By Paul Engel

July 19, 2023

• All of the executive power of the United States is vested in one person, the President of the United States.
• Contrary to popular opinion, most of the powers of the United States are not vested in the President, but in Congress.
• Ever wonder why we have such a unique way of electing the President?

This is the second in a three-part series on the branches of the federal government. The first article covered the Legislative branch, but this time we’ll look at the role of the executive. While there are many misconceptions about the roles of the three branches of government, most seem to be about the executive branch. Like referring to the President as the most powerful man in the world, or to this branch being an independent executive agency. So let’s delve into Article II of the Constitution and learn more about our nation’s chief executive.

The Executive Power

The second of the three branches of government is called the executive because that’s its job.

EXEC’UTIVE, noun The officer, whether king, president or other chief magistrate, who superintends the execution of the laws; the person who administers the government; executive power or authority in government.

Executive – Webster’s 1828 Dictionary

It is said the legislative branch writes the law and the executive executes them, but that is a bit of a misunderstanding as well.

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

The executive power of the United States isn’t vested in the executive branch, but in a single person: The President of the United States. All of the executive agencies, and those who work in them, are exercising the President’s power and therefore report to him.

he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices,

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

While the powers of the President may seem awesome, especially the way it is treated today, a quick look at Article II shows that there’s actually very little the President can do on his own.

Sole Powers of the President

What are the powers vested solely in the President? As stated before, the President has the power and responsibility to execute the laws and powers of the United States.

he shall take Care that the Laws be faithfully executed, 

U.S. Constitution, Article II, Section 3,

In addition to executing the powers of the government of the United States, the President has the power to pardon.

he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

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

What else can the President do all by himself?

he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper;

U.S. Constitution, Article II, Section 3,

The President can convene both houses of Congress, but only under extraordinary circumstances, such as after the Pearl Harbor and September 11th attacks. This is why the President is required, from time to time, to inform Congress of the state of the union. The address of the same name we’ve all become accustomed to only happens if the House of Representatives invites the President to speak. Since both houses of Congress have to agree before they can adjourn, the President can settle any disagreement between them on that fact.

The President is also responsible for commissioning all officers of the United States.

and shall Commission all the Officers of the United States.

U.S. Constitution, Article II, Section 3,

Lastly, the President receives foreign ambassadors and ministers.

he shall receive Ambassadors and other public Ministers; 

U.S. Constitution, Article II, Section 3,

That’s it. Those are the only powers delegated solely to the President of the United States. You may be asking, what about foreign policy, regulations, or even the fact that he is the Commander in Chief of the military?

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States;

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

Yes, the President is the Commander in Chief of the military, but he is not the one that makes the rules for them. Congress has the power:

To make Rules for the Government and Regulation of the land and naval Forces;

U.S Constitution, Article I, Section 8, Clause 14

Contrary to popular belief, the President can’t even call up the militia by himself.

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

U.S Constitution, Article I, Section 8, Clause 15

Shared Powers

So, if most of the powers we think the President has aren’t his alone, who does he share those powers with?

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;

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

We think that the President makes treaties, but he does not, at least not alone. Notice, it doesn’t say the President negotiates treaties and then the Senate ratifies them. No, it says the President is to make treaties with the advice and consent of the Senate. In other words, the Senate is to be involved in the negotiation process.

and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: 

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

While the President does nominate ambassadors, judges, and other officers of the United States, he is to do so with the advice and consent of the Senate.

Why does the President need the advice and consent of the Senate and not the entire Congress? Remember, the two houses of Congress have different roles. The House of Representatives has always been elected by the people to represent the people. Members of the Senate, on the other hand, were originally appointed by the state legislature, to represent the state. After the Seventeenth Amendment, Senators are chosen by popular election of the people, but that does not change their role as representatives of the states. That means, when it comes to treaties and appointments, the President needs the advice and consent of the representatives of the states.

The President is tasked to execute the laws and powers of the United States, and can only execute his power to make treaties and appoint officers with the advice and consent of the Senate, who are representatives of the states. You may be sensing a theme here. The powers delegated to the United States, even the power to make laws, comes from the Constitution, which was ratified by the states. Contrary to popular belief, the President’s job is not to represent the people, but to represent the states. Which explains the unique way the President is elected.

Electing Presidents

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: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

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

Most people grossly misunderstand what we call the “Electoral College”. First of all, by college, we do not mean an institution of higher education.

In a general sense, a collection, assemblage or society of men, invested with certain powers and rights, performing certain duties, or engaged in some common employment, or pursuit.

COLLEGE – Webster’s 1828 Dictionary

Technically, if there were an electoral college, there would be fifty of them. You see, the electors don’t meet in one place, but in each of the fifty states.

The Electors shall meet in their respective states and vote by ballot for President and Vice-President,

U.S. Constitution Amendment XII

Back to the electors. Contrary to popular belief, the people do not elect the President, the states do. Each state appoints their electors for President based on the rules set forth by their state legislature. Currently, all fifty states appoint their presidential electors based on popular election for them in the state. Look closely at your ballot every four years, and you’ll see that you aren’t voting for President, but for electors for president who have pledged to vote for a specific candidate.

There is one other thing about electing our President that is unique: His qualifications for office.

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

U.S. Constitution, Article II, Section 1, Clause 5

Only the President has to be a natural born citizen of the United States. Not members of Congress, judges, or any other officer. There is quite a bit of controversy in many circles about the term “natural born citizen”. Some claim the person has to be born on U.S. soil, others that he or she must be born to two parents who are U.S. citizens. Some even claim that a commentary on International affairs is the legal basis for defining a natural born citizen. Let me show you how I’ve come to my understanding of the term. First, the definitions:

CITIZEN, noun

The native of a city, or an inhabitant who enjoys the freedom and privileges of the city in which he resides;

CITIZEN – Webster’s 1828 Dictionary

A citizen is the native of a city, or in our case a state or nation. They enjoy the freedoms and privileges of being a citizen, such as voting. Being born is pretty self explanatory, but what makes a citizen naturally born?

NATURAL, adjective [to be born or produced] …

Native; vernacular; as ones natural language.

NATURAL – Webster’s 1828 Dictionary

Natural is an adjective, it modifies the term born. So a natural born citizen could also be called a native born citizen, i.e., a citizen at birth. How does someone become a citizen at birth? Congress has the power to make rules for naturalization:

To establish an uniform Rule of Naturalization,

U.S Constitution, Article I, Section 8, Clause 4

Many are now rightly pointing out that Naturalization is a process for a non-citizen to become a citizen. Logically, if Congress gets to establish the rules for becoming a citizen, doesn’t it follow that those rules determine if naturalization is needed? In other words, when is a person a citizen at birth or when do they need to be naturalized? And if the rules of naturalization set by Congress determines that someone is a native citizen, they are, by definition, a natural born citizen.

I know that not everyone will agree with me on that point, which is why I’ve shown you the logic and evidence for my deductions. For those who point to Emerich de Vattel’s book, “Law of Nations”, as establishing the definition of a natural born citizen, let me point out that although the book was available to, and read by at least some of the Framers of the Constitution, nothing in the records of the Continental Congress points to any member referring to him or his book while discussing citizenship or the office of President.

Oath of Office

Meanwhile, every officer of the United States is required to take an oath of office, including to support the Constitution of the United States.

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States. 

U.S. Constitution, Article VI, Clause 3

Only the President has a specific oath required by the Constitution.

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:—”I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.” 

U.S. Constitution, Article II, Section 1, Clause 8

Conclusion

Rather than a king, like so many people seem to treat him, we see that the President is supposed to be a servant to the states. Executing the laws and powers of the United States, working with the representatives of the states in Congress to make treaties and appoint officers, and accepting foreign dignitaries is all done in service to the union of states. Does that sound like the most powerful man in the world?

Perhaps if more people read the Constitution, we would more fully understand the role of President it actually created, and advise their states to choose better candidates for the office of electors. You know, men and women that would actually execute the office to the best of their abilities, not to the advancement of their preferred special interests. People who would actually preserve, protect, and defend the Constitution of the United States and not actively work to dismantle it to advance their political party.

Then again, based on recent history, maybe bothering to understand the Constitution is just too much for a 21st century American.

© 2023 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

July 14, 2023

• What does Colorado have against freedom of speech?
• First Jack Phillips of Masterpiece Cakeshop, now Lorie Smith of 303 Creative, LLC. Both have had cases against Colorado for violating their freedom of expression.
• Will the latest Supreme Court opinion finally teach Colorado a lesson?

Freedom of speech has been under attack in this country, and Colorado has been a big part of it. First, Jack Phillips of Masterpiece Cakeshop has spent ten years trying to defend his right to not be compelled to create custom cakes with messages which violate his beliefs. So when Lorie Smith wanted to expand her business into developing custom wedding websites, she was concerned that Colorado would do to her what it was doing to Jack Phillips. Her request for an injunction went all the way to the Supreme Court.

Freedom of speech includes the freedom not to be compelled to speak as well, but what happens when a person’s freedom of speech conflicts with a state’s law? In the case of 303 Creative LLC v. Elenis, the question was asked if the State of Colorado could dictate to Ms. Smith what type of message she had to communicate in her business.

Like many States, Colorado has a law forbidding businesses from engaging in discrimination when they sell goods and services to the public. Laws along these lines have done much to secure the civil rights of all Americans. But in this particular case Colorado does not just seek to ensure the sale of goods or services on equal terms. It seeks to use its law to compel an individual to create speech she does not believe. The question we face is whether that course violates the Free Speech Clause of the First Amendment.

303 Creative LLC v. Elenis

I don’t know how many times I’ve covered this, but then I doubt the justices on the Supreme Court read my articles. This cannot be a First Amendment case because Congress did not make this law.

Congress shall make no law … abridging the freedom of speech, or of the press;

U.S. Constitution, Amendment I

Since Congress did not make this law, it cannot be a violation of the First Amendment. So what this case truly is, is a violation of the Colorado Constitution:

No law shall be passed impairing the freedom of speech; every person shall be free to speak, write or publish whatever he will on any subject, being responsible for all abuse of that liberty; 

Colorado Constitution, Article II, Section 10

It’s also a violation of the Fourteenth Amendment of the Constitution of the United States.

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

While the court opinion appears to focus on the First Amendment and freedom of speech, the real issue they were looking at was freedom of the press. Specifically, does the state have the power to compel others to publish content with which they disagree?

Through her business, 303 Creative LLC, Lorie Smith offers website and graphic design, marketing advice, and social media management services. Recently, she decided to expand her offerings to include services for couples seeking websites for their weddings. As she envisions it, her websites will provide couples with text, graphic arts, and videos to “celebrate” and “conve[y]” the “details” of their “unique love story.” … The websites will discuss how the couple met, explain their backgrounds, families, and future plans, and provide information about their upcoming wedding. All of the text and graphics on these websites will be “original,” “customized,” and “tailored” creations. The websites will be “expressive in nature,” designed “to communicate a particular message.” Viewers will know, too, “that the websites are [Ms. Smith’s] original artwork,” for the name of the company she owns and operates by herself will be displayed on every one.

303 Creative LLC v. Elenis

Ms. Smith wants to create and publish webpages, without being compelled to use them to communicate a message she doesn’t agree with. Well, at least that was her plan.

While Ms. Smith has laid the groundwork for her new venture, she has yet to carry out her plans. She worries that, if she does so, Colorado will force her to express views with which she disagrees. Ms. Smith provides her website and graphic services to customers regardless of their race, creed, sex, or sexual orientation. But she has never created expressions that contradict her own views for anyone—whether that means generating works that encourage violence, demean another person, or defy her religious beliefs by, say, promoting atheism. Ms. Smith does not wish to do otherwise now, but she worries Colorado has different plans. Specifically, she worries that if she enters the wedding website business, the State will force her to convey messages inconsistent with her belief that marriage should be reserved to unions between one man and one woman. Ms. Smith acknowledges that her views about marriage may not be popular in all quarters. But, she asserts, the First Amendment’s Free Speech Clause protects her from being compelled to speak what she does not believe. The Constitution, she insists, protects her right to differ.

303 Creative LLC v. Elenis

I’m sure this language came from Ms. Smith’s attorney, because it uses the same phrases I’ve seen in other opinions used by lawyers. Since I’ve already explained why this case cannot be a First Amendment issue, let me explain why this is a free press case, not a free speech one.

Freedom of What?

Both the First Amendment of the United States Constitution and Article II, Section 10 of the Colorado Constitution protect both freedom of speech and press. Have you ever considered the difference between the two?

The faculty of uttering articulate sounds or words

Speech – Webster’s 1828 Dictionary

Ms. Smith isn’t planning to utter articulate sounds or words in her business, but publishing websites.

The art or business of printing and publishing.

Press – Webster’s 1828 Dictionary

While Ms. Smith, and for that matter the Supreme Court, see this as a First Amendment Freedom of Speech case, it’s really a Colorado Constitution Freedom of Press case and a Fourteenth Amendment privileges and immunities cases.

To clarify her rights, Ms. Smith filed a lawsuit in federal district court. In that suit, she sought an injunction to prevent the State from forcing her to create wedding websites celebrating marriages that defy her beliefs. To secure relief, Ms. Smith first had to establish her standing to sue. That required her to show “a credible threat” existed that Colorado would, in fact, seek to compel speech from her that she did not wish to produce.

303 Creative LLC v. Elenis

Ms. Smith, having seen what had happened to Jack Phillips, and probably others, initiates a preemptive strike, filing a lawsuit and seeking an injunction against the State of Colorado before they have a chance to infringe on her rights. However, since she has not been aggrieved yet, she doesn’t have an obvious standing for the courts. Generally, courts don’t appear to like preemptive law suits, deciding to wait until someone actually suffers some harm before accepting them. In order to show that she had standing, Ms. Smith had to show a credible threat that the State of Colorado would compel her to publish websites that she did not want to produce.

In her lawsuit, Ms. Smith alleged that, if she enters the wedding website business to celebrate marriages she does endorse, she faces a credible threat that Colorado will seek to use CADA [Colorado Anti-Discrimination Act] to compel her to create websites celebrating marriages she does not endorse. … As evidence, Ms. Smith pointed to Colorado’s record of past enforcement actions under CADA, including one that worked its way to this Court five years ago. See Masterpiece Cakeshop,

303 Creative LLC v. Elenis

Did Ms. Smith have a credible threat that Colorado would compel her to produce websites celebrating marriages she doe s not endorse? Absolutely. All the court had to do was look at a previous case it had dealt with, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n. In that case the court found that Colorado had violated the Free Exercise Clause, not so much because they compelled speech, but because the Colorado Civil Rights Commission was hostile to Jack Phillips beliefs.

That consideration was compromised, however, by the Commission’s treatment of Phillips’ case, which showed elements of a clear and impermissible hostility toward the sincere religious beliefs motivating his objection. As the record shows, some of the commissioners at the Commission’s formal, public hearings endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, disparaged Phillips’ faith as despicable and characterized it as merely rhetorical, and compared his invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. No commissioners objected to the comments. Nor were they mentioned in the later state-court ruling or disavowed in the briefs filed here. The comments thus cast doubt on the fairness and impartiality of the Commission’s adjudication of Phillips’ case.

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n

Like all such cases, Ms. Smith’s case started in district court, where she lost. The case was appealed to the Tenth Circuit, which found that she did have standing, but was not entitled to the injunction she sought.

Turning to the merits, however, the Tenth Circuit held that Ms. Smith was not entitled to the injunction she sought. The court acknowledged that Ms. Smith’s planned wedding websites qualify as “pure speech” protected by the First Amendment. … As a result, the court reasoned, Colorado had to satisfy “strict scrutiny” before compelling speech from her that she did not wish to create. Id… Under that standard, the court continued, the State had to show both that forcing Ms. Smith to create speech would serve a compelling governmental interest and that no less restrictive alternative exists to secure that interest. … Ultimately, a divided panel concluded that the State had carried these burdens. As the majority saw it, Colorado has a compelling interest in ensuring “equal access to publicly available goods and services,” and no option short of coercing speech from Ms. Smith can satisfy that interest because she plans to offer “unique services” that are, “by definition, unavailable elsewhere.” …

303 Creative LLC v. Elenis

The Tenth Circuit acknowledged that Ms. Smith’s websites would be pure speech (press), so you would think that it would be protected. Unfortunately, under our current and irrational jurisprudence, we have this theory of “strict scrutiny”.

A standard of Judicial Review for a challenged policy in which the court presumes the policy to be invalid unless the government can demonstrate a compelling interest to justify the policy. …

Once a court determines that strict scrutiny must be applied, it is presumed that the law or policy is unconstitutional. The government has the burden of proving that its challenged policy is constitutional. To withstand strict scrutiny, the government must show that its policy is necessary to achieve a compelling state interest. If this is proved, the state must then demonstrate that the legislation is narrowly tailored to achieve the intended result.

Strict Scrutiny – The Free Legal Dictionary

Under this interpretation of “judicial review”, a court can find an act to be unconstitutional, but allow it anyway because of a “compelling government interest”. The fact that this is a direct violation of both the Supremacy Clause and the justices’ oaths of office doesn’t seem to bother them one bit.

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

As the supreme law of the land, once an act is found unconstitutional that should be the end of the debate. As has become quite common among today’s courts though, they’ve placed their preferences and options above their oaths to support the Constitution.

As these cases illustrate, the First Amendment protects an individual’s right to speak his mind regardless of whether the government considers his speech sensible and well intentioned or deeply “misguided,” … and likely to cause “anguish” or “incalculable grief,” …. Equally, the First Amendment protects acts of expressive association. … Generally, too, the government may not compel a person to speak its own preferred messages. Nor does it matter whether the government seeks to compel a person to speak its message when he would prefer to remain silent or to force an individual to include other ideas with his own speech that he would prefer not to include. … All that offends the First Amendment just the same.

303 Creative LLC v. Elenis

Your freedom to speak and publish is not subject to government regulation. Not only do the constitutions of the several states and the United States prohibit government from restraining your expression, no matter how misguided they may think it to be, they cannot compel or coerce you into expressing the message they would prefer. Suppressing, even eliminating a message they did not like, is exactly what the State of Colorado has done with the CADA.

As surely as Ms. Smith seeks to engage in protected First Amendment speech, Colorado seeks to compel speech Ms. Smith does not wish to provide. As the Tenth Circuit observed, if Ms. Smith offers wedding websites celebrating marriages she endorses, the State intends to “forc[e her] to create custom websites” celebrating other marriages she does not. … Colorado seeks to compel this speech in order to “excis[e] certain ideas or viewpoints from the public dialogue.” … Indeed, the Tenth Circuit recognized that the coercive “[e]liminati[on]” of dissenting “ideas” about marriage constitutes Colorado’s “very purpose” in seeking to apply its law to Ms. Smith.

303 Creative LLC v. Elenis

Before we look at the majority opinion, let’s take a quick look at the dissent from justice Sotomayor, joined by justices Kagan and Jackson

Dissent

Five years ago, this Court recognized the “general rule” that religious and philosophical objections to gay marriage “do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.” … The Court also recognized the “serious stigma” that would result if “purveyors of goods and services who object to gay marriages for moral and religious reasons” were “allowed to put up signs saying ‘no goods or services will be sold if they will be used for gay marriages.’ ”…

Today, the Court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class. Specifically, the Court holds that the First Amendment exempts a website- design company from a state law that prohibits the company from denying wedding websites to same-sex couples if the company chooses to sell those websites to the public. The Court also holds that the company has a right to post a notice that says, “ ‘no [wedding websites] will be sold if they will be used for gay marriages.’ ”…

303 Creative LLC v. Elenis

Reading this opening to the dissent, I was reminded of a letter written by Dietrich Bonhoeffer that was quoted under the title Theory of Stupidity:

Against stupidity we are defenseless. Neither protests nor the use of force accomplish anything here; reasons fall on deaf ears; facts that contradict one’s prejudgment simply need not be believed —

Theory of Stupidity, Dietrich Bonhoeffer

A quick look at the facts stipulated by both Ms. Smith and the State of Colorado shows that at no time did Ms. Smith deny services to people based on their sexual preferences.

• To facilitate the district court’s resolution of the merits of her case, Ms. Smith and the State stipulated to a number of facts:
  • Smith is “willing to work with all people regardless of classifications such as race, creed, sexual orientation, and gender,” and she “will gladly create custom graphics and websites” for clients of any sexual orientation.
  • She will not produce content that “contradicts biblical truth” regardless of who orders it.

303 Creative LLC v. Elenis

Rather, she recognized it was illegal for the State of Colorado to coerce her to express a message with which she disagreed. It appears that, as Mr. Bonhoeffer noted, the dissenting justices “reasons fall on deaf ears; facts that contradict one’s prejudgment simply need not be believed”. It’s like getting directions to drive from Nashville to Boston, but starting in San Diego. With such a flawed starting point it’s no wonder these justices came to such a ridiculous, may I even say stupid, conclusion. While the language he used was quite different, it appears Justice Gorsuch was just as confused by the dissenting opinion:

It is difficult to read the dissent and conclude we are looking at the same case. Much of it focuses on the evolution of public accommodations laws, … and the strides gay Americans have made towards securing equal justice under law, … And, no doubt, there is much to applaud here. But none of this answers the question we face today: Can a State force someone who provides her own expressive services to abandon her conscience and speak its preferred message instead?

When the dissent finally gets around to that question— more than halfway into its opinion—it reimagines the facts of this case from top to bottom. The dissent claims that Colorado wishes to regulate Ms. Smith’s “conduct,” not her speech. … Forget Colorado’s stipulation that Ms. Smith’s activities are “expressive,” … and the Tenth Circuit’s conclusion that the State seeks to compel “pure speech,” … The dissent chides us for deciding a pre-enforcement challenge. … But it ignores the Tenth Circuit’s finding that Ms. Smith faces a credible threat of sanctions unless she conforms her views to the State’s. … The dissent suggests (over and over again) that any burden on speech here is “incidental.” … All despite the Tenth Circuit’s finding that Colorado intends to force Ms. Smith to convey a message she does not believe with the “very purpose” of “[e]liminating . . . ideas” that differ from its own.

303 Creative LLC v. Elenis

Decision

Now let us look at the decision the rest of the justices came to.

If she wishes to speak, she must either speak as the State demands or face sanctions for expressing her own beliefs, sanctions that may include compulsory participation in “remedial . . . training,” filing periodic compliance reports as officials deem necessary, and paying monetary fines. … Under our precedents, that “is enough,” more than enough, to represent an impermissible abridgment of the First Amendment’s right to speak freely.

303 Creative LLC v. Elenis

Sadly, but not unexpectedly, Justice Gorsuch places the opinions of the court above the supreme law of the land. Rather than recognizing that the State of Colorado had made a law abridging the rights and privileges of a citizen of their state and applying the protections of the law unequally, he points to the courts’ prior opinions, their precedent, to grant to Ms. Smith the justice she deserves. There is one portion of this opinion where Justice Gorsuch gives some recognition to the supremacy of the Constitution.

At the same time, this Court has also recognized that no public accommodations law is immune from the demands of the Constitution. In particular, this Court has held, public accommodations statutes can sweep too broadly when deployed to compel speech. In Hurley, the Court commented favorably on Massachusetts’ public accommodations law, but made plain it could not be “applied to expressive activity” to compel speech.

303 Creative LLC v. Elenis

Although they got to their decision predictably, via a convoluted act of judicial gymnastics, the court did, in a 6-3 decision, come to what I believe is the correct conclusion.

In this case, Colorado seeks to force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance. In the past, other States in Barnette, Hurley, and Dale have similarly tested the First Amendment’s boundaries by seeking to compel speech they thought vital at the time. But, as this Court has long held, the opportunity to think for ourselves and to express those thoughts freely is among our most cherished liberties and part of what keeps our Republic strong. Of course, abiding the Constitution’s commitment to the freedom of speech means all of us will encounter ideas we consider “unattractive,” …“misguided, or even hurtful,” … But tolerance, not coercion, is our Nation’s answer. The First Amendment envisions the United States as a rich and complex place where all persons are free to think and speak as they wish, not as the government demands. Because Colorado seeks to deny that promise, the judgment is Reversed.

303 Creative LLC v. Elenis

Conclusion

While I disagree with how the court arrived at its opinion, my concerns are not with the conclusion, but the fact that the placing of precedent above the supreme law of the land could have just as easily led the court to another conclusion. If the Constitution does not mean exactly what it says, it can mean nothing at all. And that, ladies and gentlemen, should concern us all.

While there are still concerns, today is a day to celebrate an important victory for freedom of expressions, whether by speech or by press. I hope this case will also provide relief not only to Jack Phillips, but to Darnelle Stuzman and all of our fellow Americans struggling to exercise their rights without government censorship or compelled speech.

Three cheers for Lorie Smith. For her courage to stand up, for her willingness to see this case through, and for the beautiful websites she can now design without worrying that the State of Colorado will try to compel her to publish a message against her will.

© 2023 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

July 11, 2023

• The colonies would only put up with the evils coming out of London for so long. How long with the states suffer the evils coming out of Washington, D.C.?
• As Abraham Lincoln said, We the people are the rightful masters of both Congress and the courts.
• Are the evils we see every day still sufferable? Or will We the People finally get our states to stand up for our rights?

For the last two years I have been showing you how much our current government in Washington, D.C. is acting exactly as King George III did back in the 18th century. While King George’s actions led the colonies to declare independence, the states have not shown themselves as willing to defend their rights and those of their citizens now. Why is that? I think the answer can be found in the Declaration of Independence:

all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed.

Declaration of Independence

Could it be that all of the evils coming out of the federal government are still sufferable? Are the people willing to suffer the ruling of judges, the monarchal actions of the President, and Congress acting more like a House of Lords than the representative body it was created to be? Apparently they are. How long will this train of abuses have to grow before we throw out those in this tyrannical government and restore not only our independence, but justice and liberty? What will it take for us to learn the truth of what Abraham Lincoln said:

We the people are the rightful masters of both Congress and the courts, not to overthrow the Constitution but to overthrow the men who pervert the Constitution.

Abraham Lincoln

The phrase “disposed to suffer, while evils are sufferable” reminds me of New York City in the late 80s to early 90s. When my family moved out of the city in 1975, things were bad. Times Square was a drug infested cesspool, 42nd Street was full of prostitutes, and there were parts of Central Park where families just didn’t walk. For 20 years after we left, things only got worse. The people kept electing the same type of representation to city government, probably because their evils were still sufferable. Finally, they had enough, and elected someone with a different way of governing: Rudy Giuliani. As Mayor, Mr. Giuliani changed how the police treated crime, how the city provided services, and how people viewed the city. This led to a renaissance for the city, with lower crime, cleaner subways, and more tourism.

The examples of people righting themselves by fixing their government, first by declaring themselves independent from Great Britain and then by New York City electing a different type of mayor, should be an example to us today. As recent elections have shown, people in this country appear more willing to suffer evil than to right themselves. Yet I fear the unrest of those who are unwilling to suffer any more under the tyrannical acts coming out of Washington, D.C., will one day lead some to do more than alter our form of government, but to abolish it altogether.

Declaring Independence

Let’s back up a minute. Through the 1760s and 1770s the colonists suffered many injustices at the hand of King George and the British Parliament. They tried to negotiate with their tormentors, but to no avail. On the few occasions that when Parliament relented, they simply replaced one injustice with another. The colonies sent delegates to the Continental Congress for several reasons, among them, to find relief from British oppression. Finally, it became obvious to at least one of the delegates, Richard Henry Lee from Virginia, that enough was enough. He proposed that the colonies declare independence.

Resolved, That these United Colonies are, and of right ought to be, free and independent States, that they are absolved from all allegiance to the British Crown, and that all political connection between them and the State of Great Britain is, and ought to be, totally dissolved.

Lee Resolution (1776)

While the delegates conferred with their colonies about the Lee Resolution, it was apparent that the resolution would pass. Therefore the Continental Congress formed the “Committee of Five”, to draft a statement for when that happened. The opening paragraph of the Declaration of Independence explains its purpose.

The unanimous Declaration of the thirteen united States of America, When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

Declaration of Independence

The committee consisted of John Adams of Massachusetts, Roger Sherman of Connecticut, Benjamin Franklin of Pennsylvania, Robert R. Livingston of New York, and Thomas Jefferson of Virginia, who drafted the document. Once the committee agreed on the language, it went to the full congress for final changes and publication.

Modern Independence

In many ways the States today are in a similar situation to the colonies in 1776. For years the government of the United States has not only been infringing on the rights of the people, but on the States as well, though there are some very significant differences. Most significant of all is that the states are sovereign, while the colonies were not.

While the colonies were creations of the British government, the states had declared themselves free and independent, then fought and won a war to confirm it. The colonies, including their governments, were formed with charters under the British crown, while the states were formed by the people and the governments created by their own constitutions. Furthermore, the states created the government of the United States when they ratified its constitution. As the progenitor of the United States, the states not only hold themselves sovereign above their creation, but only subjected themselves to the powers they had delegated to it.

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.

Amendment X

This means when the colonies declared themselves independent, they were committing a rebellion.

An open and avowed renunciation of the authority of the government to which one owes allegiance;

Rebellion – Webster’s 1828 Dictionary

However, when the states stand up against the overreach of the government of the United States, not only is this not rebellion, insurrection, or treason, but the support of the supreme law of the land.

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;

U.S. Constitution, Article VI, Clause 2

As such, both Thomas Jefferson and James Madison recognized not only the power of the states to rein in the United States government, but as their duty.

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

In the face of all of this, why do the states remain under the thumb of the government in Washington, D.C. when it goes beyond its legitimate powers? I believe there are several reasons, including both a poor civics education and a serious lack of backbone.

On the rare occasions when the Constitution is taught in schools, they teach around the document and not what it actually says. They cover some of the names and the dates, even a little of what it does, but they don’t teach what the supreme law of the land actually says. Even law schools teach judicial opinions rather than the Constitution. I’ve asked dozens of attorneys if, while in law school, did they study the Constitution or constitutional law? Over the years I have been performing this informal poll, only one person has said they studied the Constitution; the rest studied the opinion of judges, euphemistically called “constitutional law”. Since so many politicians start out as lawyers, or at least have an education from a law school, is it any wonder they know little of what the document they take an oath to support actually says?

Let’s face it, as much as it may make our skin crawl to consider it, politicians are human. That means they naturally tend to do all they can to avoid pain. Why should a politician stand up and support a position unpopular with their peers? After all, it’s not like the people they represent would be willing to stand beside them, it is? Why should any politician buck their party leadership if the people they represent are more likely to vote for whomever their party prefers? We the People have effectively removed the spin of anyone who makes it to high elected office by teaching them throughout their political career that the way to get re-elected is to say the right things and keep the checks and programs flowing. When was the last time you asked a candidate when they supported the Constitution and it cost them something? If we don’t make constitutional fidelity as a standard for elected office, why should those in office?

Conclusion

It appears that Americans today are willing to suffer much more than our predecessors. As I’ve documented over the last two Independence Days, the grievances we have today against Washington, D.C. not only match, but far exceed those the colonists had against the crown in 1776. Yet here we are, disposed to suffer. The colonies were abolishing their form of government, yet in America today, all we need to do is alter those in government. Yet even that seems to be too much for We the People. Instead, election after election we keep doing the same thing, hoping against hope that this time it will be different. That was Einstein’s definition of insanity. Perhaps it’s not the patriot, the constitutional scholar, or the one fighting for their rights that’s crazy. Perhaps it’s the rest of the country, blindly placing their hope in some individual to free them from this doom. Maybe it’s just that the evils have not gotten evil enough for us to oppose them. Or could it be that We the People have become so enfeebled by our dependence on government that we prefer subjugation to liberty?

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.

Washington’s Farewell Address 1796

© 2023 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

June 30, 2023

• Of the three branches of the federal government, most of the powers are delegated to the legislative.
• As the representative branch of government, Congress is also where the representatives of both the people and the states are supposed to enact their will.
• With Congress exercising most of the powers delegated to the United States, it’s important that we hold our representatives accountable to their oaths to support the Constitution.

When I started studying the Constitution, I was struck both by how much I had not been taught in school, and how much of what I was taught was wrong. Based on the questions I’ve been asked and the assertions that have been presented to me, a lack of knowledge about the Constitution is almost universal in America. As I watch news coverage, politicians, pundits, and everyday people make claims about what the different parts of government can do, can’t do, or is required to do, it has become obvious that a basic understanding of how the United States government is organized is not only needed, but missing. So I’m starting a three-part series explaining the roles of the three branches of government. We’ll start where the Constitution starts, with the legislative branch.

One of the most common misunderstandings about the federal government is that we have three co-equal branches of government. As usual, the best lies have a kernel of truth in them. So while it’s true that the federal government has three branches, they are not equal. Whether you measure by how much space is dedicated to that branch or their list of powers, Congress is by far the most powerful branch of the federal government. Remember the grievance we were all taught was the reason we declared independence.

For imposing Taxes on us without our Consent

Declaration of Independence

Or, as it’s more commonly referred to, “Taxation without representation”. This is why so many of the powers delegated to the United States are placed in the hands of the representative branch of government.

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

U.S. Constitution, Article I, Section 1

What’s the legislative power that is vested in Congress?

Capable of enacting laws

Legislative, Webster’s 1828 Dictionary

So all the power of enacting laws is vested in Congress, and only Congress. What does that say about all those regulations coming out of the executive branch or the “case law” coming out of the judicial? We’ll talk more about those issues as we cover those branches, but sufficient to say that, if it’s a “law” that did not come from Congress, then it’s not a law.

This Congress is made up of two houses, a Senate and a House of Representatives. Why two houses? That’s an interesting story.

Two Houses of Congress

There are two reasons we have a bicameral, or two house Congress. The first is representation. The Constitution is the product of a number of compromises. One of them had to do with representation between the states. Under the Articles of Confederation we had only a single house in Congress, and that was the original plan for the Constitution as well. It should be no surprise that the larger states wanted representation based on population. This didn’t sit too well with the smaller states, since they would have less representation in a Congress formed that way. The smaller states wanted equal representation, but the larger states didn’t like that, because then the people in those states would have an outsized impact on federal legislation. Connecticut delegate Roger Sherman proposed a bicameral legislature, with one house apportioned by population and the other apportioned equally between the states.

The other reason for a bicameral legislature is something unique to the United States. The preamble to the Constitution reads:

We the People of the United States, … do ordain and establish this Constitution for the United States of America.

U.S. Constitution, Preamble

While the people ordained and established the Constitution, they did not do it directly.

The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.

U.S. Constitution, Article VII

Only the states could ratify the Constitution and, according to Article V, only the states could amend the document. Which means one of the unique things about the United States is that both the people and the states have a vested interest in the government of the United States, and should have a say in any legislation. Originally, that was the case, but that changed over a century ago.

The Senate

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

U.S. Constitution, Article I, Section 3

Why were members of the Senate appointed by the legislatures of the states? Because their purpose was to represent the states in Congress. That is also why each state gets the same number of Senators, so the states would have equal representation in the Senate. That was, until 1913.

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote.

U.S. Constitution, Amendment XVII

In 1913 the states ratified the Seventeenth Amendment, which changed the representation in Congress. Now the Senators are no longer appointed by their state’s legislature, but elected by the people. This means the states no longer have any say in federal legislation, and the Senate is now, effectively, just another House of Representatives.

The House of Representatives

The House of Representatives on the other hand, was always meant to represent the people.

The House of Representatives shall be composed of Members chosen every second Year by the People of the several States,

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

Not only have the members of the House always been chosen by the people, they are apportioned to the states based on their population.

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers,

U.S. Constitution, Article I, Section 2, Clause 3

So we started out with this beautiful balance of representation: Each of the two Senators equally represented their state and each member of the House was to represent no more than 30,000 people.

The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; 

U.S. Constitution, Article I, Section 2, Clause 3

While the change in the state’s representation was changed by the Seventeenth Amendment, the change in the number of people a member of the House represents comes from nothing more than the neglect of Congress.

Differing Powers

Another way we can see the different roles the two houses of Congress have is by looking at how the powers are shared between them.

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

U.S. Constitution, Article I, Section 7, Clause 1

As often as we like to complain about the IRS or that the President raises or lowers taxes, it’s actually the House that drafts the bill to do so. Compare that with the powers delegated to the Senate.

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, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law:

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

While the decision about taxes starts in the House, treaties and appointments are made with the advice and consent of the Senate. This is often misrepresented as “The President nominates and the Senate confirms”, but that is not what the Constitution says. We’ll talk more about this in the article about the President, but for now please remember that the Senate is supposed to work with the President on these things.

The other difference between the powers of the two houses has to do with impeachment.

The House of Representatives … shall have the sole Power of Impeachment.

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

Only the representatives of the people have the power to impeach, or accuse, a member of conduct worthy of removal from office. Once the House has impeached someone, it’s up to the Senate to try the impeachment.

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

U.S. Constitution, Article I, Section 3, Clause 6

So it takes the representatives of both the people and the states to remove someone from office. The members of Congress are also privileged from arrest in certain circumstances.

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.

Article I, Section 6, Clause 1

In general, a member of Congress cannot be arrested while going to, returning from, or attending a session of Congress. There are exceptions made for treason, a felony, or breach of the peace. And as much as some may want to, nothing they say in either house can be held against them.

Conclusion

I don’t have the room to review all of the powers delegated to Congress in Article I, Section 8, but it is a long list with 17 separate clauses. If you would like me to do a separate article on those powers, let me know.

The reason we have three separate branches in the government of the United States is for separation of powers. The Framers of the Constitution understood that power concentrated in the hands of a few was dangerous. It also explains why when one branch of government infringes on the powers of another branch, it’s a serious danger to the republic. There are situations where Congress has claimed the investigative power of the executive branch. That’s not to say Congress has no investigative power, but only when it’s for a legislative purpose. More often than not though, what Congress has done over the decades is hand over their legislative power to the executive. They do this by making vague laws, then claiming to empower those in the executive branch to fill in the details with regulations. However, the Constitution does not give Congress the power to delegate its duties.

The members of Congress are the employees of the people, and it’s about time we remind both the Congressmen and the people of that fact. As the representative branch of government, it’s the duty of Congress to represent the people and the states, not just their donors or advocacy groups. If we wish to have a functioning republic, it’s up to We the People to not only learn that lesson, but to hold our elected employees accountable to it.

I hope you found this brief discussion of the role of Congress helpful. I look forward to the articles on the President and the Judiciary in the next few weeks.

© 2023 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

June 20, 2023

• Does the PRO Act do what it claims, protect the right to organize, or is it another attempt to socialize labor?
• Once again, Congress is ignoring the Constitution and claiming the power to not only regulate employment, but to tell people whether or not they can work for themselves.
• Based on California’s AB5, the PRO Act would further destroy small businesses and independent workers.

In the House, it’s called it the “Protecting the Right to Organize Act”. What it should be called is the “Enforcing the Requirement to Organize Act”. While they claim that the act is to protect the right to organize, a look at the language of the bill shows that this is not about protecting the right to unionize, but forcing people to do so. Once again we see the federal government illegally regulating employment, coercing people to join a collective, and doing all it can to destroy small business.

The Protecting the Right to Organize, or PRO Act, claims to amend the National Labor Relations Act (NLRA) to protect workers. Let’s start at the beginning, with the NLRA.

The National Labor Relations Act

The denial by some employers of the right of employees to organize and the refusal by some employers to accept the procedure of collective bargaining lead to strikes and other forms of industrial strife or unrest, which have the intent or the necessary effect of burdening or obstructing commerce…

NATIONAL LABOR RELATIONS – 29 U.S.C. §151

Here we see the first problem with the NLRA. Congress does not have the power to regulate commerce, only…

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

U.S. Constitution, Article I, Section 8, Clause 3

That means the NLRA is unconstitutional and therefore void.

An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is in legal contemplation as inoperative as though it had never been passed.

Norton v. Shelby County :: 118 U.S. 425 (1886)

While the NLRA lists several reasons why employees may wish to organize and collectively bargain, that doesn’t mean Congress has the legal authority to regulate it. In fact, the Constitution strictly prohibits them from doing so.

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

Furthermore, the reasoning behind the NLRA is both self-serving and flawed. First, it claims that employees have a right to organize, which is true, but the act completely ignores the rights of the employer to determine who they will employ and under what circumstances. While the employees can associate however they wish, they do not have the right to force employers to comply with their demands or to have government join their side of the negotiations.

Experience has proved that protection by law of the right of employees to organize and bargain collectively safeguards commerce from injury, impairment, or interruption, and promotes the flow of commerce by removing certain recognized sources of industrial strife and unrest, by encouraging practices fundamental to the friendly adjustment of industrial disputes arising out of differences as to wages, hours, or other working conditions, and by restoring equality of bargaining power between employers and employees.

NATIONAL LABOR RELATIONS – 29 U.S.C. §151

While Congress claimed that experience has proven that laws protecting the right of employees to organize safeguards commerce, government regulation tends to destroy commerce in red-tape, regulations, and political agendas. Before you think that Congress was completely one-sided when it decided to draft the NLRA, it wasn’t simply to protect employees from businesses.

Experience has further demonstrated that certain practices by some labor organizations, their officers, and members have the intent or the necessary effect of burdening or obstructing commerce by preventing the free flow of goods in such commerce through strikes and other forms of industrial unrest or through concerted activities which impair the interest of the public in the free flow of such commerce. The elimination of such practices is a necessary condition to the assurance of the rights herein guaranteed.

NATIONAL LABOR RELATIONS – 29 U.S.C. §151

Congress keeps referring to experience proving something, but they never actually point to any experience to prove their point. Yes, there has been a history of strikes by labor, but they didn’t stop with the passage of the NLRA.

It is hereby declared to be the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce and to mitigate and eliminate these obstructions when they have occurred by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.

NATIONAL LABOR RELATIONS – 29 U.S.C. §151

It may be the policy of the United States to eliminate the causes of disruptions to the free flow of commerce, but it’s not a legal one. Experience has shown us that rarely does Congressional meddling in things they are not legally allowed to improves the situation. Instead, it usually makes things worse. Take for examples, the Affordable Care Act, the Social Security Act, the Patriot Act, and even the Inflation Reduction Act. Not only have all of these pieces of legislation claimed to protect Americans, but in the long run have made things worse. Worse yet, all of them are outside of the powers delegated to the United States, and therefore void.

So if the NLRA is unconstitutional, and therefore no law at all, any amendments to it would be, at best, putting lipstick on a pig. Sadly, the PRO Act is far worse then that.

The Protecting the Right to Organize Act

Probably the most onerous parts of the so called PRO Act is the idea that Congress gets to define who is and isn’t an employee.

(b) Employee.—Section 2(3) of the National Labor Relations Act (29 U.S.C. 152(3)) is amended by adding at the end the following:“An individual performing any service shall be considered an employee (except as provided in the previous sentence) and not an independent contractor, unless—

“(A) the individual is free from control and direction in connection with the performance of the service, both under the contract for the performance of service and in fact;

“(B) the service is performed outside the usual course of the business of the employer; and

“(C) the individual is customarily engaged in an independently established trade, occupation, profession, or business of the same nature as that involved in the service performed.”.

The Richard L. Trumka Protecting the Right to Organize Act of 2023

Rather than protecting the right to organize, this act starts by depriving the right of people to work independently. The law basically says that you are an employee unless the government says you aren’t one. California tried this already with AB5, which took effect in January, 2020. AB5 was an attempt by California to regulate companies like Uber and Lyft that hire large numbers of “gig workers”. The problem is, the PRO Act, like AB5 before it, assumes that everyone wants to be an employee. Many people who work at these companies don’t want to work for them, not to mention all of the independent truck drivers and freelancers who AB5 did, and the PRO Act would, suck up into their socialist utopia of large corporations and unions. While it may not be the intention of the PRO Act, one effect would certainly be to cripple the independent workforce.

The PRO Act not so much protects the right of employees to organize, but forces companies to bow to the demands of the unions.

Whenever the [National Labor Relations] Board directs an election under section 9(c) or approves an election agreement, the employer of employees in the bargaining unit shall, not later than 2 business days after the Board directs such election or approves such election agreement, provide a voter list to a labor organization that has petitioned to represent such employees.

The Richard L. Trumka Protecting the Right to Organize Act of 2023

With all of the experience we have with government overreach, does anyone really think this legislation will do what its authors claim it will?

Conclusion

What we see here is another attempt by those in Congress to socialize our society by removing the choices of the individual in favor of the collective. Little concern is given to those who do not wish to collectively bargain or who would prefer to freelance their skills rather than work for someone else. Even less concern is given to the property of the employers that Congress has already taken and wishes to further control.

Consider the states where individuals do not have their right to NOT organize is not protected? Where people are forced to join a union, or in some cases, merely to pay dues, even if they don’t want the representation. If you are forced to be an employee rather than a freelancer, and the state forces you to join a union, are you really free?

It really shouldn’t surprise anyone that this legislation is named after a union activist. After all, union leaders and the bureaucratic state have been leading us, hand in hand, toward collectivism for decades. As with so many other things, it’s not that unions are good or bad, but that they are forced, or at least coerced, upon the American people.

Will Congress ever learn not to exceed its mandate and infringe on the rights of the American people? Not until We the People start firing those who keep doing so, and hire better representation for ourselves. Until then I suggest you both educate yourselves and your state representatives about the limitation of the powers of Congress, and their responsibility to support the Constitution and protect the American people from all enemies, both foreign and domestic.

© 2023 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

June 9, 2023

• A Convention of States has become a perennial topic for many in the constitution community.
• How do we amend the Constitution, and what role would a convention have?
• Would a Convention of States fix the issues so many of us see in America today?

I’ve written before about the Convention of States movement, but this is a topic I’m frequently asked about. I know plenty of people both for and against such a convention, and I’ve written about their concerns as well. However, I’ve been asked to write not about the movement, but about the convention itself. So once again, let’s dive into the Convention of States, look at the pros and cons, and decide for ourselves if this is the solution to America’s problems.

Amending the Constitution

Let’s start with the term “Convention of States”. Some people like to refer to a “Constitutional Convention” or “ConCon”, but that’s not really accurate. Then again, the term “Convention of States” isn’t exactly accurate either. What we are talking about is an “Article V Convention” or a “Convention for Proposing Amendments”.

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments,

U.S. Constitution, Article V

Why do I say that the term “Constitutional Convention” is inaccurate? Because under the Constitution, this convention is not to draft a new constitution, but to propose amendments to the existing one. The original Constitutional Convention was called when the convention to modify the Articles of Confederation determined it would be easier to start from scratch, and asked the states to authorize them to draft a new constitution. That is also the reason why I say the “Convention of States” is a more accurate title. Since the States would be sending delegates to the convention, it’s not exactly accurate. It’s not a general convention of states, but a convention to specifically propose amendments to the Constitution.

By the way, it’s important to recognize that neither Congress nor a Convention can amend the Constitution, but only propose amendments to it. Only the states have the power to amend the Constitution.

which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress;

U.S. Constitution, Article V

Whether by three fourths of the state legislatures or conventions in three fourths of the states, only the States have the authority to actually change the Constitution. Also, contrary to what many in the legal community have said, any amendment to the Constitution, once legally ratified, is just as much a part of the Constitution and therefore binding as the original seven articles.

Why a Convention?

We also need to remember that the States created the Constitution, which created what we now call the federal government. One of the problems the Founding Fathers had with the Articles of Confederation was the amendment process. There wasn’t one, only the requirement that any changes to the Articles had to be unanimously agreed to by all of the states.

nor shall any alteration at any time hereafter be made in any of them, unless such alteration be agreed to in a congress of the united states, and be afterwards con-firmed by the legislatures of every state.

Articles of Confederation, Article XIII

So when they drafted the Constitution, they included a formal amendment process in Article V. This process uses two distinct steps; the proposal of amendments and the ratification of the proposed amendments. The Convention for Proposing Amendments is, as its name suggests, part of the proposal process.

Since the states created the Constitution, it only makes sense that they have a way to propose amendments to it. Since the beginning of the republic, only the representatives of the people (The House) and the states (The Senate) have proposed amendments. The Framers of the Constitution were not fools. They knew that there may be changes to the Constitution needed to protect the people and the republic that those in Congress would not support. For example, you wouldn’t expect Congress to propose an amendment to limit their own powers. Sure, Congress proposed an amendment to term-limit the President, but does anyone think they would propose one to term-limit themselves? Hence, the need for the states, as the creators of the Constitution and the federal government, to have a method of proposing their own amendments. This method is the convention process.

There are a lot of people who fear the convention process, while plenty more think it’s the salvation of the republic. So which is correct? Actually, I think it’s a little bit of both. I find the fear of the convention process interesting, since it and the congressional process propose amendments. There is no legal difference between the two, and both are capable of destroying the Constitution and the republic. In my mind, the reason to fear the convention process is not the process itself, but its abuse. The Congressional Research Service (CRS) has already published a paper on the subject.

The state legislatures are indispensable actors in the Article V Convention process—nothing can happen unless 34 or more apply for one. Congress is equally indispensable to the process by which a convention is summoned, convened, and defined. 

The Article V Convention to Propose Constitutional Amendments: Contemporary Issues for Congress – Congressional Research Service

Yes, the states are indispensable to the convention process, but what is the indispensable role of Congress the CRS is talking about?

The Constitution, with characteristic economy of phrase, simply directs that “Congress … on the application of the Legislatures of two thirds of the several States, shall call a Convention for the proposing of Amendments….” Beyond this language, however, observers have identified subsidiary issues for consideration by Congress, of which five may be among the most important:

The Article V Convention to Propose Constitutional Amendments: Contemporary Issues for Congress – Congressional Research Service

Don’t you just love how people take the simple words of the supreme law of the land and then add their own in order to do what they want? The ONLY role Congress has in the convention process is to call the convention, then determine whether ratification will be done by the individual state’s legislature or conventions in each state. Nothing more. Congress, in its own twisted logic, wants to read into the Constitution language to give themselves powers over any convention. They view themselves as the “guardian of the convention”, to define the role and responsibility of the convention, and even the power to determine if any amendments proposed by the convention is sent on to the states for ratification. The idea that Congress is to be the “guardian” of the convention is irrational and not supported by the language of the Constitution. The arrogance of assuming Congress gets to decide if the states should get a chance to ratify the amendments they had proposed in the convention would be beyond belief, if it hadn’t come out of Washington, D.C.

Does that mean there is no risk should there be a Convention for Proposing Amendments? No, there is risk in everything we do. Sure, a convention could propose the repeal of the Second Amendment or overturn Freedom of Speech or the protections of the right to due process. Then again, Congress can propose the exact same amendments, but people don’t seem to be afraid of that. Remember, in 1917 Congress proposed an amendment that infringed on your right to the liberty to manufacture and sell liquor. In short, any amendment a convention can propose, Congress can as well. That’s not to say there isn’t a good reason to hold a convention.

Personally, if I were a delegate to a Convention for Proposing Amendments, I can think of a few amendments I would propose. Repeal of the Sixteenth and Seventeenth Amendments would be near the top of the list, along with limiting Congress’ ability to borrow on the credit of the United States. However, there are plenty of amendments people are calling for that I could not support. Why? Because as much as people believe they would solve our problems, they cannot.

What a Convention Cannot Do

The thing about amendments to the Constitution is they only amend the Constitution. When I look at most of the amendments people are calling for in the proposed convention, I find most of them are already covered by the Constitution.

• Require members of Congress to live under the same laws they pass for the rest of us (Amendment X).
• Impose limits on federal spending and/or taxation (Article I, Section 8, Clause 1).
• Get the federal government out of our healthcare system (Amendment X).
• Get the federal government out of our education system (Amendment X).
• Stop unelected federal bureaucrats from imposing regulations (Article I, Section 1, Clause 1).
• Remove the authority of the federal government over state energy policy (Amendment X).
• Force the federal government to honor its commitment to return federal lands to the states (Article I, Section 8, Clause 17).

Probably the most common request for an amendment I hear involves term-limits for Congress. Members of Congress only serve as long as they get the majority of votes. You can set you own term limits; simply stop voting for someone once they’ve served as long as you think they should. Yes, you can set your own term limits, but you cannot force others to agree with you. The thing most people don’t realize about term-limits is that they don’t so much limit how long a person can serve in office, but who the people are allowed to vote for. Besides, if an amendment to set term-limits on Congress were to be ratified, all it would do under our current system is further empower the political parties. Now, rather than having to show yourself worthy to both the party and the people, all a politician would have to do is be a good party member and “wait their turn” for an office.

Conclusion

We come back to the question I’m most frequently asked: Would a Convention of States fix the republic or not? While I cannot see into the future, here’s my assessment. First off, should a convention be called, there will be a lot of attention paid to the issues it brings up. There will probably be more spin applied to those issues than a hyperactive top. Everyone will have their own opinion, probably the one that most benefits them. It’s just as likely the different sides will spend more time talking past each other than actually debating the amendment. In other words, pretty much politics as usual. If some of the amendments that have been at the center this discussion should be passed by the convention and sent to the states, the whole media circus will simply start over again in an attempt to influence the legislatures or conventions in the Several States.

Let’s say that some amendments get proposed, even ratified. Will that make a difference? My best guess is, in the short term it will. After all, the politicians will be watching as much as anyone else. However, in the long term, I don’t think such a convention would be much help. Sure, the convention may propose some bad amendments, but that’s not where I see the problem. As I pointed out, most of the problems in Washington, D.C. aren’t the language of the Constitution, but the fact that we don’t follow it. Think of how many regulations come out of the Departments of Education, Energy, Transportation, Labor, Health and Human Services, Housing and Urban Development, not to mention the Environmental Protection Agency and the office of Science and Technology. None of these departments and agencies are authorized by the Constitution, yet they exist and write regulations that are enforced as law, in violation of the Constitution. Then there are those who claim that the Fourteenth Amendment allowed President Biden to effectively raise the debt ceiling in violation of the laws passed by Congress. How would making things “extra unconstitutional” change that?

That said, what if the convention proposed some good amendments? Not only the ones I mentioned I would propose, but some others we haven’t even thought of yet. What if they get ratified by the states? How long before the politicians and bureaucrats in Washington, D.C. simply start ignoring them as well? I doubt it would take the corporate media and activist groups very long before they demanded that the language of the Constitution shouldn’t stop them from doing what they think is right. If you think the courts would save us, remember the Supreme Court has a history of putting the power of government above their oath to support the Constitution.

Like so many things in life, there is no panacea, no simple fix to all our problems. What we need is a good, close look at what we, individually, are doing. Are we following the Constitution, the supreme law of the land? Are we hiring public servants who are fulfilling their oaths to support the Constitution? Most importantly, when those we hire to represent us fail to fulfill their oaths, do we find better representation? Rather than looking for someone else or some legal maneuver to fix the republic, if we simply took responsibility for our actions, most of those problems could be fixed long before they got large enough for anyone to consider an amendment to the Constitution.

© 2023 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

June 2, 2023

• What we’ve learned, or in some cases had confirmed, by the Durham Report should concern all of us.
• According to the report, when the FBI initiated the investigation into Donald Trump and his Presidential campaign, they had no probable cause that the campaign had been in contact with Russian government officials.
• Furthermore, the FBI ignored evidence of the innocence of those accused.
• After almost seven years of costly and disruptive investigations we should be asking the question, is justice delayed justice denied?

By now I’m sure you’ve heard about the Durham report. There have certainly been enough reports on it, at least on the non-corporate media sites. With all of the different points of view on the net, I thought it was time to review the document myself and share my thoughts with what I hope is an attentive audience. At 316 pages, the report is fairly long, so I will focus on the Executive Summary. Besides, what I found there was enough to fill an episode all by itself.

United States Attorney John Durham was appointed as Special Attorney to the Attorney General on February 6, 2020. Then, on October 19, 2020, the Attorney General ordered the appointment of Mr. Durham as Special Counsel, as allowed under U.S. law. Part of that order stated:

The Special Counsel is authorized to investigate whether any federal official, employee, or any other person or entity violated the law in connection with the intelligence, counter-intelligence, or law-enforcement activities directed at the 2016 presidential campaigns, individuals associated with those campaigns, and individuals associated with the administration of President Donald J. Trump, including but not limited to Crossfire Hurricane and the investigation of Special Counsel Robert S. Mueller, III.

Durham Report

The report points to a substantial body of public records regarding former President Trump, the Trump Organization, and Russian entities gathered by previous investigations. The scope of the investigation conducted by Special Counsel Durham included:

• Was there adequate predication for the FBI to open the Crossfire Hurricane investigation from its inception on July 31, 2016 as a full counterintelligence and Foreign Agents Registration Act (“FARA”) investigation given the requirements of The Attorney General’s Guidelines for FBI Domestic Operations and FBI policies relating to the use of the least intrusive investigative tools necessary?
• Was the opening of Crossfire Hurricane as a full investigation on July 31, 2016 consistent with how the FBI handled other intelligence it had received prior to July 31, 2016 concerning attempts by foreign interests to influence the Clinton and other campaigns?
• Similarly, did the FBI properly consider other highly significant intelligence it received at virtually the same time as that used to predicate Crossfire Hurricane, but which related not to the Trump campaign, but rather to a purported Clinton campaign plan “to vilify Donald Trump by stirring up a scandal claiming interference by Russian security services,” which might have shed light on some ofthe Russia information the FBI was receiving from third parties, including the Steele Dossier, the Alfa Bank allegations and confidential human source (“CHS”) reporting? If not, were any provable federal crimes committed in failing to do so?
• Was there evidence that the actions of any FBI personnel or third parties relating to the Crossfire Hurricane investigation violated any federal criminal statutes, including the prohibition against making false statements to federal officials? If so, was that evidence sufficient to prove guilt beyond a reasonable doubt?
• Was there evidence that the actions of the FBI or Department personnel in providing false or incomplete information to the Foreign Intelligence Surveillance Court (“FISC”) violated any federal criminal statutes? If so, was there evidence sufficient to prove guilt beyond a reasonable doubt?

Crossfire Hurricane

According to the Executive Summary of the Durham Report:

As set forth in greater detail in Section IV .A.3 .b, before the initial receipt by FBI Headquarters of information from Australia on July 28, 2016 concerning comments reportedly made in a tavern on May 6, 2016 by George Papadopoulos, an unpaid foreign policy advisor to the Trump campaign, the government possessed no verified intelligence reflecting that Trump or the Trump campaign was involved in a conspiracy or collaborative relationship with officials of the Russian government. Indeed, based on the evidence gathered in the multiple exhaustive and costly federal investigations of these matters, including the instant investigation, neither U.S. law enforcement nor the Intelligence Community appears to have possessed any actual evidence of collusion in their holdings at the commencement of the Crossfire Hurricane investigation.

Durham Report

The report goes on to explain that, at the direction of Deputy Director Andrew McCabe and Deputy Assistant Director for Counterintelligence Peter Strzok, the FBI swiftly opened the Crossfire Hurricane investigation upon receipt of the intelligence from Australia, even though that intelligence had not yet been evaluated.

The matter was opened as a full investigation without ever having spoken to the persons who provided the information. Further, the FBI did so without (i) any significant review of its own intelligence databases, (ii) collection and examination of any relevant intelligence from other U.S. intelligence entities, (iii) interviews of witnesses essential to understand the raw information it had received or (iv) using any of the standard analytical tools typically employed by the FBI in evaluating raw intelligence. Had it done so, again as set out in Sections IV.A.3.b and c, the FBI would have learned that their own experienced Russia analysts had no information about Trump being involved with Russian leadership officials, nor were others in sensitive positions at the CIA, the NSA, and the Department of State aware of such evidence concerning the subject. In addition, FBI records prepared by Strzok in February and March 2017 show that at the time of the opening of Crossfire Hurricane, the FBI had no information in its holdings indicating that at any time during the campaign anyone in the Trump campaign had been in contact with any Russian intelligence officials.

Durham Report

This action was quite a departure from the FBI’s previous investigatory standards. In fact, the Durham report noted that during the same presidential election season, the FBI had intelligence of the possibility of foreign election interference with another campaign.

The speed and manner in which the FBI opened and investigated Crossfire Hurricane during the presidential election season based on raw, unanalyzed, and uncorroborated intelligence also reflected a noticeable departure from how it approached prior matters involving possible attempted foreign election interference plans aimed at the Clinton campaign.

Durham Report

The report then goes on to list no less than three times leading up to the 2016 presidential campaign that FBI was slow and cautious about investigating another candidate, specifically Hillary Clinton. Although the Clinton campaign was given “defensive briefings” regarding the investigations, none were provided to Donald Trump or anyone from his campaign. Rather, the FBI began working on requests to use the Foreign Intelligence Surveillance Act (FISA) to allow them to “spy” on several members of the Trump campaign. These efforts were unsuccessful until the FBI obtained the “Company Intelligence Reports” generated by Christopher Steele, also known as the “Steele Report” or “Steele Dossier”.

Our investigation determined that the Crossfire Hurricane investigators did not and could not corroborate any of the substantive allegations contained in the Steele reporting. Nor was Steele able to produce corroboration for any of the reported allegations, even after being offered $1 million or more by the FBI for such corroboration. Further, when interviewed by the FBI in January 2017, Danchenko [Steele’s primary sub-source] also was unable to corroborate any of the substantive allegations in the Reports. Rather, Danchenko characterized the information he provided to Steele as “rumor and speculation” and the product of casual conversation.

Durham Report

So the FBI opened the Crossfire Hurricane investigation without any corroborating evidence of wrongdoing, while at the same time cautiously approaching allegations against Mr. Trump’s opponent, Hillary Clinton. That not only is a level of malfeasance that should lead to serious repercussions, but the Durham report found evidence that the FBI hid information showing the innocence of many involved.

Those efforts included having CHSs record conversations with Page, Papadopoulos and a senior Trump foreign policy advisor. The FBI’s own records and the recordings establish that Page made multiple exculpatory statements to the individual identified as CHS [Confidential Human Source]- I, but the Crossfire Hurricane investigators failed to make that information known to the Department attorneys or to the FISC [Foreign Intelligence Surveillance Court]. Page also made explicit statements refuting allegations contained in the Steele reporting about his lack of any relationship with Paul Manafort, but the FBI failed to follow logical investigative leads related to those statements and to report to Department lawyers what they found. Similarly, multiple recordings of Papadopoulos were made by CHS-1 and a second CHS, in which Papadopoulos also made multiple exculpatory statements that were not brought to the attention of the Department lawyers or the FISC.

Durham Report

If all that weren’t bad enough, an FBI attorney was prosecuted and convicted of falsifying a document required to obtain the Foreign Intelligence Surveillance Court warrant on Carter Page. Where did the FBI get all this uncorroborated information for their illegal warrants? From Christopher Steele.

In the spring of 2016, Perkins Coie, a U.S.-based international law firm, acting as counsel to the Clinton campaign, retained Fusion GPS, a U.S.-based investigative firm, to conduct opposition research on Trump and his associates. In mid-May 2016, Glenn Simpson of Fusion GPS met with Steele in the United Kingdom and subsequently retained Steele and his firm, Orbis Business Intelligence (“Orbis”), to investigate Trump’s ties to Russia. Steele described himself as a former intelligence official for the British government, and was also at the time an FBI CHS. Beginning in July 2016 and continuing through December 2016, the FBI received a series of reports from Steele and Orbis that contained derogatory information about Trump concerning Trump’s purported ties to Russia. As discussed in Section IV.D.l.b.ii, Steele provided the first of his reports to his FBI handler on July 5th. These reports were colloquially referred to as the “Steele Dossier” or “Steele Reports.”

Durham Report

Remember when the report pointed out that the investigations into several members of the Trump campaign were unsuccessful, at least until the FBI received the “Steele Dossier,” which was used to support their FISA applications? Instead of performing the due diligence required by the FBI and good investigatory procedures that one would expect, these actors took this fictitious rumor mongering and used it to initiate a multi-year, multi-million dollar, politically based investigation without just cause.

Alfa Bank

While the fraud of Crossfire Hurricane was going on, another line of investigation was sent to the FBI.

The Office also investigated the actions of Perkins Coie attorney Michael Sussmann and others in connection with Sussmann’s provision of data and “white papers” to FBI General Counsel James Baker purporting to show that there existed a covert communications channel between the Trump Organization and a Russia-based bank called Alfa Bank. As set forth in Section IV.E.1.c.iii, in doing so he represented to Baker by text message and in person that he was acting on his own and was not representing any client or company in providing the information to the FBI. Our investigation showed that, in point of fact, these representations to Baker were false in that Sussmann was representing the Clinton campaign (as evidenced by, among other things, his law firm’s billing records and internal communications).

Durham Report

Further investigations by FBI cyber experts showed that the data provided to James Baker did not prove what Sussman claimed. Digging deeper into the report, it appears that the server in question was used to send marketing emails, not for clandestine communication with the Russians.

Conclusion

Based on the review of Crossfire Hurricane and related intelligence activities, we conclude that the Department and the FBI failed to uphold their important mission of strict fidelity to the law in connection with certain events and activities described in this report.

Durham Report

The evidence collected by Mr. Durham seems to show that the FBI, under the Obama administration and beyond, was used as a tool of the Clinton campaign, if not the Democratic National Committee, in an attempt to steal an election and hamper the duly elected President of the United States. Their actions included criminal activity.

As noted, former FBI attorney Kevin Clinesmith committed a criminal offense by fabricating language in an email that was material to the FBI obtaining a FISA surveillance order. In other instances, FBI personnel working on that same FISA application displayed, at best, a cavalier attitude towards accuracy and completeness. FBI personnel also repeatedly disregarded important requirements when they continued to seek renewals of that FISA surveillance while acknowledging – both then and in hindsight – that they did not genuinely believe there was probable cause to believe that the target was knowingly engaged in clandestine intelligence activities on behalf of a foreign power, or knowingly helping another person in such activities. And certain personnel disregarded significant exculpatory information that should have prompted investigative restraint and re-examination.

Durham Report

With all of this information, what can we expect as an outcome of the millions of dollars spent, the years of investigation, and the slander committed by both FBI personnel and many in the media?

This report does not recommend any wholesale changes in the guidelines and policies that the Department and the FBI now have in place to ensure proper conduct and accountability in how counterintelligence activities are carried out. Rather, it is intended to accurately describe the matters that fell under our review and to assist the Attorney General in determining how the Department and the FBI can do a better, more credible job in fulfilling its responsibilities, and in analyzing and responding to politically charged allegations in the future.

Durham Report

In short, we can expect nothing to really change, at least not under this administration. Unless and until we have a chief executive that will uphold the rule of law, not only against their political opponents but upon those in their administration, we will continue to see not only justice delayed, but justice denied. As Mr. Durham concludes his executive summary.

The promulgation of additional rules and regulations to be learned in yet more training sessions would likely prove to be a fruitless exercise if the FBI’s guiding principles of “Fidelity, Bravery and Integrity” are not engrained in the hearts and minds of those sworn to meet the FBI’s mission of “Protect[ing] the American People and Uphold[ing] the Constitution of the United States.”

Durham Report

It’s neither rules nor laws that restrain evil, but the threat of punishment of their violation. If there is no punishment, there is no incentive to deviate from the path of injustice.

© 2023 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

May 24, 2023

• What is “Corrupt Intent” and why does it matter?
• Will the Court of Appeals opinion in United States v. Fischer have an impact on other January 6th cases?
• Could the future of those defendants really turn on what “Corrupt Intent” means?

A recent decision by the D.C. Court of Appeals may have an interesting impact on the prosecutions of those charged with the Capitol breech on January 6, 2021. The case of United States v. Fischer consolidates three decisions in lower courts regarding the charge of “Obstruction of an Official Proceeding” (18 U.S.C. §1512(c)(2)). Since many of those charged regarding the January 6th incident were charged under this statue, the decision could have wide ranging impact. It all comes down to the question of did these people act corruptly?

How often have I said that words matter or that the details matter? In the case of United States v. Fischer, Joseph Fischer, along with Edward Lang and Garret Miller who had their cases consolidated with Mr. Fischer’s, were charged with multiple crimes from their actions at the U.S. Capitol on January 6, 2021.

The question raised in this case is whether individuals who allegedly assaulted law enforcement officers while participating in the Capitol riot can be charged with corruptly obstructing, influencing, or impeding an official proceeding, in violation of 18 U.S.C. § 1512(c)(2).

United States v. Fischer

It’s that word, “corruptly”, that’s receiving all the attention, but let’s back up a little bit. Mr. Fischer (known as the appellee), moved in District Court to dismiss the §1512(c)(2) count against him because it did not prohibit his conduct on Jan. 6th.

(c) Whoever corruptly-

(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or

(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so,

18 U.S.C. § 1512

The district court agreed with Mr. Fischer, but for what appears to me to be a very odd reason.

The district court granted each appellee’s motion to dismiss. After carefully reviewing the text and structure of the statute, the district court concluded that § 1512(c) is ambiguous with respect to how subsection (c)(2) relates to subsection (c)(1). …

Relying on its understanding of the Supreme Court’s holding in Begay v. United States, 553 U.S. 137 (2008), as well as canons of statutory construction, statutory and legislative history, and the principles of restraint and lenity, the district court determined that subsection (c)(2) “must be interpreted as limited by subsection (c)(1). …That led the district court to hold that subsection (c)(2) “requires that the defendant have taken some action with respect to a document, record, or other object in order to corruptly obstruct, impede or influence an official proceeding.”

United States v. Fischer

So the district court seemed to think that subsection (c)(2) had to be related to (c)(1), and since Mr. Fischer did not interfere with any documents, records, or other objects, he did not violate §1512(c)(2). I find this really weird, since the meaning of otherwise is:

in a different way or manner

Otherwise – Merriam-Webster Dictionary Online

Court of Appeals

Let’s look at how the Court of Appeals looked at this case.

The government asserts that the words “corruptly . . . obstructs, influences, and impedes any official proceeding” in 18 U.S.C. § 1512(c)(2) have a broad meaning that encompasses all forms of obstructive conduct, including appellees’ allegedly violent efforts to stop Congress from certifying the results of the 2020 presidential election. Thus, the government contends, the district court erred when it adopted an unduly narrow interpretation of §1512(c)(2) that limits the statute’s application to obstructive conduct “with respect to a document, record, or other object.”

United States v. Fischer

So the government claims that the words “corruptly . . . obstructs, influences, and impedes any official proceeding” have a very broad meaning that could include all sorts of obstructive actions, including allegedly violent acts to stop Congress from certifying the results of the 2020 presidential election. I have to point out something that, while not directly related to this case, is something every American ought to know. Congress does not certify the presidential election, they observe the counting of the votes. From the Twelfth Amendment:

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

There is not a single mention of Congress voting or otherwise putting their blessing on the election for President. That aside, the court looked at the language of §1512(c) and came to what I think is a quite reasonable conclusion.

In our view, the meaning of the statute is unambiguous. Subsection (c)(1) contains a specific prohibition against “corruptly” tampering with “a record, document, or other object” to impair or prevent its use in an official proceeding, while subsection (c)(2) proscribes “corrupt[]” conduct that “otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so . . . .” Under the most natural reading of the statute, § 1512(c)(2) applies to all forms of corrupt obstruction of an official proceeding, other than the conduct that is already covered by § 1512(c)(1).

United States v. Fischer

At this point you may think that the court is going to side with the government, and you’d be right. However, there is a single word in §1512 (c) which the Court of Appeals mentions that the District Court did not: The word “corruptly”.

Although the text of § 1512(c)(2) plainly extends to a wide range of conduct, the statute contains some important limitations: The act of “obstruct[ing], influenc[ing], and imped[ing]” described in subsection (c)(2) must be accompanied by “corrupt” intent; and the behavior must target an “official proceeding.” Those other elements of a § 1512(c)(2) offense are not the focus of this appeal, but we nevertheless note that they provide significant guardrails for prosecutions brought under the statute.

United States v. Fischer

So the Court of Appeals notes the proper application of §1512(c), even though it is not a question the court is considering. I think most of us can agree that the counting of the votes in the presidential election is an official proceeding. The question is, did Mr. Fischer act with corrupt intent to obstruct that counting?

cor·rupt (kə-rŭpt′)adj.

1. Marked by immorality and perversion;depraved.
2. Venal or dishonest: a corruptmayor.
3. Containing errors or alterations,especially ones that prevent proper understanding or use: a corrupt translation; acorrupt computer file.

Corrupt – The Free Legal Dictionary

Were the actions Mr. Fischer was alleged to have committed done with corrupt intent? According to the actions against Mr. Fischer, the actions he took on January 6th do appear to be obstructive:

Fischer allegedly belonged to the mob that forced Congress to stop its certification process. On January 6, 2021, he encouraged rioters to “charge” and “hold the line,” had a “physical encounter” with at least one law enforcement officer, and participated in pushing the police.

United States v. Fischer

It should be noted that a footnote in that quote argues that Fischer could not have obstructed the counting of the votes since Mr. Fischer claims to have arrived after Congress had recessed. However, the actions Mr. Fischer allegedly took before January 6th certainly do seem to point to a corrupt intent.

Before January 6, he allegedly sent text messages to acquaintances, stating: “If Trump don’t get in we better get to war”; “Take democratic [C]ongress to the gallows. . . . Can’t vote if they can’t breathe … lol”; and “I might need you to post my bail…. It might get violent. . . . They should storm the capital [sic] and drag all the democrates [sic] into the street and have a mob trial.”

United States v. Fischer

Conclusion

Based on the evidence and discussion included in the opinion and concurrence, the court decided 2-1 to find that the district court was wrong to dismiss the obstruction charge.

For all the foregoing reasons, we conclude that the district court erred in dismissing the counts charging each appellee with Obstruction of an Official Proceeding under 18 U.S.C. § 1512(c)(2). Appellees’ alleged conduct falls comfortably within the plain meaning of “corruptly … obstruct[ing], influenc[ing], or imped[ing] [an] official proceeding, or attempt[ing] to do so.” The alternative interpretations of § 1512(c)(2) proffered by the district court and appellees fail to convince us to depart from the natural reading of the statute’s unambiguous text. Accordingly, we reverse the orders of the district court, and remand for further proceedings consistent with this opinion.

United States v. Fischer

If that is true, why do I say this case could have a wide ranging impact for many accused of obstruction on January 6th? For the simple reason that while Mr. Fischer’s words and actions do show that he violated §1512(c)(2), I do not believe that everyone who has been caught in the FBI’s dragnet of January 6th “rioters” acted with corrupt intent.

I have long pointed out that at least five (5) states appointed presidential electors in a manner other than the one determined by their state’s legislature, in direct violation of the Constitution.

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

Furthermore, there was sufficient evidence by January 6, 2021, that problems with the elections in several states, including credible allegations of illegal activity in the collection and counting of ballots, meant that some of the electors may have been appointed by their state fraudulently. If the people who demonstrated on the capitol on January 6th did so to protest the illegal appointment of electors, especially due to the illegal actions taken by members of the executive and judicial branches in several states, then their acts were not with corrupt intent. Rather, their actions were attempts to bring to light the corrupt intent of those who were violating the Constitution of the United States and the constitutions and laws of the several states. Petitioning your representatives in government for a redress of such a grievance is not immoral, perverse, dishonest, or otherwise considered corrupt, but an attempt to restore justice to the process of choosing a President of the United States.

While I cannot condone the obstructive acts committed by Mr. Fischer and others inside the capitol that day, there is plenty of evidence that their entry was sanctioned by the Capitol Police, that most of them were not violent or disruptive, and they did not get near enough to the House chambers to be considered obstructive. I can only hope that some of the legal teams for those who have been the victims of apparent overzealous prosecution by the City of Washington, D.C., in cooperation with the U.S. Dept. of Justice, will find this opinion and use it to the benefit of those peaceful protestors being illegally held as political prisoners in our nation’s capitol.

© 2023 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

May 17, 2023

• Thomas Paine said in The American Crisis, “What we obtain too cheap, we esteem too lightly.”
• The current debt crisis is did not suddenly appear. It comes from decades of fiscal mismanagement and malfeasance.
• Most of the constitutional crisis that the news has been reporting is nothing but hype.

When I turned 16, I wanted a car, just like pretty much every other American teenage boy. When I asked my father for financial help getting my first car, he told me that if I didn’t get the money myself, I wouldn’t value the car. I didn’t like that answer, but as Thomas Paine said in The American Crisis, “What we obtain too cheap, we esteem too lightly.” It turns out my father was wise to make me work for my first car.

We are not here today to talk about teenagers and their cars, but of the trillions of dollars the United States spends each and every year. First, we should ask if our employees in Washington, D.C. are spending our money wisely, or like some spoiled rich brat, are they treating our hard earned cash like Monopoly money? Once we answer that, the next obvious question is, do we cut up Uncle Sam’s credit cards before all 330 million of us are bankrupt?

Federal Finances 101

If we’re going to talk about money and the federal government, we need to start at the beginning, with the Constitution and the powers delegated to the United States.

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow Money on the credit of the United States;

U.S. Constitution, Article I, Section 8, Clauses 1 & 2

Congress has the power to lay and collect taxes, duties, imposts and excises, but only for three specific purposes.

• Pay the debts of the United States.
• Provide for the common defense of the United States.
• For the general welfare of the United States.

Congress also has to borrow money on the credit of the United States. That’s with a capital “U” and a capital “S”, a proper noun, not the several states or the people, but the union of states known as the United States.

Not only can Congress collect taxes and borrow money, but they have the power to spend money as well.

No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law;

U.S. Constitution, Article 1, Section 9, Clause 7

The situation we are talking about today is very simple. When Congress passes laws to appropriate money from the treasury that’s more than what’s collected in taxes, Congress must borrow the difference. I know, that seems pretty simple, but based on recent discussions, articles, and press conferences, this simple fact is not only lost on Congress and the entire federal government, but on the people as well. Which is how we get reports like this:

The federal budget deficit was $1.1 trillion in the first half of fiscal year 2023, the Congressional Budget Office estimates—$430 billion more than the shortfall recorded during the same period last year—and consistent with projections CBO released in February.

Congressional Budget Offices Monthly Budget Review for March 2023

The deficit, which is the difference between money spent and taxes collected, is the amount that the United States has to borrow to make up the difference. This is not to be confused with the national debt, which is the accumulations of all the deficits over time, also known as the money Congress has borrowed on the credit of the United States. How did we get to this particular situation?

Outlays were 13 percent higher and revenues were 3 percent lower from October through March than during the same period in fiscal year 2022.

Congressional Budget Offices Monthly Budget Review for March 2023

A fiscal year is an accounting period of time. The United States runs on a fiscal year that starts on October 1st ever year. That means that the budget for 2023 ends on September 30, 2023 rather than December 31st. It may seem a little confusing, but it explains why the Congressional Budget Office (CBO) is reporting data starting in October rather than January.

All this means that Congress appropriated money that authorized the Treasury department spend for the fiscal year 2023, and the actual money spent in the first half of that fiscal year was 13% higher than in 2022. Also, the actual collection of taxes Congress authorized by law during that same time period was 3% lower than last year. Just like for your home budget, if expenses go up while income goes down, then you have to borrow money to pay the bills. In the case of Congress, they just borrowed $1,100,000,000,000 on the credit of the United States. I did a little math and the $1.1 trillion dollars that Congress had to borrow will cost the American people approximately an additional $13.8 billion every year in interest payments. I don’t know about you, but that sounds like serious money to me.

The Debt Limit

While most Americans would put these budget shortfalls on their credit cars, Congress does not have a literal “American Express” card on which to charge this. The details of how the federal government actually borrows money is beyond the scope of our talk today, but it’s important to know a few basic concepts. Since only Congress can borrow money on the credit of the United States, they must authorize such borrowing by law. This is commonly known as the debt limit, and can only be changed by law, meaning Congress must pass a bill and the President must sign it. Think of it as the credit limit on your credit cards. If you keep borrowing money by charging it to your credit card, sooner or later the bank will say, “That’s enough.” Similarly, as the federal government keeps borrowing money to spend on their profligate programs, sooner or later the American people, through their representatives in the House, and the states through their representatives in the Senate, will also say, “That’s enough.” Or at least we would hope so, but that has not been the case. Which is why every time in history that the federal government’s borrowing has approached the debt limit, Congress simply raises it.

I don’t know about you, but if I was maxing out my credit cards every couple of years, I’d take a serious look at my budget. Sure, there are some things I can do to increase my income, but the first place I’d look is at my spending. Take a look at federal receipts and outlays in the 21st Century:

Find more statistics at Statista

Do you see how federal spending, with rare exceptions like the end of COVID, almost always seems to go up? Yes, the revenue frequently goes up as well, but rarely as fast as the spending. This continuous increase in spending is nothing new, neither is it limited to a single political party. Just look at the increase in spending under some of the more recent Presidential administrations:

Find more statistics at Statista

This latest graph shows one of the more common misunderstandings of America’s budget crisis. Presidents don’t appropriate money, Congress does. Remember Article I, Section 9, Clause 7?

No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law;

U.S. Constitution, Article 1, Section 9, Clause 7

That means the people most responsible for authorizing the ever increasing spending is Congress. That also means the representatives of the people and the states are authorizing this spending. Since the people elect members to both houses of Congress, that means we are responsible for putting the people in place that have created this disaster. At the end of 2022, our national debt was just short of $31,000,000,000,000. Compare that to our Gross Domestic Product (GDP), which is the sum of all goods and services sold in the United State in 2022, which came in at $21,461,300,000,000. That means if we took every dollar in goods and services made in the United States and applied it to the debt, we would still have almost $10 trillion of debt still outstanding. That would be like taking your entire paycheck, before taxes and deductions, and sending it to the credit card company, and still having a six-figure balance. Unfortunately, nothing currently going on in Congress will change any of that.

Setting a budget is not a surprise to Congress. Neither is the need for appropriations bills or the debt ceiling. The dates of these events are known to each and every Congressman at the beginning of the session. Yet year after year these men and women simply wait until the last minute and then find a way to “kick the can down the road.” Not all members of Congress are this delinquent in their duties, but the majority of them are. And every two years these members of Congress lie to the American people that they will fix what they see as the problem, but they never seem to propose any solutions that would actually do so. Yet the American people blindly follow these fiscally malfeasant actors down the path to destruction. Which leads me to a little news article you may not have seen.

Constitutional Crisis

On ABC’s This Week, George Stephanopoulos, during an interview with Treasury Secretary Janet Yellen, repeatedly asked about calls for the Whitehouse to invoke the Fourteenth Amendment to allow the treasury to continue borrowing money even if Congress does not raise the debt ceiling. How is that supposed to work?

The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned.

U.S. Constitution, Amendment XIV, Section 4

Those who are claiming that the Executive Branch can get around Congress’ pesky debt limit problem by invoking the Fourteenth Amendment have apparently missed one or two little phrases. First, no one is questioning the debt. The question is, will Congress authorize by law additional debt, which is the second problem for those looking for a non-legislative solution. Any debts incurred outside of Congressional action are not authorized by law, and therefore their validity would not be subject to the Fourteenth Amendment. Since the Constitution only delegates the power to borrow money on the credit of the United States to Congress (remember Article I, Section 8, Clause 2), any attempt by the Treasury Department to borrow money beyond Congress’ authorization would be void and of no effect.

An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is in legal contemplation as inoperative as though it had never been passed.

Norton v. Shelby County, 118 U.S. 425 (1886)

Conclusion

So where does that leave us? With all the fingers pointing back and forth between the houses of Congress, the Presidency, and the Department of Treasury, the ones truly responsible for this mess is We the People. Yes, we have hired representatives that have spent more than they collected in taxes for decades. We did so because we thought we could get goods and services from government and not have to pay for them. In short, the American people have been incredibly greedy for decades, and the chickens are coming home to roost. We asked Congress to collect taxes for more than paying the debts and providing for the common defense and the general welfare of the United States, but we asked them to appropriate far more than we would let them collect. With each new program, service, subsidy, and entitlement, we told our representatives to simply charge it, figuring someone else would have to pick up the tab. Well, that game of musical chairs is coming to an end, and it appears this generation is the one without a place to sit. The only reason the United States is not bankrupt is because people around the world keep lending us money or the Federal Reserve makes it up out of thin air, further devaluing the dollar and pushing us deeper into this fiscal crisis. Like a drunk who wards off his hangover by drinking more, we’ve kept this party going far longer than reason would allow. Some day, just like that drunk, the United States will get cut off by the world. In fact, I think it’s already starting to happen as more and more nations agree do to business together in something other than U.S. dollars. The world trusted us to be their reserve currency, and they’re starting to realize we were not up to the challenge.

Regardless of where you stand on the current debt limit crisis, if We the People don’t demand that our public servants get our fiscal house in order, then our economic future is bleak indeed. For those of you who think that we can continue this charade, that we can fix this crisis without spending cuts, I remind you that we’ve tried that for at least 70 years and it hasn’t worked yet. As Mr. Einstein put it:

Insanity is doing the same thing over and over again and expecting different results. —Albert Einstein

© 2023 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

May 9, 2023

• Under what circumstances can a government actor legally search cellphone location data?
• What are the requirements for a legitimate geofence warrant.
• Can this case out of California help turn the tide in our dissent into tyranny?

Most of us are aware that generally law enforcement needs to get a warrant before searching our property. Recent advances in technology, however have made the distinctions for the necessity of a warrant more and more difficult. For example, can law enforcement search for cellphone data within an area for their criminal investigations? Are these geofence warrants a violation of the Fourth Amendment’s requirement that warrants be issued only when there is probable cause and specifically stating the places to be searched and the things to be seized? A recent case heard in the California Court of Appeals looks to answer that very question.

For those of you who may not be familiar with the term, a geofence warrant is a request, generally by law enforcement, for the location data for all devices within a defined area during a defined time. Think of the mapping software so many of us use. Imagine you’re looking for a place to meet up with friends for lunch. You put a marker in the general area you want to meet, then ask the software for a list of restaurants within 10 miles of that location. You have created a geofence (the within 10 miles of your selected location), and you are asking for a list of known restaurants within that geofenced area. Now imagine law enforcement places their own marker near the scene of a crime or other place of interest, and they want a list of all of the cellphones within a certain distance of that marker for a timeframe related to a crime. Now, instead of using mapping software, they reach out to one of the many tech companies that collect location data from the apps on your phone for that list. That request would come in the form of a geofence warrant, meaning a judge would have to look at the request and determine if it meets all the requirements listed in the Fourth Amendment.

People v. Meza

A case recently heard by the California Court of Appeals challenged the constitutionality of these geofence warrants.

Los Angeles County Sheriff’s Detective Jonathan Bailey applied for a search warrant directing Google to identify individuals whose location history data indicated they were in the vicinity of the six locations visited by Thabet on March 1, 2019.

People v. Meza

First, we need to understand what is required under the Fourth Amendment before a warrant can be issued.

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

We have a right to be secure from unreasonable searches and seizures. That’s why the government has to meet the requirements of the Fourth Amendment before they can search or seize your person, house, papers, or effects. Those requirements are:

• They must show probable cause.
  • Apparent facts discovered through logical inquiry that would lead a reasonably intelligent and prudent person to believe that an accused person has committed a crime, thereby warranting his or her prosecution, or that a Cause of Action has accrued, justifying a civil lawsuit. — Probable Cause – The Free Legal Dictionary
• A particular description of the places to be search.
• A particular description of the things to be seized.

The six locations were chosen by Detective Bailey after video surveillance identified them as places Mr. Thabet had visited before his murder. As part of the application process for requesting a warrant, the requester must provide an affidavit showing probable cause.

In an affidavit supporting the application, Bailey described Thabet’s murder as seen on the surveillance footage of the bank parking lot. Bailey stated he had viewed surveillance camera footage from several of the other locations Thabet had visited that morning and had seen the gray and red sedans in the footage.

People v. Meza

Next, the warrant request listed the six locations along with the area around each location for the geofence to be established and the timeframes for which Detective Bailey was requesting data. The warrant established a three-step process by which Google (the owners of the database to be searched) would provide the requested data.

At step one, Google was directed to search location history data for the six designated locations and times and produce an anonymized list of devices found within the search areas in the designated timeframes, including the individual times each device was recorded in the search area during the applicable time period.

At step two, law enforcement would review the anonymized list of devices “to remove devices that are not relevant to the investigation, for example, devices that were not in the location for a sufficient period of time.” If law enforcement believed additional information was needed to determine whether a particular device was relevant to the investigation, law enforcement could request that Google provide additional location history information for that device even if that information fell outside of the initial geographic and temporal search parameters.

At step three, law enforcement could demand identifying information from Google for all devices law enforcement deemed relevant to the investigation. The warrant directed Google to provide this identifying information without additional legal process.

People v. Meza

Based on the information collected by this geofence warrant, Daniel Meza and Walter Meneses were identified as suspects. At trial they moved to have the geofence warrant quashed and suppress the evidence related to it, but their motions were denied. Daniel Meza plead guilty to first degree murder and Walter Meneses plead no contest to second degree murder.

On appeal Meza and Meneses contend the trial court erred in denying their motion to suppress, arguing the geofence warrant violated their rights under the Fourth and Fourteenth Amendments to the United States Constitution and did not comply with the California Electronic Communications Privacy Act of 2016 (Pen. Code, § 1546 et seq.)4 (CalECPA).

People v. Meza

Though California Court of Appeals found that the geofence warrant used in this case did not violate CalECPA, they did find it violated the Fourth Amendment, specifically the particularity requirement.

The Details Matter

When it comes to warrants, not only do the details matter, but they especially matter when it comes to the particularity of the places to be searched and the things to be seized.

A search is presumptively reasonable, and thus in compliance with the Fourth Amendment, if supported by a warrant describing with particularity the thing or the place to be searched. (See People v. Weiss (1999) 20 Cal.4th 1073, 1082.) “‘The manifest purpose of this particularity requirement [is] to prevent general searches. By limiting the authorization to search to the specific areas and things for which there is probable cause to search, the requirement ensures that the search will be carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit.’” (People v. Amador (2000) 24 Cal.4th 387, 392; accord, Maryland v. Garrison (1987) 480 U.S. 79, 84.)

People v. Meza

The reason why the Constitution is so picky about the particularity requirement for warrants is the colonists’ history with general warrants and specifically with writs of assistance. These were warrants that allowed British officials to search without any probable cause, then if the found any contraband, fill in the warrant with the specifics of the charge. Hence, the three part requirement for warrants in the Fourth Amendment. The first requirement looked at by the court was probable cause.

Meza and Meneses contend Detective Bailey’s assertion of probable cause in his affidavit was insufficient because “[t]here was absolutely no evidence that either suspect had, or was using, a phone or other device at any time during the relevant timeframe.”

Probable cause does not require conclusive evidence that a search will uncover relevant evidence, only that “‘there is a fair probability that contraband or evidence of a crime will be found in a particular place.’”

It was reasonable for the magistrate to conclude the perpetrators were carrying cell phones the morning of the murder and used them in coordinating their movements.

People v. Meza

It was quite reasonable to believe that the perpetrators of the murder were carrying cellphones at the time, so there was probable cause to believe that their location data would not only show them at the scene of the crime, but following the victim to that location.

Next, the court looked at the particularity of the search.

The warrant in this case sufficiently described the place to be searched (Google’s database of users’ location history) and the items to be retrieved from that search (designated records for users found within the boundaries of certain coordinates at certain times). Indeed, Mesa and Meneses do not argue there was any ambiguity in the warrant that would lead law enforcement or Google personnel to search an incorrect database or to identify individuals not contemplated by the text of the warrant.

However, the warrant here failed to meet the particularity requirement because it provided law enforcement with unbridled discretion regarding whether or how to narrow the initial list of users identified by Google.

People v. Meza

The court based this decision on what law enforcement could do with the data once it was collected.

Once the step one search had been conducted, law enforcement officials were able to enlarge the geographic parameters of the search and request additional information on any of the potentially thousands of users identified without any objective criteria limiting their discretion. Again, at step three law enforcement could seek identifying information of any of the users found within the search parameters without restriction on how many users could be identified or any further showing that information concerning each individual user would be relevant to the case.

People v. Meza

The court identified two issues with the particularity of the warrant. Once the initial data was collected, law enforcement could request additional information without any limitations on anyone who happened to be in that area. There was no requirement to show probable cause that the person they would request additional information on had anything to do with the crime being investigated. Furthermore, the court was concerned about how many people law enforcement wanted identifying information on. That doesn’t bother me nearly as much as the other issue the court identified: That law enforcement did not need to provide probable cause that the individual user was relevant to the case. In other words, once they were swept up in the geofence warrant, there was no requirement that there had to be probable cause that the individual was involved before law enforcement could collect data about them. This problem was further exacerbated by the breadth of the warrant.

In determining whether a warrant is overbroad courts consider “whether probable cause existed to seize all items of a category described in the warrant” and “whether the government could have described the items more particularly in light of the information available to it at the time the warrant issued.”

The geofence warrant in this case ran afoul of both of these requirements. First, the warrant authorized the identification of any individual within six large search areas without any particularized probable cause as to each person or their location. For example, the first search location, the area around Thabet’s apartment complex, allowed law enforcement to obtain information on every individual in a seven-and-a-half-acre area over a 75 minute period in the early morning. The search area included Thabet’s entire apartment complex and surrounding buildings despite the lack of any evidence (or supported inference) that the suspects left their vehicles, let alone entered the apartment building.

Second, law enforcement officials failed to draw the search boundaries as narrowly as they could have given the information available. …

The timeframes designated in the geofence warrant were also not narrowly tailored.

People v. Meza

What we have here is the law enforcement equivalent of a dragnet, pulling in the information for everyone in these areas, hoping that they would “throw back” those that were not of interest in this case. Sounds awfully close to the writs of assistance I described earlier.

All of this led the court to find that the warrant was unconstitutional, although they did leave in place the convictions of both Meza and Meneses.

Conclusion

It’s important to remember that although this court came to a decision based on the Constitution of the United States, this was a court of the State of California. Therefore its opinion is only binding on the parties to the case and the precedent within that state. The case does, however, make two interesting constitutional points.

First, this court upheld the Supremacy Clause 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

So, even though the warrant did not violate California law, it did violate the Constitution of the United States. Not only did the judges support the supremacy of the Constitution, but they showed themselves bound to it, even if the laws of California were at odds with it. This case also pointed out a couple of fundamental flaws in the geofence warrant process, which is most likely replicated across the nation.

For a warrant to be valid, it must particularly describe what is to be searched and what is to be seized. While many may point out that these warrants do particularly describe where the data to be searched is, they may not particularly describe what data for which they are searching. This is why judges need to make sure that any geofence warrant is limiting both the size and timeframe to gather the particular data needed. Once the anonymous data has been searched and specific details requested, there must again be probable cause before the identifiable details are released. In my mind, this would require an additional warrant, making sure that law enforcement provides, under oath, both the probable cause for why the data is needed and the specific details of what they are requesting.

I hope anyone who is aware of a case where someone has been caught up in an overly broad and insufficient warrant, will share this information with the individual and their legal team. This case may be an early step in reigning in government collusion with big tech to spy on the American people.

© 2023 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

May 5, 2023

• Is it constitutional for members of the House to vote by proxy?
• What is the Quorum Clause and why is it important in this case?
• Will this be a flash in the pan or an earth shattering change to the legislative process?

During the COVID-19 scamdemic, Nancy Pelosi once again ignored the Constitution and implemented by rule something called “proxy voting”. Now, Texas Attorney General Ken Paxton has filed a lawsuit in federal court challenging a bill because the final version passed in the House of Representatives by proxy vote. Does Mr. Paxton’s suit have a constitutional leg to stand on? If a court finds for Texas, what does that mean for other legislation passed on a proxy vote?

I imagine most Americans have not been a part of meetings that runs by certain rules of order, but most of us understand the basics. The need to be recognized, rules of decorum, and, oh yeah, a need for a quorum.

A bench of justices, or such a number of officers or members as is competent by law or constitution to transact business

QUO’RUM – Webster’s 1828 Dictionary

Having a number of competent members to transact business is one of the fundamental requirements for the legislative process in the United States. However, in response to the fake public health emergency called COVID-19, on May 15, 2020, the House of Representatives, then in the control of the Democratic Party, tried to change the rules. Now, almost three years later, the Texas Attorney General Ken Paxton is trying to put a stop to it. In the case Texas v. Merrick Garland, et. al., Mr. Paxton claims that the House of Representatives violated the Constitution on December 23, 2022 when they voted on the Consolidated Appropriations Act of 2023 without a quorum present.

On December 23, 2022, only 201 of the Members of the House of Representatives were present in the House’s chamber. As that was less than half of the Members, a quorum was not present. The House therefore enjoyed only two powers: it could “adjourn from day to day” and “compel the attendance of absent Members.” It was constitutionally unauthorized to do anything else.

The House nevertheless purported to accept the Senate’s amendments to the Consolidated Appropriations Act of 2023 on that day. It did so under a House Rule that allowed absent members to vote by proxy. But the Constitution defines absent members as excluded from “a Quorum to do Business” and therefore unauthorized to vote to enact legislation—by “proxy” or otherwise. Though President Biden signed the Consolidated Appropriations Act, his signature was a nullity because the act never “passed the House of Representatives.”

The Court should declare that the Consolidated Appropriations Act has not been enacted and is not law.

Texas v. Merrick Garland, et. al.

There is a lot to unpack here, so let’s start with what happened in late 2022.

The Consolidated Appropriations Act, 2023, began life as H.R. 2617. It was first passed by the House of Representatives in September 2021. … The Senate passed a different version of the Act in November 2022. … Because the versions passed by the House and the Senate were not identical, the differences between the two had to be resolved before the bill was considered passed by Congress.

The Senate assented to the House’s amendments to the bill on December 22, 2022. ..,. The vote was 68 yea, 29 nay, and 3 who were absent from the Senate chamber not voting.

Texas v. Merrick Garland, et. al.

Hopefully we all learned the legislative process in school. Both houses of the Congress must pass a bill with the same language before it can go to the President. Since the Senate passed a version of the Consolidated Appropriations Act that was different from the one passed by the House, the House had to agree to the different language. This is where things get sticky, constitutionally speaking.

Members of the House met the next day to consider the Senate’s amendments to the bill. The House did not have a quorum; only 201 of the Representatives were present.

Texas v. Merrick Garland, et. al.

I would say that someone probably failed basic math in elementary school, but that is not what happened. The leadership of the House did not miscount or otherwise make a simple mistake; they tried to get around a constitutional requirement.

Those present nevertheless proceeded to vote on accepting the Senate’s amendments. The final tally, according to the Clerk of the House, was 225 yea, 201 nay, and 1 present. … The extra 226 votes were cast by Representatives whom absent Representatives had appointed as proxies. … The votes of those physically present were 88 yea and 113 nay.

Texas v. Merrick Garland, et. al.

Article I, Section 5, Clause 1 of the Constitution clearly states how many members of a house need to be present in order to do business.

Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.

Article I, Section 5, Clause 1

So how did the leaders of the House of Representatives attempt to get around this little quorum problem? By changing their own rules.

Determination Of Quorum.—Any Member whose vote is cast or whose presence is recorded by a designated proxy under this resolution shall be counted for the purpose of establishing a quorum under the rules of the House.

H.Res.965 — 116th Congress (2019-2020)

Again, this is where we encounter the problem. When the Constitution states that a majority of a house constitutes a quorum for doing business, does that require them to be physically present? That is the question Mr. Paxton is asking the federal courts to decide.

The Quorum Clause’s text, the structure of the Constitution, and the longstanding—and until three years ago, unbroken—practice of Congress to conduct its business in-person collectively reinforce that the Constitution forbids proxy voting.

Only with a quorum may either House “do Business.” In context, that necessitates physically present Members. The power to “compel the Attendance of absent Members,” would make little sense if the Constitution did not require physical attendance.

Texas v. Merrick Garland, et. al.

Mr. Paxton’s first argument is that if the physical presence of members was not required to do business, then why would a smaller number be empowered to compile the attendance of those absent? This argument makes sense to me. Otherwise, a minority of members could conduct business while the others were not present, something the framers of the Constitution apparently did not want. Mr. Paxton claims this is further proven by other parts of the Constitution.

Other clauses of the Constitution confirm that Members must be physically present for purposes of a quorum to vote on legislation.

Article I, § 4 requires Congress to “assemble” at least once per year, where “assemble” meant “[t]o bring together into one place” or “congregated.” Johnson’s Dictionary; see also U.S. Const. art. I, § 5, cl. 4 (no adjournment “to any other Place than that in which the two Houses shall be sitting”); U.S. Const. art. II, § 3 (discussing convening and adjourning Congress).

Article I, § 6 grants certain privileges to Members, but those privileges require physical presence. Specifically, Members are privileged from arrest “during their Attendance at the Session of their respective Houses, and in going to and returning from the same.” U.S. Const. art. I, § 6, cl. 1. This privilege—which refers to “going” to the House and “returning” home—would be surplusage if Members could stay home to vote.

Texas v. Merrick Garland, et. al.

Other examples of constitutional construct that Mr. Paxton relies on are not as convincing.

The Yeas and Nays Clause discusses counting the votes “of those Present.” U.S. Const. art. I, § 5, cl. 3.

Texas v. Merrick Garland, et. al.

The problem with that is the part of the clause he’s referring to is not referring to regular votes.

Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.

U.S. Constitution, Article I, Section 5, Clause 3

He also tries to link the Impeachment, Treaties, and Presidential Election Clauses’ presence requirement with the general business of the House.

Similarly, the impeachment power requires that Senate votes be by two thirds of the “Members present” in a proceeding where “the Chief Justice shall preside.” U.S. Const. art. I, § 3, cl. 6.

Neighboring language refers to “presence,” too, in a manner that would rob it of meaning if proxy voting were allowed. E.g., U.S. Const. art. II, § 2, cl. 2 (“[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur[.]”); U.S. Const. amend. XII (“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”).

Texas v. Merrick Garland, et. al.

While some of Mr. Paxton’s constitutional arguments work, others, not so much. It appears, however, that previous Supreme Courts have agreed with Mr. Paxton.

Supreme Court precedent supports this construction of the Quorum Clause. The Court has held that to constitute a “Quorum” necessary to “do Business,” the Constitution requires “the presence of a majority, and when that majority are present the power of the house arises.” United States v. Ballin, 144 U.S. 1, 6 (1892) (emphasis added). And “presence” means that the members must be “actually and physically present.” Christoffel v. United States, 338 U.S. 84, 89 (1949). See also United States v. Reinecke, 524 F.2d 435, 439–40 (D.C. Cir. 1975) (applying Christoffel).

Texas v. Merrick Garland, et. al.

Which brings us to an interesting point in history. What is Texas asking for?

The legislation that Texas challenges passed the House without a quorum. It therefore violates the Quorum Clause. Texas is entitled to a declaration to that effect.

Texas is entitled to both preliminary and permanent injunctions preventing the Defendants from enforcing the Act’s unconstitutional requirements. Each of the factors governing the award of injunctive relief favor Texas.

Texas v. Merrick Garland, et. al.

Texas is asking for an injunction preventing the federal government from enforcing the unconstitutional parts of the Consolidated Appropriations Act of 2023. Mr. Paxton has not only argued that parts of that act are unconstitutional, but that the House of Representatives never legally voted for the legislation. If Mr. Paxton is correct, and this United States law was not made pursuant to the Constitution, it’s not the supreme law of the land.

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

According to Mr. Paxton, this legislation did not legally pass the House, so it was never, technically U.S. law. That’s just the primer for the bombshell this case would be if the court actually finds for Texas.

Conclusion

If proxy voting in the House, as established by H. Res. 965 of the 116th Congress, is found to be unconstitutional, that means every piece of legislation voted on in the house where a majority of members were not physically present, is null and void, since it did not legally pass the House. I have no idea how many pieces of legislation that would be, or how wide ranging their impact, but I’m sure it would rattle the very halls of Congress.

Do I think the court will issue Texas their injunction? While I think Mr. Paxton has made his case, we have not heard the other side yet. Even after the case is heard, I’m not sure the court will issue the requested injunction for the simple reason of the breath of the impact it would have on the nation. Imagine how many suits would immediately be filed against each and every piece of legislation passed without a quorum? The best I can hope for would be for the court to find for Texas, but so limit their opinion as to forestall a national run on the courts.

I have to ask myself how would I find if this case were in my hands? Knowing the impact it would have, and the chaos it would cause, I would still have to find for Texas based on the evidence I’ve seen so far. Because if I am on a federal court, I took an oath to support the Constitution of the United States. I must uphold the law, and allow the people to suffer the consequences of their poor choice in representation.

© 2023 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

April 25, 2023

• The United States is a constitutional republic, not a democracy.
• I have to wonder if all this concern about the “American Democracy” is really about turning us into a democracy?
• What we saw in Nashville last month is an example of what America would look like if we continue down this road to a democracy.

After the mass murder in Nashville, I was not surprised by the politicians and advocates rushing to microphones, many before the bodies were even removed. I wasn’t surprised by the demonstrations, especially after it was announced that the murderer identified as “transgender”. What happened in the Tennessee legislature was shocking, too, it and the aftermath is an excellent example of why the United States is a republic, not a democracy.

I grind my teeth every time I hear someone refer to our “American Democracy” or some variation of that. They grind because the United States is NOT a democracy, but a constitutional republic.

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

For years I have not only taught that fact, but why it’s so important. Over the last few weeks I watched as an example of the problems with an “American Democracy” played out in my home state of Tennessee.

Timeline

On Monday, March 27, 2023, at 10:11AM, a mass murderer shot through a glass side door at The Covenant School in Nashville, TN. Members of the Metro Nashville Police Department were notified at 10:13, were onsite by 10:23, and dispatched the murderer approximately two minutes after they arrived. This murderous act of a disturbed individual led to the expected calls to further infringe on the people’s right to keep and bear arms. This included a demonstration at the Tennessee State Capitol.

On March 30, 2023, approximately 1,000 people arrived at the capitol building in Nashville to demonstrate for more restrictive gun laws, many of whom made their way into the capitol itself. At that time, three members of the House interrupted legislative business by going to the podium with a bull horn to lead protestors in the galleries in shouts for more “gun reform”. The following Monday, resolutions were brought to the floor to expel the three legislators who led the disruption, as allowed by the state constitution:

Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member, but not a second time for the same offense; and shall have all other powers necessary for a branch of the Legislature of a free state.

Tennessee Constitution, Article II, Section 12

Two of the three legislators, Justin Jones and Justin Pearson, were expelled, while the resolution against the third, Gloria Johnson, fell one vote short. This led to immediate reaction from both the political and the talking head classes, claiming the move was everything from unconstitutional to undemocratic. They were invited to the Whitehouse, and Vice-President Harris went to Nashville to visit them (though she didn’t have the time to meet with the families of the victims). Shortly thereafter, first the Metro Nashville Council and then the Shelby County Council, voted for interim representatives to hold their seats until the next general election. Both councils voted unanimously to place the expelled legislators as their own interim replacements. Now the U.S. Dept. of Justice is considering an investigation into their expulsion. However, there’s a problem. The Tennessee Constitution has a clause to deal with vacancies in either house of the legislature.

Vacancies. When the seat of any member of either House becomes vacant, the vacancy shall be filled as follows: …

(b) When less than twelve months remain prior to the next general election for legislators, a successor shall be elected by the legislative body of the replaced legislator’s county of residence at the time of his or her election. The term of any Senator so elected shall expire at the next general election for legislators, at which election a successor shall be elected.

Tennessee Constitution, Article II, Section 15

I did a little checking, and confirmed my suspicions with the website for the Tennessee Secretary of State. The problem is that the next general election for legislators isn’t until November 5, 2024. That means there are more than twelve months before the next general election for legislators, and sub-paragraph (b) is not the controlling law, sub-paragraph (a) is:

(a) When twelve months or more remain prior to the next general election for legislators, a successor shall be elected by the qualified voters of the district represented, and such successor shall serve the remainder of the original term. The election shall be held within such time as provided by law. The legislative body of the replaced legislator’s county of residence at the time of his or her election may elect an interim successor to serve until the election.

Tennessee Constitution, Article II, Section 15

As of the time of this writing, the two expelled legislators have retaken their seats, in violation of the Constitution of the State of Tennessee.

Democracy in Action

Why do I find it so egregious to refer to the United States as a democracy? Because of what’s happening in the Tennessee legislature, and what I believe will continue to happen, is exactly what a democracy is: Mob rule.

Democracy is nothing more than mob rule, where 51% of the people may take away the rights of the other 49%.

Attributed to Thomas Jefferson

That’s right, what happened in the Tennessee capitol on March 30th, was democracy in action. It’s actually worse than mob rule, since only three legislators not only denied the other 94 members of the Tennessee House the right to speak, but they denied the rights of millions of Tennesseans the right to representation. In effect, Mr. Jones, Mr. Pearson, and Ms. Johnson established taxation without representation for the State of Tennessee. For this they were legally and constitutionally punished. This theft by these three agitators was rewarded by the fawning national attention they received, but the real slap in the face to all Tennesseans was the Metro Nashville and Shelby County councils choosing to ignore the Tennessee Constitution by not only choosing their successors, but to choose the usurpers as their own interim replacements. Add to that the cheers and accolades showered upon them, as they made their triumphant yet illegal return to the capitol. This rewarding of bad behavior has no good end. I do not think I exaggerate when I say we are witnessing the end of the republic.

Look what has happened in cities like Chicago, Los Angelos, New York, and San Francisco. When the “justice system” stopped punishing bad behavior, that behavior rapidly grew. When it was announced that people would not be prosecuted for “petty crimes”, those crimes grew as well. Let’s not forget the riots in Kenosha, St. Louis, and other cities, which went on for days because the police were prevented from arresting those demonstrators who had become violent. You can see this lack of justice all the way back in the “Occupy Wall Street” and “Capitol Hill Organized Protest” (CHOP). When bad behavior is rewarded, it grows.

Now what have the people of Nashville and Shelby County taught by these legislator agitators? They can stop debate on anything they don’t like and get away with it. Sure, they may be expelled, but their cohorts in city and county government will simply restore them to office, even if it’s illegal. This means the state’s legislative process can be held hostage by any member willing to debase themselves as these three did. How long before others learn of this new found power to squelch debate? How long before the legislative process comes to a halt because radicals on both sides are unwilling to debate and compromise? How long before the republic stops functioning?

What would happen if the legislative process were to grind to a halt? Sure, there would be no new laws, but there would also be no funding for programs, for law enforcement, for infrastructure, or even for salaries. How would we pay for our schools, get our driver’s licenses, or repair our roads? How many Tennesseans would call for Governor Lee to do something? I’m reminded of the wise words from George Washington in his farewell address.

The alternate domination of one faction over another, sharpened by the spirit of revenge, natural to party dissension, which in different ages and countries has perpetrated the most horrid enormities, is itself a frightful despotism. But this leads at length to a more formal and permanent despotism. 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.

Washington’s Farewell Address 1796

Even worse, what if this cancer were to spread? What if legislators in other states realized they would be lionized for disrupting the legislative process? If you think only democrats would do such a thing, think again. How many other states would crumble and fall under such an onslaught? What if this cancer were to metastasize all the way to the United States government? We’ve already seen plenty of Presidents willing to rule by fiat. Do you really think they would not do so again in a situation where the legislature was paralyzed? What can we do?

Conclusion

These are perilous times in which we are living. If you also live in the State of Tennessee, I recommend we do a few things.

I have sent my state representative and senator a proposal for an amendment to the Tennessee Constitution that would prohibit an expelled or disciplined member for being eligible as a successor until a general election for their seat has been held. I recommend you do the same, but that is just the beginning.

The people of Tennessee must stand up and take control of our legislature. First, we must meet with our state legislators and impose upon them the importance of insuring the legislative process is allowed to proceed without the extortion of disorderly behavior. Let them know that we will support them when they enforce the Tennessee Constitution, including when the expected backlash comes.

Next, we need to tell the Speaker of the House, Cameron Sexton, that he must refuse to seat these two interlopers as they were not legally chosen for their seats. Also, in the future, he must refuse to recognize any member who is expelled and restored as his or her own successor when it comes to debates on the floor or committee assignments. If the people of Nashville and Shelby County wish to punish the state for punishing their bad legislative actors, then we must punish them for denying us representation. This would, of course, create a tremendous backlash among the rabble rousers, especially those in political office and the media. We must prepare for that. Not only must we convince our representatives to support Speaker Sexton in such a move, we must be willing to do so ourselves.

We also need to encourage Governor Lee to protect this state from illegal federal interference. Unless and until the federal government can show probable cause that a legitimate federal law was violated, any threatened investigation into the expulsion of these two troublemakers will be opposed within the state. Should a federal actor attempt to violate the sovereignty of the State of Tennessee by investigating what is a state matter, they should be arrested of obstruction of justice and interfering with the state’s government. We the People of Tennessee must be willing to support Governor Lee in such an endeavor, and we need to let him know that now.

Think of how much time, effort, and money we Tennesseans devote to things like sports. How many people take the time and spend the money to go to a Titans or Predators game? What about traveling to watch the University of Tennessee, Vanderbilt, or other college teams play? How much time do you devote to NASCAR, hunting, fishing, or other endeavors? The future of the republic lays in your hands. Won’t you devote some time, effort, and money to make sure you can continue to live free?

This must be a litmus test for all elected officers at all levels. Either they help insure the future order of the legislative process or they lose their next election, no compromise. This is also a litmus test for every Tennessean. It’s not good enough to wait for someone else to do something. It’s not sufficient to simply write letters or post tirades. Either get up off your butt and do something or suffer the shame and ridicule from others when the republic falls and the empire of mob rule takes over. As Thomas Paine said:

THESE are the times that try men’s souls. The summer soldier and the sunshine patriot will, in this crisis, shrink from the service of their country; but he that stands it now, deserves the love and thanks of man and woman. Tyranny, like hell, is not easily conquered; yet we have this consolation with us, that the harder the conflict, the more glorious the triumph. What we obtain too cheap, we esteem too lightly: it is dearness only that gives every thing its value. 

The American Crisis – Thomas Paine

America is in no less a crisis today. Are you a summer soldier or sunshine patriot? Will you shrink from the service to your state and your country? Or will you stand with me and earn the love and thanks of all Tennesseans and, in fact, all Americans? The choice is yours.

© 2023 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

April 19, 2023

• Once again the American people may be succumbing to fear and letting the federal government pass legislation that will be used to restrict our rights.
• In an attempt to regulate the activities of TikTok and their alleged espionage, Congress is debating the RESTRICT Act. But would it do what Congress is claiming?
• Are we witnessing the repeat of the PATRIOT Act?

There has been plenty of talk lately about TikTok, its connection to the Chinese Communist Party, and what American politicians should do about it. Several states, and I believe federal agencies, have banned it from government owned devices, but is that enough? There are those who are calling for drastic actions to protect the American people from this software. Just like after 9/11 though, it appears those in government are ready to use a howitzer to take care of a flea.

Senator Mark Warner of Virginia, along with a dozen others, have proposed the “Restricting the Emergence of Security Threats that Risk Information and Communications Technology Act”, also known as the RESTRICT Act. It appears the American people have not learned from our rush to protect ourselves in 2001. Then the PATRIOT Act infringed on the rights of millions of patriotic Americans. Similarly, it appears that the RESTRICT Act is setting us up to further restrict our rights and liberties.

Let’s start by making sure we understand a few points about this legislation. We’ll begin with some definitions

(B) COVERED ENTITIES.—The entities described in this subparagraph are:

(i) a foreign adversary; 

(ii) an entity subject to the jurisdiction of, or organized under the laws of, a foreign adversary; and

(iii) an entity owned, directed, or controlled by a person described in subparagraph (A) or (B).

RESTRICT Act

This act would apply to a foreign adversary, someone subject to the laws of a foreign adversary, or someone or something controlled by a foreign adversary. I think we all understand what makes something foreign, but what’s an adversary?

one that contends with, opposes, or resists : an enemy or opponent

Adversary – Merriam-Webster’s Online Dictionary

So when this legislation discusses covered entities, they mean anyone who is under the jurisdiction or controlled by a foreign enemy of the United States. Is that clear enough for you? Wait, there’s more. This legislation has its own definition of a foreign adversary:

(8) FOREIGN ADVERSARY.—The term “foreign adversary”— 

(A) means any foreign government or regime, determined by the Secretary, pursuant to sections 3 and 5, to have engaged in a long-term pattern or serious instances of conduct significantly adverse to the national security of the United States or the security and safety of United States persons; and

(B) includes, unless removed by the Secretary pursuant to section 6—

(i) the People’s Republic of China, including the Hong Kong Special Administrative Region and Macao Special Administrative Region; 

(ii) the Republic of Cuba;

(iii) the Islamic Republic of Iran;

(iv) the Democratic People’s Republic of Korea;

(v) the Russian Federation; and

(vi) the Bolivarian Republic of Venezuela under the regime of Nicolás Maduro Moros.

RESTRICT Act

This is where we start seeing the fundamental problem with this legislation. Basically, this would define a foreign adversary as any government that the Secretary thinks is one. Which secretary?

(16) SECRETARY.—The term “Secretary” means the Secretary of Commerce.

RESTRICT Act

Are you prepared to give the Secretary of Commerce such power? Before a country is declared a foreign adversary for the purpose of regulation, shouldn’t an elected body, such as Congress, be involved? Let’s see just how much trouble the Secretary of Commerce can make for us.

In General.—The Secretary, in consultation with the relevant executive department and agency heads, is authorized to and shall take action to identify, deter, disrupt, prevent, prohibit, investigate, or otherwise mitigate, including by negotiating, entering into, or imposing, and enforcing any mitigation measure to address any risk arising from any covered transaction by any person, or with respect to any property, subject to the jurisdiction of the United States that the Secretary determines—

RESTRICT Act

Let’s pause here for a moment. The Secretary is authorized to deter, disrupt, prevent, prohibit, investigate, or otherwise mitigate any transaction that one of the covered entities I’ve already listed has any interest in, as long as he or she believes there is a risk to the United States? Is anyone else having PATRIOT Act flashbacks? What limits can the Secretary use to identify, deter, disrupt, prevent, prohibit, investigate, or otherwise mitigate such risk? What risks is the Secretary supposed to be on the look out for?

that the Secretary determines—

(1) poses an undue or unacceptable risk of—

(A) sabotage or subversion of the design, integrity, manufacturing, production, distribution, installation, operation, or maintenance of information and communications technology products and services in the United States;

(B) catastrophic effects on the security or resilience of the critical infrastructure or digital economy of the United States;

(C) interfering in, or altering the result or reported result of a Federal election, as determined in coordination with the Attorney General, the Director of National Intelligence, the Secretary of Treasury, and the Federal Election Commission; or

(D) coercive or criminal activities by a foreign adversary that are designed to undermine democratic processes and institutions or steer policy and regulatory decisions in favor of the strategic objectives of a foreign adversary to the detriment of the national security of the United States, as determined in coordination with the Attorney General, the Director of National Intelligence, the Secretary of Treasury, and the Federal Election Commission; or

(2) otherwise poses an undue or unacceptable risk to the national security of the United States or the safety of United States persons.

RESTRICT Act

What’s an undue or unacceptable risk of sabotage of our information and communications infrastructure? Could crypto currency be considered an unacceptable risk to our digital economy? We’ve already seen claims that those who spoke out about problems in the 2020 and 2022 elections were interfering with elections. And remember when Donald Trump and others were accused of actions coercive or criminal activities? Don’t forget, the Trump organization was also accused of housing foreign servers that they claimed were used to influence the election. What about those who pointed out the illegal actions by the FDA, CDC, Attorney General, DOJ, and White House, and those who refused to take an experimental COVID jab? Could they be accused of attempting to steer policy and regulatory decisions or was it just an unacceptable risk to the national security?

You may be saying that this would only apply to foreign adversaries. What if you use a service that has servers in one of those designated countries? What if you use a VPN, or cloud service that gets routed through one of them? We’ve already seen government actors abuse their position against their political enemies; do you really think this wouldn’t be used as an excuse one day?

IN GENERAL.—Subject to section 13, with respect to any covered holding referred to the President under subsection (a), if the President determines that the covered holding poses an undue or unacceptable risk to the national security of the United States or the security and safety of United States persons, the President may take such action as the President considers appropriate to compel divestment of, or otherwise mitigate the risk associated with, such covered holding to the full extent the covered holding is subject to the jurisdiction of the United States, with respect to— 

(A) the United States operations, assets, or property of the entity in which the covered holding is held, or of any products or services owned, controlled, designed, developed, manufactured, or supplied by the entity are used in the United States; 

(B) any tangible or intangible assets, wherever located, are used to support or enable use of the product or software of the entity in the United States; and 

(C) any data obtained or derived from use of the product or software of the entity in the United States. 

RESTRICT Act

There you are, running your business, when the President decides that the equipment you purchased to run your business is a national security risk. He suddenly issues an order compelling you to sell to someone else, because he claims you are controlled by a foreign adversary. You may have to sell your assets, property, or any other holdings you have, along with any data and software, including your proprietary information. Would anyone be surprised that you would be coerced to sell to an entity favorable to the President’s political party?

Considerations Relating To Undue And Unacceptable Risks.—In determining whether a covered transaction poses an undue or unacceptable risk under section 3(a) or 4(a), the Secretary—

(1) shall, as the Secretary determines appropriate and in consultation with appropriate agency heads, consider, where available—

(A) any removal or exclusion order issued by the Secretary of Homeland Security, the Secretary of Defense, or the Director of National Intelligence pursuant to recommendations of the Federal Acquisition Security Council pursuant to section 1323 of title 41, United States Code;

(B) any order or license revocation issued by the Federal Communications Commission with respect to a transacting party, or any consent decree imposed by the Federal Trade Commission with respect to a transacting party;

(C) any relevant provision of the Defense Federal Acquisition Regulation and the Federal Acquisition Regulation, and the respective supplements to those regulations;

(D) any actual or potential threats to the execution of a national critical function identified by the Director of the Cybersecurity and Infrastructure Security Agency;

(E) the nature, degree, and likelihood of consequence to the public and private sectors of the United States that would occur if vulnerabilities of the information and communications technologies services supply chain were to be exploited; and

(F) any other source of information that the Secretary determines appropriate; and

(2) may consider, where available, any relevant threat assessment or report prepared by the Director of National Intelligence completed or conducted at the request of the Secretary. 

RESTRICT Act

If you are a broadcaster, could you have your FCC license revoked? What about a trading agreement or a contract related to the DOD?

All it takes for a country to be declared a foreign adversary for this legislation, is a finding from the Secretary.

DESIGNATION.—The Secretary may, in consultation with the Director of National Intelligence, designate any foreign government or regime as a foreign adversary if the Secretary finds that the foreign government or regime is engaged in a long-term pattern or serious instances of conduct significantly adverse to the national security of the United States or security and safety of United States persons.

RESTRICT Act

What if you are unjustly targeted under such legislation? Sure, you could fight it in court, but that would take a lot of time and money. What if you recognize the unconstitutional and therefore illegal nature of this legislation, and following court precedent, realize it’s void and unenforceable?

IN GENERAL.—It shall be unlawful for a person to violate, attempt to violate, conspire to violate, or cause a violation of any regulation, order, direction, mitigation measure, prohibition, or other authorization or directive issued under this Act, including any of the unlawful acts described in paragraph (2).

RESTRICT Act

Such a tyrannical act would be nothing without penalties for violating its illegal precepts:

(1) IN GENERAL.—A person who willfully commits, willfully attempts to commit, or willfully conspires to commit, or aids or abets in the commission of an unlawful act described in subsection (a) shall, upon conviction, be fined not more than $1,000,000, or if a natural person, may be imprisoned for not more than 20 years, or both.

RESTRICT Act

Conclusion

Just like after 9/11, we have government actors stoking the fears of the American people with calls of “We have to do something!” And now, just as then, they are taking what are legitimate concerns and stoking the flames of fear in order to pass legislation that can easily and predictably be used to deprive you of your rights. Where is your right to due process, if all it takes to have your actions declared a threat is a decision by an unelected bureaucrat? What about your rights to freedom of speech and press when this legislation would allow government to either shutdown or steal any platform that someone can claim is foreign controlled?

Should Congress consider legislation to regulate the foreign commerce of an entity controlled by a foreign government? Yes, but only to the limits of their powers, which is foreign commerce. However, that is not what they are trying to do here. They are using fear of the apparent espionage of TikTok to claim the authority to regulate, control, and destroy any technology they can somehow claim is controlled by a foreign entity.

Leave it to Congress to drop an atomic bomb when a simple hand grenade would do. And with all of these new investigatory powers, does anyone believe this one or future Secretaries won’t use it to spy on Americans and their businesses? If this legislation passes, we would not be jumping out of the frying pan into the fire, but into an inferno that may well consume all of our rights.

© 2023 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

April 11, 2023

• When should a minor’s wishes supersede their parent’s?
• Should the courts be deciding when and if the parents of a minor child is notified of their attempts to receive an abortion?
• The case of Doe v Chapman deals primarily with the actions of one of the employees of the court, there is plenty of discussion of the fundamental question of parental rights vs children’s.

When should a parent be denied the right to know about medical procedures performed on their children? Most of us have been rebellious teenagers, sure that our parents are out to get us, only to grow up and realize they were right. When does a teenager’s right to liberty supersede a parent’s right to oversee their minor child’s upbringing? These are all questions in the case Doe v. Chapman, which was decided in the Eighth Circuit in April, 2022. This decision was appealed to the Supreme Court, which decided the case in March of 2023, with a single justice dissenting. This case not only turns on the questions I’ve already posed, but the procedures of the court.

One of the most difficult parts of being a parent is preparing your children to be independent and make decisions on their own. Let them make decisions before they are ready and they can be lost to any number of bad decisions. If you hold on too long though, and don’t allow them to decide for themselves, then they will be dependent on you and unable to survive on their own in a hostile world.

As a general rule, the people closest to the situation are best positioned to decide. That means the parents should be the ones making decisions for their children. Yes, there are situations where parents are not the best decision-makers for their children, but shouldn’t that be the exception, not the rule?

In Missouri, an abortion may not be performed on a woman under the age of 18 without, as relevant here, the informed written consent of one parent or guardian. § 188.028.1(1), RSMo 2016 . A minor may bypass this requirement by obtaining a court order granting the right to self-consent (for mature minors), or judicial consent (for “best interests” minors). §§ 188.028.1(3), 188.028.2(3) . 

Doe v. Chapman, 30 F.4th 766, (8th Cir. 2022)

The State of Missouri included this idea of parental control over their minor child’s medical treatment in their abortion laws. These laws require a minor get informed written consent from a parent or guardian before receiving an abortion, or receive a court order granting the child self-consent or judicial consent. Under what conditions can a court grant such a bypass?

The juvenile court may then (a) find the minor is sufficiently mature and grant the right to self-consent, (b) find the abortion is in her best interests and give judicial consent, or (c) deny the petition.

Doe v. Chapman, 30 F.4th 766, (8th Cir. 2022)

This brings up a couple of questions. How can a court determine if a minor is “sufficiently mature” to “grant the right to self-consent”? What could the court possibly base its decision on? Has the court lived with the child for any period of time? Does it have examples of the history of the child’s decision making? Also, how does the court know what is in the best interest of the child? Yes, there are situations where such a decision would be easy to determine, for example if the child was the victim of abuse at the hands of the parent or guardian. Beyond that, what we have is an opportunity for a judge to substitute their opinion for the parents, based on little more than a judge’s beliefs or political biases. Based on this, I would hope the times when a judge imposes themself between a parent and child are not only extremely rare, but well founded. This case though, isn’t about judicial interference in the medical decisions of a parent.

Jane Doe, then 17 years old, discovered she was pregnant in December 2018. Seeking an abortion, she went to the Randolph County Courthouse to apply for a judicial bypass. An employee at the clerk’s office hadn’t heard of the judicial bypass procedure, said they would do some research, and told Doe to come back later. A few weeks later, Doe returned. An employee told her “they were pretty sure that [she] could not open the petition without notifying a parent.” 

Doe v. Chapman, 30 F.4th 766, (8th Cir. 2022)

Jane Doe was seeking an abortion. Since she was under the age of 18, she needed either her parent’s consent or a judicial bypass. That’s when an employee of the county court’s office told her that they could not open the petition without notifying the bypass.

She offered to provide an application form but said that “our Judge requires that the parents will be notified of the hearing on this.” Returning to the courthouse in mid-January, Doe was again told that a parent would be notified if she filed an application. She eventually traveled to Illinois in March 2019, obtained a judicial bypass, and had an abortion without parental consent or notification.

Doe v. Chapman, 30 F.4th 766, (8th Cir. 2022)

So Jane Doe could get an application, but was told the judge would require her parents be notified of her petition.

Let’s pause here a moment and consider this dilemma. It’s apparent Ms. Doe is not only looking to get an abortion without her parent’s consent, but without them being aware of it either. Hence the issue with parental notification of the hearing. However, Ms. Doe is still a minor. That means not only is she unable to give consent, but her parents are legally responsible for her as well. Does this include any healthcare that might be required post abortion? Or will they be ignorant of the fact that their daughter had an abortion, which could have serious medical consequences?

Doe sued Chapman in her individual and official capacities under 42 U.S.C. § 1983, alleging that Chapman’s refusal to allow her to apply for a judicial bypass without parental notification violated her Fourteenth Amendment rights.

Doe v. Chapman, 30 F.4th 766, (8th Cir. 2022)

While not specified, it seems likely that the Fourteenth Amendment violation Ms. Doe alleged was being violated was:

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

As a minor, she does not have full possession of her rights. This is evidenced by her need to get a judge to allow her to get an abortion without her parent’s permission. This is where Ms. Chapman’s case gets a little sticky..

Chapman testified she “chatted with [Associate Circuit Judge] James Cooksey” and “his ad– his words were that he would require us to send notification to these parties.” She added that Judge Cooksey “advised that he would not hear the case without giving notice to the parents,” and that she was simply “following what he said he was going to require to hear the case.”

Doe v. Chapman, 30 F.4th 766, (8th Cir. 2022)

Ms. Chapman was claiming quasi-immunity since she was acting under the direction of the judge, but that particular argument fell apart.

However, when Judge Cooksey was asked if he ever told Chapman not to accept an application without notifying Doe’s parents, he testified, “Not to my recollection. I wouldn’t have had any authority to do that unless something was filed and I looked at the law. It’s not how I usually would operate.”

Doe v. Chapman, 30 F.4th 766, (8th Cir. 2022)

What to do, what to do? Ms. Chapman says that the judge told her the court would need to notify the parents upon Ms. Doe filing the petition, but Judge Cooksey does not remember giving any such instruction. Furthermore, he says such direction would be counter to his routine practices. The District Court had denied Ms. Chapman’s petition for summary judgment, which is why the case is at the Circuit Court. How did the court find?

Because Doe’s constitutional right to apply for a judicial bypass without notifying her parents is clearly established by Supreme Court precedent, this court need not address Chapman’s other arguments about qualified immunity.

The district court’s order denying summary judgment is affirmed.

Doe v. Chapman, 30 F.4th 766, (8th Cir. 2022)

The Circuit Court affirmed the District Court’s order to deny summary judgment for Ms. Chapman. There was one dissenter.

The bottom line is that there is no genuine issue of material fact here. The unrebutted evidence is that Chapman was acting “at [her] judge’s direction,” which entitles her to absolute immunity. Martin v. Hendren , 127 F.3d 720, 721 (8th Cir. 1997) (citation omitted).

Doe v. Chapman, 30 F.4th 766, (8th Cir. 2022)

Justice Stras disagreed with the rest of the court, claiming the the evidence that Ms. Chapman was acting under her judge’s direction was unrebutted. I would disagree with that statement, not because the judge did not recall the conversation, but because he said it was not the way he would routinely handle such a question. The case was appealed to the Supreme Court, which gave a terse reply.

The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Eighth Circuit with instructions to dismiss the case as moot.

Chapman v. Doe – On Petition For Writ Of Certiorari

That terse reply was, yes we’ll take the case, no, the circuit court was wrong, now go dismiss the case. Why did the court think this case should be dismissed? Because, in their opinion it was moot.

An issue presenting no real controversy.

Moot refers to a subject for academic argument. It is an abstract question that does not arise from existing facts or rights.

Moot – The Free Legal Dictionary

Most of the court thought the case was now an academic argument, and that it was no longer based on existing facts. Since the court did not give a reason for their opinion, we can only speculate. I say most of the court though, because one justice, Justice Jackson, disagreed.

When a case becomes moot, the losing party is generally deprived of the right to appeal the merits of an adverse decision.

Chapman v. Doe – On Petition For Writ Of Certiorari

Justice Jackson is correct. Now that the judgment affirming the District Court’s denial of Ms. Chapman’s request for summary judgment has been vacated and the case declared moot, there is no place for Ms. Chapman to go to appeal the District Court’s decision. Justice Jackson based her dissent on the way previous courts had handled the vacatur of a case by mooting, using the case United States v. Munsingwear, Inc., as precedent.

While these core principles warrant an exceedingly cautious approach to Munsingwear vacatur requests, our recent practices reflect a sharp uptick in the number of vacaturs awarded. I would not add this far-from-exceptional case to that growing list.

Chapman v. Doe – On Petition For Writ Of Certiorari

Conclusion

So where does that leave our analysis? As frequently happens, this case can trace its origins to a failure of the legislature when it wrote the law.

The current text of § 188.028 neither requires nor prohibits pre-hearing parental notification.

Doe v. Chapman, 30 F.4th 766, (8th Cir. 2022)

Missouri law does not state whether or not parents or guardians were to be notified about a hearing for a minor requesting a judicial bypass to the state’s parental consent laws. This leaves the question in the hands of judges rather than the representatives of the people. While I think that parental notification should be the norm, I can also see situations where that would be detrimental to the child. Without good laws specifying under what situations parents should and should not be notified, it really comes down to the whim of the court.

Perhaps Ms. Chapman honestly believed there was a duty to notify the parents of the hearing. Where she or Judge Cooksey were mistaken was they were put in this situation because of the need for a judgment call. Because of that ambiguity, I cannot say for sure who was right in this case. It does show one important point we should all remember when dealing with the legal system: When it doubt, get it in writing.

© 2023 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

April 5, 2023

• If the mission of the FDA is to protect the public health by ensuring the safety and effectiveness of drugs and medical products, has it done a good job?
• With all shortcuts and criminal violations the FDA took with the COVID “vaccines”, it is the first time they’ve done this, right?
• Will the lawsuit filed by the Alliance for Hippocratic Medicine finally expose the criminal enterprise known as the Food and Drug Administration?

With its failure to properly test the so-called COVID-19 ‘vaccines’, the FDA lost a lot of peoples’ trust, but this may not be the first time the FDA criminally approved a dangerous drug.

The Alliance for Hippocratic Medicine, along with others, have filed suit against the Food and Drug Administration regarding its approval of the abortion drug Mifeprex. Their complaint claims that the FDA violated multiple federal laws and its own regulations when it first approved the drug, then again over the next three decades when it expanded its use.

This case has not been heard by a court yet, but I want to take some time and evaluate the specifics in the complaint to see if they pass constitutional muster. This will also give us a framework by which to evaluate the court’s decision when it’s published.

The Alliance for Hippocratic Medicine’s complaint is lengthy, so I will focus on the parts of the complaint I think are most relevant. Let’s start with the very first item in the complaint.

The U.S. Food and Drug Administration (FDA) must protect the health, safety, and welfare of all Americans by rejecting or limiting the use of dangerous drugs.

ALLIANCE FOR HIPPOCRATIC MEDICINE v. FDA

Don’t you love it when a legal complaint starts with an unconstitutional assertion? Public safety is not a power delegated to the United States and neither is regulating drug safety. Since Congress is only authorized to create laws necessary and proper for putting into execution the powers delegated to it, drug safety is not a power delegated to the United States. It is unnecessary or improper for Congress to create it by legislation. Also, according to the Supreme Court in Norton v. Shelby County:

An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is in legal contemplation as inoperative as though it had never been passed.

Norton v. Shelby County

Since the act that created the FDA was unconstitutional, the FDA does not legally exist. The complaint then goes into some history of the illegal acts behind the approval of Mifeprex.

Beginning in January 1993, on his second full day in office, President Bill Clinton directed his cabinet to legalize chemical abortion drugs in the United States.

ALLIANCE FOR HIPPOCRATIC MEDICINE v. FDA

It appears that, from the beginning, the push for chemical abortions was more political than medical.

President Clinton and his agency officials then pressured the French manufacturer of the key chemical abortion drug, mifepristone (also known as “RU- 486” and “Mifeprex”), to donate for free the U.S. patent rights of the drug to the Population Council—as its name suggests, an entity focused on population control.

After receiving the patent rights to mifepristone, the Population Council submitted a new drug application, worked closely with the Clinton FDA during the review process, and, not surprisingly, obtained the agency’s approval on September 28, 2000—just over one month before the closely contested 2000 U.S. presidential election.

ALLIANCE FOR HIPPOCRATIC MEDICINE v. FDA

That’s political extortion to get the patent for a drug, turning it over to a politically aligned third-party, and then rushing it through the approval process. Sounds like an organized crime operation to me.

Alliance for Hippocratic Medicine then claims that the FDA not only had no cause to rush Mifeprex through the accelerated approval process, but doing so violated their own regulations.

The only way the FDA could have approved chemical abortion drugs was to use its accelerated drug approval authority, necessitating the FDA to call pregnancy an “illness” and argue that these dangerous drugs provide a “meaningful therapeutic benefit” over existing treatments.

But pregnancy is not an illness, nor do chemical abortion drugs provide a therapeutic benefit over surgical abortion. In asserting these transparently false conclusions, the FDA exceeded its regulatory authority to approve the drugs.

ALLIANCE FOR HIPPOCRATIC MEDICINE v. FDA

According to the FDA’s own accelerated drug approval procedures, there must be reason to rush the process, and political pandering is not a valid reason.

In some cases, the approval of a new drug is expedited. Accelerated Approval can be applied to promising therapies that treat a serious or life-threatening condition and provide therapeutic benefit over available therapies.

FDA Development & Approval Process | Drugs

As the complaint points out, pregnancy is not an illness, and in the vast majority of instances it’s not life threatening. And without a therapeutic benefit of chemical abortion over a surgical one, there was absolutely no reason for the accelerated approval process. Of course, why let the rules get in the way of a political agenda?

At least the FDA used a scientific process to make sure Mifeprex was safe and effective though, right? Tell me if you’ve heard this before: The FDA used an accelerated process to approve a drug for something that was not a generally life-threatening illness, then failed to perform the required safety testing, all while disregarding the evidence of complications?

What’s more, the FDA needed to disavow science and the law because the FDA never studied the safety of the drugs under the labeled conditions of use despite being required to do so by the Federal Food, Drug, and Cosmetic Act (FFDCA). The agency also ignored the potential impacts of the hormone-blocking regimen on the developing bodies of adolescent girls in violation of the Pediatric Research and Equity Act (PREA). And the FDA disregarded the substantial evidence that chemical abortion drugs cause more complications than even surgical abortions.

ALLIANCE FOR HIPPOCRATIC MEDICINE v. FDA

It seems to be a recurring theme from our “friends” at the Food and Drug Administration. If the FDA is using the same playbook for COVID as they did for chemical abortions, what can we expect in the future?

Since then, the FDA has not followed the science, reversed course, or fixed its mistakes—all to the detriment of women and girls. Instead, the FDA has doubled down on its actions and removed the few safeguards that were in place.

In March 2016—fourteen years after two Plaintiffs filed a citizen petition with the FDA asking the agency to withdraw its approval of chemical abortion drugs—the FDA rejected these Plaintiffs’ petition despite their explanations that the agency violated federal laws by approving these drugs and ignoring the substantial evidence that these drugs harm women and girls.

ALLIANCE FOR HIPPOCRATIC MEDICINE v. FDA

Ignoring science, ignoring the law, and ignoring both pleas and evidence that the drug should be pulled? Yep, that sounds like the same playbook the FDA is following for COVID. The FDA would not abuse its authority for political purposes, would it?

On the same day that the FDA rejected the citizen petition and mere months before another U.S. presidential election, the FDA also made “major changes” to the chemical abortion drug regimen, eliminating crucial safeguards for pregnant women and girls.

For example, the FDA extended the permissible gestational age of the baby for which a pregnant woman or girl may take chemical abortion drugs—from seven weeks to ten weeks.

Numerous studies have demonstrated that there is an increased risk from chemical abortion drugs to pregnant women and girls as the baby’s age advances from seven weeks to ten weeks because the surface area of the placenta as well as the size of the baby significantly grow during these three weeks.

ALLIANCE FOR HIPPOCRATIC MEDICINE v. FDA

Wait, the FDA would change the acceptable use for an untested drug in the face of evidence of the dangers of such a move? They only did that once, right?

Also in 2016, the FDA changed the dosage and route of administration for the chemical abortion drugs, reduced the number of required in-person office visits from three to one, expanded who could prescribe and administer chemical abortion drugs beyond medical doctors, and eliminated the requirement for abortionists to report non-fatal complications from chemical abortion drugs— without requiring any objective clinical investigations or studies that evaluated the safety and effectiveness of this new chemical abortion regimen or any safety assessment of its effects on the developing bodies of girls under 18 years of age.

ALLIANCE FOR HIPPOCRATIC MEDICINE v. FDA

Now, after all of this, the Alliance for Hippocratic Medicine is asking the court to do what the FDA should have done from the beginning.

After two decades of engaging the FDA to no avail, Plaintiffs now ask this Court to do what the FDA was and is legally required to do: protect women and girls by holding unlawful, setting aside, and vacating the FDA’s actions to approve chemical abortion drugs and eviscerate crucial safeguards for those who undergo this dangerous drug regimen.

ALLIANCE FOR HIPPOCRATIC MEDICINE v. FDA

What I’ve covered so far is just the tip of the iceberg.

Conclusion

Let’s put the constitutionality of the FDA aside and ask the two very important questions we need answered. First, did the FDA fulfill its mission?

The Food and Drug Administration is responsible for protecting the public health by ensuring the safety, efficacy, and security of human and veterinary drugs, biological products, and medical devices; and by ensuring the safety of our nation’s food supply, cosmetics, and products that emit radiation.

FDA Mission

Did the FDA protect the public health, ensure the safety, efficacy, and security of drugs and other products? Obviously no. The FDA has shown a repeated history of not following the law or their own policies, of rushing approval of drugs that have political support, and not doing the safety and efficacy testing needed to determine if a drug is both safe and effective.

The second question, did the FDA violate the law by these actions? The simple answer is yes. The FDA is required by law to approve a drug before it enters interstate commerce:

No person shall introduce or deliver for introduction into interstate commerce any new drug, unless an approval of an application filed pursuant to subsection (b) or (j) is effective with respect to such drug.

21 U.S.C. §355

The approval of a drug can be expedited, but only in certain situations.

The Secretary shall, at the request of the sponsor of a drug, expedite the development and review of such drug if the drug is intended, alone or in combination with 1 or more other drugs, to treat a serious or life-threatening disease or condition and preliminary clinical evidence indicates that the drug may demonstrate substantial improvement over existing therapies on 1 or more clinically significant endpoints, such as substantial treatment effects observed early in clinical development. 

21 U.S.C. §366

Since pregnancy, in general, is not a life-threatening condition, and the accelerated approval was not limited to life-threatening situations, this approval violated federal law. Furthermore, there appears to be no evidence that a chemical abortion is a demonstrably substantial improvement over a surgical one.

In short, the Food and Drug Administration’s flagrant disregard for the law and the public health they were tasked to protect shows it to be an utter failure. Add to that the fact that the act that created the FDA was unconstitutional when it was passed, and what do we have? We have an illegitimate agency, with an annual budget of $8.4 billion, that has shown a disturbing tendency to violate the law and ignore their own regulations and policies, most likely either in pursuit of political ends or under political pressure.

Based on these facts, the Food and Drug Administration should be immediately defunded, shut down, and those who violated the law or used this agency for their own political ends, should be prosecuted to the full extent of the law. Do I expect that to happen? I would be pleasantly shocked if it did.

What about Alliance for Hippocratic Medicine’s lawsuit? I plan to follow it closely. While justice for all of the Americans who have been injured or killed by the FDA’s malfeasance can never be truly attained, it would be good to see this dictatorial and despotic agency taken down a few notches. I can only hope that doing so will be a step in rescuing the American people from this bureaucratic monstrosity.

© 2023 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

April 1, 2023

• What is the role of militia in the United States?
• Why is the militia so important to freedom and liberty in America?
• Is the current militia structure constitutional?

Someone reached out on the website with an interesting question. They wanted my take on the Militia Acts of 1792 & 1903 and the National Defense Act of 1916. Specifically, he wanted to know about the constitutionality of the militia system within the United States, so I took a look. What I found was interesting, but maybe not what some people would have expected.

Militias

If we’re going to talk about the militias, we need a good understanding of what they are, what they can do, and what legitimate authority the United States has over them.

The body of soldiers in a state enrolled for discipline, but not engaged in actual service except in emergencies; as distinguished from regular troops, whose sole occupation is war or military service. The militia of a country are the able bodied men organized into companies, regiments and brigades, with officers of all grades, and required by law to attend military exercises on certain days only, but at other times left to pursue their usual occupations.

MILI’TIA – Webster’s 1828 Dictionary

So a militia is the able bodied men of a country, organized into companies, regiments, and brigades. They are distinguished from regular troops by the fact that they are only required to serve in emergencies. Why have militias? First of all, because the United States is not supposed to have a standing army.

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

U.S. Constitution, Article I, Section 8, Clause 12

The idea was pretty simple. After fighting a war with England, the new states didn’t want the same type of military governorship they had as colonies. While the states didn’t want a large and powerful army either, they realized during the war that while not as disciplined as the regular army, the militias could be a formidable force. This also explains the first part of the Second Amendment:

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

It was expected that each state would have their own militia, and that they were necessary to keep the individual states free. It could be security from other states, foreign governments, and yes, even the central government. By making sure the states could defend themselves, it gives the union a powerful and distributed defense force. Of course, that’s not to say that the militia did not have a duty to the central government.

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

U.S. Constitution, Article I, Section 8, Clause 15

While the militia was to make sure their state was free, they could be called up to serve the union, but only to do three things: To execute U.S. law, suppress insurrection, and repel invasion.

It was important Congress not have complete control of the militia or they would not be able to provide one of their most important functions: Protecting the state from the central government. In order for this group of militias to be an effective national fighting force though, they would need to have some commonality.

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

U.S. Constitution, Article I, Section 8, Clause 16

So Congress determines the organization, arming, and discipline of the militia. This would help them fight effectively when they were called into service of the United States. They also set the rules governing those parts of the militia when they are in active service to the union.

Notice that the states retain the power to appoint officers and to actually handle the training and discipline of the militia. Congress may set the rules, but the states still controlled their own militia until the units are called into actual service. Then, and only then, do they fall under the national command structure.

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States;

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

Militia Act of 1792

Doing some research, it appears there are two militia acts referred to as the Militia Acts of 1792. The first, passed in May 2nd, 1792, had an expiration date at the end of the Congress two years after it was passed. This was followed by another act that was passed on February 28, 1795. It was meant to enhance national defense by creating a uniform militia. This second of the two militia acts of 1792 established some rather concerning standards in U.S. law.

Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia, by the Captain or Commanding Officer of the company, within whose bounds such citizen shall reside, and that within twelve months after the passing of this Act.

Militia Act of 1792

Let’s start with the idea that every man (since I think we can dispense with the racist part of this act), between the ages of 18 and 45 was to be enrolled in the militia. The problem with this is it violates the Fifth Amendment, which was ratified in December of 1791.

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

U.S. Constitution, Amendment V

Involuntary servitude as described in this act would certainly be a deprivation of liberty without due process of law. Granted, at that time, more people were probably willing to serve, but this section of the law does not make it optional. Militia members were expected to provide their own gear, weapons, and ammunition, and were expected to both exercise and serve with the company to which they were assigned. It should not surprise anyone that the Vice-President, members of Congress, the judiciary, and many other federal officeholders were exempt from service in the militia. Things get a bit more interesting though, in the second section.

And be it further enacted, That whenever the laws of the United States shall be opposed or the execution thereof obstructed, in any state, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals by this act, the same being notified to the President of the United States, by an associate justice or the district judge, it shall be lawful for the President of the United States to call forth the militia of such state to suppress such combinations, and to cause the laws to be duly executed.

Militia Act of 1792

Does this mean any law of the United States can be enforced by the militia? That if a state were to find the law unconstitutional and nullify it within their borders, could the President simply call up the militia to enforce it? Possibly. After all, Article I, Section 8, Clause 15 of the Constitution does give Congress the power to call up the militia to execute the laws of the United States. If a single state stands up against a law they find unconstitutional, then the President did have the power to call up the militia to enforce the law. What if that state’s militia refused to execute the law in question though?

And if the militia of a state, where such combinations may happen, shall refuse, or be insufficient to suppress the same, it shall be lawful for the President, if the legislature of the United States be not in session, to call forth and employ such numbers of the militia of any other state or states most convenient thereto, as may be necessary, and the use of militia, so to be called forth, may be continued, if necessary, until the expiration of thirty days after the commencement of the ensuing session.

Militia Act of 1792

Should a state militia refuse to execute federal law in their state, the President or Congress had the authority to call up militias from other states to enforce the law. This may be one reason why the Virginia and Kentucky resolutions against the Alien and Sedition Acts never went anywhere. Only two of the states opposed it, but if a larger group of states were able to nullify an unconstitutional law, it would be harder for the President or Congress, both logistically and politically, to call up the militia of others states to enforce the law. Those who wrote this act probably assumed that before it came to the calling up of militias, the courts would offer their opinion on the law. With the corruption, politicization, and ignorance of the Constitution that runs rampant through our federal judiciary, I’m not sure the courts’ opinion would be much help. Just look at all of the unconstitutional opinions we’ve reviewed over the past few years.

Militia Act of 1903

In 1903, Congress updated the laws regulating the militia.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the militia shall consist of every able-bodied male citizen of the respective States, Territories, and the District of Columbia, and every able; bodied male of foreign birth who has declared his intention to become a citizen, who is more than eighteen and less than forty-five years of age, and shall be divided into two classes-the organized militia, to be known as the National Guard of the State, Territory, or. District of Columbia, or by such other designations as may be given them by the laws of the respective States or Territories, and the remainder to be known as the Reserve Militia . 

Militia Act of 1903

Now we have an organized militia and an unorganized militia. Was this law constitutional? Remember, Congress has the power:

To provide for organizing, arming, and disciplining, the Militia, …

U.S. Constitution, Article I, Section 8, Clause 16

So Congress can organize the militia how they want. This division between the organized and unorganized militias are, I believe, attempts to deal with a problem we noted in the 1792 act.

That the regularly enlisted, organized, and uniformed active Organized militia in the several States and Territories and the District of Columbia … whether known and designated as National Guard, militia, or otherwise, shall constitute the organized militia .

Militia Act of 1903

The organized militia is the one regularly enlisted, organized, and uniformed. In other words, the National Guard we know today. The Reserve Militia is every other able bodied male who has not volunteered to serve.

National Defense Act of 1916

Which leaves us with the National Defense Act of 1916,

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the Army off the United States shall consist of the Regular Army, the Volunteer Army the Officers’ Reserve Corps the Enlisted Reserve Corps , the National Guard while in the service of the United States, an such other land forces as are now or may hereafter be authorized by law .

National Defense Act of 1916

This law was enacted on June 3, 1916, right in the middle of World War I. This was six months before Germany proposed an alliance with Mexico against the United States, and ten months before the United States entered the war. It’s reasonable to assume that this was Congress making preparations for a war in which the United States had declared to be neutral, but some politicians were lobbying to join.

This law gives us the organization of the militia we have today.

COMPOSITION OF THE MILITIA.-The militia of the United States shall consist of all able-bodied male citizens of the United States and all other able-bodied males who have or shall have declared their intention to become citizens of the United States, who shall be more than eighteen years of age and, except as hereinafter provided, not more than forty-five years of age, and said militia shall be divided into three classes, the National Guard, the Naval Militia, and the Unorganized Militia.

National Defense Act of 1916

Here we have the two organized militias, the National Guard and the Naval Militia, and the Unorganized Militia. This can be found in U.S. law under Title 10 §246:

• 246. Militia: composition and classes

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

(b) The classes of the militia are-

(1) the organized militia, which consists of the National Guard and the Naval Militia; and

(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

10 U.S.C. §246

Conclusion

So where does all of this research leave us? Is the National Guard a constitutional entity? What about the Naval Militia? Is the division of the militias into organized and unorganized legitimate? Yes, because Congress has the power under Article I, Section 8, Clause 16 to provide for the organizing, arming, and disciplining the militia. Does the Congress have the authority to call up a state’s militia to enforce federal law? Yes, under Article I, Section 8, Clause 15.

This still leave us with a couple of sticky situations. First, what happens if a state finds that a federal law was not made pursuant to the Constitution and refuses to execute said law within their borders? Is it possible for the President to call on that state’s militia to enforce the law. This is where we need to look very closely at a particular situation. Mostly, for a law of the United State to be part of the supreme law of the land, it must be made pursuant to the Constitution, according to the Supremacy Clause:

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

U.S. Constitution, Article VI, Clause 2

Now if Congress or the President disagree with the state about the constitutionality of the law, we are supposed to have a neutral arbiter of the situation, the federal judiciary.

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;… —to Controversies to which the United States shall be a Party;

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

Unfortunately, the judicial branch of the federal government long ago substituted their objectivity and fidelity to the Constitution in favor of their own opinions. While I have given many examples of the dangers of such a situation, the dispute between a state and the federal government over the constitutionality of a law is possibly the most dangerous. How far would a state, or the federal government, go to pursue their positions? Would a state attempt to secede from the union? Would the federal government use military force to exercise their will? Would this lead to another civil war?

The other sticky situation comes from the involuntary nature of the federal government’s definition of the militia. I would need to do more research, but I believe that being considered a part of the militia is the legal justification for the Selective Service Registration and the conscriptions of the past. As I’ve already pointed out, these deprivations of liberty without due process are a violation of the Fifth Amendment. Some may blame this on the twisted caricature of the constitutionally created government that now resides in Washington, D.C., but we find this forced enlistment going all the way back to 1792. Which brings another thought to mind.

The Senate in 1792 had such members as Roger Sherman, Richard Henry Lee, and James Monroe, while the House of Representatives had Elias Boudinot and James Madison, and let us not forget George Washington was President. These men had fought for independence; they had seen the destructive elements of military rule and forced service by the British. So why would they establish a law that could be used to conscript men into military service? I cannot read their minds, but I have an possible answer.

We often talk about our right to be free, but we rarely consider the duties that freedom places on us. We have the right to vote, but does that not include the duty to vote for people of character, who will fulfill their oaths to support the Constitution? We also talk about our right to a trial by jury, but doesn’t that imply a duty to not only serve on a jury, but to seek justice in the case that we hear? We call ourselves the land of the free, but does that not include the duty to fight to defend that freedom? When someone wants to be naturalized as a citizen of the United States, they take an oath that includes:

that I will bear arms on behalf of the United States when required by the law; that I will perform noncombatant service in the Armed Forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law; 

Naturalization Oath of Allegiance to the United States of America

Could it be, that membership in the militia is a duty all Americans should willingly fulfill? In several countries around the world, military service is compulsory. Under American law, it’s only necessary to be part of the militia, to be willing, if necessary, to fight for your state and your nation. If the men who brought us the Fifth Amendment did not think it too much to ask of the citizens of the United States and the Several States that they be numbered for their defense, can we refuse to answer the call when the need arises?

© 2023 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

March 24, 2023

• What does it take to live free in America?
• You probably think you’re free, but are you truly in control of your own choice?
• Do you allow others to define you with labels or boxes?

You’ve probably noticed, I frequently use this quote from our first Chief Justice, 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 United States

This quote is the foundational idea behind The Constitution Study. Recently, I realized that I’ve spent a fair amount of space here on the topic of reading and studying the Constitution, but not nearly enough about teaching people to be free. Sure, I mention how important teaching the Constitution is, and I’ve put on sessions and events across this country where I teach the Constitution, but how much time and effort have I put into teaching people to be free? Today, I start to rectify that oversight, as this entire article will be about teaching not just the rising generation, but all generations, to be FREE!

Define Being Free

If we’re going to teach people to be free, we need to start where so many things here at The Constitution Study start, with a definition.

Free: not determined by anything beyond its own nature or being : choosing or capable of choosing for itself

Free: Merriam-Webster Dictionary Online

So, to be free is to choose for yourself or to be capable of doing so. Seems simple enough, but I have a question we all need to answer first. Are you capable of choosing for yourself?

The Question

I’m sure most of you are saying to yourself, “Of course I’m capable of choosing for myself. What are you talking about, Paul?”

To explain, I think we need to back up a minute. Think of how many choices you are truly able to make for yourself, choices that are not controlled by arbitrary rules, regulations, and laws. Decisions that are not influenced by others. How many choices are you truly able to make for yourself?

This question first came to my mind during the debates over the Affordable Care Act (ObamaCare). While debating the issue with someone, I realized that I have never had a free choice in healthcare. When I was a child, my parents controlled my healthcare. When I became an adult, I was coerced, by U.S. law, into choosing a health insurance plan provided by my employer. This led to me making healthcare decisions not based on my preferences, but by what was covered by the health insurance that was provided by my employer. Between Medicare reimbursement rates, government regulations, and a system that was designed to force people to follow government health care policy, none of us really have a free choice in our healthcare. That was the point when I realized that I was not free to choose my own healthcare. I had the illusion of choice, but my choices were controlled by others. That wasn’t all though. You see, healthcare was simply the beginning of my realization, that it was just another box to put people in.

Boxes

Today, people are always trying to put you in a box. They slap a label on you, on your organization, or on what you say or do, then expect you to stick within the box they’ve assigned you. Of course, you’re doing the same thing as well. There are two reasons I try so hard to avoid labels, both using them and being defined by them.

First, while we often use the same labels, we rarely mean the same thing. Take, for example, the term RINO for Republican In Name Only. This is used as a pejorative by those members of the Republican Party who do not follow the agenda or support the policies that they believe a Republican should. I, on the other hand, view a Republican as someone who wants their team, and especially themselves, to win elections. So when I see someone like a Susan Collins, Lisa Murkowski, Mitt Romney, or even a Mitch McConnell, I don’t see RINOs, I see people trying to win office as Republicans. So when someone asks me about my political affiliation or whether I consider myself a conservative, I tell them I won’t label myself. Not because I don’t have an idea of what I believe, but because I refuse to have others think they know who I am because of a label I’ve assigned myself.

Second, when people use labels they more often than not are trying to put people in a box, so they can define and control them or simply dismiss them. If someone can call you a conservative, a progressive, an anarchist, or a socialist, they determine for themselves how you should live, and generally will punish you for not meeting their expectations. A perfect example of this came from the 2020 Presidential Election Campaign. Take a look about 8 seconds into this video to see what I mean.

[Rumble Video]

According to Joe Biden, if you are black you are expected to vote for Democrat candidates. If you don’t vote for Democrat candidates, “you ain’t black”. Labels become easy ways to shame people to act the way you want. I’m sure no black person wants to be told they “ain’t black”. So a statement like Biden’s is meant to shame black people to vote for him. Not because he’s the best candidate or because his policies have worked out the best for black people, but simply to prove that they are black.

Then there are those who put you in a box so they can dismiss you. This example, from the 2016 presidential campaign, comes about eight seconds into this video, too.

Mrs. Clinton could dismiss half of her opponents simply by labeling them a “basket of deplorables”. This tactic is frequently used to dismiss evidence because it came from an opposing source, be it CNN or Fox News. However, it’s not simply dismissing a political opponent, idea, or policy. One of the more culturally toxic ideas behind diversity is that only someone that looks like me can understand my point of view. The first time I saw this was when women claimed that men could have no say in the abortion debate because they could not have one. Since then peoples’ ideas have been summarily dismissed, not because they lacked information, education, or experience, but because they were the wrong race, sex, or ethnicity. The latest variation of this divisiveness is the idea of cultural appropriation. From someone dressing up as an ethic character for Halloween, to a white man with dreadlocks, from sports team names to characters in movies, millions of people have been placed into a box and told they are not allowed to enjoy, support, or participate in any other boxes.

These boxes are just another example of how collectivism has taken over and divided our country.

Collectivism

Part of me understands the desire to label people, to put them in boxes. It’s easier to keep track of people as collectives rather than as individuals. Of course it also depersonalizes them, removes what makes them unique, and it makes them into “others”. This has been used for centuries to justify tremendous evils against our fellow man, because we didn’t consider them human, they were “others”. The Romans did it to the Christians, the whites did it to the blacks, the English to the Scots, the Nazis to the Jews, and Soviets to the kulaks. Even today, the Chinese are doing it to the Uyghurs.

In America today we have all sorts of collectives, most of them opposed to another collective. Republicans vs Democrats, Progressives vs Conservatives, Deplorables vs Elites. In fact Christians are famous for their collectives, we call denominations. There are probably thousands of collectives, and millions of definitions for each and every one. There’s nothing wrong with being part of a collective, in fact I highly recommend choosing some for yourself. The question is, who is defining the collective and who is doing the labeling? For example, I am a member of a local church. I first researched the congregation by attending several services and talking with others. After we decided that we could comfortably be a part of this community, my wife and I joined the church. That doesn’t mean I agree 100% with everything everyone says or believes, but I agree enough that I can support the congregation and the work it’s doing. Compare that to the labels being used so often in today’s public discourse, where groups, collectives, and their labels are not used to show a common belief, but to deride, devalue, and shame others.

When I pointed out the failures of the climate change models, I was called a “Science Denyer”. When I challenged the effectiveness and legality of mask mandates, many people labeled me a “Grandma Killer”. When I point out that the Constitution grants only limited and enumerated powers to the federal government, I’m called an “Insurrectionist” and “un-American”. These are only a few examples of the collectivist names used to label people as “others”, and justify dismissing them and anything they say. That is where the problems begin; no one likes to be called names. Some people push back while others simply shrink away.

I remember when the politically correct movement really started taking hold in the early 1990’s. People were told you cannot use certain words or express certain ideas because it was not politically correct. People began to self-censor, to avoid using certain words or speaking certain ideas because they were ridiculed for not being politically correct. As with almost any other movement, what started as an attempt to avoid controversy soon morphed into a controversy itself. Political correctness changed from “we as a society do not use that type of language anymore” quickly led to “we can’t say that because it might harm their self-esteem”. This of course quickly grew to “whatever your do, you cannot offend someone” and “if you do offend someone, you must be crushed” that we see today. What most people haven’t noticed is that this trip from political correctness to cancel culture was driven not so much by individuals complaining, but by people trying to protect groups, usually groups they are not even in. Think about it; how many Native-Americans were actually offended by the name the Washington Redskins? Yet the pressure to force the team to change their name went on long enough that they yielded. Unfortunately, that is nothing when compared to how this collectivism is being used today.

Collectivism vs Freedom

Critical Race Theory and the ideas behind it have not only spread throughout our colleges and universities, but all of education. Critical Race Theory claims to determine your character by the color of your skin, but it’s not alone. Cultural theory, gender theory, queer theory, and intersectionality are all offshoots of Marxist traditions and the The Frankfurt School. They are all based on the idea that you can judge people based on the groups they are in. This indoctrination is spreading like a cancer throughout our society. Governments, higher education, and businesses are pushing DEI (Diversity, Equity, and Inclusion), not simply as an option, but more and more a mandatory part of life. Meaning that when you apply for a job or bid on a contract, the decision will not be made simply, or possibly even primarily, based on the skills you have to offer. Rather, the decision will start based on what groups they assign you to. Meaning a black lesbian is more likely to get a job as a press secretary, mayor, or congressperson, simply because she represents two “diversity” checkboxes. Or an application to a top university with a 1560 SAT score may lose to another who only scored 1300, simply because they are of Asian descent.

Over the decades I’ve watched more and more people allow others decide what they could do, what they could say, and even what they could think. Now we find actors in government, media, academia, and elsewhere, telling us what we are allowed to see and to know. All this time I thought that they were trying to take away our freedom; now I realize what they want is for us to give up our freedom..

During a recent conference call where we were discussing the idea of name calling and labeling, one of the participants said something that caught my attention. I had just talked about how I avoid labels because they destroy individuality, when someone said they thought they had lost their individuality. That’s when it dawned on me: If you are not an individual, if you do not get to decide who you are but only what groups you are in, then you are not free. What you think, what you’re allowed to express, even who you are, is no longer determined by you and your nature, but by the labels and coercion of society. Which reminded me of a Benjamin Franklin quote:

Without Freedom of Thought, there can be no such Thing as Wisdom; and no such Thing as publick Liberty, without Freedom of Speech; which is the Right of every Man, as far as by it, he does not hurt or controul the Right of another: And this is the only Check it ought to suffer, and the only Bounds it ought to know.

Benjamin Franklin, writing as Silence Dogood – Letter 8

Collectivism claims control of your freedom of thought, your freedom of speech, and the very essence of who you are. Does this help explain the lack of wisdom we see in America today? Does it explain how millions of Americans complied with the demand by government to lock themselves up, wear a mask, and even try an experimental treatment, all without any evidence that it was safe, much less effective? Has collectivism led to the group think that permeates what was once called the sciences? We’ve been told repeatedly that our rights don’t matter when faced with the public good, but is that not the death knell of freedom itself?

Conclusion

If today’s rabid collectivism, political, social, economic, etc., is one extreme of a continuum, rabid individualism is the other. We see this rabid individualism in things like the The Sovereign Citizen Movement, where people claim that laws they don’t like don’t apply to them. Which begs another question: Are all groups and labels evil or is individuality evil? I believe, as is so often the case, the answer lies somewhere between the two extremes.

How can some in America today live free? Ultimately, that is the question for this article. Sure, radical individuality may look like the answer, but it leads to its own breakdown of society, ignores the evils of others our own pasts, and creates its own dystopia. For me, the answer isn’t labels or freedom, collectives or liberty, but who decides. Remember the definition of free:

Free: not determined by anything beyond its own nature or being : choosing or capable of choosing for itself

Free: Merriam-Webster Dictionary Online

When we allow others to determine what groups we are a part of, what labels we are assigned, and what they mean, we have given up our freedom and become slaves to the definitions of other people. If we want to live free, we must start by not allowing others to define us, and by extension, not define others by their groups.

I choose not to label myself as a Republican or a Democrat, neither a Conservative nor a Progressive. Why? Because none of those groups have earned my support. When others try to label me as an insurrectionist, an anarchist, or simply someone on the wrong side of history, I simply ignore them, because their claims are without merit. Those labels, and the people who wield them have no power over me unless I allow it. Most importantly, when people call me names I realize I have won the debate. When people have exhausted their arguments and have nothing left but name calling, my evidence has survived and my argument is victorious. Rather than collapsing under the weight of the names, I recognize it shows the emptiness of their argument. They may not accept the fact that their argument has failed, but many of those around us who are watching the debate might.

If we want to live free, then we must determine for ourselves who and what will have influence over our lives, and allow others to do the same. As a people, we have delegated to governments certain powers over us, and I accept that. When those in government claim powers We the People did not delegate to them though, it is not only my right but my duty to use the most powerful word in the English language: “No.” I am no fool. It is not lost on me that there are those who would use their legitimate powers for illegitimate purposes. I may be punished, fined, jailed, or even killed, but I will still be free. My body may be enslaved, but my mind will not, my spirit will not, my thoughts will not, and my speech will not. If Benjamin Franklin is correct, as long as we have freedom to think for ourselves we can have liberty, and as long as we have freedom of speak as we wish, we can have public liberty.

© 2023 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

March 22, 2023

• What is the proper response to government actions that violate the Constitution of the United States?
• Do the states have the legal authority to reign in their creation in Washington, D.C.?
• If the legislation currently submitted in Tennessee were to be replicated in the rest of the union, what would America look like?

I talk quite a bit about the limitations of the federal government and the need for the states to reassert their power to control their creation. Consider the number of federal agencies that do not legally exist, the fact that the supreme court does not issue rulings but offers opinions, and don’t forget about the fact that the states created the federal government, not the other way around. All point to a dangerous and illegal centralization of power in the federal government. So you can probably imagine my elation to find legislation proposed in my adopted home state that codifies them doing exactly what I said all of the states need to do: Regain control of their creation in Washington, D.C. So let’s take a look at this legislation, see what lessons we can learn from it, and maybe push representatives in other states to join in this march toward liberty.

I’ve read several pieces of legislation, but this one struck me for a few different reasons. First, the list of findings in section 3 is a master class in the constitutional republic that is America and the role and duty of the states in such a union. Then section 5 lists the standards by which federal actions will be judged, while section 8 lists the process for challenging those actions and shows a good understanding of our history and the seriousness of any such challenge.

While there are two bills, one in the House and the other in the Senate, as of this writing both bills are identical. For this article, I will use the House version of the bill as my reference. Let’s start with the findings of the General Assembly of Tennessee.

Findings of the General Assembly of Tennessee

By far the largest section of this legislation is section 2, listing the findings of the General Assembly. Since the nullifying of a federal action is a big deal, it makes sense the justification for doing so should be large as well. This section starts with the Tennessee Constitution.

(1) Article I, Section 1 of the Constitution of Tennessee (All power is inherent in the people) declares: “That all power is inherent in the people, and all free governments are founded on their authority, and instituted for their peace, safety, and happiness; for the advancement of those ends they have at all times, an unalienable and indefeasible right to alter, reform, or abolish the government in such manner as they may think proper.”;

Tennessee House Bill 726

The Tennessee Constitution starts right where it should, noting that power doesn’t come from government but from the people. We create governments, we give them their authority, and they are there to secure our peace and happiness.

(2) Article I, Section 2 of the Constitution of Tennessee (Doctrine of nonresistance condemned) declares: “That government being instituted for the common benefit, the doctrine of nonresistance against arbitrary power and oppression is absurd, slavish, and destructive of the good and happiness of mankind.”;

Tennessee House Bill 726

After pointing out that all power comes from the people, section 2 of the Tennessee Constitution points out that not resisting arbitrary power and oppression is absurd. This is important, since the entire purpose of this legislation is to resist arbitrary power exercised by the federal government.

Next HB 726 takes a look at the Constitution of the United States.

(3) When “We the People” ordained and established the Constitution of the United States of America, the people and the states granted only specific, limited powers to the federal government, with those areas of federal powers being enumerated in Article I, Section 8 of the Constitution of the United States;

Tennessee House Bill 726

It had appeared that the concept of the federal government having limited and enumerated powers was dead. Today, however, we have several states standing up and reviving that doctrine, and Tennessee is poised to jump onto that track. They start their argument with what has become a unique look at the separation of powers doctrine.

(4) Articles I, Il, and Ill of the Constitution of the United States, respectively, vest the legislative, executive, and judicial powers to and within separate branches of the federal government (horizontal separation of powers), such that lawmaking powers are vested only in the legislative branch of the United States congress, that enforcement powers are vested only in the executive branch (president and executive agencies), and that judicial powers are vested only in the judicial branch (supreme court of the United States and other inferior federal courts created by the United States congress);

Tennessee House Bill 726

Why is this horizontal separation of powers so important?

(5) This horizontal separation of powers in the Constitution of the United States reflects the understanding that our federal founding fathers had derived from both scripture and experience that sinful man could not be trusted to always be virtuous and public-minded, and as such, they did not want undue power to be combined in any branch of government where, if left unchecked, it could become tyrannical;

Tennessee House Bill 726

The Framers of the Constitution understood how dangerous the concentration of power is. Or, as Lord Acton is often quoted:

Power tends to corrupt and absolute power corrupts absolutely.

Lord Acton

As we so often point out here at The Constitution Study, there’s much that Congress does that’s not authorized by the Constitution.

(6) Nothing in the Constitution of the United States permits congress to delegate or confer any lawmaking power to any other branch of government, because it has no enumerated powers to create lawmakers. When the president and federal courts are vested, respectively, with the executive and judicial powers, neither of those branches are granted general powers of lawmaking. Therefore, no person, agency, or department of any other branch of the federal government, not even the supreme court or the president of the United States, has any lawmaking power under the Constitution of the United States;

Tennessee House Bill 726

This bill takes its first jab at the federal government by pointing out the violations of the horizontal separation of powers. Article I, Section 1, Clause 1 of the Constitution of the United States says that all legislative (lawmaking) power is delegated to Congress. The President cannot make law via executive orders, and contrary to popular belief, neither can the federal courts, not even the Supreme Court, and Congress has no authority to delegate its lawmaking power to others. While that should be plenty to nullify Congress’ attempts to shirk their responsibility, placing lawmaking power in the hands of unelected bureaucrats is the kind of taxation without representation that our Founding Fathers listed as a reason to declare independence.

If sub-section 6 puts the proverbial knife into the federal government’s violation of the separation of powers, sub-section 7 gives it a good twist.

(7) In Article I, Section 7, paragraph 2 of the Constitution of the United States, the text describes how federal laws are to be made. Bills must be passed by both houses of congress and then approved by the president (or by a presidential veto by congress). This is the only method of lawmaking under the Constitution of the United States. Thus, contrary to popular opinion, federal executive orders, federal agency rules and regulations, and federal court opinions are not laws at all, and they are certainly not settled law or the supreme law of the land. Instead, any action by the executive branch or the judicial branch that purports to be law, or that purports to be treated as law, is a usurpation of powers not delegated to it;

Tennessee House Bill 726

This sub-section is music to my ears. Not only does this legislation point out that only Congress can make laws, but it goes so far as to emphasize that federal executive orders, agency rules, and court opinions ARE NOT LAW! In fact when the executive or judicial branch claims their actions are law, they are usurping the powers the people have placed in Congress. Sub-sections 8 & 9 expound on this error.

(8) It is not uncommon for congress and the federal executive branch to erroneously elevate federal court opinions to the status of “law,” sometimes even regarding court opinions as having amended the language of the Constitution of the United States;

(9) It is not uncommon for congress and the federal courts to erroneously elevate federal executive orders to the status of “law,” sometimes even regarding executive orders as having amended the language of the Constitution of the United States;

Tennessee House Bill 726

If two wrongs don’t make a right, then two violations of the Constitution cannot be just. Even though the three branches of the federal government may treat as law court opinions and executive orders, that does not make them so.

The idea of separation of powers is not just a federal idea, but part of the Constitution of the State of Tennessee as well.

(10) The principle of “separation of powers” is so innately representative of a republican form of government that the Constitution of Tennessee (Article Il, Sections 1 and 2) upholds and reinforces this principle of horizontal “separation of powers” within the three departments of our Tennessee state government;

Tennessee House Bill 726

Now that we’ve gone through the horizontal separation of powers, is there a vertical?

(11) When creating a federal government by ratifying the Constitution of the United States, the people and the states also designed a second, and more important, “separation of powers,” that being a vertical separation of powers between the superior sovereign states and the inferior federal government;

Tennessee House Bill 726

This is another sub-section that raises my spirits. To read a state legislature recognizes that it is superior to the federal government is something I wasn’t sure would happen in my lifetime, yet here it is. Can the Tennessee General Assembly prove this point?

(12) A vertical “separation of powers” was explicitly set out in Article I, Section 8 of the Constitution of the United States, wherein only limited, enumerated, lawmaking powers were granted to the federal government;

(13) This vertical “separation of powers” was also incorporated into the United States bill of rights, whereby (a) in the first amendment, congress was specifically denied lawmaking power within those fields listed in the first amendment; (b) in the ninth amendment, the federal government was specifically prohibited from interfering with rights not mentioned in the Constitution of the United States; and (c) in the tenth amendment, the federal government was specifically denied powers not delegated to it in the Constitution of the United States;

Tennessee House Bill 726

I’m not sure that sub-section 12 is entirely correct. While Article I, Section 8 of the Constitution enumerates powers for Congress and the First Amendment places limits on that power, I don’t see how it sets out a vertical separation. Sub-section 13 item (c) on the other hand, does point out the separation of powers the Federalists claimed during the ratification debates.

Now the General Assembly of the State of Tennessee looks at judicial evidence to support their claim to “nullify” certain federal actions.

(15) Any federal action that violates the horizontal “separation of powers” imposed by the Constitution of the United States, or that exceeds the jurisdictional limits imposed by the vertical “separation of powers,” is therefore void, since the Constitution of the United States is the supreme law of the land;

(16) “[A] law repugnant to the Constitution is void.” An act of congress repugnant to the Constitution of the United States cannot become a law. The Constitution supersedes all other laws and the individual’s rights shall be liberally enforced in favor of him, the clearly intended and expressly designated beneficiary. Marbury v. Madison, 5 U.S. 137 (1803);

Tennessee House Bill 726

I’ve pointed out for years that unconstitutional laws are void, but it is nice to see a state legislature do so as well. After all of the times people have misquoted Marbury v. Madison, it’s nice to see it properly used here as well. There’s more though.

(17) “An unconstitutional law is void and is as no law. An offense created by it is not crime. A conviction under it is not merely erroneous but is illegal and void and cannot be used as a legal cause of imprisonment.” Ex parte Siebold, 100 U.S. 371 (1879);

(18) “An unconstitutional act is not law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.” Norton v. Shelby County, 118 U.S. 425 (1886);

(19) “Where rights secured by the Constitution are involved, there can be no rule-making or legislation which would abrogate them.” Miranda v. Arizona, 384 U.S. 436 (1966);

Tennessee House Bill 726

If an unconstitutional law is void, how can someone be convicted of violating it? If that act is not law, how can it create an office, or an agency, for that matter? This basic understanding of the supremacy of the Constitution of the United States is foundational to understanding the proper role of nullification.

(20) As Thomas Jefferson explained in the Kentucky Resolution of 1798: “When- so-ever the [Federal] government assumes undelegated power, its acts are unauthoritative, void and of no force.” He added, “Where powers are assumed which have not been delegated, a nullification of the act is the remedy. That every state has a natural right and duty in cases not within [the authority of the Constitution]… to nullify of their own authority all assumptions of powers by others within their own states boundaries.” The Constitution of the United States binds federal lawmakers by oath to support the Constitution, and when they fail to do so, the rightful remedy is for states to nullify their usurpations and to declare their acts void;

Tennessee House Bill 726

The Tennessee General Assembly even points back to Thomas Jefferson’s Kentucky Resolution to show that unconstitutional federal actions are void. The legislation has more findings, but to avoid beating a dead horse, I want to move on to what standard the state would use to evaluate federal actions.

Evaluating A Federal Action

How the state would determine if a federal action is unconstitutional is one of the three pillars upon which any nullification legislation must stand.

When evaluating a federal action, the general assembly shall consider the plain reading and reasoning of the text of the United States Constitution and the understood definitions at the time of the framing and construction of the Constitution by the framers before making a final declaration of constitutionality, as demonstrated by:

• (1) The ratifying debates in the several states;
• (2) The understanding of the leading participants at the constitutional convention;
• (3) The understanding of the doctrine in question by the constitutions of the several states in existence at the time the United States Constitution was adopted;
• (4) The understanding of the United States Constitution by the first United States congress;
• (5)  The opinions of the first chief justice of the United States supreme court;
• (6)  The background understanding of the doctrine in question under the English
• Constitution of the time; and
• (7) The statements of support for natural law and natural rights by the framers and the philosophers admired by the framers.

Tennessee House Bill 726

Look at the list of standards the state would use to evaluate a federal action: The ratifying debates, the constitutional convention, the first Congress, etc. Not a bad set of standards.

SECTION 6. It is declared that federal laws, federal executive actions, and federal court opinions must comply with the jurisdictional limitations of the United States Constitution. It is further declared that any federal action outside the enumerated powers set forth in the United States Constitution are in violation of the peace and safety of the people of this state, and therefore, said acts are declared void and must be resisted.

SECTION 7. The proper manner of resistance is a state action of nullification of the federal action.

Tennessee House Bill 726

If the proper manner of resisting unconstitutional actions is nullification, how would that work in Tennessee if this becomes law?

Nullification

This legislation establishes several methods by which an unconstitutional action could be nullified.

(1) The governor may, by the governor’s own executive authority, issue an executive order nullifying the same, whereby all executive departments of the state are bound by said order;

Tennessee House Bill 726

First, the governor can issue an executive order nullifying a federal action, but that would only effect the executive branch of the state.

(2) Any member of the general assembly may introduce a bill of nullification in the general assembly. For any such proposed bill of nullification, the bill is not subject to debate or passage in committees, and proceeds directly to the floor of each house, where said bill shall, within five (5) legislative days, be scheduled for debate on the floor of each house, and thereafter, within three (3) legislative days after the debate is closed, shall be presented for a roll call vote on each floor. The bill, if passed in the same manner as other general law, has the force and effect of law, and becomes effective immediately upon enactment. The time constraints listed in this subdivision (2) may be changed by majority vote of any house of subsequent general assemblies;

Tennessee House Bill 726

A member of the General Assembly can introduce a nullification bill. This legislation would be fast-tracked through the process since it would by-pass the committee process and go directly to the floor. Also, limiting the time before the bill can be debated and how long after the debate a vote must be held, means that someone cannot use the process to delay the voting on the bill.

(3) Any court operating under the authority of the Constitution of Tennessee may render a finding or a holding of nullification in any case of which it otherwise has proper venue and jurisdiction, wherein the parties to said case will, upon final judgment, be bound thereby in the same manner as in other cases;

Tennessee House Bill 726

Even the state courts could nullify an unconstitutional federal action. That means that all three branches would have the authority to nullify a federal action within their horizontal separation of powers, but that’s not all.

(4) Any combination of ten (10) counties and municipalities may, through the action of the executive or through the action of a majority of the governing legislative body, submit a petition of nullification to the speaker of the house of representatives, with a copy to the office of the attorney general and reporter, and upon satisfactory proof that said petitions are valid, the speaker of the house of representatives shall proceed to introduce the bill and follow the same methods and protocols as described in subdivision (2);

Tennessee House Bill 726

What if no one in the General Assembly introduces a nullification bill? Then what happens? A group of counties and municipalities can petition the General Assembly, and if enough valid petitions are made, the General Assembly now has a nullification bill they must treat like any other. Still, this legislation isn’t done yet. Since HB 726 states that all power is inherent in the people, they get a chance to bring a nullification bill to the General Assembly as well.

(5) The signed petitions of two thousand (2,000) registered voters of this state may submit a petition of nullification to the speaker of the house of representatives, with a copy to the office of the attorney general and reporter, and upon satisfactory proof that said signatures are valid, the speaker of the house of representatives shall proceed to introduce the bill and follow the same methods and protocols as described in subdivision (2). Said voter petitions must not be submitted individually, but said petitions must be coordinated and compiled in batches, by county of voter registration, of not less than twenty-five (25) voters per county in a bundled batch.

Tennessee House Bill 726

In other words, all components of the state have the power to call for nullification of unconstitutional federal actions.

Conclusion

I know this was a pretty long article, but there is so much good in this relatively short piece of legislation, I couldn’t help but bring you the details. Of all the legislation I’ve reviewed here at The Constitution Study, this has to be one of the best. Yes, there are one or two small things that I’m not sure of, and I would like to see some punishment for state employees to enforce a federal action that was nullified by the state, but overall, this is a very nice piece of legislation. Who knows, if the other 49 states use this legislation as an example, we could see a return to the land of the free and the home of the brave in our lifetimes.

© 2023 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

March 7, 2023

• When does legislation become a Bill of Rights?
• A bill in the North Carolina legislature claims to create a Parents’ Bill of Rights. But does it?
• Are there dangers in calling legislation a Bill of Rights?

I’m loath to use the term “Bill of Rights” lightly, for two very good reasons. First, the overuse of any term tends to diminish its value. Second, just because something claims to be a “Bill of Rights” doesn’t mean it actually is one. The bill may be very good, but that doesn’t mean it’s truly a Bill of Rights.

I believe a recent bill filed in the North Carolina legislature gives us an excellent opportunity to test this hypothesis. Would Senate Bill 49 actually create a Parent’s Bill of Rights or is this just another example of over-promising and under-delivering?

Why do I have an issue with the use of the term Bill of Rights for this legislation? Let’s start by defining the term:

a document containing a formal statement of rights

specifically  : a summary of fundamental rights and privileges guaranteed to a people against violation by the state —used especially of the first 10 amendments to the U.S. Constitution

Bill of Rights – Merriam-Webster Dictionary Online

My issues start with how frequently what is called a Bill of Rights is not a document with a formal statement of rights. When someone takes a simple piece of legislation and places a Bill of Rights label on it, the meaning gets diminished. Like the boy who cried wolf, people no longer place the weight they once did on an actual Bills of Rights because of the overuse of that term.

There is legislation making its way through the North Carolina legislature claiming to be a Parents’ Bill of Rights. Let’s take a look at this legislation and see how good it is, and if it’s worthy of the title Bill of Rights.

North Carolina’s Parents’ Bill of Rights.

Senate Bill 49 (SB49) is titled AN ACT TO ENUMERATE THE RIGHTS OF PARENTS TO DIRECT THE UPBRINGING, EDUCATION, HEALTH CARE, AND MENTAL HEALTH OF THEIR MINOR CHILDREN. That sounds good, sounds like it could be a Bill of Rights. This legislation would create an article in the General Statues of North Carolina with a section titled “Parents’ Bill of Rights.

• 115C-407.73. Parents’ bill of rights.
  A parent has the right to the following:

North Carolina SB49 – Parents’ Bill of Rights

This bill does contain a parents’ bill of rights. Let’s see what rights it’s designed to protect and whether or not it meets the definition of a Bill of Rights from Merriam-Webster.:

(1) To direct the education and care of his or her child.
(2) To direct the upbringing and moral or religious training of his or her child.
(3) To enroll his or her child in a public or nonpublic school and in any school choice options available to the parent for which the child is otherwise eligible by law in order to comply with compulsory attendance laws, as provided in Part 1 of Article 26 of this Chapter.
(4) To access and review all education records, as authorized by the federal Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g, relating to his or her child.

North Carolina SB49 – Parents’ Bill of Rights

The first four rights revolve around education. Parents have the right to direct their child’s education and moral or religious training. They have the right to determine what school their child goes to and access to all education records. Of course, that’s not to say there aren’t problems here.

I agree with Article IX, Section 1 of the North Carolina Constitution, which states:

Section 1.  Education encouraged.

Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools, libraries, and the means of education shall forever be encouraged.

North Carolina Constitution, Article IX, Section 1

Yes, education should be encouraged. In fact, the right to education is guaranteed by Article I, Section 15 of North Carolina’s Constitution:

Sec. 15.  Education.

The people have a right to the privilege of education, and it is the duty of the State to guard and maintain that right.

North Carolina Constitution, Article I, Section 15

If you read the rest of Article IX though, or even the whole constitution, what you won’t find is the power to to make education compulsory. When the state enacts compulsory education laws, they also regulate what would satisfy that requirement. So when this new Parents’ Bill of Rights claims that parents have the right to direct the education of the child, it really means within the boundaries established by the state. The other problem is this state law submits both the state and the parents to the federal Family Educational Rights and Privacy Act. That federal law was not made pursuant to the Constitution of the United States, since the power to regulate education was never delegated to the United States by its Constitution. So the federal Family Education Rights and Privacy Act is not the supreme law of the land, and the states are not required to abide by it. In fact, according to the case Marbury v. Madison, that act is void:

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

So if this bill becomes law, it make the rights of parents in North Carolina subject to an illegal federal law. Which means the “rights” North Carolina is claiming to protect does not consider them unalienable, since they are subject to other laws.

(5) To make health care decisions for his or her child, unless otherwise provided by law, including Article 1A of Chapter 90 of the General Statutes.

(6) To access and review all medical records of his or her child, as authorized by the Health Insurance Portability and Accountability Act of 1996 (HIPAA), P.L. 104-191, as amended, except as follows:

(a.) If the parent is the subject of an investigation of (i) a crime committed against the child under Chapter 14 of the General Statutes or (ii) an abuse and neglect complaint under Chapter 7B of the General Statutes and an individual authorized to conduct that investigation requests that the information not be released to the parent.

(b.) When otherwise prohibited by law.

North Carolina SB49 – Parents’ Bill of Rights

Next, this “Bill of Rights” protects the rights of parents to make healthcare decision for their children, but again there are problems. These rights are “limited” by both state law and illegal federal law. I looked up Article 1A of Chapter 90 of the North Carolina General Statues, where §90.21.1 establishes the legal situations when a physician can treat a minor without parental consent. These situations generally revolve around a need for treatment when a parent or guardian cannot be contacted to give consent, but there is one situation that should give every parent pause:

Where the parents refuse to consent to a procedure, and the necessity for immediate treatment is so apparent that the delay required to obtain a court order would endanger the life or seriously worsen the physical condition of the child. No treatment shall be administered to a child over the parent’s objection as herein authorized unless the physician shall first obtain the opinion of another physician licensed to practice medicine in the State of North Carolina that such procedure is necessary to prevent immediate harm to the child.

North Carolina General Statues, Article 1A § 90-.21.1

So even if this legislation passes, a parent will not have the right to make healthcare decisions for their child if state licensed doctors disagree with it. Furthermore, when it comes to accessing a child’s medical records, all it would take is a law to override the “rights” of the parents to review them.

(7) To prohibit the creation, sharing, or storage of a biometric scan of his or her child without the parent’s prior written consent, except as authorized pursuant to a court order or otherwise required by law, including G.S. 7B-2102 and G.S. 7B-2201.

(8) To prohibit the creation, sharing, or storage of his or her child’s blood or deoxyribonucleic acid (DNA) without the parent’s prior written consent, except as authorized pursuant to a court order or otherwise required by law, including G.S. 7B-2201.

North Carolina SB49 – Parents’ Bill of Rights

Here the state wants to protect the parents’ right to control the collection or storage of biometric or similar data regarding their children. Once again we see that these “rights” are limited by the laws of the state.

(9) To prohibit the creation by the State of a video or voice recording of his or her child without the parent’s prior written consent, except a recording made in the following circumstances:

When otherwise prohibited by law.

1. During or as part of a court proceeding.
2. As part of an investigation under Chapter 7B or Chapter 14 of the General Statutes.
3. When the recording will be used solely for any of the following purposes:
4. A safety demonstration, including one related to security and discipline on educational property.
5. An academic or extracurricular activity.
6. Classroom instruction.
7. Photo identification cards.
8. Security or surveillance of buildings or grounds.

North Carolina SB49 – Parents’ Bill of Rights

Why shouldn’t the state get parental permission to record the voice or video of a child as part of an investigation? How about if the investigation is into the actions of the parents? Once again we see the state claiming to protect rights, but making sure it protects its ability to violate those rights when it sees fit.

(10) To be promptly notified if an employee of the State suspects that a criminal offense has been committed against his or her child, unless the incident has first been reported to law enforcement or the county child welfare agency, and notification of the parent would impede the investigation.

North Carolina SB49 – Parents’ Bill of Rights

Lastly, the state wants to make sure that a parent is notified when a state employee suspects a crime has been committed against their child. There is an exception for when law enforcement or child welfare has been notified and including the parents would impede the investigation, but this legislation places absolutely no burden of proof on the state employee to show that notification of the parents would impede the investigation. There are plenty of reports of child services abusing their powers to intimidate parents and abduct children, so how does this legislation guarantee rights against violation by the state?

There are other limitations placed on parents’ rights:

• 115C-407.76. Limitations on the right to parent.

(a) The requirements of this Article do not authorize a parent to do any of the following:

(1)  Engage in unlawful conduct.

(a)  Abuse or neglect the child, as defined in Chapter 7B of the General Statutes.

(b) The requirements of this Article do not prohibit the following:

(1) A State official or employee from acting in his or her official capacity within the reasonable and prudent scope of his or her authority.

(2) A court of competent jurisdiction from acting in its official capacity within the reasonable and prudent scope of its authority or issuing an order otherwise permitted by law.

North Carolina SB49 – Parents’ Bill of Rights

And thus we see that the legislature of North Carolina is not so much making a Bill of Rights, but a bill of privileges under state control, that they are extending to parents. As we noted in the Merriam-Webster Dictionary:

a summary of fundamental rights and privileges guaranteed to a people against violation by the state

Bill of Rights – Merriam-Webster Dictionary Online

What’s created in this legislation is not the state recognizing the fundamental rights of parents that are protected from the states, but only “rights” the state will regulate.

Conclusion

I’m not saying that this legislation is bad. The State of North Carolina sees the importance of parents controlling their children’s education, healthcare, and information, but this is not a true Bill of Rights. Compare the language from North Carolina’s Parents’ Bill of Rights with that in the Bill of Rights in the Constitution of the United States:

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

The protection of rights under the Constitution of the United States uses firm language, “shall not be violated,” and “no warrants shall issue, but…” Compare that to the language in NC SB49. “unless otherwise protected by law”, and “When the recording will be used solely for…” Does that sound like “a summary of fundamental rights and privileges guaranteed to a people against violation by the state”?

I understand the need to not only protect the rights of parents, but protect children from the abusive parents. This legislation, however, goes too far. It not only protects students from abusive parents, but allows the state to supersede those parents’ rights by simple legislation. How is allowing the state to legislate the infringement of your rights a protection of your rights?

Again, I believe this legislation is pretty good and does a lot to protect the rights of parents. It’s just not really a “Bill of Rights”, which further diminishes the term. I hope the North Carolina legislature enacts this law. I only wish they modify the title of Article 29F to something that more accurately depicts what this law would do. May I suggest the “Protection of Parental Rights Act”.

© 2023 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

February 28, 2023

• What is a sovereign citizen and what is the sovereign citizen movement?
• Is the United States a corporation?
• If you become a “sovereign citizen”, what happens to your U.S citizenship?

Over the past few weeks I’ve been asked several questions about the “Sovereign Citizen Movement”. What is a “sovereign citizen” or a “national citizen”? What do those in the sovereign citizen movement” believe, what is their belief based on, and does the evidence support their assumptions? What are the consequences of following the recommendations from the movement? I thought it was time to not only dive into the facts of this movement, but to bring my findings to everyone here at The Constitution Study.

I am not an expert on the Sovereign Citizen Movement, but I have had plenty of people ask me about it. Many of them point me to different resources to prove the validity of their claims. In this article, I will be reviewing the evidence that I have been provided so far, along with my research into that evidence. Let’s start by answering the question: What is the “Sovereign Citizen Movement”?

Sovereign Citizen Movement

From what I’ve found, the Sovereign Citizen Movement is more of a loose association of different activists with one common objection: That the laws of the United States are illegitimate. Their claim of sovereignty appears to be the rationale behind their claims to not be subject to certain laws, either because they do not fit their interpretation of common law or because they did not consent to them.

While there is no document that defines the Sovereign Citizen Movement, there are two almost universal beliefs I have found among its adherents: The government and its taxes are illegitimate.

Government or Corporation

The most common claim I hear from “sovereign citizens” is that the United States was turned into a corporation in 1871, and is therefore illegitimate. The “sovereign citizens” are not the only one to make such a claim; I even wrote a previous article about it 293 – USA, Inc.? Since then more people have provided more evidence, so I think it prudent to go through this argument again. I will take the “sovereign citizens’” claims the United States is incorporated argument in the order of their popularity .

District of Columbia Organic Act of 1871

While frequently referred to by “sovereign citizens” as the Incorporation Act of 1871, the proper name of the law they are referring to is the District of Columbia Act of 1871. The claim is that this legislation incorporated the United States and established the federal government as the government of the corporation of the United States, not the republic of the United States. But is that what the District of Columbia Act of 1871 actually did?

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all that part of the territory of the United States included within the limits of the District of Columbia be, and the same is hereby, created into a government by the name of the District of Columbia, by which name it is constituted a body corporate for municipal purposes, and may contract and be contracted with, sue and be seed, plead and be impleaded, have a seal, and exercise all other powers of a municipal corporation not inconsistent with the Constitution and laws of the United States and the provisions of this act.

District of Columbia Act of 1871

All that the District of Columbia Act of 1871 did was create a municipal corporation by the name of the District of Columbia, and establish a government for it. Some might point out that I’ve only quoted section 1 of the act. While that is true, read the rest of the act and all you’ll see are details of the government the act created. Far from the smoking gun some seem to think it is, the District of Columbia Act of 1871 did not create a corporation named the United States of America.

Stoutenburgh v. Hennick

After I published 293 – USA, Inc.? people reached out and said the proof that the United States is a corporation can be found in the case Stoutenburgh v. Hennrick. This case, which involved the District collecting license taxes, was supposed to prove their case, but when I read it, guess what I found? It quoted the District of Columbia Act of 1871. Since Stoutenburgh v. Hennrick merely repeated the District of Columbia Act, there’s nothing new here.

28 USC §3002

Probably the most compelling argument for the claim that the United States is a corporation comes from Title 28, §3002 of the United States Code:

(15) “United States” means—

(A) a Federal corporation;

28 USC §3002

There it is, in black and white. The “United States” means a federal corporation. Or does it?

• 3002. Definitions

As used in this chapter: …

(15) “United States” means-

(A) a Federal corporation;
(B) an agency, department, commission, board, or other entity of the United States; or
(C) an instrumentality of the United States.

28 USC §3002

• 3002 is a list of definitions for a single chapter of Title 28. If we’re talking definitions, then let’s look up some definitions. And the most important definition in this conversion is the definition of a corporation.

an organization formed with state governmental approval to act as an artificial person to carry on business (or other activities), which can sue or be sued, and (unless it is non-profit) can issue shares of stock to raise funds with which to start a business or increase its capital. One benefit is that a corporation’s liability for damages or debts is limited to its assets, so the share holders and officers are protected from personal claims, unless they commit fraud.

Corporation – The Free Legal Dictionary

A corporation is nothing more than an organization that acts as an artificial person for legal purposes. That means you can sue them, or be sued by them, because they are a legal entity. There are many different types of corporations, but they divided into two types:

• Private Corporations
• Public Corporation

What are the differences between these two types of corporations?

[I]f the corporation is not created for the administration of political or municipal power, the corporation is private. …

[I]f the stock is owned by private persons, it is a private corporation

Corporation – The Free Legal Dictionary

Simple enough. Private corporations are created for purposes other than the administration of political or municipal powers, and is owned by private persons.

Public corporations, which are also called political, and sometimes municipal corporations, are those which have for their object the government of a portion of the state; …

Nations or states, are denominated by publicists, bodies politic, and are said to have their affairs and interests, and to deliberate and resolve, in common. They thus become as moral persons, having an understanding and will peculiar to themselves, and are susceptible of obligations and laws. … In this extensive sense the United States may be termed a corporation; and so may each state singly.

Corporation – The Free Legal Dictionary

So yes, in its most expansive definition, the United States is a public corporation. As a public corporation though, it is not run by a board or owned by shareholders. Rather, the corporation is a legal entity, allowing the United States to sue or be sued.

With this definition in mind, let’s go back to 28 USC §3002.

• 3002. Definitions

As used in this chapter: …

(15) “United States” means-

(A) a Federal corporation;
(B) an agency, department, commission, board, or other entity of the United States; or
(C) an instrumentality of the United States.

28 USC §3002

In the chapter of the United States Code that includes §3002, the term “United States” may mean one of three things. 1) A Federal Corporation, 2) an agency or department of the United States, or 3) an instrument of the United States. On closer inspection, notice that subsection (A) does not define the United States the “the Federal corporation”, but “a Federal corporation”. That means the term may mean one of many corporations created by the federal government.

There’s more. As I frequently say, context is important, and 28 USC §3002 should not be taken out of its context. As it states, the purpose of §3002 is to define terms when used within a specific chapter of the United States Code. What chapter is 28 USC §3002 a part of?

CHAPTER 176-FEDERAL DEBT COLLECTION PROCEDURE

28 USC §3002

And what is the purpose of Chapter 176 of Title 28?

• 3001. Applicability of chapter

(a) In General.—Except as provided in subsection (b), the chapter provides the exclusive civil procedures for the United States—
(1) to recover a judgment on a debt; or
(2) to obtain, before judgment on a claim for a debt, a remedy in connection with such claim.

28 USC §3001

So what at first glance appears to be the strongest argument yet that there is a United States corporation separate from the republic, crumbles and blows away as dust in the wind with just the smallest amount of investigation. Along with it, all of the claims about “commercial law”, “admiralty law”, and the nonsense that putting gold fringe on a flag somehow changes the republic.

Citizenship

One of the claims of “sovereign citizens” is that United States citizenship is membership in the corporation, not the country. As such, they claim immunity from most laws of the United States by renouncing their federal citizenship, claiming only citizenship in their state. While it’s possible for one to renounce their United State citizenship, the consequences are not what the “Sovereign Citizen Movement” claim. When you renounce your citizenship, you become a resident alien without a country. This can lead to some unintended consequences. For example, you lose your right to vote, although there are attempts being made, mostly at the municipal level, to allow non-citizens to vote, if you renounce your citizenship, you also renounce your right to vote. Then there’s the question of international travel. While it’s possible for someone to get a United States passport as a resident alien, it would be clearly marked as such, which may lead other nations to question its legitimacy.

Income Tax

While not dependent on the “Sovereign Citizen Movement”, one of the many claims made by those within the movement is that the federal income tax is unconstitutional. Some claim that, since “sovereign citizens” are not citizens of the federal corporation, they are not subject to their taxes. Others point to the Supreme Court case Brushaber v. Union Pacific R. Co.,:

The Sixteenth Amendment does not purport to confer power to levy income taxes in a generic sense,

Brushaber v. Union Pacific R. Co.,

As is so frequently the case, those making this claim are taking this quote out of context.

The Sixteenth Amendment does not purport to confer power to levy income taxes in a generic sense, as that authority was already possessed, or to limit and distinguish between one kind of income tax and another, but its purpose is to relieve all income taxes when imposed from apportionment from consideration of the source whence the income is derived.

Brushaber v. Union Pacific R. Co.,

In other words, the Sixteenth Amendment did not create an income tax, but allowed Congress to collect one directly from the people without apportionment to the states. By far the most foolish claim is that there is not legal definition of “taxable income”. A grand total of five minutes of research led me to: §63 of Title 26

• 63. Taxable income defined

(a) In general

Except as provided in subsection (b), for purposes of this subtitle, the term “taxable income” means gross income minus the deductions allowed by this chapter (other than the standard deduction).

26 USC §63

So the federal income tax is constitutional and there is a legal definition of taxable income.

Conclusion

Where does this leave the “Sovereign Citizen Movement”? While it still has its adherents, the evidence seems pretty clear that the movement is a hoax. Some may follow it because they truly believe, others because it gives them a sense of power, but the facts show that the movement is based in fantasy not in facts.

I understand the desire to find someone or something to blame. With all of the corruption in governments at all levels, we all would like to find some thing we can do to get our rights and liberties back. Let’s face it, the “Sovereign Citizen Movement”, along with so many other conspiracy theories, are just another distraction. A way to point the finger at someone else and ignore the culpability of the American people. We have spent decades voting for people not because they had a reputation of protecting our rights, but because they looked good, told us what we wanted to hear and, most important, because they promised to give us stuff and get other people to pay for it. We the People have sold our birthright of liberty and justice for the false promises of someone else taking care of us, and now we are paying the price. Is it because we need to do something or that we need to do the right thing, something that would actually make a difference? What if all of the time, effort, and money wasted on the fantasy of the “Sovereign Citizen Movement” were spent on educating the people on how to choose better representatives at all levels. What if we listened to the words of our first Chief Justice, John Jay, when he 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 United States

What if, instead of expecting other people to defend and assert our rights, we learned how to do it for ourselves? What if we asked the same question John F. Kennedy asked?

And so, my fellow Americans: ask not what your country can do for you — ask what you can do for your country.

John F. Kennedy’s Inaugural Address, January 20, 1961

Perhaps, if we spent less time looking for someone else to clean up the mess we made, we could find the time, energy, and money to start fixing it for ourselves.

© 2023 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

February 22, 2023

• What is the difference between Excess Proceeds and simple Municipal Theft?
• Can a town foreclose on a property worth multiple times the debt owed and simply keep the proceeds?
• How many constitutionally protected rights does such “excess proceeds” actually violate?

We’re all familiar with the fact that our property is taxed. And if you don’t pay your taxes, it’s going to cost you, but how far can a city, town, or any government agency go to collect your taxes?

In 2014, after several personal and business issues, Alan DiPietro purchased some property straddling Stow and Bolton, MA for the purpose of raising alpacas. What ensued was several years of battle between Mr. DiPietro and the town of Bolton over his use of his own land. While what was described in Mr. DiPietro’s lawsuit was pretty terrible, I want to focus on the foreclosure of the property.

After purchasing his property, Mr. DiPietro was repeatedly frustrated in his attempts to make money from it by the Town of Bolton and the Commonwealth of Massachusetts. The actions of the Town of Bolton and the Commonwealth of Massachusetts made it impossible for Mr. DiPietro to pay the taxes he owed on his property. Eventually, the Massachusetts Superior Court found that Mr. DiPietro owed the town of Bolton approximately $60,000 in taxes, interest, fines, and legal fees. The town of Bolton foreclosed on his property, which according to Mr. DiPietro’s law suit was worth at least $370,000. If that sounds like theft to you, Mr. DiPietro agrees. Which is why he filed suit in the United States District Court for the District of Massachusetts.

Under the Fifth Amendment to the United States Constitution, the government may not engage in a physical appropriation of property without providing just compensation.This self-executing prohibition is incorporated against the states through the Fourteenth Amendment and further made enforceable by 42 U.S.C § 1983, which authorizes a private right of action against persons acting under the color of law who have deprived individuals of their federally protected rights.

Alan Dipietro v. Town Of Bolton

The Fifth Amendment claim in this isn’t quite correct.

nor shall private property be taken for public use, without just compensation.

U.S. Constitution, Amendment V

The Town of Bolton is not taking Mr. DiPietro’s property for public use, but in payment of a debt. The claim that the Town of Bolton is taking the excess proceeds from the foreclosure on Mr. DiPietro’s property that is being taken for public use doesn’t quite fit either, since that was not the purpose of the takings.

The claim that the Fifth Amendment’s prohibition only applies to the states through the Fourteenth Amendment is a legal fiction I have dealt with many times here at The Constitution Study. As the supreme law of the land, the states are just as bound to the Constitution as the federal government.

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

42 USC §1983 is the federal law allowing people to sue anyone who deprives them of their rights protected by the Constitution or laws of the United States under color of law. This insures that Mr. DiPietro has standing in federal court to sue.

For having taken the surplus value of Mr. DiPietro’s property, Bolton, a state actor, is liable under the Fifth Amendment’s Taking Clause to pay just compensation to Mr. DiPietro for the surplus value of his property.

Alan Dipietro v. Town Of Bolton

As I’ve pointed out previously, what the Town of Bolton did was not a takings under the Fifth Amendment, since it did not take the excess process for the purpose of public use. In my mind, there is a clause in the Fifth Amendment that better fits what the Town of Bolton is doing to Mr. DiPietro.

nor be deprived of life, liberty, or property, without due process of law;

U.S. Constitution, Amendment V

The courts said that Mr. DiPietro owed the Town of Bolton $60,000, but they have deprived him of the $310,000 of equity he had in the property without due process of law. That means the Town of Bolton has deprived Mr. DiPietro of his property, the $310,000 of equity he had in his land, without due process of law. While the Town did follow due process to collect their $60,000 debt, that does not entitle them to “keep the change”. In fact, there is a clause in the Constitution that makes that very point.

The Eighth Amendment to the United States Constitution prohibits punitive fines or forfeitures grossly disproportionate to the offense they are designed to punish.

Alan Dipietro v. Town Of Bolton

That is a fairly accurate paraphrase of the Eighth Amendment.

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

U.S. Constitution, Amendment VIII

Is what the Town of Bolton did a violation of the Eighth Amendment’s prohibition against excessive fines?

The tax statute already allows Bolton to collect costs and 16 percent interest on the debt. By taking and keeping at least $310,000 more than the taxes, interest, and fees, Bolton, under color of state law, excessively punished Mr. DiPietro.

Alan Dipietro v. Town Of Bolton

Yes, Mr. Bolton owed $60,000, but by collecting $370,000 to pay a $60,000 debt, the town has effectively fined him $310,000 for not paying his $60,000 debt. That is a fine 2.5 times larger than the debt, and quite excessive to any reasonable observer.

These actions are not only violations of the Constitution of the United States, but of the Massachusetts Constitution as well.

Under Part 1, Article X, of the Declaration of Rights in the Massachusetts Constitution, the government may not take private property for public use without reasonable compensation being paid or secured in a manner prescribed by law.

Alan Dipietro v. Town Of Bolton

Since I’ve already made my argument regarding the Takings Clause in regards to the Constitution of the United States, there’s no reason it would be different at the state level. What I found interesting is the language of the Massachusetts Constitution’s version of a due process clause.

And no subject shall be arrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled, or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land.

Massachusetts Constitution, Part 1, Article XII

The judgment of Mr. DiPietro’s peers was that he owed $60,000, not the $370,000 of property the Town of Bolton confiscated. The Massachusetts Constitution also includes an excessive fines clause.

Part1, Article XXVI, of the Massachusetts Constitution’s Declaration of Rights protects against excessive fines and cruel or unusual punishment.

Alan Dipietro v. Town Of Bolton

This is where the Fourteenth Amendment actually comes into play.

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

According to the suit, the tax laws of the Commonwealth of Massachusetts allows the Town of Bolton to confiscate property far in excess of the judgment, and keep the proceeds from any sale. This law not only claims to allow the Town of Bolton to deprive Mr. DiPietro of his property without due process of law, but as a tax debtor, he is also denied the equal protection of the laws, both state and federal, against the deprivation of property and excessive fines.

There is one other item in this case that caught my attention.

Mr. DiPietro hereby demands a jury trial on all issues triable by jury as a matter of right.

Alan Dipietro v. Town Of Bolton

The Seventh Amendment not only protects Mr. DiPietro’s right to a jury trial, but the judgment of that jury as well.

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

U.S. Constitution, Amendment VII

Conclusion

This case is far from over. Not only does Mr. DiPietro have the trial of the District Court to endure, but in my mind it’s likely that this case may go to the Circuit Court of Appeals as well. After all that Mr. DiPietro has been put through, according to his suit, I do not envy him, but I do applaud his willingness to stand up for what is right.

Like so many other parts of the law, tax foreclosure laws have a legitimate purpose, but have been twisted into a judicial nightmare. If taxing authorities can foreclose and confiscate property far in excess of any tax debt owed without returning the excess proceeds, not only can they become criminal entities, but they are financially incented to do so.

In his suit, Mr. DiPietro alleges that the Town of Bolton repeatedly interfered with his ability to profitably use his property, sell his property, and even make arrangements to settle his debt. Could it be that the Town of Bolton, with a financial interest in foreclosing on the property, was incented to prevent Mr. DiPietro from paying his debt? Mr. DiPietro also claims that the Town colluded with the Commonwealth of Massachusetts to prevent Mr. DiPietro from profitably using his property. Does that make the Commonwealth culpable as well?

I often hear people say that we don’t own our property, but merely rent it from government. If your property can be taken to pay a debt that is a fraction of what you owe, then that statement may be true. What is described in this lawsuit does not sound like a free people with the right to enjoy, defend, and protect their property.

All people are born free and equal and have certain natural, essential and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing and protecting property; in fine, that of seeking and obtaining their safety and happiness. 

Massachusetts Constitution, Article CVI

This sounds more like a fiefdom, where the local potentate owns the land, and dispenses favors rather than justice. Isn’t it sad how one of the birthplaces of liberty is this country has fallen into feudalism. Will the other 49 states learn from their debasement?

© 2023 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

February 14, 2023

• How many federal departments and agencies are constitutional and how many are not?
• How much of the President’s cabinet does not legally exist?
• What are the consequences of such a large part of the Executive Branch being constitutionally invalid?

A couple of weeks ago someone claiming to be my “#1 Fan”, at least that’s the name they used, asked an interesting question. “Any chance you could make a YouTube video going through each major executive federal agency or department and discuss which is actually Constitutional under Article 1 Section 8?” That’s a good question, so there’s not only a very good chance I’ll write the article and create the video, but here it is.

The first thing I need to do to answer my #1 Fan’s question is to modify their question just a little bit. Article I Section 8 of the Constitution lists powers delegated to Congress, while the cabinet serves to advice the President, in whom the executive powers are delegated (Article II, Section 1, Clause 1). Congress has the power:

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

U.S. Constitution, Article I, Section 8, Clause 18

Congress has the power to make laws to execute the powers of the United States. If we’re going to look at the constitutionality of the different cabinet departments, we need to look at the Tenth Amendment.

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

U.S. Constitution, Amendment X

Cabinet Departments

Currently, there are fifteen different cabinet level departments. There are five departments that we can easily identify the power delegated to the United States that they exercise.

• Department of State
• Department of Treasury
• Department of Defense
• Department of Justice
• Department of Commerce

That’s not to say all these departments do is constitutional, but their core purposes is constitutional.

Department of State

The Department of State plays the lead role in developing and implementing the President’s foreign policy. Major responsibilities include United States representation abroad, foreign assistance, foreign military training programs, countering international crime, and a wide assortment of services to U.S. citizens and foreign nationals seeking entrance to the United States.

The Executive Branch – Whitehouse.gov

Since the President has the power, with the advice and consent of the Senate, to sign treaties with foreign nations, the Department of State has a constitutional basis.

Department of Treasury

The Department of the Treasury is responsible for promoting inclusive economic prosperity for all Americans.

The Department advances U.S. and global economic growth to raise American standards of living, support communities, promote racial justice, combat climate change, and foster financial stability. The Department operates systems that are critical to the nation’s financial infrastructure, such as the production of coin and currency, the disbursement of payments owed to the American public, the collection of necessary taxes, and the borrowing of funds required by congressional enactments to run the federal government. The Treasury Department also performs a critical role in enhancing national security by safeguarding our financial systems, implementing economic sanctions against foreign threats to the U.S., and identifying and targeting financial support networks that threaten our national security.

The Executive Branch – Whitehouse.gov

The Treasury Department is one of those agencies that has a constitutional mandate, but has expanded its purpose into a blatantly unconstitutional role. The Treasury can collect taxes (under Article I, Section 8, Clause 1), borrow money on the credit of the United States (Clause 2), coin money (Clause 5), and to pay money appropriated by Congress (Article I, Section 9, Clause 7). The implementation of economic sanctions could be part of exercising Congress’ power to regulate foreign commerce. The whole “advancing economic growth, promoting racial justice, and combating climate change are NOT powers delegated to the United States. Which shows how a constitutionally sound department can quickly be used to enact unconstitutional powers.

Department of Defense

The mission of the Department of Defense (DOD) is to provide the military forces needed to deter war and to protect the security of our country. The department’s headquarters is at the Pentagon.

The Executive Branch – Whitehouse.gov

Sounds constitutional, right? After all, Congress can raise an Army and support a Navy, but is that all the DoD does?

The DOD consists of the Departments of the Army, Navy, and Air Force, as well as many agencies, offices, and commands, including the Joint Chiefs of Staff, the Pentagon Force Protection Agency, the National Security Agency, and the Defense Intelligence Agency. The DOD occupies the vast majority of the Pentagon building in Arlington, Virginia.

The Executive Branch – Whitehouse.gov

Army, Navy, and Air Force, no problem. The NSA and DIA are another matter altogether.

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

Notice it does not say “The right of the people to be secure”, unless the government claims national security. So the question is, are the NSA and DIA following the Constitution or not? Recent reporting would point to these agencies NOT following the Constitution.

Department of Justice

The mission of the Department of Justice (DOJ) is to enforce the law and defend the interests of the United States according to the law; to ensure public safety against threats foreign and domestic; to provide federal leadership in preventing and controlling crime; to seek just punishment for those guilty of unlawful behavior; and to ensure fair and impartial administration of justice for all Americans.

The Executive Branch – Whitehouse.gov

According to Article II, Section 3, the President “shall take Care that the Laws be faithfully executed,” so the duty to enforce the law is a constitutional power. If the purpose of the DOJ is the enforcement of the law as a constitutional power though, ensuring the public safety is not. We have a military for the common defense, but the Constitution does not grant to the United States the power to ensure public safety. That is a state power.

While the federal government has the power to enforce federal law, that’s the limit of their law enforcement powers. In other words, the DOJ can only enforce laws made pursuant to the Constitution. And since Congress only has exclusive legislative powers of the District of Columbia, forts, magazines, and other needful buildings, that means much of what the DOJ does is criminal, not justice.

Department of Commerce

The Department of Commerce is the government agency tasked with creating the conditions for economic growth and opportunity.

The department supports U.S. business and industry through a number of services, including gathering economic and demographic data, issuing patents and trademarks, improving understanding of the environment and oceanic life, and ensuring the effective use of scientific and technical resources. The agency also formulates telecommunications and technology policy, and promotes U.S. exports by assisting and enforcing international trade agreements. 

The Executive Branch – Whitehouse.gov

Congress can regulate both interstate and foreign commerce, but that is not what the department claims to do. It appears the Department of Commerce is more interested in regulating everything that passes through commerce, rather than the constitutional power to regulate interstate and foreign commerce.

Unconstitutional Cabinet Departments

There are plenty of departments that are not exercising powers delegated to the United States.

• Department of Agriculture
• Department of Labor
• Department of Health and Human Services
• Department of Housing and Urban Development
• Department of Transportation
• Department of Energy
• Department of Education

None of these departments are exercising powers delegated to the United States. That means that the legislation that created these departments was not made pursuant to the Constitution, and therefore are not the supreme law of the land.

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;

U.S. Constitution, Article VI, Clause 2

Not only are the laws that created these departments not the supreme law of the land but, according to both Alexander Hamilton and the Supreme Court, they are 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. No legislative act, therefore, contrary to the Constitution, can be valid.

Alexander Hamilton, Federalist Paper #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

Which means these departments do not legally exist.

Questionable Cabinet Departments

There are some departments I consider questionable. They may be exercising powers delegated to the United States, but it’s not exactly obvious.

Department of Veterans Affairs

The Department of Veterans Affairs is responsible for administering benefit programs for veterans, their families, and their survivors. These benefits include pension, education, disability compensation, home loans, life insurance, vocational rehabilitation, survivor support, medical care, and burial benefits. Veterans Affairs became a cabinet-level department in 1989.

The Executive Branch – Whitehouse.gov

We know that Congress can raise and support Armies and a Navy, but what about those who serve? Is a separate department, rather than the DoD, the best way to take care of those who have defended this country? That is a question for another venue.

Department of Interior

The Department of the Interior (DOI) is the nation’s principal conservation agency. Its mission is to protect America’s natural resources, offer recreation opportunities, conduct scientific research, conserve and protect fish and wildlife, and honor the U.S. government’s responsibilities to American Indians, Alaskan Natives, and to island communities.

The Executive Branch – Whitehouse.gov

Again, conservation is not a power delegated to the United States. Oddly enough, Congress does have exclusive legislative authority over the District of Columbia, dockyards, forts, etc. If Congress wanted to have a department to manage that land, that’s one thing, but the claim of power to take over land for the purpose of conservation is not within the powers delegated to the United States. So this one is going well beyond their legal authority..

Department of Homeland Security

The Department of Homeland Security (DHS) protects the American people from a wide range of foreign and domestic threats. DHS has a broad and diverse mission set, including to prevent and disrupt terrorist attacks, protect critical infrastructure and civilian computer networks, facilitate lawful trade and travel, respond to and recover from natural disasters, protect our borders, and regulate the migration of individuals to and from our country.  

The Executive Branch – Whitehouse.gov

Congress has the power to collect taxes to provide for the common defense of the union, but that does not include the “wide range of foreign and domestic threats” that the department claims is its purview. It certainly does not include protecting civilian computer networks or lawful trade.

Non-Departmental Cabinet Members

While searching the White House website, I found a list of cabinet members that goes beyond the department secretaries. Surprise, surprise, many of them are unconstitutional as well.

• Administrator of the Environmental Protection Agency
• Chair of the Council of Economic Advisers
• Administrator of the Small Business Administration
• Director of the Office of Science and Technology

Just as with the departments, there are several of these cabinet members that may be constitutional, but rarely seem to act within the limits of that document.

• Director of National Intelligence
• United States Trade Representative
• United States Ambassador to the United Nations
• Director of the Office of Management and Budget

Conclusion

As we can see, a large percentage of the Executive Branch does not legally exist. As I pointed out earlier, an act of the legislature repugnant to the Constitution is void. Just think of how many of your tax dollars are used to fund these illegal departments and agencies. Even worse, how much of your liberty is being trampled by the illegal regulations coming out of these illegal departments? Which brings up another topic I would like to add to this discussion: Federal regulations.

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

U.S. Constitution, Article I, Section 1

All of the United State’s legislative power is vested solely in Congress. What is this legislative power?

Capable of enacting laws; as legislative power.

LEG’ISLATIVE – Webster’s 1828 Dictionary

That means the only branch of the federal government legally capable of enacting laws is Congress. When an executive branch department or agency writes “regulations” with the force of law, those acts are not made pursuant to the Constitution, so they are not the supreme law of the land and are void. Just imagine what life would be like without the millions of pages of federal legislation and thousands of federal employees being used to eat our substance.

I want to thank my “#1 Fan” for this question. I think it shows that there are still people out there who are concerned about what the Constitution says, and about keeping the government it created within its legal bounds. Once again, I hope we see that the problems in Washington, D.C. are not simply the politicians or the bureaucrats, but the compliance of We the People with the illegal acts coming from that “wretched hive of scum and villainy.”

© 2023 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

February 1, 2023

• What role does government legally have to protect us?
• Do government actors have the authority to search your home to make sure you are safe?
• What are the consequences of becoming dependent on government for our protection.

I received an email asking me to “delve into Rental Inspection Programs.” I have to admit, having lived my adult life in rural America and owning my own home for over 30 years, I haven’t had to deal rental inspection programs. While I was researching these programs, I realized they may be just the tip of a truly large iceberg.

Rental Inspection Programs

Rental Inspection Programs are local ordinances that allow government inspectors access to private property in order to insure that local codes regarding rental units are met. Since these programs are created at the local level, they are not all the same. While my research has been somewhat brief, they do generally have several things in common.

First, these inspections cover not only the public and mechanical areas (water, heating, air conditioning, etc.), but the rented units as well. Access to the rental units usually requires that the owner notify the tenant of an upcoming inspection before hand. Second, the inspection is supposed to be for compliance with building codes related to the safety and quality of the living conditions. So far, most people would probably not see a problem. Then again, there is the question of the Fourth Amendment.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,

U.S. Constitution, Amendment IV

What about the tenants’ right to be secure in their houses? How far can a city inspector rummage around your home looking for code violations? And what are the limits of what that inspector can report? The answer, as is usual when it comes to the Fourth Amendment, it comes down to when, and under what conditions, is a search unreasonable.

1. Not agreeable to reason.
2. Exceeding the bounds of reason; claiming or insisting on more than is fit; as an unreasonable demand.
3. Immoderate; exorbitant; as an unreasonable love of life or of money.
4. Irrational.

Unreasonable – Webster’s 1828 Dictionary

Many would say it’s quite reasonable for the city to inspect rental units. After all, they’re just trying to keep you safe. Then again, if it’s reasonable for one city employee, say a code inspector, to enter your home to keep you safe, why wouldn’t it be reasonable for another city employee, say a police officer, to do the same? Call it a “slippery slope” or the “camel’s nose under the tent flap”. Once the people think it reasonable for a government actor to enter your home to keep you safe, we’ve given them a tool to invade not just our privacy, but our castle, under the pretense of keeping us safe.

Codes and Inspections

As I dug into these rental inspection programs, it got me thinking of just how much cities, towns, and counties have taken control of our lives.

When I first started The Constitution Study, it was just me, my website, and writing my book. Then, I wanted to sell my book personally. I could have simply allowed a publisher to sell my book, but I couldn’t find one that wanted to. After I self-published with Amazon, I could have let them do all of the selling, but I wanted that personal interaction of selling directly to people. No big deal, right? It’s my book, so I should be able to sell it. Except, being a resident of the State of Tennessee, if I started selling books, I needed to collect sales tax for the state. To do that I needed a county business tax license. Now, not only did I need to collect and remit sales tax, but now I have to file paperwork about any property my business owns and, of course, pay taxes on it. And I’m just a small author trying to make his way in the world. Consider all of the other businesses that need government approval to operate.

If The Constitution Study wanted to build a place for an office in the city near where I live, I would need to not only follow city building codes and have my property inspected, but I would need a “certificate of occupancy”. Basically, I would need the city’s permission to occupy my own property.

Now imagine I wanted to expand The Constitution Study into other businesses. Let’s say I want to open a coffee shop where people can sit and discuss the news of the day, just like in our colonial days. Well, I’d need more permits, more licenses and, of course, more inspections for this, too. Health inspections, building inspectors, and who knows what else. Suppose I wanted to go into business with a neighboring barber shop or hair salon. Not only do I have all of those pesky permits and inspections, but people in those shops would have to be licensed by the state to cut hair. In many states, they would also need continuing education, TO CUT HAIR! Where is the reasonableness of all of these inspections, permits, and licenses? From a fundamental misunderstanding of the role of government.

Purpose of Government

We’ve all be trained that government is there to protect us. What would you say if I told you that was not only wrong, but antithetical to a free people. Just look at the Declaration of Independence.

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

Declaration of Independence (emphasis added)

That’s right, governments are not instituted to provide for you, watch out for you, or even keep you safe. Governments in free countries are created to protect your rights, especially the unalienable ones. Yes, governments provide for a common defense, but not an individual one. And yes, they provide a venue for a redress of grievance, but they are not empowered to prevent such grievances beforehand. Those are the responsibility of the citizen. As proof, multiple court cases have recognized that law enforcement does not have a legal duty to protect you, only to enforce the law once a crime is committed.

Once we turn over our safety to government actors, we turn over our freedom as well. When we allow government to tell us what we can and cannot do, and how we will be allowed to live our lives under the auspices of keeping us safe, we cease to be free citizens and become subjects of our rulers in government. We abdicate our sovereign powers that so many of our state constitutions say are inherent in us. We forgo the authority to decide for ourselves in favor of the so-called experts in government. And we invite that government to intrude into our lives, homes, and effects, to make sure we are keeping the law and rules they’ve implemented to keep us safe. In short, we nullify the Constitution, the Declaration, and our God given rights in an effort to avoid the responsibility of taking care of ourselves. Then some of us complain about the intrusive government agencies that are needed because we refused to govern ourselves.

As James Madison said in Federalist Paper #51:

If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

James Madison – Federalist Paper #51

Since We the People are not angels, we need government to control our actions. And since those we place in government are just as corrupt as the rest of the people, we need to control them as well. That is why each and every state in the union must have a republican form of government. Meaning that the people hold the power, and hire representatives to exercise it for them. This balance of power between the people and their representatives provides not only control of the people, but the control of government as well. Without the restraining force of government, there is no protection of our rights and only the strongest survive. When we turn over the absolute regulation of our lives to government, surrendering all of the power over to government, We the People are nothing more than slaves. It is the balance between these two extremes that keeps us free. Which leads me back to the original question of Rental Inspection Programs.

Conclusion

Cities inspect rental properties because they have assumed the power to keep renters safe. The people of these cities stood by while their representatives assumed this power, and in many cases not only cheered them on, but demanded that city officials protect them and their neighbors.

In my opinion, tenants do not have a strong platform to oppose such inspections, and the reason is simple. When you signed the lease, it probably included language that allows the landlord to enter the premises for the purposes of repairs, maintenance, and probably required inspections. Part of the cost of renting property is giving up sole control of who enters your home. As for the property owners, the answer may be a bit different.

Going back to the Fourth Amendment we see that we are protected from unreasonable searches. Courts generally defined reasonableness as what a reasonable person would find reasonable. And it is this defining a word with itself that leads to so much confusion in the legal world. Then I remembered that the person who asked that question was doing so in the context of a previous article I had written regarding the IRS. Specifically, that an IRS audit is functionally a writ of assistance.

a writ authorizing officers of the British crown to search any premises for smuggled goods.

Writ of Assistance – The Free Legal Dictionary

The code enforcement officer may not be searching for smuggled goods, but they are searching for code violations without any probable cause. Come to think of it, most of the inspection programs we have become so used to are not based in probable cause.

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

Probable Cause – The Free Legal Dictionary

So where does that leave us? Are Rental Inspection Programs little more that writs of assistance? Is it reasonable to allow a government actor to search your property for some violation without any probable cause? And where does that leave all of the other inspection programs? The only reasonable conclusion I can come to is that these programs are unreasonable since these inspections are not based in probable cause. What about the health and safety of the tenants and customers of these businesses? Simple. Should a tenant or customer complain, then whichever department was responsible for enforcing that law would have probable cause to get a warrant to perform the inspection. This not only would make those operating these inspection programs compliant with their oath to support the Constitution of the United States, but allow good landlords and business owners the opportunity to resolve some of these issues without involving the government.

Since We the People have turned responsibility for our own safety to various governments, we have no one to blame for these intrusive inspections and overbearing licensing requirements but ourselves. As James Madison warned, we enabled government to control the governed, but forgot that we needed to control government as well.

© 2023 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

January 25, 2023

• Can government actor hid behind “qualified immunity”?
• What is qualified immunity and how is it different from sovereign immunity?
• How can We the People push back against these violations of the Constitution?

Imagine you have immunity for any bad actions you take. You’ve probably heard of diplomatic immunity, where officials of other countries are shielded from prosecution. Then there’s sovereign immunity, when the head of government cannot be charged. In America though, our legal system has come up with the idea of qualified immunity. While the idea of qualified immunity may make sense in some situation, and like so many other things, it has been badly abused by those in government.

The State of New York is considering legislation that may put the brakes on some of the abuses of qualified immunity. Would this make things better or worse?

Think of immunity as a “get out of jail free card”. Under the right conditions, you are not held accountable for your actions. In monarchies, the sovereign has their own form of immunity.

Sovereign immunity, or crown immunity, is a legal doctrine whereby a sovereign or state cannot commit a legal wrong and is immune from civil suit or criminal prosecution,

Sovereign immunity – The Free Legal Dictionary

We’ve all seen examples of diplomatic immunity in movies or television. It’s usually a bad guy using his or her diplomatic position to get away with their criminal activity, and we cheer when they get their comeuppance.

Diplomatic immunity is a form of legal immunity that ensures diplomats are given safe passage and are considered not susceptible to lawsuit or prosecution under the host country’s laws, although they may still be expelled.

Diplomatic immunity – The Free Legal Dictionary

In the United States, we don’t have a king so there’s no sovereign immunity. We do extend diplomatic immunity where appropriate. Our courts, however, have created a qualified version of immunity.

Qualified Immunity

Qualified immunity is not like diplomatic immunity, it’s more like sovereign immunity lite.

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

The idea behind qualified immunity has some merit. A government official cannot be sued unless the petitioner shows that there was clearly established rights that were violated. It’s those words “clearly established” that have led to so many problems. What is a “clearly established right”? You would think that the plain language of the Constitution and laws of the United States would “clearly establish” the protections of those rights, but judges don’t always agree. Just look at how often federal judges, including justices of the Supreme Court, claim that a right clearly established in the Constitution can be violated if there’s a “compelling state interest”.

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

I find this standard very interesting. You see not only does the Constitution clearly state that certain rights will not be infringed or abridged, but it’s actually a violation of federal law for government actors to do so. They can even be sued for depriving someone of a right protected by the Constitution or laws of the United States.

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress,

42 USC §1983

Why do the courts still claim that a right has to be clearly established before someone can be sued, simply because that someone was working for a government when they violated your rights? With this in mind, let’s take a look at the legislation submitted to the New York State Senate.

New York State Civil Rights Law

This legislation would amend New York State’s civil rights law with the following language.

• 79-r. Civil action for deprivation of rights. 1. (a) A person or public entity acting under color of law that subjects or causes to be subjected any other person to the deprivation of any rights, privileges, or immunities secured by the federal or state Constitution or laws, is liable to the injured party for legal or equitable relief or any other appropriate relief.

New York Senate Bill 182

Similar to 42 USC §1983, this law would insure that someone who deprives another of a right protected by the constitution or laws of either the United States or the State of New York, can be sued for damages. That, however, is not where the question of qualified immunity comes in. That comes in section 3:

3. 3 (a) Statutory immunities and statutory limitations on liability, damages or attorney fees do not apply to claims brought pursuant to this section.

New York Senate Bill 182

I have plenty of complaints about the Empire State, but if they pass this legislation into law with this language, I will give them full credit for doing something right. There is no reason someone who deprives others of a right or privilege should be held not just criminally, but civilly, liable simply because they work for government. There needs to be consequences for such bad behavior.

(b) It shall not be a defense or immunity to any action brought for the deprivation of any rights, privileges, or immunities secured by the federal or state Constitution and laws, that such defendant was acting in good faith, or that the defendant believed, reasonably or otherwise, that their conduct was lawful at the time such conduct was committed. …

New York Senate Bill 182

Have you ever heard the saying, “Ignorance of the law is no excuse? What’s good for the citizen should be good for the government actor. Just because someone believed what they were doing was lawful isn’t a defense for anyone else, so why should it be one for a government actor? Doesn’t that effectively put them above the law?

… Nor shall it be a defense or immunity that the rights, privileges, or immunities secured by the federal or state Constitution or laws were not clearly established at the time of their deprivation by the defendant, or that the state of the law was otherwise such that the defendant could not reasonably have been expected to know whether their conduct was lawful.

New York Senate Bill 182

And here we deal with that “clearly established” language. I remember reading about a case where a law enforcement officer was acquitted for shooting a family dog because no court had ever said it was a clearly established violation of the owners right to do so. If New York State enacts this legislation, then that would no longer be a defense within the state.

Conclusion

The immunity language in NY SB182 is pretty good. The real question is why it’s not standard practice? Why isn’t the plain language of the Constitution and laws of the United States not considered “clearly established”? Why does a court need to put their blessing on a law for it to be so? I have my ideas.

One of the ways to control something is to shroud it in mystery and special knowledge. If the law means exactly what it says it means, then why would we need all of these lawyers? By wrapping up the whole legal process in jargon and commentary, it’s easier to keep everyday people out of the loop.

That though, cannot be the only reason. Let’s face it, power corrupts. If you have the power to reinterpret the laws to your own advantage, it’s difficult not to take advantage of such a power. And since the judicial branches are just as much a part of government as the legislative and executive, why wouldn’t they feel the need to protect their fellow government actors? It may not even be a malicious intention, but one drilled into our attorneys in law school and by the judicial opinions they are taught to worship.

If you live in the State of New York, I would keep an eye on SB182; it may become a great tool to protect your rights from the bad actions of government employees. For the rest of us, I think we should consider approaching our state and federal representatives about including similar language in the laws of all of our states, and the United States as well. It would put us one step closer to the land of the free we so often sing about.

© 2023 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

January 18, 2023

• Can we have public liberty without Freedom of Speech?
• New York State has passed a law coercing social media companies to act as censors for the state.
• Rumble Canada Inc., and Locals Technology Inc. have filed suit in federal court to defend Free Speech.

In 1722, under the name Silence Dogood, Benjamin Franklin wrote:

Without Freedom of Thought, there can be no such Thing as Wisdom; and no such Thing as publick Liberty, without Freedom of Speech;

Silence Dogood, No. 8, 9 July 1722

Why is freedom of speech so important? As Mr. Franklin stated, there is no such thing as public liberty without it, but what does that mean? Yes, without freedom of speech people cannot express themselves, but there’s more. Without freedom of speech we would never be exposed to contradictory ideas, and we would never grow. The basis of the scientific method is the testing of contradictory ideas. So if freedom of speech is so important, why do people keep tying to shut it down? Take New York State’s “Online Hate Speech Law”. Why is the State of New York attempting to get social media networks to act as government censors for them?

There are plenty of misunderstandings around the First Amendment and the protections of Freedom of Speech. Have you ever taken the time to consider why this freedom is so important and what you would do to defend it?

As Benjamin Franklin said, there can be no public liberty without Freedom of Speech. Which is why all of the recent attacks on this right seems so egregious to me. In recent years, companies like Rumble and Locals Technology have emerged to provide a venue where free speech can thrive. When the State of New York decided to join the ever growing number of governments attempting to suppress this right, these two companies filed suit against the Attorney General of New York, Letitia James.

The State of New York has enacted a new law, slated to take effect
December 3, 2022, with one goal: to silence disfavored—but constitutionally protected—expression. New York General Business Law Section 394-ccc ostensibly targets “hateful conduct,” but in reality, regulates protected online speech that someone, somewhere perceives to “vilify, humiliate, or incite violence against a group or class of persons” based on race, color, religion, or other protected categories (the “Online Hate Speech Law”).

Rumble and Locals v. James – Complaint for Injunctive Relief

This law does not outlaw “hate speech”, but I believe there are other laws that do so. The Online Hate Speech Law is an attempt by the State of New York to conscript online platforms to suppress disfavored expression for them.

New York’s Online Hate Speech Law, titled “Social media networks; hateful conduct prohibited,” hangs like the Sword of Damocles over a broad swath of online services (such as websites and apps), threatening to drop if they do not properly address speech that expresses certain state-disfavored viewpoints, as the state now mandates they must. In something of a First Amendment “double whammy,” the Online Hate Speech Law burdens the publication of disfavored but protected speech through unconstitutionally compelled speech—forcing online services to single out “hate speech” with a dedicated policy, a mandatory report & response mechanism, and obligatory direct replies to each report. If a service refuses, the law threatens New York Attorney General investigations, subpoenas, and daily fines of $1,000 per violation.

Rumble and Locals v. James – Complaint for Injunctive Relief

Most people detest certain ideas, but does that give them the right to prevent others from speaking? And just who decides what is “hate speech”? What is hateful and dangerous to you maybe quite acceptable to others. Do the people of New York really believe, after the last few years of COVID censorship, that the state will not use this law to their own political advantage?

There can be no reasonable doubt New York will enforce the Online Hate Speech Law to strong-arm online services into censoring protected speech. The Attorney General’s intentions, in fact, could not be clearer; as recited, for example, in an October press release, the Attorney General declared that “[o]nline platforms should be held accountable for allowing hateful and dangerous content to spread on their platforms” because an alleged “lack of oversight, transparency, and accountability of these platforms allows hateful and extremist views to proliferate online.”

Rumble and Locals v. James – Complaint for Injunctive Relief

In the Attorney General’s own words, she expects online platforms to be held accountable not only for allowing speech she finds hateful, but for the spreading of information she finds dangerous. Can you think of a better example of the suppression of freedom of speech, press, and even thought?

Freedom of Speech

Unlike the attorneys for Rumble and Locals, I recognize this is not a First Amendment issue. As I’ve pointed out repeatedly in this column, that amendment only protects you from federal abridgment of your free speech rights.

Congress shall make no law … abridging the freedom of speech, or of the press;

U.S. Constitution, Amendment I

On the other hand, Article I, Section 8 of the constitution of the State of New York, is quite specific:

Every citizen may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press.

Constitution of the State of New York – Article I, Section 8

If we had a functioning justice system, this case would have been decided almost immediately in any court within the State of New York. The Hate Speech Law’s sole purpose is to restrain and abridge the liberty of both speech and press (since it expects online platforms to suppress both the spoken and written word). For that matter, if we had functioning constitutional governments, such legislation would never have seen the light of day.

New York cannot regulate disfavored online speech by compelling online services to “mouth support for views they find objectionable,”… in hopes of deterring or eliminating hate speech. Plaintiffs bring this lawsuit to vindicate their constitutional and statutory rights because the First Amendment does not tolerate efforts, like those of the State of New York, to “cleanse public debate.”

Rumble and Locals v. James – Complaint for Injunctive Relief

Because we don’t have a functioning judicial system, neither do we have functional constitutional governments. Therefore, we must bow the knee and wait for the priests in black robes to offer their opinion, which most of the people will follow as if it were law. We can only hope the courts get it right this time.

Freedom of Thought

Since the 1960s, governments at all levels have been attempting to suppress ideas they find objectionable. Today, the thought of racially segregated restaurants is abhorrent to all but a tiny number of Americans. That is, it was until colleges and universities started offering segregated housing, activities, and even graduations. The problem with suppression of thought is, as Mr. Franklin pointed out, the lack of wisdom. Metaphorically sweeping aside ideas you don’t like is equivalent to ignoring a bad tooth. You may not see it, but it’s still there. The longer you ignore it, the greater the decay grows, the more pain it causes, while giving it an increased opportunity for infection to spread. Better to bring these ideas out into the sunlight, have an open debate about them, and show just how bad they are. In other words, the answer to “hate speech” is not less speech, but more. And as we are seeing not only in the education system, but in corporate America, pretending bad ideas aren’t there gives these cancers an opportunity to metastasize in our society.

New York State is certainly not the first government to suppress ideas they do not like. I would have thought that the last three years of COVID censorship would have shown just how dangerous these thought police are. Now that the evidence is out that government health officials were wrong, the Ivermectin is an effective treatment for COVID-19 if used early, that the “vaccines” do not keep you from getting infected or spreading the virus, that locking down entire communities when the people at serious risk were limited to a small demographic, was destructive not only to our economy, but to the education of the next generation. All of this information, including the evidence to back it up, was suppressed by government actors and their allies. How many people died because of lack of treatment? Or even worse, who died from the treatments used while the information about their dangers was also suppressed? How many family members died alone because government officials made decisions without all the available information? What will be the future impact of the suppression of the dangers of “vaccines” that were not legally vaccines, and were not properly tested for safety or efficacy, while people were illegally coerced into using them? We may never know the true cost of this suppression of public liberty.

Limits on Free Speech

Many people claim that Freedom of Speech is not absolute, and in a way, they are correct. Look again at Article I, Section 8 of the New York State Constitution:

Every citizen may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press.

Constitution of the State of New York – Article I, Section 8

You are free to speak, write, or publish all you want, but you are responsible for the abuse of that right. This is were we get the oft misquoted “Fire in a crowded theater” opinion. The Supreme Court never said the First Amendment prohibited shouting fire in a crowded theater, only that it was not a defense for falsely doing so. The same holds true for perjury. You cannot claim Freedom of Speech as a defense for lying under oath. So what are the limits on Freedom of Speech? Let’s look at the rest of the quote from Mr. Franklin.

Without Freedom of Thought, there can be no such Thing as Wisdom; and no such Thing as publick Liberty, without Freedom of Speech; which is the Right of every Man, as far as by it, he does not hurt or controul the Right of another: And this is the only Check it ought to suffer, and the only Bounds it ought to know.

Silence Dogood, No. 8, 9 July 1722

Like any other right, the only limits we should put on Freedom of Speech is that it not be used to hurt or control another. This is the logic behind slander, defamation, and perjury laws; they actually hurt another. I’m sure someone will say, “But Paul, hate speech hurts other people.” Does it really? Yes, it may hurt your feelings, but are you truly harmed by it? When I was a child, we had a saying about that. “Stick and stones may break my bones, but words will never hurt me.” Calling someone an evil name may be unpleasant, but it doesn’t stop you from getting a job or living your life. Using your freedom of speech to encourage others to suppress that freedom for others does control them, and should not be allowed.

Conclusion

To quote Noah Webster in his 1828 dictionary:

Civil liberty is the liberty of men in a state of society, or natural liberty so far only abridged and restrained, as is necessary and expedient for the safety and interest of the society, state or nation.

Webster’s 1828 Dictionary

In other words, liberty is the state where you can live your life as you see fit without unnecessary external influence. If we all lived our lives at liberty, allowing others the liberty to do the same, then things would be messy, but the infections would be brought to light and could be dealt with. However, liberty is the exact opposite of what the State of New York is doing with this Online Hate Speech Law. As Mr. Webster continued in his definition of civil liberty:

A restraint of natural liberty not necessary or expedient for the public, is tyranny or oppression.

Webster’s 1828 Dictionary

You may think the forceful suppression of hate speech is necessary for the public. I beg to differ, and I believe history shows me to be correct. Have you thought about what would happen should your views be deemed “hate speech”? To paraphrase Jesus in the Gospel of Matthew, “He who lives by tyranny shall die by oppression.”

© 2023 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

January 10, 2023

• What happens when the Internal Revenue Service becomes a spy agency?
• Why is Congress so interested in using the IRS to know just about every transaction you make?
• Is there more behind this new 1099-K than meets the eye?

There are few things more universally feared and hatred than the IRS. When I’m asked about unconstitutional government agencies and point out that the IRS does exercise a power delegated to the United States, most people are gravely disappointed. Of course, while the IRS may legally exist, that does not mean that everything they do is constitutional.

The recent IRS rule to gather data from those in the gig economy went far beyond what is constitutional. While the Sixteenth Amendment does allow Congress to collect taxes on income from any source without apportionment to the states, the IRS used the threat of unreasonable searches to “encourage” compliance. For those of us who read and study the Constitution, we can see that this is just the latest in a long line of abuses this agency has engaged in. Let’s face it, this $600 reporting requirement is less about collecting taxes and more about gathering intelligence on the American population.

Thank You Congress

When talking to small business owners, the thing most people complain about is the paperwork.

Form 1099-K, Payment Card and Third-Party Network Transactions, is an IRS information return used to report certain payment transactions to improve voluntary tax compliance. You should receive Form 1099-K by January 31 if, in the prior calendar year, you received payments:

• From all payment card transactions (e.g., debit, credit, or stored-value cards), and
• In settlement of third-party payment network transactions above the minimum reporting thresholds as follows:
  • For returns for calendar years prior to 2022:
    • Gross payments that exceed $20,000,AND
    • More than 200 such transactions
  • For returns for calendar years after 2021:
    • Gross payments for goods or services that exceed $600,AND
    • Any number of transactions

Understanding Your Form 1099-K

Don’t you like the kind words? Form 1099-K is to improve voluntary tax compliance. Then why did the same IRS warn that failure to report transactions on a 1099-K could trigger an audit? The original reporting rule for the IRS was for payments greater than $20,000 or more than 200 transactions in a year.

The American Rescue Plan of 2021 changed the reporting threshold for third-party settlement organizations, including payment apps and online third-party settlement organizations. The new threshold requires reporting of transactions in excess of $600 per year; changed from the previous threshold of an excess of 200 transactions per year and an excess of $20,000. TPSOs are required to report payments for goods and services. The law is not intended to track personal transactions such as sharing the cost of a car ride or meal, birthday or holiday gifts, or paying a family member for a household bill.

Understanding Your Form 1099-K

Lowering the reporting threshold down to $600 came not from the IRS, but from Congress, but it didn’t start there. The Biden administration created this rule in 2021, requiring we report all business transactions over $600 to the IRS. This was illegal, since there was no law to make that change. At this point, does anyone really expect the current occupant of the Whitehouse to act like a President when he’s spent so much time acting like a king without any repercussions? However, the plan to change the reporting standards drew so much criticism that the administration pulled it. That doesn’t mean they forgot about it, only that they had to look for another way to get what they want. Enter the American Rescue Plan, another gigantic piece of legislation pulling in as many wishlist items for big government as they could. One of those was this $600 snooping requirement.

Back in 2021, Treasury Secretary Janet Yellen claimed the requirement for banks to report $600 transactions was to deal with fraud. She estimated they could raise more than $460 billion over the next decade just from what they found by snooping into your bank transactions. So the first reason for this change is simple greed. What the Whitehouse couldn’t get the banks to do, Congress is extorting online payment processors to do for them. Namely, to spy on the American people.

We already know that the federal government gathers up huge amounts of data about us, both directly and indirectly. There’s cellphone tracking data, data collected from the apps we use, from security cameras, and from the tracking of our web usage. Most of this data is collected by others, but the federal government expects these third parties to simply hand the data over when they ask or when presented with a subpoena. This is exactly what the Treasury proposed banks do in 2021, and what Congress expects from apps like PayPal, Venmo, etc. It seems to be a very rare occasion when a government official is actually required to get a warrant to gain access to this treasure trove of information about you, but more on that later. One of the ways the feds collect data about you is through your finances. Every paycheck you receive gets reported to the IRS, including what you made, how much you protected through tax-deferred contributions, and how much was held back to pay your taxes. Once a year you hand over data on how you spent what money you earned, in an attempt to minimize what you pay in taxes. Most Americans may not be aware of how much information the IRS collects about how you use your money through your bank.

We’ve all probably received a 1099-INT for a bank account. This is to make sure the feds know how much money you made in interest. Some may have received a 1099-DIV to report how much you made through dividends on your investment accounts. And yes, bank transactions above a certain size are reported to the IRS as well. All to make sure you are following the law. Have you ever considered what laws the IRS may be breaking in creating these rules?

Since the states ratified the Sixteenth Amendment in 1913, delegating to Congress the ability to collect taxes on income from any source without apportionment, it makes sense that We the People would have to report our income in order to pay those taxes. And since Congress loves to manipulate the American people with their voluminous and convoluted tax laws, we voluntarily hand over information on what we do with that income in an attempt to minimize our tax liability. Does Congress have the legal authority to order an executive agency (the Internal Revenue Service), to search your records for criminal activity without probable cause? Not according to the Fourth Amendment.

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

Contrary to what the courts have said, the Fourth Amendment isn’t about your right to privacy, though that’s not to say privacy isn’t an issue when dealing with the Fourth Amendment. Courts have routinely decided that searches are reasonable because you did not attempt to keep certain information private. The problem is, the courts have the burden of proof backwards. The Constitution does not say you have a right to be secure from searches unless government is running an investigation. It says the search must be reasonable.

Conformable or agreeable to reason; just; rational.

Reasonable – Webster’s 1828 Dictionary

So what would make a search both just and rational? To answer that, let’s take the government out of the equation and ask that question again. If you had a business arrangement, would it be just for your partner to simply rifle through your financial records to make sure you are not cheating? Or imagine you’re in an airport or train station. Would it be reasonable for your fellow passengers to rummage through your bags to see if you’ve committed a crime? I would hope all of you would say no. So if it’s unreasonable for your neighbor to go through your property or records without cause, how can they empower government to do it for them? That is why, outside of modern judicial theory, the test for reasonableness required probable cause.

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

Probable Cause – The Free Legal Dictionary

Notice, there must be facts discovered through logical inquiry that leads a reasonable person to believe that a crime or other cause of action has happened. There must be a specific reason for the search, not simply a general desire. This is the exact opposite of these rules suggesting that it is reasonable for government to search your property or records without previously discovered facts. What these reporting requirements are is a Writ of Assistance:

Writs of Assistance

What is a writ of assistance? They actually come from our days as colonies of the British Empire.

a writ authorizing officers of the British crown to search any premises for smuggled goods.

Writ of Assistance – The Free Legal Dictionary

These writs were used by the British government to investigate people in search of a crime rather than investigating a crime in search of the guilty party. In 1761, Massachusetts lawyer James Otis argued against such writs.

I was desired by one of the Court to look into the books, and consider the question now before them concerning writs of assistance. I have accordingly considered it, and now appear, not only in obedience to your order, but likewise in behalf of the inhabitants of this town, who have presented another petition, and out of regard to the liberties of the subject. And I take this opportunity to declare, that whether under a fee or not (for in such a cause as this I despise a fee) I will to my dying day oppose with all the powers and faculties God has given me, all such instruments of slavery on the one hand, and villainy on the other, as this writ of assistance is.

James Otis, Speech Against Writs of Assistance

James Otis was willing to oppose these terrible writs to his dying day. Sadly, the American people seem more than willing to roll over and accept them. The very justification for these rules, to search for crime, is proof of the fact that they are writs of assistance. Now Congress has lowered themselves to snoop through your records for anything as small as $600. Just how much of your money, paid in taxes, is being used to enslave you and your fellow Americans under such writs? A worst scenario would be if you don’t comply with these illegal writs, then the IRS threatens you with another violation of your rights protected under the Fourth Amendment: An audit.

Tax Audit

Few things strike terror in the heart of small business owners more than that dreaded letter from the IRS, telling you to provide records for a tax audit.

1. An examination of records or financialaccounts to check their accuracy.
2. An adjustment or correctionof accounts.
3. An examined and verified account.
4. A thorough examination or evaluation:

Audit – The Free Legal Dictionary

What no one seems to recognize is that the IRS is legally required, in order to get your records, to obtain a warrant. Even if a government actor has probable cause that you have committed a crime, there are only two ways they can perform such a search without your consent: With a warrant or with 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 or, if they have a “knock and announce” warrant, without knocking and waiting for the owner’s permission to enter. 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

An exigent circumstance is one were the situation is so urgent that a delay cannot be allowed. There must be an imminent danger for people, that evidence may be destroyed, or subject may escape. Government actors cannot simply claim an exigent circumstance. They must be able to articulate, before a judge, why the situation was so urgent as to not allow time for a warrant to be obtained.

Why is the need for a warrant so important? Just look at what a government actor must do in order to procure one.

… 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

Not only must the government have probable cause, but someone must, under oath or affirmation, show what the cause is and that it is real. This is important, since lying under oath is a criminal offense. Furthermore, the warrant must be specific about where a search may take place and what can be seized. In short, the government actor has the burden of proof that the search is reasonable. Compare that to the claims by Treasury Secretary Yellen and the IRS, that these searches are reasonable because they may find unpaid taxes. I think you’ll agree with James Otis that writs of assistance appear,

… to me the worst instrument of arbitrary power, the most destructive of English liberty and the fundamental principles of law, that ever was found in an English law book.

James Otis, Speech Against Writs of Assistance

Conclusion

You may have noticed when we looked at the IRS’s explanation of the 1099-K form that the $600 rule has been suspended for the 2022 calendar year. There are two things you need to realize. First, the $600 reporting rule is still in place for the 2021 calendar year. And second, the IRS has only postponed the new reporting requirement, not eliminated it.

On Dec. 23, 2022, the IRS announced that calendar year 2022 will be treated as a transition year for the reduced reporting threshold of $600.

Understanding Your Form 1099-K

That means we can expect this intrusion into our lives to reappear in 2023. For that, and many more reasons, I suggest every American familiarize themselves with two Amendments. First, as I’ve already quoted, the Fourth Amendment with its protections against unreasonable searches and requirements for warrants. Second, the Fifth Amendment, especially the protection about self-witness.

…nor shall be compelled in any criminal case to be a witness against himself…

U.S. Constitution, Amendment V

Courts have long recognized this right to extend not only to criminal cases, but to investigations. We’ve all heard the Miranda warning, which starts with the words “You have the right to remain silent.” Since any IRS audit could lead to criminal charges, I personally plan not only to keep my mouth shut, but avoid being a witness against myself, including voluntarily providing evidence from my papers. Granted, I am not a lawyer, so I would suggest you get some advice from one before your decide how you proceed if the need ever arises. As John Jay noted:

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

That way you will sooner recognize when your rights are being violated. Will you be prepared to defend and assert them?

© 2023 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

January 3, 2023

• Do you know the difference between a president and a king?
• In Federalist Paper #69, Alexander Hamilton discussed the difference between the two, and why the convention chose a President.
• How would you describe the men who have recently occupied the Oval Office? Do they look more like presidents or kings?

When the Framers were drafting the Constitution, they had several examples both for how to create laws and how to execute them. Would the President be an executive or a king? Read Article II and you’ll see we have an executive not a king. Is that how modern Presidents act though? Alexander Hamilton discussed this in Federalist Papers #69. Let’s look at The Real Character of the Executive, then decide for ourselves whether the current and recent occupants of the office were and still are worthy of it.

When Benjamin Franklin said they had given us a republic, if we could keep it, that statement was not rhetorical. Part of what makes us a constitutional republic is the separation of powers. We vested the lawmaking power in a Congress. We vested the judicial powers, and the deciding of controversies involving those laws, in the federal courts, but neither of those branches of government were empowered with the execution of those laws.

The executive Power shall be vested in a President of the United States of America.

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

Federalist Paper #69

Alexander Hamilton wrote about the real character of the executive in the proposed Constitution in what we now know as Federalist Paper #69.

The first thing which strikes our attention is, that the executive authority, with few exceptions, is to be vested in a single magistrate.

Federalist Paper #69

We often talk about the executive branch, which includes all of the departments and agencies created by Congress, Ultimately, however, the executive power is vested in a single person: The President of the United States.

That magistrate is to be elected for FOUR years; and is to be re-eligible as often as the people of the United States shall think him worthy of their confidence.

Federalist Paper #69

Until 1951, the President could serve as many terms as he could get elected. That changed after Franklin D. Roosevelt won four terms and his political opponents ran on never letting that happen again. Notice how Mr. Hamilton points out that the president would be eligible for as often as the people think him worthy. As I’ve frequently pointed out, the people do not and have never voted for President.

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

Since the function of the state legislatures is to represent the people of their state, We the People have a tremendous say in who is President, just through state legislatures rather than directly. This is different than the monarchy we came from.

In these circumstances there is a total dissimilitude between HIM and a king of Great Britain, who is an HEREDITARY monarch, possessing the crown as a patrimony descendible to his heirs forever;

Federalist Paper #69

The presidency is not a matter of heredity, but it seems we are getting awfully close to something similar. Joe Biden didn’t become President because he inherited it from his father, but from the Democratic Party. We have so embedded the two party system into our politics that the office of President seems to be more of a question which party’s heir will we choose rather than the choice of the people Mr. Hamilton spoke of. Of course, how we choose a President is almost as important as how we remove one.

The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law. The person of the king of Great Britain is sacred and inviolable; there is no constitutional tribunal to which he is amenable; no punishment to which he can be subjected without involving the crisis of a national revolution.

Federalist Paper #69

In the United States, the President can be removed from office on impeachment for, and conviction of, treason, bribery, high crimes, or misdemeanors. The only way to remove a monarch is a revolution. Today impeachment has become a political bludgeon used to intimidate one’s political opponent. In 1998 Bill Clinton was impeached for perjury and obstruction of justice, but was found not guilty in the Senate trial that focused on his philandering in the Oval Office. Donald Trump was impeached twice, first for abuse of power and obstruction of Congress, then for incitement of insurrection. None of these charges were supported by evidence, and with the possible exception of “incitement of insurrection”, are questionable examples of high-crimes, much less treason. The point is, impeachment has become a political tool rather than a method of reining in an out of control President.

The President of the United States is to have power to return a bill, which shall have passed the two branches of the legislature, for reconsideration; and the bill so returned is to become a law, if, upon that reconsideration, it be approved by two thirds of both houses. The king of Great Britain, on his part, has an absolute negative upon the acts of the two houses of Parliament.

Federalist Paper #69

The main difference between the constitutional office of President and a monarch are the limits on his power. The President can veto a bill, but he cannot nullify a law, at least not legally. On the other hand, a king has absolute power over not only the execution of law, but its creation.

Speaking of limits on the power of the Presidency, let’s talk about his role as Commander-in-Chief.

The President will have only the occasional command of such part of the militia of the nation as by legislative provision may be called into the actual service of the Union. The king of Great Britain and the governor of New York have at all times the entire command of all the militia within their several jurisdictions.

Federalist Paper #69

The President is only the commander-in-chief of the military when they are in actual service to the United States. Mr. Hamilton compares this to the powers of a king or governor. As the king is in command of the military at all times, the governor is the commander of the state’s militia.

The President is to have power, with the advice and consent of the Senate, to make treaties, provided two thirds of the senators present concur. The king of Great Britain is the sole and absolute representative of the nation in all foreign transactions.

Federalist Paper #69

The President does not set foreign policy. I know, that is probably not what you were taught in school, but the President doesn’t make agreements with foreign nations by himself. Any agreement a president makes that is not ratified by two-thirds of the Senate, is not the supreme law of the land and is not binding on the states, the people, or the rest of the federal government. The President’s need to work with the Senate goes beyond treaties.

The President is to nominate, and, WITH THE ADVICE AND CONSENT OF THE SENATE, to appoint ambassadors and other public ministers, judges of the Supreme Court, and in general all officers of the United States established by law, and whose appointments are not otherwise provided for by the Constitution. The king of Great Britain is emphatically and truly styled the fountain of honor. He not only appoints to all offices, but can create offices. He can confer titles of nobility at pleasure; and has the disposal of an immense number of church preferments.

Federalist Paper #69

The President can only make appointments with the advice and consent of the Senate. Not the confirmation of the Senate, but the advice and consent of it. The Senate is not supposed to be the rubber stamp for whoever holds the office of President. That would be the role of a king, not the President of the United States.

The [President] can confer no privileges whatever; the [King] can make denizens of aliens, noblemen of commoners; can erect corporations with all the rights incident to corporate bodies. The [President] can prescribe no rules concerning the commerce or currency of the nation; the [King] is in several respects the arbiter of commerce, and in this capacity can establish markets and fairs, can regulate weights and measures, can lay embargoes for a limited time, can coin money, can authorize or prohibit the circulation of foreign coin. The [President] has no particle of spiritual jurisdiction; the [King] is the supreme head and governor of the national church!

Federalist Paper #69

The President has limited and enumerated powers, while the King’s powers have no such limitation. Which brings me to a very important question.

Conclusion

If we look at the way recent President’s have acted, do they look more like the office created by Article II of the Constitution or the king we fought a war to break away from?

What answer shall we give to those who would persuade us that things so unlike resemble each other? The same that ought to be given to those who tell us that a government, the whole power of which would be in the hands of the elective and periodical servants of the people, is an aristocracy, a monarchy, and a despotism.

Federalist Paper #69

There are many today that claim that the President is the most powerful man in the world and has vast powers, but legally that is not true. We declared independence from a man with just such powers. That is why we not only delegated to the United States a limited and enumerated list of powers, but why we delegated most of those powers to Congress, not the President. Through our complacency we stood by while men assumed powers to which they were not entitled. In our ignorance, we also stood by while the Constitution was ignored and our rights trampled. And because we kept looking for someone else to save us, we have let down our Founding Fathers, we have deprived our children of their birthright as American citizens, and we continue to condemn ourselves to servitude, serfdom, and subjection. Unless and until we learn what those who gave us the Constitution said about it, we will continue our long march towards the destruction of freedom and liberty in America.

© 2023 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

December 26, 2022

• What is the role of Congress in counting the votes of the Presidential Electors?
• Is it treason for Congress to fail to investigate allegations of fraud in a presidential election?
• Does the Supreme Court have the legal authority to do anything about it?

We all indulge in wishful thinking from time to time. What would happen if that wishful thinking made it all the way to the Supreme Court of the United States? That may be the case with Brunson v. Adams, et al. Mr. Brunson has petitioned the Supreme Court to hear his case against 388 federal officers, including President Biden, Vice President Harris, former Vice President Pence and 385 members of the U.S. House and Senate. Does his case have a constitutional leg to stand on or is it just wishful thinking?

Mr. Brunson’s case is audacious, and not just because of who the defendants are. He claims that a unique breach of national security occurred and that the only redress for this grievance is the removal from office of the President, Vice President, and most of the members of the House and Senate. What charge could Mr. Brunson bring with such scope? Does the Supreme Court have the legal authority to remove these office holders? What would be the consequences if they do?

Oath of Office

This action is against 388 federal officers in their official capacities which include President Joseph Robinette Biden Jr, Vice President Kamala Harris, Speaker of the House Nancy Pelosi and former Vice President Michael Richard Pence (“Respondents”). All the Respondents have taken the required Oath to support and defend the Constitution of the United States of America against all enemies, foreign and domestic, and as such they are liable for consequences when they violate the Oath of Office.

Brunson v. Adams, et al. – Petition For Certiorari

The Constitution requires that all legislators, executive, and judicial officers at both the state and federal level, are to be bound by oath or affirmation to support the Constitution.

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution;

U.S. Constitution, Article VI, Clause 3

This is codified in U.S. Law by 5 USC §3331.

An individual, except the President, elected or appointed to an office of honor or profit in the civil service or uniformed services, shall take the following oath: “I, AB, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”

5 USC §3331

Mr. Brunson claims that the respondents were warned and asked to investigate an attempt by “a highly covert swift and powerful enemy” to destroy the Constitution of the United States. He further claims that “Respondents purposely thwarted all efforts to investigate this, whereupon this enemy was not checked or investigated, therefore the Respondents adhered to this enemy.”

Because of Respondents intentional refusal to investigate this enemy, Petitioner Raland J Brunson (“Brunson”) brought this action against Respondents because he was seriously personally damaged and violated by this action of Respondents, and consequently this action unilaterally violated the rights of every citizen of the U.S.A. and perhaps the rights of every person living, and all courts of law.

Brunson v. Adams, et al. – Petition For Certiorari

On January 6, 2021, the 117th Congress held a proceeding and debate in Washington DC (“Proceeding”). This Proceeding was for the purpose of counting votes under the 2020 Presidential election for the President and Vice President of the United States under Amendment XII.

Brunson v. Adams, et al. – Petition For Certiorari

I want to take a closer look at this statement. First of all, Congress did not hold a proceeding or debate, they were assembled, as required by the Twelfth Amendment, to witness the counting of the votes for President and Vice-President. While most of those reading this probably know already, these are the votes that the presidential electors appointed in each of the 50 states and the District of Columbia cast on December 14th, 2020, not any vote you may have cast on November 3rd of that year. During this “proceeding” over 100 members of U.S. Congress claimed factual evidence that the said election was rigged.

The refusal of the Respondents to investigate this congressional claim (the enemy) is an act of treason and fraud by Respondents. A successfully rigged election has the same end result as an act of war; to place into power whom the victor wants, which in this case is Biden, who, if not stopped immediately, will continue to destroy the fundamental freedoms of Brunson and all U.S. Citizens and courts of law.

Brunson v. Adams, et al. – Petition For Certiorari

I’m not sure who Mr. Brunson claims is the enemy. Is it the members of Congress who made the claim or the claim itself? Or is it the members of Congress who he claims refused to investigate? That would be weird, since Mr. Brunson also claims that these members of Congress gave aid and comfort to this mysterious enemy.

Due to the uniqueness of this case, the trial court does have proper authority to remove the Respondents from their offices under 18 U.S. Code § 2381, which states, “Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States.”

Brunson v. Adams, et al. – Petition For Certiorari

How does one give and and comfort to themselves? Let’s look at these claims one by one.

Treason

Is the failure to act on a credible claim of criminal activity treason? Is it treason not to act on a claim if it comes from Congress? Is it an act of fraud treason? Let’s start by defining treason. Under the Constitution of the United States, treason is defined by Article III, Section 3:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.

U.S. Constitution, Article III, Section 3

Did the respondents adhere to an enemy of the United States, as Mr. Brunson claims?

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

While we may have private enemies, the Constitution would be looking at a public enemy, one who is at war with the United States. Congress has not declared war since 1941. While there are plenty of nations or parties that hate the United States and would even attempt to injure this country, is that the enemy the drafters and ratifiers of the Constitution were thinking of?

Removal From Office

A court adjudicating that the Respondents, who have taken the Oath of Office, to be incapable of holding their offices or who have adhered to a domestic enemy, means nothing without such removal of office.

Brunson v. Adams, et al. – Petition For Certiorari

Does the Supreme Court have the authority to remove someone from office? There are only two clauses in the Constitution that authorize the removal of a sitting elected representative.

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

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

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

U.S. Constitution, Article II, Section 4

The Constitution does not delegate to the courts the power to remove someone from federal office. Only the representatives of the people and the states have such power. It may seem to Mr. Brunson that being found ineligible for office without removal would mean nothing, but that does not make it legal.

Furthermore, Brunson’s allegations against Respondents’ adhering to a domestic enemy, and committing acts of fraud are not protected by any kind of legislation of jurisdictional immunity. Essentially, acts of Congress cannot protect fraud, nor protect the violation of the Oath or that give aid and comfort to enemies of the United States Constitution or America as alleged in Brunson’s complaint against the Respondents.

Brunson v. Adams, et al. – Petition For Certiorari

Mr. Brunson may be correct that Congress cannot pass a law granting them immunity, but the Constitution already has one in Article I, Section 5, Clause 2, as I’ve already quoted.

It is an uncontestable fact that the Respondents committed fraud and treason breaching our national security (as factually alleged in Brunson’s complaint), thus adhering to an domestic enemy that continues to breach our national security at an alarming rate on a daily basis.

Brunson v. Adams, et al. – Petition For Certiorari

I’m not sure that the facts presented so far show that it’s incontestable that the respondents committed fraud, much less treason. And the repeated claims that there is an as yet unnamed domestic enemy does not help Mr. Brunson’s claim in my mind.

Brunson’s complaint alleges fraud, violations of the Oath of Office and touches on acts of treason committed by the Respondents. These serious offenses need to be addressed immediately with the least amount of technical nuances of the law and legal procedures because these offenses are flowing continually against Brunson’s liberties and life and consequently is a continual national security breach.

Brunson v. Adams, et al. – Petition For Certiorari

Mr Brunson’s complaint may allege fraud, violations of the oath of office, and touch on acts of treason, but so far the evidence of that is quite flimsy.

Voting is the greatest power an individual can exercise in a Republic; it is Brunson’s personal voice and the way he can protect his personal constitutional protected rights and the U.S. Constitution. … When the allegations of a rigged election came forward the Respondents had a duty under law to investigate it or be removed from office.

Brunson v. Adams, et al. – Petition For Certiorari

Check the Constitution, the supreme law of the land. There is no duty or even a power for Congress to investigate crimes; that is a job for the executive branch. In fact, a look at the Twelfth Amendment shows that Congress only has one job in this situation: Witness the counting of the votes for 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

So where does Mr. Brunson claim that Congress has a duty to investigate election fraud? I have looked, and I do not see that as a power delegated to the United States, much less Congress.

Conclusion

The efforts made, as stated in the complaint, that avoided an investigation of how Biden won the election, is an act of treason and an act of levying war against the U. S. Constitution which violated Brunson’s unfettered right to vote in an honest and fair election and as such it wrongfully invalidated his vote.

Brunson v. Adams, et al. – Petition For Certiorari

To me, this is an interesting statement and possibly evidence, that Mr. Brunson is unfamiliar with the actual language of the Constitution. Mr. Brunson claims that Congress avoided an investigation of how Biden won the election, but based on presidential electors the states appointed, there isn’t any real question of how Joe Biden was elected. While there is evidence that at least five (5) states appointed electors in a manner other that the one determined by their state legislature, I’m not sure that’s what Mr. Brunson is alluding to here. And if failure to investigate is an act of treason, then we should be lining up pretty much every law enforcement officer and member of the U.S. and District Attorney’s offices.

Why did the Supreme Court ask for additional information as part of this petition? I don’t know, I wasn’t part of the discussion. As I mentioned in the beginning, Mr. Brunson makes some audacious claims. It could be that the court wanted more information before deciding if there was anything the could legally review.

From my review, the problems with Mr. Brunson’s complaint are not only many, but as outrageous as the audacity of his claims. Mr. Brunson claims Congress has a legally binding investigatory power not defined in the Constitution of the United States. We have an enemy with only vague claims of identity. We have failure to follow a person’s oath of office referred to as treason, something not supported by the Constitution. We have Mr. Brunson calling for a redress that the courts cannot give him and the removal by the court of the President , Vice-President, and members of Congress. And finally, we have the desire of Mr. Brunson for the courts to install a new President and Vice-President based solely on the claims that Congress did not investigate crimes committed at a state level in state elections. Based on all this, who is trying to levy war against the Constitution of the United States?

© 2022 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

December 19, 2022

• What is a Central Bank Digital Currency and how would they work?
• How would a CBDC be different that Bitcoin, Etherium, or other cryptocurrencies?
• Would an American CBDC been an economic boom, or a liberty bust?

In every dystopian novel or movie I can think of, there is either an oppressive government or a government not functioning at all. As we travel this road of life, we should be asking ourselves if any action we take will lead to more liberty or more control? Take for example Central Bank Digital Currencies, or CBDCs for short. Would this new currency allow Americans more liberty or would it give government more control of our lives? To understand this, we first need to look at what CBDCs are. Then we need to answer a couple of questions. First, would an American CBDC be constitutional? Second, let’s look at this proverbial digital coin and decide for ourselves. Do the benefits outweigh the costs?

What is a Central Bank Digital Currency?

The main difference between digital currencies and what most people think of as currency, is physical existence. The current dollar is a physical currency. You can hold it in your hand, either as coins or bills, trade it with others, or store it for later use. A digital currency only exists in a digital form, meaning they’re only numbers on a ledger somewhere, and can only be traded via computer or other electronic device like a smartphone. Digital currencies should not be confused with payment apps like Venmo or PayPal or with credit or debit cards. All current payment options, whether digital or physical, are trading in “physical” dollars created by the Federal Reserve, though that’s a good place to get an understanding of how an American CBDC would work.

In today’s economy, the Federal Reserve, America’s central bank, creates money digitally. They don’t create a digital currency, but they create money by making changes to a digital ledger, then buying bonds from the U.S. Treasury in the same amount. In effect, the Fed creates money to loan to the federal government through the U.S. Treasury. This money then enters the economy through the reserve banks, where other banks can borrow at what is known as the Federal Funds Rate. This is the interest rate we keep hearing about when the news reports the Fed is raising or lowering interest rates. When you go to your local bank for a loan, they give you the money from their assets, and if necessary, borrow additional money from the federal reserve to keep themselves liquid. The important difference between the money the Fed creates out of thin air and the digital currency we’ve been talking about is, you can always convert your money into physical cash, which you cannot do with a digital currency.

How Did We Get Here?

When I was a child, living in New York City, I was not allowed to leave the house without a dime in my pocket. (Yes, a payphone in New York City was only a dime when I was a child!) This is an example of physical currency we’re all familiar with. Just like any physical currency, it has its drawbacks. It can be lost or stolen, and it can be quite inconvenient when dealing with large sums of money or when trying to get change from that teenager working behind the counter. When I was a child, certain businesses would extend credit to good customers to make life easier. Don’t worry about carrying cash or making change. Simply charge it to your account, then pay the bill at the end of the month. This, too, was inconvenient, since you had to pay each business separately, and it didn’t work at places where you had not previously set up an account. Then credit cards entered the scene.

The first credit cards, Diners Club, were given out in 1950 (before I was even born), and were only accepted at a handful of restaurants around New York City. This idea exploded, and today there are hundreds, if not thousands, of companies offering credit cards. On its face, a credit card is a simple thing. When you purchase something on a credit card, the credit card company pays that business, minus a fee. Then, at the end of the month, you get a bill from the credit card company showing all of the charges you have made, and you write them one check. This is quite a convenience, especially in today’s mobile and online society. After all, you can’t exactly put a bunch of twenty dollar bills into your computer when you purchase something from Amazon. I still remember, when I first entered the business world, my father recommending I get an American Express card. They are accepted all over the world, and they have no fixed spending limit, which is very helpful when you have to fly to San Jose, CA, with very little notice. Like anything else though, credit cards have their downside. The fees charged by the merchant banks that process the credit card transactions can become quite expensive, driving the cost of goods higher. I still remember when gas stations used to charge different prices whether you paid in cash or with a charge. The second problem was that these card companies were extending credit to their users. This made it harder for young people, just entering the market with no credit history, to get a credit card. Enter the debit card.

In 1966, the Bank of Delaware issued the first debit card. It works similar to a credit card, except the company doesn’t extend you credit for the purchase, they deduct it directly from you bank account. For that reason, debit cards are generally issued by banks or other institutions where you keep your money. This direct withdrawal from you account solved the credit issue, but not the cost of accepting these cards. However, their convenience has led to the widespread adoption not only of accepting credit and debit cards, but using them instead of cash even for a small purchase. Credit and debit cards are not a form of digital currency. When you use “plastic” to pay for things, the currency is still dollars, yen, or British pounds. Also, you are doing business with your bank or credit card company, not the government. If you’ve ever looked at the little terminals you use for a card purchase, you’ve seen “Authorizing” pop up on the screen. This is the terminal contacting the business’ payment center to make sure they will get their money. If you don’t have sufficient funds or credit on your account, your purchase will be declined. The ubiquity of the use of credit and debit cards have helped create the situation where digital currencies can flourish. The other phenomenon leading to this push for CBDCs was the explosion of cryptocurrencies.

Cryptocurrencies

In response to the lax monetary policies created by Congress, people have always looked for ways to protect themselves from the volatility and inflation of government fiat currencies. (A fiat currency is one not backed by physical assets such as gold or silver.) The problem is, most alternatives involve physical assets which have the same problems as cash. Which gave rise to the cryptocurrency. In 1983, cryptographer David Chaum proposed a form of electronic cash, a token currency that could be transferred between individuals safely and privately. Chaum founded DigiCash in 1990 and created the first cryptographic currency called eCash. Although DigiCash went bankrupt in 1998, the encryption tools played an important role in the development of today’s cryptocurrencies. Not all digital currencies are cryptocurrencies. The Bitcoin and Ethereum most people are familiar with, use cryptography to both secure and verify each transaction. Cryptography is also used to create and manage the currency itself.

The biggest advantage of cryptocurrencies to date is that they do not involve any government entities. When you make a digital transaction using a credit or debit card, you are still transferring dollars, created and managed by the federal government. Not so with most cryptocurrencies. Attempts have been made to create a cryptocurrency based on the U.S. dollar, but it was unsuccessful. There are several practical disadvantages to cryptocurrencies. First, the cost of creating the currency is quite high, which helps lead to the second disadvantage, volatility. If you wish to trade in cryptocurrencies, you better have nerves of steel as the value of a single Bitcoin or Ethereum token can change by thousands of dollars in a single day, or even in a single hour. The last disadvantage I want to bring up today is more technical. Every cryptocurrency I know of uses a blockchain as its ledger. The cryptography necessary for the blockchain to work requires a significant amount of computing power. For this reason, anyone using a blockchain has to balance how frequently the blockchain updates with the cost of the computing power needed for those updates. For that reason, most large scale blockchains I’m familiar with only update every 5-15 minutes. Most people I know don’t want to be standing in the checkout line at the grocery store for five minutes while their cryptocurrency transaction gets posted to the blockchain.

From a government point of view, cryptocurrencies pose a problem. The government can’t see what’s going on. Most of you probably know that any transaction over $10,000 are reported by the bank to the IRS. You may even know that it is considered a federal crime to structure your deposits to remain under the $10,000 threshold. Recently, the IRS has been warning people that transactions over $600 through online payment facilities. like PayPal or Venmo, will also be reported to the IRS. All of this under the guise of preventing money laundering and financial terrorism. That means that the federal government is surveilling as many of your financial transactions as they think they can get away with, but what happens if cryptocurrencies find a way to mitigate their disadvantages or people just get fed up with the ongoing surveillance state? They may start doing business in crypto, and leave ole’ Uncle Sam in the dark. Enter Central Bank Digital Currencies.

American Central Bank Digital Currency

Before getting into the details, there’s a question we need to answer. Would an American CBDC be constitutional? Under Article I, Section 8, Clause 5 of the Constitution, Congress has the power,

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

U.S. Constitution, Article I, Section 8, Clause 5

Like so many words in the English language, their meaning is dependent on the context and on the part of speech. In the phrase, “To coin Money”, the word “coin” is a verb, meaning:

1. To stamp a metal, and convert it into money; to mint.
2. To make; as, to coinwords.
3. To make; to forge; to fabricate; in an ill sense; as, to coina lie; to coin a fable.

Coin (verb), Webster’s 1828 Dictionary

That means that Article I, Section 8, Clause 5 delegates to Congress the power to make money, including a digital currency. There are some real advantages to a digital currency. Much like a credit or debit card, it would be easy and convenient to use. Since most of our credit and debit cards have chips on them, I wouldn’t be surprised if early version of an American digital currency would be issued on a the exact same type of card. Of course, there would also be an app for your phone, but issuing currency on a card would both be familiar and help calm any fears many people would have about requiring the use of a smartphone or smartwatch for all of your transactions.

Conclusion

Since a digital currency would not have the cryptographic overhead of a cryptocurrency, the transactions would be faster. Not just in person, but for anything you pay for, like mortgages, utility bills, or buying a car from a neighbor. No worries about the check bouncing or having to wait days for it to clear. Digital currencies would also be cheaper, with no transaction fees to be paid. While some proponents point to saving money on wire transfers, that’s something I don’t think most Americans use regularly, so this points to the largest disadvantage of CBDCs.

When you use a credit card, debit card, payment app, or wire transfer, you are dealing with a bank or credit card company. When you use a CBDC, you are dealing directly with the Federal Reserve. That’s right, each and every transaction you make with a CBDC will be recorded by the Federal Reserve, and therefore be known to the federal government. Remember when you saw “Authorizing” on your payment terminal? Well, with a credit card, debit card, or payment app, that was the system checking with your bank or credit card to authorize the purchase. What happens though, when it’s the federal government that’s doing the authorizing?

Do you remember when Canadian Prime Minister Justin Trudeau froze the bank accounts of truckers for peacefully protesting COVID lockdowns? Proponents of CBDCs claim that these concerns can be mitigated by not making their use mandatory. Now take a look at recent history. Do you really believe that governments won’t outlaw the use of other currencies? Back in 1971, then President Richard Nixon ordered his Treasury Secretary John Connally to suspend the ability of foreign banks to exchange dollars for gold. This was the end of dollars being attached to the price of gold, or as it’s more commonly known, the gold standard. What would stop a future President from simply issuing an executive order to prevent federal departments from accepting or paying with anything other than an American digital currency? Based on recent actions in response to COVID-19, I would expect just about any President to issue an executive order demanding that companies with more than 100 employees only do business in “Digital Dollars”.

Now imagine you are making a purchase using your “Digital Dollars”. That “Authorizing” message has new meaning, as you wait to see if the federal government will authorize your purchase. Unfortunately, that won’t be the end of it. Suppose the Federal Reserve decides to implement a negative interest rate. How can you protect your money from these federal raiders if you are required to keep your money in accounts they hold? Imagine going to purchase something only to find that some percentage of your bank account disappears every month. Imagine the federal government decides to fine you for misinformation. You know, like PayPal tried. No trial, no due process, just money gone from your account. And in the midst of this, you have no place to go. Sure, you could probably trade in gold and silver on the black market, but wouldn’t you expect Congress to pass a law calling that money laundering or financial terrorism?

Should the United States implement a CBDC, then the failure of the republic would be complete. All it would take is the Fed refusing to honor cash and everyone would be forced to do business with one bank, the Federal Reserve. We would look more like Communist China than the country created by the Framers of the Constitution. This experiment in self government will have failed, and the answer Benjamin Franklin’s gave to “what kind of government have you given us?” will haunt our ears.

A Republic, if you can keep it. – Benjamin Franklin

© 2022 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

December 14, 2022

• How does same-sex marriage impact your marriage? But morphing acceptance into extortion.
• Can government force private agencies they work with to promote a government message?
• Does the recent orders from the District Court in the case New Hope v. Poole show a restoration of religious liberty in America?

I hear this question all the time: “How does homosexual marriage impact your marriage?” This platitude has a small grain of truth, but it only works if you ignore the rest of reality. It’s not that recognizing other marriages changes your own, but how allowance morphs into coercion and then grows into extortion.

For almost a dozen years there’s been a feud between the State of New York’s Office of Children and Family Services (OCFS) and New Hope Family Services (New Hope). New Hope was granted a perpetual corporate authorization as an adoption agency by OCFS. However, between January 2011 and November 2013, OCFS created policies and rules that would require that New Hope place children with couples that would violate their religious beliefs. The suit New Hope filed in December of 2018 has been through ups and downs. With the latest court orders, it appears New Hope is currently enjoying the protection of their religious liberty. Will it be challenged again?

Until 2010, New York law only allowed adoption by a married heterosexual couple. In January 2011, OCFS sent adoption agencies a letter to bring their policies in line with New York’s Domestic Relations Law. This was followed up in July with another letter stating that “discrimination based on sexual orientation in the adoption study assessment process” was prohibited. In November 2013 OCFS promulgated a rule which prohibited “discrimination and harassment against applicants for adoption services on the basis of race, creed, color, national origin, age, sex, sexual orientation, gender identity or expression, marital status, religion, or disability.” This rule would require that New Hope place adoptive children with couples other than a traditional heterosexual married couple, which violated their religious beliefs. When an unmarried or same-sex couple contacted New Hope seeking to adopt a child, the couple were informed that New Hope could not provide them with adoption services and offered to provide them with referrals to other agencies. In 2018, OCFS conducted a comprehensive review of New Hope, and an OCFS employee advised them that its referral policy was in violation of OCFS policies. New Hope declined to change its referral policy. OCFS informed New Hope that if it failed to bring its policies into compliance with regulations, they would lose approval for their adoption program. New Hope filed suit.

Compelled Speech

In reading the order of U.S. District Judge Mae D’Agonsino, it appears New Hope based their suit on a violation of the First Amendment.

At the heart of the First Amendment’ is the principle ‘that each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence…. Consistent with this principle, freedom of speech means that the ‘government may not prohibit the expression of an idea,’ even one that society finds ‘offensive or disagreeable. … For much the same reason, [the] government also cannot tell people that there are things ‘they must say.

New Hope Family Services, Inc. v. Sheila J. Poole, Acting Commissioner for the OCFS

I’ve talked until I’m blue in the face about how actors under state law cannot violate the First Amendment. After all, the first five words point out that it applies to U.S. law.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. 

U.S. Constitution, Amendent I

This was a violation of freedom of speech, which is protected in New York by Article I §8 of the New York State Constitution:

Every citizen may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press

New York Constitution, Article I §8

OCFS claims that the placing of children with adoptive families is government speech not private, and therefore does not trigger First Amendment protections. Is a state regulation, requiring adoption agencies place children with couples in violation of the beliefs of those adoption agencies, a violation of free speech?

Thus, when [the] government ‘direct[ly] regulat[es] … speech’ by mandating that persons explicitly agree with government policy on a particular matter, it ‘plainly violate[s] the First Amendment.

New Hope Family Services, Inc. v. Sheila J. Poole, Acting Commissioner for the OCFS

This opinion had already been confirmed by the Second Circuit Court of Appeals.

When it examined the government speech issue earlier in this litigation, the Second Circuit concluded that nothing in the pleadings suggested that there was expressive conduct or other speech engaged in by New Hope in the course of providing adoption services that constituted government speech.

New Hope Family Services, Inc. v. Sheila J. Poole, Acting Commissioner for the OCFS

OCFS now claims it has evidence sufficient to change the opinion of the Second Circuit, but the judge does not agree.

Accordingly, the Court holds that none of New Hope’s expressive conduct or other speech constitutes government speech.

New Hope Family Services, Inc. v. Sheila J. Poole, Acting Commissioner for the OCFS

However, OCFS does bring up an interesting point.

OCFS also continues to argue that Section 421.3(d) does not compel or prohibit any speech.

New Hope Family Services, Inc. v. Sheila J. Poole, Acting Commissioner for the OCFS

Let’s set aside the position of OCFS that regulations regarding the placement of adopted children is government speech What about the question of compelling agreement with government policy? Is regulation of the placement of children a form of speech?

Freedom of Speech or Religion?

Looking at the definition of “speech” at the time of the ratification of the First Amendment we find:

1. The faculty of uttering articulate sounds or words, as in human beings; the faculty of expressing thoughts by words or articulate sounds. speech was given to man by his Creator for the noblest purposes.
2. Language; words as expressing ideas. The acts of God to human ears cannot without process of speech be told.

SPEECH – Webster’s 1828 Dictionary

After some thought, I can see an argument for compelled speech. After all, those who work for, and by definition represent New Hope, are expressing thoughts by their words. By working with same-sex and unmarried adoptive couples, they must express ideas that are contrary to their beliefs. If we are to follow Occam’s Razor, there is a much simpler answer.

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

New York Constitution, Article I §3

Those who own, run, and are employed by New Hope, have a religious profession that a married heterosexual couple is the only proper home for adopting a child. According to the New York Constitution, they cannot be discriminated against because of that religious profession.

Discrimination

I’ve certainly heard it often enough: Why should religious people be allowed to discriminate against same-sex marriage? It seems those who ask that question never seem to consider the other side. Why should same-sex couples be allowed to discriminate against those who disagree with them? It’s not like New Hope refused to interact with a couple with whom they could not, with a clear conscience, place a child. They expressed their position and offered the couple other agencies who would be able to place a child with them. If New Hope were the only adoption agencies in the state I might consider this discrimination against a same-sex couple, but that is not the case here. There are plenty of adoption agencies that will place children with same-sex or unmarried couples. Why should those couples force New Hope to be one of them? It appears that while prejudice and discrimination are two sided, most people only consider their point of view.

Conclusion

Which leaves us, for now, with Judge D’Agostino’s order.

After careful review of the record, the parties’ arguments, and the applicable law—in particular the Second Circuit’s prior decision in this matter—the Court hereby

ORDERS that OCFS’ motion for summary judgment (Dkt. No. 74) is DENIED; and the Court further

ORDERS that New Hope’s motion for summary judgment (Dkt. No. 75) is GRANTED; and the Court further

ORDERS that OCFS is ENJOINED from enforcing 18 N.Y.C.R.R. § 421.3(d) insofar as it would compel New Hope to process applications from, or place children for adoption with, same-sex couples or unmarried cohabitating couples, and insofar as it would prevent New Hope from referring such couples to other agencies;

New Hope Family Services, Inc. v. Sheila J. Poole, Acting Commissioner for the OCFS

The court finds for New Hope and OCFS is enjoined from enforcing the regulation requiring New Hope to place children with same-sex or unmarried couples.

I guess I’ve gotten used to seeing courts come to the right decision in their own way, even if it seems twisted and convoluted. The question for me is, will this new-found respect for the rights of individuals and organizations to determine who they will do business with permeate throughout the federal judicial system? After all, the facts of this case are little different than the Masterpiece Cake Shop or the Arlene’s Flowers cases, or even the upcoming case 303 Creative case recently heard by the Supreme Court. They all involve the state compelling people to act contrary to their conscience and religious beliefs. I guess we’ll just have to wait and see if the protection of rights, on both sides of the same-sex divide, will be a priority.

© 2022 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

December 6, 2022

• How much of your money does the federal government spend on things not authorized by the Constitution.
• Beyond the money, what are the other costs of the fact most Americans don’t know what the Constitution actually says.
• How would your life be different if you spent some time learning more about the supreme law of the land?

Here at the Constitution Study, we spend a lot of time discussing the legal and societal cost of ignoring the Constitution. Have you ever considered the financial costs though? Sure, we all complain about the size of government, usually around tax season. Of the trillions of dollars spent every year though, how much of it is spent on unconstitutional government agencies and programs? Let’s take some time and look at the 2023 budget for the government of the United States, see how much is being spent on these agencies that do not legally exist, and consider the costs of our lack of constitutional literacy.

I don’t know anyone who enjoys creating a budget. It’s boring, tedious, and generally frustrating. However, as a much younger man, I learned the importance of knowing where the money was coming from and where it was going. So while it may not be fun, budgeting is an important part of fiscal responsibility. Which perhaps explains why the federal government is so bad at it?

The other problem I see with understanding federal spending, is the fact that most people don’t deal with large numbers very well. Telling someone a car costs $50,000 is one thing. Telling them it will cost $1,000 a month though, and they seem to do a better job deciding if they can afford it or not.

With these two limitations in mind, I want to take a look at the 2023 federal budget and see if we can’t make some sense of what our employees are doing with our money. Before we discuss the dollars though, I need to make some sense about government spending.

Government Spending

There are two clauses in the Constitution that we need to understand before we dive into the money. First is Article I, Section 8, Clause 1:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

U.S. Constitution, Article I, Section 8, Clause 1

The first thing we need to understand is that Congress can only legally collect taxes to do three things. First, pay the debts of the United States. Second, provide for the common defense of the United States. Third, provide for the general welfare of the United States. That’s a capital “U”and a capital “S”, making it a proper noun. It’s the very same proper noun, used in the second clause, we need to understand The Tenth Amendment.

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

U.S. Constitution, Amendment X

Unless a power is delegated to the United States by the Constitution, it doesn’t belong to it. I know it sounds simple, but it’s the general misunderstanding of these two clauses that leads to so many of the problems in the federal government.

According to Article I, Section 8, Clause 1, unless Congress is paying the debts, providing for the common defense, or the general welfare of the union called the United States, they are not allowed to fund it with taxes, duties, imposts, or excises. And since these different forms of taxes are the only way Congress has of collecting money, it means they cannot legally pay for these things.

By now, someone is asking, “But what is the general welfare of the United States?”

The name United States was given to the union of states in the Articles of Confederation.

Article I. The Stile of this confederacy shall be, “The United States of America.”

U.S. Articles of Confederation

The word “stile” was another spelling of the word “style”. Among the many senses of that word we find:

Title; appellation; 

Style – Webster’s 1828 Dictionary

So the confederacy of states formed in 1776 was titled, “The United States of America”. This title was retained when the new union was formed under the Constitution in 1787,

Why is all this important? Because the General Welfare clause does not give power to Congress to collect taxes on anything they think is generally beneficial. James Madison made this point while debating the Cod Fishery Bill in 1792.

It is to be recollected that the terms “common defense and general welfare,” as here used, are not novel terms, first introduced into this Constitution. They are terms familiar in their construction, and well known to the people of America. They are repeatedly found in the old Articles of Confederation, where, although they are susceptible of as great a latitude as can be given them by the context here, it was never supposed or pretended that they conveyed any such power as is now assigned to them. On the contrary, it was always considered clear and certain that the old Congress was limited to the enumerated powers, and that the enumeration limited and explained the general terms. …

If Congress can employ 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 a point teachers in every state, county, and parish, and pay them out of their 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 of the application of money, and might be called, if Congress pleased, provisions for the general welfare.

Debate on the On the Cod Fishery Bill, granting Bounties, House of Representatives, February 3, 1792

The Constitution is very specific, Article I, Section 8, Clause 1 limits Congress to collecting taxes for the general welfare of the United States, not the several states nor the people. It should be quite obvious that this power is applicable only to the central government and the property it owns (not that it has been much of a hindrance to Congress.)

Furthermore, since the Tenth Amendment limits the power of the United States to those delegated to it by the Constitution, Congress cannot claim the authority to do anything outside of those limited and enumerated powers.

2023 Spending

I want to focus on federal spending rather than the federal budget. The reason is quite simple; budgets can be easily manipulated. For example, the federal government’s 2023 budget is approximately $6.1 trillion, but according to USASpending.gov, a look at the budget resources by agency adds up to over $11 trillion.

Remember when I said most people don’t process large numbers very well? Trillions are very large numbers. A trillion is a thousand billion, or a million millions, but that probably doesn’t help very much. Consider this, if you were to start counting seconds, it would take you over 31,000 years to count to a trillion seconds. Or if you were to stack $1 trillion in $100 bills, the stack would be over 630 miles tall, which is more than twice as high as the International Space Station.

If all of that seems overwhelming, consider this: There are approximately 330 million people in America today. If you were to divide $1 trillion equally across all of the American people, that means each one would receive approximately $3,000 each. Turn that around and you see that if we were to spread the federal budget equally, each American would be responsible for over $18,000. Compare that to the budgetary resources for the federal agencies and we see that each American is responsible for over $33,000. And that’s just for federal spending.

Cost of Our Constitutional illiteracy?

Which brings me back to the original question. What is the cost of our constitutional illiteracy? I took the spending information on USASpending.gov and broke down the agencies into those that are exercising powers delegated to the United States, those that definitely are not, and those that might be. USASpending.gov lists 108 individual agencies. Care to guess how many are exercising powers definitively delegated to the United States? 12. That’s right, only 12 of the 108 agencies listed in USASpending.gov are definitely exercising powers delegated to the United States. Another 15 are possibly exercising powers delegated to the United States, but are most likely going far beyond that authority. What are the costs of these 27 agencies? Again, according to USASpending.gov, the 12 legitimate agencies cost approximately $4.3 trillion and the 15 agencies that may be exercising legitimate powers another $485 billion, for a grand total of approximately $4.8 trillion each and every year, which happens to be the revenue the federal government brought in during fiscal year 2022.

Which leaves us with the 800 pound gorilla (or in this case, the $6 trillion dollar gorilla), in the room. The remaining 81 departments have an almost $6.5 trillion in budgetary resources. That means almost 60% of federal spending goes to departments that are not authorized by the Constitution. With the national debt over $31 trillion, just think what a difference it would make if the federal government only spent money on what it was legally authorized to?

There is, though, a more fundamental problem than the money. As the Tenth Amendment states, powers not delegated to the United States don’t belong to it. Yet Congress passed legislation to create these departments, even though they are not authorized by the Constitution. What does this mean?

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

If Chief Justice Marshall is correct and an act of the legislature repugnant to the Constitution is void, then the acts of Congress that created these agencies are also void. Therefore these agencies do not legally exist. And if these agencies do not legally exist, then any money appropriated for them was done fraudulently. We call that embezzlement.

Conclusion

So what is the actual cost of our constitutional illiteracy? Yes, it’s over $6 trillion dollars of money embezzled from the American people each and every year. It is also the volumes of rules and regulations, all considered to have the force of law even though they come from an agency that does not legally exist. Probably the most damaging cost of our constitutional illiteracy is the position of servitude to the federal government the American people have assumed. Of all the things we give up because we won’t read and study the Constitution, our liberty seems to be of the greatest value. As Samuel Adams said:

The liberties of our Country, the freedom of our civil constitution are worth defending at all hazards: And it is our duty to defend them against all attacks.

We have receiv’d them as a fair Inheritance from our worthy Ancestors: They purchas’d them for us with toil and danger and expence of treasure and blood; and transmitted them to us with care and diligence.

Samuel Adams, Essay, written under the pseudonym “Candidus,” in The Boston Gazette (14 October 1771)

Now that we know the costs of our constitutional illiteracy, will you join me in doing something about it? While the problem may seem daunting, the solution is simple.

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.

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

You can find out more about Mr. Jay’s admonition, along with finding tools and other people to help, by visiting The Constitution Study. If you have any questions, you can ask them there. I hope this will be the first step you take to start rectifying not only any constitutional illiteracy you may have, but reducing their costs as well.

© 2022 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

November 28, 2022

• Does the Respect for Marriage defend marriage or is it an attempt to change it?
• Does Congress have the constitutional authority to define marriage?
• What can We the People and the states do in the face of this legislation?

There is legislation working its way through Congress called the Respect for Marriage Act. Does this act truly respect marriage? Let’s face it, the definition of marriage has been changing for centuries. Marriages used to include polygamy and other relationships that are no longer legal. Does this act respect the institution of marriage, change it to make it better, or merely open the door to its degradation? Does Congress even have the legal authority to pass such legislation?

———

The Respect for Marriage Act was introduced to the House of Representatives by Rep. Jerry Nadler on July 18th, 2022. Let’s start by looking at the Constitutional Authority Statement, which is required by House Rule XII.

>>>

Congress has the power to enact this legislation pursuant
to the following:
Article IV, Section 1
Fifth Amendment, Section 5
Fourteenth Amendment, Section 5
Article I, Section 8, Clause 18

———

Mr. Nadler claims four separate parts of the Constitution authorizes Congress to pass such legislation. Let’s look at them in reverse order.

Article I, Section 8, Clause 18 is the Necessary and Proper Clause.

>>>

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. 

———

If Congress can show that the power they are attempting to legislate is vested by the Constitution into the government of the United States, then the legislation is valid. If however, there is no such power delegated in the Constitution, then the act is void. At least according to the Supreme Court in the Marbury v. Madison opinion..

>>>

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.

———

So this is pretty much a throw-away clause. It doesn’t show that Congress has the power unless the other three statements show a power vested in the United States. Next, Mr. Nadler looks to section 5 of the Fourteenth Amendment…

>>>

The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

———

This section allows Congress to pass legislation related to the Fourteenth Amendment. Since Mr. Nadler doesn’t claim that this amendment vests any power to Congress related to this legislation, this too is a throw away reason.

The Fifth Amendment doesn’t have a Section 5. Which leaves us with Article IV, Section 1, the Full Faith and Credit Clause.

>>>

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof. 

———

This, the only cause given by Mr. Nadler with any possibility of being legitimate, is the crux of the matter. Since the matter of recognizing and licensing marriage was turned over to the state in 1741, America has been sliding down the slippery slope to this point. According to an article from Marriage.com…

>>>

It is widely reported that in 1741 the colony of North Carolina took judicial control over marriages. At the time, the primary concern was interracial marriages. 

North Carolina sought to prohibit interracial marriages by issuing marriage licenses to those deemed acceptable for marriage. 

———

By the 1920s 38 states had similar laws, putting the state in charge not only of sanctioning marriage, but defining it as well. Because of the Full Faith and Credit Clause (Article IV, Section 1), any marriage license issued by a state must be given full faith and credit in all other states. It’s in this context that we must look at the language of the Respect for Marriage Act.

If we are going to respect something, we should start by understanding what it is. At our nation’s founding, marriage had a simple definition. From Webster’s 1828 dictionary..

>>>

The act of uniting a man and woman for life; wedlock; the legal union of a man and woman for life.

———

As I’ve already stated, the definition of marriage has changed over time. Now, according to the Merriam-Webster Dictionary online, marriage is:

>>>

the state of being united as spouses in a consensual and contractual relationship recognized by law

———

So which definition of marriage does Mr. Nadler wish to respect?

Section 2 of the alleged Respect for Marriage Act states…

>>>

Section 1738C of title 28, United States Code, is repealed.

———

This legislation would repeal 28 U.S.C. 1738C, which violates the Full Faith and Credit Clause.

>>>

No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

———

This legislation would replace §1738C with:

>>>

“(a) In General.—No person acting under color of State law may deny—

“(1) full faith and credit to any public act, record, or judicial proceeding of any other State pertaining to a marriage between 2 individuals, on the basis of the sex, race, ethnicity, or national origin of those individuals; or

“(2) a right or claim arising from such a marriage on the basis that such marriage would not be recognized under the law of that State on the basis of the sex, race, ethnicity, or national origin of those individuals.

———

In other words, the definition of marriage will effectively be the conglomeration of how all 50 states define marriage. Since the State of New York legally recognized marriage between two people of the same sex, all 50 states would have to recognize it.

Does anyone remember the Defense of Marriage Act? Signed by President Bill Clinton in 1996, this legislation defined marriage as between one man and one woman.

>>>

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.

———

This act was found to be unconstitutional by the Supreme Court of the United States for violating the Due Process Clause in the cases United States v. Windsor and Obergefell v. Hodges.

The Respect for Marriage Act would replace the Defense of Marriage Act with:

>>>

“(a) For the purposes of any Federal law, rule, or regulation in which marital status is a factor, an individual shall be considered married if that individual’s marriage is valid in the State where the marriage was entered into or, in the case of a marriage entered into outside any State, if the marriage is valid in the place where entered into and the marriage could have been entered into in a State.

———

Which means the federal government would have to recognize all of these marriages as well. Should any states legalize marriages between three or more people, all states would have to recognize that as well. Based on recent history, you can assume pretty much any relationship between anyone and anything will one day be considered marriage in some state, and therefore recognized throughout the country.

I guess we have the answer to the question I posed earlier. Which version of marriage does Mr. Nadler wish to respect? The free for all, whatever someone can pass, definition of marriage? Isn’t it amazing how, in just 25 years defending marriage as one man and one woman has morphed into respecting whatever some can convince enough people to call marriage. In my mind, this does not bode well for the institution, and that is a problem.

Study after study has shown that children raised in a home where their parents are married to each other have the best outcome overall. Better outcomes in school, fewer instances of legal trouble, drug abuse, and on and on. Is this because the term “marriage” has some special benefit? Or is it the family headed by legally bound parents that provides this blessing? What happens when marriage no longer means one man and one woman, a legally bound couple that can beget children? Sure same-sex couples can adopt children, can be good parents, and raise good children, but the odds are more likely that there will be problems. Who knows what will happen with multiple fathers, mothers, and whatever else the human mind can come up with.

I fear this newfound ‘respect’ for what anyone wants to call marriage means the further destruction of the family with all of the associated societal issues. It’s important that we remember though, the Respect for Marriage Act is not the cause of these issues, but the symptom of the damage that marriage and the family has already suffered.

© 2022 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

November 25, 2022

• We know the Constitution has a Bill of Rights. But do you know the man most responsible for that document?
• After writing about the Virginia Bill of Rights, I wanted to learn more about the man who brought us that document.
• Learning about the struggles George Mason went through to give us that document, I see he has earn the title Father of the Bill of Rights.

While writing my last two articles about the Virginia Bill of Rights, I became more and more impressed by the person who had written them. I decided to do some research on this little known, but extremely important Founding Father, and what I found did not diminish my opinion of him. So today, let’s take a closer look at George Mason, the man known as the Father of the Bill of Rights.

Like most Americans, the vast majority of our Founding Fathers were a mystery to me. Sure, we’ve heard of George Washington, John Adams, and Benjamin Franklin, but what about Benjamin Rush, Gouverneur Morris, or the subject of this article, George Mason? Most American treasure the Bill of Rights, but know nothing about the man who made sure we have one.

Citizen Politician

George Mason was a Virginia land owner and early proponent of independence. When the British Parliament imposed improper taxes on the colonies, he pushed to boycott British goods. He spoke eloquently about states’ rights and against slavery, even though he owned many (because it was illegal under British law to free slaves).

Although described as detesting politics, George Mason helped develop strategies to get around the Stamp Act of 1765 and served briefly in Virginia’s House of Burgesses, as well as in both the Fourth and Fifth Virginia Conventions. While he’s probably best known for the Virginia Declaration of Rights, he also worked on Virginia’s Constitution.

Mason spent most of his time during the Revolutionary War protecting Fairfax County and serving in the House of Delegates, although he often missed sessions due to bad health. In 1777 he was assigned to the committee to revise Virginia’s laws, but resigned on the grounds that he was not a lawyer.

Constitutional Convention

George Mason went to the Constitutional Convention in 1787, and was one of its more influential delegates. Mason consistently supported a formal amendment process (something missing from the Articles of Confederation), and although he was a slave owner, gave an impassioned speech against the institution of slavery. Suspicious of government, Mason understood the need for a central government more powerful than that under the Articles of Confederation, but he wanted to make sure it would not threaten local interests. Mason was the first to propose that the seat of the central government not be in a state capital to avoid that state’s legislature being too influential. Although overshadowed by Patrick Henry, Mason was among the anti-Federalists and key to the adoption of the Bill of Rights.

On September 12, 1787, Elbridge Gerry proposed, and George Mason seconded, that a committee be appointed to write a bill of rights to be included in the proposed constitution. That proposal failed, however, with ten states opposing it and not a single one supporting it. This is also why, when the Constitution was signed by the delegates on September 17th, three men refused to sign it: George Mason, Eldbrige Gerry, and Edmund Randolph.

Ratification

George Mason almost immediately began writing his Objections to this Constitution of Government in Philadelphia. While this document was published, it was apparently without Mason’s permission. His ‘Objections’ were widely cited in opposition to ratification, although Mason himself was criticized for writing it under his own name. At the time, political tracts were signed using pen names. Despite the criticism, ‘Objections’ became one of the most influential works in the Anti-Federalist movement. In fact, the opening line, “There is no Declaration of Rights” became the Anti-Federalist’s slogan.

Although Mason had difficulties winning election to Virginia’s ratification from the Fairfax county, which he represented in the House of Delegates, the rules governing the convention allowed him to run in any county where he owned property. He sought and won election from Stafford County, and renewed his fight for a Declaration of Rights to be included in the Constitution.

By the time the Virginia Ratification Convention opened, Edmund Randolph had abandoned his Anti-Federalist position, making George Mason’s goal even harder to achieve. The political infighting was intense, and for a long time it looked like the Constitution would be ratified as is. Finally, a resolution was considered to withhold ratification pending approval of a declaration of rights, which was defeated 88-80, and on June 25, 1788, the Convention ratified the Constitution by a vote of 89-79. Following the ratification, Mason served on a committee to compile a list of recommended amendments, and by and large, Mason’s draft was adopted.

I believe George Mason’s influence, especially his ‘Objections,’ help show others the shortcomings in the proposed Constitution. The convention in Massachusetts was so contentious it erupted into a fist fight when Anti-Federalist Eldbridge Gerry was not allowed to speak. The impasse was eventually resolved when Samuel Adams and John Hancock, both Anti-Federalists, agreed to ratification on the condition that the convention also propose amendments. This became know as the Massachusetts Compromise, and included a requirement for grand juries in capital cases and reserving to the states powers not delegated to the United States.

Drafting the Bill of Rights

Although James Madison was originally opposed to Mason’s idea of a declaration of rights, he gradually came to understand the importance of having one. Although opposed by James Monroe in the first election for the House of Representatives, Madison won, in part due to a pledge to introduce amendments to the Constitution forming a bill of rights. Madison was greatly influenced by the state constitutions, including the Virginia Delegation of Rights, authored by George Mason. Seventeen articles were approved by the House of Representatives, but only twelve by the Senate. After some negotiation, including the rewording of some of the articles, these twelve amendments were approved by Congress and sent to the states for ratification. Ten were ratified in 1791, and one was not ratified until 1992.

Conclusion

George Mason returned to his home at Gunston Hall, where he devoted himself to his family, his health, and local affairs, although he did keep up his correspondence with political leaders. He ended up resigning from the Fairfax County Court after an act of Congress required officeholders to take an oath to support the Constitution.

Although George Mason died in 1792, he did live long enough to see his idea of a declaration of rights added to the Constitution. After reading both documents, I think you will agree that most of the ideas George Mason included in the Virginia Declaration of Rights in 1776 ended up in the Bill of Rights in 1791. While some may consider James Madison the father of the Bill of Rights, due to his drafting of the amendments, its true parentage goes back to George Mason and his Virginia Declaration of Rights.

Two things, other than the Virginia Declaration of Rights, struck me when I looked at this Founding Father. First, Mason was not a lawyer. Since so many of our “political class” seem to start in law school today, what’s sad now is when you consider that most of those schools do not teach the actual language of the supreme law of the land anymore. Instead, they teach judges opinions, in what is euphemistically called “constitutional law”. It warms my heart, especially after being repeatedly asked if I am a lawyer simply because I study, teach, and advise on the Constitution, that this non-lawyer succeeded in so many of his endeavors.

The second thing that strikes me is Mason’s tenacious adherence to what he believed was right. Being outnumbered, in both the Constitutional Convention and the Virginia Ratification Convention, did not stop him from sticking to his guns. Even in defeat at the Virginia Convention, he was still able to submit his recommendations for amendments. It reminds me of something said by another Founding Father, John Quincy Adams, when asked why he persisted in the face of what looked like insurmountable odds,

The duty is our, results are God’s

© 2022 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

October 31, 2022

• Most Americans believe that governments will protect their children. But what happens when a government bureaucracy wants to perform medical experiments on your children?
• The Centers for Disease Control and Prevention have added an experimental treatment for COVID-19 to their schedule for routine childhood vaccinations.
• What can you and your states do to protect your children from medical experimentation?

In the latest example of government bureaucrats attempting to take over our lives, the CDC has added an experimental treatment to their “Vaccine for Kids” program. This program provides eligible children free vaccines. What makes this decision truly awful is the vote by the CDC to add these treatments to their children’s vaccine schedule. Many schools and other children’s programs require children to receive the vaccines on the CDC’s schedule in order to attend. All of this is under the guise of a medical emergency that does not exist.

COVID-19 Tyranny

COVID-19 has been a blessing . . . for the tyrants and thugs that believe they know better than you how you should live your life. Sure, in the first few weeks, when we still didn’t know much about this novel corona-virus, we were willing to follow recommendations from those we thought were experts. Then those recommendations became mandates, suggestions became orders, and bureaucrats, many of whom have never even treated a patient, much less one with COVID-19, started claiming that they were the science, and anyone who disagreed with them wanted to kill grandma. All of this was justified by COVID-19 being a public health emergency. Since then more and more evidence has shown that COVID-19 was never a public health emergency, since only a very small demographic of the population was ever truly at risk of hospitalization and death. Yet the state of emergency still exists.

Doctors who treated patients quickly came up with a treatment regime using medicines that have been safely administered to humans for decades. Yet those doctors and their treatments were shunned by many in the medical community, especially those in the medical bureaucracy. In their place we were promised a panacea, a vaccine that would stop the spread of COVID-19 and release us from the tyranny of this public health emergency.

However, we soon found out that this vaccine is not legally a vaccine, as defined in the Free Legal Dictionary:

1. A preparation of a weakened or killedpathogen, such as a bacterium or virus, or of a portion of thepathogen’s structure, that is administered to prevent or treat infection by the pathogen and that functions bystimulating the production of an immune response.
2. A preparation from the cowpox virus that protects against smallpox when administered to an individual.

vaccine – The Free Legal Dictionary

Instead of a vaccine, these treatments are gene therapy. Even worse, they are based on an experimental mRNA technology, never tested in humans. That is, never tested until it was pushed on the entire world population. Reports of rushed tests, fraudulent testing methodologies, and the hiding of information regarding adverse effects, further show the dangers of what these bureaucrats have wrought.

Schools were shut down, claiming it was dangerous for even asymptomatic children to gather, since they may spread the virus to the more susceptible. Yet there was no evidence that children spread the disease. Now those very same bureaucrats who promoted a public health emergency that wasn’t an emergency, pushed an experimental treatment without safety testing on unsuspecting people. They also demanded that millions of Americans become medical test subjects in order to keep their jobs, and now want to pressure parents to allow them to experiment on their children, too.

The CDC – A Bureaucratic Tyranny

Throughout this scamdemic the one constant seems to be ignoring the distinctions in how this virus treats different demographics. The CDC’s data shows that the old and those with serious preexisting conditions are the only groups at risk of serious consequences from infection. Those least at risk are the young. According to the CDC, less than 3% of those hospitalized and only .2% of those under that age of 17 have died with COVID. (I make the distinction of being hospitalized and dying with COVID because of the evidence that the FDA has incented hospitals to inflate their reports for monetary gain.) Yet the CDC is pushing the use of an experimental gene therapy on those least likely to be injured by the virus. It’s well past time for the American people to put a stop to this.

No mRNA based treatment currently available in the United States has been fully licensed by the Food and Drug Administration (FDA). Rather, they are offered under an Emergency Use Authorization (EUA). The U.S. Law authorizing the Secretary to issue an EUA states that, among other things:

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(c)(3)

There was evidence, both scientific and anecdotal, that both Hydroxychloroquine and Ivermectin were adequate and available alternatives. Sadly, the FDA not only refused to approve these drugs with long human safety histories, but there is evidence that they intentionally manipulated their testing to disprove their effectiveness.

Furthermore, Moderna officials have testified in front of European Union committees that their product was never tested for efficacy.

In October 2022, the CDC’s Advisory Committee on Immunization Practices voted unanimously to add the COVID-19 “vaccine” to their child immunization schedule. This is despite the fact that the sum total testing of the children doses of the vaccine was on eight (8) mice. The CDC child immunization schedule is used by many schools and other youth programs as a list of vaccinations they require before a child can participate. This means the CDC is not only recommending an untested, unnecessary, and experimental treatment be part of the standard immunization for all children, they are making it a requirement for attendance in many schools.

All of this is a violation of the Nuremberg Code. (This is a medical ethics code developed after the Nazi atrocities of World War II in order to protect people from the abuses of human medical testing.) The very first point of the code is:

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, overreaching, 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. 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.

Nuremberg Code – Point 1

Because of the utter disregard the CDC has shown for medical ethics and the safety of the American people, it’s time to stop trusting these bureaucrat agencies and restore medical decision-making power to We the People.

Save Our Children from Medical Experimentation Act

With all this data, the CDC is still recommending that children as young as six months be required to take this experimental gene therapy as a condition of participation in many government funded programs. Should your school districts require their students to follow this schedule, they would be coercing parents into having their children experimented on for no medically sound reason. Since children have not been shown to transmit the disease without symptoms, then vaccination for COVID-19 is not a public health issue and there’s no reason to require it. Since children are not generally at risk from COVID-19, there is no medical reason to require them to be inoculated either. For this reason, I believe everyone, especially parents, should push their state legislatures to pass the Save Our Children from Medical Experimentation Act. I created this draft legislation to help people across the country discuss this with their legislators. The operative language is simple:

1. All State of [STATE] office holders, agencies, schools, and programs accepting state dollars are prohibited from requiring the vaccination, immunization, or inoculation of minors based on the CDC’s immunization schedule as a requirement for enrollment, attendance, or participation in any class, program, or event.
2. No office holder, agency, school, or program receiving funding from this state may accept any monies from any government or private agency contingent on the use of the CDC’s schedules for immunization.

III. Any agency, school, or program receiving funding from this state who requires the use of the CDC’s schedules for immunization shall have all funding immediately terminated. After the adoption of this legislation, any monies received from the state while requiring a child follow the CDC’s immunization schedule must be returned to the state within 90 days of notification by the State Attorney General or his designee or face criminal charges.

1. Nothing in this legislation is to be construed as to prohibit parents from having their children treated with these “vaccines”. 

Save Our Children from Medical Experimentation Act

This sample legislation should help you work with you state legislature to protect your children from this abusive and corrupted federal bureaucracy.

Save Our Children from Medical Experimentation Act

Conclusion

I’ve been saying for quite some time that the solution to many problems is local, not national. This is a perfect example. The CDC has squandered any credibility they had and they have lost the authority to dictate medical decisions to anyone. Stop waiting for your elected employees to protect your children for you; stand up and do it yourself. Who knows, this could be the first step in regaining control of your local school district. Maybe it will even teach your state representatives to stand up against the illegal actions of the government in Washington, D.C. If history has taught us anything, however, nothing will happen until We the People ordain and establish it.

© 2022 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

October 24, 2022

• Can Freedom of Speech be used to suppress speech?
• Do the owners of corporations have the legal right to control what content is on the platforms they own?
• Was the decision of the Circuit Court in NetChoice & CCIA v. Ken Paxton, Attorney General of Texas a win for free speech or a loss?

You may have heard about Texas bill H.B. 20, an attempt by the government of Texas to prevent censorship by social media companies. You might also have heard about the case making its way through the federal judicial system regarding this particular law. The central question we should be asking is: When is freedom of speech not freedom of speech? Put another way, can government, either legislatively or judicially, force private companies to share communication with which they disagree?

Social media censorship is a touchy subject, it tends to bring up emotional reactions on both sides. Here at The Constitution Study, we read and study the Constitution so we can place its actual language above our emotions and preferred outcomes. So let’s start at the beginning, with Texas H.B. 20

Texas H.B. 20

Texas Governor Abbot signed H.B. 20 into law in September, 2021. What is in H.B. 20?

relating to censorship of or certain other interference with digital expression, including expression on social media platforms or through electronic mail messages.

Texas H.B. 20

What basis did the Texas legislature use to justify this legislation?

SECTION 1 The legislature finds that:
(1) each person in this state has a fundamental interest in the free exchange of ideas and information, including the freedom of others to share and receive ideas and information;
(2) this state has a fundamental interest in protecting the free exchange of ideas and information in this state;

Texas H.B. 20

So far so good. Yes, every person has a fundament interest in the free exchange of information. You could even say we have the right to freedom of speech and the press. And since we create governments to protect our rights, the state has a fundamental responsibility to protect that right. However, from here on out, Texas’ case doesn’t fare so well constitutionally.

(3) social media platforms function as common carriers, are affected with a public interest, are central public forums for public debate, and have enjoyed governmental support in the United States; and

Texas H.B. 20

The Texas legislature cannot simply claim that social media companies are effectively common carriers. Legally, a common carrier is defined as:

An individual or business that advertises to the public that it is available for hire to transport people or property in exchange for a fee.

Common Carrier – The Free Legal Dictionary

Social media companies do advertise that they are available to the public, but not to transport people or property. They do exchange information, but not for a fee, so let’s go on.

A common carrier is legally bound to carry all passengers or freight as long as there is enough space, the fee is paid, and no reasonable grounds to refuse to do so exist. A common carrier that unjustifiably refuses to carry a particular person or cargo may be sued for damages.

Common Carrier – The Free Legal Dictionary

A common carrier is legally bound to carry all passengers or freight, but only as long as certain conditions exist. There must be enough space, the fee is paid, and there are no “reasonable” grounds to refuse. H.B. 20 doesn’t deal with advertising on social media, so there is no fee to be paid and space is generally not an issue, but what about reasonable grounds? Since every user must agree to terms and conditions before they are allowed to sign up for the account, they agree to the company’s reasonable grounds for access. Because of that, we are not done yet.

The states regulate common carriers engaged in business within their borders. When interstate or foreign transportation is involved, the federal government, by virtue of the Commerce Clause of the Constitution, regulates the activities of such carriers. A common carrier may establish reasonable regulations for the efficient operation and maintenance of its business.

Common Carrier – The Free Legal Dictionary

Unless the State of Texas requires that any connection to a social media app by a user within its state connects to a datacenter also within the state, we’re dealing with interstate commerce, which is regulated by the federal government, not the states. That means another important question is whether the regulations established by these social media companies is “reasonable” and who ultimately decides?

(4) social media platforms with the largest number of users are common carriers by virtue of their market dominance.

Texas H.B. 20

That’s not what the legal dictionary says. If all it takes for a government to declare a business a common carrier and regulate how it does business, is for the business to succeed, then private property is a joke. Nothing in the legal definitions of common carrier have anything to do with “market dominance”.

Regardless of all of these problems with the legislation, the focus has been on part of Section 7.

Sec. 143A.002. CENSORSHIP PROHIBITED. (a) A social media platform may not censor a user, a user’s expression, or a user’s ability to receive the expression of another person based on:
(1) the viewpoint of the user or another person;
(2) the viewpoint represented in the user’s expression person’s expression; or
(3) a user’s geographic location in this state or any part of this state.
(b) This section applies regardless of whether the viewpoint is expressed on a social media platform or through any other medium.

Texas H.B. 20

NetChoice & CCIA v. Ken Paxton, Attorney General of Texas

This led two trade associations (referred to as “The Platforms” in the suit), to sue the Texas Attorney General in federal court to prevent the law from going into effect.

The district court issued a preliminary injunction on December 1, 2021. It first held that Section 7 is facially unconstitutional. The court “start[ed] from the premise that social media platforms are not common carriers.” It then concluded that Platforms engage in “some level of editorial discretion” by managing and arranging content, and viewpoint-based censorship is part of that editorial discretion.

NetChoice & CCIA v. Ken Paxton, Attorney General of Texas

I’ve already shown that the question of social media companies being common carriers is problematic. Since it’s almost assured that people in Texas are accessing systems in another state, that would make this a question of interstate commerce, and therefore a federal issue.

The district court brought up the question of “editorial discretion”. What is editorial discretion?

a : individual choice or judgment
b : power of free decision or latitude of choice within certain legal bounds

discretion – Merriam-Webster Dictionary

So editorial discretion is the power to make editorial decisions. Is this protected by the Constitution of the United States? Yes. Since social media companies own their platforms, they have the right to exercise control over them, including what content will be allowed. Before I get into the details, let’s finish this thought from the circuit court.

So according to the district court, HB 20’s prohibition on viewpoint-based censorship unconstitutionally interfered with the Platforms’ protected editorial discretion. The court did not explain why a facial attack on Section 7 was appropriate, other than asserting that Section 7 is “replete with constitutional defects” and the court believed “nothing . . . could be severed and survive.”

NetChoice & CCIA v. Ken Paxton, Attorney General of Texas

There are two areas where Section 7 of H.B. 20 violates the Constitution of the United States, and both are found in the Fourteenth Amendment.

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;

U.S. Constitution, Amendment XIV, Section 1

Most social media companies are owned by people, and logically, that would include citizens of the United States for U.S. based companies like Facebook, YouTube or Twitter. By demanding that these companies provide on their platforms speech with which they disagree, they are violating the free speech rights of the owners of these platforms by compelling speech. The only difference between this case and the case of Jack Phillips is the size of the company involved. Second, since the government of Texas wants to wrest control of these platforms from their owners, they are depriving the lawful owners of their property without due process of law. Both of these are violations of the constitutions of both the United States and the State of Texas, (Article I, Sections 8 & 19).

Texas appealed this decision to the Fifth Circuit Court of Appeals, which found for the State of Texas. What I found most interesting in their opinion is its one-sided nature.

In urging such sweeping relief, the platforms offer a rather odd inversion of the First Amendment. That Amendment, of course, protects every person’s right to “the freedom of speech.” But the platforms argue that buried somewhere in the person’s enumerated right to free speech lies a corporation’s unenumerated right to muzzle speech.

NetChoice & CCIA v. Ken Paxton, Attorney General of Texas

Inherent in the rights to freedom of speech is the right to not be compelled to speak in a certain manner. This is the argument behind the NIFLA case, where the Supreme Court recognizes that compelled speech is a violation of free speech.

The circuit court went on.

What’s worse, the platforms argue that a business can acquire a dominant market position by holding itself out as open to everyone—as Twitter did in championing itself as “the free speech wing of the free speech party.” … Then, having cemented itself as the monopolist of “the modern public square,” … Twitter unapologetically argues that it could turn around and ban all pro-LGBT speech for no other reason than its employees want to pick on members of that community,

NetChoice & CCIA v. Ken Paxton, Attorney General of Texas

This hyperbolic language shows the bias of this court. If a company, such as Twitter, claims to be a free speech platform, then turns out not to be, wouldn’t that be a case of false advertising? And since Twitter does business across state lines, that means a federal lawsuit could be used for redress? While they may have a “dominant market position”, that does not make them a monopoly. Neither does it cement their position, as the growth of numerous competitors shows.

Conclusion

According to the Fifth Circuit Court of Appeals:

Today we reject the idea that corporations have a freewheeling First Amendment right to censor what people say. Because the district court held otherwise, we reverse its injunction and remand for further proceedings.

NetChoice & CCIA v. Ken Paxton, Attorney General of Texas

In point of fact, the court is using “freedom of speech” to suppress freedom of speech. It has placed “a freewheeling First Amendment right to censor what people say” squarely in the hands of government. When any government has the ultimate authority as to what communication a privately owned platform must allow, then government has become the censor. When any government has the power to dictate to a private company how they will be allowed to use their private property, then government has become the dictator. And what government can do to private corporations, it can just as easily do to you.

I am no fan of the censorship exhibited by many social media platforms, but placing that power in the hands of any government is far worse. Should the opinion not be overturned by the Supreme Court, then the State of Colorado could force Jack Phillips to place messages on his cakes or the State of California could demand that pro-life pregnancy centers advertise for abortion centers. For that matter, it could require that Jewish delicatessens sell pork or Muslim businesses celebrate Christian holidays. If those who claim to champion freedom and liberty use coercion and force to get their way, they are no better than those who are doing the censoring. If your ends justify your means, then you are no different than those who champion the Constitution when it benefits them, then throw it away when it does not.

What is the proper response to social media censorship? Stop using the censors. No one has a gun to your head forcing you to use Twitter, Facebook, or any other platform. Sure, it may be easier for you to reach more users, but that doesn’t give you the right to tell these platforms what content they must carry. That is what the fascists do. You must decide, what is more important to you: Using these platforms or your freedom of speech and press? That is why I recently posted a video on YouTube asking the opinions of my viewers about remaining on the platform. The best way to stop social media censorship is to deprive them of what they want most: Your money and that of your friends.

© 2022 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

By Paul Engel

October 18, 2022

• “Operation Crossfire Hurricane” seems to be the gift that keeps on giving.
• Can someone sue the federal government for lying to a court or violating the Constitution?
• Can the federal government us the theory of “sovereign immunity” to prevent such a suit?

I’m sure you’ve heard of “Operation Crossfire Hurricane”, sometimes called “Russia-gate”. Carter Page was caught up in this investigation and sued the Department of Justice for lying to the FISA court in order to acquire warrants to surveil him. A district court recently granted the DOJ’s motion to dismiss the case. The reasons why and the logic behind them is worth looking into.

2016 was a very busy year. We had the Flint water crisis, the Pulse nightclub shooting, oh yeah, and a presidential election. While not the first time lies were used to impact an election, 2016 began the era of “fake news”. From the fake hacking of the DNC to the infamous “pee-pee tape”, lies seem to spread faster than wildfire. In the middle of this was “Operation Crossfire Hurricane”.

On July 31, 2016, the FBI opened a counterintelligence investigation named “Operation Crossfire Hurricane” to determine whether individuals associated with the Trump presidential campaign were involved in coordinated activities with the Russian government.

Carter Page v. James B. Comey et al., Memorandum of Opinion

One of the targets of this investigation was Carter Page.

According to Page, the FBI obtained four successive FISA warrants to electronically surveil him, despite there being no probable cause to suspect that he was a Russian agent.

Carter Page v. James B. Comey et al., Memorandum of Opinion

The defendant in the case, James Comey and others, asked the District Court for the District of Columbia to dismiss the case on several grounds. Based on the evidence presented thought, it seems pretty bad for Mr. Comey and the other defendants.

As alleged, the FBI’s conduct in preparing the FISA warrant applications to electronically surveil Page was deeply “troubling.” … Indeed, the government has conceded that it lacked probable cause for two of the warrants. … And the FISC has found that the government violated its “duty of candor in all four applications.” Similarly, Page alleges that the individual defendants intentionally provided false information and omitted material facts in all four applications. To the extent these allegations are true, there is little question that many individual defendants, as well as the agency as a whole, engaged in wrongdoing.

Carter Page v. James B. Comey et al., Memorandum of Opinion

But the defendant’s motion to dismiss was granted. Why?

Even so, Page has brought no actionable claim against any individual defendant or against the United States.

Carter Page v. James B. Comey et al., Memorandum of Opinion

As is so often the case, the devil is in the details. So let’s look at those details. The judge lists three statutory roadblocks to Mr. Page’s case as justification for his opinion. Let’s look at them individually.

Private Right of Action

The first problem in the judge’s eye is a question of standing.

First, Congress has not created a private right of action against those who prepare false or misleading FISA applications.

Carter Page v. James B. Comey et al., Memorandum of Opinion

In short, when Congress passed the Foreign Intelligence Surveillance Act (FISA), they did not include the legal authority for private individuals to sue in this situation. How can that be?

Both the plain language and the structure of FISA make clear that civil liability under 50 U.S.C. § 1810 attaches only to those who conduct or perform electronic surveillance.

Carter Page v. James B. Comey et al., Memorandum of Opinion

Could that be true?

An aggrieved person, other than a foreign power or an agent of a foreign power, as defined in section 1801(a) or (b)(1)(A) of this title, respectively, who has been subjected to an electronic surveillance or about whom information obtained by electronic surveillance of such person has been disclosed or used in violation of section 1809 of this title shall have a cause of action against any person who committed such violation

50 U.S.C. §1810

The specific language of §§1810 & 1809 deal specifically with electronic surveillance, not providing false or misleading information in order to obtain a warrant.

Constitutional Violations

Second, the judge states that the FISA law does not allow for damages from violations of constitutionally protected rights.

Second, Congress has not provided for damages claims against federal officers for constitutional violations stemming from unlawful electronic surveillance in the national security context.

Carter Page v. James B. Comey et al., Memorandum of Opinion

I’m sorry, but that just is not true. While not in the FISA statue, Congress has provided for damages from any violation of the Constitution.

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress,

42 U.S.C, §1983

As the judge has already noted, the government conceded that it lacked probable cause for two of the warrants, and violated their duty of candor for all four of them. This caused Mr. Page to be deprived of his right to be secure from unreasonable searches by cause the court to issue an invalid warrant.

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

Furthermore, by providing false information under oath of affirmation on the application for the warrant, agents of the FBI have committed perjury. While that is a criminal charge, not a civil one, it certainly was used to cause Mr. Page to be subject to a violation of his rights protected by the Constitution.

Sovereign Immunity

The last, and in my mind most egregious, is this idea of sovereign immunity.

And third, Congress has not waived the United States’s sovereign immunity for this kind of claim.

Carter Page v. James B. Comey et al., Memorandum of Opinion

What is “sovereign immunity”?

The legal protection that prevents a sovereign state or person from being sued without consent.

Sovereign Immunity – The Free Legal Dictionary

While courts may claim that the federal government cannot be sued without the consent of Congress, this would seem to violate the Petition Clause of the First Amendment.

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

Granted, Congress has not passed a law prohibiting the people from petitioning for redress in this circumstance, but by requiring that Congress explicitly allow such petitions in each and every section of the law, the courts have denied the people this right. This has effectively made Congress, and by extension the entire federal government, superior to the people. After all, what good is have the right to petition protected by the supreme law of the land if Congress has the power to allow or ignore it at their will.

Core Claim

But what about Mr. Page’s claim that the FBI misled the court in order to get a warrant?

When it comes to Page’s core claim—that the defendants misled the FISC to obtain surveillance warrants without probable cause—the Court cannot create a cause of action that Congress did not enact. “[P]rivate rights of action to enforce federal law must be created by Congress,” Alexander v. Sandoval, … and courts may not usurp that power “no matter how desirable that might be as a policy matter,” … Any future remedy for these alleged FISA abuses must come from Congress, not this Court.

Carter Page v. James B. Comey et al., Memorandum of Opinion

But what about the supreme law of the land? If courts cannot enforce the Constitution without the blessing of Congress, does that not violate the oath the judges took to support it?

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;

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

The judicial power of the United States is not limited to the laws of the United States created by Congress, but cases arising under the Constitution itself, which this one is.

Conclusion

I guess this is what happens when we allow the opinions of judges, euphemistically called “constitutional law” to supersede the Constitution itself. While Congress did not include civil penalties under the FISA law for deceiving the court, they already exist in U.S. Law under 42 U.S.C. 1983 since it caused a deprivation of rights for Mr. Page. Furthermore, the claim of sovereign immunity deprives the American people of a method to petition for a redress of grievance, which violates the First Amendment. Claiming that the courts do not have the power to offer redress to a violation of the Constitution is a dereliction of duty, which certainly is bad behavior in my book.

I have not seen the suit that Mr. Page filed, so I am not entirely sure if this problem rests solely with the judge. After all, if Mr. Page’s attorneys didn’t realize that 50 U.S.C. 1810 only offered civil penalties for electronic surveillance and not deciding the FISA court, bad on them. Since the judge did not mention any claim of violation under 42 U.S.C. §1983, I am forced to assume the attorneys did not make such a claim. Another reason why it is so important that:

Every member of the State ought diligently to read and to study the constitution of his country…”

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

Remember, attorneys are there to counsel you, not be the sole word on the case itself.

I cannot say that I’m surprised at this opinion. It is pretty much what I’ve come to expect from our judiciary. Hopefully, this example to propel you into studying the Constitution and preparing yourself to defend your rights. Because being dependent on the legal system today to protect your rights is a fool’s errand.

© 2022 Paul Engel – All Rights Reserved

E-Mail Paul Engel: paul@constitutionstudy.com

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