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Posts Tagged ‘Federalist Papers’

The United States Supreme Court.

On the January 11, 2012 episode of Radio Liberty with Dr. Stan Monteith, Pastor David Whitney of The Institute on the Constitution made a claim implying that common law doesn’t exist in the United States (starting at 22:35):

The Congress is the only body that is given the power to make law. Not the judiciary, not the executive — none of them can make law. Only Congress can make law. Anything attempted by those other two branches is not law, it’s a violation of the Constitution.

While I agree that only Congress can legislate through statutes, there is the distinction between statutory law and common law. I know that Pastor Whitney regards natural law as the highest form of law, and that anything contrary to natural law is null and void. However, there is the separate issue of whether common law, which may or may not protect natural rights, exists in the United States, and has constitutional force.

Merriam-Webster’s Online Dictionary states that common law is:

[T]he body of law developed in England primarily from judicial decisions based on custom and precedent, unwritten in statute or code, and constituting the basis of the English legal system and of the system in all of the United States except Louisiana.

Alexander Hamilton wrote in Federalist Paper 81:

The appellate jurisdiction of the Supreme Court (it may have been argued) will extend to causes determinable in different modes, some in the course of the COMMON LAW, others in the course of the CIVIL LAW.

Here we have a recognition of common law applying to the United States, from the most prolific writer of The Federalist Papers.

The Seventh Amendment to the Constitution, ratified in 1791, states:

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.

Here we have evidence from the Constitution itself that common law applies in the United States.

Therefore, I have shown that common law does exist in the United States,  in terms of the intent of the Founding Fathers, and is operable according to the Constitution.

Wherever there is no Congressional statute or code stating how something should be handled, decisions by judges constitute a separate body of law in the United States.

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James Madison

Back in 2009, I went on the air on Right to Redress and said that from my perspective, the “necessary and proper” clause of the U.S. Constitution conferred no special powers.

The “necessary and proper” clause reads:

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.

Later, I discovered that I was really speaking from my own desire rather than what two important sources had to say about it, which later convinced me their assessment is the correct one.

One, “The father of the Constitution,” James Madison, wrote in Federalist Paper #44 (emphasis mine):

Few parts of the Constitution have been assailed with more intemperance than this; yet on a fair investigation of it, no part can appear more completely invulnerable. Without the SUBSTANCE of this power, the whole Constitution would be a dead letter.

He went on to write:

Those who object to the article, therefore, as a part of the Constitution, can only mean that the FORM of the provision is improper.

I argue that the form of the provision IS improper, because Congress can assert that all laws it passes are necessary and proper for carrying out its enumerated powers. All laws it passes certainly are open to judicial review, but in most cases, due to primarily to time and money constraints, over time, the benefit of the doubt will go to passively accepting what Congress has enacted.

Even an opponent of the Constitution, the anti-Federalist, Brutus (likely Constitutional Convention attendee Robert Yates), wrote:

A case cannot be conceived of, which is not included in this power.

Therefore, we have two of the most relevant figures at the time, agreeing that the necessary and proper clause is indeed very meaningful, and that it is even essential to Congress’ power.

Brutus elaborated on how the clause could be used in combination with the taxing power in order to justify employing an army of tax collectors to eat out the substance of the people. (Sound familiar today?)

I think that a proper form of the clause would have been to say these are the powers of Congress. Period. By including “necessary and proper,” it gives Congress the license to claim that everything it passes is necessary and proper for carrying out its enumerated powers.

Some of Congress’ enumerated powers are very narrowly and well-defined, whereas its taxing power is very broad.

Congress has the enumerated power to coin money, which I interpret as only referring to striking coins, and not issuing paper currency.

Congress can argue that issuing paper currency is necessary and proper for carrying out its taxing power, however, and make paper currency legal tender for taxes, and, therefore, such a law would be constitutional. Despite Congress going outside of its constitutional bounds in most areas these days, resulting in spending over 20% of the nation’s annual GDP as of 2011, the constitutional legal tender status of paper currency for taxes could result in such a distorting effect on the overall economy that it can become a de-facto legal tender for private sector payments.

Therefore, I agree with Madison and Brutus that the necessary and proper clause is a very real power that is essential to Congress’ exercise of its enumerated powers, and I particularly agree with Brutus that it can be used in conjunction with Congress’ taxing and spending powers, in particular, to constitutionally extend Congress’ enumerated powers beyond the original intent of “originalist” framers such as Madison.

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"Treason"

Treason is a word that has been bandied about a lot since 9/11. There are even calls for Bilderberg attendees to be tried for treason.

Article III, Section 3 of the U.S. Constitution states:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

Notice the use of “them” and “their” in reference to the States, and not the nation state of the United States.

Therefore, levying war against any of the States, or in adhering to the enemies of any of the States, constitutes treason.

However, Congress is vested with the sole power to declare the punishment of treason.

The Congress shall have power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

But what constitutes “Enemies” of the States? The Federalist Papers makes no explicit mention of this.

It is a big question, however, since some assert that the States have no “Enemies” in the absence of a formal declaration of war by Congress.

The fact that Congress is vested with the sole powers to declare war and the punishment of treason, is evidence to me that “Enemies” meant and means those that Congress has declared war against.

Without a constitutional declaration of war, “Enemies” can be designated at will, with no accountability, limitation, or common frame of reference on the part of those making that claim.

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On April 30, 2010, Dr. Stan Monteith of Radio Liberty interviewed Tom DeWeese of the American Policy Institute, and they analyzed the “10 Amendments For Freedom” proposal.

They are:

  • A balanced budget, repaying the national debt in 50 Years, government transparency, a line-item veto, term limits for Congress, controlling illegal immigration, formal declaration of being an English-speaking nation, no binding foreign laws, government restraint – no socialism, and an “In God We Trust” declaration.

The following concerns about a Constitutional Convention were raised, which I paraphrase here:

  • How likely are the same members of Congress who violated their constitutional oath of office by voting for unconstitutional legislation, such as the 2001 USA PATRIOT ACT and the 2006 Military Commissions Act, likely to respect new amendments to the Constitution?
  • The precedence of the 1787 Constitutional Convention that violated the existing Articles of Confederation, by adopting a new Constitution for the United States without the required ratification of every State, as required by the Articles. Despite requiring three-fourths of the States to ratify any proposed amendments under the existing Constitution, the ratification rules could once again be violated, citing this precedence.
  • The Speaker of the House, a partisan, would get to decide the rules for conducting the Convention, for those aspects that aren’t spelled out in Article V of the Constitution, which are numerous.
  • Phyllis Schafly, opponent of the proposed Equal Rights Amendment, succeeded in her attempts to thwart the required three-fourths support of the States, in part, due to the roadblocks and legally questionable tactics employed by some state legislatures, including the rescission of previous ratification.
  • Bill Benson was given $100,000 to go to each of the State legislatures and determine whether a sufficient number of them ratified the 16th and 17th amendments, and he discovered they hadn’t. If the 16th and 17th amendments were never properly ratified, yet are being enforced by the nation’s courts, what will stop them from enforcing new amendment proposals that aren’t properly ratified?

Now, I’ll examine each of the proposed amendments in detail:

1. Balanced Budget
– Balanced budget legislation has been shelved by other countries, such as provincially in Canada, when their deficits skyrocketed, or when it was politically expedient to do so.

2. Repay National Debt in 50 Years
– Repaying the $14 trillion dollar debt in 50 years would take $280 billion a year in payments even at 0% interest over that time, requiring an additional $1.4 trillion in revenue for 2010 alone.

3. Government Transparency
– I argue that the best way to make government more transparent is to reduce its size and decentralize its power as much as possible without compromising its intended function of protecting rights.

4. Line-Item Veto
– For historical reference, a line item veto was made law in 1996, but was ruled unconstitutional by a federal court and the ruling later upheld by the Supreme Court.

5. Term Limits for Congress
– Terms limits were included in the Republican’s 1994 Contract With America, but never passed the House with the required two-thirds support.

6. Control Illegal Immigration
– There are existing laws to control illegal immigration that are being deliberately unenforced by both Democrats and Republicans, with the example of proposed amnesty legislation during the Bush and Obama administrations, after Democratic and Republican administrations following the latest amnesty by Reagan.

7. English-Speaking Nation
– I argue that English’s place in the United States is secure, by being the language of the Constitution — the supreme law of the land, which requires that all federal and state laws be in support of. Such an amendment could breach the First Amendment protection of freedom of speech.

8. No Foreign Laws Will Bind Us
– This would fix what I see as a problem with the Constitution not explicitly requiring that Treaties be in support of the Constitution, as it says about all laws. Given the Vienna Convention, which holds that where there is a difference between national laws and treaty provisions, treaty provisions can be held superior to any national and state laws.

9. Government Restraint – No Socialism
– Much of the socialist agenda being pushed at the federal level today is being carried out through the misapplication the commerce clause, which was clearly intended by the Founding Fathers, as outlined in the Federalist Papers, to apply to regulation of trade among the several States, and not permit unfettered socialism by controlling the means of production and distribution. An example of this is the regulation of CO2 emissions by the Environmental Protection Agency. Without such a misapplication, the Tenth Amendment reserves such powers to the States or to the people.

10. In God We Trust
– Could breach the First Amendment protection of the freedom to practice no religion. Also, despite the religious character of many of the Founding Fathers, they intentionally made no direct reference to God in the Constitution, and, as such, such an amendment would be contrary to their intentions of discouraging the influence of religious sectarianism in such a religiously diverse country as the U.S. was even in 1787.

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