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Amendment XXVII

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No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of representatives shall have intervened.

Originally proposed Sept. 25, 1789. Ratified May 7, 1992.

 

June 22, 2012 – Essay #90 – America’s experiment in self-government reveals itself in the Amendment process – Guest Essayist: The Honorable John Boehner, 53rd Speaker of the U.S. House of Representatives

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I’m honored and delighted Constituting America would extend me an opportunity to conclude this year’s round of essays on the amendment process and to address the genius of the U.S. Constitution.

Our Founding Fathers believed in some simple and yet, for their times, absolutely revolutionary ideas.  One of these ideas was that every individual possessed fundamental rights even prior to these rights ever being put into writing.  Recall the words of the Declaration that these rights were “unalienable” and their existence a “self-evident” truth.

Another revolutionary idea was that government power or action essentially occurs at the expense of individual rights and liberties.  This idea turned completely upside down the reality of nearly every government in history to that point.  Most systems of rule placed a monarch, tyrant, or oligarchy at the top of subservient masses.  Even in colonial times, many of us may forget, Americans were “subjects” to the British crown.

A remarkable thing about our system is that we place all of the citizenry at the top of the hierarchy.

At the Constitutional Convention in 1787, the Founders put in writing exactly how Americans would rule themselves within a framework of individual liberty.  The document announced to the world a new concept: limited government at the heel of free people.

George Washington described this concept in a letter to a nephew shortly after the conclusion of the convention.  “The power under the Constitution will always be in the people.  It is entrusted for certain defined purposes, and for a certain limited period, to representatives of their own choosing; and whenever it is executed contrary to their interests, or not according to their wishes, their servants can, and undoubtedly will, be recalled.”

Moreover, not only could representatives be changed, but the document itself could be altered.  The Constitution’s amendment process is self-government at work.  Other writers of this series over the past 90 days highlight more than two centuries of reform and adjustment.  Our Founders set up an amazing basic framework where citizens will forever have the privilege and right, under Article V, of making amendments.

During my early years in the House I worked for the ratification of the 27th Amendment, a provision dealing with Congressional pay originally part of the Bill of Rights but left un-ratified until 1992.  It was a privilege to see the genius of our Founders at work again, two centuries later.  My respect for that genius has only grown.

Shortly after my swearing in as Speaker of the House at the start of the 112th Congress, the Constitution was read in full on the House floor.  To the best of my knowledge, this had never been done before in American history.  I hope and trust a new tradition has been initiated.

This was done not only to honor liberty-loving Americans who take seriously Washington’s advice to recall “contrary” representatives, but because my Republican colleagues had promised to put our founding documents in their proper perspective.  In our Pledge to America, we said: “We pledge to honor the Constitution as constructed by its framers and honor the original intent of those precepts that have been consistently ignored – particularly the Tenth Amendment, which grants that all 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.”

My colleagues and I also passed a House rule that requires Members to cite Constitutional authority in every piece of legislation they introduce.  The American people deserve to know that the laws we pass and the actions we take comport with the spirit of our Constitution.

Let me again thank Constituting America for their education work.  They live by the admonition of James Madison: “A well-instructed people alone can be permanently a free people.”

Since its ratification in 1788 the success of our Constitution has been a precious gift worth defending.  It is a light for the rest of the world and a torch to be handed to future generations.

The Honorable John Boehner represents the 8th Congressional District of Ohio, and is serving in the 112th Congress as the 53rd Speaker of the U.S. House of Representatives.

 

June 14, 2012 – Essay #84 – Proposed Congressional Apportionment Amendment, Essayist: David Eastman, 2011 Claremont Institute Abraham Lincoln Fellow

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http://vimeo.com/44015708

Before we conclude our 90 Day Amendment Study, we now take a look at some pending Constitutional Amendments, which have not been adopted:

The first in this short series is an amendment on Congressional Apportionment – Essayist: David Eastman, 2011 Claremont Institute Abraham Lincoln Fellow

Proposed Congressional Apportionment Amendment

“After the first enumeration required by the first article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred; after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.”

Few today may be able to tell you, but the most immediate concern in the minds of many Americans following the adoption of the Constitution was not first amendment rights concerning freedom of speech, but rather first amendment rights concerning the number of representatives in Congress. And though it receives comparatively little attention in our own day, it was this issue that the Congress was compelled to tackle in the very first constitutional amendment it adopted (September 25, 1789).

Concerns over congressional apportionment predated ratification of the Constitution and were the subject of fully three of the Federalist Papers, in one of which Madison remarked “Scarce any article, indeed, in the whole Constitution seems to be rendered more worthy of attention by the weight of character and the apparent force of argument with which it has been assailed” (Federalist 55). The initial apportionment scheme that generated such high-spirited controversy was as follows:

“The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative…”

New Hampshire (3)
Massachusetts (8)
Rhode Island (1)
Connecticut (5)
New York (6)
New Jersey (4)
Pennsylvania (8)
Delaware (1)
Maryland (6)
Virginia (10)
North Carolina (5)
South Carolina (5)
Georgia (3)
Total (65)

Madison defended this portion of the proposed Constitution against a two-pronged attack: first, that the number of representatives in Congress, being too few, was inadequate to prevent corruption of the legislative body; and second, that such a number would deprive the body of sufficient knowledge owing to the inability of members of Congress to effectively represent such a large number of constituents. Also relevant was the concern that if the House of Representatives were ever to become too numerous, its character as a representative body would be undermined. Despite Madison’s best efforts to answer these concerns, they persisted, leading several states to propose amendments to this portion of the Constitution, which they submitted to the Articles Congress with their respective ratification documents.

These, and other requests submitted by the states, resulted in the first twelve amendments passed by the United States Congress and submitted to the states on September 25, 1789. Ten of the twelve were soon adopted as the Bill of Rights, and the eleventh would lay silently awaiting ratification until approved by the State of Michigan and finally added to the Constitution 202 years later, on May 7, 1992.

The twelfth and final amendment, the Congressional Apportionment Amendment, was ratified by a majority of states at the time of its passage, but less than the three-fourths required for adoption. This could be due in part to a transcription error that resulted in a mathematically impossible apportionment formula once the population of the United States reached 8 million and before it reached 10 million. The apportionment scheme now in use is determined by Congress, in keeping with the original text of the Constitution.

As it has already secured the approval of Congress, the Apportionment Amendment could follow the path taken by the 27th Amendment and be adopted if ratified by additional states. However, its passage today is unlikely, not only due to the passage of time but also due to the fact that approval would be of limited practical effect as the scheme currently approved by Congress is already in harmony with the Amendment. It seems Congress has been successful, at least as concerns this particular amendment, in fixing a number that is neither so numerous that passions become unwieldy, nor so few that states come to question the ability of their representatives to be independent voices amidst the representatives of other states.

David Eastman is a former U.S. Army Captain, a Claremont Lincoln Fellow. He can be reached at david@davideastman.org.

June 13, 2012 – Essay #83 –Amendment XXVII – Guest Essayist: James D. Best, author of Tempest at Dawn, a novel about the 1787 Constitutional Convention, and Principled Action, Lessons from the Origins of the American Republic

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Amendment XXVII:

No law varying the compensation for the services of the Senators and Representatives shall take effect until an election of Representatives shall have intervened.

The 27th Amendment states that any law Congress passes that alters their compensation cannot take effect until after the next election.

On September 25, 1789, Congress proposed twelve constitutional amendments. In a little over two years, ten of these were ratified by the states. These very first amendments to the Constitution became our revered Bill of Rights.

The first rejected amendment proscribed a complex formula for determining the size of the House of Representatives. The second failed amendment, known as the Compensation Amendment, was written by James Madison in response to Antifederalist claims that Congress possessed the power to vote themselves rich salaries. Although this amendment failed in 1791, it eventually became the 27th Amendment.

The 11th Amendment took less than a year to ratify. Prohibition (18th Amendment) took 14 months, while repeal (21st Amendment) took only nine months. Women’s suffrage (19th Amendment) took 14 months to ratify. Giving 18 year olds the right to vote (26th Amendment) took only a little over three months. So why did it take 203 years to ratify the 27th Amendment?

In 1791, Americans didn’t see compensation of Congress as a big issue—at least, not enough of an issue to threaten liberty. If Congress became too greedy, voters would simply throw them out of office. In 1873, Congress did vote itself a retroactive raise. In a pique, Ohio ratified the Compensation Amendment. No other states followed suit, so the amendment languished—until the 1980s. Surprisingly, a grassroots campaign was ignited by an undergraduate term paper written by Gregory Watson. (He received a C grade for the paper.) On May 7, 1992, the Compensation Amendment was finally ratified by enough states to make it officially the 27th Amendment.

The irony is that this two-century process may have been made meaningless by later court decisions. Since the amendment was ratified, the only court challenge claimed that the annual Cost of Living Allowance (COLA) violated this amendment. A few taxpayers and a congressman filed suit, but a lower court ruled that the taxpayers did not have standing (standing is a legal interest in the issue that entitles the party to seek relief).  It further ruled that an automatic COLA was not an independent law subject to the amendment. On appeal, the Tenth Circuit ruled that the congressman also did not have standing. If neither taxpayers nor congressmen have standing, it’s hard to imagine a successful challenge.

Madison had crafted a clear, single sentence that 203 years later became part of the Constitution. It’s doubtful that Congress would be foolish enough to violate this minor restriction on their pay increases.

We often hear laments that our politicians no longer honor their pledge to preserve, protect and defend the Constitution of the United States.  This is backward.  The Constitution was not written for politicians.  Our political leaders have no motivation to abide by a two hundred year old restraining order.  Americans must enforce the supreme law of the land.  The first outsized words of the Constitution read We the People.  It’s our document. It was always meant to be ours, not the government’s.  It is each and every American’s obligation to preserve, protect, and defend the Constitution of the United States.

James D. Best is the author of Tempest at Dawn, a novel about the 1787 Constitutional Convention, and Principled Action, Lessons from the Origins of the American Republic.

 

April 10, 2012 – Essay #37 – Amendment IX: Rights Which Are Enumerated – Guest Essayist: W.B. Allen, Dean Emeritus, James Madison College; Emeritus Professor of Political Science, Michigan State University

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http://vimeo.com/40060581

Amendment 9 – Construction of Constitution. Ratified 12/15/1791.

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

The 9th Amendment to the Constitution was one of twelve submitted to the states for ratification in fall, 1789.  Ten of the twelve were ratified by December 15, 1791, and came to be known as the “Bill of Rights.”  An eleventh, the 27th Amendment, was ratified May 7, 1992.  The final of the twelfth, applying the relevant terms of the “Bill of Rights” to the states was never ratified.  However, the Supreme Court in the 20th Century adopted a doctrine of “incorporation” which imported many of the guarantees of the “Bill of Rights” as applying against the states through the 14th Amendment, adopted during the process of Reconstruction following the 1861-65 War for the Union.

The context for interpreting the 9th Amendment, therefore, is focused on the controlling ideas informing the “Bill of Rights.”  The Supreme Court has never provided clear guidance concerning the 9th Amendment itself.  A fundamental principle of constitutional interpretation, however, is that every article bears some intentional meaning which remains significant in understanding at minimum the intentions of the framers and the design of the institutions of self-government framed by the Constitution.  In that sense, we may take the 9th Amendment to refer primarily to the question of the breadth of the guarantees mentioned in the other articles of the “Bill of Rights.”  This follows the debate that took place over the ratification of the Constitution, in which the Antifederalists chiefly criticized the draft constitution as over-broad and threatening the rights of the people and their state institutions with the prospect of an unlimited federal/national government.  The defenders of the Constitution (the Federalists) responded that the guarantees of individual rights familiar in most of the state constitutions of the founding era should not be included in a federal constitution precisely because the federal constitution was not designed to convey the kind of police power (health, safety, and morals) that would imperil individual rights, reserving that jurisdiction to the states.  That argument is made most forcefully in essay number 84 of The Federalist Papers.  An additional argument made there is the argument that any determinate listing of guaranteed rights would bear the unfortunate implication that any specific guarantees omitted in the process of listing specific rights would imply the existence of a governmental power that had not been intended.

Once, therefore, the political compromise of adding a bill of rights to the constitution had been accepted, the authors of the amendments (mainly James Madison) thought it important to do everything possible to avert any unintended consequences of such an enumeration of rights.  The 9th of Amendment is the first of two deliberately intended to restrict the breadth of the application of those guarantees in such a manner as neither to imply unlimited power in the federal/national government nor to imply individual rights were exhausted by such an enumeration.  In that sense, the 9th Amendment creates a shadowy, unspecified realm in which certain additional rights may be discovered as reserved to the people and, to that extent, thus brought under the controlling language of the 1st Amendment, namely, that “Congress shall make no law respecting” such additional rights.  It is in that spirit that the Supreme Court in the 1965 Griswold v. Connecticut, 381 U.S. 479 decision discovered a constitutional “penumbra” within which a “right to privacy” sheltered and served to proscribe state prohibition of access to contraception.  It was because of the incorporation doctrine through the 14th Amendment that the Court was able to make use of the “Congress shall make no law respecting” the unspoken right to privacy language to enunciate a limit upon the states.  Though the Court has never said so, it should logically follow, therefore, that such a proscription against state policy can only be considered authoritative to the extent that it operates with equal effectiveness against the federal/national government.  For the language of the 9th Amendment is primarily a language of restriction on the federal/national government, as are all of the “Bill of Rights”, and in the absence of ratification of the drafted 12th amendment, applying the same terms to the states, the primary meaning of all such language must be that it is a limitation upon the government of the United States.  Besides contraception, the areas in which such application has occurred have been the parental right to educate children, the right to study a foreign language, the right to make and enforce contracts, etc.

W. B. Allen is Dean Emeritus, James Madison College; and Emeritus
Professor of Political Science, Michigan State University

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February 21, 2012 – Essay #2 – The Bill of Rights, Purpose and Benefits – Guest Essayist: Richard Brookhiser, Author, James Madison

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http://vimeo.com/37225503
The Philadelphia Convention finished the Constitution and sent it on to Congress and to the states in September 1787. There was no Bill of Rights. George Mason, delegate from Virginia, had suggested adding one at the last minute, but his fellow delegates, who had been in session for three and a half months, wanted to get done and get home. They believed they had designed a structure of government that would prevent despots or overbearing majorities from seizing power; a list of rights struck them as mere ornament. “Whatever fine declarations may be inserted in any constitution,” argued New York delegate Alexander Hamilton, in the Federalist Papers (#84), “the only solid basis of all our rights” was “the general spirit of the people and of the government.”

In the year-long national debate over whether to ratify the Constitution, it became clear, however, that the American people wanted solid protections written into the new fundamental law. Religious minorities, in particular, were alarmed that the Constitution made no specific mention of their right to worship as they wished. James Madison of Virginia, like most of the delegates to the Philadelphia Convention, originally saw no need for a Bill of Rights; it would be, he feared, a “parchment barrier,” adding nothing of substance to the structural safeguards already built into the new system. But under pressure from Baptists in his home state—a minority sect long bullied by their Anglican neighbors—and from his best friend, Thomas Jefferson, who was then serving as a diplomat in Paris, Madison came around. “A bill of rights,” Jefferson wrote him, “is what the people are entitled to against every government on earth.” Madison came to see that rights written down in black and white would become “fundamental maxims of good government.” They would “rouse the attention” of Americans, who would rally to defend them.

So in June 1789, in the First Congress, Madison, who had been elected as a representative from Virginia , took the lead in drafting a set of amendments. He originally wanted to shoehorn his new additions into the body of the Constitution, but most of his colleagues favored adding them at the end. Congress submitted twelve amendments to the states for ratification in September 1789. The first, which regulated the size of congressional districts, fell by the wayside. The second, which concerned congressional pay, was not ratified until 1992, when it became the 27th Amendment. But by December 1791, the remaining ten amendments had been ratified—the Bill of Rights of today. Their distinct position, and the magic number ten—like another famous set of laws—ensured that they would “rouse the attention” of Americans, as Madison put it.

There had been bills of rights in English and American law for centuries, and the men who drafted the American Bill of Rights drew on these precedents. The right to petition (1st Amendment) and to trial by jury (6th Amendment) went back to Magna Carta (1215). The right to bear arms (2nd Amendment) and the prohibition of excessive bail and fines and of cruel and unusual punishments (8th Amendment) appear in the English Bill of Rights (1689). The Virginia Declaration of Rights (1776) enshrined freedom of the press and free exercise of religion (1st Amendment), and forbade arbitrary search warrants (6th Amendment) and compelling anyone to testify against himself (5th Amendment).

But the Bill of Rights added two brand-new provisions. The 9th amendment protects all “other” rights not specifically mentioned in the Constitution, while the 10th amendment “reserves” powers not assigned to the federal government to the states and to the people. These fortify the structural balance of the Constitution itself. They are a warning to the future: just because we haven’t thought of everything doesn’t mean you can grab for power.

Jefferson, as he often did, found just the right words to describe the impact of the Bill of Rights, which in this case came from his experience as an amateur architect: “a brace the more will often keep up the building which would have fallen” without it.

The Bill of Rights is a worthy addition to the great work that was done in Philadelphia in 1787.

Distinguished author and historian Richard Brookhiser is the author of James Madison; America’s First Dynasty about John Adam’s family; Gentleman Revolutionary, about Gouverneur Morris; and Alexander Hamilton, American.

 

June 24, 2011 – Amendment XXVII of the United States Constitution – Guest Essayist: Charles K. Rowley, Ph.D., Duncan Black Professor of Economics at George Mason University and General Director of The Locke Institute

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Amendment XXVII

 

No law varying the compensation for the services of the Senators and Representatives shall take effect until an election of Representatives shall have intervened.

Congress is required by Article I, section 6 of the Constitution to determine its own pay.  Prior to 1969, Congress did so by enacting stand-alone legislation.  From 1789 through 1968, Congress raised its pay 22 times using this procedure.  Initially members were paid per diem.  The first annual salaries, in 1815, were $1,500.  By 1968, pay had risen to $30,000.  Since 1969 two other methods may also be used to increase the pay of members: automatic annual adjustments and a commission process.  By 2009, the annual salary of Congressmen and Senators had risen to $174,000.  So, even allowing for inflation, Congress has not demurred in paying itself well. The issue of constitutional constraints over the effecting of pay increases, therefore, is no minor matter.

The Twenty-seventh Amendment prohibits any law that changes – increasing or decreasing – the salary of members of the United States Congress from taking effect until the next two-year term of office for the Representatives.  This allows members of Congress to reflect on potential voter rage before dipping into the pockets of their taxpayer-electors.  It is the most recent amendment to the United States Constitution, ratified in 1992, just shy of 203 years after its initial submission in 1789.

The long history behind the Twenty-seventh Amendment is curious and unprecedented.  Its origins lie in very early suggestions from two founding states.  During the 1788 North Carolina and Virginia Conventions – called to consider the original Constitution that emerged from Philadelphia – wordings almost identical to those ratified in 1992 were requested of Congress.

Representative James Madison presented this proposed amendment to the House of Representatives in 1789.  It became the second of the twelve Constitutional amendments originally submitted by the 1st United States Congress for ratification by the states on September 25, 1789.  The last 10 of these would be ratified as the so-called Bill of Rights by December 15, 1791.

The proposed compensation amendment did not fare well in the hands of the states.  Between 1789 and 1791, it was ratified by the legislatures of only six states – Delaware, Maryland, North Carolina, South Carolina, Vermont and Virginia – out of the ten states then required by the Constitution.  As more states entered into the union, so the ratification threshold slowly increased under the three-quarters rule.  The proposed amendment was then largely ignored for the better part of a century.

Ohio was the only additional state to approve the amendment over that time-period, when its General Assembly voted in favor in 1873.  This ratification vote was a method of protesting the so-called Salary Grab Act of that year, providing not only for a substantial Congressional pay raise, but making that pay raise retroactive.  Almost another century would then pass until the proposed amendment was ratified by Wyoming in 1978, once again as a protest against another outrageous Congressional pay increase.  The numbers required for ratification, however, remained painfully short of those required.

Young students following this invaluable educational program should be interested to note that the issue was brought to the attention of the public once again by a person very like you.  In 1982, Gregory Watson, a twenty-year-old undergraduate at the University of Texas at Austin, wrote a term paper arguing the case for ratifying the amendment.  For this contribution, Watson received a ‘C’ grade from his professor.  Note that a ‘C’ grade in 1982, prior to the grade inflation that would follow, was an entirely respectable, though not a spectacular, evaluation.

Undeterred by this modest grade, Watson embarked on a one-man campaign for the amendment’s ratification.  From his home in Austin, he wrote letters to state legislators across the country, typing each one out separately on an electric typewriter.  Fortuitously his missives arrived on the desks of elected representatives, many of whom were confronting voter rage about their own budget-busting pay increases.  As symbolic gestures, primarily to immunize themselves from such voter alienation, state legislatures began to ratify the amendment, rationally calculating that the requisite threshold of thirty-eight states would never be achieved.

Their expectations turned out to be misplaced.  The tally of ratifying states began to rise.  Maine signed off first (1983), followed by Colorado (1984).  Then the ratifications began to flood, as the dam burst its banks.  Five states followed in 1985, three more in 1986, four more in 1987, three more in 1988, seven in 1989, and two in 1990.  Now the amendment was close, and the numbers slowed, as ratification became a real possibility.  North Dakota slipped across the line in 1991, apparently as the 35th state to ratify.  Under the close scrutiny of a watchful public, Alabama and Missouri surrendered on May 5, 1992.  Michigan broke the log-jam two days later, apparently providing the crucial 38th vote.

It would later be discovered that the Kentucky General Assembly had actually ratified all twelve amendments during that state’s initial month of statehood, making Missouri the 38th state to ratify.  The official record of the federal government, nevertheless, still recognizes Michigan as the 38th state to ratify.

Because the Twenty-seventh amendment had taken more than 202 years to ratify, a few self-seeking members of Congress challenged its validity.  Under the U.S. Supreme Court’s landmark decision in Coleman v. Miller, 307 U.S. 433 (1939), any proposed amendment that has been submitted to the states for ratification and that does not specify a ratification deadline may be ratified by the states at any time.  In Coleman, the Supreme Court further ruled that the ratification of a constitutional amendment is political in nature.  It cannot be assigned to the judiciary for oversight.

On May 18, 1992, the Twenty-seventh amendment was officially certified by Archivist of the United States, Don W. Wilson.  On May 19, 1992, it was printed in the Federal Register, together with the certificate of ratification.  In so doing, the Archivist had acted under statutory authority granted to his office by the Congress under Title 1, section 106b of the United States Code.

Immediately, Tom Foley (Democrat), Speaker of the House of Representatives, called for a legal challenge and Senator Robert Byrd (Democrat) of West Virginia scolded Wilson for certifying the amendment without waiting for Congress to scrutinize its validity.  The Archivist held his ground and on May 20, 1992, under the authority recognized in Coleman, and in keeping with the precedent first established regarding ratification of the Fourteenth Amendment, each house of the 102nd Congress passed a version of a concurrent resolution agreeing that the amendment was validly ratified despite the 202 years that it had taken.  Interestingly, the two versions of the resolution were never reconciled by the entire Congress.

From the perspective of public choice, difficulties in ratifying the Twenty-seventh amendment are understandable. The Federalists recognized from the outset the existence of a fundamental problem that over-shadows any constitutional or compound republic: who guards the guardians?  It is an evident fact of life that $100 bills are rarely left lying on the sidewalk.  If the representatives of the people can vote moneys into their own pockets without penalty, the expectation is that they will gladly so do.

What is true for the federal goose is equally true for the state gander.  So state politicians, called upon to constrain their federal counterparts, unless hard-pressed by their own voters, will not willingly put a money-bags constraint around necks that quickly might metamorphose into their own.  The more highly remunerated a state’s legislators are, the less likely they are to vote the federal ratification into law.  Massachusetts, New York and Pennsylvania have not ratified the Twenty-seventh amendment.  We do not need to strain our little grey cells to understand why this is so!

Even with the Twenty-seventh amendment in place, politicians find wiggle room around it in the form of annual cost-of-living adjustments (COLAs).  COLAs have been upheld against legal challenges based on the Twenty-seventh amendment.  In Boehner v Anderson 30 F.3d 156 (D.C. Cir, 1994) the United States Court of Appeals for the District of Columbia Circuit ruled that the Twenty-seventh amendment does not impact on annual COLAs.  In Schaffer v. Clinton 240 F.3d.876 (10th Cir. 2001) the United States Court of Appeals for the Tenth Circuit ruled that receiving such a COLA does not grant members of Congress standing in federal court to challenge that COLA.  The Supreme Court refused to grant certiorari in either case, and so has never ruled on those legal precedents.

Why should it not surprise us that the federal courts are turning a blind eye to Congressional maneuvers around the Twenty-seventh amendment?  Once again, public choice saves us from straining those little grey cells.  Federal salaries are related directly to Congressional salaries, by Congressional legislation.  It is a rare judge or justice who is prepared to challenge a maneuver that puts money directly into his or her own pocket.

The Founders strove mightily to protect the People from the potential predations of their own representatives.  Ultimately, however, only the People can protect themselves by exercising eternal vigilance at the ballot box over the behavior of the agents that they dispatch to and from Washington.

It is surely appropriate that those who guard the guardians should be the People in whose interest the Founders crafted such a beautiful Constitution, designed to protect their lives, liberties, and properties, and to allow them to engage in the pursuit of happiness as they individually define that glorious goal.

Charles K. Rowley, Ph.D. is Duncan Black Professor of Economics at George Mason University and General Director of The Locke Institute in Fairfax, Virginia.  He is author of Liberty and the State (The Locke Institute 1993), co-author (with Nathanael Smith) of Economic Contractions in the United States: A Failure of Government (The Locke Institute 2009) and the author of Never Let A Good Crisis Go To Waste (The Locke Institute 2010). All books are available at www.amazon.com. See also www.thelockeinstitute.org and www.charlesrowley.wordpress.com.

June 13, 2011 – Amendment XVIII of the United States Constitution – Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

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Amendment XVIII

 

1:  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.

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

3:  This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

Prohibition was not a novel idea in 1919. It was part of a social reform movement, the first waves of which had lapped American shores during the middle of the 19th century. It was a movement different from the ecclesiastical Great Awakenings that had surged periodically through the American colonies, though it shared some connection with those movements. Still, these reforms were sufficiently novel and widespread to lead Ralph Waldo Emerson to characterize them as a “war between intellect and affection” and its adherents as “young men…born with knives in their brain.”

Thirteen states had passed laws that prohibited the sale of alcohol by 1857, including, incredibly from a 20th-century perspective, New York. Following the Civil War and abolition of slavery, the enthusiasm for social reforms in general was exhausted in favor of a general yearning for a return to normalcy. But it returned with a vengeance towards the end of the century, with prohibitionists joining women’s rights groups to combat “demon rum.” That urge fed into a broader social movement to better the human condition and, indeed, human nature. While reformation of the human soul previously had been mainly the province of religion, the remaking of human nature had become, by the 20th century, as much a secular as a religious project. The growing middle class, “social science” movements in the study of human institutions, modern psychology, and old-style political power calculations combined in the Progressive Movement. Its adherents sought to improve human beings, as well as institutions, whether or not those human beings or institutions wanted to be improved.

The Progressives looked to the power of the state, not to individuals or private groups, to get things done efficiently. For many of their leaders, such as Princeton professor (and eventual U.S. President) Woodrow Wilson and his later advisers, such as Herbert Croly, the old institutions, such as the Constitution and the courts, were anachronisms that prevented the emergence of a better order, led by an enlightened and [P]rogressive elite. To achieve what critics then and now have characterized as totalitarianism of more or less soft type, these Progressives looked to the law as the tool to forge the new order. Law was no longer a series of constructs that reflected an inherent reason and that was useful to provide some rules to maintain a basic order in society. For the Progressives, the law was nothing less than an extension of social policy.

Alcohol prohibition also reflected the Progressive impulse to national mobilization to address issues, and the desire for a strong national government led by a strong and charismatic leader. It is not coincidental that these traits were also found in various continental European mass movements that sought to establish the new man, freed of traditional human weaknesses. The American version may have lacked some of the more pugnacious aspects of its European counterparts in Italy, Spain, Germany, and the Soviet Union, but it was close enough. As the National Review writer Jonah Goldberg has written, the period was one episode of America’s “Liberal Fascism.”

Prohibition previously had primarily been the project of the states, with Congress and the Supreme Court assisting “dry” states by declaring that their prohibitions did not violate federal control over interstate commerce. By 1913, in the Webb-Kenyon Act, Congress went further, by affirmatively forbidding the shipment of liquor in interstate commerce into dry states. Thus, prohibition became a national matter, a development also reflected in federal criminalization of drug trafficking, gambling, and prostitution. All of those were vices that the Progressives (just like their reformist ancestors) saw as products of a craven humanity that needed to be—and could be—reformed, while their critics saw such activities as necessary social safety valves, inevitable for societies composed of humans that could, at most, be nudged towards slight and gradual enlightenment at the cost of great personal effort of which most people were incapable. For the critics, laws against such behavior had the same effect as telling the tides not to come in (or commanding the sea levels not to rise).

By 1919, the Eighteenth Amendment completed the process by prohibiting the manufacture, transportation, and sale of intoxicating liquors within the United States. Later that year, Congress acted on the authority it had under that amendment and enforced national prohibition through the Volstead Act. That law set the maximum permissible alcohol content at 0.5%, an amount that outlawed anything stronger than juice from stored oranges.

In light of the negative historical reputation that has developed around Prohibition, it bears remembering that the concept was hugely popular initially. It took barely one year for the needed 36 states to approve the 18th Amendment. However, that support turned to opposition within a very brief time, in the process raising a number of constitutional questions about that amendment specifically, and about the constitutional amendment process more generally.

A novel attribute of the 18th Amendment was a clause that required the amendment to be adopted within 7 years. When the issue was presented to the Supreme Court in Dillon v. Gloss in 1921, Justice Willis Van Devanter upheld this limitation for a unanimous court. Van Devanter concluded this clause was not part of the amendment, but part of Congress’s resolution of submission of the amendment to the states. Therefore, such a clause did not violate Article V, which deals with amendment of the Constitution.

Van Devanter’s opinion was important for the proposed Equal Rights Amendment of the 1970s. When that amendment failed to gain passage during the time (7 years) set, Congress by a majority vote—but not two-thirds—added three years to the timetable for adoption. While this action arguably was constitutional in light of Dillon, it came at a political price. Opponents made an effective case that the extension was political overreaching, at best, and unconstitutional, at worst.

The Dillon court had also declared that it was a good idea that constitutional amendments be adopted within a certain time-frame, to reflect a dominant political consensus at a particular time. Van Devanter noted that there were still several proposed amendments that had not been ratified, including two from the original twelve in the Bill of Rights. He questioned whether such an amendment would be legitimate, if adopted after such long dormancy. That hypothetical became concrete when the 27th Amendment (dealing with Congressional pay changes) was adopted by the requisite number of states in 1992, after two centuries of constitutional purgatory.

Interestingly, Van Devanter may have had a point because the practice has been not to allow states to rescind their approval of an amendment even though the amendment may not have been adopted on the date of the attempted rescission. Of course, states are free to approve after having previously refused to adopt the proposal. This one-way ratchet in favor of approval has little to recommend it jurisprudentially over the opposite view. It was simply the product of political necessity, when Congress refused to allow states to rescind approval of the 14th Amendment because the unpopular and controversial amendment’s congressional supporters needed every state they could to get it past the constitutional finish line.

Another curiosity of the 18th Amendment was that, as disillusion set in, many of the new opponents were Progressives and elites of all political stripes. Due to the perceived difficulty of repealing the amendment, they urged nullification by having the states refuse to enforce the federal laws and decline to make their own. The irony of their position was not lost on them, as they openly appealed to the success that Southerners had enjoyed with their refusal to enforce the 14th and 15th Amendments. Sounding like John C. Calhoun and other 19th-century Southern apostles of nullification, these good liberals distinguished between lawbreaking and orderly, principled, majoritarian nullification.

Another question involved whether the Ohio legislature could approve the 18th Amendment when a non-binding popular referendum had resoundingly rejected it. In Hawke v. Smith in 1920, Justice William Day’s opinion for a unanimous Supreme Court held that the legislature, voting on a constitutional amendment was performing a federal function under Article V, not a state function. Since Article V did not provide for popular referenda, the voters of Ohio had nothing to say about the matter, a proposition of some delicacy, since state legislative elections rarely turn on how a legislator proposes to vote on a federal constitutional amendment that, typically, is not submitted until after such election.

Finally, a number of opponents urged that any amendment, such as the 18th, that curtailed individual rights, must be adopted by state constitutional conventions, not state legislatures. Though it was not expressly required by Article V, such had been the approach for the Bill of Rights. The Supreme Court rejected that argument unanimously in U.S. v. Sprague in 1931, but the argument had such political appeal that Congress directed that the repeal of prohibition through the 21st Amendment be decided by state constitutional conventions.

 

An expert on constitutional law, Prof. Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

May 23, 2011 – Amendment III of the United States Constitution – Guest Essayist: Robert Chapman-Smith, Instructional Design Associate at the Bill of Rights Institute

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Amendment III

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

In the realm of constitutional law, obscurity knows no better companion than the Third Amendment of the U.S. Constitution. No direct explication of the Amendment appears in the reams of opinions the Supreme Court has issued since 1789. In fact, save for Engblom v. Carey (1982), no explication offered by the whole of America’s judicial branch directly engages the tenets of the Amendment. And yet, the significance of the Third Amendment lives on as a jewel that has an inherent value which cannot be augmented or diminished by present-day utility.[1]

The common law lineage of the Third Amendment stretches deep into history. Early Anglo-Saxon legal systems held the rights of homeowners in high regard—viewing firth (or peace) to be not a general thing encompassing the entire community, but rather a specific thing comprised of “thousands of islands . . .  which surround the roof tree of every householder . . . .”[2] But Saxon-era legal institutions never had to contend with quartering issues. This is due primarily to the absence of standing armies and the reliance on fyrd—a militia to which all abled bodied men owed service for a period normally not to exceed forty days in a given year. Not until the Norman Conquests of 1066 did popular grievances against quartering (also known as billeting) begin to manifest.[3]

Attempts to codify provisions against quartering predate the Magna Carta—most notably appearing in 12th century charters like Henry I’s London Charter of 1131 and Henry II’s London Charter of 1155.[4] But early attempts to prevent involuntary quartering by law proved inadequate, especially as armed conflicts transitioned from feudal Saxon-era fyrds to monarchs hiring professional soldiers. Men of questionable character comprised the bulk of these mercenary armies. Kings pressed criminals into service in exchange for having crimes and misconduct forgiven. Though they fought well, these men would draw little distinction between friend and foe and would continually mistreat civilians.[5]

As time drew on, other efforts to quell quartering fell well short of success.[6] The problem compounded exponentially under Charles I, who engaged in expensive and wasteful wars that spanned across Europe. Charles I conducted these wars without receiving approval from Parliament. Parliament balked at the idea of financing Charles’ wars—forcing the soldiers in Charles’ army to seek refuge in private homes.[7] By 1627, the problem became severe enough that Parliament lodged a formal complaint against quartering in its “Petition of Right.”

But the “Petition of Right” did nothing to change quartering practices. During the English Civil War, both Royalists and Roundhead armies frequently abused citizens through quartering—despite the official proclamations that damned the practice. During the Third Anglo-Dutch war, conflicts between soldiers and citizens erupted over forced quartering.[8] In 1679, Parliament attempt to squelch concerns by passing the Anti-Quartering Act, which stated, “noe officer military or civil nor any other person whatever shall from henceforth presume to place quarter or billet any souldier or souldiers upon any subject or inhabitant of this realme . . . without his consent . . . .”[9] James II ignored the Act and the continued grievance over billeting helped propel England’s Glorious Revolution. Upon William II’s ascension to the throne, Parliament formulated a Declaration of Rights that accused James II of “quartering troops contrary to law.” Parliament also passed the Mutiny Act, which forbade soldiers from quartering in private homes without the consent of the owner. Parliament extended none of these limited protections to the colonies.[10]

In America, complaints against quartering began surfacing in the late 17th century. The 1683 Charter of Libertyes and Privileges passed by the New York Assembly demanded that “noe freeman shall be compelled to receive any marriners or souldiers into his house . . . provided always it be not in time of actuall warr in the province.”[11] The quartering problem in the colonies grew exponentially during the mid-18th century. The onset of the French-Indian War brought thousands of British soldiers onto American shores. Throughout much of Europe, the quartering issue had dwindled due to the construction of permanent barracks. Colonial legislatures recoiled at the thought of British soldiers having such accommodations and repeatedly denied British requests for lodging.

The close of the French-Indian War brought about even more challenges. In an attempt to push the cost of defending the colonial frontier onto the colonists, Parliament passed the Quartering Act of 1765. The Act stipulated that the colonies bear all the costs of housing troops. It also legalized troop use of private buildings if barracks and inns proved to be insufficient quarters. In an attempt to secure the necessary funding for maintaining the army, Parliament passed the Stamp Act—“as a result, the problems related to the quartering of soldiers became entwined with the volatile political issue of taxation without representation.”[12]

Quartering issues continued to surface, worsening gradually with each occurrence. In 1774, Paliament passed a second Quartering Act that was more arduous than the first. Due to its specific legalization of quartering in private homes, the second Quartering Act would become one of the “Intolerable Acts” lodged against the King and Parliament. Grievances against British quartering practices appeared in a series of declarations issued by the Continental Congress: the Declaration of Resolves, the Declaration of Causes and Necessities, and the Declaration of Independence.[13]

After successfully gaining independence from Britain, many states enacted new constitutions or bills of rights that offered protection against involuntary quartering. As had been the case in England, the quartering issue was entwined with the maintenance of a standing army. The 1787 Constitutional Convention, and the Constitution that arose from it, gave Congress the power to raise and support armies. The Constitution focused little attention on individual rights. That omission troubled many delegates both at the Convention in Philadelphia and at the ratification debates throughout the states.

Chief among the concerns pertaining to the military provisions of the Constitution was a fear that the new American government might be as oppressive as the British one it aimed to replace. As Patrick Henry noted:

“one of our first complaints, under the former government, was the quartering of troops upon us. This was one of the principal reasons for dissolving the connection with Great Britain. Here we may have troops in time of peace. They may be billeted in any manner—to tyrannize, oppress, and crush us.”[14]

The Anti-Federalists routinely stressed the Constitution’s lack of protection against standing armies and involuntary quartering. Many states echoed the concerns of the Anti-Federalists. Of the ninety types of provisions submitted to Congress, only seven appeared more frequently than provisions addressing quartering.

But James Madison and the Federalists viewed such provisions as unnecessary. Any Constitution that provides a democratic process for the maintenance of a standing army will, by consequence, solve any quartering issues that may arise. As Madison noted during the Virginia ratification debates:

“He says that one ground of complaint, at the beginning of the revolution, was, that a standing army was quartered upon us. This is not the whole complaint. We complained because it was done without the local authority of this country—without the consent of the people of America.”[15]

Madison also expressed skepticism about the need for a bill of rights. In a letter to Thomas Jefferson, Madison eschewed bills of rights as “parchment barriers” easily trampled by an overwhelming majority in a respective state.[16] Nevertheless, Madison took up the challenge of constructing a federal bill of rights and among his proposed amendments, which he derived from the previously mentioned state proposals, was an amendment addressing quartering.

The House debate on the Amendment was short. A few members wished to edit the text of the Amendment, imbuing in it a stronger protection of the homeowner, but all such measures were defeated and the Amendment became one of the ten enshrined in the Bill of Rights.[17]

As mentioned before, the Third Amendment is one of the least litigated provisions of the Constitution. Perhaps this lack of legal cases is due to the self-evident nature of the Amendment. As Justice Joseph Story notes, “this provision speaks for itself. Its plain object is to secure the prefect enjoyment of that great right of the common law, that a man’s house shall be his own castle, privileged against all civil and military intrusion.”[18] Yet the absence of litigation does not itself entail that the Amendment has at all times existed without violation.

Involuntary quartering on the part of United States soldiers appears to have happened during the War of 1812. While Congress did declare war on England, thus giving itself the authority to regulate quartering, it failed to provide any regulations governing the practice of billeting.[19] After the war, Congress did provide payment to those whose property was used “as a place of deposit for military or naval stores, or as barracks . . .”[20]

The Civil War brought about another instance of quartering under the Third Amendment—though its case is substantially more complicated than the War of 1812. Congress did not declare war on the Confederacy and it is unclear how periods of insurrection affect the Third Amendment’s distinction of peace and war. Regardless, even if a de facto state of war existed, Congress never issued any regulations governing the practice of quartering. Yet instances of the Union Army quartering in private homes appear in both loyal and rebel states.[21] The question of whether this action violated the Third Amendment is unsolved and is likely to remain so, as no Third Amendment case ever arose out of the Civil War era.

The lack of litigation and judicial action has left open some interesting questions about the applicability of the “self-evident” Third Amendment. One of these questions involves the Amendment’s applicability to the states.  Today, America’s troops enjoy barracks and accommodations so sufficient that it seems unlikely that troops would ever need to be garrisoned in a private home. Yet the question remains that, if an issue did somehow arise, would a state’s National Guard regimen be obligated to follow the Third Amendment (if no such provision existed in a state’s Constitution)? That question arose in 1982 with Engblom[22], yet the question still lacks a definitive answer.

Though it is sometimes ridiculed and is rarely discussed, the Third Amendment enshrines a right with a common law history as rich as any. Quartering abuses committed against the colonists propelled America into the Revolutionary War. After victory, the Founders worked to protect the public against any future abuses. The onset of the modern military tactics has seemingly thrown the usefulness of the Third Amendment into doubt, yet the Amendment still provides interesting and unanswered questions about federalism and the interaction of overlapping constitutional protections.


[1] This sentence paraphrases a metaphor from Grounding for the Metaphysics of Morals in which Immanuel Kant describes a good will as “a jewel … which has its full value in itself. Its usefulness or fruitlessness can neither augment nor diminish this value.”

[2] Bell, Tom W.. “The Third Amendment: Forgotten but not Gone.” William and Mary Bill of Right’s Journal 1, no. (1993): 117-118.

[3] Fields, William S., Hardy, David T., “The Third Amendment and the Issue of the Maintenance of Standing Armies: A Legal History .” American Journal of Legal History 35, no. (1991): 395-397.

[4] English Historical Documents: 1042-1189, at 945 (David C. Douglas & George W. Greenway eds., 1953) (“Let no one be billeted within the walls of the city, either [a soldier of the King’s household] or by the force of anyone else.”)

[5] Fields & Hardy supra note 3 at 403

[6] The late Tudors had a bit of success expanding and improving the traditional militia system, but this system collapsed under James I, a pacifist who favored the repeal of militia statutes.

[7] Hardy, B. Camron. “A Free People’s Intolerable Grievance: The Quartering of Troops and the Third Amendment.” Virginia Calvacade 33, no. 3 (1984): 127

[8] Fields & Hardy supra note 3 at 403 – 405

[9] Great Britain. Statutes of Great Britain. London: , 1950. Print.

[10] Bell supra note 2 at 123

[11] Schwartz,Bernard. Roots of the Bill of Rights. Bernard Schwartz. 1980

[12] Fields & Hardy supra note 3 at 417

[13] Id at 417-18

[14] The Founder’s Constitution. 1 ed. 5, Amendments I-XII. Philip B. Kurland and Ralph Lerner. Indianapolis: Liberty Fund, Inc., 217

[15] Id

[16] Fields & Hardy supra note 2 at 424

[17] Kurland & Lerner supra note 14 at 217-18

[18] Id at 218

[19] Bell supra note 2 at 136

[20] Little, Charles. “Statues at Large Vol. 3.” A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774 – 1875 . Available from http://memory.loc.gov/ammem/amlaw/lwsllink.html. Internet; accessed 22 May 2011.

[21] Bell supra note 2 at 137

[22] Id at 141-142

 

Robert Chapman-Smith is the Instructional Design Associate at the Bill of Rights Institute, an education non-profit based in Arlington, Virginia. He holds a Bachelor of Arts in Philosophy from Hampden-Sydney College.

May 19, 2011 – Amendment I of the United States Constitution – Guest Essayists: Mr. Kelly Shackelford, President and CEO for Liberty Institute, and Justin Butterfield, Constitutional Attorney, Liberty Institute

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Amendment I

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.

First Amendment to the U.S. Constitution

Perhaps the most important and the most contentious portion of the United States Constitution, the First Amendment to the U.S. Constitution—the first of the Bill of Rights—was instrumental in ensuring that the new Constitution would be accepted by citizens of the fledgling United States at the end of the eighteenth century. The Constitution set up a government of limited, enumerated powers. “Enumerated powers” meant that the federal government, as originally envisioned, could take no action unless the Constitution explicitly granted the government the power to take that action. In theory, then, the federal government could not restrict freedom of speech because the Constitution did not give Congress permission to restrict freedom of speech. Many American citizens, however, having just fought a war resulting from Britain’s disregard for their rights, were leery of entrusting their newly-won freedom to a government with no explicit protections for individual rights. They did not believe that the “lack of permission” for Congress to act was strong enough protection. To address these concerns, twelve articles, known as the Bill of Rights, were submitted to the states for ratification as amendments to the Constitution. Of these twelve articles, the last ten were ratified in the eighteenth century (the second article of the Bill of Rights was ratified in 1992 as the 27th Amendment to the U.S. Constitution). Unlike the main text of the Constitution, the articles of the Bill of Rights are explicit prohibitions on the government, designed to prevent the federal government from being able to trample on the rights of states and citizens.

The First Amendment famously begins, “Congress shall make no law….” The First Amendment originally limited only Congress and, thus, the federal government. State and local governments were not limited by this (or any other) amendment to the Constitution. The First Amendment was considered to only apply to the federal government until 1925 when the Supreme Court, in Gitlow v. New York, held that the Fourteenth Amendment, which applies to the states, “incorporated” the First Amendment.

Following the statement that the First Amendment applies to Congress are five clauses, each protecting one aspect of the flow of ideas. These five clauses are the Establishment Clause (“…respecting an establishment of religion”), the Free Exercise Clause (“or prohibiting the free exercise thereof”), the Free Speech Clause (“or abridging the freedom of speech”), the Free Press Clause (“or of the press”), and the Assembly and Petition Clause (“or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”).

The first two clauses of the First Amendment protect religious liberty. The Establishment Clause, a reaction against the abuses of the Church of England, was originally intended to prohibit the government from establishing an official national religion or supporting one religious denomination over another. This clause has since been re-interpreted to say that government may not favor religion in general, thus leading to increased attempts to secularize society, including banning any possibly perceived “endorsement” of religion by the government. The Free Exercise Clause is the counterpoint to the Establishment Clause. While the Establishment Clause prevents the government from establishing a religion, the Free Exercise Clause prohibits the government from interfering with individuals’ religious expression.

The Free Speech Clause of the First Amendment protects the expression of ideas. Not all speech is equally protected, however. Political speech is afforded the greatest protection under the First Amendment. Commercial speech—speech done to make a profit—is given less protection. The guaranty of freedom of speech does not extend to certain types of speech, such as obscenity or speech that incites immediate violence. The government is also allowed to place some reasonable limits on when, where, and how speech can take place, but these limits cannot be used to favor one viewpoint over another. For example, a government can prohibit the use of megaphones at night near residential areas, or a government can prohibit a demonstration from walking through a secured military base. If, however, the government allows one group to use a megaphone at night near a residential area, then the government cannot prohibit another group from doing so based on the viewpoint that the second group espouses.

The Free Press Clause is closely related to the Free Speech Clause, but applies to printed communications. This clause has also been used to strike down taxes that specifically target newspapers and laws that require “fairness” in reporting.

Finally, the Assembly and Petition Clause protects the right of people to assemble together and to petition the government. This clause is important in a republic because petitioning the government is one of the main ways the citizenry exercises its sovereignty. While this clause protects the right of the people to petition the government, it does not require that government officials actually listen to or respond to any petition attempt.

Ultimately, a true republican form of government cannot exist apart from the free flow of ideas. Additionally, this amendment ensures that the government cannot impose a state orthodoxy, violating the conscience of those who hold unpopular views or forcing them into intellectual submission. This amendment also ensures that open debate is not thwarted, for as John Milton said, “Though all the winds of doctrine were let loose to play on the earth, so Truth be in the field, we do injuriously, by licensing and prohibiting, to misdoubt her strength. Let her and Falsehood grapple; who ever knew Truth put to the worse, in a free and open encounter.”

Kelly Shackelford, Esq., is President/CEO for Liberty Institute, a post he has held since 1997. A constitutional scholar, Mr. Shackelford has argued before the United States Supreme Court, testified before the U.S. House and Senate on Constitutional issues, and is on the Board of Trustees of the United States Supreme Court Historical Society.

Justin Butterfield, Esq. is a Constitutional attorney on staff with Liberty Institute. Mr. Butterfield graduated from Harvard Law School in 2007.  He also holds a Bachelor of Science degree in Electrical Engineering from the University of Texas at El Paso where he graduated Summa Cum Laude.

March 11, 2011 – Article I, Section 06, Clause 1 of the United States Constitution – Guest Essayist: William C. Duncan, Director of the Marriage Law Foundation

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Article 1, Section 6, Clause 1
1:  The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States.6   They 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.

Under the Articles of Confederation, members of Congress were paid by the State they represented. In the Philadelphia Convention, there was some support for continuing this practice but the delegates opted instead to have national legislators receive uniform pay from the federal government.

In the ratification debate, the example of Rhode Island was invoked because it had failed to pay its representative in the Confederation Congress, thus effectively recalling them from service and leaving the state unrepresented. Under the Confederation, this was perhaps not too risky since the national government had so little power that it was unlikely to do much damage to the state’s interests. Under the new, more robust, national government created by the Constitution, lack of representation would be more impactful. The very real possibility that states would be added from the Ohio territory; states which would likely be poor and unable to pay legislators much; was also a relevant consideration in determining to pay members of Congress from the public fisc.

In both cases, the plan of representation on the national government might be frustrated if states and citizens were left unrepresented for lack of state money to pay salaries or unwillingness to appropriate it. (Although, on the other hand, there might be some value in having less representation from states that have bankrupted themselves through financial mismanagement.)

The other salient question for the Constitutional Convention was what the pay would be. An early draft suggested “liberal” compensation and Benjamin Franklin proposed “moderate.” The final decision was to proceed without a modifier. Congress could decide its own salary, though with the understanding that constituents would be watching. The check provided by voters was later strengthened by the adoption of the 27th Amendment which prevented any Congressional pay raise from going into effect before an intervening election allowed voters to weigh in on the vote for the raise.

The second part of the clause is referred to as the “Speech or Debate Clause.” It has an honorable pedigree stretching back at least to the English Bill of Rights of 1689. The Articles of Confederation (article 5) contained a similar provision. The clause “provides legislators with absolute immunity for their legislative activities relieving them from defending those actions in court.” United States v. Jefferson, 546 F.3d 300 (4th Cir. 2008).

The concern here is that the legislative branch of the new national government be protected from attempts to either intimidate or punish members for their expression in Congress. Thus, for instance, members cannot be sued for libel based on comments they make in debates in the House and Senate and are not subject to prosecution for those statements. This ensures not only a robust debate but the independence of the legislative branch.

The controversies related to this Clause have typically involved its scope. When a Senator placed classified government documents (the Pentagon Papers) into the public record and was reportedly trying to arrange private publication of the papers, a grand jury issued a subpoena to a member of the Senator’s staff. In the resulting case, the U.S. Supreme Court said the actions of Congressional aides in pursuance of duties that would be protected by the Clause if done by members of Congress were also protected. The court did not prevent the grand jury from investigating the private publication question since such was outside the scope of legislative duties. See Gravel v. United States, 408 U.S. 66 (1972).

Criminal conduct, such as corruption or accepting bribes is not legislative work (one can only hope) and is also not protected by the Clause. See United States v. Brewster, 408 U.S. 501 (1972). In another case, the Supreme Court said a defamation lawsuit based on statements in a Senator’s press release was not protected by the Clause. See Hutchinson v. Proxmire, 443 U.S. 111 (1979).

On the other hand, legislators are protected while “speaking on the House or Senate floor, introducing and voting on bills and resolutions, preparing and submitting committee reports, acting at committee meetings and hearings, and conducting investigations and issuing subpoenas.” Tod B. Tatelman, “The Speech of Debate Clause: Recent Developments,” CRS Report for Congress (2007) pp.2-3 at http://www.fas.org/sgp/crs/misc/RL33668.pdf.

William C. Duncan is director of the Marriage Law Foundation (www.marriagelawfoundation.org). He formerly served as acting director of the Marriage Law Project at the Catholic University of America’s Columbus School of Law and as executive director of the Marriage and Family Law Research Grant at J. Reuben Clark Law School, Brigham Young University, where he was also a visiting professor.

April 27, 2010 – The Amendments to the United States Constitution – Cathy Gillespie

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Great discussion today – loved seeing some new names blogging!   Remember to invite your friends to join the conversation – and share this with your children! Encourage them to enter our We The People 9.17 Contest – sign up online ASAP – entries due July 4!  Tell high school students we especially need short films, PSA’s and we are asking middle schoolers and high schoolers to compose cool songs!  Students can enter in teams of two for the songs, short films and PSA’s.  Sign up today!

Tackling the Bill of Rights, and the Amendments in one day was a big job!   As I read through the Amendments, I wondered about the efforts and battles that must have gone into the passage of each.  Reading through the Amendments is like a quick reading of the history of our country.  The Amendments reflect the times and current events in the eras in which they were passed.  We can be proud as Americans that MOST of the Amendments reflect the founding fathers’ principles. (see today’s and yesterday’s blog for lively discussion on some such as the 16th and 17th which many feel do not!)

All of the Amendments have fascinating stories that accompany their passage.  We all know of the stories and have seen photos of the women’s suffrage movement, for example. That battle spanned 50 years before Congress approved the 19th Amendment in 1919 and 3/4 of the States ratified it in 1920. But there is an interesting back story to the passage of the 19th Amendment that I love.  In August of 1920 Tennessee was the final state needed to achieve ratification of the 19th Amendment. The vote in the Tennessee Legislature came down to a young State Representative, Harry Burn, who represented a district bitterly divided on the issue, and who was facing re-election that fall.  Representative Burn had voted previously with the Anti-Amendment forces.  The vote was tied 48-48, and Harry was expected to vote with those opposing the Amendment again.  But Harry carried a letter from his mother in his breast pocket, admonishing him “Don’t forget to be a good boy,” and vote for the Amendment.  Harry surprised everyone by voting yes, and thus on August 18, 1920 Tennessee became the 36th State to ratify the 19th Amendment, and one young 24 year old man empowered millions of women in our country with his brave vote.

Earlier today Rich asked an interesting question about how the 17th Amendment came to be passed, so I pulled two books off my shelf that I recommend to anyone who is interested in the stories and history of the Amendments, the Bill of Rights, and the Constitution:

Seth Lipsky’s The Citizen’s Constitution: An Annotated Guide (2009) and the Heritage Foundation’s Guide to the Constitution, edited by Ed Meese, Mathew Spalding and David Forte (2005).

Upon reading about the 17th Amendment’s history in both of the above sources, I found it was passed in reaction to many State legislatures which were deadlocked on the issue of choosing a U.S. Senator, thus leaving their states without representation in the U.S. Senate. The 17th Amendment was passed in the name of enhancing Democracy, yet many feel it has been detrimental to protecting States’ rights, expanding the federal government’s reach.

To me, the most important Amendments to our Constitution were the 13th, 14th and 15th Amendments, which abolished slavery, established citizenship for former slaves, and prohibited restrictions on the right to vote based on color, race or previous condition of servitude.  President Lincoln received pressure from those who thought the 13th Amendment should be ratified only by the Northern States, in order to get it done quickly.  But Lincoln favored 3/4 ratification of the 13th Amendment by all the States, so the Amendment’s legitimacy could not be challenged.  He also believed the ratification process in the Southern States was important to Reconstruction and healing.  Regarding the 14th Amendment, Seth Lipsky writes, “Were the Amendments musical compositions, the fourteenth would be the grand symphony in four movements, full of exciting themes, varied movements, and clashing symbols….” Indeed the 14th did much more than overturn the Dred Scott decision and extend citizenship to former slaves, it contains the State Action, Privileges or Immunities, Due Process and Equal Protection Clauses, as well as Section Two, Apportionment of Representatives. The 15th Amendment, the last of the Amendments dealing with Reconstruction, prohibited voting discrimination for former slaves, and any voting discrimination based on race and color.  These three Amendments set the stage for the healing of our country.

It is another testament to the beauty of our Constitution that the Amendments read like a short hand version of the history of the United States.  It is all there, from the the 11th Amendment stemming from States being held accountable for their Revolutionary War Debts, to the 27th Amendment restricting congressional pay raises from taking effect until after an election. Interestingly the 27th Amendment was first proposed in 1789 and finally ratifed in 1992!

What will our next Amendment be?   Let us pray it will reflect the founding fathers’ principles as so many of our great Amendments have.  The only thing that is certain, though is that fascinating stories and struggles will accompany its passage, and it will add to the historical narrative of our country which is embodied in the United States Constitution.

Posted in Constitutional Essays by Cathy, The Amendments to the United States Constitution | 7 Comments »

7 Responses to “April 272010 – the Amendments to the United States Constitution – Cathy Gillespie

  1. Susan says:

    We were trying to place the amendments in the context of history by guessing what was going on at the time they were enacted without peeking at the date. Amazingly, we were pretty close.

  2. Mary Lou Leddy says:

    I want to thank bothCathy and Janine for their blogs on the amendments today. As I have never studied theConstitution, Bill of Rights and the amendments in great detail before ; I must admit it can be very challenging to understand; but your blogs as well as the essays of the guest bloggers have made some things much clearer. Thank you again. I look forward to continuing this great study

  3. Pam says:

    I have been trying to get an answer to this question for about a month. In regards to illegal aliens, George Wills wrote an article stating that our policy of granting citizenship to children born in this country to illegal aliens is a misapplication of the 14th Amendment. That it does not apply to illegal immigrants, because at the time it was written, there were no restrictions on immigration.

    As far as I know, we are the only country that has this policy. Right now (to quote George) the best thing a poor person of any country can do for their children is to have them here. I think that changing our policy in regards to children of illegals would go a long way to stop the flood. Any comments?

  4. Susan Craig says:

    My understanding of the whys and wherefores of the 14th was to clarify the citizenship status of the newly emancipated slaves after the Civil War and its intention was never for transient immigrants who wish to anchor themselves here with all the privileges but not necessarily the duties.

  5. Sandra Rodas says:

    I realize that to keep with the 90 day format, it was necessary to have all the amendments be covered in one day, but it sure would be nice to look at each in a little more depth. Maybe when the 90 day challenge is over, we could revisit them one at a time on the blog.

  6. Martin says:

    With regard to the 14th Amendment. Those who would reinvent the Constitution as a document of positive rights versus a document of negative rights have sought to contort the “privileges and immunities” clause to meet their ends.

    Basically, the Constitution is written as a set of guarantees limiting what government actually has the power to do and in fact, limiting what it can do to it’s citizenry. There is a movement under way to redefine government in terms of what it must do for its people.

    The Slaughter supreme court decisions (right after the Civil War) have defined this narrowly to apply to the states, guaranteeing that the federal government supersedes state governments only in the realm of guaranteed protections specified by the Bill of Rights.

    The folks who promulgate the concept of the Constitution as a “living” document want to overturn this precedent so that more “rights” can be forced down over the objections of the states. These new “rights” would be things like – housing, guaranteed employment, health care, and guaranteed access to the political process. By defining them as obligations or entitlements, the government would have to take steps to ensure that they are fulfilled. This would necessarily entail funding and enforcement.

    The movement doing this is called the Constitution 2020 movement.

    Hillsdale College recently produced a paper documenting their efforts. I’ve written a synopsis at whatwhouldthefoundersthink.com, where I’ve included links to this paper as well links to some of this groups writings.

  7. Kirk John Larson says:

    Greetings and Salutations,

    I wish to address certain issues. The 17th Amendment and the 2020 Movement.

    Cathy pointed out that some have argued that the 17th Amendment hurt States rights, and it did. In passing that amendment, State Governments no longer have true representation in Washington. As a result, the Federal government has infringed upon States issues by mandating how the States spends its tax revenues and what laws to pass lest the Federal government would suspend funding as a form of punishment over the states. This practice works to diminish the role and need for State Governments at all. This has been the plan by progressives since 1913. More over, by stripping the State Governments of authority, the Public role in governance and more over the publics ability to self govern is also eroded.

    As for the Constitution 2020 movement; this effort to impose ‘new rights’ is not to say our rights have been lost or confused but to say that the US Government is the sole granter of “Rights.” This is a secular push toward a more socialized society where in the Government defines and prescribes where you live, how you live, and whether or not you live.

    Housing is a replaceable commodity, (Just ask any tornado.) Employment is a personal choice and on occasion deniable due to the lack of employers. Ultimately, the “Right to Employment” is to destroy the Entrepreneurial Spirit of America. Health Care is a personal responsibility. The effort hear is ultimately establish euthanasia as a legal recourse. Then there is guaranteed access to political process, which is an intent to eradicate responsibility. Today, under the law, criminal conduct suspends your rights to vote or participate in the political process such as serving as a representative in congress. (either house) The idea the progressives have here is Americans should be free from responsibility and consequences for their actions. This is intended to bring more freedom but will actually encourage chaos. As a result, the very idea actually produces the opposite affect as the public cannot be trusted to conduct themselves responsibly, so totalitarian rules must be imposed. The two step process bring greater freedom from responsibility and consequences is to eliminate freedom altogether.

    The left will argue to the contrary but the truth is; the absence of responsibility produces chaos and public endangerment.
    Socialism has failed time and again. It will always fail because it dehumanizes the people into little more than cattle to be processed.

 

April 21, 2010 Article I of the U.S. Constitution – Janine Turner

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Howdy from Texas! What a great first day of blogging. How exciting to be having a national conversation about the reading of the U.S. Constitution. Don’t forget to read it with your kids at the dinner table, in the car, before bedtime! Perhaps they will then want to enter our, “We the People 9.17 Contest” for kids.

I want to thank David Bobb for being our first Guest Blogger. We have the link to his site at the Kirby Center on our site and they offer a fabulous five hour seminar about the Constitution that is broken down into 45 minute segments.

I get such a thrill when I read the Constitution. Our forefathers had such vision and  such wisdom! The Preamble is masterful and within it lies thoughts to ponder. Some relevant phrases today are: “promote the general welfare.” It does not say “specific welfare of every individual.” We are given liberty to pursue our welfare as we wish.

This leads to the second relevant phrase: “secure the Blessings of Liberty to ourselves and our Posterity.” Well, let’s see.. the word Blessings is in there. Blessings are not from “government” but from God. We then have the word, “Liberty.”  How does one define Liberty? I looked up the word, “Liberty.” Here are two of the definitions:  “immunity from arbitrary exercise of authority: political independence.” Another definition is: “freedom of choice”; “liberty of opinion”; “liberty of worship..” If we are to take an inventory of our immunity form arbitrary exercise of authority and/or political independence today, then I think it is safe to say that these liberties are being infringed upon. How about freedom of opinion? It would certainly appear that the negative labeling of the Tea Party is an attempt to stifle freedom of opinion. How about freedom of worship?  What about the child in Massachusetts who was taken out of class and sent to the psychiatrist because the child drew a picture of the cross of Jesus?  Thus, in the Preamble, alone, I see many aspects that are both relevant and endangered.

Article I Section 8 drew my fascination. Our founding fathers intended for the two Senators from each state to be chosen by the State Legislature. The Senate was to be the State’s house and the House of Representatives the People’s House. This was changed, as we read today, by the XVII Amendment in 1913  – during the Progressive era. This was not our forefather’s intention. One has to ask  would the healthcare bill have passed today if the Senate was operating within it’s original intent – the Senate representing the States? Somehow, I do not think so.˜

The other clause that captured my attention was in Article 1 Section 8 Clause 8: “to promote the Progress of Science and useful Arts, by securing for Limited times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” I think that this security of ownership gave people the desire and passion to spread their wings and fly. This clause gave Americans the burst of inventions and creativity that made America great. Promoting progress and giving the Inventors exclusive rights – in other words- giving the people their Liberty and keeping government out of their affairs – led to the fulfillment of human genius. Big government, the kind we face today, stifles the spirit of democratic ingenuity and deflates desire.

The list goes on and the study is broad. Yet, I am so grateful to have this opportunity to be reading, blogging, thinking about the U.S. Constitution with you all. I thank you for your participation. I look forward to hearing from you tomorrow and spread the word!

Blessings,

Janine Turner

Posted in Article I of the United States Constitution, Constitutional Essays by Janine | Edit | 10 Comments »

10 Responses to “April 21, 2010 Article I of the U.S. Constitution – Janine Turner”

  1. Jeff Phinney says:

    Last year I bought and began reading “The Words We Live By – Your Annotated Guide to the Constitution” by Linda R. Monk.

    One of the passages I highlighted was a quote by Judge Learned Hand during WWII that emphasizes that the constitution depends on the citizens for its support:

    “I often wonder whether we do not rest our hopes too much upon constitutions, upon laws, and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it”

    Miss Turner, thank you for the opportunity to allow us citizens to learn and hopefully support our Constitution and the documents that are the foundation of this great nation.

  2. Kristine says:

    Good of you to point out in your blog the distinction of who elects members of each house (originally): state legistlators to elect Senators and the people to elect Representatives . I read but did not register the import of the words written.

  3. Robert Shanbaum says:

    It is certainly interesting to see how a given passage (of any kind, I suppose) can be read so differently by different people. For example, Article I, section 8, paragraph 8 is usually read to empower the federal government to award copyrights and patents – both of which are an intrusion of the government into what would otherwise be an unregulated marketplace for intellectual property. That hardly can be said to constitute “keeping the government out of [the people’s] affairs.” On the contrary, like all the grants of power in the Constitution, it is a grant of power to the government to establish and enforce laws intended to produce a civil society that promotes “life, liberty, and the pursuit of happiness”, or if you prefer, the “general welfare”, better than one that lacks such laws, or such a government.

  4. Dale Pettit says:

    Shame on all of us for neglecting our citizenship responsibilities to the United States Constitution. We have, over the past 100 years or so, been willing to allow our so called elected leaders to deviate from the true meaning of Liberty and Freedom! We could of course, claim we were busy making a living, busy with our own lives. Yes, fiddling while “Rome” burned or the “Titanic” sank etc.

    The media of the day, News Papers previously, TV comentators later and those same so called elected governement officails were and still do believe that the “common citizens” are not intelligent enough to govern ourselves. Now, the internet has opened up the shared discovery of this responsibility at the speed of light.

    We Trusted for too long our responsibilities to others. This program of self study of the constitution demonstrates the importance and true nature of the US citizens. Congratulations for a great spark of ingenuity, may it flame across America and the world.

    Thank you!

  5. Susan Craig says:

    It was originally thought that the Senators would be the advocates for the State the represented as a whole while the Representative proposed to be the populist advocates.

  6. John says:

    the 16th amendment my not have been ratified properly ???? this needs more investagtion

  7. Louis Palermo says:

    The Constitution must be understood as a catalyst to the events that preceded it! The Constitution is the Symbol of the United States- a sacred symbol. It is a symbol for liberty and justice. It is our attempt to limit its ability to be victimized; to protect itself from itself. The power behind the Constitution is that it limits government and protects our most sacred rights!
Article I creates legislative power and vests it in Congress. It creates national government and separates power. It accomplishes this by dividing power between the federal and state governments. This is Federalism in its most fundamental state. The Constitution may only be amended and not changed by statute. This important to understand because it conveys the history of this very instrument and how it was created in the first place. It was the founding father’s insight that was desired to be governed under it. 
Article I specifically drafted by the forefathers to create ’specific’ powers of Congress. Not powers of ’statute’ which could be altered by a tyrannical government. We need to keep the separation of powers- and the Constitution is the instrument that has stood the test of time and kept our most cherished values. We should continue to be suspicious by powers or persons that doubt the power of the Constitution. There is reason why those in power are required to take an oath to uphold the Constitution and that is primarily to limit any change by the ‘political’ majority. That is to keep a system of checks and more checks. Article I is the system of checks and balances that accomplishes that. 
So, furthermore, Article one is relevant today as it was 200 years ago to Keep the Power balanced! So the final issue is how the Constitution goes about keeping the balance. This ‘balance’ manifest itself through ‘interpretation’ of the very instrument-the Constitution.

  8. R. B. McGinnis says:

    Article I Section 8 drew my fascination. Our founding fathers intended for the two Senators from each state to be chosen by the State Legislature. The Senate was to be the State’s house and the House of Representatives the People’s House. This was changed, as we read today, by the XII Amendment in 1913 – during the Progressive era. This was not our forefather’s intention. One has to ask would the healthcare bill have passed today if the Senate was operating within it’s original intent – the Senate representing the States? Somehow, I do not think so.˜

    Ms Turner, With all due respect you may wish to review the historical context in which the XII amendment was adopted. Contrary to the opinions of Glenn Beck and other revisionist historians the early 1900s under the leadership of Presidents Roosevelt and Taft was an extremely necessary readjustment the American society. As a result of excesses of the robber barons in creating the cartels and trusts the interests of the ordinary citizens of the United States were protected from rapacious greed by the adoption of laws such as the food and drugs legislation providing for food inspection and safe medicine. All you have to do is read the “Jungle” to see the excesses of meat packing industry in the way immigrant labor was treated and the tainted meat that was being sold to the public. The creation of the Interstate Commerce Commission protected the interests of American framers from the exorbitant freight rates charged by the railroad cartels.
    I would also suggest that you make self of aware of the history of Montana, my state, regarding the election of William A. Clark as one of the first Senators of Montana. He essentially bought the Montana Legislature to secure his election. He bribed each legislator on the average of $12,000 per vote. The election was so fraudulent that the Senate refused to seat him. I will be happy to provide you with several historical references to this event. But, this blatant act of fraud was the major impedance for the adoption of 12th amendment.

  9. Sean Montgomery says:

    Janine, I heard you and about this on Bill Bennett Monday morning, and I’m so glad I did. My eight-year-old wrote down on his to-do for today to “Read Constitution first seven articles” which I printed for him. We will be discussing each Article each night at the dinner table so the whole family can benefit.

    God bless you.

  10. yguy says:

    “The Preamble is masterful and within it lies thoughts to ponder.”

    I’d go a lot farther than that. I’d say the Preamble is to the rest of the Constitution what the Two Great Commandments are to Mosaic law, which is to say any act or law which is a hindrance to the objectives in the Preamble is unconstitutional.

    I think a good example of this is Lincoln’s suspension of the Great Writ during the civil war, an act thought by many to be unconstitutional, but evidently deemed necessary by Lincoln to preserve the Union. Assuming he was correct, one only need look at Zimbabwe to reasonably surmise that the consequences of his failure in that regard would have been grim at best and horrific at worst.