office, and any semblance of the rule of law.

If you support the Constitution, and want representatives who do the same, then you must contact your Representative and Senators to either demand that this legislation be turned into a proposal for a Constitutional amendment or simply discarded on the ash heap of history. If Congress can reshape the judiciary by simply passing legislation, why not the entire government? Why bother with a Constitutional Convention? Just let Congress recreate the United States in its own image. Wouldn’t that be awful?

© 2022 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

August 15, 2022

• When parents accept government money to pay for their children’s schooling, it always comes with strings.
• What are the limits can a state place on where their tuition assistance go?
• Can a state single out religious or sectarian organizations to be denied the ability to participate in their programs?

When parents saw what their children were being taught during the COVID-19 school shutdowns, school choice has been a topic of increased interest. If government schools were going to substitute political theory for reading, writing, and arithmetic, parents wanted another choice. Most people cannot afford private schools, and others cannot dedicate the time to home schooling. Since the people pay for these government schools through their taxes, shouldn’t they be able to use that money for better options?

As the most rural state in the union, Maine is in a unique situation.

Maine’s Constitution provides that the State’s legislature shall “require . . . the several towns to make suitable provision, at their own expense, for the support and maintenance of public schools.”… In accordance with that command, the legislature has required that every school-age child in Maine “shall be provided an opportunity to receive the benefits of a free public education,”

Carson et al. v. Makin

While the Constitution of the State of Maine requires towns to provide for public schools, some districts do not have a secondary school. Maine enacted a program to allow parents in these districts to designate another secondary school for their children to attend, either in another district or a private school, and the state would send money to the school to help defray costs. Of course, with money comes strings, which two families got caught in.

David and Amy Carson sought tuition assistance to send their daughter to Bangor Christian Academy, while Troy and Angela Nelson sent their son to Temple Academy, but could not afford to also send their daughter. There was one problem for these two families though; since 1981, Maine has limited tuition assistance to “nonsectarian” schools. While both schools met the state’s requirement of being accredited by the New England Association of Schools and Colleges (NEASC), the schools did not qualify as “nonsectarian”.

Petitioners sued the commissioner of the Maine Department of Education, alleging that the “nonsectarian” requirement violated the Free Exercise Clause and the Establishment Clause of the First Amendment, as well as the Equal Protection Clause of the Fourteenth Amendment. The District Court rejected petitioners’ constitutional claims and granted judgment to the commissioner. The First Circuit affirmed.

Carson et al. v. Makin

Let’s start with the complaint. As I’ve said more than a few times before, this cannot be a First Amendment issue because the law in question did not come from Congress.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;

U.S. Constitution, Amendment I

This detail didn’t seem to influence the Supreme Court’s opinion:

The Free Exercise Clause of the First Amendment protects against “indirect coercion or penalties on the free exercise of religion, not just outright prohibitions.”

Carson et al. v. Makin

It’s worth noting that the court did not come to this opinion based on the language of the Constitution. Rather, they once again placed the opinions of previous courts above the supreme law of the land.

While this requirement cannot violate the First Amendment to the United States, it does violate the Constitution of the State of Maine.

All individuals have a natural and unalienable right to worship Almighty God according to the dictates of their own consciences, and no person shall be hurt, molested or restrained in that person’s liberty or estate for worshipping God in the manner and season most agreeable to the dictates of that person’s own conscience, nor for that person’s religious professions or sentiments, provided that that person does not disturb the public peace, nor obstruct others in their religious worship; 

Maine Constitution, Article I, Section 3

As the suit. alleges, Maine’s policy also violates the Fourteenth Amendment’s Equal Protection Clause.

nor shall any State … deny to any person within its jurisdiction the equal protection of the laws.

U.S. Constitution, Amendment XIV

Does Maine’s “nonsectarian” requirement violate the rights of its citizens to equal protection of the law?

The First Circuit held that the “nonsectarian” requirement was constitutional because the benefit was properly viewed not as tuition payments to be used at approved private schools but instead as funding for the “rough equivalent of the public school education that Maine may permissibly require to be secular.”

Carson et al. v. Makin

The First Circuit Court of Appeals thought the requirement was constitutional because, in their minds, the money wasn’t a tuition payment but school funding. Meanwhile I’m not quite sure what that has to do with the constitutionality of the requirement. Can the State of Maine create public schools that are required to be secular? Yes.

But the statute does not say anything like that. The benefit provided by statute is tuition at a public or private school, selected by the parent, with no suggestion that the “private school” must somehow provide a “public” education.

Carson et al. v. Makin

According to the First Circuit it’s OK to discriminate if the funding is for the equivalent of a public education, but not if it’s for tuition? Thankfully, the majority of the court did not agree.

Maine’s “nonsectarian” requirement for its otherwise generally available tuition assistance payments violates the Free Exercise Clause of the First Amendment. Regardless of how the benefit and restriction are described, the program operates to identify and exclude otherwise eligible schools on the basis of their religious exercise. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

Carson et al. v. Makin

Dissent

Justice Breyer dissented with the opinion, and was joined by Justices Kagan and Sotomayor.

The First Amendment begins by forbidding the government from “mak[ing] [any] law respecting an establishment of religion.” It next forbids them to make any law “prohibiting the free exercise thereof.”

Carson et al. v. Makin – Dissent

As I’ve already shown, the First Amendment forbids Congress, not “the government”; that came from the Supreme Court. Which makes the next quote even more disturbing.

The Court today pays almost no attention to the words in the first Clause while giving almost exclusive attention to the words in the second.

Carson et al. v. Makin – Dissent

Actually, the Supreme Court as a whole paid no attention to the words of the First Amendment, period. Like any good lawyer, Justice Breyer is good at playing with words to support his opinion.

The majority also fails to recognize the “ ‘play in the joints’ ” between the two Clauses. … That “play” gives States some degree of legislative leeway. It sometimes allows a State to further antiestablishment interests by withholding aid from religious institutions without violating the Constitution’s protections for the free exercise of religion.

Carson et al. v. Makin – Dissent

The Constitution doesn’t have any ‘joints’ to play with. The First Amendment strictly prohibits Congress (not the states), from abridging the people’s right to exercise their religion. What Justice Breyer refers to as “antiestablishment interests” seems more like anti-religious interests.

In my view, Maine’s nonsectarian requirement falls squarely within the scope of that constitutional leeway. I respectfully dissent.

Carson et al. v. Makin – Dissent

It should be no surprise that a justice of the Supreme Court placed their own preferences above the actual language of the law, and that is not the only place Justice Breyer got it wrong.

We have never previously held what the Court holds today, namely, that a State must (not may) use state funds to pay for religious education as part of a tuition program designed to ensure the provision of free statewide public school education.

Carson et al. v. Makin – Dissent

As the majority pointed out, nothing in their opinion claims the state must fund religious education.

The dissents are wrong to say that under our decision today Maine “must” fund religious education. … Maine chose to allow some parents to direct state tuition payments to private schools; that decision was not “forced upon” it. … The State retains a number of options: it could expand the reach of its public school system, increase the availability of transportation, provide some combination of tutoring, remote learning, and partial attendance, or even operate boarding schools of its own.

Carson et al. v. Makin

Conclusion

As I’ve already pointed out, the majority of the court sided with the parents. Yes, they claimed that Maine’s “nonsectarian” requirement violated the First Amendment.

In particular, we have repeatedly held that a State violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits.

Carson et al. v. Makin

However, since the First Amendment specifically prohibits Congress from passing laws abridging the free exercise of religion, it appears once again the court got to the right answer, but for the wrong reasons. What Maine’s “nonsectarian” clause did by singling out religious schools for discrimination, was violate the Equal Protection Clause of the Fourteenth Amendment.

So where does that leave this case?

Maine may provide a strictly secular education in its public schools. But BCS and Temple Academy—like numerous other recipients of Maine tuition assistance payments—are not public schools. In order to provide an education to children who live in certain parts of its far-flung State, Maine has decided not to operate schools of its own, but instead to offer tuition assistance that parents may direct to the public or private schools of their choice. Maine’s administration of that benefit is subject to the free exercise principles governing any such public benefit program—including the prohibition on denying the benefit based on a recipient’s religious exercise.

Carson et al. v. Makin

While we should take the win, I think constitutionally minded Americans should also learn from the court’s mistake. We may be happy with the outcome, but all it would take for the next group of parents to be discriminated against is a court with a couple of different justices on it.

The Establishment Clause does not require government to be hostile to religious observances or organizations. While there are plenty of government actors, including judges, who may disagree, the Establishment Clause does not require a secular government, it only prohibits a national church. Those who have stoked the fears of America becoming a theocracy have used the misinterpretation of Jefferson’s “separation of church and state” to effectively do what they claim to be avoiding: Establishing a national religion of secularism. This case is one small step for religious freedom in America. Hopefully, it will lead to a giant leap towards liberty for all.

© 2022 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

August 1, 2022

• A case of a praying high-school coach has put another nail in the coffin of a terrible precedent known as the “Lemon Test”.
• What does it take for a government actor to establish a religion?
• What are the limits of government employers controlling the speech and actions of their employees?

A high-school coach was denied his freedom of religion and speech based on a nothing more than 50 year old lemon of a court opinion. In the case Lemon v. Kurtzman, the Supreme Court claimed that your right to freely speak and exercise your religion must yield to the government’s “interest” in avoiding a violation of the establishment clause. But the “Lemon Test” puts the government’s interest above your rights protected by the Constitution. In this years case, Kennedy v. Bremerton School District, the court took this Lemon and turned it into lemonade.

Joseph Kennedy lost his job as a high school football coach because he repeatedly knelt at midfield after games to offer a quiet prayer. He then sued in federal district court claiming the Bremerton School District violated his free speech and free exercise rights protected under the First Amendment. He also asked the court to issue a preliminary injunction to get his job back. Both the District and Circuit courts denied the motion. The District Court found that the sole reason for the school district’s decision was the risk of constitutional liability under the Establishment Clause. Both the District and Circuit Courts found in favor of the school district. Several of those who dissented at the Circuit Court level agreed that the court had applied a flawed understanding of the Establishment Clause based on the 1971 Supreme Court cases Lemon v. Kurtzman.

The Lemon Test

The District, like the Ninth Circuit below, insists Mr. Kennedy’s rights to religious exercise and free speech must yield to the District’s interest in avoiding an Establishment Clause violation under Lemon and its progeny. The Lemon approach called for an examination of a law’s purposes, effects, and potential for entanglement with religion. … In time, that approach also came to involve estimations about whether a “reasonable observer” would consider the government’s challenged action an “endorsement” of religion. … But—given the apparent “shortcomings” associated with Lemon’s “ambitiou[s],” abstract, and ahistorical approach to the Establishment Clause—this Court long ago abandoned Lemon and its endorsement test offshoot. …

Kennedy V. Bremerton School District

How do you determine when a government entity is establishing a religion? Noah Webster defined “establish” as:

To enact or decree by authority and for permanence; to ordain; to appoint; as, to establish laws, regulations, institutions, rules, ordinances, etc.

Establish – Webster’s 1828 Dictionary

According to the Supreme Court in 1971, the only way to determine if an act establishes a religion was to determine if the purpose or effect of the law had potential entanglement with religion. Over time this morphed into a question of what a “reasonable observer” would consider the government action was an endorsement of religion. But what defines a reasonable observer? What one reasonable person thinks is an endorsement of religion another thinks is the free exercise of such. This effectively turned into a “heckler’s veto”, where all it would take is one reasonable person making the case that the law or action entangled government with some religious action, and a person’s rights, protected under the First Amendment, became meaningless.

In place of Lemon and the endorsement test, this Court has instructed that the Establishment Clause must be interpreted by “‘reference to historical practices and understandings.’ ” … A natural reading of the First Amendment suggests that the Clauses have “complementary” purposes, not warring ones where one Clause is always sure to prevail over the others. … An analysis focused on original meaning and history, this Court has stressed, has long represented the rule rather than some “‘exception’” within the “Court’s Establishment Clause jurisprudence.” … The District and the Ninth Circuit erred by failing to heed this guidance.

Kennedy V. Bremerton School District

The Supreme Court had previously instructed the lower courts to drop the Lemon test and instead to look at historical practices and understandings of the question of establishment. The court also noted that the establishment and exercise clauses were not meant to be either/or, where if one clause won then the other must lose. The Supreme Court found that the District and Circuit Courts were wrong by applying the Lemon test to this case.

Coercion

The District next attempts to justify its suppression of Mr. Kennedy’s religious activity by arguing that doing otherwise would coerce students to pray. The Ninth Circuit did not adopt this theory in proceedings below and evidence of coercion in this record is absent. The District suggests that any visible religious conduct by a teacher or coach should be deemed—without more and as a matter of law—im- permissibly coercive on students. A rule that the only acceptable government role models for students are those who eschew any visible religious expression would undermine a long constitutional tradition in which learning how to tolerate diverse expressive activities has always been “part of learning how to live in a pluralistic society.” … No historically sound understanding of the Establishment Clause begins to “mak[e] it necessary for government to be hostile to religion” in this way.

Kennedy V. Bremerton School District

The District Court suggested that merely seeing religious acts by a coach or teacher would coerce students to join in. While the court found nothing that required government to be hostile to religion, isn’t the hostility itself an attempt to enact or decree that only a secular view of religion was allowed?

There is no conflict between the constitutional commands of the First Amendment in this case. There is only the “mere shadow” of a conflict, a false choice premised on a misconstruction of the Establishment Clause. … A government entity’s concerns about phantom constitutional violations do not justify actual violations of an individual’s First Amendment rights.

Kennedy V. Bremerton School District

In other words, a government actor cannot use its concerns about a violation of the Constitution to actually violate someone’s rights protected by that Constitution.

Proof of Infringement

The next question is, did Mr. Kennedy demonstrate that his rights were infringed?

A plaintiff must demonstrate an infringement of his rights under the Free Exercise and Free Speech Clauses. If the plaintiff carries his or her burden, the defendant must show that its actions were nonetheless justified and appropriately tailored. …

Mr. Kennedy discharged his burden under the Free Exercise Clause. The Court’s precedents permit a plaintiff to demonstrate a free exercise violation multiple ways, including by showing that a government entity has burdened his sincere religious practice pursuant to a policy that is not “neutral” or “generally applicable.” … Failing either the neutrality or general applicability test is sufficient to trigger strict scrutiny, under which the government must demonstrate its course was justified by a compelling state interest and was narrowly tailored in pursuit of that interest.

Kennedy V. Bremerton School District

All Mr. Kennedy had to show was that the school district burdened his sincere religious practice in a way that was not neutral or generally applicable. Then the school district would have to show their actions were justified by a compelling government interest (a standard not supported by the Constitution of the United States). The school district’s policy was obviously neither neutral nor generally applicable, since it was applied solely to Mr. Kennedy’s praying.

Here, no one questions that Mr. Kennedy seeks to engage in a sincerely motivated religious exercise involving giving “thanks through prayer” briefly “on the playing field” at the conclusion of each game he coaches. … The contested exercise here does not involve leading prayers with the team; the District disciplined Mr. Kennedy only for his decision to persist in praying quietly without his students after three games in October 2015. In forbidding Mr. Kennedy’s brief prayer, the District’s challenged policies were neither neutral nor generally applicable. By its own admission, the District sought to restrict Mr. Kennedy’s actions at least in part because of their religious character. Prohibiting a religious practice was thus the District’s unquestioned “object.” The District explained that it could not allow an on-duty employee to engage in religious conduct even though it allowed other on-duty employees to engage in personal secular conduct. The District’s performance evaluation after the 2015 football season also advised against rehiring Mr. Kennedy on the ground that he failed to supervise student-athletes after games, but any sort of postgame supervisory requirement was not applied in an evenhanded way. … The District thus conceded that its policies were neither neutral nor generally applicable.

Kennedy V. Bremerton School District

When Mr. Kennedy offered his prayers, was he acting as a private citizen or a government official?

When Mr. Kennedy uttered the three prayers that resulted in his suspension, he was not engaged in speech “ordinarily within the scope” of his duties as a coach. … He did not speak pursuant to government policy and was not seeking to convey a government-created message. He was not instructing players, discussing strategy, encouraging better on-field performance, or engaged in any other speech the District paid him to produce as a coach. Simply put: Mr. Kennedy’s prayers did not “ow[e their] existence” to Mr. Kennedy’s responsibilities as a public employee. … The timing and circumstances of Mr. Kennedy’s prayers—during the postgame period when coaches were free to attend briefly to personal matters and students were engaged in other activities—confirms that Mr. Kennedy did not offer his prayers while acting within the scope of his duties as a coach. It is not dispositive that Coach Kennedy served as a role model and remained on duty after games. To hold otherwise is to posit an “excessively broad job descriptio[n]” by treating everything teachers and coaches say in the work-place as government speech subject to government control. … That Mr. Kennedy used available time to pray does not transform his speech into government speech. Acknowledging that Mr. Kennedy’s prayers represented his own private speech means he has carried his threshold burden.

Kennedy V. Bremerton School District

For these reasons, the court came to the following conclusion.

Held: The Free Exercise and Free Speech Clauses of the First Amendment protect an individual engaging in a personal religious observance from government reprisal; the Constitution neither mandates nor permits the government to suppress such religious expression.

Kennedy V. Bremerton School District

Conclusion

What can we conclude from this case? First, while this case was brought under the First Amendment, this cannot be a First Amendment case.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech,

U.S. Constitution, Amendment I

I found nothing in the opinion that claimed the Bremerton School District was acting under the authority of Congress. This was a violation of Mr. Kennedy’s Freedoms of Speech and and Religion under the Article I of the Constitution of the State of Washington. The only violation of the United States Constitution is the Equal Protection Clause of the Fourteenth Amendment.

No State shall make … deny to any person within its jurisdiction the equal protection of the laws.

U.S. Constitution, Amendment XIV

Second, while the court has set aside the “Lemon Test”, they still adhere to the standards of scrutiny. The Constitution, as the supreme law of the land, does not say your rights exist unless the government has a compelling interest. It says your right shall not be abridged or infringed, making the scrutiny standard unconstitutional and illegal. While the school districts case fell apart before the need for scrutiny came about, the court still brought it up as part of their Establishment Clause jurisprudence.

As a free country, we must respect the religious expressions of others, especially those we disagree with.

Respect for religious expressions is indispensable to life in a free and diverse Republic. Here, a government entity sought to punish an individual for engaging in a personal religious observance, based on a mistaken view that it has a duty to suppress religious observances even as it allows comparable secular speech. The Constitution neither mandates nor tolerates that kind of discrimination. Mr. Kennedy is entitled to summary judgment on his religious exercise and free speech claims.

Kennedy V. Bremerton School District

Since 2014 the court replaced the flawed “Lemon Test” with a more constitutionally sound methodology. While, the District and Circuit Courts didn’t recognize this fact, the Supreme Court did. Will this new opinion help the lower courts recognize that a person’s right to freedom of religion isn’t subject to the government’s fear that someone may see it and think it’s an endorsement? Only time will tell. Is this a case of turning the Lemon Test into lemonade? While it may not be my favorite drink, it certainly improves on what we had before.

© 2022 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

July 25, 2022

• Does the Clean Air Act empower the EPA to regulate the national power grid?
• What standard should a court use when interpreting the laws of the United States?
• Will West Virginia v. EPA change the powers of executive agencies?

Did you ever imagine that a question about air pollution could end up changing the way governments work? That may be exactly what happened with the Supreme Court’s opinion in West Virginia v. Environmental Protection Agency. What started as a question of whether or not the EPA’s plan to reduce carbon-dioxide emissions from the electric grid was constitutional turned into a statement about the limits of discretion granted to executive agencies.

The question before the court in West Virginia v. EPA seemed quite simple:

Since passage of the [Clean Air] Act 50 years ago, EPA has exercised this authority by setting performance standards based on measures that would reduce pollution by causing plants to operate more cleanly. In 2015, however, EPA issued a new rule concluding that the “best system of emission reduction” for existing coal-fired power plants included a requirement that such facilities reduce their own production of electricity, or subsidize increased generation by natural gas, wind, or solar sources.

The question before us is whether this broader conception of EPA’s authority is within the power granted to it by the Clean Air Act.

West Virginia Et Al. V. Environmental Protection Agency

What was the EPA trying to do with their new rule to reduce emissions?

The point, after all, was to compel the transfer of power generating capacity from existing sources to wind and solar. The White House stated that the Clean Power Plan would “drive a[n] . . . aggressive transformation in the domestic energy industry.”

West Virginia Et Al. V. Environmental Protection Agency

The EPA claimed the authority to transform electrical generation throughout the country. Was this a power Congress had delegated to the EPA under the Clean Air Act? According to the majority of the court, no.

Under our precedents, this is a major questions case. In arguing that Section 111(d) empowers it to substantially restructure the American energy market, EPA “claim[ed] to discover in a long-extant statute an unheralded power” representing a “transformative expansion in [its] regulatory authority.” … It located that newfound power in the vague language of an “ancillary provision[]” of the Act, … one that was designed to function as a gap filler and had rarely been used in the preceding decades. And the Agency’s discovery allowed it to adopt a regulatory program that Congress had conspicuously and repeatedly declined to enact itself. … Given these circumstances, there is every reason to “hesitate before concluding that Congress” meant to confer on EPA the authority it claims under Section 111(d).

West Virginia Et Al. V. Environmental Protection Agency

Not surprisingly, some of the justices disagreed with this assessment. Compare the majority’s statement to how the dissent views the situation:

As I have already explained, nothing in the Clean Air Act (or, for that matter, any other statute) conflicts with EPA’s reading of Section 111. Notably, the majority does not dispute that point. Of course, it views Section 111 (if for unexplained reasons) as less clear than I do.

West Virginia Et Al. V. Environmental Protection Agency – Kagan Dissent

This is the true crux of this case. Who decides what a law means, Congress who writes the law or the executive agencies that enforce it? Justice Gorsuch points out how the court goes about deciding this in his concurrence.

One of the Judiciary’s most solemn duties is to ensure that acts of Congress are applied in accordance with the Constitution in the cases that come before us. To help fulfill that duty, courts have developed certain “clear-statement” rules. These rules assume that, absent a clear statement otherwise, Congress means for its laws to operate in congruence with the Constitution rather than test its bounds. In this way, these clear-statement rules help courts “act as faithful agents of the Constitution.”

West Virginia Et Al. V. Environmental Protection Agency – Gorsuch Concurrence

In other words, unless there is a clear statement in the law to the contrary, Congress means for its laws to be enforced following the Constitution, not testing the boundaries of it.

Since the question revolves around how the EPA interpreted the Clean Air Act, let’s start there.

The Agency View

But, the Agency explained, in order to “control[ ] CO2 from affected [plants] at levels . . . necessary to mitigate the dangers presented by climate change,” it could not base the emissions limit on “measures that improve efficiency at the power plants.” … “The quantity of emissions reductions resulting from the application of these measures” would have been “too small.” … Instead, to attain the necessary “critical CO2 reductions,” EPA adopted what it called a “broader, forward-thinking approach to the design” of Section 111 regulations. … Rather than focus on improving the performance of individual sources, it would “improve the overall power system by lowering the carbon intensity of power generation.” … (emphasis added). And it would do that by forcing a shift throughout the power grid from one type of energy source to another. In the words of the then-EPA Administrator, the rule was “not about pollution control” so much as it was “an investment opportunity” for States, especially “investments in renewables and clean energy.” …

This view of EPA’s authority was not only unprecedented; it also effected a “fundamental revision of the statute, changing it from [one sort of] scheme of . . . regulation” into an entirely different kind.

West Virginia Et Al. V. Environmental Protection Agency

It appears, in the mind of the EPA Administrator, when Congress said they were to “improve efficiency at power plants”, they really meant protect us all from “climate change”. Furthermore, when Congress said to improve performance of the individual sources of electricity, it really meant to regulate the entire electrical grid. As the EPA administrator was quoted in the opinion, the Clean Air Act wasn’t about pollution control, but investing in renewable energy. But is that what Congress included in the Clean Air Act?

On EPA’s view of Section 111(d), Congress implicitly tasked it, and it alone, with balancing the many vital considerations of national policy implicated in deciding how Americans will get their energy. EPA decides, for instance, how much of a switch from coal to natural gas is practically feasible by 2020, 2025, and 2030 before the grid collapses, and how high energy prices can go as a result before they become unreasonably “exorbitant.” …

There is little reason to think Congress assigned such decisions to the Agency. …

We also find it “highly unlikely that Congress would leave” to “agency discretion” the decision of how much coal-based generation there should be over the coming decades. …(“We are confident that Congress could not have intended to delegate a decision of such economic and political significance to an agency in so cryptic a fashion.”).

West Virginia Et Al. V. Environmental Protection Agency

It appears the majority of the court does not agree with the EPA Administrator’s assessment. They seem to think it is highly unlikely that Congress would give an agency discretion to determine how much coal-based electrical power there should be over the decades, and I agree. Especially since Congress has repeatedly rejected the “cap and trade” theory in the past.

Under our precedents, this is a major questions case. In arguing that Section 111(d) empowers it to substantially restructure the American energy market, EPA “claim[ed] to discover in a long-extant statute an unheralded power” representing a “transformative expansion in [its] regulatory authority.” … It located that newfound power in the vague language of an “ancillary provision[]” of the Act, … one that was designed to function as a gap filler and had rarely been used in the preceding decades. And the Agency’s discovery allowed it to adopt a regulatory program that Congress had conspicuously and repeatedly declined to enact itself.

West Virginia Et Al. V. Environmental Protection Agency

So the court asked the EPA to show the clear congressional authorization to enact their new plan.

Given these circumstances, our precedent counsels skepticism toward EPA’s claim that Section 111 empowers it to devise carbon emissions caps based on a generation shifting approach. To overcome that skepticism, the Government must—under the major questions doctrine—point to “clear congressional authorization” to regulate in that manner. Utility Air, 573 U. S., at 324.

All the Government can offer, however, is the Agency’s authority to establish emissions caps at a level reflecting “the application of the best system of emission reduction . . . adequately demonstrated.” 42 U. S. C. §7411(a)(1).

West Virginia Et Al. V. Environmental Protection Agency

The EPA could not show a clear authorization from Congress to implement a policy to force a nationwide change in how we generate electricity. For that reason, the court found for West Virginia, overturned the decision of the Court of Appeals, and sent the case back that court for further proceedings.

Capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible “solution to the crisis of the day.” … But it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme in Section 111(d). A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body. The judgment of the Court of Appeals for the District of Columbia Circuit is reversed, and the cases are remanded for further proceedings consistent with this opinion.

West Virginia Et Al. V. Environmental Protection Agency

Dissent

Three members of the court, justices Kagan, Breyer, and Sotomayor disagreed with the majority.

Today, the Court strips the Environmental Protection Agency (EPA) of the power Congress gave it to respond to “the most pressing environmental challenge of our time.”

West Virginia Et Al. V. Environmental Protection Agency – Kagan Dissent

Interesting, how three justices claim that the court stripped the EPA of a power Congress had not only not specifically given it, but had repeatedly declined to implement themselves.

Climate change’s causes and dangers are no longer subject to serious doubt. Modern science is “unequivocal that human influence”—in particular, the emission of greenhouse gases like carbon dioxide—“has warmed the atmosphere, ocean and land.”

West Virginia Et Al. V. Environmental Protection Agency – Kagan Dissent

It’s a good thing these justices are not scientists. There is plenty of scientific debate, not only about the severity of “climate change”, but how large a role humans play in it. And what does the severity of greenhouse gases have to do with what Congress has passed into law? The answer is, absolutely nothing. What we see here are members of the court not only changing the subject, but claiming that the executive branch can enact laws not passed by Congress, simply because the court believes there is a serious problem.

The Clean Air Act was major legislation, designed to deal with a major public policy issue. As Congress explained, its goal was to “speed up, expand, and intensify the war against air pollution” in all its forms.

West Virginia Et Al. V. Environmental Protection Agency – Kagan Dissent

But did Congress give the EPA the authority for investment into certain technologies in an attempt to move electrical generation in America from coal to other sources? Not even the dissent provided evidence that they did.

Conclusion

The one question that I didn’t see asked in this case was, did the Constitution delegate to the United States the power to control pollution, carbon-dioxide, or regulate power generation? The answer to that question is a definite no. While the court said that Congress had not delegated to the EPA the power to create a cap and trade system, or to regulate how electricity is generated in this country, no one seemed to ask this more basic question: Was this a power deleted to the United States in the first place? However, a fundamental statement was made by this opinion. Executive agencies cannot enact rules beyond the powers specifically delegated to them by legislation. It appears the EPA, along with most if not all of the executive agencies, believe they have the power to run the country. Not a very republican way to do things.

A commonwealth; a state in which the exercise of the sovereign power is lodged in representatives elected by the people.

Republic – Webster’s 1828 Dictionary

To me, that is the biggest takeaway from this opinion. Who decides what the laws are, and by extension, what they mean. Is it We the People, through our elected representatives, or is it the unelected bureaucracy that decides our laws? According to the Constitution, the President is to be sure that the laws created by Congress are faithfully executed within the confines of the Constitution. While it has been many years since the courts have followed that structure, I’m glad to see they have in this case.

West Virginia v EPA is one of three cases this year where the court has placed the language of the Constitution and laws of the United States above precedent, tradition, and perceived need. While the three justices who dissented in these cases seem more interested in seeing the government rule rather than following the supreme law of the land, I don’t expect that to change much with the appointment of Justice Ketanji Brown Jackson. I can only hope that the court will continue this fidelity to their oaths to support the Constitution of the United States. It would certainly help decide if America is to rise again to be a republic, or continue to devolve into an oligarchy.

© 2022 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

July 18, 2022

• Is your right to self-defense enough “good cause” to carry a concealed weapon?
• Does a state like New York have the legal authority to only issue carry licenses if they think it is appropriate?
• How will the decision in the case New York State Rifle and Pistol Association v. Bruen effect the other “may issue” states?

Can a state arbitrarily decide whether or not you get to exercise a right protected by the Constitution of the United States? That is the question in the case New York State Rifle and Pistol Association (NYSRPA) v. Bruen, Superintendent of the New York State Police. New York State is a “may issue” state, meaning that you may not get your carry license even if you’ve met all of the legal requirement and you had to show you had a “good cause” to carry a firearm in public. However, self-defense was not considered a “good cause” by the New York courts. You had to show you had a special need for self-defense, greater than the general public. Does that sound like infringement on your right to keep and bear arms to you?

What limits can a state put on a person’s right to keep and bear arms?

The State of New York makes it a crime to possess a firearm without a license, whether inside or outside the home. An individual who wants to carry a firearm outside his home may obtain an unrestricted license to “have and carry” a concealed “pistol or revolver” if he can prove that “proper cause exists” for doing so.

New York State Rifle & Pistol Association v. Bruen

Let’s start with the obvious. The Constitution, as the supreme law of the land, makes this New York State law invalid and void.

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. 

U.S. Constitution, Amendment II

The Constitution says that your right to keep and bear arms “shall not be infringed.” I cannot understand how making the exercising of a right illegal is not an infringement of it.

To break, as contracts; to violate, either positively by contravention, or negatively by non-fulfillment or neglect of performance. 

INFRINGE – Webster’s 1828 Dictionary

New York, and other states, claim that it is not an infringement because you can get a permission slip from the government to exercise your right, but New York State law is quite clear: The keeping and bearing of arms is illegal. Then the State of New York furthers the infringement by placing special conditions on the issuing of that permission slip and makes you show “proper cause”.

Petitioners Brandon Koch and Robert Nash are adult, law-abiding New York residents who both applied for unrestricted licenses to carry a handgun in public based on their generalized interest in self-defense. The State denied both of their applications for unrestricted licenses, allegedly because Koch and Nash failed to satisfy the “proper cause” requirement.

New York State Rifle & Pistol Association v. Bruen

Why did the state of New York deny both Koch and Nash their carry licenses? Because they did not show that they had a “proper cause” to carry in public. But isn’t self-defense a good enough reason to carry a weapon in public? Isn’t the right to defend oneself “proper cause” to be able to use the most effective tool to do so?

An applicant satisfies the “proper cause” requirement only if he can “demonstrate a special need for self-protection distinguishable from that of the general community.”

New York State Rifle & Pistol Association v. Bruyn

According to New York State, you need to show you have a special need to defend yourself in order to have proper cause to defend yourself or your family. Interestingly, the State of New York recognizes the carrying of large sums of money or valuables as “proper cause”, but not living in a dangerous neighborhood.

This was the core question in this case. Does New York State’s requirement to show a special need for self-protection violate the Constitution of the United States?

Petitioners then sued respondents—state officials who oversee the processing of licensing applications—for declaratory and injunctive relief, alleging that respondents violated their Second and Fourteenth Amendment rights by denying their unrestricted-license applications for failure to demonstrate a unique need for self-defense.

New York State Rifle & Pistol Association v. Bruen

OK, the Second Amendment seems pretty simple, and I’ve already shown how New York State is violating the right of the people to keep and bear arms. So what does the Fourteenth Amendment have to do with this case?

Strictly speaking, New York is bound to respect the right to keep and bear arms because of the Fourteenth Amendment, not the Second.

New York State Rifle & Pistol Association v. Bruen

The court has continued to hold that the Bill of Rights is somehow not completely a part of the Constitution. Even though the language of the Second Amendment says nothing about limiting its effect to the federal government, the court has used their doctrine of “selective incorporation” to determine if and when they will hold the states accountable to the supreme law of the land. This is why the Fourteenth Amendment was brought into the case. While the court believes the Bill of Rights does not apply to the states, unless they want it to, Section 1 of the Fourteenth Amendment explicitly says it does:

… No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

U.S. Constitution, Amendment XIV, Section 1

Which is why, I believe, the court ultimately wrote the holding in their decision the way they did.

Held: New York’s proper-cause requirement violates the Fourteenth Amendment by preventing law-abiding citizens with ordinary self-defense needs from exercising their Second Amendment right to keep and bear arms in public for self-defense.

New York State Rifle & Pistol Association v. Bruen

The court isn’t wrong; the State of New York was denying its citizens the right to keep and bear arms in public. I would have liked to see the court recognize that the legislature and officials of the State of New York were required to fulfill their oath to support the Constitution of the United States, including the Second Amendment, but that isn’t how they got there. Instead, in the tradition of the court, they used previous opinions to come to their conclusion.

Since Heller and McDonald, the Courts of Appeals have developed a “two-step” framework for analyzing Second Amendment challenges that combines history with means-end scrutiny. The Court rejects that two-part approach as having one step too many. Step one is broadly consistent with Heller, which demands a test rooted in the Second Amendment’s text, as informed by history. But Heller and McDonald do not support a second step that applies means-end scrutiny in the Second Amendment context. Heller’s methodology centered on constitutional text and history. It did not invoke any means-end test such as strict or intermediate scrutiny, and it expressly rejected any interest-balancing inquiry akin to intermediate scrutiny.

New York State Rifle & Pistol Association v. Bruen

Justice Thomas, who wrote he opinion, pointed out what the court saw as a problem with the two-step process the Courts of Appeals had adopted. The first step, that of looking to the text and history of the Second Amendment did not bother the court. The second step did.

The second of the two-step approach involves a means-ends analysis. “Means-ends” is a problem solving technique whereby the difference between impact of the means when compared to the impact of the ends, is minimized. Put another way, do the ends justify the means? The one problem is that the Constitution of the United States doesn’t say your rights are protected unless the government has a good enough reason not to do so.

One of the objections frequently heard about regulating arms is that the Founding Fathers could never have imagined an AR-15 or other arms popular today. Justice Thomas dealt with that as well.

But the Constitution can, and must, apply to circumstances beyond those the Founders specifically anticipated, even though its meaning is fixed according to the understandings of those who ratified it. … Indeed, the Court recognized in Heller at least one way in which the Second Amendment’s historically fixed meaning applies to new circumstances: Its reference to “arms” does not apply “only [to] those arms in existence in the 18th century.”

New York State Rifle & Pistol Association v. Bruen

I’ve always found it foolish when people claim that the Second Amendment meant you only had a right to keep and bear muskets, because they were the arms of the day when the Second Amendment was written. After all, they extended the freedom of speech and press to include the telegraph, then radio, television, and even the Internet. Why not do the same for the right to keep and bear arms? Sure, there were also cannons, swords, and other weapons, but so many have become focused on the firearm that they fail to realize that the Second Amendment protects the right to keep and bear “arms”:

Weapons of offense, or armor for defense and protection of the body.

ARMS – Webster’s 1828 Dictionary

The other common claim made by those who wish to strictly regulate firearms is the purpose of the Second Amendment as stated in its opening few words.

A well regulated Militia, being necessary to the security of a free State,

U.S. Constitution, Amendment II

But this ignores that plain language of the rest of the text.

the right of the people to keep and bear Arms, shall not be infringed. 

U.S. Constitution, Amendment II

The court recognized that when the Constitution refers to the people, it means the rights of everyday, ordinary, individual people.

It is undisputed that petitioners Koch and Nash—two ordinary, law-abiding, adult citizens—are part of “the people” whom the Second Amendment protects. … And no party disputes that handguns are weapons “in common use” today for self-defense. … The Court has little difficulty concluding also that the plain text of the Second Amendment protects Koch’s and Nash’s proposed course of conduct—carrying handguns publicly for self-defense. Nothing in the Second Amendment’s text draws a home/public distinction with respect to the right to keep and bear arms, and the definition of “bear” naturally encompasses public carry. Moreover, the Second Amendment guarantees an “individual right to possess and carry weapons in case of confrontation,” …, and confrontation can surely take place outside the home.

New York State Rifle & Pistol Association v. Bruen

Based on these facts, and the court’s predilection for placing government interests above the constitutionally protected rights of the people, the court expects the respondents (in this case the Superintendent Of New York State Police), to prove why their regulations are consistent with history and tradition.

The burden then falls on respondents to show that New York’s proper-cause requirement is consistent with this Nation’s historical tradition of firearm regulation. To do so, respondents appeal to a variety of historical sources from the late 1200s to the early 1900s. But when it comes to interpreting the Constitution, not all history is created equal. “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them.” … The Second Amendment was adopted in 1791; the Fourteenth in 1868. Historical evidence that long predates or postdates either time may not illuminate the scope of the right. With these principles in mind, the Court concludes that respondents have failed to meet their burden to identify an American tradition justifying New York’s proper-cause requirement.

New York State Rifle & Pistol Association v. Bruen

Here we see why the court’s history and tradition standard is so dangerous. When in history do we look? What traditions do we consider? New York State went all the way back to English history in the 1200s in an attempt to justify their actions. But not only did the American colonies not exist in the 1200s, they declared themselves independent from the crown in 1776.

Respondents’ substantial reliance on English history and custom before the founding makes some sense given Heller’s statement that the Second Amendment “codified a right ‘inherited from our English ancestors.’ ” … But the Court finds that history ambiguous at best and sees little reason to think that the Framers would have thought it applicable in the New World. The Court cannot conclude from this historical record that, by the time of the founding, English law would have justified restricting the right to publicly bear arms suited for self-defense only to those who demonstrate some special need for self-protection.

New York State Rifle & Pistol Association v. Bruen

The State of New York looked at other pieces of history. The state gave only gave three restrictions on public carry from the colonial era and early republic, but they prohibited the bearing of arms that intended to spread fear. But Koch and Nash were not seeking permission to carry in a way to spread fear, since according to New York law, if they had received their carry licenses, they would be required to carry concealed. Because of that, under New York State law, if they allowed their weapons to become unconcealed while in public they were committing a crime.

After reviewing the Anglo-American history of public carry, the Court concludes that respondents have not met their burden to identify an American tradition justifying New York’s proper-cause requirement. Apart from a few late-19th-century outlier jurisdictions, American governments simply have not broadly prohibited the public carry of commonly used firearms for personal defense. Nor have they generally required law-abiding, responsible citizens to “demonstrate a special need for self-protection distinguishable from that of the general community” to carry arms in public.

New York State Rifle & Pistol Association v. Bruen

In short, the State of New York did not make its case. They showed no history, tradition, or even good reason for their requirement that an individual needed to demonstrate a special need for self-defense.

The constitutional right to bear arms in public for self-defense is not “a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.”… The exercise of other constitutional rights does not require individuals to demonstrate to government officers some special need. The Second Amendment right to carry arms in public for self-defense is no different. New York’s proper-cause requirement violates the Fourteenth Amendment by preventing law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms in public.

New York State Rifle & Pistol Association v. Bruen – Thomas Opinion

Probably my favorite phrase from Justice Thomas’ opinion is that the right to keep and bear arms is not a second-class right. It must be treated like any other right protected by the Bill of Rights.

Dissent

As is so often the case, not all of the justices agreed.

In 2020, 45,222 Americans were killed by firearms. See Centers for Disease Control and Prevention, Fast Facts: Firearm Violence Prevention (last updated May 4, 2022) (CDC, Fast Facts), https://www.cdc.gov/violenceprevention/ firearms/fastfact.html. Since the start of this year (2022), there have been 277 reported mass shootings—an average of more than one per day. See Gun Violence Archive (last visited June 20, 2022), https://www.gunviolence archive.org. Gun violence has now surpassed motor vehicle crashes as the leading cause of death among children and adolescents. J. Goldstick, R. Cunningham, & P. Carter, Current Causes of Death in Children and Adolescents in the United States, 386 New England J. Med. 1955 (May 19, 2022) (Goldstick).

New York State Rifle & Pistol Association v. Bruen – Breyer, Sotomayor, and Kagan Dissent

The dissent here sounds more like they are making an argument on the floor of Congress rather than debating the legality of the law in question. The judicial power of the United States extends to deciding the controversies of cases, not developing the policies of the nation. This appeal to people’s emotions rather than the law did not get past Justice Alito in his concurrence:

What is the relevance of statistics about the use of guns to commit suicide? … Does the dissent think that a lot of people who possess guns in their homes will be stopped or deterred from shooting themselves if they cannot lawfully take them outside?

The dissent cites statistics about the use of guns in domestic disputes, … but it does not explain why these statistics are relevant to the question presented in this case. How many of the cases involving the use of a gun in a domestic dispute occur outside the home, and how many are prevented by laws like New York’s?

The dissent cites statistics on children and adolescents killed by guns, … but what does this have to do with the question whether an adult who is licensed to possess a handgun may be prohibited from carrying it outside the home? Our decision, as noted, does not expand the categories of people who may lawfully possess a gun, and federal law generally forbids the possession of a handgun by a person who is under the age of 18, 18 U.S.C. §§922(x)(2)–(5), and bars the sale of a handgun to anyone under the age of 21, §§922(b)(1), (c)(1).

The dissent cites the large number of guns in private hands—nearly 400 million—but it does not explain what this statistic has to do with the question whether a person who already has the right to keep a gun in the home for self-defense is likely to be deterred from acquiring a gun by the knowledge that the gun cannot be carried outside the home. … And while the dissent seemingly thinks that the ubiquity of guns and our country’s high level of gun violence provide reasons for sustaining the New York law, the dissent appears not to understand that it is these very facts that cause law-abiding citizens to feel the need to carry a gun for self-defense.

New York State Rifle & Pistol Association v. Bruen – Alito Concurrence

The dissenting justices also noted the importance of the case:

The question before us concerns the extent to which the Second Amendment prevents democratically elected officials from enacting laws to address the serious problem of gun violence. And yet the Court today purports to answer that question without discussing the nature or severity of that problem.

New York State Rifle & Pistol Association v. Bruen – Breyer, Sotomayor, and Kagan Dissent

Does the Constitution prevent “democratically elected officials” from enacting laws contrary to its language? This is exactly the point. The question before the court is not how severe a problem gun violence is, but does the state law violate the supreme law of the land? It seems the dissent wants to ignore the Constitution as long as it’s an attempt to deal with a truly severe problem. But if We the People wanted states to be able to restrict our right to keep and bear arms if gun violence got really bad, we would have said so when we had the states ratify the Second Amendment.

Indeed, the Court’s application of its history-only test in this case demonstrates the very pitfalls described above. The historical evidence reveals a 700-year Anglo-American tradition of regulating the public carriage of firearms in general, and concealed or concealable firearms in particular. The Court spends more than half of its opinion trying to discredit this tradition. But, in my view, the robust evidence of such a tradition cannot be so easily explained away.

New York State Rifle & Pistol Association v. Bruen – Breyer, Sotomayor, and Kagan Dissent

May I remind the dissenters that this is not the Anglo-American States of America, but the United States of America. As I’ve already pointed out, we fought a war to get away from much of the first 450 years of the Anglo-American tradition that the court wishes to subject us to. In fact, one of the grievances listed in that document in which we declared our independence from the Anglo-American tradition of monarchal rule was:

He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:

Declaration of Independence

It appears, the dissenters of this court are also willing to subject us to jurisdictions foreign to our Constituiton and unacknowledged by our laws.

The historical examples of regulations similar to New York’s licensing regime are legion. Closely analogous English laws were enacted beginning in the 13th century, and similar American regulations were passed during the colonial period, the founding era, the 19th century, and the 20th century. Not all of these laws were identical to New York’s, but that is inevitable in an analysis that demands examination of seven centuries of history. At a minimum, the laws I have recounted resembled New York’s law, similarly restricting the right to publicly carry weapons and serving roughly similar purposes. That is all that the Court’s test, which allows and even encourages “analogical reasoning,” purports to require.

New York State Rifle & Pistol Association v. Bruen – Breyer, Sotomayor, and Kagan Dissent

Funny, I did not know that three examples constitute a “legion”. Yes, there were ancient English laws that restricted the carrying of arms, but we a no longer an English colony, neither are we part of the English commonwealth. As for the regulations from the colonial period to the early 20th century, as Justice Alito noted, they regulated the use of firearms in public, and none of them required a special need for self-defense to bear arms in public.

Conclusion

In sum, the Courts of Appeals’ second step is inconsistent with Heller’s historical approach and its rejection of means-end scrutiny. We reiterate that the standard for applying the Second Amendment is as follows: When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.”

New York State Rifle & Pistol Association v. Bruen – Thomas Opinion

In other words, it is up to the state to prove that the ends justify the needs, not the courts. But this places the states above not only the Constitution, but the people themselves. It also places, supreme over all, the very court Justice Thomas sits on. This time, the court decided that the state did not justify the need to infringe on people’s rights protected by the Constitution. I can only hope that future justices would uphold their oath to the Constitution, as the supreme law of the land, above the perceived “needs” of the state.

Finally, we come to the biggest question brought up by this court.

New York is not alone in requiring a permit to carry a handgun in public. But the vast majority of States—43 by our count—are “shall issue” jurisdictions, where authorities must issue concealed-carry licenses whenever applicants satisfy certain threshold requirements, without granting licensing officials discretion to deny licenses based on a perceived lack of need or suitability. Meanwhile, only six States and the District of Columbia have “may issue” licensing laws, under which authorities have discretion to deny concealed-carry licenses even when the applicant satisfies the statutory criteria, usually because the applicant has not demonstrated cause or suitability for the relevant license. Aside from New York, then, only California, the District of Columbia, Hawaii, Maryland, Massachusetts, and New Jersey have analogues to the “proper cause” standard. All of these “proper cause” analogues have been upheld by the Courts of Appeals, save for the District of Columbia’s, which has been permanently enjoined since 2017.

New York State Rifle & Pistol Association v. Bruen – Thomas Opinion

What will the officials in these six states and the District of Columbia do? Will they recognize their mistake, that placing discretionary requirements on the exercise of a constitutionally protect right is both arbitrary and capricious? Will they learn from this opinion and begin to correct their infringements on the rights of the people they purport to serve? Based on what I’ve seen in the news so far, my guess is the answer is no. That these states will only recognize the Second Amendment if and when the citizens of their states force them or the other states in the compact punish them for their violation of the agreement. I’m not holding my breath for either solution to be tried in the near future.

© 2022 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

July 11, 2022

• After almost 50 years, the Supreme Court opinions in Roe and Casey have been overturned.
• The right to obtain an abortion is not in the language of the Constitution, neither is it in the history of this country before 1973.
• While this decision has certainly caused an uproar, this is an opportunity to review the court’s opinion.

After almost 50 years, a landmark decision of the Supreme Court has been overturned. Will it be remembered with other decisions like Dred Scott or Plessy v. Ferguson? Only time will tell. After all of the furor when a draft of the opinion was leaked, we finally get a chance to review that actual opinion in Dobbs v. Jackson Women’s Health in its final form.

At 213 pages, the opinion and dissents in Dobbs v. Jackson Women’s Heath is not only large in size but in scope. There are so many quotable phrases, it can easily become overwhelming. For that reason, and my own sanity, I’ve focused mainly on the syllabus and the summary of the opinion, adding quotes from the opinion, concurrences, and dissent only as necessary. As with all cases before the Supreme Court, this one started with a question.

Mississippi’s Gestational Age Act provides that “[e]xcept in a medical emergency or in the case of a severe fetal abnormality, a person shall not intentionally or knowingly perform . . . or induce an abortion of an unborn human being if the probable gestational age of the unborn human being has been determined to be greater than fifteen (15) weeks.” Miss. Code Ann. §41–41–191. Respondents—Jackson Women’s Health Organization, an abortion clinic, and one of its doctors—challenged the Act in Federal District Court, alleging that it violated this Court’s precedents establishing a constitutional right to abortion, in particular Roe v. Wade, 410 U. S. 113, and Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833.

Dobbs v. Jackson Women’s Health

The framing of a question is just as important as the question itself. Mississippi passed a law that limits abortions after fifteen weeks gestation. Jackson Women’s Health Organization and one of its doctors believed that the law “violated this Court’s precedents establishing a constitutional right to abortion.” Notice two very important things in that statement. Jackson Women’s Health did not claim that Mississippi’s law violated federal law or the Constitution of the United States, but judicial precedent. Judicial precedent is not law, neither is it recognized by the Constitution as supreme over the laws and constitutions of the states.

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, Clause 2

Jackson Women’s Health is asking the court to place a previous opinion of the court above the supreme law of the land. That really isn’t surprising, since the court has been doing that for decades, though please notice the second part of the original plaintiff’s statement. The court, through its precedent, established a constitutional right to abortion. I have not reviewed the Planned Parenthood v. Casey opinion, but I have reviewed the Roe v. Wade opinion, and you know what I did not find: A claim of a “constitutional right to abortion”. Rather, the court claimed that the decision to have an abortion was private between the woman and her doctor, and that Texas’ law criminalizing abortion represented an unreasonable seizure of her body. For almost 50 years, courts have used the precedent set in Roe and Casey, frequently referring to this so called constitutional right to abortion. If the Supreme Court said there was a right to abortion, then there’s a right to abortion.

However, in the Dobbs case, the majority of the court, rather than relying on the opinions of previous justices, looked at the Constitution and made a startling discovery.

Held: The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives.

Dobbs v. Jackson Women’s Health

Most people I’ve read or heard discuss this opinion, have rightly focused on the overruling of Roe and Casey. But did you notice the Tenth Amendment undertones in the holding? If the Constitution does not confer a right to abortion, then it’s not within the judicial power of the court to protect it. It’s therefore reserved to the people and their elected representatives.

How did the court come to such a decision?

(a) The critical question is whether the Constitution, properly understood, confers a right to obtain an abortion. Casey’s controlling opinion skipped over that question and reaffirmed Roe solely on the basis of stare decisis. A proper application of stare decisis, however, requires an assessment of the strength of the grounds on which Roe was based. The Court therefore turns to the question that the Casey plurality did not consider.

Dobbs v. Jackson Women’s Health

As I’ve already pointed out, the Constitution, not court precedent, is the supreme law of the land. The Casey court, like so many others, placed the idea of “stare decisis” (Latin for “Let the decision stand”), above all other considerations. Since judges and justices are human, there must be a recognition of their fallibility. Courts get things wrong. If a court opinion could not be reviewed, courts would still enforce segregation laws and the concept of separate but equal. So are the grounds of Roe and Casey strong enough to survive a constitutional review?

The Constitution makes no express reference to a right to obtain an abortion, but several constitutional provisions have been offered as potential homes for an implicit constitutional right. Roe held that the abortion right is part of a right to privacy that springs from the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. … The Casey Court grounded its decision solely on the theory that the right to obtain an abortion is part of the “liberty” protected by the Fourteenth Amendment’s Due Process Clause.

Dobbs v. Jackson Women’s Health

The Ninth Amendment to the Constitution makes it quite clear:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. 

U.S. Constitution, Amendment IX

So, is the right to an abortion among those that while not enumerated in the Constitution, are still protected by it? To find out, the court needed to look at the history of this so called right to abortion.

Next, the Court examines whether the right to obtain an abortion is rooted in the Nation’s history and tradition and whether it is an essential component of “ordered liberty.” The Court finds that the right to abortion is not deeply rooted in the Nation’s history and tradition. The underlying theory on which Casey rested—that the Fourteenth Amendment’s Due Process Clause provides substantive, as well as procedural, protection for “liberty”—has long been controversial.

Dobbs v. Jackson Women’s Health

Let’s start by asking what is this “ordered liberty” the court is so concerned about?

A loosely used term, diversely applied in scholarly literature and judicial opinions, “ordered liberty” suggests that fundamental constitutional rights are not absolute but are determined by a balancing of the public (societal) welfare against individual (personal) rights.

Ordered Liberty, Encyclopedia.com

The concept of “ordered liberty” is itself a violation of the Constitution of the United States. Remember when I quoted Article VI, Clause 2?

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, Clause 2

The Constitution is the supreme law of the land, not a court’s attempt to balance your constitutionally protect rights against a public interest. “Ordered liberty” is the court usurping the role of supreme law of the land.

What did the court find in America’s history and traditions around abortion?

For the first 185 years after the adoption of the Constitution, each State was permitted to address this issue in accordance with the views of its citizens. Then, in 1973, this Court decided Roe v. Wade, … Even though the Constitution makes no mention of abortion, the Court held that it confers a broad right to obtain one. It did not claim that American law or the common law had ever recognized such a right, and its survey of history ranged from the constitutionally irrelevant (e.g., its discussion of abortion in antiquity) to the plainly incorrect (e.g., its assertion that abortion was probably never a crime under the common law). After cataloging a wealth of other information having no bearing on the meaning of the Constitution, the opinion concluded with a numbered set of rules much like those that might be found in a statute enacted by a legislature.

Dobbs v. Jackson Women’s Health – Opinion of the Court

The court looked at the history and traditions of abortion in the United States and did not find it sufficient to establish as a right that was not enumerated in the Constitution, and therefore protected by the Ninth Amendment. It was not considered a constitutionally protected right for the first 185 years of the Constitution, and it was not recognized under either American law or common law. Although the Roe court attempted to come up with a history to justify their preferred outcome, their reasoning used both the irrelevant and the incorrect to find this missing right.

Which leaves us with a simple question. What will govern our nation, the Constitution of the United States or the previous opinion of justices?

The doctrine of stare decisis does not counsel continued acceptance of Roe and Casey. Stare decisis plays an important role and protects the interests of those who have taken action in reliance on a past decision. It “reduces incentives for challenging settled precedents, saving parties and courts the expense of endless relitigation.” …. It “contributes to the actual and perceived integrity of the judicial process.” … And it restrains judicial hubris by respecting the judgment of those who grappled with important questions in the past. But stare decisis is not an inexorable command,

Dobbs v. Jackson Women’s Health

Stare decisis does have its place, but not at the expense of the law. When looking at a case, is it wise for judges and justices to look at the opinions of their predecessors? Yes. But to place the opinions of judges above the laws of our land is not only a violation of the judges’ oath of office, but an attack on self-government and an imposition of a dictatorial oligarchy on the American people. I’m not saying that precedent should be ignored, merely kept in proper perspective. And a majority of the court agrees.

The dissent argues that we have “abandon[ed]” stare decisis, … but we have done no such thing, and it is the dissent’s understanding of stare decisis that breaks with tradition. The dissent’s foundational contention is that the Court should never (or perhaps almost never) overrule an egregiously wrong constitutional precedent unless the Court can “poin[t] to major legal or factual changes undermining [the] decision’s original basis.”

Dobbs v. Jackson Women’s Health – Alito Opinion

So when precedents as poorly founded as Roe and Casey are challenged, the court must act, or violate the very reason for their existence.

Like the infamous decision in Plessy v. Ferguson, Roe was also egregiously wrong and on a collision course with the Constitution from the day it was decided. Casey perpetuated its errors, calling both sides of the national controversy to resolve their debate, but in doing so, Casey necessarily declared a winning side. Those on the losing side—those who sought to advance the State’s interest in fetal life—could no longer seek to persuade their elected representatives to adopt policies consistent with their views. The Court short-circuited the democratic process by closing it to the large number of Americans who disagreed with Roe.

Dobbs v. Jackson Women’s Health

As I said, Roe and Casey substituted the opinions of oligarchs for the rule of law.

Without any grounding in the constitutional text, history, or precedent, Roe imposed on the entire country a detailed set of rules for pregnancy divided into trimesters much like those that one might expect to find in a statute or regulation. … Roe’s failure even to note the overwhelming consensus of state laws in effect in 1868 is striking, and what it said about the common law was simply wrong.

Dobbs v. Jackson Women’s Health

Based on these facts and the law, the court had no other legitimate course of action.

We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.”

Dobbs v. Jackson Women’s Health – Opinion of the Court

There is no right to abortion, either in the text of the Constitution or in the history and traditions of the nation. On a personal note, I find it interesting that both Roe and Casey based their claims of a right to abortion in the Fourteenth Amendment’s due process clause:

nor shall any State deprive any person of life, liberty, or property, without due process of law;

U.S. Constitution, Amendment XIV, Section 1

The very right to have your life protected is the right these two courts claimed gave a women the right to take the life of an unborn child. The court went on:

The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions. On the contrary, an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973. The Court in Roe could have said of abortion exactly what Glucksberg said of assisted suicide: “Attitudes toward [abortion] have changed since Bracton, but our laws have consistently condemned, and continue to prohibit, [that practice].”

Dobbs v. Jackson Women’s Health – Alito Opinion

This is the hubris of the court. Without any legal basis, the Roe court made up a supposed right to abortion, and inflicted it on the nation. Then the Casey court abdicated their duty to review the law and simply allowed this abuse to continue.

The Dissent

Of course, not all of the justices agreed:

When overruling constitutional precedent, the Court has almost always pointed to major legal or factual changes undermining a decision’s original basis.

Dobbs v. Jackson Women’s Health – Breyer, Sotomayor, Kagan Dissent

In other words, those in the dissent assume no prior court could possibly be wrong. Without “major legal or factual changes undermining a decision’s original basis”, we are to forever be stuck with the decision. The possibility that a court has been wrong is not allowed.

The majority’s core legal postulate, then, is that we in the 21st century must read the Fourteenth Amendment just as its ratifiers did. And that is indeed what the majority emphasizes over and over again. … If the ratifiers did not understand something as central to freedom, then neither can we. Or said more particularly: If those people did not understand reproductive rights as part of the guarantee of liberty conferred in the Fourteenth Amendment, then those rights do not exist.

Dobbs v. Jackson Women’s Health – Breyer, Sotomayor, Kagan Dissent

And thus we again see the hubris of the court and all those who believe the “living, breathing document” theory. These dissenting justices claim the authority to ignore the language of the Constitution, and the basic tenets of contract law (the Constitution is after all a compact between the states), and determine for themselves the understanding of rights. This is not a power delegated to the judicial branch. If, as these dissenters believe, the understanding of what is central to freedom changes, it is up to the people and the states to change the Constitution, not nine high priests in black robes. As Alito pointed out in the opinion of the court:

The Court in Roe could have said of abortion exactly what Glucksberg said of assisted suicide: “Attitudes toward [abortion] have changed since Bracton, but our laws have consistently condemned, and continue to prohibit, [that practice].”

Dobbs v. Jackson Women’s Health – Alito Opinion

The dissenting justices furthered their heavy-handed opinions when it comes to the application of state laws.

Enforcement of all these draconian restrictions will also be left largely to the States’ devices. A State can of course impose criminal penalties on abortion providers, including lengthy prison sentences. But some States will not stop there. Perhaps, in the wake of today’s decision, a state law will criminalize the woman’s conduct too, incarcerating or fining her for daring to seek or obtain an abortion. And as Texas has recently shown, a State can turn neighbor against neighbor, enlisting fellow citizens in the effort to root out anyone who tries to get an abortion, or to assist another in doing so.

Dobbs v. Jackson Women’s Health – Breyer, Sotomayor, Kagan Dissent

Once again we see justices of the Supreme Court placing their opinions above not only the law, but of the people’s right to govern themselves. If an abortion is the claiming of a human life, and it is done illegally, should not all who participate be subject to judgment? After all, if two people conspire to murder another, both are charged with a crime. As for Breyer’s comment about the state of Texas, I would remind him that it was the Supreme Court that prohibited the state of Texas in the Roe case from criminally punishing abortion providers. Meaning, Texas was merely finding a way to fulfill its duty to prevent the taking of human life without due process within the ridiculous restrictions placed on it by the Roe court.

Can a State bar women from traveling to another State to obtain an abortion? Can a State prohibit advertising out-of-state abortions or helping women get to out-of-state providers? Can a State interfere with the mailing of drugs used for medication abortions? The Constitution protects travel and speech and interstate commerce, so today’s ruling will give rise to a host of new constitutional questions. Far from removing the Court from the abortion issue, the majority puts the Court at the center of the coming “interjurisdictional abortion wars.”

Dobbs v. Jackson Women’s Health – Breyer, Sotomayor, Kagan Dissent

Are the states sovereign or vassals of Washington, D.C.? That is the question Breyer brings up here. Apparently, in the mind of the dissenters, the states are mere vassals to their opinions. These justices act as if the rest of the Constituiton does not exist when it supports their rhetorical purposes. But remember, the question presented to this court was not travel, advertising, or mailing, but the legality of Mississippi’s law regulating abortions.

For half a century, Roe v. Wade,… and Planned Parenthood of Southeastern Pa. v. Casey,… have protected the liberty and equality of women. Roe held, and Casey reaffirmed, that the Constitution safeguards a woman’s right to decide for herself whether to bear a child. Roe held, and Casey reaffirmed, that in the first stages of pregnancy, the government could not make that choice for women. The government could not control a woman’s body or the course of a woman’s life: It could not determine what the woman’s future would be. … Respecting a woman as an autonomous being, and granting her full equality, meant giving her substantial choice over this most personal and most consequential of all life decisions.

Dobbs v. Jackson Women’s Health – Breyer, Sotomayor, Kagan Dissent

Once again we see justices misleading those who read their opinions in an emotional attempt to promote their political agenda. The question in Roe, Casey, and Dobbs was not whether or not a woman could decide for herself whether or not to bear a child, but if and when the killing of the life in her womb is protected by the Constitution. Put another way, was the taking of a human life a legal form of contraception? As Alito noted in the opinion he wrote:

The dissent is very candid that it cannot show that a constitutional right to abortion has any foundation, let alone a “‘deeply rooted’” one, “‘in this Nation’s history and tradition.’ ”

… The most striking feature of the dissent is the absence of any serious discussion of the legitimacy of the States’ interest in protecting fetal life.

Dobbs v. Jackson Women’s Health – Alito Opinion

The dissent’s case reminds me of a story I heard:

There is an old trial lawyers’ saying “When the facts are on your side, pound the facts. When the law is on your side, pound the law. When neither is on you side, pound the table.”

1975 December 30, Chicago Tribune, Mr. Ford, meet Mr. Harris by Patrick Buchanan

Conclusion

Even in a generally well thought out opinion, courts often get things wrong. The concept of “ordered liberty” the court used is a violation of the Constitution, and therefore a violation of the justices’ oaths to support it.

The Roe opinion was so badly decided, not because people disagreed with it, but because it failed the most basic concepts of judicial scrutiny. It should become a lesson on the dangers of “ordered liberty”, stare decisis, and our court’s slavish devotion to precedent above the laws they have sworn to uphold. As Justice Kavanaugh noted in his concurrence:

The Constitution does not grant the nine unelected Members of this Court the unilateral authority to rewrite the Constitution to create new rights and liberties based on our own moral or policy views. As Justice Rehnquist stated, this Court has not “been granted a roving commission, either by the Founding Fathers or by the framers of the Fourteenth Amendment, to strike down laws that are based upon notions of policy or morality suddenly found unacceptable by a majority of this Court.”

This Court therefore does not possess the authority either to declare a constitutional right to abortion or to declare a constitutional prohibition of abortion.

Dobbs v. Jackson Women’s Health – Kavanaugh Concurrence

In so much of the hype about this opinion, one very important thing is frequently lost. This decision does not make abortion illegal in the United States nor does it does not take away a women’s right to get an abortion. It does not even claim that abortion could not be protected by law. It only says that the laws and Constitution of the United States do not provide for a right to an abortion. Those who want legal abortions in this country will have to go to the representatives’ legislative branch to get it, rather than relying on a ruling body in the courts.

May the courts, Congress, the Whitehouse, and each and every America learn the lesson of the dangers both of stare decisis and the hubris of courts issuing “rulings”. Otherwise, all it will take for those oligarchs in black robes to rule over this nation as kings and queens is the right person to not let a crisis go to waste.

© 2022 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

July 4, 2022

• Are the Several States in a similar state as the Colonies were in 1776?
• Is there really much difference between the government of King George in 1776 and the government in Washington, D.C. in 2022?
• Do you think the signers of the Declaration of Independence thought the American people would be so dependent on their central government?

Last year, I re-examined the Declaration of Independence in the light of current events. After another year, I believe the evidence is clear that the government in Washington, D.C. has become just as corrupt, despotic, and destructive to your rights as the government of King George III was.

This year, I want to look at new evidence to show you just how fast the American people are rushing toward their own servitude. My hope is that if we take a closer look how far we have fallen, We the People will once again show that tyrants are unfit to govern a free people.

I often talk about how much the state of America today resembles that of the colonies, and how the government in Washington, D.C. resembles King George. That’s why I wrote the Re-Declaration of Independence in the first place. In the 1776 Declaration, the founders listed 27 specific grievances against the crown. Let’s take a look at some recent events in the light of grievances from the Re-Declaration.

The Courts

The Federal Courts have refused their Assent to Laws, the most wholesome and necessary for the public good.

… For effectively taking away our State Constitutions, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments:

The Re-Declaration of Independence

We seem to forget that the federal judiciary is as much a creation of the Constitution, and therefore subject to it, as the other two branches of government. While the court has the judicial power to review cases, they do not have the legal authority to overturn state laws. Yet today it seems that whenever a state passes a law a federal judge doesn’t like, they claim the power to impose a nation-wide injunction. That’s not unlike what King George did.

Federal courts have dissolved state legislative acts repeatedly, for opposing with manly firmness the federal government’s invasions on the rights of the people.

The Re-Declaration of Independence

One thing a bully doesn’t want to hear is that there is someone stronger than they are. So it shouldn’t be a surprise that the federal government doesn’t like it when someone points out they were created as servants to the states and not the states’ masters. So I guess it also shouldn’t be a surprise when the federal courts, who are part of the federal government, push back when the truth isn’t to their liking.

The President has obstructed the Administration of Justice, by politicizing the appointment of judges, requiring their fidelity to certain opinions rather than the supreme law of the land.

The Re-Declaration of Independence

Not only has the President obstructed justice, but it appears there are those in the judicial branch willing to leak information to persuade the court. Not to mention those who have actually used vandalism and violence to intimidate the justices into changing their positions on a case.

The Senate has made Judges dependent on their Will alone, for appointment to their offices, and threaten them with impeachment for political reasons.

The Re-Declaration of Independence

Once again, we see members of the Senate upset with those they’ve appointed to the federal courts. Not because they didn’t adhere to the law, but because they didn’t adhere to the Senator’s or Senators’ political demands.

Congress

Congress has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people, and eat out their substance.

The Re-Declaration of Independence

People like to blame the bureaucratic state on the President. While these new offices, for the most part, do report to the office of President, they are creations of Congress. So when you heard about the Disinformation Governance Board, you should not only point your righteous anger at President Biden, but also on those who represent you in Congress.

For suspending the actions of our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.

The Re-Declaration of Independence

After the 2020 debacle, Congress has tried to take over the entire election process. They’ve also threatened to impose abortion laws on the states if the Supreme Court decides to return it to them.

The President

The President has refused to enforce laws protecting the borders of this nation, the States remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.

The Re-Declaration of Independence

Did you know that the Department of Homeland Security has plans to crack down on what they refer to as disinformation? No, I’m not talking about the suspended Disinformation Governance Board, I’m talking about the current National Terrorism Advisory System Bulletin:

Some domestic violent extremists have expressed grievances related to their perception that the U.S. government is unwilling or unable to secure the U.S.-Mexico border and have called for violence to stem the flow of undocumented migrants to the United States.  We assess that there is increased risk of domestic violent extremists using changes in border security-related policies and/or enforcement mechanisms to justify violence against individuals, such as minorities and law enforcement officials involved in the enforcement of border security.

National Terrorism Advisory System Bulletin

So it seems, if you point out that the current administration has not only not secured our nation’s borders, but enacted policies to invite even more illegal aliens to enter our country, then you could be a “domestic violent extremist”.

The President has kept among us, in times of peace, Standing Armies by militarizing our police forces.

The Re-Declaration of Independence

Yes, the President helped militarize our police forces. Now, through the NSA and the DHS, the federal government is spying on us just as easily as if they stationed troops in our homes. Unfortunately, that’s not all.

The President has combined with the Senate to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving their Assent to the Acts of pretended Legislation from the United Nations and entering into international agreements without the advice and consent of the Senate:

The Re-Declaration of Independence

What do you think the President was doing when his administration suggested amendments to the World Health Organization pandemic protocols? Biden is only one in a long line of Presidents, not to mention Congressmen, who have tried to subject us to a jurisdiction foreign to our Constitution.

The Bureaucrats

The labyrinth of bureaucratic departments and agencies have created confusing, contradictory, and ruinous regulations for the sole purpose of fatiguing the American people into compliance with their measures.

The Re-Declaration of Independence

I’ve heard people say that the average American commits three federal felonies a day. Not because they are criminals, but because of the labyrinth of confusing and contradictory regulations that pass for laws in America’s current administrative state.

For abolishing the free System of United States Laws, establishing therein arbitrary government agencies, and enlarging the Boundaries of their power so as to render it at once an example and fit instrument for introducing the absolute rule into these States:

The Re-Declaration of Independence

The CDC’s public transportation mask mandate, the private company vaccine mandate, and the recent public school transgender bathroom threat are all examples of these arbitrary and illegal acts of government.

The federal government has excited domestic insurrections amongst us by allowing it to go unopposed in cities across the land, and has endeavored to bring on the inhabitants of our borders, the merciless criminal cartels, whose known rule of warfare is an undistinguished destruction of all ages, sexes and conditions.

The Re-Declaration of Independence

Have you noticed how certain crimes are punished severely, while others are brushed aside? BLM and Antifa rioted and vandalized parts of Washington, D.C., and yet it appears no one was held accountable. However, a few demonstrators on January 6th, 2020 enter the capital, and not only is everyone who attended the demonstration labeled an insurrectionist, but Congress holds illegal committee meetings, including prime-time “shows”, with no legitimate or constitutional purpose whatsoever.

Conclusion

It seems the American people have not learned from their history. Rather we have reverted to a state of servitude similar to the colonies 1776. I wonder if, when those 56 men pledged their lives, fortunes, and sacred honor in support of the Declaration of Independence, they ever conceived that not only would the American people return to a life of dependence, but that we would do so willingly. Thankfully, this does not have to be our fate.

John Jay said:

Every member of the State ought diligently to read and to study the constitution of his country, and teach the rising generation to be free. By knowing their rights, they will sooner perceive when they are violated, and be the better prepared to defend and assert them.

John Jay, First Chief Justice of the supreme Court of the United States

If We the People will pick up the Constitution, read it, and study it, we’ll find that our subjection to Washington, D.C., is not the law, but a result of our own actions. Washington, D.C.’s power is as fake as the emperor’s clothes in the Hans Christian Anderson story. Isn’t it time others join me in pointing out just how naked the government in Washington, D.C. really is? I believe, with a little education and some fortitude, We the People can restore the order our Constitution created. Because if we fail to do so, the future is too bleak to consider.

© 2022 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

June 25, 2022

• Are the solutions to America’s problems in Washington, D.C.?
• Where can the American people find answers if not in Washington, D.C.?
• How can reading and studying the Constitution help you find those answers?

There are plenty of problems in America today, too many to number most likely. I’m frequently asked what we can do. Too often, it seems everyone is looking to Washington, D.C. for answers. By studying the Constitution, and a couple of Supreme Court opinions, I think we can find some answers a lot closer to home.

John Jay said:

Every member of the State ought diligently to read and to study the constitution of his country, and teach the rising generation to be free. By knowing their rights, they will sooner perceive when they are violated, and be the better prepared to defend and assert them.

John Jay – First Chief Justice of the Supreme Court

So let’s start our investigation by reading some clauses from the Constitution.

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, Clause 2

We need to start by understanding the Constitution is the supreme law of the land. Only laws of the United States made pursuant to the Constitution are considered the supreme law of the land. And if only the laws of the United States made pursuant to the Constitution are the supreme law of the land, it makes sense that any law not made pursuant to the Constitution is not the supreme law of the land. I know that seems obvious, but I have to be sure we’re all on the same page.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

U.S. Constitution, Amendment X

If the Constitution is the supreme law of the land, then when it says the powers not delegated to the United States by the Constitution belong either to the states or the people, that would supersede any law to the contrary. For example, when Congress passes a law to regulate something that’s not a power delegated to the United States (for example, health insurance), it’s not the supreme law of the land. Which raises the question: What do we do with a law that’s not the supreme law of the land?

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.

Not only is a law contrary to the Constitution not the supreme law of the land, it cannot be valid. Remember, every government position is an authority delegated either by the Constitution that created it or legislation created under the authority of a Constitution. By the way, it’s not just Alexander Hamilton, but the Supreme Court that says so:

Alexander Hamilton – Federalist Papers #78

Certainly all those who have framed written Constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an act of the Legislature repugnant to the Constitution is void.

Marbury v. Madison Opinion

Even the Supreme Court recognizes that legislatures cannot make valid laws that violate the Constitution. So who is responsible for determining if a law violates the Constitution? Most people think it’s the Supreme Court who determines if something is Constitutional or not. While the judicial power does extend to cases in law and equity arising under the Constitution, the federal courts are creations of the Constitution, not its master. So who is ultimately responsible to to keep the federal government within the powers delegated to it by Constituiton?

In the typical case we look to the States to defend their prerogatives by adopting “the simple expedient of not yielding” to federal blandishments when they do not want to embrace the federal policies as their own.

National Federation Of Independent Business v. Sebelius

The court expects the states to defend themselves. How? By not yielding to federal blandishments (attempts to coax them into compliance). If a law is not made pursuant to the Constitution, if it is not the supreme law of the land and the states are not required to abide by it. This is the first big clue about how we can rein in an out of control federal government.

State Sovereignty

The States are separate and independent sovereigns. Sometimes they have to act like it.

National Federation Of Independent Business v. Sebelius

The American people have forgotten, or maybe we’ve spent too many generations not teaching the fact, that when we declared independence we did not create a new country, but thirteen of them.

That these United Colonies are, and of Right ought to be Free and Independent States;

Declaration of Independence

It was the states that created the federal government when they ratified the Constitution. And as the Tenth Amendment confirms, any power not delegated to the United States generally remain with the states. It is not only the right of the states to push back when Washington, D.C. goes too far, but I would say it’s their duty. And that is the second clue of how we can rein in Washington, D.C. There is one more.

Separation of Powers

The Framers rejected the concept of a central government that would act upon and through the States, and instead designed a system in which the State and Federal Governments would exercise concurrent authority over the people. The Federal Government’s power would be augmented immeasurably and impermissibly if it were able to impress into its service-and at no cost to itself-the police officers of the 50 States

Printz v. United States

The idea that the federal government can order the states around is antithetical to the union of sovereign states the Framers of the Constitution created. Your Sheriff is the Chief Law Enforcement Officer (CLEO) of your county. They are elected by the people, and therefore serve the people. As the court stated:

We adhere to that principle today, and conclude categorically, as we concluded categorically in New York: “The Federal Government may not compel the States to enact or administer a federal regulatory program.” … The mandatory obligation imposed on CLEOs to perform background checks on prospective handgun purchasers plainly runs afoul of that rule.

Printz v. United States

The federal government cannot order the states, or CLEOs, to enact or administer a federal program. In other words, there are limitations to the powers of Washington, D.C. Couple that with an understanding of the limited and enumerated powers delegated to the United States and we can put together a formula to finally rein in this out of control federal government.

Conclusion

Putting all of these clues together, what can the American people do to regain control of the behemoth we call Washington, D.C.? Let’s review the clues.

First, the states need to remember that they are separate and independent sovereigns, not vassals of Washington, D.C. The states created the federal government to serve them, not the other way around. The states delegated to the federal government certain limited and enumerated powers, which means only the states have the legal authority to amend the Constitution to give them more.

Second, the states need to defend themselves against government overreach. Today it seems when government goes too far, all most states will do is sue in federal court. That’s like asking the bully’s sister to protect you. Sure, we may want the courts opinion, but that’s all it is: An opinion. We need to states to learn to stand their ground against Washington, D.C. Yes, they’ve made it harder when they ratified the 16th and 17th Amendments, but that doesn’t excuse those in our state governments who roll over every time a new edict comes out of Washington, D.C.

And lastly, our Sheriffs, the chief law enforcement officers, are bound by oath or affirmation to the Constitution of our states and the United States. They need to take up their responsibility to protect the rights of the people of their county.

Hopefully, the solution to an out of control federal government has become obvious. We need to have strong county and local governments, especially Sheriffs. We need to educate ourselves and our neighbors of the importance of our Sheriffs. If your Sheriff and their deputies will not protect your rights, then it’s time to find a better Sheriff. As people in neighboring counties place a premium on the fidelity to their oath of their local officials, they will naturally have an impact on their state governments. As more and more people are vetting their candidates for state offices based on how they fulfill their oath of office, our states will not only change, but can regain the fortitude to stand up to Washington, D.C. Finally, as more and more states restore themselves to their position as parties to the compact that is the Constitution of the United States, Washington, D.C. will take care of itself.

I am not suggesting that this will be a quick or easy fix, but if you look really closely, you will find you don’t need to be dependent on others to live free. You may not be able to make your county, state, or federal government constitutionally sound all by yourself, but you can live as a free citizen, especially when you remember the words of Abraham Lincoln:

The people — the people — are the rightful masters of both Congresses, and courts — not to overthrow the Constitution, but to overthrow the men who pervert it

Abraham Lincoln, [September 16-17, 1859] (Notes for Speech in Kansas and Ohio)

© 2022 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

June 20, 2022

• When does spend money become speech?
• Does Congress have the legal authority to regulate loans made by a candidate to their campaign?
• What are the long term consequences of the Bipartisan Campaign Reform Act of 2002

Have you ever considered how money relates to speech? The federal government has. One of the issues with federal election law is the limitation on the use of money for a candidate to get their message out. What does the case FEC v Cruz have to do with free speech? More important, what does it show about the state of elections in America?

During his 2018 reelection campaign, in compliance with federal law, Senator Ted Cruz loaned his campaign $260,000. To repay this loan, along with other campaign debts, federal laws allows campaigns to receive contributions after Election Day. According to Section 304 of the Bipartisan Campaign Reform Act of 2002 (BCRA), the amount of loans that a candidate can be repaid from the campaign is limited to $250,000. The Federal Election Commission (FEC) has promulgated regulations that allow the repayment of loans above the $250,000 threshold as long as repayment happens with 20 days of the election.

The campaign committee began repaying Mr. Cruz’s loans after the 20-day post-election window. It therefore repaid the maximum allowed by FEC regulation of $250,000. Mr. Cruz and the campaign committee filed suit in Federal District Court, alleging that this law violates the First Amendment. The District Court granted Mr. Cruz and the campaign committee’s request for summary judgement on their constitutional claim. The District Court held that the loan-repayment limitations burdens political speech without sufficient justification. The District Court also ordered the challenges to the regulation to be dismissed as moot. The federal government appealed this decision to the Supreme Court.

Supreme Court Opinion

Section 304 of BCRA burdens core political speech without proper justification.

Federal Election Commission V. Ted Cruz For Senate Et Al. Opinion

The court found that the loan repayment section of the Bipartisan Campaign Reform Act burdens “speech” without proper justification. Let’s dig into that a little further.

The loan-repayment limitation abridges First Amendment rights by burdening candidates who wish to make expenditures on behalf of their own candidacy through personal loans. Restricting the sources of funds that campaigns may use to repay candidate loans increases the risk that such loans will not be repaid in full, which, in turn, deters candidates from loaning money to their campaigns. This burden is no small matter. Debt is a ubiquitous tool for financing electoral campaigns, especially for new candidates and challengers. By inhibiting a candidate from using this critical source of campaign funding, Section 304 raises a barrier to entry—thus abridging political speech.

Federal Election Commission V. Ted Cruz For Senate Et Al. Opinion

In other words, the ability to use money in a campaign is a form of speech. I do see an indirect correlation, since campaign funds are used to fund speaking engagements, but does that directly link spending to speech? After all, isn’t it more accurate to say that limiting the ability to spend money abridges the freedom of the press?

The art or business of printing and publishing.

Press – Webster’s 1828 Dictionary

It’s not so much that money allows you to speak, but it allows you to publish your ideas.

To discover or make known to mankind or to people in general what before was private or unknown; to divulge, as a private transaction; to promulgate or proclaim, as a law or edict.

Publish – Webster’s 1828 Dictionary

By the court’s logic, all communication is considered speech. So any law that directly or indirectly deters communication is an abridgment of speech. However, the court has also long held that government can abridge speech, as long as it’s for a good enough reason.

The Government has not demonstrated that the loan-repayment limitation furthers a permissible goal. Any law that burdens First Amendment freedoms, even slightly, must be justified by a permissible interest.

Federal Election Commission V. Ted Cruz For Senate Et Al. Opinion

In other words, it’s not that Congress cannot pass a law that abridges speech, but that it must be for a goal the court finds permissible.

The only permissible ground for restricting political speech recognized by this Court is the prevention of “quid pro quo” corruption or its appearance.

Federal Election Commission V. Ted Cruz For Senate Et Al. Opinion

In this case, the government argues that repaying the candidate’s loan raises a heightened risk of corruption. I, like the court, don’t see how that could be so. First of all, the candidate is not simply asking for money from the campaign, but the repayment of a loan. If you lent someone money, but the government prevented them from repaying you the full amount simply because they had passed some arbitrary due date, you wouldn’t find that just, would you? Secondly, while the campaign can continue to collect contributions, which are used for, among other things, paying back loans to the campaign, those contributions are capped at $2,900 per election. That means that the loan repayment limitation of Section 304 is just another layer of regulation, and therefore, not necessary.

As a fallback argument, the Government analogizes post-election contributions used to repay a candidate’s loans to gifts because they enrich the candidate as opposed to the campaign’s treasury. But this analogy is meaningful only if the baseline is that the campaign will default.

Federal Election Commission V. Ted Cruz For Senate Et Al. Opinion

I love this one… paying back a loan is suddenly a gift. I think I’ll remember that the next time I borrow money from a bank. Congress basically is demanding that campaigns default on certain loans because they are afraid it might look bad.

The Rest of the Story

While the court focused on the impact of the Bipartisan Campaign Reform Act on campaign speech, I want to look at the constitutionality of the act itself. Does Congress have the legal authority to regulate campaign finances for the election of U.S. Senators?

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

U.S. Constitution, Article I, Section 4

The legislature of each state is supposed to set the time, places, and manner of elections for Senators and Representatives, but Congress may change the rules. Well, for everything but the place of choosing Senators, that is prescribed by the Constitution. Mr. Cruz was a U.S. Senator running for re-election, Obviously campaign finance laws do not involve the times or places of holding the election. But does the method of financing an election fall under that manner of holding elections?

Form; method; way of performing or executing.

Manner – Webster’s 1828 Dictionary

While I can see how financing could be part of how we execute elections, I think it’s pushing what the Framers of the Constitution meant. The idea that the power to determine the times, places, and manner of choosing Senators and Representatives would reside in Congress certainly was a concern during the ratification debates.

What can be more defective than the clause concerning the elections? The control given to Congress over the time, place, and manner of holding elections, will totally destroy the end of suffrage.

The Debates In The Convention Of The Commonwealth Of Virginia, On The Adoption Of The Federal Constitution.

Mr. Wythe of Virginia went so far as to suggest the following amendment be included in the Bill of Rights:

That Congress shall not alter, modify, or interfere in the times, places, or manner of holding elections for senators and representatives, or either of them, except when the legislature of any state shall neglect, refuse, or be disabled, by invasion or rebellion, to prescribe the same.

The Debates In The Convention Of The Commonwealth Of Virginia, On The Adoption Of The Federal Constitution

So then why do we still have this language in the Constitution? James Madison explained on the floor of the federal convention:

The necessity of a Genl. Govt. supposes that the State Legislatures will sometimes fail or refuse to consult the common interest at the expense of their local conveniency or prejudices. The policy of referring the appointment of the House of Representatives to the people and not to the Legislatures of the States, supposes that the result will be somewhat influenced by the mode, This view of the question seems to decide that the Legislatures of the States ought not to have the uncontrolled right of regulating the times places & manner of holding elections. These were words of great latitude. It was impossible to foresee all the abuses that might be made of the discretionary power. Whether the electors should vote by ballot or vivâ voce, should assemble at this place or that place; should be divided into districts or all meet at one place, shad all vote for all the representatives; or all in a district vote for a number allotted to the district; these & many other points would depend on the Legislatures. and might materially affect the appointments. Whenever the State Legislatures had a favorite measure to carry, they would take care so to mold their regulations as to favor the candidates they wished to succeed. 

The Records Of The Federal Convention Of 1787

While there were concerns about Congress setting the manner of electing Representatives, there was also concern that those chosen to represent the people would be manipulated by the state legislatures based on their power to regulate how they are elected. I guess the Framers planned on Congress keeping its meddling with state elections to a minimum.

Conclusion

Should the funding of political campaigns be regulated? I’m not 100% sure. On the one hand, the ability to purchase media coverage to get ones message out is important, but unlimited funding could also be used to corrupt an election. I suppose, if the American people weren’t so easily swayed by the blatant bribery of our current campaign strategies, then how they were financed wouldn’t be as much as a problem. On the other hand, placing the controls on campaign financing in the hands of those who are elected by those campaigns isn’t much better either. After all, history has shown that those in Congress will tend to use such laws to advantage the incumbents or those within their political party whenever possible.

Did the Bipartisan Campaign Reform Act of 2002 burden the free speech of candidates? I’m not sure I would say it burdened free speech, but it certainly did place a burden on their freedom of press. It therefore violated the First Amendment. So while I disagree with the court on the question of freedom of speech, I do agree that the BCRA violates the First Amendment.

I think this case brings up the question of financing elections. Let’s face it, things have changed since the 18th century. As more and more people have become professional politicians, the need to regulate how they campaign has grown. As power has accumulated in our political class, the corruption of the election process was sure to follow. And as money has flowed into political campaigns, the temptation to use donations purchase influence has been gone along with it. It appears John Adams was correct:

Our Constitution was made only for a moral and religious People. It is wholly inadequate to the government of any other.

John Adams to Massachusetts Militia, 11 October 1798

© 2022 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

June 13, 2022

• Several presidential administrations have created plans to take over the government and the nation in the event of an emergency.
• While secret, declassified notes from periodic reviews show that the Office of President has plans to overturn the Constitution and your rights if he thinks it’s necessary.
• While we are aware that these plans exist, not even Congress knows what is contained in many of these plans.

There’s a saying in many training communities, “The body will not go where the mind has not already been.” Another one you may have heard is the Five “P’s”, Proper Preparation Prevents Poor Performance. The idea is simple; if you do not prepare beforehand for a given situation, you will not be prepared when it happens. But what happens when government preparations move from proper to totalitarian?

Have you heard of “Presidential Emergency Action Documents” (PEADs)? More likely you’ve heard of a President’s “Emergency Powers”. These documents are plans created by various presidential administrations to prepare for various emergencies. Taking the form of exec­ut­ive orders, proclam­a­tions, and messages to Congress, the idea is that these PEADs can be put into effect on a moment’s notice. As with so many things in government, PEADs started as a good idea that has morphed into Sword of Damocles hanging over the rights so many of us cherish.

Presidential Emergency Action Documents

The Eisenhower administration had its own Sword of Damocles hanging over its head: Nuclear war. As part of the plans for the continuation of government in the event of a nuclear attack, President Eisenhower created the first of what became known as Presidential Emergency Action Documents. PEADs are classified as “secret”, and therefore the details are kept secret, not only from the public, but in many cases from Congress as well. However, these documents are periodically reviewed, and several de-classified notes from these reviews give us a hint at what’s inside. Research by The Brennan Center for Justice into previous PEADS gives us a glimpse into what presidents believe their “emergency powers” include.

• author­ized deten­tion of “alien enemies” and other “danger­ous persons” within the United States;
• suspen­ded the writ of habeas corpus by pres­id­en­tial order;
• provided for vari­ous forms of martial law;
• issued a general warrant permit­ting search and seizure of persons and prop­erty;
• estab­lished milit­ary areas such as those created during World War II;
• suspen­ded produc­tion of the Federal Register;
• declared a State of War; and
• author­ized censor­ship of news reports.

Let’s take a look at some of these assumed “powers” and where they came from.

President George W. Bush

For those of you who believe that the Republican Party’s goal is to protect your rights and liberty, I present the case of President George W. Bush. In 2004, 2006, and 2008, in the light of the 9/11 attacks, the George W. Bush Administration initiated a holistic review of their current PEADs. In response to a Freedom of Information, the George W. Bush Pres­id­en­tial Library turned over to the Brennan Center for Justice over 500 pages of information generated during the reviews. While the actual PEADs remain classified, the information gathered sheds a light on the disturbing powers a President may claim to have in an emergency.

Communications

Upon proclamation by the President that there exists a state or threat of war involving the United States, the President, if he deems it necessary in the interest of the national security and defense, may, during a period ending not later than six months after the termination of such state or threat of war and not later than such earlier date as the Congress by concurrent resolution may designate, (1) suspend or amend the rules and regulations applicable to any or all facilities or stations for wire communication within the jurisdiction of the United States as prescribed by the Commission, (2) cause the closing of any facility or station for wire communication and the removal therefrom of its apparatus and equipment, or (3) authorize the use or control of any such facility or station and its apparatus and equipment by any department of the Government under such regulations as he may prescribe, upon just compensation to the owners.

47 U.S.C. §606(d)

Under Article I, Section 8, Clause 11 of the Constitution of the United States, Congress is authorized to declare war, not the President. Yet here we see Congress once again delegating its power to the Executive Branch. Not only has Congress claimed the power to delegate its authority to another branch, but it claims the power to authorize that branch to violate the Constitution of the United States. The suspension of rules and regulation is one thing, but the closing or takeover of a private facility is a clear violation of the Fifth Amendment:

No person shall … be deprived of life, liberty, or property, without due process of law;

U.S. Constitution, Amendment V

Should the President unilaterally proclaim that we are at war, or merely that there is a threat of war, your access to information can be shutdown or controlled by government. This law was enacted in 1942, which is why it specifically references “facilities or stations for wire communication”. But would a President today extend such an understanding to include the Internet? After all, at some point all Internet communications passes through “wire”, either copper or fibre-optic. Notes from the review of these documents during the George W. Bush Administration shows that they believed this act grants very broad powers in such an emergency.

Source: George W. Bush Pres­id­en­tial Library

For those of us who make a living by communicating via these facilities, our businesses would suddenly be controlled by Uncle Sam, extending the theft of both liberty and property even farther. Just imagine the dystopian future where an administration already sending examples of “misinformation” to social media companies, have the power to directly control them.

Detentions

Shortly after the Supreme Court opinion in Boumediene v. Bush that recognized the rights of prisoners in Guantanamo Bay to have their detentions reviewed by a court, an internal memo from the Bush Administration showed that one of the PEADs was being reviewed in light of a recent opinion. While not positive proof, it certainly does imply that the administration had plans to suspend habeas corpus, a power the Constitution leaves in the hands of Congress, since it exists in Article I, where Congress is created. Furthermore, the privilege of Habeas Corpus can only be suspended in cases of rebellion or invasion, not in a “national emergency”.

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.

U.S. Constitution, Article I, Section 9, Clause 2

Travel

Did you know there is a law that allows the federal government to restrict travel to certain countries?

Unless authorized by law, a passport may not be designated as restricted for travel to or for use in any country other than a country with which the United States is at war, where armed hostilities are in progress, or where there is imminent danger to the public health or the physical safety of United States travellers.

22 U.S.C. §211a

Notes from the George W. Bush Presidential Library shows not only that they were aware of the law, but they highlighted it during their PEADs review. Doesn’t it make you wonder under what circumstances a President would be prepared to restrict travel? Would it be limited to foreign travel or would a President claim the power to restrict interstate travel as well?

National State of Emergency

Some of you may be thinking “OK, these are serious, but they’re only for national emergencies. We’re OK at the moment.” Wrong. America has been in a persistent state of “national emergency” since 2001.

A national emergency exists by reason of the terrorist attacks at the World Trade Center, New York, New York, and the Pentagon, and the continuing and immediate threat of further attacks on the United States.
Now, Therefore, I, George W. Bush,
President of the United States of America, by virtue of the authority vested in me as President by the Constitution and the laws of the United States, I hereby declare that the national emergency has existed since September 11, 2001, and, pursuant to the National Emergencies Act (50 U.S.C. 1601 et seq.), I intend to utilize the following statutes:…

Proclamation 7463—Declaration of National Emergency by Reason of Certain Terrorist Attacks, September 14, 2001

This proclamation has never been rescinded, so we are still in the state of “national emergency” that started with the 9/11 attacks.

A very funny thing happened on the way to this state of national emergency. You see, President George W. Bush proclaimed that, “by virtue of the authority vested in me as President by the Constitution and the laws of the United States, I hereby declare that the national emergency has existed since September 11, 2001”. Yet nothing in the Constitution delegates to the United States, much less its President, the power to declare a national emergency. Since that power is not delegated to the United States, and neither is it prohibited to the states, then that particular power remains with the states. Whether or not it should be a state power, can and should be discussed. Before such sweeping power is simply handed over to Washington, D.C., We the People, through our states, ought to put some restrictions and limitations on that power.

Conclusion

When does a President become a King?

An officer appointed or elected to govern a province or territory, or to administer the government of a nation. 

President, Webster’s 1828 Dictionary

The difference between a President and a King is more than just an election; after all, there is such a thing as an elected king. The role of the President is to administer the government. In the United States, the President’s power to govern is supposed to be limited by the Constitution and laws of the United States. Compare that to a king:

The chief or sovereign of a nation; a man invested with supreme authority over a nation, tribe or country; a monarch. Kings are absolute monarchs, when they possess the powers of government without control, or the entire sovereignty over a nation;

King, Webster’s 1828 Dictionary

So when the office of President becomes more than the administrator of government, when the office is invested with supreme authority, that office ceases to be a president and instead becomes a king. And when the office of President assumes absolute control over the government, creating laws and administrative courts, the President becomes an absolute monarch. When the President, with the stoke of a pen, can overrule the Constitution and laws of the United States, he morphs from an absolute monarch into despotic dictator.

America stands on the precipice. Multiple presidential administrations have set in place rules and orders to effectively take over and rule this country. They did this behind closed doors, not even letting Congress know what their plans are. All it would take is the right person and the right conditions, for someone in the office of President to declare a national emergency and activate these despotic powers. George Washington warned us:

The disorders and miseries which result gradually incline the minds of men to seek security and repose in the absolute power of an individual; and sooner or later the chief of some prevailing faction, more able or more fortunate than his competitors, turns this disposition to the purposes of his own elevation, on the ruins of public liberty.

George Washington’s Farewell Address, 1796

They say never let a crisis go to waste. Well, unless the American people wake up and regain control of their government, all it will take for freedom and liberty in America to disappear is the right crisis to present itself.

© 2022 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

June 6, 2022

• These two cases are examples of a persons rights being denied simply because of their heritage.
• These cases are examples of courts getting their decisions terribly wrong, with horrendous consequences.
• They should be a lesson to all Americans. If you place your trust in any branch of government, you may find your rights can disappear in the publishing of a bad opinion.

There are certain Supreme Court cases that are infamous, either for their import or their error. Miranda, Roe v. Wade, and Obergefell are just a few. Two of these cases are known simply as Dred Scott and Korematsu. These cases are not only examples of when the courts get things wrong, but of our nature to treat others as less than human.

In the Declaration of Independence, Thomas Jefferson gave us this iconic phrase:

We hold these truths to be self-evident, that all men are created equal

Declaration of Independence

Sadly, we have yet to live up to Jefferson’s vision. We have a history in America of treating certain people as less than human. We hear a lot about the enslavement of blacks, and some about the treatment of the Indians, but little about how the Chinese, Irish, Italians, Jews and others have been treated. You would hope that, at least before the court, justice would remain blind. The two cases we are looking at today show that injustice before the bench is nothing new.

Dred Scott v. Sandford

Most American’s have at least a passing familiarity with the Dred Scott case. Most of us were taught in school that this is the case where the court found that blacks were not citizens and had no rights.

A free negro of the African race, whose ancestors were brought to this country and sold as slaves, is not a “citizen” within the meaning of the Constitution of the United States.

Dred Scott v. Sandford

Are the rights protected by the Constitution limited to citizens of the United States?

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

U.S. Constitution, Article IV, Section 2, Clause 1

While there are privileges and immunities, such as voting, that are limited to citizens, other rights protected by the Constitution aren’t.

No person shall … be deprived of life, liberty, or property, without due process of law;

U.S. Constitution, Amendment V

The issue at hand did not rest solely on Mr. Scott’s race, but on his immigration status.

A State, by its laws passed since the adoption of the Constitution, may put a foreigner or any other description of persons upon a footing with its own citizens as to all the rights and privileges enjoyed by them within its dominion and by its laws. But that will not make him a citizen of the United States, nor entitle him to sue in its courts, nor to any of the privileges and immunities of a citizen in another State.

Dred Scott v. Sandford

Remember, this was 1856, before the 13th and 14th amendments. When Mr. Scott’s ancestors were imported as slaves, they were not granted citizenship. As such, Mr. Scott was not considered a citizen either. He was, however, a person, and should have had his liberty protected under the Fifth Amendment. That was not the case.

This precedent was overturned by the ratification of the Fourteenth Amendment:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 

U.S. Constitution, Amendment XIV, Section 1

Korematsu v. United States

Most people I talked to don’t recognize this case, even though they’re aware of Japanese internment during World War II. It all started when President Roosevelt signed Executive Order 9066:

Now, therefore, by virtue of the authority vested in me as President of the United States, and Commander in Chief of the Army and Navy, I hereby authorize and direct the Secretary of War, and the Military Commanders whom he may from time to time designate, whenever he or any designated Commander deems such action necessary or desirable, to prescribe military areas in such places and of such extent as he or the appropriate Military Commander may determine, from which any or all persons may be excluded, and with respect to which, the right of any person to enter, remain in, or leave shall be subject to whatever restrictions the Secretary of War or the appropriate Military Commander may impose in his discretion. 

Executive Order No, 9066

Let’s start with the obvious. There is no authority vested in the President of the United States to designate “military areas” within the United States. Article I, Section 8, Clause 17 delegates to Congress legislative power over federal property, including places purchased by the consent of the state’s legislature.

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings: . . .

U.S. Constitution, Article I, Section 8, Clause 17

Not only did this executive order claim powers not delegated to the United States, much less the President, it violated both the Fifth and Tenth Amendments to the Constitution.

No person shall … be deprived of life, liberty, or property, without due process of law;

U.S. Constitution, Amendment V

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

U.S. Constitution, Amendment X

This means that Executive Order 9066 is not only invalid, but void.

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.

Alexander Hamilton, Federalist Papers #78

Yet, just like today, that did not stop those in government from treating this illegal order as valid law. In response to President Roosevelt’s order, the Western Defense Command and Fourth Army issued the Civilian Exclusion Order No. 34:

Pursuant to the provisions of Public Proclamations Nos. 1 and 2, this Headquarters, dated March 2, 1942, and March 16, 1942, respectively, it is hereby ordered that from and after 12 o’clock noon, P. W. T., of Saturday, May 9, 1942, all persons of Japanese ancestry, both alien and non-alien, be excluded from that portion of Military Area No. 1 described as follows:

Civilian Exclusion Order No. 34

Under the Uniform Code of Military Justice, members of the military are required to follow all lawful orders. Since the President does not have the authority to “designate” areas as under military control, he cannot legally order someone to do so. Furthermore, Lt. General J.I. DeWitt, commander of the Fourth Army, violated both his oath and the law by depriving people of their liberty and property by excluding people of Japanese ancestry from any area. Civilian Exclusion Order 34 also required a member of each family report to a Civil Control Station, again, in violation of the Constitution and laws of the United States.

A responsible member of each family, and each individual living alone, in the above described area will report between the hours of 8:00 A. M. and 5:00 P. M., Monday, May 4, 1942, or during the same hours on Tuesday, to the Civil Control Station located at 920.
“C” Street Hayward, California

Civilian Exclusion Order No. 34

Those who reported and their families would be relocated to internment camps for the duration of the war. Fred Korematsu ignored the order to relocate, was arrested and convicted of violating the order. He sued, arguing that the executive order infringed on his liberty without due process of law and therefore violated his rights protected under the Fifth Amendment. Sadly, the Supreme Court did not see it that way.

We uphold the exclusion order as of the time it was made and when the petitioner violated it.  … In doing so, we are not unmindful of the hardships imposed by it upon a large group of American citizens.  … But hardships are part of war, and war is an aggregation of hardships. All citizens alike, both in and out of uniform, feel the impact of war in greater or lesser measure. Citizenship has its responsibilities, as well as its privileges, and, in time of war, the burden is always heavier. Compulsory exclusion of large groups of citizens from their homes, except under circumstances of direst emergency and peril, is inconsistent with our basic governmental institutions. But when, under conditions of modern warfare, our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger.

Korematsu v. United States

According to the Supreme Court, you have no rights except the ones government allows you to keep. The court talks about the hardships of war, but seems to ignore the Constitution of the United States or the concept of unalienable rights. This case is an example of the abuse of so called judicial review. The idea is that the courts can supersede your rights and the Constitution when there’s sufficiently compelling government interest. If the government doesn’t need to follow the supreme law of the land, then what good is it? What were those brave men fighting for, if not to protect the rights this government had denied to people based solely on their heritage? How can you expect your rights to be protected by such a so called ‘justice system’?

Conclusion

What do these two famous, or rather infamous, cases have in common? They denied rights to human beings because of their ancestry. While the precedent set in Scott was overturned by the Fourteenth Amendment, nothing has overturned the opinion in Korematsu. Laws that violated the supreme law of the land were used in both cases, and courts endorsed these travesties of justice.

Santayana said “Those who cannot remember the past are condemned to repeat it.” There is nothing we can do to change the past. However, by remembering the past we can learn from it and do whatever we can to prevent similar abuses from happening in the future. Yet here we are, watching while government officials pass repugnant laws and issue illegal executive orders to infringe on the rights of the American people. People are denied their liberty and property for not complying with an illegal government order. People are being denied their right to speak and to the press if they contradict the approved government narrative. Roosevelt’s executive order led to exclusion and internment and Biden’s orders have led to banishment from employment, public transportation, and healthcare. And let us not forget about the internment of those who challenged the validity of the 2020 elections. I wonder if future generations will look back at the laws and cases we’re dealing with today with the same disdain with which we hold these two cases?

© 2022 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

May 30, 2022

• Once you turn 18, you assume you’re an adult, right?
• California law doesn’t think so, at least when it comes to certain firearms.
• Believe it or not, the Ninth Circuit Court of Appeals told California that their restrictions on young adults purchasing center fire semiautomatic rifles was unconstitutional.

As children, we receive protection of our rights through our parents. But have you ever considered at what age you receive protections for your rights directly? Is it the same for all rights, or are there different ages when you receive protections for different rights?

The case Jones v. Bonta asked the question, when do you receive protections for your right to keep and bear arms? The answer out of the Ninth Circuit Court of Appeals may surprise you.

Background

California law strictly regulates the possession, ownership, and use of firearms in multiple ways. One of these laws requires anyone purchasing a firearm have a “firearm safety certificate” (“FSC”). The law does provide exemptions from the FSC requirement for people with hunting licenses, active and reserve law enforcement, and active or honorably discharged members of the military. California also prohibits the sale of almost all kinds of firearms to young adults (those ages 18-20), with a few exceptions. Long guns (those with barrels generally longer than 18″ and designed to be shot from the shoulder rather than the hand), can only be sold to young adults who have a hunting license, are active law enforcement, or are active or honorably discharged military. California also prohibits the sale of semiautomatic centerfire rifles to young adults except for those in law enforcement or active duty military.

Several young adults, gun shops, and advocacy groups filed suit in federal district court, claiming California’s regulations violated both the Second and Fourteenth Amendments to the Constitution of the United States.

The district court declined to preliminarily enjoin the laws, holding that Plaintiffs had not shown that they were likely to succeed on the merits, both because the laws did not burden Second Amendment rights and would likely survive intermediate scrutiny. The district court also held that Plaintiffs had not shown irreparable harm and that the balance of interests did not favor enjoining the laws.

Jones v. Bonta – Opinion

The district court noted that other courts found that these laws were both longstanding and do not violate the Second Amendment and are therefore assumed to be constitutional.

The district court then reasoned that “[i]ndividuals under the age of 21 were considered minors or ‘infants’ for most of our country’s history without the rights afforded adults” and therefore they are among those “believed unfit of responsible firearm possession and use.” … It did address the tradition of militia members who were under 21 years old, but reasoned this tradition actually supported the constitutionality of the laws… In the district court’s view, “[m]ilitia members were required to possess their own firearms if they complied with accountability and maintenance regulations” and thus the “strict rules surrounding militia duty” show that the “right to firearm possession came with obligations to ensure public safety.”

Jones v. Bonta – Opinion

Don’t you just love it when courts simply make up their own rules rather than following the law? Yes, for years in our nation’s history people under 21 were not allowed to vote, drink alcohol, or be expected to fight either in the military or the militia, but they were not considered ‘infants’.

1. A child in the first period of life, beginning at his birth; a young babe. In common usage, a child ceases to be called an infant within the first or second year, but at no definite period. In some cases, authors indulge a greater latitude, and extend the term to include children of several years of age.

Infant – Webster’s 1828 Dictionary

Since then, the Constitution now protects the right to vote and federal law protects the right to join the military once a person reaches 18 years of age. Also, look at the exemptions listed in the California law. If someone can be expected to safely operate a firearm in the military or law enforcement, why not as a civilian? Does joining one of those organizations suddenly increase a person’s maturity level, but nothing else does? Speaking of the militia, our nation’s history is replete with those under that age of 21 participating in the militia. Most famously would be John Adams’ son, John Quincy, who at the age of 8 performed military drills with the local militia. Yet the district court believes anyone under the age of 21 is “unfit of responsible firearm possession and use” unless they are in law enforcement or the military. The court did note that militia service before one’s 21st birthday was common, but reasoned that the “strict rules surrounding militia duty” were cause enough to show that the “right to firearm possession came with obligations to ensure public safety.” However, the obligations to public safety has nothing to do with militia service. If the issue were truly public safety, then the firearms safety certificate or hunting license, which I believe comes with a safety training requirement, should cover that need.

Second, because it found no burden on Second Amendment rights, the district court did not need to apply any tier of scrutiny. Still, “in an abundance of caution,” the district court also determined that intermediate scrutiny applied and that the laws likely survived it. Id.

Jones v. Bonta – Opinion

Since the district court found that infringing on the right of certain people to keep and bear arms somehow did not burden the Second Amendment, they figured they were done. However, in an effort to cover their backside, the court determined that this question should receive intermediate scrutiny. But what is this “scrutiny”?

Scrutiny

The legal definition of scrutiny is the level of proof a government or their agent must overcome in order to infringe on your constitutional rights. Basically, it’s how hard government has to work in order to overrule the Constitution. There are three levels of “scrutiny”, rational basis, intermediate, or strict. Rational basis means government only needs to show their actions are rational to a legitimate government interest. Under intermediate scrutiny, it must be shown that the law or policy furthers an important government interest. Under strict scrutiny, the law must be narrowly tailored and the least restrictive means to further a compelling government interest. Notice that all three levels of scrutiny are used to decide if the court will allow an infringement of a right protected by the Constitution, in direct violation of that supreme law.

Third, the district court held that Plaintiffs failed to show irreparable harm. … The district court observed that, after filing their amended complaint, Plaintiffs waited two months before moving for a preliminary injunction. It reasoned that this delay undermined finding irreparable harm. … “More importantly,” young adults could still get firearms, either under an exception, through a transfer from family, or by using them at shooting ranges.

Jones v. Bonta – Opinion

So the district court only believes a harm is irreparable if the complaint is immediately followed by a request for injunction? In the court’s eyes, it’s not a question of can the harm be repaired, but how quickly the person files suite that determines if it’s irreparable. Furthermore, the court noted that young adults weren’t prohibited from owning semiautomatic centerfire firearms, only in purchasing them. If that is the case, what is the purpose of the prohibition?

Finally, the district court also held that the balance of interests weighed against enjoining the laws, reasoning that “[t]he potential harm of enjoining a duly-enacted law designed to protect public safety outweighs Young Adults’ inability to secure the firearm of their choice without proper training.”

Jones v. Bonta – Opinion

A law may be enacted, but if it is repugnant to the Constitution, it is void. At least according the Alexander Hamilton in Federalist Paper #78 and the Supreme Court in that case Marbury v. Madison.

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.

Alexander Hamilton, Federalist Papers #78

Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument.

Marbury v. Madison Opinion

The irreparable harm the district court is talking about was committed when they failed to enjoin a law that is invalid and void. Also, since not every young adult may have the ability to acquire these types of arms because they do not have an exception or a family member to transfer it to them, there is no way to repair the harm this invalid law causes.

Ultimately, the Second Amendment protects the right of the people to keep and bear arms and refers to the militia. Young adults were part of the militia and were expected to have their own arms. Thus, young adults have Second Amendment protections as “persons who are a part of a national community.”

Jones v. Bonta – Opinion

The Second Amendment protects the right of the people to keep and bear arms. The question is, at what age does that protection transfer from the parents to their children? The minimum age of militia services at the time of the adoption of the Second Amendment was 16. The circuit court determined that since young adults could serve in the militia when the amendment was drafted, they were entitled to protection of their right to keep and bear arms, but only if they were, or had been, part of a militia. But that is not what the Second Amendment states.

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. 

U.S. Constitution, Amendment II

Yes, militias are necessary to keep our states free, but the right to keep and bear arms belongs to the people, not the “national community”. As the Ninth Circuit Court would note, the Supreme Court’s decision in District of Columbia v. Heller confirmed what had been understood throughout most of our history: That the “Second Amendment right is exercised individually and belongs to all Americans.”

Conclusion

In conclusion, the district court erred by holding that the California laws did not burden Second Amendment rights. It properly applied intermediate scrutiny to the long gun regulation and did not abuse its discretion in finding it likely to survive. But it erred in applying intermediate scrutiny to the semiautomatic rifle ban. And even if intermediate scrutiny applied, the district court abused its discretion in finding the ban likely to survive. Finally, the district court erred in its application of the irreparable harm factor. Thus, as to the long gun regulation, the district court’s order is AFFIRMED. And as to the semiautomatic centerfire rifle ban, the district court’s order is REVERSED. We REMAND the case to the district court for further proceedings consistent with this opinion.

Jones v. Bonta – Opinion

The Ninth Circuit Court split its decision. Yes, the requirement for a firearm safety certificate or a hunting license to a young person to purchase was, in in their opinion, constitutional, but the prohibition on the sale of semiautomatic centerfire rifles to them was not. I’m not sure why the court found that a person’s right to keep and bear arms deserves strict scrutiny in one instance, but only intermediate scrutiny in another. Maybe because California did not prohibit the purchasing of long guns in general, but only semiautomatic centerfire rifles?

Who knows if California will appeal this decision to the Supreme Court, or if that court would even take the case. This case does bring up three interesting questions I hope you will consider. First, at what age does the Constitution protect a persons rights directly, rather than through the parents? Second, should a persons right to keep and bear arms receive different levels of scrutiny based on how it is being infringed? And lastly, why did the State of California single out young adults and semiautomatic centerfire rifle purchases for this prohibition? It cannot be a safety question, since it was not illegal for young adults to own these arms, only to purchase them. Perhaps, if the people not only of California, but of all the states, can answer those questions, we will have fewer opportunities to worry about the courts allowing governments to infringe on our rights because they think they have a good reason to violate the supreme law of the land.

By Paul Engel

May 27, 2022

• When is flying a flag government speech, and when is it personal.
• Can a government official deny someone a public accommodation simply because it is religious?
• How can the opinion in this case impact freedom of speech across the nation?

When is flying a flag government speech? That was the question before the Supreme Court in the case of Shurtleff, et al. V. City Of Boston et al. Could the City of Boston refuse to fly a Christian flag? Was the city required to do so? Or did Harold Shurtleff have the right to fly the flag of his choice on public property? What does this mean for other Freedom of Speech cases around the country?

Background

This case all started with a policy the City of Boston adopted in 2005.

Just outside the entrance to Boston City Hall, on City Hall Plaza, stand three flagpoles. Boston flies the American flag from the first pole and the flag of the Commonwealth of Massachusetts from the second. Boston usually flies the city’s own flag from the third pole. But Boston has, for years, allowed groups to hold ceremonies on the plaza during which participants may hoist a flag of their choosing on the third pole in place of the city’s flag. Between 2005 and 2017, Boston approved the raising of about 50 unique flags for 284 such ceremonies. Most of these flags were other countries’, but some were associated with groups or causes, such as the Pride Flag, a banner honoring emergency medical service workers, and others.

Shurtleff, et al. V. City Of Boston et al. Opinion

Sounds like a nice public relations program. Allow groups to hold ceremonies in the plaza and raise a flag on one of the flagpoles. For twelve years, everything was fine.

In 2017, Harold Shurtleff, the director of an organization called Camp Constitution, asked to hold an event on the plaza to celebrate the civic and social contributions of the Christian community; as part of that ceremony, he wished to raise what he described as the “Christian flag.”

Shurtleff, et al. V. City Of Boston et al. Opinion

Sure enough, once someone asked to raise that scary Christian flag, the problems started.

The commissioner of Boston’s Property Management Department worried that flying a religious flag at City Hall could violate the Establishment Clause and found no past instance of the city’s having raised such a flag. He therefore told Shurtleff that the group could hold an event on the plaza but could not raise their flag during it. Shurtleff and Camp Constitution (petitioners) sued, claiming that Boston’s refusal to let them raise their flag violated, among other things, the First Amendment’s Free Speech Clause.

Shurtleff, et al. V. City Of Boston et al. Opinion

Like many in governments from the federal to the local, including the Supreme Court of the United States, Boston’s Property Management Department has a serious misunderstanding not only of the Establishment Clause, but of the First Amendment as a whole.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;

U.S. Constitution, Amendment I

Let’s start with the first five words, “Congress shall make no law…”. “Congress” is the proper noun for the national legislature, as established by Article I, Section 1, Clause 1 of the Constitution of the United States:

All legislative Powers herein granted shall be vested in a Congress of the United States,

U.S. Constituiton, Article I, Section 1, Clause 1

Since the law allowing the flying of flags over the Boston City Hall Plaza was not created by Congress, and since the City of Boston is not a part of the federal government, it cannot violate the Establishment Clause of the First Amendment. What the City of Boston should have been concerned with was Article’s II and XLVI of the Massachusetts Constitution:

It is the right as well as the duty of all men in society, publicly, and at stated seasons to worship the Supreme Being, the great Creator and Preserver of the universe. And no subject shall be hurt, molested, or restrained, in his person, liberty, or estate, for worshiping God in the manner and season most agreeable to the dictates of his own conscience; or for his religious profession or sentiments; provided he doth not disturb the public peace, or obstruct others in their religious worship.

Massachusetts Constitution, Article II

Section 1. No law shall be passed prohibiting the free exercise of religion.

Massachusetts Constitution, Article XLVI

Since Mr. Shurtleff claimed a violation of the Constitution of the United States, his case was heard in federal court.

The District Court held that flying private groups’ flags from City Hall’s third flagpole amounted to government speech, so Boston could refuse petitioners’ request without running afoul of the First Amendment. The First Circuit affirmed.

Shurtleff, et al. V. City Of Boston et al. Opinion

Which brings us to the case we’re reviewing today.

Government Speech

The question the Supreme Court was reviewing is whether or not the District Court was correct. Was flying a flag from City Hall’s flagpole government speech or not? If it was government speech, then the government had the right to control what was being said. If it was not government speech, then the City of Boston had violated Mr. Shurtleff’s rights by denying him his Freedom of Speech.

The boundary between government speech and private expression can blur when, as here, the government invites the people to participate in a program…

Applying this government-speech analysis here, the Court finds that some evidence favors Boston, and other evidence favors Shurtleff. The history of flag flying, particularly at the seat of government, supports Boston…

The question remains whether, on the 20 or so times a year when Boston allowed private groups to raise their own flags, those flags, too, expressed the city’s message.

Shurtleff, et al. V. City Of Boston et al. Opinion

In general, when a government fly’s a flag it is expressing a message. For example, flying the flag of another country means a foreign leader is visiting, while flying a flag at half-staff conveys a message of sympathy or somber remembrance. However, what happens when the government is not the one choosing the flag?

The circumstantial evidence of the public’s perception does not resolve the issue. The most salient feature of this case is that Boston neither actively controlled these flag raisings nor shaped the messages the flags sent. To be sure, Boston maintained control over an event’s date and time to avoid conflicts, and it maintained control over the plaza’s physical premises, presumably to avoid chaos. But the key issue is whether Boston shaped or controlled the flags’ content and meaning; such evidence would tend to show that Boston intended to convey the flags’ messages as its own. And on that issue, Boston’s record is thin.

Shurtleff, et al. V. City Of Boston et al. Opinion

Boston had told the public that it sought “to accommodate all applicants”, though apparently that did not extend to religion applicants.

Because the flag-raising program did not express government speech, Boston’s refusal to let petitioners fly their flag violated the Free Speech Clause of the First Amendment. When the government does not speak for itself, it may not exclude private speech based on “religious viewpoint”; doing so “constitutes impermissible viewpoint discrimination.”

Shurtleff, et al. V. City Of Boston et al. Opinion

Since the City of Boston had, among other things, specifically sought to accommodate all applicants, denying one simply because of their religious viewpoint violates the Free Speech Clause. Not of the First Amendment as Justice Breyer claims, but Article LXXVII of the Massachusetts Constitution:

The liberty of the press is essential to the security of freedom in a state: it ought not, therefore, to be restrained in this commonwealth. The right of free speech shall not be abridged.

Massachusetts Constituiton, Article LXXVII

Conclusion

I’m happy for Mr. Shurtleff. He got the correct answer, even if it was based on the wrong law. The City of Boston had violated Mr. Shurtleff’s freedom of speech. It’s just that since it was the City of Boston and not Congress who passed the law, it was a violation of the Constitution of Massachusetts and not the United States that Boston violated.

What does this mean for the rest of the country? Once again, the Supreme Court has substituted their own opinion for the supreme law of the land. While the outcome may have been the correct one, how can we trust that the court will get it right the next time? In the meantime, other government facilities should see that viewpoint discrimination is a violation of a person’s Freedom of Speech. This opinion was focused on the participation of religious viewpoints in public displays. The City of Boston uses flags, but what other public displays could this impact? If a city park can be used by groups to put up displays, can they deny a church the right to put up a nativity scene? Can a public school deny the saying of the Pledge of Allegiance because of the words “One nation under God” or the singing of Christmas carols? If the critical distinction is who controls the display, then the use of public property for religious displays shouldn’t raise a constitutional issue. I only hope that future government actors will recognize this fact.

© 2022 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

May 16, 2022

• What is a writ of habeas corpus?
• Why is your right to such a writ protected by the Constitution of the United States.
• What does this petition for a writ of habeas corpus mean, not only for the other January 6th detainees, but for everyone?

Finally! The first of those incarcerated for participating in the January 6th demonstration have petitioned for a writ of habeas corpus. What does this mean? What are the constitutional issues? And why should this be important to all Americans?

Habeas Corpus

Christopher Quaglin has petitioned the District Court for Washington, D.C. for a writ of habeas corpus. I will not be going into the details of Mr. Quaglin’s case in this article, that is fodder for another day. Rather, I want to focus on the writ itself and why it is so important to protecting our liberty. To understand what this petition means and why it is important, we need a basic understanding of what habeas corpus is.

[Latin, You have the body.] A writ (court order) that commands an individual or a government official who has restrained another to produce the prisoner at a designated time and place so that the court can determine the legality of custody and decide whether to order the prisoner’s release.

Habeas Corpus, The Free Legal Dictionary

In short, Mr. Quaglin is asking for his day in court. Specifically, he claims that he is being held illegally and he wants a court’s opinion on the matter. His petition accuses those in the federal prison system of some truly terrible treatment as justification of his request. So he is asking the court to issue an order for Merrick Garland as the U.S. Attorney General of the United States and Tell Hull as the Superintendent of the Northern Neck Regional Jail to bring him to court so he can make his case. This ability to petition for a writ of habeas corpus is protected by the Constitution of the United 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.

U.S. Constitution, Article I, Section 9, Clause 2

This is where we find that not only do words matter, but allowing people to manipulate them for their own gain is extremely dangerous. Since January 6, 2021, there are those in politics and the media who have claimed that the demonstration was an insurrection.

A rising against civil or political authority; the open and active opposition of a number of persons to the execution of a law in a city or state.

Insurrection, Webster’s 1828 Dictionary

January 6th was not a rise against civil or political authority. Neither was it an opposition to the execution of the law. Instead, it was a demonstration to require our elected employees in Congress to follow the supreme law of the land, the Constitution of the United States. Did some people enter the capitol? Yes. Did a few do damage? Yes. Was it an insurrection? No. Yet that has not stopped some from attempting to disqualify candidates for their participation in the demonstration. Neither was the demonstration a rebellion:

An open and avowed renunciation of the authority of the government to which one owes allegiance; or the taking of arms traitorously to resist the authority of lawful government; revolt.

Rebellion, Webster’s 1828 Dictionary

Since the demonstrators were protesting the illegal counting of votes from presidential electors who were not legally appointed, they were trying to uphold the government they owed allegiance to, not renounce it. The government of the United States was created by its Constitution, and is subject to the rules and restrictions documented within. In this day and age though, it appears many Americans won’t let little things like the law or the definition of a word get in the way of a political agenda.

Since there was no rebellion, no invasion, and the public safety was not threatened by Mr. Quaglin, I see no reason why the court should deny his petition. Then again, we stopped treating the Constitution as the supreme law of the land decades ago.

The Supreme Court has not definitively ruled as to whether a conditions of confinement claim is proper in habeas but has instead called it an open question. In lieu of a definitive ruling from the Supreme Court, circuit courts have stepped in to fill the void, One cohort of circuits favor of a conditions of confinement claims while others oppose it.

Quaglin v. Garland, et. al.

I have been asking attorneys for years if they studied the Constitution or Constitutional Law when they were in law school. To date, only one person said they studied the Constitution. The rest admitted that they studied the opinions of judges, euphemistically referred to as Constitutional Law. Which is why I was not surprised to see the lawyer who is representing Mr. Quaglin acting as if, without a definitive opinion from the Supreme Court (courts opine, thy do not rule), his client’s right to habeas corpus is in jeopardy.

History of Habeas Corpus

Many of you may know that President Lincoln suspended the right of habeas corpus at the beginning of the Civil War. What you may not know is the story around it.

On April 27, 1861, President Lincoln issued a proclamation suspending the right of habeas corpus for anyone held in a military facility by sentence of a military court martial or military commission. There were several problems with this proclamation.

First, nowhere in the Constitution is the President given the authority to suspend any legal protection. Since the language about suspending that right is in Article I, which both establishes and sets the rules for the legislative branch, it can easily be assumed that any act involving habeas corpus would come from that branch, not the executive. Some have pointed out that President Lincoln’s order was limited to military facilities and cases coming from military courts. However, even though the President is the Commander in Chief of the Army and Navy (Article II, Section 2), it’s Congress that has been delegated the power to make the rules and regulations for those entities (Article I, Section 8). Also, while the proclamation was limited to military courts, it was not limited to military personnel. The first challenge to Lincoln’s proclamation came rather quickly.

On May 25, 1861, John Merryman of Baltimore was arrested by Union troops and petitioned for a writ of habeas corpus. On May 26th, Chief Justice of the Supreme Court Roger B. Taney issued an order to General George Cadwalader, command of Fort McHenry, to produce Mr. Merryman for a hearing to justify his detainment. The General replied that he was acting under the orders of the President to suspend habeas corpus. Chief Justice Taney found that General Cadwalader was in contempt of court and ordered U.S. Marshalls to seize him and bring him before the justice. It shouldn’t be much of a surprise that the U.S. Marshalls were not allowed entry in to Fort McHenry, and were therefore unable to seize him. Chief Justice Taney filed a written opinion with the Circuit Court for the District of Maryland arguing that President Lincoln had no authority to suspend habeas corpus or to order military officers to do so. The controversy continued until Congress passed, and President Lincoln signed, the Habeas Corpus Suspension Act on March 3, 1863. For two years America had a suspension of constitutionally protected rights based solely on an illegal presidential order. Sound familiar?

While Lincoln was the only President I’m aware of who unilaterally suspended habeas corpus, that was not the last time it was illegally suspended. In 2006, Congress passed and President George W. Bush signed the Military Commissions Act of 2006. This legislation included a suspension of habeas corpus:

No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

S.3930 – Military Commissions Act of 2006

While this suspension of habeas corpus is usually attributed to President Bush, it was Congress that passed the legislation and the President only signed it. Since there was neither rebellion nor invasion in the United States in 2006, this act violated Article I, Section 9, Clause 2 of the Constitution, making it both illegal and void.

Conclusion

All this leaves us with the question of what the District Court for the District of Columbia will do? Will they recognize Mr. Quaglin’s right to have his detention reviewed by the court or will they look at the opinions of previous Supreme Courts and waffle? Time will tell.

Meanwhile, what does this mean for the rest of America? If a year of pretrial detainment, along with accusations of abuse and the denial of due process are not enough to have a case reviewed, what would happen to someone who stands up against an illegal action by a government agent? Can you be held indefinitely for not allowing police to enter your home without a warrant or for refusing to comply with an illegal mandate? Can you be labeled an insurrectionist or a rebel without proof? What good are your rights to due process if the process isn’t followed?

What happens if the court denies Mr. Quaglin’s petition? Will the American people meekly stand by and watch while a fellow citizen’s rights are trampled? If the American people will not stand up to protect the rights of this man, who do you think will stand up if and when you rights are ignored? To paraphrase Martin Neimoller:

First they came for the Trumpists, and I did not speak out—because I was not a Trumpist.
Then they came for the vaccine hesitant, and I did not speak out— because I was not vaccine hesitant.
Then they came for the January 6th demonstrators, and I did not speak out—because I was not a January 6th demonstrator.
Then they came for me—and there was no one left to speak for me.

© 2022 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

May 9, 2022

• Yes, the CDC’s mask mandate has been vacated, but it was not found unconstitutional.
• By pointing out that the CDC exceeded its statutory authority, the court effectively told the government what it needs to do in order to bring the mandate back.
• This has implications not just for public transportation, but for the ability of government to tell you how to live your life.

You’ve probably heard about the “ruling” from a U.S. District Court Judge in Florida that “struck down” the CDC’s mask mandate on public transportation. There has been plenty of discussion about what this means, how people have reacted, and the fact that the Biden administration is appealing this decision. What has been lost in most of the conversation is that the judge did not find the rule unconstitutional. What does this fact mean for the American people?

Background

Reading from the judge’s opinion, we get some of the background for this case.

As travelers have been reminded for more than a year, federal law requires wearing a mask in airports, train stations, and other transportation hubs as well as on airplanes, buses, trains, and most other public conveyances in the United States. Failure to comply may result in civil and criminal penalties, including removal from the conveyance. This masking requirement‐commonly known as the Mask Mandate‐is a Centers for Disease Control and Prevention (CDC) regulation published in the Federal Register on February 3, 2021.

HEALTH FREEDOM DEFENSE FUND,INC., et. al. v Biden et. al. Order

I’ve made my position on mandates clear in this column many times. I have flown with a mask, not because the government required it, but because a private company did so. Yes, they required the mask because of an illegal government order, but that was between them and the federal government. Since the airlines refused to stand up against these illegal orders, I have since stopped flying on commercial airlines.

What I want to focus on here is the case that was brought against Joe Biden and his CDC by Health Freedom Defense and others.

In July 2021, Sarah Pope, Ana Daza, and Health Freedom Defense Fund sued various government officials and the CDC, seeking a declaratory judgment that the Mask Mandate was unlawful and to have it set aside for violating the Administrative Procedure Act (APA)

HEALTH FREEDOM DEFENSE FUND,INC., et. al. v Biden et. al. Order

This is another example of why it is so important to go beyond the headlines. All of the reporting about a federal judge’s ruling (judges do not rule, they opine), who stuck down (not true either), the CDC’s mask mandate missed one very important point. The judge never found that the mandate was unconstitutional, because the suit against President Biden and the CDC never asked her to.

Statutory Authority

The CDC claimed that Congress gave them the authority to issue the mandate under the Public Health Services Act of 1944 (PHSA), 42 U.S.C. § 264(a).

Thus, if § 264(a) authorizes the Mask Mandate, the power to do so must be found in one of the actions enumerated in the second sentence. That sentence provides for “inspection, fumigation, disinfection, sanitation, pest extermination, destruction . . .and other measures.” § 264(a). A requirement that individual travelers wear a mask is not inspection, fumigation, disinfection, destruction, or pest extermination, and the government does not contend otherwise.

HEALTH FREEDOM DEFENSE FUND,INC., et. al. v Biden et. al. Order

The Public Health Services Act (PHSA) lists what the CDC can do to prevent the spread of communicable diseases. Mask mandates are not on that list. The CDC claims that this mandate falls under “sanitation”, and is therefore authorized by Congress.

Instead, it argues that the Mask Mandate is a“sanitation” measure or an “other measure” akin to sanitation.

The PHSA does not define “sanitation.” If “a term goes undefined in a statute, [courts] give the term its ordinary meaning.” … Courts often start with dictionaries. Given that the statute was enacted in 1944, the Court looks to dictionaries from the early and mid-20th century to begin its analysis. They provide two senses of sanitation that are relevant here. First, sanitation may refer to measures that clean something or that remove filth, such as trash collection, washing with soap, incineration, or plumbing. … Second, sanitation may refer to measures that keep something clean.

HEALTH FREEDOM DEFENSE FUND,INC., et. al. v Biden et. al. Order

Redefining words to get them to mean something that supports your position is standard practice in the legal profession. However, using a simple dictionary search, the court found that the CDC’s definition didn’t cover what they wanted it to do.

Put simply, sanitation as used in the PHSA could have referred to active measures to cleanse something or to preserve the cleanliness of something. While the latter definition would appear to cover the Mask Mandate, the former definition would preclude it. Accordingly, the Court must determine which of the two senses is the best reading of the statute.

HEALTH FREEDOM DEFENSE FUND,INC., et. al. v Biden et. al. Order

Administrative Procedures Act.

Since the judge dealt with the question of the mandate violating the Administrative Procedures Act (APA), we should look at that as well.

Notice and comment does not apply “when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” 5 U.S.C. § 553(b)(B). The Mandate invoked this exception to forego notice and comment. So, the Court must determine whether a thirty-day notice-and‐comment period was “impracticable, unnecessary, or contrary to the public interest.”

This exception “is to be ‘narrowly construed and only reluctantly countenanced.” …. It applies only “in emergency situations” or “where delay could result in serious harm.”

HEALTH FREEDOM DEFENSE FUND,INC., et. al. v Biden et. al. Order

Congress, when it illegally delegates its lawmaking authority to the executive branch, puts rules in place as to how an agency could go about making those rules. One of those requirements is that there be a 30-day period, so that the people would be aware of the new rule and have the opportunity to comment on it. It should be a surprise to no one that the federal government gave itself a way to get around these pesky rules. If the rules are “impracticable, unnecessary, or contrary to the public interest”, Congress said it was OK to ignore the notice and comment period. Of course, who determines what is and is not necessary or impracticable? Who decides what is in the public interest? According to the CDC, in this case, they do. But what did the court find?

Specifically, the APA requires that an agency invoking good cause “incorporate [its] finding and a brief statement of reasons” why it believes notice and comment is “impracticable” or “contrary to the public interest.” § 553(b)(B). Courts do not defer to the agency’s conclusion on good cause. … The Court’s review of the CDC’s determination that good cause exists “is limited to ‘the grounds that the agency invoked when it took the action.” … The Court “may not supply a reasoned basis for the agency’s action that the agency itself has not given.”

The Mandate asserted that “there [was] good cause to dispense with prior public notice and comment” because‐given “the public health emergency caused by COVID1 9 [‐] i t would be impracticable and contrary to the public’s health, and by extension the public’s interest, to delay the issuance and effective date of this Order.” … This statement, without more, is insufficient to establish good cause to dispense with notice and comment.

HEALTH FREEDOM DEFENSE FUND,INC., et. al. v Biden et. al. Order

In other words, the CDC said that there was good cause because, in their opinion, there was. Thankfully, the court disagreed. The APA also prohibits rules and regulations that are arbitrary and capricious.

Plaintiffs raise three arguments on why the Mask Mandate was arbitrary and capricious. First, Plaintiffs argue that the Mandate failed to comply with 42 C.F.R. § 70.2. Second, that the Mandate was substantively unreasonable. And third, that the Mandate failed to adequately explain the CDC’s reasoning. Because the Court agrees with Plaintiffs that the CDC failed to adequately explain its reasoning, the Court need not address whether the substantive decisions embodied in the Mandate were themselves arbitrary or capricious or whether the Mandate violated 42 C.F.R. § 70.2.

HEALTH FREEDOM DEFENSE FUND,INC., et. al. v Biden et. al. Order

In short, the court said that since they’ve already found that the CDC did not adequately explain its reasoning on bypassing the notice and comment period, they didn’t need to deal with the question of arbitrary and capricious.

Judge’s Conclusion

“ It is indisputable that the public has a strong interest in combating the spread of [COVID-19].”… In pursuit of that end, the CDC issued the Mask Mandate. But the Mandate exceeded the CDC’s statutory authority, improperly invoked the good cause exception to notice and comment rulemaking, and failed to adequately explain its decisions. Because “our system does not permit agencies to act unlawfully even in pursuit of desirable ends,” id., the Court declares unlawful and
vacates the Mask Mandate.

HEALTH FREEDOM DEFENSE FUND,INC., et. al. v Biden et. al. Order

Once again, we see the conflation of the federal government with the public. Whether or not we have a strong interest in combating the spread of COVID-19, that does not mean those in government have that interest as well. Based on the actual data from the CDC about the dangers of COVID-19, I could even dispute how strong that interest might be. In either case, the court found that the CDC had gone beyond the powers delegated to it by Congress and violated the laws regarding rule making. For that reason, the court “declared” (actually the judge opined), that the mandate was unlawful and therefore vacated it.

The one question that was neither asked nor answered was: Is the CDC’s mask mandate constitutional? Because, as the supreme law of the land, if the mandates are unconstitutional there is much more at stake than being forced to wear a mask on an airplane.

Constitutionality

For any act of Congress to be valid, it must be made pursuant to the Constitution.

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.

Alexander Hamilton, Federalist Papers #78

So if an act of Congress contrary to the Constitution cannot be valid, we must start there. The Tenth Amendment states:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

U.S. Constitution, Amendment X

Therefore, the first question that should be asked about any law is, does it exercise a power delegated to the United States by the Constitution? That includes the Public Health Services Act, 42 U.S.C. § 264(a).

The opening sentence of § 264(a) grants the CDC power to issue regulations that “in [its] judgment are necessary” to prevent the spread of communicable disease.

HEALTH FREEDOM DEFENSE FUND,INC., et. al. v Biden et. al. Order

Is the prevention of the spread of communicable diseases a power delegated to the United States? No. Is the regulation of public health delegated to the United States? No. Is regulation of public transportation a power delegated to the United States? Again, no. Some may claim that these powers exists under the General Welfare Clause, but that is not what the Constitution says:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States;

U.S. Constitution, Article I, Section 8, Clause 1

Not only is the general welfare in this clause limited to the United States (the proper noun of the union of states and exactly the same subject as in the Tenth Amendment), but this clause is limited to collecting taxes, not regulating them. As James Madison said in Congress in 1792:

If Congress can apply money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of religion into their own hands; they may establish teachers in every state, county, and parish, and pay them out of the public treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the union; they may assume the provision for the poor; they may undertake the regulation of all roads other than post roads; in short, every thing, from the highest object of state legislation, down to the most minute object of police, would be thrown under the power of Congress; for every object I have mentioned would admit the application of money, and might be called, if Congress pleased, provisions for the general welfare.

Bounty Payments for Cod Fisheries, [6 February] 1792

Others may claim that Congress and the CDC act under the Necessary and Proper Clause. Once again, that is not what the Constitution says:

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.

U.S. Constitution, Article I, Section 8, Clause 18

Congress only has the power to enact laws necessary and proper for executing the power the Constitution has vested in the government of the United States, not whatever they think is necessary.

So if the United States has not been delegated the power to regulate the public health or prevent the spread of communicable diseases, the PHSA is not a valid law and therefore void. Not only according to Mr. Hamilton, but the Supreme Court as well.

Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument.

Marbury v. Madison Opinion

Conclusion

As I asked at the beginning of this article, what does this mean for the American people? If the judge is correct and the only problem with the mask mandate is that it wasn’t implemented properly, then there is nothing stopping either the CDC or another agency from reinstituting it, as long as they follow the Administrative Procedures Act. If, on the other hand, I am correct and the PHSA itself is unconstitutional and therefore invalid and void, then We the People never needed to follow it in the first place. The CDC, the states and cities that run the airports, the airlines, and everyone else were following a law that did not legally exist. That makes it just like all those who were afraid to say anything when the emperor walked around with no clothes. It’s worse than that though, because they also committed a federal crime.

Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, … shall be fined under this title or imprisoned not more than one year, or both;

18 U.S.C. §242

For those who used violence in an attempt to get people to comply with this invalid order, things could get worse.

and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both;

18 U.S.C. §242

You may be asking, what rights, privileges, or immunities protected by the Constitution are violated by a mask mandate?

No person shall … be deprived of life, liberty, or property, without due process of law;

U.S. Constitution, Amendment V

If you are forced to wear a mask because of a law, statue, ordinance, regulation, or custom, you are being deprived the liberty to live your life as you see fit and the property you have in the control of your body. Since no one bothered to safeguard your rights during this process, you did not receive due process.

An established course for judicial proceedings or other governmental activities designed to safeguard the legal rights of the individual.

Due Process, The Free Legal Dictionary

These mandates are not based on a person’s actual infectiousness or danger to others. It simply assumes everyone is guilty of being a danger to others and therefore must have their rights restricted. Once again, we see that Founding Father John Jay was correct:

Every member of the State ought diligently to read and to study the constitution of his country, and teach the rising generation to be free. By knowing their rights, they will sooner perceive when they are violated, and be the better prepared to defend and assert them.

John Jay, First Chief Justice of the supreme Court of the United States

Perhaps, if we take this opportunity to learn our rights now, we can avoid such an infringement of them in the future.

By Paul Engel

May 3, 2022

• What rights do you have to defend your home against the illegal entry of law enforcement?
• When can you sue law enforcement officers for violating your rights?
• A recent case before the Supreme Court takes a step toward helping you sue when law enforcement and the justice system maliciously prosecutes you for defending your rights.

What can you do when government actors abuse their powers? I’ve talked before about the right to petition the government for a redress of grievance and how the judicial precedent of sovereign immunity violates that right. But what happens when law enforcement or the justice department abuses their prosecutorial powers? How do you seek redress for a malicious prosecution? For years it has been extremely hard to do so, but a recent Supreme Court opinion may balance the scales.

Thompson v. Clark, et. al.

The case we are looking at today is Thompson v. Clark, et. al. I want to look at this case from the point of view of all three sides: The parents, the emergency medical technicians (EMTs), and the police officers. The story starts with a misunderstanding.

On January 15, 2014, petitioner and Talleta (then his fiancée) were the proud parents of a one-week old daughter, Nala. That day, they brought Nala to her first check-up, where she received a clean bill of health. At around 10:00 p.m., the couple was at home and ready to sleep, dressed in only their underwear. Unbeknownst to the couple, Camille dialed 911. She stated that Nala often cries when petitioner changes her diaper and that she had seen “red rashes” on the Nala’s buttocks area (commonly known as, and later confirmed to be, diaper rash). Mistaking these for signs of abuse, Camille provided a description of petitioner and his address.

Thompson v. Clark, et. al. – Petition for Writ of Certiorari

As a parent, I have sympathy for Mr. Thomas and his then fiancee. They were preparing to go to bed when, unbeknownst to them, Talleta’s sister Camille calls 911, apparently mistaking crying and diaper rash as a signs of abuse.

In response, two Emergency Medical Technicians (“EMTs”) arrived to petitioner’s apartment building to investigate. The EMTs met Camille outside the building and she led them into petitioner’s apartment unit. Once inside, the EMTs saw Talleta sitting on the couch holding Nala safely. Petitioner entered the room and asked the EMTs why they were in his home. Unaware of Camille’s 911 call, petitioner informed the EMTs that no one in his home had called 911 and they must have the wrong address. Petitioner asked the EMTs to leave, and they did.

Thompson v. Clark, et. al. – Petition for Writ of Certiorari

A report of potential child abuse is taken very seriously, as it should be, so two EMTs were dispatched to investigate. At this point no one is aware of the misunderstanding, although the EMTs would later testify that, from their first encounter with Camille they noticed that she was not “all there upstairs.” Camille brings the EMTs into Thompson’s apartment where they do not see anything immediately wrong. To be fair to the EMTs, simply because they see the mother safely holding the child does not dismiss the possibility of child abuse.

When Mr. Thompson enters the room he is understandably confused. What are these two EMTs doing in his apartment? Not knowing that Camille had called 911, Mr. Thompson assumes they have the wrong address and asks them to leave. So far, no laws have been broken and the encounter has proceeded calmly, but that is about to change.

Respondents, four NYPD officers, arrived thereafter in response to the 911 call and met with the EMTs who had just been inside petitioner’s apartment. The EMTs reported that petitioner was upset to find them in his apartment and they left. They said they would “get in trouble” if they did not make contact with and examine the baby.

Thompson v. Clark, et. al. – Petition for Writ of Certiorari

This is where the tension begins to build. On the one hand, Mr. Thompson was understandably upset when he found two EMTs in his living room. He has a right to be secure in his own home. On the other hand, the EMTs have a report of possible child abuse that they need to investigate. Sadly, the four police officers escalate the situation unnecessarily.

Respondents went upstairs to petitioner’s apartment unit and petitioner answered the door. They told petitioner that they were investigating possible child abuse and wanted to examine his daughter. Petitioner asked to speak to respondents’ sergeant and, when they refused, asked respondents if they had a warrant to enter his home.

Thompson v. Clark, et. al. – Petition for Writ of Certiorari

At this point no laws have been broken. Mr. Thompson was well within his rights to require police to provide a warrant to enter his home, but look at the situation from the officers’ point of view. They have a report of possible child abuse, so we can assume they wanted to make sure the child was OK. With the power of law enforcement though, comes the responsibility of using it lawfully. It was still possible to resolve the issue calmly and peacefully. However, the police would rapidly escalate this from a report of possible child abuse to breaking and entering, assault, and unlawful detainment.

Respondents did not phone in a warrant; instead, they physically attempted to enter petitioner’s home. When petitioner stood his ground in the doorway, respondents tackled petitioner to the floor and handcuffed him.

Despite having restrained petitioner, respondents entered and searched petitioner’s apartment over his objection, without calling in a warrant. The EMTs then went back into petitioner’s apartment, examined his baby, and saw what they understood to be diaper rash, with no signs of abuse. The EMTs stated that the 911 call meant that they had to take petitioner’s baby to the hospital for evaluation, which later confirmed that it was only diaper rash.

Thompson v. Clark, et. al. – Petition for Writ of Certiorari

These four police officers committed crimes. While the report of possible child abuse gave them probable cause, it did not give them an exigent circumstance.

An exigent circumstance, in the criminal procedure law of the United States, allows law enforcement, under certain circumstances, to enter a structure without a search warrant … It must be a situation where people are in imminent danger, evidence faces imminent destruction, or a suspect’s escape is imminent.

Exigent Circumstance – The Free Legal Dictionary

The officers had no reason to believe the child was in imminent danger or that the parents were suspects who could escape. The officers had options that would allow the EMTs to check on the child without violating Mr. Thompson’s rights. They could have talked to Mr. Thompson, explained they had a 911 report, and were only concerned with the safety of the child. The officers could have contacted their sergeant for assistance. While they probably would have gotten their warrant if they had called for one, it would not be a valid one, since the probable cause for child abuse was not supported by oath or affirmation, as required by the Constitution.

… and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation…

U.S. Constitution, Amendment IV

So, in hindsight, the officers’ best options were to talk with Mr. Thompson or call their sergeant for assistance. Instead, they attacked Mr. Thompson without cause.

Although Mr. Thompson did refuse to grant the police entry into his apartment, he was well within his rights since they did not have a warrant. The fact that he challenged an illegal entry into his home does not give the police the authority to restrain him. Mr. Thompson was defending the law, while the police were the ones violating it.

Once the EMTs examined the baby they saw it was nothing but diaper rash. I’m not sure if New York law requires a hospital examination after a report of child abuse, but such a law would violate due process since it assumes the guardian is guilty until proven innocent. This was another perfect opportunity to de-escalate the situation. Instead, the police once again escalated it.

Respondents escorted petitioner out of his building in handcuffs and put him in jail for two days. According to respondents, petitioner’s mere refusal to let them into his home without a warrant to examine his child was sufficient basis to arrest and pursue charges for resisting arrest and obstructing governmental administration. 

Thompson v. Clark, et. al. – Petition for Writ of Certiorari

According to these four policemen, you have no rights in their presence. If you stand your ground when they try to violate your rights, they claim that’s “obstructing governmental administration”. Remember, the police had no legal authority to enter Mr. Thompson’s apartment since they had neither warrant nor exigent circumstance. Therefore, they were not administering a governmental act, they were violating it.

During the criminal proceedings that followed, Mr. Thompson denied any wrongdoing and declined any plea deals offered by the prosecution. After three months, the prosecution simply dismissed the charges, without any plea or compromise. Mr. Thompson was free to go, but he didn’t stop there.

After obtaining dismissal of the charges, petitioner filed this action under 42 U.S.C. § 1983 alleging that respondents violated his Fourth Amendment rights through warrantless entry of his home and by unreasonably seizing him pursuant to legal process (often described as a “malicious prosecution” claim, referring to the analogous common-law tort). Both claims survived summary judgment and proceeded to trial.

Thompson v. Clark, et. al. – Petition for Writ of Certiorari

Mr. Thompson sued in federal court claiming that the officers had violated at least two of his rights protected by the Fourth Amendment. Specifically, that the police entered his home without a warrant and seized him unreasonably. This is where things get a bit more sticky.

Malicious Prosecution

At trial, one of the principal disputes was whether petitioner had shown “favorable termination” of the criminal proceedings against him, as required to bring his § 1983 malicious prosecution claim. Relying on Lanning v. City of Glens Falls,… respondents argued that criminal proceedings have not terminated favorably unless they “affirmatively indicated that the plaintiff was innocent of the crimes charged.” According to respondents, because the dismissal here did not affirmatively establish petitioner was innocent of the crime charged, he could not claim unreasonable seizure.

Thompson v. Clark, et. al. – Petition for Writ of Certiorari

According the the police officers’ attorney, since the judge did not specifically say that Mr. Thompson was innocent, he could not claim unreasonable seizure. If that sounds ridiculous to you, that’s not a surprise, since it sounded ridiculous to Mr. Thompson’s attorney as well.

Petitioner objected, arguing that dismissal of the charges was “sufficient to show that the plaintiff has had the case dismissed in his favor.” He pointed out that petitioner had rejected the prosecution’s offer for even an adjournment in contemplation of dismissal, causing the prosecutor to unconditionally dismiss the charges. Petitioner argued that “the judge is not required to say you are innocent,” something that “never happens.” Petitioner contended that respondent’s position would be absurd, requiring people who are wrongfully and unreasonably accused of crimes to object when the prosecution attempts to dismiss the charges against them and insist on going to trial.

Thompson v. Clark, et. al. – Petition for Writ of Certiorari

The District Court, following precedent set by the Second Circuit Court of Appeals, found for the officers. Although, in the court’s opinion, they stated that the Second Circuit was wrong and set the insane requirement that an innocent person object to the charges being dismissed in order to go to trial to get a verdict so they could sue for malicious prosecution. While the District Court also dealt with the question of who had the burden of proof, the police or the home owner, in a case where exigent circumstances are claimed to make entry, the Supreme Court dealt only with the question of innocence in a malicious prosecution case.

Supreme Court

Justice Kavanaugh, who wrote the opinion, went all the way back to he American tort-law consensus as of 1871 to justify his opinion:

Held: To demonstrate a favorable termination of a criminal prosecution for purposes of the Fourth Amendment claim under §1983 for malicious prosecution, a plaintiff need not show that the criminal prosecution ended with some affirmative indication of innocence. A plaintiff need only show that his prosecution ended without a conviction. Thompson has satisfied that requirement here.

Thompson v. Clark, et. al. – Certiorari Opinion

The Supreme Court reversed the judgment of the Second Circuit Court of Appeals and sent the case back for further review.

Conclusion

While this is a win for Mr. Thompson, it is only a battle in his war. He has not won his case yet, but with the opinion of the Supreme Court, he will at least have a chance.

As often as I point out the arrogance and illiteracy of our federal courts, I think it only proper that I point out when they are right as well. To all of you who have heard me talk about the need to stand your ground when government agents act beyond the law, it does my heart good to see that, at least in this case, there’s a glimmer of hope that someone will receive a redress for their grievance when government officials attack.

© 2022 NWV – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

April 30, 2022

• What is a redress of grievance and why must it be protected?
• Can Congress or the courts grant immunity to companies, agencies, or individuals?
• What can the American people do to protect your right to petition government for a redress of grievance?

The First Amendment prohibits Congress from passing laws that abridge your right to petition the government for a redress of grievance. Yet not only has Congress ignored that restriction on their actions, but the federal courts have piled on as well. Today, I will look at what the right to petition means, how that has been violated, and what the American people can do about it.

The Right to Petition

The right to petition, at its core, is pretty simple.

PETI’TION, verb transitive To make a request to; to ask from; to solicit; particularly, to make supplication to a superior for some favor or right;

Petition: Webster 1828 Dictionary

You have a right to request your governments for a redress of a grievance, to correct some wrong. This can be in the form of petitioning your representatives or seeking redress in a court of law. To understand both the breadth and importance of the right to petition, we must first delve into the concept of sovereign immunity.

Sovereign Immunity

Sovereign immunity is a judicial doctrine that prevents the government or its political subdivisions, departments, and agencies from being sued without its consent. The doctrine stems from the ancient English principle that the monarch can do no wrong.

West’s Encyclopedia of American Law, edition 2. S.v. “sovereign immunity.”

The doctrine of sovereign immunity places those in government above the law by protecting them from lawsuit simply because they are, or work for, some government agency. The concept of, or at least the abuse of, sovereign immunity was one of the grievances given when the colonies declared independence.

For protecting [the military], by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States:

Declaration of Independence

Granted, it was grievance number fifteen out of twenty seven, but it’s there. The First Amendment included protecting this right to petition, but why? Because the principle of sovereign immunity is based on the principal that the sovereign cannot be wrong. In the United States of America though, no one is supposed to be above the law.

The Eleventh Amendment is often used as an example of the states having sovereign immunity. However, this amendment did not prevent the citizens of one state from suing another state, only from doing so in federal court.

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

U.S. Constitution, Amendment XI

No where in the Constitution have I found a clause that would protect governments or government actors from being sued or prosecuted for any crimes they may commit. Even Article I, Section 6, does not grant sovereign immunity to members of Congress:

The Senators and Representatives … shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

U.S. Constitution, Article I, Section 6, Clause 1

Members of Congress may still be arrested while in session for certain serious crimes such as treason or felonies, and there’s not a protection from arrest when they are not attending or going to or from their respective houses. This protection from arrest while working for the government is not granted to any employee of Congress or to any other branch of government. Courts, on the other hand, have been more than happy to grant this illegal protection to government employees, to the detriment of the people and the very concept of justice. Which leads us to the Supreme Court case Bivens v. Six Unknown Fed. Narcotics Agents

Bivens

When studying the current jurisprudence regarding sovereign immunity in the federal courts, the most common case cited is simply referred to as “Bivens“. In this case, Webster Bivens made the following complaint.

Petitioner’s complaint alleged that respondent agents of the Federal Bureau of Narcotics, acting under color of federal authority, made a warrantless entry of his apartment, searched the apartment, and arrested him on narcotics charges. All of the acts were alleged to have been done without probable cause. Petitioner’s suit to recover damages from the agents was dismissed by the District Court on the alternative grounds (1) that it failed to state a federal cause of action and (2) that respondents were immune from suit by virtue of their official position. The Court of Appeals affirmed on the first ground alone.

Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971)

The District Court dismissed the case for two reasons. First, that it failed to show a federal cause of action (right to seek judicial redress), and second, as federal agents, the respondents were entitled to sovereign immunity. The Court of Appeals agreed with the District court on the question of cause of action, but ignored the question of sovereign immunity. Since the Court of Appeals ignored the sovereign immunity question, so did the Supreme Court of the United States.

Having concluded that petitioner’s complaint states a cause of action under the Fourth Amendment, we hold that petitioner is entitled to recover money damages for any injuries he has suffered as a result of the agents’ violation of the Amendment. …

In addition to holding that petitioner’s complaint had failed to state facts making out a cause of action, the District Court ruled that, in any event, respondents were immune from liability by virtue of their official position. This question was not passed upon by the Court of Appeals, and accordingly we do not consider it here. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971)

So while both the Court of Appeals and the Supreme Court did not deal with the question of immunity, it was ultimately decided that, since Mr. Bivens did have a cause of action, he could sue for damages. Since the question of immunity was ignored by these courts, it has not only survived, but been modified by two interesting court cases.

Butz v. Economou & Nixon v. Fitzgerald

In his case, Economou sued federal officials after claiming that the Department of Agriculture instituted illegal proceeding against him, violating several of his constitutionally protected rights. Both the District Court and the Supreme Court agreed that while federal officers are not entitled to absolute immunity, they are entitled qualified immunity.

In the United States, qualified immunity is a legal principle that grants government officials performing discretionary functions immunity from civil suits unless the plaintiff shows that the official violated “clearly established statutory or constitutional rights of which a reasonable person would have known”.

Qualified Immunity- The Free Legal Dictionary

In the Nixon v. Fitzgerald case, Mr. Fitzgerald lost his job as a management analyst with the Department of the Air Force after testifying before a congressional subcommittee. Mr. Fitzgerald filed a complaint with the Civil Service Commission, which was rejected. Mr. Fitzgerald then filed suit in federal court against several Department of Defense officials, then amended the complaint to include Richard M. Nixon, who was President of the United States at the time of his termination. The Supreme Court found:

Petitioner, as a former President of the United States, is entitled to absolute immunity from damages liability predicated on his official acts.

Nixon v. Fitzgerald

The court went on to explain that while there is no blanket recognition of absolute immunity for federal officials, certain officials (such as judges and prosecutors), required an absolute exemption for liability. Meaning, that while these officials did not have absolute immunity for their actions, they did have immunity from federal lawsuits. Furthermore, the court noted that, due to separation of powers, the President had absolute immunity due to his office. The court also noted that absolute immunity was limited to his actions within the duties of his office, and that there were other mechanisms, such as impeachment, to redress Presidential misconduct.

One thing to remember is that these cases deal with immunity from civil suit, not criminal prosecution, and only for actions taken within the boundaries of their official duties. But what happens when Congress flagrantly violates your right to petition the government for a redress of grievance?

The Public Readiness AND Emergency Preparedness (PREP) ACT

Of the many illegal acts committed by governments at all levels in response to COVID-19, one of the most egregious was Congress’ attempt to abridge your right to petition your government for a redress of grievance, at least when it came to the question of vaccinations.

Subject to the other provisions of this section, a covered person shall be immune from suit and liability under Federal and State law with respect to all claims for loss caused by, arising out of, relating to, or resulting from the administration to or the use by an individual of a covered countermeasure if a declaration under subsection (b) has been issued with respect to such countermeasure.

42 USC § 247-6d – Targeted liability protections for pandemic and epidemic products and security countermeasures

In English, those who manufacture and administer certain “covered countermeasures” were immune from lawsuits. If you are injured by one of these products (say an mRNA vaccine designed to prevent the spread of COVID-19), you could not sue the manufacturer, the employer who coerced you into taking the shot, or the person who failed to inform you of the possible side effects. Even though it’s against both federal law and medical ethics to use coercion, failure to inform the recipient of possible side effects and of the fact that they can decline the treatment, in an attempt to get someone to take a product released under an Emergency Use Authorization (EUA), Congress claims to have given those involved blanket immunity for their criminal acts. Or have they?

Congress shall make no law … abridging … the right of the people … to petition the Government for a redress of grievances.

U.S. Constitution – Amendment I

Congress is forbidden from making a law that abridges your right to petition the government for a redress of grievance. That means that §247-6d of the PREP ACT is repugnant to the Constitution. And according to the Supreme Court of the United States, that means this law is void.

Certainly all those who have framed written Constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an act of the Legislature repugnant to the Constitution is void.

Marbury v. Madison Opinion

Conclusion

So what does this mean to all those who have been injured, either by these vaccines or the coercion to participate in a medical experiment, and believe they have no redress? For one thing, it shows the importance of John Jay’s admonition:

Every member of the State ought diligently to read and to study the constitution of his country, and teach the rising generation to be free. By knowing their rights, they will sooner perceive when they are violated, and be the better prepared to defend and assert them.

John Jay, First Chief Justice of the supreme Court of the United States

By knowing our rights, we can see this act of Congress is legally meaningless. It’s another tool we can bring to bear if and when we exercise our right and seek the redress that Congress wishes to deny us. It’s the preparation to both defend our rights and assert them, when those in government wish to deny them to us. Whether that person be in Congress, the President, a judge, or an agent of government, we need to not only know what our rights are, but how we can defend them.

If we wish to be citizens in a free republic, then we must stand with those who have been charged with defending our rights, instead of trampling on them. Unless you wish to live as a subject of a tyrannical government, one which acts as if those who work for it cannot be wrong, then we must join together to assist those who have been both injured by these drugs and denied their right to petition for a redress of their grievance. Congress, the President, and indeed governments and employers at all levels have broken the law. Who will be the first to pick up the sacred fire of liberty and make a stand? How many of us will stand with them?

© 2022 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

April 25, 2022

• Have you noticed that most of society tries to keep us focused on the President and the Federal Government?
• While everyone is looking toward Washington, D.C. to save us, they are not the only ones taking away your rights.
• Why should we focus on grassroots government rather than Washington, D.C.?

Misdirection is the stock and trade of both magicians and politicians. Over the years, the American people have been conditioned to focus on Washington, D.C. as both the source of our problems and their solution. In doing so, we are allowing those in our state and local government to steal our rights and our liberties right out from under our noses.

Property Laws

The list of infringements of your rights based on property laws are too numerous to go into detail here, but a few of the more egregious examples are worth looking at.

Let’s start with Civil Asset Forfeiture Laws. These state, and sometimes local laws, generally allow law enforcement to confiscate your property if they suspect it was used in, or came from, the proceeds of a crime. You do not need to be charged with a crime to have your property confiscated. In many jurisdictions, law enforcement charges your property with a laughable crime in an effort to get around those pesky constitutional protections of your rights. Many of these laws include “bounties” for the agency that confiscates your property, providing an incentive for them to do so.

Abuses of Eminent Domain, have been around for as long as people have owned property. One of the more famous examples is the case Kelo v. The City of New London, where the city condemned Ms. Kelo’s property in order to give it to the Bayer corporation to build a new complex. Most people who are aware of the case remember because it made it all the way to the Supreme Court of the United States in 2005, who sadly decided in favor of the city. Of course, that famous case would not have existed if the City of New London had not first tried to benefit by stealing Ms. Kelo’s property and her rights. Today, Fredericksburg Virginia is using tax foreclosures to transfer property to a private corporation that is run by the city manager, using a non-profit run by the city mayor.

Probably the most frequently used abuse of private property rights are state and local zoning laws. Sure, they claim these laws are to keep your property safe for you and others, but frequently these regulations are more about controlling your property than keeping you safe. How has the number of outlets in a room, how far back a structure must be from the property line, or what you are allowed to keep in your yard, become a question of safety? By far the worst of these offenders are Homeowners Associations (HOAs). These private organizations act like mini governments, often enforcing draconian control over what is ostensibly your property.

Children and Families

Schools are meant to be a place of education, for learning the fundamental skills needed to participate in a free society. As recent events have shown, government-run school systems seem more focused on indoctrinating the next generation into compliance with their agenda than teaching reading, writing, and arithmetic. While not the only example, recent events at the Loudon County School Board have certainly grabbed the attention of many Americans. The use of Critical Race Theory (CRT) based techniques and the promotion of the transsexual agenda has become rampant throughout the country. Loudon County came to national attention not so much because of what the schools were teaching, but because when many parents found out, they stood up and complained. More importantly, they did something about it, and it got news coverage. When the National School Board Association sent a letter to the Biden Administration asking for them to intervene, they referred to the complaining parents as “equivalent to a form of domestic terrorism and hate crimes.” Parents around the nation took notice. This took place during a gubernatorial campaign for the Commonwealth of Virginia. During a debate, the topic of the proper role of parents in curriculum decisions came up. Candidate Terry McCauliffe said:

“I’m not going to let parents come into schools and actually take books out and make their own decisions,” adding, “I don’t think parents should be telling schools what they should teach.”

Terry McAuliffe’s War on Parents – National Review

Loudon County is not alone in this problem. Multiple reports of teachers flagrantly violating state law to promote their political agenda, schools implementing CRT or transgender policies, attempts to hide from parents what their children are being taught, to outright coverups of the damage these policies are doing, are popping up all around the country.

Schools are not the only state and local government agencies after our rights. Some recent stories about the abusive actions of Department of Children and Families (DCF), Child Protective Services (CPS), and other social workers have been truly horrific. Accounts of social workers illegally entering homes based on unfounded complaints or even doctors using state agencies to punish parents who do not follow their advice is not uncommon. I can only imagine the nightmare of a parent answering a knock at the door only to find a social worker waiting for them.

Health and Medical Laws

Who decides what is the best medical treatment for you or your family? We often look at federal agencies like the Food and Drug Administration (FDA), the Centers for Disease Control and Prevention (CDC), or the National Institutes of Health (NIH), when we consider infringements of our right to make medical decisions for ourselves. But have you considered the role of state health laws and regulations over the medical industry? Remember, it was the states who first locked down their citizens in response to the COVID-19 scare. Many states and cities mandated masks and vaccines, shut down businesses, and even restricted treatments, all with little if any actual medical evidence of effectiveness of their decisions, and in direct violation of both the constitutions of the states and the United States. Even today, there are states and cities that still require masks and vaccines to fully participate in society. These states and cities are requiring that businesses become the enforcer of their illegal mandates or suffer crippling fines and legal actions.

It is also true the states, in conjunction with the federal government, often control what medications and procedures doctors can proscribe to treat their patients, demand invasive knowledge of your medical history, and place burdensome regulations on medical facilities under the failed assertion that they are needed to keep you safe. What many of these regulations actually do is not only restrict your access to medical treatment, but make it more expensive.

Food and Drug Laws

No wants to eat tainted food. But just how far are the states allowed to go in their efforts to protect us from the dangers of food? Does the state have the legal authority to tell you not to drink raw milk or to make it so expensive and cumbersome so as to all but ban it? Does that state have the legal authority to tell you what you should and should not eat, drink, or what “vices” you’re allowed to have? Does the state have the legal right to punish you with taxes for enjoying a glass of wine, a beer, or a smoke? Can they punish those who produce food products with ruinous regulations if we wish to sell the jams, honey, meats, vegetables, baked goods, or anything else produced in their homes? When did we delegate to the state the authority to tell us how to live our lives?

Licensing Laws

Some of the most onerous laws and regulations coming out of our state and local governments require us to beg their permission to exercise our rights. Before I was legally allowed to sell my books in Tennessee, I needed a license from the state to collect sales tax for them. In order to get my sales tax license, I needed a county business license. Now, every year I must renew my request to both the State of Tennessee and my county to do business and sell books within the state. And where there’s a license, there’s a tax, and that is just for selling products. Imagine the licensing regulations around healthcare or the legal profession, food preparation and services, tax and accounting services, electrical and plumbing installations, and even haircare, is licensed by the state. There are also licensing laws for operating different classes of motor vehicles, boats, aircraft, radios, and the carrying of arms. While these regulations are often promoted as necessary to keep us safe, there is little evidence that those government regulators are any less prone to the failures of mankind than anyone else. As recent history has made abundantly obvious, these laws seem more about controlling the people than keeping them safe. If you wish to try a medical treatment, provide legal counsel, or even exercise your rights to the property of your work or business in a way the state doesn’t like, all they usually have to do is threaten your license to get you to comply.

Election Laws

Most don’t realize it, but the American people do not vote in federal elections. Your vote for U.S. House, Senate, and even the Presidential Elector is actually a state election. That means that state election laws have a tremendous impact not only on your state, but the nation as a whole.

Take, for example, primary elections. Search the Constitution of the United States and you will not find a requirement for primary elections. In fact, the only place you will even find the word “primary” is in the Twenty Fourth Amendment’s protections against being denied the right to vote for not paying taxes.

Have you ever taken the time to consider what primary elections are and why we have them? Primary elections and caucuses are taxpayer funded elections for private organizations. Political parties are not part of government, they are private non-profit corporations, not unlike The Red Cross, the NAACP, or NRA. Now imagine your governor announcing that the state will be holding, at taxpayer expense, elections for the board of one of those non-profit corporations? How would you react to that? As we approach yet another election season, your state has probably already spent millions of dollars in preparations to hold elections for private organizations. That’s not all, because we also have to answer the question: “Why do we have primaries?”

If you think about it, the main purpose of primary elections is for the political party to choose their champions, thereby limiting your choices in the actual election. In the last two presidential elections, Bernie Sanders was the leader in the primaries for the nomination of the Democratic Party, only to have the party influence the process to choose someone else. While not as blatant, the Republican Party has also used behind the scenes machinations to influence who the eventual nominee is. The primaries themselves and their political manipulations ultimately have a single goal: To limit your choices at the ballot box. While you could legally vote for electors for Bernie Sanders in either the 2016 or 2020 election, the laws in your state made it all but impossible to effectively do so. This means your choices of who to vote for were limited to the candidates the parties have chosen as their champions.

Freedoms of Religion, Speech, and Press

Most people, especially lawyers and judges, ignore the fact that the First Amendment to the Constitution of the United States protects you from federal infringement of certain rights. However, the constitutions of our states prohibit infringement on your right to freedom of religion, speech, press, to peaceably assemble, and to petition your government. Yet all across this country, state and local laws, regulations, and ordinances infringe on these rights every day.

State and local governments pass Sexual Orientation and Gender Identity (SOGI) laws, which claim the authority to force business owners to hire people or accept commissions that violate their religious beliefs. Often these SOGI laws criminalize certain speech or the publication of certain criticisms in order to avoid offending others, while ignoring the offense they themselves are imposing.

Zoning and other regulations are used to prevent churches and religious schools from being established, home bible studies from taking place, or even regulating what displays you can have in public places. Other laws criminalize speech in certain areas, like around abortion clinics, public parks, and even certain government buildings. Many state colleges and universities go so far as to prohibit free speech except in limited, often secluded, locations, only at certain times, and only with a reservation.

What Can We Do?

We are in a war for the soul of America. Is the Constitution of the United States the supreme law of the land or not? Are governments created to protect our rights or to provide for us? Are the American people citizens in a constitutional republic or subjects of a political class? Will America continue as the land of the free and the home of the brave, or will it fall into the land of the ruled and the home of the fearful? Those issues are what is at stake in this war. If rights, freedom, and liberty are to prevail, then we must have a plan.

The first step in protecting your rights is to remember the magician’s trick. Don’t focus on what they are telling you is important, but observe what is going on around you. That means looking for and listening to multiple points of view, not just those you agree with. It also means looking beyond your groups, associations, and political parties to see what is truly worth your attention.

Second, we need to develop a good battle plan. One that focuses both on our strengths and provides us the best protections against those who wish to take away our rights. Washington, D.C. and our state houses are the front lines in this war, while our county, city, and district are our home base. If we do not protect our home bases, any wins we may have on the front lines will be little comfort while hearth and home fall.

I spend a lot of time writing, speaking, and traveling this nation to help people learn about the Constitution, our rights, and our liberties. I can only do that if I can trust that my family is safe at home. Which is why I focus on holding my county office holders accountable to their oaths of office. When I first met with my Sheriff, my opening question to him was to make sure his deputies were being trained that their first duty was to protect the rights of everyone they encounter. Later, when I asked if his deputies would arrest trespassers, even if they were working under federal orders, his answer was yes. I’ve been told that, when asked if he would enforce unconstitutional mask or vaccine mandates, he laughingly answered no. This gives me some peace of mind, especially when I’m away from home, that my family’s rights will be protected.

There’s more to this local first plan of protecting our rights. I have much more influence on county office holders than I do at the state or federal level. I have met with my Sheriff and candidates for county office. I have meetings planned with other county officials as well, and they were very easy to schedule. Getting meetings with state officials is a bit more difficult. While my state representative is moderately responsive to my questions, my inquiries to my state senator frequently go unanswered. When it comes to my federal representation, both in the House and the Senate, so far all I’ve received are pre-canned form letters. This shows that the people’s strength is greatest at the local level. This is why the framers of the Constitution delegated limited powers to the federal government, reserving most of the rest to the states.

You may be asking, what good is protecting our counties when our state and federal governments are so corrupt? I point you back to my comment about the Sheriff. Would his deputies protect the rights of everyone involved? If me and my neighbors can make sure our county government is protecting our rights, that protects us. If those in neighboring counties make sure their county government does the same thing, we can have an impact on our state government. Not only will we be more likely to choose people to represent us who will abide by their oath to support the constitutions of both our state and the United States, but we will be better equipped to hold them accountable. If my neighbors and I can have an impact on our state governments, then you and your neighbors can have an impact on yours. And when more and more states, both governments and citizens, are protecting the people’s rights, then Washington, D.C. will take care of itself.

They say the only way to eat an elephant is one bite at a time. If we want fix what is going wrong in America, we must start by chewing on our county governments. If the journey of 1,000 miles begins with but a step, then your first step should be to your county courthouse or city hall.

© 2022 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

April 13, 2022

• Do governments have the legal authority to dictate employment decisions to private organizations, especially religious ones?
• Does the Supreme Court of Washington have the power to ignore the law and dictate to a gospel mission who they have to employ?
• Why did the Supreme Court of the United States refuse to hear this case?

Imagine your rights are under attack. You seek assistance from those who have sworn to protect you, only to be attacked again. You reach out to what you think is your last hope, only to be rebuffed. Now consider how that must feel: To be abandoned by those who have sworn to protect you.

This is the situation Seattle’s Union Gospel Mission finds itself in. Their freedom of religion is under attack, not by the laws of the State of Washington, but by a disgruntled job applicant. The Supreme Court of Washington placed their political preferences above their oath to support the Constitution of the State of Washington. Then, when the Mission seeks redress from the Supreme Court of the United States, they are rebuffed. Their cold consolation is the statement by two justices: That the court may have to deal with this infringement in the future. I’ve asked this before and I’ll ask it again: Do you truly have Freedom of Religion when those who have sworn or affirmed to protect it fail to do so?

Background

This story starts with a gospel mission in Seattle Washington.

Petitioner Seattle’s Union Gospel Mission (Mission) was founded in 1932 to care for those suffering from the economic hardships attending the Great Depression. … The Mission is a tax-exempt community categorized as a church equivalent by the Internal Revenue Service under 26 U. S. C. §170(b)(1)(A)(i). It requires its paid staff to affirm its statement of faith, which declares “the Bible is the inspired, infallible, authoritative Word of God.” … Its employee handbook also requires staff to abide by the Mission’s understanding of the Bible by refraining from “[a]cts or language which are considered immoral or indecent according to traditional biblical standards,” including “extra-marital affairs, sex outside of marriage, [and] homosexual behavior.” …

SEATTLE’S UNION GOSPEL MISSION v. MATTHEW S. WOODS – Denial of Certiorari

By any reasonable definition, the Union Gospel Mission in Seattle is a religious based organization. They require all paid staff to affirm their statement of faith, and their employee handbook’s standards of conduct was quite clearly biblically based. Enter Matthew Woods.

In 2016, respondent Matthew Woods, a former summer intern and volunteer for the Mission, saw a job posting for a staff attorney position in the Mission’s legal aid clinic. He disclosed to the legal aid clinic’s staff that he identified as bisexual and was in a same-sex relationship, and he asked whether that would pose an obstacle to employment with the Mission. … The clinic’s director quoted the employee handbook and explained that Woods was not “able to apply,” but the director wished him well and later sent Woods a secular legal aid clinic’s job posting. …

Woods nevertheless applied for the Mission’s staff attorney position to “protest” the Mission’s employment policy. … His application also disclosed that Woods was not an active member of a local church and could not provide a pastor’s name and contact information, as the application requested. Woods’s cover letter asked the Mission to “change” its religious practices. …

After he applied, the clinic’s director met Woods for lunch and confirmed that the Mission could not change its theology. … He explained that Woods’s employment application was not viable because he did not comply with the Mission’s religious lifestyle requirements, did not actively attend church, and did not exhibit a passion for helping clients develop a personal relationship with Jesus. The Mission hired a co-religionist candidate instead.

SEATTLE’S UNION GOSPEL MISSION v. MATTHEW S. WOODS – Denial of Certiorari

There is a lot here, so let us unpack it point by point. First, the Mission clearly did not discriminate against Mr. Woods in general, since he was allowed to volunteer. The Mission, as a religious organization, has certain standards when it comes to paid staff. They did not hide this, neither did they change their position after Mr. Woods applied. In fact, the clinic’s director went so far as to find another legal aid clinic job posting that would appear to be a better fit for Mr. Woods.

Second, Mr. Woods applied for a position that he knew he was unqualified for, specifically as a protest against the Mission’s employment policy. In other words, he was not simply seeking employment, neither was he invested in advancing the Mission’s stated purpose. Rather, he was mad at being denied a job because of his sexual preferences and wanted to get back at them. In other words, Mr. Woods, by specifically asking the Mission to change there religious practices to accommodate him, was attempting to coerce the Mission and to deny them their religious freedom.

In 2017, Woods filed suit against the Mission in the Superior Court of King County. He alleged that the Mission violated Washington’s Law Against Discrimination (WLAD), which forbids discrimination against sexual orientation in employment decisions. The Mission answered that entertaining the suit would violate the First Amendment’s Religion Clauses. The Mission also argued that it fell into an express statutory exemption from the WLAD, which excludes “any religious or sectarian organization not organized for private profit” from its definition of “employer.” … The Washington state trial court agreed, noting that the Mission “put applicants on notice” that employees must “accept the Mission’s Statement of Faith” and that the staff attorney’s duties would “extend beyond legal advice to include spiritual guidance and praying with the clients.” … The trial court thus dismissed the suit based on the WLAD’s statutory exemption.

SEATTLE’S UNION GOSPEL MISSION v. MATTHEW S. WOODS – Denial of Certiorari

By filing suit against the Mission, Mr. Woods not only wishes to deny them their freedom of religion, but his coercion rises to the level of extortion. He is effectively saying, “Comply with my wishes, or else.” Mr. Woods claims that the Missions employment practices violate Washington State’s law against discrimination, which states:

This chapter shall be known as the “law against discrimination.” It is an exercise of the police power of the state for the protection of the public welfare, health, and peace of the people of this state, and in fulfillment of the provisions of the Constitution of this state concerning civil rights. The legislature hereby finds and declares that practices of discrimination against any of its inhabitants because of race, creed, color, national origin, citizenship or immigration status, families with children, sex, marital status, sexual orientation, … are a matter of state concern, that such discrimination threatens not only the rights and proper privileges of its inhabitants but menaces the institutions and foundation of a free democratic state. A state agency is herein created with powers with respect to elimination and prevention of discrimination in employment, …

Revised Code of Washington §49.60.010

Yes, the Revised Code of Washington does list sexual orientation as a protected class, and that the state has created an agency to eliminate and prevent discrimination in, among other things, employment. Therefore, it’s illegitimate for a person to exercise their rights to deprive the rights of another. Which is why the Washington law against discrimination includes this language.

“Employer” includes any person acting in the interest of an employer, directly or indirectly, who employs eight or more persons, and does not include any religious or sectarian organization not organized for private profit.

Revised Code of Washington §49.60.040 (11)

Remember, Mr. Woods does not have a right to a specific job. What he is doing is attempting to use his freedom of sexual preferences to infringe on the freedom of religion of those who run the Mission. This is not a discussion of whether or not Washington’s law against discrimination is legitimate or not, and it is unfortunate these types of laws are frequently used to deny the rights of religious organizations around the country. Since it clearly states that religious non-profit organizations are not considered employers under this law, it seems pretty clear that the Washington Legislature wished to protect the religious freedom of these entities. The Superior Court of King County agree, noting that the Mission was quite up-front and straight-forward with their standards for paid staff. Sadly, Mr. Woods decided not to leave it there.

The Washington Supreme Court granted Woods’s petition for direct review and reversed. The court held that as applied to Woods’s lawsuit, the WLAD’s religious exemption would violate protections for sexual orientation and same-sex marriage implicit in the Washington Constitution’s Privileges and Immunities Clause, Art. I, §12, unless the court narrowed the scope of the WLAD religious exemption. It thus reasoned that the State Constitution would not be “offended if WLAD’s exception for religious organizations is applied concerning the claims of a ‘minister’ as defined by Our Lady of Guadalupe and Hosanna-Tabor.”

SEATTLE’S UNION GOSPEL MISSION v. MATTHEW S. WOODS – Denial of Certiorari

Notice what the Washington Supreme Court did: They effectively rewrote the law, removing from the definition of employer the exemption for religious organizations and applying it solely to religious ministers. They found that Washington’s law, as applied to this case, would violate Article I, Section 12 of the Washington Constitution:

No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations.

Washington Constitution, Article I, Section 12

It is, in fact, Washington’s law against discrimination that singles out classes of citizens for privileges or immunities. Furthermore, by placing sexual orientation above religious belief, the Washington Supreme Court has further granted special privileges to a class of citizen. If any corporation has been granted immunities by this law, it’s only to comply with Article I, Section 11, which the court seems to have completely ignored:

Absolute freedom of conscience in all matters of religious sentiment, belief and worship, shall be guaranteed to every individual, and no one shall be molested or disturbed in person or property on account of religion; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace and safety of the state. …

Washington Constitution, Article I, Section 12

Here, the court effectively declared that religious organizations that require staff to follow their religious teachings is either licentious or inconsistent with the peace and safety of the state. Only those holding offices that the state considered religious would be protected for their beliefs.

Certiorari

The Supreme Court of the United States denied the Mission the opportunity to have them hear this case. Justice Alito did release a statement, which Justice Thomas joined:

The First Amendment gives “special solicitude to the rights of religious organizations” to operate according to their faith without government interference. Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, … In certain contexts, this autonomy requires courts to “stay out of employment disputes involving those holding certain important positions with churches and other religious institutions.”… Consistent with this constitutional principle, Congress has long exempted religious employers from federal employment laws that would otherwise interfere with their ability “to define and carry out their religious missions” by imposing “potential liability” for hiring practices that favor co-religionists. Because of such federal statutory exemptions and their state analogs, we have yet to confront whether freedom for religious employers to hire their co-religionists is constitutionally required, though the courts of appeals have generally protected the autonomy of religious organization to hire personnel who share their beliefs.

SEATTLE’S UNION GOSPEL MISSION v. MATTHEW S. WOODS – Denial of Certiorari

Justice Alito notes that while the Supreme Court has yet to weigh in on the hiring practices, state and federal law, along with the courts of appeals, have. These entities have protected the autonomy of religious organizations to hire only those who share their beliefs. Yet even though the Washington Supreme Court has not protected that autonomy, Justices Alito and Thomas both agree with denying to hear this case. The reason why is interesting, but before we get there, let’s look at what these two justices believe is at stake..

The Washington Supreme Court’s reasoning presumes that the guarantee of church autonomy in the Constitution’s Religion Clauses protects only a religious organization’s employment decisions regarding formal ministers. But our precedents suggest that the guarantee of church autonomy is not so narrowly confined. As early as 1872, our church-autonomy cases explained that “civil courts exercise no jurisdiction” over matters involving “theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required of them.” … That is so because the Constitution protects religious organizations “from secular control or manipulation.” … The religious organizations protected include churches, religious schools, and religious organizations engaged in charitable practices, like operating homeless shelters, hospitals, soup kitchens, and religious legal-aid clinics similar to the Mission’s—among many others.

SEATTLE’S UNION GOSPEL MISSION v. MATTHEW S. WOODS – Denial of Certiorari

While Justice Alito references the Constitution of the United States, which protects our freedom of religion from federal intervention (“Congress shall make no law…” First Amendment), the standard of religious freedom he notes is correct. If the state is allowed to limit their protection of religious liberty to only certain classes of people, that would not only destroy church autonomy, but place the state in a position to determine who is and is not a member of the class they are willing to protect. Justice Alito went on:

To force religious organizations to hire messengers and other personnel who do not share their religious views would undermine not only the autonomy of many religious organizations but also their continued viability. If States could compel religious organizations to hire employees who fundamentally disagree with them, many religious non-profits would be extinguished from participation in public life—perhaps by those who disagree with their theological views most vigorously. Driving such organizations from the public square would not just infringe on their rights to freely exercise religion but would greatly impoverish our Nation’s civic and religious life.

SEATTLE’S UNION GOSPEL MISSION v. MATTHEW S. WOODS – Denial of Certiorari

How can you have freedom of religion if governments can force you to exercise your faith in a way they endorse? When Thomas Jefferson coined the term “wall of separation between church and state”, he meant that the church would be protected from state interference. Once again, we see a court breaking down that wall while claiming to be reinforcing it.

With all of this at stake, why did Justices Alito and Thomas agree to deny the request for the court to review this case?

This case illustrates that serious risk [of forcing religious organizations to hire people who do not share their beliefs]. Woods applied for a position with the Mission not to embrace and further its religious views but to protest and fundamentally change them. The Washington Legislature sought to prevent its employment laws from being used in such a way by exempting “any religious or sectarian organization not organized for private profit” from its definition of a covered “employer.” … The Washington Supreme Court’s decision to narrowly construe that religious exemption to avoid conflict with the Washington Constitution may, however, have created a conflict with the Federal Constitution.

The Washington Supreme Court’s decision may warrant our review in the future, but threshold issues would make it difficult for us to review this case in this posture. The state court did not address whether applying state employment law to require the Mission to hire someone who is not a co-religionist would infringe the First Amendment. Further, respondent claims that the Washington Supreme Court’s decision is not a final judgment because of its interlocutory nature, …, while petitioner contends that we have jurisdiction under Cox Broadcasting Corp. v. Cohn, … Given respondent’s admission that “there is no prospect that this Court would be precluded from reviewing” these First Amendment questions “once there is a final state judgment,” Brief in Opposition 21–22, I concur in the denial of certiorari.

SEATTLE’S UNION GOSPEL MISSION v. MATTHEW S. WOODS – Denial of Certiorari

Not surprisingly, everyone seems to be focused on the First Amendment, even though it does not apply. (Remember, “Congress shall make no law…”) Instead, this case appears to violate the Fourteenth Amendments prohibition against states depriving people of the equal protection of the law.

… nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

U.S. Constitution, Amendment XIV

Washington law clearly states that religious non-profit organizations are not considered employers. By limiting that clause to only ministers, the Washington Supreme Court has deprived the Mission of the equal protection of the law. Furthermore, by depriving the Mission control of their own staffing standards, the Washington Supreme Court has deprived the Mission of both liberty and property without due process of law, which is an established course for judicial proceedings or other governmental activities designed to safeguard the legal rights of the individual (The Free Legal Dictionary).

Conclusion

So why did Justices Alito and Thomas “punt” on this case? I believe there are three reasons. One, it appears the state courts did not consider the Constitution of the United States. Since it appears obvious the justices’ consider this a First Amendment issue, I believe that they wanted state courts to consider that first. Two, the Washington Supreme Court did not issue final judgment. Rather, they returned the case to the lower courts to reconsider. Thirdly, Mr. Woods, as the respondent, recognizes that there is nothing to prevent the Supreme Court of the United States from reviewing this case in the future.

I am not a legal scholar, so the rightness of denying certiorari is a little vague in my eyes. Yes, the case has not finished making its way through the state court system. The question of whether or not the Washington Supreme Court violated the Fourteenth Amendment by reinterpreting state law and violating both the laws and constitution of the State of Washington was not considered. That means more pain, effort, and expense for the Mission. All of which could be better used for their mission to help the poor and needy in Seattle rather than lining the pockets of the attorneys. This should be one more reason for We the People to look closely at our state and local government rather than focusing all of our attention on Washington, D.C.

© 2022 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

April 5, 2022

• Can governments, or those who work for them, make money from foreclosures on people’s homes?
• What are the fiduciary responsibilities of public servants in cases of foreclosure?
• Eight citizens in Oakland County Michigan are suing to answer just those questions.

We all recognize that property can be foreclosed on for failure to pay a tax debt. What happens when the value of the foreclosure is greater than the debt owed? A case out of Michigan, recently appealed to the Sixth Circuit, seeks redress for just such situations. Eight citizens of Oakland County Michigan are suing the county for, among other things, taking property worth far more than the tax debt owed, then not reimbursing them the difference. Is this an illegal taking, or a deprivation of property without due process? Or could it simply be a scheme to defraud both the homeowners and taxpayers of Oakland County?

Something appears rotten in the city of Southfield and the county of Oakland in the State of Michigan. In the case of Tawanda Hall, et al., v. Andrew Meisner, Oakland County Treasurer, et al., some truly disturbing facts have come to light. Before I get into the details of the case, a little background is required.

Foreclosure Scam

Though not the issue before the court, I was shocked not only by the actions of several county officials, but by the fact that no one seems to be investigating apparent embezzlement by those officials.

When the Homeowners in this case failed to pay their property taxes on time, the County foreclosed. The homes were not sold at auction but transferred through a series of transactions to a company managed by City officials, the Southfield Neighborhood Revitalization Initiative, LLC (Company), for a payment of the tax debt plus $1 each.

Tawanda Hall, et al., v. Andrew Meisner et al.

While foreclosure for an unpaid debt is a terrible situation to be in, what the city of Southfield and Oakland county did next is unconscionable.

None of the Homeowners were paid for what was taken from them because a state statute purported to authorize cities “to purchase for a public purpose” tax-foreclosed property by paying the County the accrued tax debt. Mich. Comp. Laws § 211.78m (2017).

The asserted public purpose, according to a resolution adopted by the City Council, was to “revitalize and stabilize neighborhoods” and “rehabilitate and renovate these homes and then return them to productive use and purchase by individuals and families seeking housing opportunities within the City of Southfield.” City Resolution, R.44-5, PageID #1254. City Council members also said at another meeting that conveyance of the property from the County through the City to the Company would attract residents with more income.

Tawanda Hall, et al., v. Andrew Meisner et al.

Both the Fifth Amendment to the Constitution of the United States and Article 10, Section 2, of the Michigan Constitution state “private property be taken for public use, without just compensation”. This brings up a constitutional issue since these properties were not being taken by the city for public use. We can thank the Supreme Court in the case Kelo v. City of New London, where the court found taking private property to sell to a private entity was “public use” because it would lead to “public improvement”, specifically revitalizing a “blighted” neighborhood. Now we have the city counsel of Southfield, MI using the same logic to “purchase” these properties to increase their tax base. But the malfeasance doesn’t stop there.

With the City Council’s authority, Mayor Kenson Siver signed a contract with the Southfield Non-Profit Housing Corporation (Non- Profit), which owns the Company, to execute the arrangement.

The Non-Profit and Company are both controlled by City officials. Mayor Siver is president of the Non-Profit and signed the paperwork creating the Company. Order, R.66, PageID #2278. City Manager Fred Zorn is a board member and Vice-President of the Non-Profit, and the “manager” and registered agent for the Company.

Tawanda Hall, et al., v. Andrew Meisner et al.

To say that the mayor and city manager of Southfield have a conflict of interest is an understatement. The mayor of Southfield, with the City Council’s permission, has contracted with a non-profit that he controls, to do business with a company the non-profit owns and is managed by the City Manager. If that were all, it certainly would be worth investigation, but how these entities deal with the foreclosures is truly criminal in my mind. Let’s look at the example of Tawanda Hall.

Tawanda Hall owned a home with her now-deceased husband at 24650 Martha Washington Dr., Southfield, MI 48075, in 2010. Id. at 5. On February 14, 2018, the County foreclosed and took title to the property to collect $22,642 in property taxes, interest, penalties, and fees. … Without notice, on June 29, 2018, the County Treasurer deeded the property to the City, which paid the tax debt with funds from the Non-Profit. Id. at #36. On October 23, 2018, the City gave the property to the Company for $1. The Company later sold the Halls’ home for its fair market value of $308,000—$285,000 more than Ms. Hall’s total tax debt—and kept all the proceeds.

Tawanda Hall, et al., v. Andrew Meisner et al.

There are question as to whether the county followed Michigan law regarding the foreclosure, but that is not what I’m focusing on here today. Just over four months after foreclosing on the property, the County Treasurer deeded the property to the city, who paid the tax debt with money from Southfield Non-Profit Housing Corporation, which is run by the city mayor. Now the city owns a piece of property worth $308,000 for the low, low cost of just $22,642 paid by someone else. In other words, the city received that property for free. The city then sells the property to Southfield Neighborhood Revitalization Initiative, LLC, a for profit corporation which is managed by the Southfield City Manager, for the low, low price of just $1. Ms. Hall is only one of the eight people seeking a redress of this grievance.

The Court Case

In August 2020, these eight Homeowners filed this federal lawsuit against the parties involved in the confiscation of their properties: the County, City, public officials, the Company, the Non-Profit, and the managers of the Company. At issue in this appeal, the Homeowners alleged that all the Appellees took their private property without just compensation; the City, County, and public officials imposed excessive fines; the County and its treasurer violated procedural due process; and the Company, Non-Profit, City and its officials were liable to return the windfall received at the Homeowners’ expense under the doctrine of unjust enrichment.

Tawanda Hall, et al., v. Andrew Meisner et al.

While there are several issues in this lawsuit, this appeal only focuses on a few. Did the county, city, et al., take private property without just compensation, impose excessive fines, and violate due process? Let’s take a look at them individually.

Takings Clause

… nor shall private property be taken for public use, without just compensation

U.S. Constitution, Amendment V

As I mentioned previously, this property was not the for public use. First, it was foreclosed upon by the county for failure to pay taxes, then it was transferred to the city in exchange for the tax debt. The alleged “public purpose” was to enlarge the tax base of the city, not for the property to be used by the public. That means this is not a Takings Clause issue. However, under Michigan common law:

The Michigan Supreme Court has held that government effects an uncompensated taking or is liable for unjust enrichment when government takes more than it is owed during property tax collection. Rafaeli, LLC v. Oakland County, 505 Mich. 429, 468–71 (2020).

Tawanda Hall, et al., v. Andrew Meisner et al.

Excessive Fines

The practice of municipal governments gaining a windfall after foreclosing on property is nothing new. The question is, is it legal? This would seem to revolve around the definition of a fine.

What is FINE

1. To impose a pecuniary [financial] punishment or mulct [punishment].

Fine: The Law Dictionary

In English, a fine is a punishment that’s evaluated in monetary terms. The tax these people owed was not a fine, it was a tax. When they failed to pay their taxes on time, they accrued both interest and fines, monetary punishment for their failure to make timely payment. The question is, when the county foreclosed, were they imposing a fine? Since the property that was forfeit was used to pay off both the debts and fines, it could certainly be considered a fine, a monetary punishment. This is important, because the Eighth Amendment states:

… nor excessive fines imposed …

U.S. Constitution, Amendment VIII

Is a $308,000 fine imposed on a $22,642 debt excessive? I would certainly say a fine more than thirteen times the debt is excessive. If you borrowed money from someone and they demanded you pay back thirteen times more than you borrowed, we’d call that person a “loan shark”! So, yes, this certainly seems to be a case of excessive fines.

Due Process

nor be deprived of life, liberty, or property, without due process of law;

U.S. Constitution, Amendment V

We often hear it talked about, but what is this “due process of law”?

Law in its regular course of administration through courts of justice. 3 Story, Const.264, 661. “Due process of law in each particular case means such an exercise of the powers of the government as the settled maxims of law permit and sanction, and under such safeguards for the protection of individual rights as those maxims prescribe for the class of cases to which the one in question belongs.” Cooley, Const. Lira. 441. 

Due Process: The Law Dictionary

The Law Dictionary provides two senses of due process that apply to this case. First, it’s the administration of law through the courts. Second, it’s the exercise of governmental powers under the safeguards for the protection of individual rights. As it pertains to this case, was the property taken following the protection of the rights of the individual? I would say the answer here is no.

With the appeal, the appellants claim that the county did not provide them with adequate notice that they were disposing of their property. Many complained that the county either violated the terms of their payment agreement, or fraudulently advised them on how to respond to legal notices. That certainly would appear to violate due process. Furthermore, since the debt owed to the county was a fraction of the value of the property seized, due process and Michigan common law requires the government keep only what it its owed:

In Rafaeli, the Michigan Supreme Court held that where government takes private property to satisfy a tax debt and sells it to the highest bidder at a public auction, the government is only entitled to keep as much as it is owed from the proceeds of the sale.Id. at 749. Any surplus remaining after paying the taxes, penalties, interest, and fees belongs to the former owner, even where state law purports to give that money to the government.

Tawanda Hall, et al., v. Andrew Meisner et al.

By allowing the city to purchase the property for an amount only equal to the debt, rather than selling the property at auction, the county denied the homeowners the remaining value in their home. This appears to be a clear example of depriving someone of the property they have in the value of their home without following the law or due process.

Conclusion

The case was first heard by District Court For the Eastern District of Michigan:

The district court dismissed the takings claims against all Appellees for failure to state a claim, misconstruing Rafaeli as holding that a “plaintiff’s only ‘property interest’ surviving a tax-foreclosure is not in the real property itself, but only in the surplus proceeds resulting from the tax-foreclosure sale, if any . . . .”

Tawanda Hall, et al., v. Andrew Meisner et al.

When property is taken, what value is it given? More importantly, who decides what that value is? Since the county did not sell the property, there was no opportunity for the collection of surplus proceeds. This either deprived the homeowners of their rightful property, the proceeds of the sale of their real property, or it deprived the taxpayers of the windfall from the sale of the foreclosure.

The court dismissed the procedural due process claim against the County and its treasurer for failure to state a claim, holding that notice was constitutionally adequate because the payment plans themselves warned the Homeowners that they would lose their property if they missed a payment.

Tawanda Hall, et al., v. Andrew Meisner et al.

Were the homeowners notified that they would lose not only their property, but the equity they had that property? Were they notified that the county would not auction off their property, thereby allowing them to retrieve the equity they had in it?

The court dismissed the excessive fines claim brought against the County and the City, holding that the alleged actions here were not punitive and therefore there are no fines involved.

Tawanda Hall, et al., v. Andrew Meisner et al.

I would direct the district court judge to The Law Dictionary definition of punitive:

Relating to punishment; having the character of punishment or penalty ; inflicting punishment or a penalty.

The Law Dictionary

How can losing $308,000 to satisfy a $22,642 fine not be considered punitive?

I am reviewing the appeal, not the district court’s decision. From what I’ve seen though, it was a pretty bad decision. The question is, will the Appeals Court give these homeowners redress for their grievance?

I also wonder what the people of the city of Southfield and the county of Oakland think about this land grab? Do they think it is right for the county to sell property they have foreclosed on for a small fraction of what it is worth? Are the citizens of Southfield okay with their mayor and city manager running a scheme to get cheap property? And just what is being done with that property and who is benefiting financially from it?

I think this is a case worth watching. What are the limits placed on governments when they foreclose on property? Do those in office have a fiduciary responsibility to both the homeowner and the taxpayers in how they dispose of the property? Are the accusations being made in this case something that could be going on around the country? This is just another reason why it is important that the American people not simply focus on Washington, D.C. and their state house, but on their county and city governments as well.

© 2022 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

April 2, 2022

• How do you know if freedom of religion still exists in America?
• What protects our freedom of religion?
• Do courts have the authority to interpret a church’s own rule to them?

How can you tell if you have freedom of religion? Is it because of the First Amendment? Does freedom of religion exist because people say so? Does freedom of religion exist if government can decide whether you are properly following the tenants of your religion? A recent case before the Supreme Court asked that very question. Sadly, the court decided not to consider answering it.

Our desire to worship as we please was not only one of the driving factors in the creation of the colonies in America, it’s a foundational freedom in this country. The very first freedom listed in the very first amendment in the Bill of Rights to be ratified was your freedom of religion. Specifically:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;

U.S. Constitution, Amendment I

All of our states and the federal government recognize the importance of freedom of religion. Or do they? The laws of our states and of the United States provide religious organizations tax exempt status. Under 26 USC §501(d), religious associations or corporations are exempt from federal taxation. In the Commonwealth of Virginia, not only are religious organizations exempt from taxation, but property owned and used by the organization are also tax exempt.

Enter the case of Trustees of the New Life in Christ Church v. City of Fredericksburg, Virginia (New Life Church v. Fredericksburg).

This case began when the New Life in Christ Church in Fredericksburg, Virginia, claimed a tax exemption for a residence occupied by Josh and Anacari Storms. …

The city of Fredericksburg (City) sought to deny the church’s tax exemption. Years of litigation ensued.

New Life Church v. Fredericksburg (Certiorari dissent)

This case seems simple enough at first. The New Life in Christ Church claimed a tax exemption for the residence of their youth ministers, Josh and Aracari Storms, which the city of Fredericksburg denied, leading to this case. The case was heard in Virginia Circuit Court, which found for the City of Fredericksburg. After the Virginia Supreme Court declined to review the opinion, the church appealed to the Supreme Court of the United States for redress.

The process for having a case heard by the Supreme Court involves a petition for a writ of certiorari (Latin for “To be informed of”), ordering that a lower court produce records for the superior court’s review. In their petition, New Life Church posed two questions. First, did the city violate the First Amendment by interpreting church doctrine? And second, did the City of Fredericksburg refuse to extend tax exempt status to the church’s property without a compelling reason and thereby violate Virginia law?

If you’ve followed The Constitution Study for any length of time, you probably recognize that this cannot be a First Amendment violation, since neither Congress nor the federal government had any part in this situation. While federal courts have conveniently ignored that fact for decades, I do want to look at this in the context of the Constitution and laws of of Virginia. While this may not be a violation of the First Amendment to the United States Constitution, it very well may be a violation of the Fourteenth Amendment.

State Interpretation of Church Doctrine

Virginia law provides an exemption from property taxes for “[r]eal property and personal property owned by churches or religious bodies * * * and exclusively occupied or used * * * for the residence of the minister of any church or religious body.” Va. Code § 58.1- 3606(A)(2). When the New Life In Christ Church claimed the property tax exemption for a residence occupied by two of its ministers, the City of Fredericksburg conducted an independent inquiry into the Presbyterian Church in America’s Book of Church Order to determine whether the ministers actually are “ministers” under church doctrine. The City never challenged the sincerity of the Church’s belief that the ministers are, in fact, ministers. Instead, the City denied the exemption because it read the Book of Church Order to confer that designation only on ordained church officials with specific leadership roles.

New Life Church v. Fredericksburg (Petition for Certiorari)

State law provides that property owned by religious bodies for the residence of ministers are exempt from property taxes. The issue that the church wanted to court to weigh in on was, does the city have the authority to determine who is or is not a minister for a church?

So how has the City sought to justify denying the tax exemption? Primarily, the City has argued that the church is not entitled to a tax credit because it misunderstands who qualifies as “minister” in its own faith tradition. …

The church tried to explain that the City misunderstood its traditions and practices.

New Life Church v. Fredericksburg (Certiorari dissent)

Who decides who qualifies as a minister of a church? Is it the church or the government?

In sum, the Stormses perform “essential religious functions” within the Church. … Indeed, there is no dispute among the parties that they are “doing religious work.”

New Life Church v. Fredericksburg (Petition for Certiorari)

This is a clear case of a government entity establishing the standards for ministers of a church. The City of Fredericksburg not only claimed the authority to interpret the Presbyterian Church in America’s Book of Church Order to the New Life Church, which is a member of that denomination, but to override the church’s interpretation of that book:

The City filed a motion for summary judgment. … In support, it relied on the Presbyterian Church in America’s Book of Church Order, which governs the Church, to argue that the Stormses are not ministers as understood by the Church. … It then proceeded to argue that “[t]he Book of Church Order utilizes the term ‘minister’ in contexts that make it clear that the term refers to a duly ordained person with specific leadership duties.” …

In response, the Church argued that the City had misinterpreted the Book of Church Order. In particular, the Church explained that “[w]hile it is true that in order to deliver sermons to the congregation a person doing so must be an ‘ordained’ minister, there is nothing in the Book of Church Order that prohibits a particular church from hiring ministers to serve as messengers and teachers of the faith.” … On the contrary, “Section 12 of the Book of Church Order provides each church rather broad authority to govern its own affairs, which would include the ability to hire ministers to cater to specialized groups, such as youth.”

New Life Church v. Fredericksburg (Petition for Certiorari)

Isn’t the city not only establishing a religious test for church ministers, but by interpreting their governing convention, establishing oversight of the church itself? Since the question of tax exempt status is a state matter, such a test would be in violation Article I, Section 16 of the Constitution of Virginia:

And the General Assembly shall not prescribe any religious test whatever, or confer any peculiar privileges or advantages on any sect or denomination

Constitution of Virginia, Article I, Section 16

Furthermore, by determining who qualifies as a minister, the City of Fredericksburg further violated Article I, Section 16:

but all men shall be free to profess and by argument to maintain their opinions in matters of religion, and the same shall in nowise diminish, enlarge, or affect their civil capacities. … but it shall be left free to every person to select his religious instructor,

Constitution of Virginia, Article I, Section 16

Even in its opposition to the church’s appeal, the Virginia Supreme Court said:

The City conceded that “the statute providing a limited exemption from taxation of real estate says to churches or religious bodies, ‘you tell us who your leader is, and if they reside in church-owned property, [and] we will exempt that specific property from taxation.’”

New Life Church v. Fredericksburg (Petition for Certiorari)

However, the Circuit Court could not recognize this violation, not only of the laws and the constitution of Virginia, but the idea of freedom of religion. And since the the Supreme Court of Virginia was unwilling to hear the case, we find ourselves at the Supreme Court of the United States.

Supreme Court Certiorari

I do not know why the Supreme Court decided not to grant certiorari in this case. Yes, the First Amendment claim fails based on the plain language of the document, but that has not stopped this court before. There can be any number of reasons why four of the nine justices were unwilling to hear the case. Since only Justice Gorsuch was willing to publish his opinion, we will never know the whys. In his dissent, Justice Gorsuch does give us a a sense of the travesty of justice the court has delivered to the church.

I would grant the petition and summarily reverse. The First Amendment does not permit bureaucrats or judges to “subject” religious beliefs “to verification.” About this, the Court has spoken plainly and consistently for many years. …

The Framers of our Constitution were acutely aware how governments in Europe had sought to control and manipulate religious practices and churches. They resolved that America would be different. In this country, we would not subscribe to the “arrogant pretension” that secular officials may serve as “competent Judge[s] of Religious truth.” … Instead, religious persons would enjoy the right “to decide for themselves, free from state interference, matters of . . . faith and doctrine.”

New Life Church v. Fredericksburg (Certiorari dissent)

Since the City of Fredericksburg refused to abide by the laws of Virginia, and deny the New Life Church the equal protection of the laws of the Commonwealth, I believe there is sufficient evidence to claim a violation of the Fourteenth Amendment to the Constitution of the United States. Sadly, just has the courts of Virginia have acted as accessories to this crime, the Supreme Court has allowed this injustice to proceed. I can only hope that Justice Gorsuch’s conclusion is correct:

This case may be a small one, and one can hope that the error here is so obvious it is unlikely to be repeated anytime soon. But I would correct it. Bureaucratic efforts to “subject” religious beliefs to “verification” have no place in a free country.

New Life Church v. Fredericksburg (Certiorari dissent)

Conclusion

So, let us return my opening question. How can you tell if you have freedom of religion? Neither the words in the Constitution of the United States nor those of Virginia’s, were sufficient to protect the freedom of religion for the New Life in Christ Church. Does this mean we only have the rights our governments will allow? Is the only protection for our most precious freedoms a judicial system corrupted by politics and self-importance?

Those in the city of Fredericksburg, who have denied this church their rights, work for the citizens of that city. The governor who executes the laws of the Commonwealth work for the people. If they are unwilling to follow the laws created by the representatives of the people, they should be removed. If the people of the Commonwealth of Virginia are unwilling to hold their elected officials accountable, they have no one to blame except themselves. If we want freedom of religion, then We the People must defend it. Otherwise, we resign ourselves to be subjects of those we hired to protect our rights.

© 2022 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

March 21, 2022

• Does an influx of illegal aliens constitute an invasion?
• If this is an invasion, what does the Constitution require the federal government to do?
• What are the consequences of referring to the masses of illegal aliens as invaders?

A reader sent me an email about the influx of illegal aliens on our southern border. The question of whether or not this constituted an invasion and thereby requires a response by the federal government under Article IV, Section 4, is one which is worth our taking a closer look. Not only the question of does this constitute an invasion, but what are the consequences of such a point of view?

INVASION

Under Article IV, Section 4 of the U.S. Constitution, the United States is required to guarantee to the states certain things, including the protection against invasion.

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence. 

U.S. Constitution, Article IV, Section 4 (emphasis added)

The first thing we need to determine is, does the influx of a large number of illegal aliens constitute an invasion? We start by defining an invasion:

INVA’SION, noun

1. A hostile entrance into the possessions of another; particularly, the entrance of a hostile army into a country for the purpose of conquest or plunder, or the attack of a military force. The north of England and south of Scotland were for centuries subject to invasioneach from the other. The invasion of England by William the Norman, was in 1066.

Invasion: Webster’s 1828 Dictionary

Are the people illegally crossing our border hostile? Some of them are, but the vast majority don’t appear to be so.

HOS’TILE, adjective

1. Belonging to a public enemy; designating enmity, particularly public enmity, or a state of war; inimical; as a hostile band or army; a hostile force;hostile intentions.

Hostile: Webster’s 1828 Dictionary

While their presence is problematic, that does not make them a public enemy.

EN’EMY, noun [Latin inimicus.]

1. A foe; an adversary. A private enemy is one who hates another and wishes him injury, or attempts to do him injury to gratify his own malice or ill will. A public enemy or foe, is one who belongs to a nation or party, at war with another.

Enemy: Webster’s 1828 Dictionary

The vast majority do not belong to a nation or party that is at war with the United States, neither do most of them make up a hostile band or army. Regardless of their size, these people do not constitute an invasion as our Founding Fathers defined it when they wrote the Constitution. Neither, by the way, do they meet the legal definition of an invasion:

INVASION. The entry of a country by a public enemy, making war.

Invasion: The Free Legal Dictionary 

So if this dramatic influx of illegal aliens doesn’t meet either the Constitutional or legal definition of an invasion, what is it?

Incompetence

Let’s start at the beginning, constitutionally speaking. Article I, Section 8, Clause 4 gives Congress the power:

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

U.S. Constitution, Article I, Section 8, Clause 4

Notice, Congress has the power to set rules for naturalization (the act of becoming a citizen), but not for immigration or visitation. Immigration is becoming a permanent residence, while visitation is a temporary one. This means that according to the Tenth Amendment, the power to regulate immigration or visitation is retained by the states. Therefore, this should be primarily a state issue. However, decades ago, the states allowed the United States to usurp their control over immigration into their states. Which leads us to the next point on our journey.

Since the states now expect the United States to regulate immigration, Congress has passed numerous laws to do so. Why is this important? Because each and every member of Congress has been hired by the American people to represent them, either in the House of Representatives or for their state in the Senate. Whether you like our country’s immigration laws or not, they were created by employees of the people, who represent them and exercise their sovereign power in the peoples’ name. Congress, though, is not the only branch of the federal government responsible for this mess.

While Congress is tasked with making the laws of the United States, the President is required to faithfully execute those laws. Since the state legislatures have decided to allow their citizens to determine who their state should vote for in the Presidential election based on their political party affiliation, the men who have held the office of President in the last several decades got there by the will of the American people.

So, there are two branches of the federal government that are part of this mess: Congress for the laws they have passed and the Presidents who have failed to execute those laws. The fact that millions of people have violated those laws without consequence is not their fault. Yes, the illegal alien is responsible for the laws they have broken, but Congress is responsible for the bureaucratic nightmare that anyone who wishes to come here legally must go through. Also, the President is responsible for the incentive many of these aliens see, since there are effectively few consequences for breaking American law.

Our current border crisis should be a surprise to no one. History is replete with examples of what happens when laws are not enforced. The rate of illegal aliens entering our country is directly correlated to the leniency shown by the Presidential administration in office at the time. You would think after over 50 years of observing this correlation, the American people would have figured it out. Apparently not, even though this cause and effect has been readily observed throughout the United States. Currently, there are two district attorneys in California facing recall because their failure to prosecute crime has led to an intolerable increase in those crimes. Business in these cities are closing because of the level of theft they are forced to endure without any redress, because prosecutors have decided to be derelict in their duties, and not prosecute crimes they don’t think are worth it. While many in California, and in fact America as a whole, are rightly angered by the current state of what is laughably called our “justice system”, there is one point they seem to have missed.

Indifference

Neither of the District Attorneys currently facing recall in California made any secret of their stance on prosecuting what they often referred to as “petty crimes”. President Biden campaigned on the idea of allowing people into the country illegally, then dealing with them after the fact. He promised to suspend deportations, end detention of migrant families, and reduce room for “immigrant detention”. So why is anyone surprised that millions are taking advantage of the promises to be lax on enforcement of U.S. law? Before you start pointing your finger at President Biden and his administration, there is one very important point you need to consider.

Knowing what President Biden planned to do when he entered office, tens of millions of Americans voted for him. The current state of our border crises is a direct result of the choices made by the American people. In other words, both President Biden and our alleged “invasion” are our fault.

Conclusion

I believe there are two primary reasons behind this call to declare what is happening on our southern border an invasion.

First, there are those who want to use the term “invasion” to prod the federal government to act under Article VI, Section 4. I have seen some go “dictionary shopping” to find a definition that will promote their cause, ignoring the fact the the sense of the word they are basing their claim on in not its primary sense, even in the dictionaries they quote. I expect this approach to be an utter failure, since it is basically trying to shame the the President into doing what he’s already said he would not do. If the President won’t enforce current immigration law, what makes you think he’s going to do so because you call it an invasion? He has paid no political price for his position, so why should he change just because you altered the language?

Second, and of even more concern to me, is this attempt to define the surge of illegal border crossings as an invasion is an unconscious attempt to redirect the blame onto someone else. If this truly were an invasion, those entering the country would be considered hostile. There are many in this country that would use such a designation as an excuse to blame the alien for all of their problems. This is already the case in many locations. The lack of jobs, overflowing of our schools, hospitals, and medical clinics are blamed on the influx of illegal aliens. While in many cases that may be true, it’s rather like blaming the Titanic itself for its sinking rather than its crew. Most Americans drive faster than the speed limit because they know there is little chance of actually getting pulled over. If you knew there was very little risk that you would actually be punished, how many of you would turn down the chance to rob a bank, cheat on your taxes, or even assault that idiot who cut of off in traffic and gave you the finger? Or what if you could earn 10, 20, even 30 times more than you do today, and all you had to do was cross a border without permission or consequence, would you do it? Yet there are some Americans eager to blame the illegal alien not just for violating our laws, but for the fact those laws are not being enforced.

A law that is not enforced is a waste of time and energy. So who is ultimately responsible for the fact that our border crossing laws are not being enforced? Is it the alien who breaks those laws? Is it the criminal who takes advantage of the lax enforcement of those laws? Or is it the federal agent on the border? No, there are only two groups of people responsible for the fact that our border laws are not being enforced. The first group is the politicians, both in Washington, D.C. and in our state houses, who are either refusing to fulfill their duties to enforce the laws of the United States or are willing to stand by and do nothing while it happens. The second is the American people who put them there. President James A. Garfield said:

[N]ow more than ever before, the people are responsible for the character of their Congress. If that body be ignorant, reckless and corrupt, it is because the people tolerate ignorance, recklessness and corruption. If it be intelligent, brave and pure, it is because the people demand these high qualities to represent them in the national legislature

James A. Garfield, A Century of Congress

What was true of Congress in the 19th century is also true of all of our state elected officers today: We are responsible for their character. That means we are responsible for how we respond to their actions as well. We have chosen Presidents who tried to enforce our border laws and others who did not. We chose the Representatives and Senators that not only wrote those laws, but funded their enforcement. And when those in the judicial branch acted badly by illegally meddling with the enforcement of the Constitution and laws of the United States, it was the responsibility of those we placed in Congress to deal with their bad behavior.

So if you’re looking for someone to blame for the current state of our border, look no farther than your mirror. Rather than blaming the alien who broke the law, take responsibility for your choices that led to the fact that those laws aren’t being enforced in the first place.

© 2022 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

March 14, 2022

• Are the states sovereign or vassals of Washington, D.C.?
• What role do the states and the idea of nullification have in our constitutional republic.
• Could nullification be the best method to restore the republic?

With all of the unconstitutional laws, executive orders, and regulations coming out of Washington, D.C. lately, people often wonder what can be done. An out of control federal government was nothing new in America. At the end of the 18th century, two of our Founding Fathers wrote about keeping the federal government in check. Let’s look at how these two men expected the states to rein in the federal government.

People who study the Constitution of the United States readily see that the government in Washington, D.C. is out of control. The Tenth Amendment clearly states:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

U.S. Constitution, Amendment X

It is unfortunate that all three branches of the government of the United States routinely and frequently violate this amendment without any repercussions. Congress passes laws that exercise powers not delegated to the United States by creating executive agencies to execute those illegal powers. They also issue executive orders that violate the rights protected by the Constitution, making the Tenth Amendment among the most frequently abused clauses of the Constitution. Even the Supreme Court has assumed the power to place their opinions above the supreme law of the land. While researching my book, I found a government website, A-Z Index of U.S. Government Departments and Agencies. While reviewing that list of departments and agencies, I found two very disturbing facts. First, of the over 500 agencies listed, I could not find a power delegated to the United States to justify the existence of 90% of them. Second, the federal government listed all of the fifty states as departments or agencies of the United States. Not only does the federal government claim the power to do what is not authorized by the Constitution, but those in the government appear to believe that the states are vassals of Washington, D.C. This dereliction of duty is nothing new.

In July of 1798, Congress passed the Alien and Seditions Acts. In the Alien Act, Congress claimed the power to apprehend and detain as alien enemies any adult man who was a native or citizen of a country the United States was at war with. The Sedition Act claimed that anyone who opposed any measure of the government of the United States or attempted to impede the operation of any law of the United States, could be imprisoned and/or fined. Furthermore, the act claimed that anyone who wrote, printed, or published false, scandalous, or malicious writings against the United States, defamed and brought contempt or disrepute against the Congress or the President. They could be fined and imprisoned. The fact that both of the “laws” of the United States violated multiple clauses of the supreme law of the land apparently didn’t bother Congress one bit.

Does this sound familiar? Has not Congress authorized the permanent detention of aliens merely accused of supporting terrorism? While not calling for imprisonment, the Biden administration did call for social media companies to deplatform anyone who posted what they considered “misinformation”. The City of Washington, D.C., is still holding those who entered the capitol on January 6, 2021, accusing them of disrupting the work of Congress and the House of Representatives. They are holding hearings, claiming those who demonstrated against the 2020 elections were calling for an insurrection.

So how did the states react in 1798? Let’s look at what two of our Founding Fathers did to deal with this conflict.

Virginia Resolutions – Alien and Sedition Acts

Resolved, that the General Assembly of Virginia doth unequivocally express a firm resolution to maintain and defend the constitution of the United States, and the Constitution of this state, against every aggression, either foreign or domestic, and that they will support the government of the United States in all measures, warranted by the former.

Virginia Resolutions

On December 21, 1798, James Madison submitted what became known as the Virginia Resolutions to that state’s House of Delegates. In it he states that Virginia resolves to maintain and defend the Constitution of the United States against every aggression, foreign or domestic. He clearly recognized that not all aggression against the Constitution would come from foreign actors.

That this Assembly most solemnly declares a warm attachment to the Union of the States, to maintain which, it pledges all its powers; and that for this end, it is their duty, to watch over and oppose every infraction of those principles, which constitute the only basis of that union, because a faithful observance of them, can alone secure its existence, and the public happiness.

Virginia Resolutions

According to James Madison, it’s the duty of the governments of the several states to watch over and oppose every infraction of the Constitution. Why? Because having the states oversee the actions of the federal government is the only way we can insure the union’s existence and the public’s happiness. In other words, the Supreme Court is not the ultimate protector of your rights guaranteed under the Constitution; the states are. Mr. Madison goes on:

That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact to which the states are parties; as limited by the plain sense and intention of the instrument constituting that compact; as no farther valid than they are authorised by the grants enumerated in that compact, and that in case of a deliberate, palpable and dangerous exercise of other powers not granted by the said compact, the states who are parties there-to have the right, and are in duty bound, to interpose for arresting the pro⟨gress⟩ of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.

Virginia Resolutions

Not only does James Madison state that powers of the federal government are limited by the Constitution, but as parties of the compact that is that document, the states are duty-bound to interpose and stop the progress of any government actions that go beyond it. The states are supposed to maintain the federal government within its limited jurisdiction and to protect the rights and liberties of their citizens from its encroachment.

That the General Assembly doth also express its deep regret that a spirit has in sundry instances, been manifested by the federal government, to enlarge its powers by forced constructions of the constitutional charter which defines them; and that indications have appeared of a design to expound certain general phrases (which having been copied from the very limited grant of powers in the former articles of confederation were the less liable to be misconstrued) so as to destroy the meaning and effect of the particular enumeration, which necessarily explains and limits the general phrases; and so as to consolidate the states by degrees into one sovereignty, the obvious tendency and inevitable consequence of which would be, to transform the present republican system of the United States, into an absolute, or at best a mixed monarchy.

Virginia Resolutions

Deliberate misinterpretation of the Constituiton in an effort to expand the powers of the federal government is nothing new. The General Assembly of Virginia saw those in the federal legislature coming up with twisted and contorted readings of the Constitution to allow them to do what the document plainly forbids. It’s rather like Congress claiming anything that might impact interstate commerce falls under their authority to regulate or that their power to tax for the general welfare of the union can be expanded into anything they can pass.

That the good people of this Commonwealth having ever felt and continuing to feel the most sincere affection for their bretheren of the other states, the truest anxiety for establishing and perpetuating the union of all, and the most scrupulous fidelity to that Constitution which is the pledge of mutual friendship, and the instrument of mutual happiness, the General Assembly doth solemnly appeal to the like dispositions of the other States, in confidence that they will concur with this Commonwealth in declaring, as it does hereby declare, that the acts aforesaid are unconstitutional, and that the necessary and proper measures will be taken by each, for cooperating with this State in maintaining unimpaired the authorities, rights, and liberties, reserved to the States respectively, or to the people.

Virginia Resolutions

Notice that while the Commonwealth of Virginia declared that these acts were unconstitutional, they did not attempt to nullify them on their own. The House of Delegates asked other states to cooperate with them in defending the rights and authorities of both their state and their people.

Kentucky Resolution – Alien and Sedition Acts

While there appears to be some debate whether or not Thomas Jefferson authored the Kentucky Resolution, what was approved on December 3, 1799 helps us understand the proper role of the states to restrain the actions of the federal government.

THE representatives of the good people of this commonwealth in general assembly convened, having maturely considered the answers of sundry states in the Union, to their resolutions passed at the last session, respecting certain unconstitutional laws of Congress, commonly called the alien and sedition laws, would be faithless indeed to themselves, and to those they represent, were they silently to acquiesce in principles and doctrines attempted to be maintained in all those answers, that of Virginia only excepted. To again enter the field of argument, and attempt more fully or forcibly to expose the unconstitutionality of those obnoxious laws, would, it is apprehended be as unnecessary as unavailing.

Least however the silence of this commonwealth should be construed into an acquiescence in the doctrines and principles advanced and attempted to be maintained by the said answers, or least those of our fellow citizens throughout the Union, who so widely differ from us on those important subjects, should be deluded by the expectation, that we shall be deterred from what we conceive our duty; or shrink from the principles contained in those resolutions:

Kentucky Resolution – Alien and Sedition Acts

While the resolution does not give specifics, it appears that several of the states, in response to the Virginia Resolutions, were not prepared to support Madison’s position. This however, did not deter Kentucky from entering into the fray.

RESOLVED, That this commonwealth considers the federal union, upon the terms and for the purposes specified in the late compact, as conducive to the liberty and happiness of the several states: That it does now unequivocally declare its attachment to the Union, and to that compact, agreeable to its obvious and real intention, and will be among the last to seek its dissolution: That if those who administer the general government be permitted to transgress the limits fixed by that compact, by a total disregard to the special delegations of power therein contained, annihilation of the state governments, and the erection upon their ruins, of a general consolidated government, will be the inevitable consequence:

Kentucky Resolution – Alien and Sedition Acts

Again we see a state committed to the Constituiton and the union of states. We also see that Kentucky believes that those in Washington, D.C. go too far. If those in the federal government were allowed to exercise powers beyond the limits described in the Constitution, the governments of the states would become meaningless and effectively destroyed. Furthermore, the erection of a consolidated government would be inevitable. The power this government would wield would allow it to run roughshod over not only the states, but the people as well.

That the principle and construction contended for by sundry of the state legislatures, that the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism; since the discretion of those who administer the government, and not the constitution, would be the measure of their powers:

Kentucky Resolution – Alien and Sedition Acts

Jefferson calls out the other states for their unwillingness to challenge the federal government. The idea that the federal government was the judge of the limits of its powers is nothing short of despotism. If Congress, the President, and the federal courts, get to decide what their powers are, there is nothing to stop them from doing whatever they want. That’s exactly the state the union is in today.

That the several states who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction; and that a nullification, by those sovereignties, of all unauthorized acts done under colour of that instrument, is the rightful remedy:

Kentucky Resolution – Alien and Sedition Acts

This is a fundamental point in America, or at least it should be. The states are sovereign and independent. The states created the federal government, not the other way around. And the states are the unquestionable and rightful judge of any infraction of the Constitution.

Of course, here is where we find that word that so many in our country are afraid of: Nullification. As parties to the compact that is the Constitution, it’s not only the unquestionable power of the states to judge the unauthorized acts of the federal government, but to nullify them as well. Here we see the true and rightful remedy of an out of control federal government: State governments willing to uphold the Constitution of the United States.

That this commonwealth does upon the most deliberate reconsideration declare, that the said alien and sedition laws, are in their opinion, palpable violations of the said constitution; and however cheerfully it may be disposed to surrender its opinion to a majority of its sister states in matters of ordinary or doubtful policy; yet, in momentous regulations like the present, which so vitally wound the best rights of the citizen, it would consider a silent acquiescence as highly criminal: That although this commonwealth as a party to the federal compact; will bow to the laws of the Union, yet it does at the same time declare, that it will not now, nor ever hereafter, cease to oppose in a constitutional manner, every attempt from what quarter soever offered, to violate that compact: 

Kentucky Resolution – Alien and Sedition Acts

Kentucky declares that the Alien and Sedition Acts unconstitutional. Jefferson makes the point that while disagreements about ordinary or doubtful policies can be tolerated, it would be criminal for the Commonwealth of Kentucky to surrender to the opinions of the rest of the states.

Conclusion

Look at how your state legislators act when the federal government exceeds its just powers. Do they comply, submitting to their creation as if it were their master? Do they complain, but do nothing to stand in the way of federal despotism? Or are they limited to begging the federal government to protect them from itself? This is the weak and submissive actions of most of our state legislators. As Jefferson warned, the state governments are all but annihilated as the federal government claims the authority to regulate every aspect of our lives.

Compare how our states today deal with federal overreach with those of Virginia and Kentucky back in 1798/99. Those who hold office in our states today are pale, anemic, and weak compared to Jefferson and Madison. Sure, most of the other states were willing to submit to these federal power grabs so I guess we shouldn’t be that surprised, but at least the legislators debated the issue. When was the last time a resolution was brought to the floor of your state legislature declaring an act of the federal government unconstitutional? When has your state government stood up to Washington, D.C. and told them they’ve gone too far? And don’t talk to me about suing the federal government in federal court. As I’ve said, that’s nothing more than a vassal state begging their master to protect them from itself. When was the last time your state representatives or senators submitted a resolution denouncing the infringement on the rights of the people they were hired to represent? When was the last time you met with your state legislator and demanded they do so?

If, as Jefferson said, the rightful remedy to the unlawful acts of the federal government is for states to nullify those actions, then it is up to We the People to hold our elected representatives’ feet to the fire. If, as Madison said, it is the duty of the states to watch over and oppose every infraction of the Constitution, if the states are duty bound to interpose themselves between their citizens and an ever growing federal government, and to arrest the progress of that evil, then all fifty states are derelict in their duty.

Since We the People formed those state governments and elected those who hold office, then we are derelict in our duty as well. If freedom and liberty fall in America, if despotism and tyranny are allowed to continue, if this experiment in self government has failed and the sacred fire of liberty should go out, it’s because We the People have been derelict in our duties. When asked asked what type of government the Constitutional Congress had given the people, Benjamin Franklin answered “A republic, if you can keep it.” It appears that the American people were not up to the task.

© 2022 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

March 7, 2022

• How familiar are the American people with what the First Amendment says?
• What do the American people think about the freedoms guaranteed by the First Amendment?
• What is the overall state of the First Amendment in American society?

I got the idea for the Constitution Study while listening to a podcast reporting on the 2013 State of the First Amendment Survey. While the First Amendment Center has not issued a survey since 2019, based on what I’ve been seeing lately it’s still worth investigating. Let’s roll back the clock a few years, look at the state of the First Amendment, and then see if it’s healthier in 2022 than it was in 2019.

I first became aware of the State of the First Amendment (SOFA) survey in early 2014. Since then, I’ve reviewed the results every year until 2019, which is the last report on the website. The 2019 survey was conducted for the Freedom Forum Institution by Fors Marsh Group. According to the report, the survey sample was designed to provide nationally representative estimates for adults 18 years of age and older. We’ll start with the participants’ familiarity with the First Amendment.

Familiarity with the First Amendment

As you may know, the First Amendment is part of the U.S. Constitution. Can you name any of the specific rights that are guaranteed by the First Amendment?

Appendix A, State of the First Amendment Survey

The first question participants were asked is the same one that got me started with the Constitution Study: How many rights guaranteed by the First Amendment could they name? While the 2019 responses were better than 2018, they are still not encouraging.

2019 State of the First Amendment Survey

Twenty-Nine percent of those surveyed could not name a single freedom protected by the First Amendment. This is the lowest number since I’ve been following the report, but you may notice that in 2018 that number was 40%, the highest I’ve seen. While a large percentage of respondents correctly named Freedom of Speech, a growing number of incorrect answers were also given.

2019 State of the First Amendment Survey

The 2019 SOFA survey also found statistically significant demographic differences among those who could recall certain freedoms. Education was the most common predictor of recalling a First Amendment right – participants with more education were more likely to recall freedom of speech, religion and assembly.

State of the First Amendment Survey

Another interesting question asked on the survey was if the respondents believed that First Amendment protections go too far? In 2019 the number who agreed with that sentiment was 29%, up from 23% the previous two years.

If a third of respondents can’t name a single freedom protected by the First Amendment, and 29% of them think those protections go too far, what does that mean for those freedoms?

Freedom of Speech

There has been quite a controversy lately regarding cancel culture. What are the responsibilities of social media companies regarding the content posted by their users? Are there any legal liabilities for what their users post? The 2019 SOFA survey asked respondents if they agreed with the statement, “Social media companies violate users’ First Amendment rights when they ban users based on the content of their posts.” Even though they had just had the First Amendment read to them, a significant majority agreed with the statement.

A majority of participants (65%) agreed that social media companies violate users’ First Amendment rights when they ban social media accounts. There was a measurable partisan split, with a greater percentage of Republicans (71%) than Democrats (62%) agreeing with the statement. Surprisingly, participants who recalled three or more First Amendment freedoms were also more likely to agree (71%) with the statement than participants who recalled two or fewer freedoms (64%). The results suggest confusion about the application of the First Amendment protections on social media platforms.

State of the First Amendment Survey

According to the survey, it appears the majority of Americans not only don’t know what the First Amendment says, but they don’t understand how to apply it. Even 71% of those who could name three or more of the rights protected appear to believe that the words “Congress shall make no law…” means social media companies shall make no rules.

Social media companies are not the only entities for whom the Freedom of Speech seemed to be misapplied. Respondents were also asked if they agreed with the statement, “public institutions should revoke invitations to guest speakers” in different scenarios.

A majority of respondents think a speaker should be disinvited on the mere accusation of sexual harassment, the possibility of protests, or even if someone might be offended. This is commonly referred to as “The Heckler’s Veto.” All it takes for someone’s right to Free Speech to be infringed is for someone to claim they are offended or that it may cause others to act badly. As for the accusation of sexual harassment, notice it was based on the accusation, not the conviction. Anyone can accuse you of anything, but in America you used to be considered innocent until proven guilty. Notice, that in each of these situations, those 18-49 are more likely to infringe on the rights of the speaker than those 50 and older. Now compare this with the statement, “Public school students should be allowed to report on controversial issues in their student newspapers without the approval of school authorities.”

Almost the same number of people who think someone should be disinvited by public institutions for discussing controversial subjects believe students should be allowed to report on them without approval. Even more think that students should be allowed to express their opinions on social media without being punished by their school.

Do you see the hypocrisy? Compare how many people think the students should be allowed to express their opinions with the number who wish to deny speakers their right to do the same.

Freedom of the Press

What about Freedom of the Press. How important do the respondents think that is?

Seventy two percent agreed that, “it is important for our democracy that the news media act as a watchdog on government,” and 48% agreed with the statement that the news media, “tries to report the news accurately and without bias.” Not surprisingly, the reactions to the latter statement differ wildly between the two largest political parties, with 39% of Republicans agreeing compared with 56% of Democrats. This trend continued when respondents were asked if they agreed with the statement, “The spread of fake news and misinformation on the internet is a serious threat to our democracy.” While 77% agreed that fake news was a threat, the split was 84% for Republicans and 77% for Democrats.

Freedom of Religion

The last question asked on the SOFA survey involved Freedom of Religion. Respondents were asked if freedom of religion applied to all groups, “even those that most people would consider extreme or fringe.” Overall, 82% agreed. Even when broken down by the religion of the respondent, the differences were only a few percentage points. Only 5% of respondents strongly disagreed with the statement.

Conclusion

What is the state of the First Amendment? While this report is over two years old, I would say the overall health of the First Amendment is not good at all, but there is good news among the bad. Yes, only could 29% not name a single right protected by the First Amendment, but that was the lowest percentage I’ve seen in the last seven surveys. And while the percentage that could name a single freedom was down a few points, the number that could name two freedoms was up from 12% to 22%. There also seems to be a sentiment that students should be able to express themselves, both in school newspapers and on social media, without reprisals from the schools. Compare that with the sentiments that the First Amendment goes too far and that those with potential controversial opinions should be disinvited from speaking at public institutions. The opinions that social media companies are subject to First Amendment restrictions, even after having it read to them, shows the general lack of understanding. Are things better in 2021 than they were in 2019? I’ve certainly not seen any evidence to that effect.

The good news behind this report is that it shows that many of the issues in our country are based on a lack of understanding of the supreme law of the land. That may not sound like good news, but remember, as Thomas Jefferson said:

I know no safe depository of the ultimate powers of the society, but the people themselves: and if we think them not enlightened enough to exercise their controul with a wholsome discretion, the remedy is, not to take it from them, but to inform their discretion by education. this is the true corrective of abuses of constitutional power.

Thomas Jefferson

That is why I started The Constitution Study, so that We the People realize we can educate ourselves and that we must work to educate others if we wish to live free.

Maybe you found this report depressing. Hopefully, rather than wallowing in what is wrong, together we can work to make it right.

© 2022 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

February 28, 2022

• Is American a democracy or a republic?
• What is the difference between a democracy and a republic?
• What responsibility does the federal government have to protect our republican form of government?

We keep hearing about threats to America’s democracy. Occasionally, I’ll even hear someone point out that the United States is not a democracy, but a republic. How many Americans know the difference? And just what are the responsibilities of the federal government to protect that republican form of government?

Republic vs Democracy

If you’ve followed The Constitution Study for any length of time, you know that I’m a stickler for definitions. So the first thing we need to do is define some terms.

Government by the people; a form of government, in which the supreme power is lodged in the hands of the people collectively, or in which the people exercise the powers of legislation. Such was the government of Athens.

DEMOCRACY: Webster’s 1828 Dictionary

1. A commonwealth; a state in which the exercise of the sovereign power is lodged in representatives elected by the people. In modern usage, it differs from a democracy or democratic state, in which the people exercise the powers of sovereignty in person. Yet the democracies of Greece are often called republics.

REPUB’LIC: Webster’s 1828 Dictionary

The main difference between a democracy and a republic is the election of representation. I’ve met several people who believe this is a difference without a distinction, but it is an important difference. As some of our Founding Fathers put it:

We are now forming a republican government. Real liberty is neither found in despotism or the extremes of democracy, but in moderate governments —

Alexander Hamilton – Federal Convention, June 26, 1787

Democracy is nothing more than mob rule, where 51% of the people may take away the rights of the other 49%.

Thomas Jefferson

Democracy… while it lasts is more bloody than either aristocracy or monarchy. Remember, democracy never lasts long. It soon wastes, exhausts, and murders itself. There is never a democracy that did not commit suicide.

John Adams

and my personal favorite…

Democracy is two wolves and a lamb voting on what to have for lunch. Liberty is a well-armed lamb contesting the vote!

Benjamin Franklin

History has shown that democracies are not the peace, love, and kumbaya environments we’ve been led to believe. All that’s necessary to see the distinction between a democracy and the republic we have here, is to look at the differences between the American and French Revolutions. Sure, we’ve had turmoil in the United States, but we still live under the same Constitution and government that we created in 1787. Compare that with the turmoil in France, with the Reign of Terror which led to the collapse of the “republic” and the introduction of an empire under Napoleon.

The fundamental concept behind a democracy is majority rule. Don’t get me wrong, allowing the majority to decide a course of action is generally a good thing, but there are three major problems running a country that way. First, how do you get 330 million people to vote on legislation, much less take the time and effort necessary to consider the long-term impact? Simply take a look at the ballot proposition amendment processes in California and Florida and you can see what I’m talking about. Somebody gets enough signatures to put something on the ballot, the special interest groups promote or disparage it, and then most of the voters make an emotional decision without reading the amendment, much less considering it in depth. Which leads us to the second major issue.

It’s rarely a majority that actually makes the decision, but a vocal and influential minority that steers the majority in their preferred direction. Look at the social changes over last few years. According to Statista, homosexuals, bi-sexuals, and transgenders, represent only 5.6% of the population, but look at the demands they make over the rest of us. Or consider the influence political parties have used to direct their members’ decisions on numerous topics. Now, with the media, social media, and politicians working hard to restrict your ability to see anything other than the approved narrative, an even smaller group of people are directing the will of the majority.

Lastly, in a democracy, if someone or some group can convince a majority of the people to infringe on your rights, then it becomes law. In a democracy, your right to freedom of religion, speech, and press only exists at the sufferance of the majority. Your right to be free from unreasonable searches and seizures, to a trial by an impartial jury, or even to petition the government for a redress of grievance can be taken away by the simple majority vote.

While a republic deals with the voting issue, it does nothing to fix the influence of a minority over the crowd or the protection of rights. Your legislators are just as influenced by vocal minorities as the people are, and in a simple republic a majority vote of the legislature could take away your rights. Which is why America is not merely a Republic, we are a Constitutional Republic.

4. The established form of government in a state, kingdom or country; a system of fundamental rules, principles and ordinances for the government of a state or nation. In free states, the constitution is paramount to the statutes or laws enacted by the legislature, limiting and controlling its power; and in the United States, the legislature is created, and its powers designated, by the constitution

CONSTITUTION: Webster’s 1828 Dictionary

By establishing the Constitution not just by custom but by law, being the supreme law of the land means there is a check upon government’s ability to infringe on your rights. Now, neither legislatures or the people can take away your rights by simple vote; only the actions of three-fourths of the states can change the Constitution. As with any other law, it is merely ink on paper, or in this case, ink on parchment. The Constitution itself can do nothing to protect your rights; it is up to We the People to use it to do so. If the American people do not uphold the Constitution, then we will lose the republic.

Hold on, my friends, to the Constitution and to the Republic for which it stands. Miracles do not cluster, and what has happened once in 6,000 years, may not happen again. Hold on to the Constitution, because if the American Constitution should fail, there will be anarchy throughout the world.

Daniel Webster

Duties of the United States

So if the United States is a republic, what about the states themselves? What form of governments do states have, and what role does the federal government have over them?

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence. 

U.S. Constitution, Article IV, Section 4

Article IV, Section 4 of the Constitution tasks the United States with thee objectives regarding the states: Insuring they have a republican form of government, protecting them from invasion, and when called upon, to protect them against domestic violence. Let’s look at each of these individually.

Republican Form of Government

Simply put, the United States is to guarantee that each state has a republican form of government. What does that mean? The government of each state was created by its own constitution. In those constitutions, the three branches of each state government are defined, procedures established, and limits imposed. Many, but not all states, have in their constitutions a statement that all power is inherent in the people. This is the sovereign power Noah Webster mentioned in his definition of a republic. Each state constitution establishes a process for electing representatives in the legislature and for electing the state’s chief executive (the governor). Again many, but I don’t believe all states, also elect those who serve in the judicial branch. Congress, when admitting new states to the union under Article VI, Section 3, must insure that they have a republican form of government. Beyond that, what is the role of the United States in the governing of the states?

Some have claimed that the United States has the power to oversee elections in the states under their guarantee of a republican form of government. Others claim the United States has the power to oversee how a state’s apportioned representation is allocated in an effort to guarantee not only a republican form of government, but one that is considered fair by the feds. But does guaranteeing a form of government include regulating the processes of that government or is this just another usurpation of state power by those in Washington, D.C.?

Protecting Against Invasion

The recent influx of illegal aliens, with the tacit approval of the current administration, have led some to declare this an invasion. But does the rhetoric match up with the definition?

INVA’SION, noun s as z. [Latin invasio, from invado. See Invade.]

1. A hostile entrance into the possessions of another; particularly, the entrance of a hostile army into a country for the purpose of conquest or plunder, or the attack of a military force.

INVA’SION: Webster’s 1828 Dictionary

INVASION. The entry of a country by a public enemy, making war. 

INVASION: The Free Legal Dictionary

So does the illegal entrance into this country constitute an invasion? Does it matter how many are illegally entering the country? According to both Noah Webster and The Free Legal Dictionary, the answer is no. There is no hostile army entering our country, neither is there an attack by a military force. What we have is the natural consequence of the states handing over their power to regulate immigration to another, specifically the United States.

I’m sure many of you are complaining that immigration is a federal issue, but not according to the Constitution. Search all you want, you will not find the power to regulate immigration in the Constitution of the United States. Instead what you will find is Article I, Section 8, Clause 4

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

Article I, Section 8, Clause 4

Congress has the power to create uniform rules for becoming a citizen, not for immigration from a foreign country. According to the Tenth Amendment, any powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states. Therefore, the power to regulate immigration is a state power. By asking Washington, D.C. to do what they should do for themselves, these border states have left themselves vulnerable to the whims of Washington, D.C. politics.

Protecting Against Domestic Violence

Does the United States have the authority to deal with domestic violence in the states? Only when the legislature of a state, or its executive when the legislature is not in session, requests it. That is why President Trump did not send in federal forces to quell the violence that shook so many of our major cities in the summer of 2020; the states didn’t ask for it. Yes, President Trump sent in federal agents, but only to protect federal property. This was to fulfill his duty to execute the laws of the United States. Without a request to quell domestic violence from the states, the President had no legal authority to get involved.

Conclusion

After the Constitutional Convention, when asked what type of government they had given us, Benjamin Franklin stated, “A Republic, if you can keep it.” The American people should take that admonition very seriously, because today we are losing the republic. How can we expect the United States to guarantee a republican form of government to the states, when so many in the states don’t realize we are a republic? More and more people either do not know or do not care that we are a republic not a democracy. They are promoting the idea that everything must be democratic and that anything which they can get a majority to acquiesce with must be done. It is unfortunate that some go so far as to claim that the American people are required to acquiesce to whatever the current political dogma demands, whether it contradicts the Constitution or not.

Those who have handed over their responsibility to the federal government are no better. Whether individuals, localities, or states, they further degrade the republic by violating the consent of the governed codified in the Constitution, weakening the sovereignty of the people in favor of political expediency.

The Constitution for the United States of America is the oldest national constitution in the world, and second only to the Constitution of the Commonwealth of Massachusetts in age. Two hundred and thirty four years is a good run, but that is no guarantee that it will continue. If we wish to uphold the Constitution and the Republic for which it stands, then it’s up to We the People to work to keep it. Otherwise, our future may look more like Napoleonic France, or worse, the Reign of Terror that proceeded it.

© 2022 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

February 14, 2022

• Do you know how we elect a President?
• Do you know who is in charge of Presidential elections?
• What do you think would happen if Congress set the rules for Presidential elections?

Does Congress have the legal power to regulate Presidential elections? The answer is no. Yet Senators Angus King, Amy Klobuchar, and Dick Durbin have released a discussion draft of their legislation to place Congress in control of the Presidential election process, in direct violation of the Constitution of the United States. Let’s look at this blatant act of theft in the light of what the Constitution actually says. Then we can decide how to deal with these oath-breakers.

Following months of research and consultation with outside experts and scholars, Senators share proposal to address ambiguities in 1887 law

King, Klobuchar, Durbin Share Discussion Draft to Modernize Electoral Count Act

The first question anyone should ask when considering a piece of legislation is: “Is it constitutional?” Meaning, is it enacting a power delegated to that government or is it prohibited by the Constitution? So let’s look at the power this legislation claims to exercise and see if it’s constitutional or not.

To amend title 3, United States Code, to revise the rules for Presidential elections and counting electoral votes, and for other purposes.

Discussion Draft of the Electoral Count Modernization Act

This legislation claims the power to revise the rules for two things: Presidential elections and counting electoral votes. The first question we must ask is does the Constitution delegate to Congress the power to regulate Presidential elections?

Presidential Electors

SEC. 2. REVISION OF RULES RELATING TO PRESIDENTIAL ELECTIONS.

(a) IN GENERAL.—Chapter 1 of title 3, United States Code, is amended—

(1) by striking sections 1 and 2 and inserting the following:

‘‘§ 1.Time of choosing electors

‘‘(a) IN GENERAL.—The time of choosing electors of President and Vice President shall be, in each State, election day.

‘‘(b) PROHIBITION ON USING ALTERNATIVE DATES.—No State may establish any day other than election day as the time for choosing electors of President and Vice President.

Discussion Draft of the Electoral Count Modernization Act

The first change this legislation would make is to the time of choosing electors. This is a power delegated to Congress.

The Congress may determine the Time of choosing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

U.S. Constitution, Article II, Section 1, Clause 4

From there on, the legislation attempts to regulate the manner in which presidential electors are chosen.

‘‘(c) POPULAR ELECTIONS.—

‘‘(1) IN GENERAL.—In the case of a State that chooses electors by popular election, the last day on which popular ballots may be cast in such election shall be election day.

Discussion Draft of the Electoral Count Modernization Act

That power, however, is specifically given to the state legislatures.

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress:

U.S. Constitution, Article II, Section 1, Clause 2

The proposed legislation goes on to “allow” states to establish by law how to treat ballots, allow for mail-in ballots, deal with those waiting to cast ballots when the polls close, etc. The law even “allows” the states to set rules for resolving whether a ballot was filled out and submitted on time, as long as it complies with federal law. This legislation would establish a procedure for extending the time for voting under certain conditions, such as a catastrophic event, major disaster, or act of terrorism. The legislation would even establish a criminal penalty for anyone causing a catastrophic event to extend the time for voting.

This legislation would also “allow” states to provide alternative electors, as long as they did so by election day. These electors would be the only ones allowed to fill any vacancies that may happen before the electors vote. This legislation would establish a standard for making the final determination of the appointment of electors, such determination to be final and conclusive. This final determination is to be certified by the state official responsible for the duty or by the judgment of a federal court. If a state does not reach a final decision by the deadline required by this legislation, any of the candidates for President or Vice President can bring a civil action seeking a declaratory judgment in federal court. This legislation even claims the power to bind a state’s governor.

FINAL DETERMINATION BINDING ON GOVERNOR.—For purposes of the duties of the Governor set out in section 6, a final determination of the appointment of electors by a State under this section shall be conclusive and the only names of electors contained in the certificates of identification of electors that are transmitted under that section. If any State official purports to discharge the duties set out in section 6 in a manner inconsistent with this subsection, such actions shall be void and without legal effect; and no State official or purported elector may certify or transmit to any official listed in sections 6 or 11 any purported certificate of identification of electors contrary to the final determination, and any action by a State official or purported elector certifying or transmitting such certificate contrary to the final determination shall be void and without legal effect.

Discussion Draft of the Electoral Count Modernization Act

How nice of Congress. There’s just one problem, because none of this is authorized by the Constitution of the United States. Since establishing rules for choosing presidential electors is not a power delegated to the United States by the Constitution, that power remains with the states.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

U.S. Constitution, Amendment X

This legislation then goes on to create a whole new set of rules for the issuance and transmission of the certificates of those chosen to be electors.

‘‘(a) DUTIES OF THE GOVERNOR.—
‘‘(1) ISSUANCE OF CERTIFICATES OF IDENTIFICATION OF ELECTORS.—The governor of each State shall—

‘‘(A) issue 14 duplicate original certificates of identification of electors as described in paragraph (2),

‘‘(B) transmit such duplicate original certificates of identification of electors as provided in paragraph (3), and

‘‘(C) make publicly available on a website maintained by the governor, a copy of one such duplicate original of the certificate of identification of electors.

Discussion Draft of the Electoral Count Modernization Act

There is no requirement in the Constitution for the states to tell Congress who was been chosen as electors; it’s none of their business. To make matters worse, should a governor fulfill their oath to support the Constitutions of their state and the United States and ignore these illegal rules, Congress proposes to take the power to determine the slate of electors out of the hands of the duly elected officials of the state and place it in the hands of the federal courts.

‘‘(A) IN GENERAL.—If the governor of a State fails to execute the duties under this subsection by the date applicable under paragraph (3)(B), the chief State election official of the State shall execute such duties within one day for the governor’s failure.

‘‘(B) FAILURE BY CHIEF STATE ELECTION OFFICIAL.—If the governor fails to execute the duties under this subsection by the date applicable under paragraph (3)(B) and the chief State election official fails to execute the duties under subparagraph (A), then any candidate for President or Vice President on the ballot in that State may bring an action in the Federal district court of the district in which the State capital of the State whose determination is at issue is located or the Federal district court for the District of Columbia seeking declaratory, injunctive, or other appropriate equitable relief to ensure the identity of the electors listed on the certificate of identification reflects the final determination under section 5. Any judgment in such action, if neither stayed nor modified on appeal, shall be treated for purposes of this chapter in the same manner as a certificate of identification of electors issued under this section, and the court shall direct the preparation and transmission of, or itself prepare and transmit, any document required to effectuate the judgment.

Discussion Draft of the Electoral Count Modernization Act

Nowhere in the Constitution is Congress delegated the authority to determine the handling of the election certificates before they are delivered. Yet this legislation creates an extended set of rules for the electors to deliver their votes. It would require seven (7) duplicate original certificates with the lists of votes for President and Vice President, adding an outer envelope with a copy of the certificate, and continuing the illegal practice of sending copies of the certificates not only to the President of the Senate, but to the Speaker of the House, the Secretary of State, and the Chief Justice of the Supreme Court. All in direct violation of the process required by the Twelfth Amendment:

and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;

U.S. Constitution, Amendment XII

Counting Elector’s Votes

Not only would this legislation unlawfully regulate the appointment of presidential electors, it ignores the Constitution regarding the counting of their votes.

‘‘(2) PRESIDING OFFICER.—
‘‘(A) IN GENERAL.—Except as provided in subparagraph (B), the President pro tempore of the Senate shall be the presiding officer at the joint meeting of the Senate and House of Representatives referred to in paragraph (1).

‘‘(1) PRESENTATION OF ELECTORAL CERTIFI CATES.—In the alphabetical order of the States, the Secretary of the Senate shall open in the presence of the tellers the outer envelope containing for a State the certificate of identification of electors and the sealed certificate of votes provided to the President of the Senate under section 11, and shall make a preliminary determination that the State has submitted its list of electors which list shall have been previously made available to the members of the Senate and the House of Representatives.

Discussion Draft of the Electoral Count Modernization Act

That’s incorrect, because the Twelfth Amendment clearly states the role of opening the certificates and having them counted belongs to the President of the Senate, who is the sitting Vice President.

the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;

U.S. Constitution, Amendment XII

Furthermore, there is nothing in the Constitution about making these certificates available to the members of Congress before they are opened in a joint session or for a “preliminary determination” by the Secretary of the Senate. This legislation changes the process for objections to be heard, something that is part of current federal law and not in the Constitution.

‘‘(2) CALL FOR OBJECTIONS.—After the Secretary of the Senate has made the preliminary determination under paragraph (1) with respect to a State, the presiding officer shall call for objections to the validity of the certificate of identification of electors of such State.

Discussion Draft of the Electoral Count Modernization Act

As a final finger into the eye of the Constitution, and in fact representative government, this legislation claims the power to determine what to do should no decision be made in time for the inauguration:

‘‘(3) If the Administrator has not made the announcement under paragraph (1) by the third Tuesday after election day (as defined in section 21 of title 3, United States Code), the Administrator shall, for purposes of this Act—
‘‘(A) treat as President-elect the 2 candidates for President with the most pledged votes of electors of President, based on certifications by States of their final canvass; and
‘‘(B) treat as Vice-President-elect the 2 candidates for Vice President with the most pledged votes of electors of Vice President, based on certifications by States of their final canvass.

Discussion Draft of the Electoral Count Modernization Act

Compare that to what the Constitution actually says:

… If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

U.S. Constitution, Amendment XX, Section 3

Congress doesn’t get to decide who acts as President unless both the President elect and Vice President elect have yet to be decided by inauguration day. In that case, the law is to determine who is to act as President, not establish a committee for the Presidency or Vice Presidency.

Conclusion

My guess is few of you have heard about this proposed legislation. It is yet another example of the corruption, lawlessness, and unfaithfulness to their oath that so many in Congress display. If those in Congress are so ignorant, reckless, and corrupt, why do we keep hiring them to serve us? As President James A. Garfield said:

[N]ow more than ever before, the people are responsible for the character of their Congress. If that body be ignorant, reckless and corrupt, it is because the people tolerate ignorance, recklessness and corruption. If it be intelligent, brave and pure, it is because the people demand these high qualities to represent them in the national legislature …

James A. Garfield

It appears most of the American people are willing to tolerate ignorance, recklessness, and corruption. That means this abuse of the Constitution, the experiment in self government, and the consent of the governed is ultimately our fault. The question is, will the American people do anything to stop it before it becomes “law”?

© 2022 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

February 7, 2022

• How are the Emergency Use Authorization laws being manipulated in order to promote “vaccines” that are not legally vaccines?
• What is the role of medical ethics in the ongoing push for “vaccine” mandates?
• What is informed consent and why is it so important?

Many of you may be wondering what medical ethics has to do with the Constitution. Many who’ve been following what’s been going on with the COVID-19 “vaccine” and related mandates have asked me about the Nuremberg Code. While this set of medical ethics is not law in the United States, it does support the rights protected by the Constitution. Understanding this code, and how the Constitution protects your rights, is paramount if liberty and freedom are to survive the attack they are under by enemies both governmental and societal.

On December 9, 1946, criminal proceeding against 23 German physicians and administrators were heard by an American military tribunal. They were charged with willingly participating in crimes against humanity, specifically for medical experiments conducted on human beings. In the tribunals’ August 19th verdict, they produced ten points entitled Permissible Medical Experiments, which became known as The Nuremberg Code.

The Nuremberg Code

During the Nazi regime in Germany, people were the subjects of medical experiments. Some claimed that it was the only way to study certain things, and that the good to society outweighed the pain, suffering, and loss suffered by the subjects. Others looked at both the forced subjection to experimentation and the horrendous treatment of some of the subjects and vehemently disagreed. The tribunal, after looking at the evidence presented to it, determined there must be a way to reap the benefits of human experimentation without the cruel and horrific treatment of the test subjects. Enter The Nuremberg Code.

The great weight of the evidence before us is to the effect that certain types of medical experiments on human beings, when kept within reasonably well-defined bounds, conform to the ethics of the medical profession generally. The protagonists of the practice of human experimentation justify their views on the basis that such experiments yield results for the good of society that are unprocurable by other methods or means of study. All agree, however, that certain basic principles must be observed in order to satisfy moral, ethical and legal concepts:

Permissible Medical Experiments

How could the medical community gather the data it needs while still respecting the rights of their potential test subjects? The first, largest, and most important point of The Nuremberg Code is the idea of informed consent.

1. The voluntary consent of the human subject is absolutely essential.

This means that the person involved should have legal capacity to give consent; should be so situated as to be able to exercise free power of choice, without the intervention of any element of force, fraud, deceit, duress, over-reaching, or other ulterior form of constraint or coercion; and should have sufficient knowledge and comprehension of the elements of the subject matter involved as to enable him to make an understanding and enlightened decision.

Permissible Medical Experiments

It’s absolutely essential that the subject not only consent to participate in the experiment, but that consent must be both voluntary and informed. One of the most horrific aspects of Nazi medical experiments was the forced participation of those considered Lebensunwerten Lebens (Life Unworthy of Life). To prevent that, The Nuremberg Code requires that the subject have both the legal capacity to give consent and the freedom of choice. Force, fraud, deceit, and duress are expressly forbidden. Furthermore, that consent must be not only free, but informed. The subject must be made aware of, and able to comprehend, both the risks and rewards of participating in the experiment. This was expounded on as the first point went on.

This latter element requires that before the acceptance of an affirmative decision by the experimental subject there should be made known to him the nature, duration, and purpose of the experiment; the method and means by which it is to be conducted; all inconveniences and hazards reasonably to be expected; and the effects upon his health or person which may possibly come from his participation in the experiment.

Permissible Medical Experiments

Before becoming a test subject, a person must be made aware of the nature, duration, and purpose of the experiment. They must also be told all of the risks they can reasonably expect, not only upon their health, but upon their person as well.

The first point of The Nuremberg Code goes on to identify who is responsible for making sure the subject has provided informed consent.

The duty and responsibility for ascertaining the quality of the consent rests upon each individual who initiates, directs or engages in the experiment. It is a personal duty and responsibility which may not be delegated to another with impunity.

Permissible Medical Experiments

It’s not the responsibility of the subject to track down all of this data, but of those who initiate, direct, or engage in the experiment. This means that everyone from the person who initiates the experiment to the person administering the product is responsible for insuring that the consent is both informed and voluntary. Notice that this is a personal responsibility, not something that can be pawned off onto someone else.

So what does The Nuremberg Code have to do with COVID-19 “vaccines”? The answer starts with how the “vaccines” were made available in the first place.

Emergency Use Authorization

The first thing we need to remember is that all of the COVID-19 “vaccines” available in the United States fall under an Emergency Use Authorization (EUA).

(a) In general
(1) Emergency uses
Notwithstanding any provision of this chapter and section 351 of the Public Health Service Act [42 U.S.C. 262], and subject to the provisions of this section, the Secretary may authorize the introduction into interstate commerce, during the effective period of a declaration under subsection (b), of a drug, device, or biological product intended for use in an actual or potential emergency (referred to in this section as an “emergency use”).

21 U.S.C. §360bbb-3

The idea is simple. In an emergency, the government will allow a drug, device, or biological product to enter the market before completing the regular approval process, which usually takes years. Certain conditions must exist before such an authorization can be legally issued. Let’s take a look at them one by one in relation to COVID-19

(c) Criteria for issuance of authorization
The Secretary may issue an authorization under this section with respect to the emergency use of a product only if, after consultation with the Assistant Secretary for Preparedness and Response, the Director of the National Institutes of Health, and the Director of the Centers for Disease Control and Prevention (to the extent feasible and appropriate given the applicable circumstances described in subsection (b)(1)), the Secretary concludes-
(1) that an agent referred to in a declaration under subsection (b) can cause a serious or life-threatening disease or condition;

21 U.S.C. §360bbb-3

Is COVID-19 a serious or life-threatening disease? There is evidence that the initial variants of the disease could be serious enough to require hospitalization and even cause death. However, in August of 2020 the Centers for Disease Control and Prevention (CDC) issued a report stating that 94% of the COVID deaths they were reporting involved more that just COVID. Using the data available by January 16, 2022, those 94% of deaths certificates listed an average of four additional causes of death. Which brings into question, how many of the over 800,000 deaths the CDC is reporting are people who died with COVID, not of it? As of the writing of this article, the CDC is reporting 862,494 total deaths. If less than 6% of those death certificates list only COVID as the cause of deaths, that means we are only sure that about 52,000 were caused by COVID, or about .015% of the U.S. population.

(2) that, based on the totality of scientific evidence available to the Secretary, including data from adequate and well-controlled clinical trials, if available, it is reasonable to believe that-
(A) the product may be effective in diagnosing, treating, or preventing-
(i) such disease or condition; or
(ii) a serious or life-threatening disease or condition caused by a product authorized under this section, approved or cleared under this chapter, or licensed under section 351 of the Public Health Service Act [42 U.S.C. 262], for diagnosing, treating, or preventing such a disease or condition caused by such an agent; and

(B) the known and potential benefits of the product, when used to diagnose, prevent, or treat such disease or condition, outweigh the known and potential risks of the product, taking into consideration the material threat posed by the agent or agents identified in a declaration under subsection (b)(1)(D), if applicable;

21 U.S.C. §360bbb-3

Based on the totality of scientific data, do the COVID “vaccines” diagnose, treat, or prevent the disease? While there was much hype about the effectiveness of these “vaccines” when they were first released, that bubble has well and truly burst. Well-controlled clinical trials, along with other studies, have shown that the effectiveness of these “vaccines” is short-lived at best, ranging between 2-6 months. Studies have shown that those who have received the “vaccine” can not only get COVID, but when they do they can spread it at least as easily as the “unvaccinated”. So not only do the “vaccines” not treat COVID, they neither prevent infection nor transmission. In other words, the “vaccines” are a private health concern, not a public one.

(3) that there is no adequate, approved, and available alternative to the product for diagnosing, preventing, or treating such disease or condition;

21 U.S.C. §360bbb-3

The evidence that existing approved medications were capable of treating COVID-19 has been around for more than a year. However, the same government bureaucracy that has been promoting these “vaccines” has conveniently not only failed to approve these products for treatment of COVID-19, they have lied about the evidence for their effectiveness.

(4) in the case of a determination described in subsection (b)(1)(B)(ii), that the request for emergency use is made by the Secretary of Defense; and

(5) that such other criteria as the Secretary may by regulation prescribe are satisfied.

21 U.S.C. §360bbb-3

These last two are not really an issue currently with COVID-19.

So what does this have to do with The Nuremberg Code? As I stated before, all of the “vaccines” currently available in the U.S. are NOT Food and Drug Administration (FDA) approved; they are issued under an EUA. That means, according to the law, they are either unapproved or conditionally approved.

(2) Approval status of product
An authorization under paragraph (1) may authorize an emergency use of a product that-
(A) is not approved, licensed, or cleared for commercial distribution under section 355, 360(k), 360b, or 360e of this title or section 351 of the Public Health Service Act [42 U.S.C. 262] or conditionally approved under section 360ccc of this title (referred to in this section as an “unapproved product”); or
(B) is approved, conditionally approved under section 360ccc of this title, licensed, or cleared under such a provision, but which use is not under such provision an approved, conditionally approved under section 360ccc of this title, licensed, or cleared use of the product (referred to in this section as an “unapproved use of an approved product”).

21 U.S.C. §360bbb-3

It’s not only the “vaccines” that are being distributed under an EUA, because the COVID-19 RT-PCR test is as well. I’m sure some of you are screaming that “The FDA approved the Pfizer vaccine!” Well, yes and no. You see the FDA gave approval for the Comirnaty brand of the Pfizer-BioNTech “vaccine”, but Pfizer has refused to distribute that particular version in the United States. Furthermore, the FDA required, in their approval letter, that BioNTech conduct no less than six additional studies because they could not assess the risks of myocarditis and pericarditis from the data that had already been submitted.

Not only are the COVID-19 “vaccines” only available in the U.S. under an EUA, but both the Pfizer and Moderna products are based on a new technology, mRNA, which has never been tested in humans before, and is not even legally a vaccine.

A preparation of a weakened or killed pathogen, such as a bacterium or virus, or of a portion of the pathogen’s structure, that is administered to prevent or treat infection by the pathogen and that functions by stimulating the production of an immune response.

American Heritage® Dictionary of the English Language

Even a recent article from the National Institutes of Health (NIH) refers to these mRNA “vaccines” as experimental. So even if you haven’t taken a COVID-19 “vaccine”, you are participating in a medical experiment if you’ve had an PCR test.

We’ve looked at the law and The Nuremberg Code, but what does all of this have to do with the Constitution?

Liberty, Property, and Informed Consent

No person shall … be deprived of life, liberty, or property, without due process of law; …

Amendment V

Your right to liberty and property go hand and hand with informed consent. I have been saying since the first mask mandates were issued, that these violated the Constitution because they denied you of the right to live at liberty without following due process (a process designed to protect the rights of the individual). Also, they violate your right to the property you have in your own body. These mask mandates though are nothing when compared to the infringement of these rights that “vaccine” mandates impose. Masks are not human medical experimentation. COVID-19 “vaccines” are.

The Nuremberg Code requires that, before you participate in a medical experiment, you must provide informed consent. Looked at another way, your right to liberty and the property you have in your body means you cannot be asked to participate in a medical experiment without informed consent. Have the American people been given the legal capacity to give informed consent when it comes to COVID-19 “vaccines”? Let’s go back to The Nuremberg Code and break informed consent down step by step.

This means that the person involved should have legal capacity to give consent;

Permissible Medical Experiments

Throughout most of the states, the age at which a person can legally give consent is around 18 years of age. Now we are seeing the medical community push for minors to be allowed to consent to receive these “vaccines”. The Journal of the American Medical Association (JAMA) published an article in July, 2021 recommending “a policy allowing minors to receive the vaccine without parental consent would use a sliding scale of decision-making authority”. In short, they want a policy that allows children to participate in a medical experiment without the legal capacity to give consent.

should be so situated as to be able to exercise free power of choice, without the intervention of any element of force, fraud, deceit, duress, over-reaching, or other ulterior form of constraint or coercion;

Permissible Medical Experiments

It seems almost daily I hear of another group being pressured to participate in this medical experiment. From cities and states requiring proof of “vaccination” to participate in society, to government regulations requiring employers institute mandates for their employees, the push is on to get everyone to be part of this experiment. This, however, is not the free power of choice. These mandates are coercion, duress, and an over-reaching exercise of powers. Given the data from the CDC about the safety and efficacy of these “vaccines”, I would say this push to vaccinate amounts to fraud. Add to that the work of media, social media, and celebrities, to declare anyone questioning the efficacy or dangers of these “vaccines” as “anti-vaxers” or distributing “medical misinformation”, you have deceit on an international scale.

and should have sufficient knowledge and comprehension of the elements of the subject matter involved as to enable him to make an understanding and enlightened decision.

Permissible Medical Experiments

How can the American people have sufficient knowledge and comprehension of these vaccines when the FDA refuses to let their safety data be independently reviewed? How can the American people provide an informed consent when everyone from social media to the CDC, from networks to the FDA, and from celebrities to the White House, label anything contrary to the approved narrative as “medical misinformation”? There can be no true knowledge about the “vaccines” when those who are expected to share information instead hide what they disagree with.

Conclusion

All of this comes just from the first point of The Nuremberg Code. I do not have time to go into the other nine points. Perhaps I will in a future article. What I have shown is not only that those in government, entertainment, academia, business, and everyday citizens at all levels have been promoting a vast medical experiment, not only on Americans, but on people worldwide. People from bureaucrats to doctors, nurses, and volunteers have been violating the medical ethics contained in The Nuremberg Code, the laws of the United States and, most likely, the laws of your state as well.

There are a group of people for whom the phrase “Never Again” has special meaning. We were supposed to have learned our lesson from the Nazis. Lessons about the dangers of rhetoric without evidence, of emotion over reason, of treating groups of people as sub-human. We were supposed to have learned the dangers of unrestrained power and a lack of ethics. We were supposed to have learned of the horrible consequences of human medical experimentation.

I guess we have not learned from our history. Which means Santayana was right: “Those who cannot remember the past are condemned to repeat it.”

© 2022 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com