Guest Essayist: Gary Porter

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Maryland is the seventh state admitted to the United States, ratifying the U.S. Constitution April 28, 1788. The current Maryland State Constitution in use was adopted in 1867.

Maryland was the seventh state to ratify the U.S. Constitution, on April 28, 1788. Two months later the U.S. Constitution went into effect with New Hampshire’s ratification on June 21. A study of the “Old Line State” (we’ll see where that appellation comes from in a moment) provides a convenient entry point to address several different constitutional topics; but first a little history:

It is August 27, 1776; the British have mounted their anticipated invasion of Long Island, New York. British General William Howe commits 20,000 of his best troops to the fight, including 8,000 Hessians, against approximately 6,000 ill-equipped and ill-experienced Americans (20,000 to 6,000; hardly seems a fair fight). Howe splits his forces across three fronts and executes a daring nighttime flanking maneuver that utterly surprises the American forces. The Americans are soon routed from their defensive lines and forced to retreat onto fortified Brooklyn Heights. To buy time for the withdrawal, Washington orders General William Stirling, commanding two units of the 1st Delaware Regiment as well as four companies from the 1st Maryland Regiment, to hold his line on the Gowanus Road. The 1st Maryland Regiment (part of the “Maryland Line”) is under the temporary command of Major Mordecai Gist (the unit’s commander, Colonel William Smallwood, is attending court martial duty in the city). The British attack up the Gowanus Road consists of 2,000 troops under the command of General James Grant. The Marylanders, soon reduced to less than 400 men (The Immortal 400)[1] are ordered to hold the line near Vechte-Cortelyou house, a stone building commanding the strategic road and a bridge, the only escape route across the Gowanus Salt Marsh. Not only do Gist’s men hold off the British, they make six amazing counterattacks before being finally forced to scatter and make their own escape back to American lines. Only a handful of the Maryland men are successful. Watching from Brooklyn Heights, General Washington turns to General Israel Putnam and states: ‘Good God, what brave fellows I must this day lose.” The Maryland 1st Infantry will go down in history as “The Old Line,” giving Maryland its claim as “The Old Line State.”[2] Historian, Thomas Field, writing his 1869 book “The Battle of Long Island,” called the stand of the Marylanders “an hour more precious to liberty than any other in history.”[3] As we will see, Maryland will go on to make other important contributions to the establishment of the American union.

In 1632, Lord George Calvert, a convert to Catholicism, was granted a charter by King Charles I to establish “The Province of Maryland.”[4] Actual settlement began two years later, first along the Chesapeake Bay and then proceeding slowly but inexorably westward. Calvert envisioned a colony where religious tolerance would prevail, especially towards his fellow Catholics. Accordingly, in 1649, the Maryland General Assembly passed an Act Concerning Religion which made it a crime to harass a fellow citizen of the colony over their religious preferences. Maryland would eventually gain the largest concentration of Catholics of any of the colonies, to include, in 1715, one John Porter, immigrant ancestor of the writer of this essay. Family legend holds that John was “asked” to leave England after composing and singing publicly a song not entirely complementary of the new reigning monarch: George I of Hanover, brought over from Germany the previous year to take the English throne.

With its moderate weather, 4,000 miles of shoreline and a fine port at Baltimore, Maryland grew to nearly 250,000 inhabitants by 1776.[5] Maryland’s current boundaries were solidified following the settlement of a long-running dispute with Pennsylvania and completion, in 1767, of the Mason-Dixon Line, a project to which two sons of the aforementioned immigrant John Porter allegedly contributed as the surveying team reached the westernmost parts of the state. It would not be until 1820, however, that the term “Mason-Dixon Line” came into common usage. The Missouri Compromise used the term to define the boundary between slave territory and free territory (remember this, we encounter it again).

While no major battles of the Revolution were fought within the state (that would change with the War of 1812 and the Civil War), Maryland was an active participant in the events leading up to the Revolution. In 1776, its delegates, Charles Carroll, Samuel Chase, Thomas Stone, William Paca, signed the Declaration of Independence (with Carroll being the only Catholic to sign). “Charles Carroll of Carrollton” had been an early proponent of independence from the mother country, writing often in the Maryland Gazette under the pseudonym “First Citizen,” and serving on various Committees of Correspondence. A devout man, in a November 4, 1800, letter to James McHenry (of Fort McHenry fame) Carroll wrote: “Without morals a republic cannot subsist any length of time; they therefore who are decrying the Christian religion, whose morality is so sublime and pure…are undermining the solid foundation of morals, the best security for the duration of free governments.” When he died in 1832, Carroll was the last surviving signer of the Declaration and acquired the distinction (dying at 95 years of age) of being the oldest lived Founding Father.

Like other states, Marylanders were bitterly divided as the Revolutionary War loomed; many Loyalists in the state refused to support the Revolution, and saw their lands and estates confiscated as a result.

Responding to a resolution of Congress of May 10, 1776, Maryland’s provincial congress recommended formation of a convention to form a new constitution to replace its royal charter. Fifty-three delegates assembled on August 14, and completed their work on November 8. While the new constitution kept most of the features of government intact, the state’s property qualification for suffrage was lowered from thirty to five British pounds, greatly expanding the electorate. Ironically, following the example set by Virginia earlier that year, on November 8, 1776, the convention put their new constitution into effect by voice vote, without bothering to submit the document to Maryland’s newly expanded electorate.

“Baltimore Town” served as the temporary capital of the confederated states from December 1776 to February 1777, while Philadelphia was occupied by the British. Towards the end of the war, from November 1783, to June 1784, Annapolis, briefly hosted the confederation government, and it was in the Old Senate Chamber of the Maryland State House in Annapolis on December 23, 1783, that General George Washington famously resigned his commission as commander-in-chief of the Continental Army. It was there also, on January 14, 1784, that the Treaty of Paris was ratified, officially ending the Revolutionary War.

Maryland was the last of the thirteen states to ratify the Articles of Confederation, on March 1, 1781, and then only when France threatened to withdraw its treaty-guaranteed protection of the Chesapeake Bay. Maryland had been insisting that the territory north of the Ohio River be ceded to the confederation government by the several states which maintained conflicting claims on it. Virginia’s government agreed to cede its claim to the land but demanded that the claims of Maryland’s land speculators be declared void. Maryland objected, but faced with France’s threat, they ratified the Articles. The event was celebrated across the colonies with fireworks, bonfires and the ringing of church bells.

In September 1786, Maryland played host to the “Annapolis Convention” which produced the famous call for a “Grand Convention,” to take place in Philadelphia the following May. On September 17, 1787, Daniel Carroll (a cousin of Charles Carroll of Carrollton), Daniel Jenifer and James McHenry (of Fort McHenry fame) would share the honor of signing the new constitution for their state.

On April 28, 1788, after a short, five day discussion, Maryland became the seventh state to ratify the U.S. Constitution, by a vote of 63–11.

According to the U.S. Constitution (Article 1, Section 8, Clause 17), the District of Columbia was to be formed from land donated by “particular States.” That turned out to be both Maryland and Virginia; and each state ceded the required land in 1790. But in 1846, with the capitol by now well established, but on only the north side of the Potomac River, Congress returned Virginia’s portion, leaving the District completely within Maryland’s former boundaries.

In August 1814, the state experienced, first-hand, a new war with Britain. In the Battle of Bladensburg,[6] which saw the first appearance on a U.S. battlefield of a sitting U.S. President (second-term-President James Madison). British troops easily pushed back a hastily formed composite force of militia and regular troops and continued their march on “Washington City.” The following month, the unsuccessful British siege of Fort McHenry provided the backdrop for the composition of our National Anthem by Maryland native Francis Scott Key.

Forty-five years later, Maryland pondered whether to join the growing list of seceding states south of the now famous Mason-Dixon Line. The state had effectively legalized slavery more than one hundred years before (in 1752) when it prohibited the manumission of slaves, and many citizens were eager to join the confederacy. An early vote of the legislature, which might have gone for secession, was stifled by President Abraham Lincoln’s declaration of martial law and his unconstitutional suspension of Habeas Corpus. When the Maryland legislature finally took up the matter, they voted 53-13 to remain in the Union. While many today claim that the (inaccurately named) Civil War[7] settled the idea of secession, the issue, as we will see later, is still very much alive.

The first fatalities of the Civil War (called in the South, more accurately, the War for Southern Independence) occurred during riots which took place in Baltimore on April 18 and 19, 1861. Union troops moving from one train station to another to continue their journey southward to protect Washington, D.C. were confronted by an angry and armed mob. The troops, set upon with “bricks, paving stones, and pistols,” fired on the crowd. When the smoke cleared, four soldiers and twelve civilians had been killed. Small skirmishes between citizens and police occurred throughout the city for the next month.

Determined to keep a route through Maryland open for the transport of troops and supplies from the northern states, on April 27, President Lincoln authorized General Winfield Scott to suspend the writ of habeas corpus near any military supply line between Philadelphia and Washington “if the public safety required it.”

On September 17, 1862, Confederate forces were defeated at Antietam, just west of Frederick, Maryland (hometown of the then Chief Justice Roger Taney). Remembered as the “Single Bloodiest Day of the Civil War,” the Battle of Antietam (known in the South as the Battle of Sharpsburg) caused more than 23,000 casualties.

A week later, as a result of continued unrest, particularly in Maryland but elsewhere in the Union as well. Lincoln issued a proclamation stating that “all Rebels and Insurgents, their aiders and abettors within the United States, and all persons discouraging volunteer enlistments, resisting militia drafts, or guilty of any disloyal practice, affording aid and comfort to Rebels against the authority of United States, shall be subject to martial law and liable to trial and punishment by Courts Martial or Military Commission.” Further “That the Writ of Habeas Corpus is suspended in respect to all persons arrested, or who are now, or hereafter during the rebellion shall be, imprisoned in any fort, camp, arsenal, military prison, or other place of confinement by any military authority or by the sentence of any Court Martial or Military Commission.”[8] (Emphasis added)

Lincoln later explained his actions in a letter to Albert G. Hodges on April 4, 1864, by stating: “I felt that measures, otherwise unconstitutional, might become lawful, by becoming indispensable to the preservation of the constitution, through the preservation of the nation.”[9]

In July 1864, the little-known Battle of Monocacy was also fought on Maryland soil, again near Frederick.

The 1864 Maryland Constitution, ratified in October, freed the state’s slaves a year before ratification of the 13th Amendment.[10] On April 14, 1865, Marylander John Wilkes Booth assassinated President Lincoln.

Today’s Maryland government is based on its 1867 Constitution, the last of four. The 1776 constitution was followed by a second in 1851, and a third in 1864. At approximately 47,000 words, today’s Maryland Constitution is much longer than the average length of a U.S. state constitution (about 26,000 words). By comparison, the United States Constitution, including amendments, is only about 8,700 words long.

When compared with the U.S. Bill of Rights, Maryland’s 1776 Constitution lacked specific protections for:

  • Freedom of Speech and Freedom of Assembly (U.S. 1st Amendment)
  • A Right to Keep and Bear Arms (U.S. 2nd Note: Maryland is one of the few states still lacking the equivalent of the Federal Second Amendment)
  • Right to a Grand Jury when Life/Limb is imperiled, protection against double jeopardy and protection of private property against government taking without compensation (all found in the U.S. 5th Amendment)
  • Protection of unenumerated rights (U.S. 9th Amendment, this was added in the 1851 Constitution)
  • Reservation of non-delegated powers to the states/people (U.S. 10th Amendment, this was added in the 1867 Constitution)

Conversely, Maryland’s Declaration of Rights today contains the following protections and principles not found in the U.S. Bill of Rights:

  • A relief from taxation for all “paupers.” (still there!)
  • Protection of the common law of England. (still there!)
  • A right to trial by jury (this right is assumed by the Constitution but only secured for certain classes of citizens).
  • Juries in criminal cases are declared to be judges of law as well as fact (jury nullification, added in the 1867 Constitution, see below).
  • A statement that “all government of right originates from the people, is founded in compact only, and instituted solely for the good of the whole.”
  • A statement that “the people of the State ought to have the sole and exclusive right of regulating the internal government and police thereof.”
  • A statement that “all persons invested with the legislative or executive powers of government are the trustees of the public, and, as such, accountable for their conduct.”
  • A statement that “every man, having property in, a common interest with, and an attachment to the community, ought to have a right of suffrage” (whether U.S. citizen or not?).
  • A statement that “the legislative, executive and judicial powers of government, ought to be forever separate and distinct from each other.”
  • A statement that no power of suspending laws, or the execution of laws, unless by or derived from the Legislature, ought to be exercised or allowed.
  • A statement that “no aid, charge, tax, fee, or fees, ought to be set, rated, or levied, under any presence, without consent of the Legislature.” (No taxation without representation!)
  • A statement that “the levying taxes by the poll is grievous and oppressive.” (I.e. no poll taxes will be allowed)

We should take a moment here to note the uniqueness of Maryland securing a right of jury nullification in its constitution. To my knowledge it is the only U.S. state to do so. In 2002, South Dakota voters rejected a state constitutional amendment to permit criminal defendants to argue in favor of jury nullification; and in 2012, New Hampshire passed a law explicitly allowing defense attorneys to inform juries about their right of jury nullification, only to have the New Hampshire Supreme Court effectively nullify the law.[11]

The ability of a jury to refuse to return a guilty verdict because it feels the underlying law to be unjust has a rich history going back to at least Magna Carta (1215), if not before — the famous trial of William Penn being the perfect example.[12] In this country, the practice was common from before the Revolutionary War to beyond 1850 when rampant jury nullification of the Fugitive Slave Act occurred throughout the North. The Supreme Court has never taken up the issue but Associate Justice Sonya Sotomayer apparently views it favorably.[13]

The primary impetus for the 1851 Constitution was a desire to reapportion the Maryland General Assembly. This constitution also changed the status of the City of Baltimore and its relationship with the surrounding Baltimore County. The city was given the status of the (soon-to-be) 23 counties of the State and a provision for “home rule.” Growing criticism of the 1851 Constitution, especially relating to how the judiciary functioned, led to pressure for yet another revision.

The 1864 Constitution was written in the midst of the Civil War. Unionists controlled the Maryland government at the time and made some significant changes to the document. It was approved by a bare majority (50.31%) of the state’s eligible voters, which included Union soldiers from other states temporarily assigned to Maryland! Perhaps its most controversial feature was the temporarily disfranchisement of the approximately 25,000 Marylanders who were at that time fighting for or supporting the Confederacy.

Only three years later, the Constitution of 1867 was approved. As noted, it still operates today. Subsequent amendments have been approved which brought changes to the wording in the main constitution and amendments to the Declaration of Rights, the last of these occurring in 2010.

In 2019, Maryland is home to slightly more that 6 Million people.[14] Interestingly, its state government has been continuously controlled by the Democratic Party for nearly 100 years. In 2013, frustrated conservatives in the five western-most counties famously mounted an effort to secede from the remainder of the state and form a new one, called Western Maryland.[15] This call to secede joined similar efforts in California, Arizona, Michigan and Colorado — proving that the issue of secession lives on.

The “Old Line State” has produced many noted politicians and four Supreme Court Justices. They include:

  • Spiro T. Agnew, former Governor of Maryland and Vice President of the United States
  • Sargent Shriver, former Vice Presidential candidate
  • John Bolton, former United States Ambassador to the United Nations
  • Steny Hoyer, current House Minority Whip, U.S. House of Representatives
  • Nancy Pelosi, current Speaker of the U.S. House of Representatives
  • Samuel Chase, former Associate Justice of the Supreme Court
  • Roger Taney, former Chief Justice of the United States
  • Thurgood Marshall, former Associate Justice of the Supreme Court
  • Brett Kavanaugh, current Associate Justice of the Supreme Court

The Old Line State provides both the historian and constitutional scholar much to occupy their time. With one of the oldest state constitutions still operating today, including one of the longest Declarations of Rights, a detailed study of the rights of Maryland’s citizens will be time well spent.

Gary Porter is Executive Director of the Constitution Leadership Initiative (CLI), a project to promote a better understanding of the U.S. Constitution by the American people.   CLI provides seminars on the Constitution, including one for young people utilizing “Our Constitution Rocks” as the text.  Gary presents talks on various Constitutional topics, writes a weekly essay: Constitutional Corner which is published on multiple websites, and hosts a weekly radio show: “We the People, the Constitution Matters” on WFYL AM1140.  Gary has also begun performing reenactments of James Madison and speaking with public and private school students about Madison’s role in the creation of the Bill of Rights and Constitution.  Gary can be reached at gary@constitutionleadership.org, on Facebook or Twitter (@constitutionled).

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[1] Some accounts put the unit at 260 remaining men, of which only a handful survived the day.

[2] The story of the “Maryland 400’s” heroic stand is told by Patrick K. O’Donnell in Washington’s Immortals: The Untold Story of an Elite Regiment Who Changed the Course of the Revolution.

[3] https://books.google.com/books/about/The_battle_of_Long_Island.html?id=TFYOAAAAIAAJ.

[4] Named after the King’s wife, the former French princess Henrietta Maria, aka Queen Mary.

[5] https://plymouthcolonytourism.weebly.com/population.html.

[6] https://en.wikipedia.org/wiki/Battle_of_Bladensburg.

[7] A “Civil War” is normally fought over who will control an existing government. The South had no interest in taking over the government of the Union.

[8] https://www.thoughtco.com/lincoln-issues-proclamation-suspending-habeas-corpus-3321581.

[9] http://www.abrahamlincolnonline.org/lincoln/speeches/hodges.htm.

[10] Ratified on December 18, 1865.

[11] https://en.wikipedia.org/wiki/Jury_nullification#State_laws.

[12] http://constitution.org/trials/penn/penn-mead.htm.

[13] https://www.thenewamerican.com/usnews/constitution/item/22588-supreme-court-justice-sotomayor-supports-practice-of-jury-nullification.

[14] http://worldpopulationreview.com/states/maryland-population/.

[15] https://www.foxnews.com/politics/western-marylanders-push-to-secede-from-state.

Guest Essayist: Gary Porter

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State Constitutions? – Why would each state need a constitution when we have the United States Constitution? What would it mean for the states to be run by their citizens rather than royal rule?

“Americans are the heirs of a constitutional tradition that was mature by the time of the national Constitution,” writes Donald Lutz in The Origins of American Constitutionalism.”[1] Beginning with “proto-constitutions” such as the Mayflower Compact, the Pilgrim Code of Law and the Fundamental Orders of Connecticut, Americans had spent more than 150 years learning and perfecting the art of constitution-writing — and the thirteen state constitutions which were in effect when the national constitution was ratified in 1788 were an important step in that process. “It would not be putting the matter too strongly to say that the United States Constitution, as a complete foundation document, includes the state constitutions as well.”[2] Tragically, Americans, whose knowledge of their national constitution is dismal enough,[3] show even less interest in those of their own states. This is doubly tragic when you consider that American lives are arguably more affected by the laws of their state than by federal law.

As to what it would mean for the states to be run by their citizens rather than royal rule, some colonies had not known “royal rule” for quite some time.  The charters of 1662 (Connecticut) and 1663 (Rhode Island) had given each of these colonies permission to elect their own governors rather than live under governors appointed by the king, as was the rule elsewhere. In fact it was the “self-rule” aspects of these charters that persuaded the two states to not construct new constitutions after July 4th 1776, finding instead that they could continue operating under the structure of these charters as independent states. Even in those colonies operating under royal appointees, those governors rarely interfered in the affairs of their elected legislatures, making Parliament’s “Intolerable Acts” of 1774[4] even more intolerable.

Every government, every organization for that matter, has a constitution, whether one has been purposely created for it or not; this is simply a fact of voluntary association. Until a written constitution is drafted to guide it, any organization will, over time, adopt formal or informal rules to guide the organization and its affairs. These rules comprise a constitution, often an unwritten one.

Black’s Law Dictionary[5] defines “Constitution” as “The organic and fundamental law of a nation or state, which may be written or unwritten, establishing the character and conception of its government, laying the basic principles to which its internal life is to be conformed, organizing the government, and regulating, distributing, and limiting the functions of its different departments, and prescribing the extent and manner of the exercise of sovereign powers.”

America had a constitution in 1776, or at least so thought Jefferson when he complained in the Declaration: “[The King] has combined with [Parliament] to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws.” (Emphasis added).  “Our constitution,” not “our constitutions” (which could have pointed to the several state constitutions by then in force).  While the colonies certainly lacked a common, written constitution, the last 150+ years of successful collective self-government had resulted in the informal incorporation of many features of government which combined to comprise an unwritten constitution – which Jefferson claimed was being violated.

“Reading properly and carefully, one can glean from a constitution the balance of political forces, a structure for preserving or enhancing that balance, a statement of the way people should treat each other, and the values that for the basis for the people’s working relationship, as well as the serious, remaining problems in the political order.”[6]

In July 1776, when the thirteen united colonies claimed their independence and became “free and independent states,” they had a long relationship with self-governance –Virginia, the oldest colony, since 1619; and the autonomy they enjoyed would not be so easily given up to a Parliament which, in 1766, had claimed for itself the right to legislate for the colonies “in all matters whatsoever.”[7]

By 1776, each colony was operating under a charter from the King of England, some royal, some proprietary, which defined its leadership/governing structure and the rights to be enjoyed by the colony’s inhabitants. Virginia’s 1606 charter, for instance created a thirteen-member governing council in Virginia shadowed by another thirteen-member council back in England. The colony’s citizens were to enjoy “all liberties, franchises and immunites within anie of our other dominions to all intents and purposes as if they had been abiding and borne within this our realme of Englande”[8]

On May 10th, 1776, the Second Continental Congress issued a resolution encouraging any of the colonies who had not already done so to “adopt such government as shall, in the opinion of the representatives of the people, best conduce to the happiness and safety of their constituents in particular, and America in general.” [9] Sent out on May 15th after a prologue had been added, the resolution arrived too late for several colonies. The previous January, New Hampshire had unilaterally enacted a new constitution, the first to do so.  South Carolina had followed suit on April 12th.  On May 4th, 1776, the legislature of Rhode Island, sensing the mood of the country, passed a bill that replaced an act of allegiance to the king with an oath of allegiance to the state – effectively declaring their independence. As previously noted, Connecticut’s “Fundamental Orders,” adopted in 1638 while the state was still an English colony, included no overt allegiance to England. It would not be until 1818 that Connecticut would get around to drafting a new constitution. Virginia had already issued its call for a constitutional convention, to assemble in Williamsburg on May 5th. Their new constitution was enacted 5 days before Jefferson’s Declaration was approved in Philadelphia.

Responding to Congress’ resolution, the other colonies began to take action:  Maryland, Delaware, Pennsylvania, North Carolina, and New Jersey all enacted new Constitutions later that year.

Georgia and New York put new constitutions in place the following year, Massachusetts in 1780.

These first state constitutions “were the most detailed and legally binding collective expression of the revolutionaries’ political ideas in 1776.”[10]  Often overshadowed by the Constitution of 1787, the state constitutions are a rich treasure trove of republican and democratic principles.

Why were the state constitutions still needed after the U.S. Constitution went into effect twelve years later? Simply because the formation of a new national government did not eclipse the state governments, in fact it relied upon the states to continue to provide the vast majority of governmental services within each state, which the Tenth Amendment to the U.S. Constitution obliquely reminds us: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”[11]

Eleven of the original thirteen state constitutions contained specific protections for individual rights. While a state document cannot deny a right secured in the national document, in some cases the states secure rights for their citizens which are not mentioned or are elucidated differently in the national document.  For instance, Pennsylvania and a few other states make it clear that “the people have a right to bear arms for the defence of themselves and the state,” significantly clearer than the confusing wording of the U.S. Second Amendment. (Emphasis added). The North Carolina constitution secures a right for its citizens to “instruct their representatives,” and requires that jury decisions be unanimous (as do several other state constitutions). Maryland secures a right for its citizens of resistance, against arbitrary power and oppression.” Delaware’s first constitution (enacted September 10,1776) outlawed slavery in the state.

In many cases, these first state constitutions take the opportunity to explain principles of government which the Framers of 1787 apparently thought were so “self-evident” as to not require mentioning. For example, the Virginia Declaration makes the following statements (here paraphrased) not found in the U.S. Constitution:

  • That all men are by nature equally free and independent, and have inherent rights that they cannot, by any compact, deprive or divest their posterity.
  • That all power is vested in, and consequently derived from, the people.
  • That magistrates should be at all times amenable to the people.
  • That elected officials should be returned to the body of the people to feel, once again, their burdens.
  • That government is instituted for the common benefit, protection, and security of the people, nation or community.
  • That a majority of the community has a right to reform, alter or abolish their government.
  • That no individual or group is entitled to exclusive or separate benefits or privileges from the community.
  • That citizens should evidence a permanent common interest in, and attachment to, their community before being allowed to vote.[12]

Today, a Massachusetts legal organization cautions: “Some of the protections bestowed by the [Massachusetts ] Declaration of Rights duplicate those enumerated in the Bill of Rights, while others confer greater protection of individual liberties. Too few Massachusetts criminal defense attorneys utilize the additional protections afforded to Massachusetts citizens under the Declaration of Rights in defending their clients. A criminal defense lawyer who fails to specifically cite the Massachusetts Declaration of Rights in objections at trial or issues raised on an appeal may needlessly consign his client to a prison cell.”[13]

Another advantage of the state constitutions lies in their generally being easier to amend than the national constitution. As a consequence, the state constitutions are amended far more frequently.  The entire constitution of a state can often be replaced more easily (Georgia and Louisiana are each currently operating under their ninth state constitution since 1776).

For those interested in further study of the 50 state constitutions, the NBER/Maryland State Constitutions Project provides searchable access to almost 150 versions of these documents. The best comparative treatment of the state constitutions, including to what extent they incorporated the leading principles of republican government, is found in Willi Paul Adams’ masterpiece: The First American Constitutions; Republican Ideology and the Making for the State Constitutions in the Revolutionary Era.

State constitutions perform an important role in the governance of America’s 320 Million citizens and play a critical role in making federalism work.  We couldn’t get by without them.

Gary Porter is Executive Director of the Constitution Leadership Initiative (CLI), a project to promote a better understanding of the U.S. Constitution by the American people.   CLI provides seminars on the Constitution, including one for young people utilizing “Our Constitution Rocks” as the text.  Gary presents talks on various Constitutional topics, writes a weekly essay: Constitutional Corner which is published on multiple websites, and hosts a weekly radio show: “We the People, the Constitution Matters” on WFYL AM1140.  Gary has also begun performing reenactments of James Madison and speaking with public and private school students about Madison’s role in the creation of the Bill of Rights and Constitution.  Gary can be reached at gary@constitutionleadership.org, on Facebook or Twitter (@constitutionled).

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[1] Donald Lutz, The Origins of American Constitutionalism, Louisiana State University Press, Baton Rouge, 1988, p.5.

[2] Ibid.

[3] https://www.washingtonpost.com/news/monkey-cage/wp/2017/06/27/too-many-americans-know-too-little-about-the-constitution-heres-how-you-can-fix-that/?utm_term=.8715e5eb6890

[4] https://en.wikipedia.org/wiki/Intolerable_Acts

[5] Black’s Law Dictionary, 4th Edition, accessed at:

[6] Lutz, p. 3

[7] The American Colonies Act 1766, aka The Declaratory Act, explained at https://en.wikipedia.org/wiki/Declaratory_Act

[8] 1686 Virginia Charter

[9] http://startingpointsjournal.com/may-resolution-declaration-of-independence/

[10] Willi Paul Adams, The First American Constitutions; Republican Ideology and the Making for he State Constitutions in the Revolutionary Era, Rowman & Littlefield, Pub, New York, 2001, Preface to the Expanded Edition.

[11] https://en.wikipedia.org/wiki/Tenth_Amendment_to_the_United_States_Constitution

[12] https://en.wikipedia.org/wiki/Virginia_Declaration_of_Rights

[13] https://www.relentlessdefense.com/what-should-i-do/massachusetts-declaration-of-rights/

 

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Short answer: It should be easy, but it’s not.

Article 1, Section 5, Clause 2 of the Constitution states:Each House may determine the Rules of its Proceedings….”  Because of this clause, we have different procedures in each house of Congress which determine how a bill will be handled in that chamber.  Both the rules of the House and those of the Senate are a matter of public record and may be downloaded from the respective chamber’s website.  There are both unique and common elements of the rules.  For instance, House Rule XII uniquely requires that every bill contain a paragraph describing the claimed constitutional authority for the action the bill proposes.  One would think this provision would deter a Congressman or Congresswoman from exceeding the limited and enumerated powers which the Constitution provides to the legislative branch, but one would be wrong.

When Rep. Dennis Kucinich (D-OH) proposed a bill that would create a “Department of Peace,” he famously cited the Preamble’s goal of “ensur[ing] Domestic Tranquility” as his authority.  Unfortunately for Rep. Kucinich, the Constitution’s Preamble does not grant power to any branch of government; the government has no explicit power to ensure “domestic tranquility,” it remains only a goal of the overall document.  To be sure, there are other powers explicitly granted to the Congress, such as the power to call forth the militia to “suppress Insurrections” that would serve this end, but, sadly, domestic tranquility will have to be achieved without Rep. Kucinich’s Department of Peace.  Representative Bill Pascrell (D-NJ) cited the Constitution’s Commerce Clause as the authority for his H.R. 1127, a bill “to encourage and ensure the use of safe football helmets.”  What Pascrell’s proposal had to do with interstate commerce was left unsaid.

The authors of House Rule XII had noble intent, but they presumed the people would elect Representatives who would take the rule seriously.

Over in the Senate we find the infamous “Filibuster Rule,” which requires the agreement of “3/5 of the Senators” (normally 60) before debate on a bill can be ended.  When neither of the two major parties enjoys a 60+ majority, the “Cloture Rule,” as it is also called, provides a convenient partisan blocking mechanism.  This rule was amended recently to expedite certain presidential nominations that were being stonewalled by one party.

Aside these and a few other differences, the basic process for getting a bill to the President’s desk for signature is essentially the same.  Some Congressmen place simplified descriptions of the process on their websites.  In brief, the bill is proposed by an individual member after he or she has either drafted it or had it provided by a constituent or lobbying group.  The bill is normally then sent to a Committee for consideration in the Chamber in which it was first introduced.  Depending on the bill’s complexity, it may be further referred to one or more subcommittees.  It is a poorly kept “secret” that bills lacking widespread popularity are sent to sub-committees to “die,” never to be put to a committee vote, let alone a floor vote.  For instance, of the thousands of constitutional amendments proposed over the years few ever made it to a floor vote and only 33 were ever sent to the states for ratification.

The committee may modify the bill’s wording after public hearings to improve its chance of surviving a floor vote and then they must pass it with a majority vote of the committee.  The bill is then sent to the majority leader of the originating chamber to be put on the chamber’s calendar for a vote of the entire chamber.  Here is another weakness in the process; the Speaker of the House and Senate Majority leader enjoy great power over what goes on their chamber’s calendar.  Both bills originating in their chamber or coming from the other chamber after a successful vote may languish for a very long time before appearing on the calendar; or they may never appear on the calendar.  There are periodic complaints over this practice.

Presuming a bill passes with a majority vote of each chamber, and any differences between the two versions of the bill have been resolved in a Conference Committee, the bill is sent to the President.

But here we must pause for a history lesson.

In 1776, Thomas Jefferson complained in his famous declaration that King George III had “refused his Assent to Laws, the most wholesome and necessary for the public good.”  Laws duly passed by the colonial legislatures and sent to the King often never received his signature and thus were never put into effect.  Some of these bills were no doubt “wholesome and necessary.”  The Framers of 1787 sought to solve this problem.  They set out to ensure the “people’s voice,” as reflected in the actions of their representatives, would never be muted.

Our constitution therefore does not require the President give his “assent” to a bill, at least not explicitly, before it becomes a law.  Many Americans erroneously believe the President must sign a bill before it becomes a law.  Not so.  He may sign it if he agrees with its purpose, or he may veto the bill.  He may also let it become law without his signature.  This will occur automatically 10 days after the bill has been presented to him (not counting Sundays, when the President was expected to be in church).  One caveat, if a bill is presented to the President and he does not have a full 10 days to consider it before Congress adjourns, it does not become law, but suffers what is called a “pocket veto.”

One final note: According to Article 2, Section 2, the President is required to “take Care that the Laws be faithfully executed;” i.e., he must carry out the “will of the people” as expressed in the new law passed by Congress, every part of it.  But what happens if the President objects to one teeny-weeny provision in a 2000+ page bill.  Must he veto the bill in its entirety over this minor flaw?  Perhaps he feels the provision exceeds the power of Congress or infringes upon executive privilege.  Enter: Signing Statements.

Signing Statements date back to 5th President James Monroe.  Although originally used as ways to express great satisfaction in signing a particular piece of legislation, today they provide the President the opportunity to express reservations over certain provisions of a bill without having to veto the entire thing.  Deputy Assistant Attorney General and future Supreme Court Justice Samuel A. Alito raised quite a stir when he published an 1986 memo entitled: Using Presidential Signing Statement[s] to Make Fuller Use of the President’s Constitutionally Assigned Role in the Process of Enacting Law in which he stated bluntly that Presidential Signing Statements could be used to “increase the power of the Executive to shape the law.”

“Getting a bill from introduction in Congress to the President’s desk” is clearly not as easy as it could be or should be.  We have the rules of Congress to blame for that; and as long as the Constitution gives Congress the complete power to compose their rules as they see fit, there is little hope for change any time soon.  If the American people want streamlined procedures for passing legislation, they must demand it of Congress.  Concerted demands will be heard.  But do the American people ever act in concert?  Not often.  The only remedy which remains is to amend the Constitution in such a way that an expedited legislative procedure results. Congress, once again, is unlikely to ever propose an amendment which reduces in any way their power over legislation; thus it devolves to the people, through an Article V convention, to propose an amendment which would enact such a change.

If you want an easy process for getting legislation to the President’s desk, there is work to do.

Gary Porter is Executive Director of the Constitution Leadership Initiative (CLI), a project to promote a better understanding of the U.S. Constitution by the American people.   CLI provides seminars on the Constitution, including one for young people utilizing “Our Constitution Rocks” as the text.  Gary presents talks on various Constitutional topics, writes a weekly essay: Constitutional Corner which is published on multiple websites, and hosts a weekly radio show: “We the People, the Constitution Matters” on WFYL AM1140.  Gary has also begun performing reenactments of James Madison and speaking with public and private school students about Madison’s role in the creation of the Bill of Rights and Constitution.  Gary can be reached at gary@constitutionleadership.org, onFacebook or Twitter (@constitutionled).

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The election of Congress ought not be controversial, Americans have been electing their representatives in this country off and on for four hundred years.[1]  But of course it is quite controversial, made so by what’s at stake: raw political power.  Whichever political party controls Congress controls the most important and powerful branch of government.  While some Americans view the Executive Branch as the pre-eminent, most powerful branch of the three, even a superficial comparison shows this to be incorrect – Congress rules!

The “election method” of Congress has many facets: who is entitled to vote, how they vote, even such mundane things as how votes are counted (does a hanging chad count?).  As Madison reminds us: “the essence of government is power and power, lodged as it must be in human hands, will ever be liable to abuse.”[2] And abuse we have: election fraud is a problem and growing [3]despite charges by some that such claims are a myth.[4]

Popular elections by the people were so liable to abuse that the Framers discarded this method when considering the election of the President, and decided instead on “Electors chosen for that purpose.”  In Speaking of abuse, in 1777, James Madison lost the only election he would ever lose, to the Virginia House of Delegates, because he refused to provide Orange County voters with “spirituous liquors,” which his tavern-owner opponent could (and did) pour abundantly.

So let us consider first the question of who should be allowed to vote.

The Constitution presumes, but does not require, voting by the people.  It is difficult to see how voting could be supported as a natural, inalienable right, so it must therefore be a civil right, one subject to denial or change at the whim of the government.

The Founders are repeatedly denigrated today for not allowing women to vote; and while there is some truth to the claim, unmarried women were allowed to vote in some states as long as they met the property requirements of “freeholders.”  Why unmarried women only?

Under the English common law doctrine of coverture, the husband “covered” his wife’s legal identity throughout their marriage. Blackstone’s Commentaries described it this way:

By marriage, the husband and wife are one person in the law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs every thing.

The husband’s vote was thus viewed as reflective of the interests of the entire family.

The amount of property a person must own to vote varied from state to state, but the prevailing notion supporting a property requirement was that this produced a polity with “skin in the game,” voters more likely to vote with care; their property potentially at jeopardy through a careless or ill-informed choice.

Today, property requirements for voting have been removed, and the franchise limited only by age and citizenship.  Which provides the basis for another controversy: why limit voting to citizens?  Shouldn’t, every tax-payer, whether citizen or not, whether in the country legally or illegally, be able to vote? Shouldn’t they also have a say, through the ballot box, in how their taxes are spent?  Many on the Left certainly think so.  Others see voting as not just a privilege, but a high privilege of citizenship.

“Let each citizen remember at the moment he is offering his vote that he is not making a present or a compliment to please an individual – or at least that he ought not so to do; but that he is executing one of the most solemn trusts in human society for which he is accountable to God and his country,” wrote Samuel Adams.[5]  (Emphasis added)

Our dismal voting participation rate, hovering as low as 37% in mid-term elections, vividly demonstrates the sense of hopelessness many feel when considering the effect their individual vote will likely have on the trajectory of the country.  Career politicians, acting in their own self-interest, are perpetually elected thanks to powerful moneyed interests; a recipe for disaster.

With a re-election rate of well over 90% it seems hard to believe that we have an entirely new House of Representatives every two years, but that is exactly what the Framers intended.  In fact, it has been said that a Representative is always running for office; no sooner does he or she catch their breath from the last (successful) campaign when they must start all over again with a new one.

Not so with the Senate; the Senate was intended to be the more stable and deliberative of the two houses of Congress.  Thus, the Senate does not change personnel en masse like the House; only a third of the Senators are up for reelection each time; and this was by design as well.

Although some today decry the filibuster rule in the Senate, I think a bigger problem to the long-term health of the republic lies in the fact that Senators are no longer appointed by their states.  Thanks to the 17th Amendment, Senators are elected by the people of the state and no longer vote in line with the interests of the legislature of their state as they once did.  This Amendment permanently shifted the intended balance of power in Congress, to the disfavor of the states which created the government in the first place.  To restore that balance of power will require the repeal of the 17th Amendment, and that proposal is shrouded in controversy.

It is important to the principle of self-government that there be continuity and stability in the Congress, and the initial Constitutional design was intended to produce just that.  But the original balance of power in Congress is equally important, and that deserves our attention today.

Gary Porter is Executive Director of the Constitution Leadership Initiative (CLI), a project to promote a better understanding of the U.S. Constitution by the American people.   CLI provides seminars on the Constitution, including one for young people utilizing “Our Constitution Rocks” as the text.  Gary presents talks on various Constitutional topics, writes a weekly essay: Constitutional Corner which is published on multiple websites, and hosts a weekly radio show: “We the People, the Constitution Matters” on WFYL AM1140.  Gary has also begun performing reenactments of James Madison and speaking with public and private school students about Madison’s role in the creation of the Bill of Rights and Constitution.  Gary can be reached at gary@constitutionleadership.org, onFacebook or Twitter (@constitutionled).

[1] The  first elected government was installed at “Jamestowne” in 1619.

[2] sSpeech in the Virginia constitutional convention, 1829

[3] See: http://dailycaller.com/2016/10/20/heres-what-voter-fraud-looks-like-in-23-states/

[4] See: https://www.brennancenter.org/issues/voter-fraud

[5] in the Boston Gazette, 1781.

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Another principle of the Rule of Law is that all laws should apply to all the people. “[W]here there is no law, there is no liberty; and nothing deserves the name of law but that which is certain and universal in its operation upon all the members of the community,” wrote Founder Benjamin Rush in a 1788 letter to David Ramsay. (Emphasis added) Do our laws apply to all?

It is not uncommon for Congress to exempt itself from complying with certain laws.[1] Congress has exempted itself from the Whistleblower Protection Act of 1989, the Freedom of Information Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act, a key provision of the Patient Protection and Affordable Care Act and many others. Interpreting Benjamin Rush, do these laws deserve the name of law if they only apply to “ordinary Americans” and not the elite of Congress?

The Rule of Law should be the bedrock of our society; but this “bedrock” has the appearance today of shifting sand. If we expect the laws of our land to be respected, we must make them respectable, and the people who make such law must act respectably in doing so, using responsibly the power the people have delegated to them and them alone.

How did we reach this point?  I lay most of the blame on the American people. Our lack of knowledge of constitutional principles today is a plague upon our society. But it was not always so in this country. In 1835, Frenchman Alexis De Tocqueville visited America and noted: “… every citizen is taught…the history of his country, and the leading features of its Constitution.  … it is extremely rare to find a man imperfectly acquainted with all these things, and a person wholly ignorant of them is sort of a phenomenon.”[2]  Today, unfortunately, it is extremely rare to find an American citizen who can discuss features of his Constitution. In a recent poll, thirty-seven percent of Americans could not name a single right secured by the First Amendment.[3]

Our educational system is also partly to blame for not teaching these important constitutional principles. Due to our ignorance, we then send the wrong people to represent us in Washington. We choose the wrong representatives because we don’t know enough to ask the right questions as they run for office. Instead of asking them what they intend to do to “fix Washington,” we should first determine their view of law, the Rule of Law, and the role Congress should play in representing “We the People” in writing our laws.

We can return to an authentic and respectable Rule of Law in this country, but it will require some effort.  My suggestions:

  • Insist that Congress once again exercise the exclusive legislative authority they were intended to have. If Congress insists that certain proposed legislation exceeds their technical expertise, let executive branch agencies propose rules; but those rules must first be submitted to a vote of Congress before they can take effect. This change would not require a Constitutional amendment, only a rule change within Congress.
  • Require that every law passed by Congress applies to them – no exceptions. A “28th Amendment” has been making the rounds of the Internet the last few years. It reads: “Congress shall make no law that applies to the citizens of the United States that does not apply equally to the Senators and/or Representatives; and, Congress shall make no law that applies to the Senators and/or Representatives that does not apply equally to the citizens of the United States.”  Since it is unlikely Congress will make such a change voluntarily, a Constitutional amendment will likely be needed and such an amendment would likely only come from an Article V Convention.
  • Taking Madison’s warning to heart, the days of 2000-page bills should end. Bills should encompass a single topic and be limited to perhaps 100 pages, sufficiently short to be read in a single sitting.
  • The original Constitution established only four federal crimes: treason, bribery, piracy and counterfeiting. There are estimated today to be in excess of 4500 federal crimes.[4] It has been suggested that so many unknown crimes exist in the Code of Federal Regulations that every citizen violates at least one federal law each day, perhaps as many as three, making all of us potentially federal criminals should a federal prosecutor take interest in us.[5] This must stop.  There should be a methodical scrub of the CFR and antiquated, absurd or redundant federal crimes removed.[6]
  • We as a people should consider whether the principle of judicial precedent really serves republican purposes. A court’s opinion should be deemed to apply only to the two litigants in a case. When the Chief Justice of the Supreme Court charges that five of his colleagues have acted like a legislature, they should take note and change their behavior/opinion.

Gary Porter is Executive Director of the Constitution Leadership Initiative (CLI), a project to promote a better understanding of the U.S. Constitution by the American people.   CLI provides seminars on the Constitution, including one for young people utilizing “Our Constitution Rocks” as the text.  Gary presents talks on various Constitutional topics, writes a weekly essay: Constitutional Corner which is published on multiple websites, and hosts a weekly radio show: “We the People, the Constitution Matters” on WFYL AM1140.  Gary has also begun performing reenactments of James Madison and speaking with public and private school students about Madison’s role in the creation of the Bill of Rights and Constitution.  Gary can be reached at gary@constitutionleadership.org, on Facebook or Twitter (@constitutionled).

[1] See: https://nationalinterest.org/feature/congress-acts-its-above-the-law-23400.

[2] de Tocqueville, Alexis (1835). De la démocratie en Amérique. (1 ed.). Paris: Librairie de Charles Gosselin.

[3] https://www.washingtontimes.com/news/2017/sep/13/37-percent-of-americans-cant-name-any-of-the-right/.

[4] https://www.wsj.com/articles/SB10001424052748703749504576172714184601654.

[5] https://www.amazon.com/Three-Felonies-Day-Target-Innocent/dp/1594035229.

[6] You are a federal criminal if you denigrate the character of Woodsy the Owl or his motto: “Give a hoot, don’t pollute.”

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If it be asked, What is the most sacred duty and the greatest source of our security in a Republic? The answer would be, an inviolable respect for the Constitution and Laws — the first growing out of the last.[1]

Alexander Hamilton goes on to point out that: “The instruments by which [government] must act are either the AUTHORITY of the laws or FORCE. If the first be destroyed, the last must be substituted; and where this becomes the ordinary instrument of government there is an end to liberty!”[2]Where there is no respect for the law, where it has no authority, liberty ends — slavery begins.

“A Republic, if you can keep it,” cautioned Mr. Franklin. A key ingredient of this “keeping,” if Hamilton is to be believed, must certainly be a uniform respect for and obedience of the law. Said another way: the Rule of Law is the bedrock of our society.

But what does “Rule of Law” really mean? Would we know it when we saw it operating? Wikipedia answers: The rule of law is the principle that law should govern a nation, as opposed to being governed by decisions of individual government officials.”[3]

“[A] government of laws, and not of men,” is how John Adams put it.[4] But the phrase “Rule of Law” presumes we understand what law itself is. Do we?

“…[L]aw and liberty cannot rationally become the objects of our love” (or our respect, we might add) “unless they first become the objects of our knowledge,” states Founder James Wilson of Pennsylvania.[5] So as we begin this discussion of “The Meaning of the Rule of Law and its importance to the functions of Congress in representing the American people,” we should first examine what “law” itself is; what does it encompass? The answer is not as simple as some might suppose.

Noah Webster provides this founding-era definition of law: “A rule, particularly an established or permanent rule, prescribed by the supreme power of a state to its subjects, for regulating their actions, particularly their social actions.”[6] Many authorities point to the Code of Hammurabi (1754 B.C.) as one of the oldest written systems of law, predating even the Ten Commandments (~1513 B.C.), but “Be fruitful, and multiply, and replenish the earth, and subdue it,” God’s first oral commandment to man in Genesis 1:28, predates them both.

Even earlier came the Law of Nature. As Sir William Blackstone explains:

“For as God, when he created matter, and endued it with a principle of mobility, established certain rules for the…direction of that motion; so, when he created man, and endued him with freewill to conduct himself in all parts of life, he laid down certain immutable laws of human nature, whereby that freewill is in some degree regulated and restrained, and gave him also the faculty of reason to discover the purport of those laws.”[7]

As Blackstone argues, the Law of Nature should have been discoverable by reason and inquiry. Should have been. But man quickly showed a propensity for “missing it.”[8] God took action.

“[D]ivine providence… in compassion to the frailty, the imperfection, and the blindness of human reason, hath been pleased, at sundry times and in diverse manners, to discover and enforce its laws by an immediate and direct revelation. The doctrines thus delivered we call the revealed or divine law, and they are to be found only in the holy scriptures.”[9] Ergo, the “Laws of Nature and [the Laws of] Nature’s God.”[10] Finally, along came civil laws, such as those of Hammurabi.

So there are three systems of law – natural law, revealed law and civil law — the last deriving its authority from the first. But is all civil law, “good” law? Does it automatically deserve our respect and obedience simply because it has been created by our duly elected representatives? What if in promulgating civil law a conflict is created with natural or revealed law? Frederick Bastiat answers:

“No society can exist unless the laws are respected to a certain degree, but the safest way to make them respected is to make them respectable. When law and morality are in contradiction to each other, the citizen finds himself in the cruel alternative of either losing his moral sense, or of losing his respect for the law—two evils of equal magnitude, between which it would be difficult to choose.”[11]

“Bad laws are the worst sort of tyranny,” said Englishman Edmund Burke.[12] The Roman historian Tacitus expressed a similar sentiment: “Formerly we suffered from crimes. Now we suffer from laws.” “[I]f the public are bound to yield obedience to laws to which they cannot give their approbation, they are slaves to those who make such laws and enforce them,” complained “Candidus” in the Boston Gazette on January 20, 1772. Finally, a civil law which contravenes natural law is either “spoilt law” (Thomas Aquinas)[13] or of “no validity” (Blackstone).[14] Clearly, not all laws are created equal.

Which brings us to Congress. We know from Article 1, Section 1, that the Constitution gives all legislative power to Congress. According to the separation of powers doctrine put forth by Charles-Louis de Secondat, Baron de La Brède et de Montesquieu (the most quoted philosopher of law at the Constitutional Convention), law-making is thus the legitimate purview of neither the Executive nor Judicial branches of government. That’s not the way things work today, but more on that later.

Congress, representing the people, makes laws for the government of the people. But it stands to reason that they should only make laws which reflect the will of the people and which are in the people’s best interest. That also does not always happen today.

Finally, Congress does not have the constitutional authority to make any old laws. According to James Madison, their legislative jurisdiction is (or was) limited “to certain enumerated objects.”[15]

The process by which Congress and the President turn a bill into a law is pretty well-known and will not be repeated here. I should point out, however, that one feature of that process, whereby a bill passed by both houses of Congress automatically becomes law unless vetoed by the President (in all but one circumstance), is a direct result of one of Jefferson’s complaints in the Declaration of Independence: [The King] has refused his Assent to Laws, the most wholesome and necessary for the public good.”[16] Today, we no longer need the assent of the “King” before a “wholesome and necessary” bill becomes law, it does so automatically at the end of ten days,[17] with or without the President’s signature.

Earlier I inferred that all was not well with our law-making process under today’s Constitution. Since that is an integral part of the Rule of Law, let’s take a closer look.

Despite the clear wording of Article 1 Section 1, Congress is today not the exclusive legislative body in the federal government. Executive branch agencies have been given the authority to promulgate “rules” which have the force of law. That they are called “rules” rather than laws is simply cosmetic: if you break a rule you will likely go to jail or be fined just as though you “broke the law.” This improper law-making does not take place in a dark alley somewhere, outside the cognizance of Congress; Congress in fact authorizes it. But this delegation of Congress’ law-making authority runs counter to this principle expressed by John Locke:

“For [the legislative power] being but a delegated Power from the People, they, who have it, cannot pass it over to others. . . . And when the people have said, We will submit to rules, and be govern’d by Laws made by such Men, and in such Forms, no Body else can say other Men shall make Laws for them; nor can the people be bound by any Laws but such as are Enacted by those, whom they have Chosen, and Authorised to make Laws for them.”[18]

This delegation of legislative authority to unelected government bureaucrats was challenged in 1989.[19] The Supreme Court, in an 8-1 decision (Justice Scalia was the lone dissent!), stated:

“… our jurisprudence has been driven by a practical understanding that in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives. Accordingly, this Court has deemed it “constitutionally sufficient” if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority.” (emphasis added)

So Congress passes a skeleton of a law, containing some broad “general policy ,“ and says to the Executive Branch: “fill in the details.”

To guard against the equivalent of President John Adams’ “midnight judges,”[20] Congress gave itself the authority to overturn rules promulgated in the waning days of an outgoing administration; but they must use this authority within a certain “window of opportunity.”[21]

These rules are no small matter. They have bloated the Code of Federal Regulations to more than 175,000 pages and it has been calculated that they add more than $2Trillion to the annual cost of business in America[22] — a cost that is simply passed on to “we the consumer,” a consumer, it should be clear, who is oblivious to this breach of the separation of powers doctrine. Unless the Supreme Court one day overturns Mistretta, Executive Branch law-making is here to stay.

If the Executive Branch can make law, why not the Judiciary? Enter “judge-made law.” “Judge made laws are the legal doctrines established by judicial precedents rather than by a statute. In other words, [the] judge interprets a law in such a way to create a new law. They are also known as case law. Judge made laws are based on the legal principle “stare decisis” which means to stand by that which is decided.”[23] Judge-made law suffers the same defect as delegation to the Executive Branch: law created by other than our elected officials; law created by men and women unaccountable to the people.

“[T]his Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be. The people who ratified the Constitution authorized courts to exercise ‘neither force nor will but merely judgment’….The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent.”[24]

Judge-made constitutional law would not be much of an issue if all Justices had a respect for originalism and the intent of the Framers and Ratifiers. Sadly, such Justices are in the minority.

Turning now to whether laws passed by Congress reflect the will of the American people we can point to the example of The Patient Protection and Affordable Care Act (PPACA). The PPACA, nicknamed Obamacare, was passed in 2010 by a Democrat-controlled Congress without a single Republican vote, and was triumphantly signed by President Obama. Public polls of the time consistently showed 60% or more of Americans opposed to the measure yet the 2000+ page bill was rammed through the Congress and became law through an act of pure partisan power. While subsidizing the cost of health care for some Americans who could previously not afford it, the poorly contrived bill, admittedly intended as a step towards a single-payer health-care system, has resulted in higher insurance premiums for most other Americans.

James Madison foresaw this situation:

“It will be of little avail to the people that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man who knows what the law is today can guess what is will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?”[25]

Gary Porter is Executive Director of the Constitution Leadership Initiative (CLI), a project to promote a better understanding of the U.S. Constitution by the American people.   CLI provides seminars on the Constitution, including one for young people utilizing “Our Constitution Rocks” as the text.  Gary presents talks on various Constitutional topics, writes a weekly essay: Constitutional Corner which is published on multiple websites, and hosts a weekly radio show: “We the People, the Constitution Matters” on WFYL AM1140.  Gary has also begun performing reenactments of James Madison and speaking with public and private school students about Madison’s role in the creation of the Bill of Rights and Constitution.  Gary can be reached at gary@constitutionleadership.org, on Facebook or Twitter (@constitutionled).

[1] Alexander Hamilton, “Tully No. 3,” published in the American Daily Advertiser, August 28, 1794, found at https://founders.archives.gov/documents/Hamilton/01-17-02-0130.

[2] Ibid.

[3] Found at: https://en.wikipedia.org/wiki/Rule_of_law.

[4] John Adams, Novanglus No. 7, found at: https://thefederalistpapers.org/wp-content/uploads/2012/12/The-Novanglus-Essays-by-John-Adams.pdf.

[5] James Wilson, Lectures on Law, 1768, found at: http://www.constitution.org/jwilson/jwilson.htm.

[6] Noah Webster, American Dictionary of the English Language, New York: S. Converse, 1828.

[7] Sir William Blackstone, Commentaries on the Laws of England, 1765, Clarendon Press, Oxford, England. Introduction.

[8] See Genesis 4:8, for starters.

[9] Ibid. Book 1, Chapter 2.

[10] Thomas Jefferson, Declaration of Independence, July 4, 1776.

[11] Frederick Bastiat, The Law, found at https://americanliterature.com/author/frederic-bastiat/book/the-law/.

[12] Speech at Bristol, England, 6 September 1780.

[13] Saint Thomas Aquinas, Summa Theologica, I–II q. 95 a. 2.

[14] Sir William Blackstone, Commentaries on the Laws of England, Book 1, Chapter 2.

[15] James Madison, Federalist No. 14, 1787.

[16] Thomas Jefferson, Declaration of Independence, 1776.

[17] Not counting Sundays.

[18] John Locke, Second Treatise on Government, 1690.

[19] Mistretta v. United States, 488 U.S. 361 (1989).

[20] https://en.wikipedia.org/wiki/Midnight_Judges_Act.

[21] For more on the Congressional Review Act, see: https://fas.org/sgp/crs/misc/R43992.pdf.

[22] See: http://www.nam.org/Data-and-Reports/Cost-of-Federal-Regulations/Federal-Regulation-Executive-Summary.pdf.

[23] https://definitions.uslegal.com/j/judge-made-laws/.

[24] Chief Justice John Roberts’ dissent in Obergefell v. Hodges (2015).

[25] James Madison, Federalist no. 62, February 27, 1788.

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A Matter of Conscience: Henry J. Hyde, Congressman

“One of the great errors of modern politics is our foolish attempt to separate our private consciences from our public acts, and it cannot be done. At the end of the 20th century, is the crowning achievement of our democracy to treat the weak, the powerless, the unwanted as things? To be disposed of? If so, we have not elevated justice; we have disgraced it.” – Congressman Henry Hyde, speaking on partial-birth abortion.

“The right of conscience and private judgement is unalienable and it is truly the interest of all mankind to unite themselves into one body for the liberty, free exercise, and unmolested enjoyment of this right.” – Ezra Stiles (1727-1795).

“The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience by in any manner, or on any pretext infringed.” – James Madison, original draft of the First Amendment.

James Madison failed at his task of securing an explicit right of conscience in the Constitution.  Nevertheless, it is comforting today to encounter men and women of conscience.  Such was Henry J. Hyde.

Henry Hyde (April 18, 1924 – November 29, 2007) was an American politician best known for sponsoring an amendment, now bearing his name,[1]  which outlawed the use of federal funds in performing abortions.  Over the years, Congress altered the Hyde Amendment several times, but repeatedly passed it nevertheless.

Although the Hyde Amendment was immediately challenged in the courts, the Supreme Court upheld its constitutionality in Harris v. McRae.  The Court stated:

“The funding restrictions of the Hyde Amendment do not impinge on the “liberty” protected by the Due Process Clause of the Fifth Amendment held in Roe v. Wade, 410 U.S. 113, 168, to include the freedom of a woman to decide whether to terminate a pregnancy. . . .

Regardless of whether the freedom of a woman to choose to terminate her pregnancy for health reasons lies at the core or the periphery of the due process liberty recognized in Wade, supra, it does not follow that a woman’s freedom of choice carries with it a constitutional entitlement to the financial resources to avail herself of the full range of protected choices.”

On July 21, 2016, the Democratic Party of the U.S. issued its 2016 platform, containing, for the first time, an explicit call to repeal the Hyde Amendment.[2]  Seemingly in response, six months later on January 24, 2017, the House of Representatives passed H.R. 7, which, according to the press office of Speaker Paul Ryan, “makes the Hyde amendment permanent.”

For his steadfast opposition to abortion, after announcing his retirement from Congress in 2006, Representative Hyde was named a Papal Knight of the Order of St. Gregory the Great by Pope Benedict XVI.  After leaving office the following year, he received the Presidential Medal of Freedom, the nation’s highest civilian honor from President George W. Bush.  Hyde could not attend the award ceremony in person as he remained hospitalized after open-heart surgery, complications of which shortly led to his death at age 83. The Presidential Medal of Freedom citation read:

“A veteran, a lawyer, and a public servant, Henry Hyde has served his country with honor and dedication.  During his 32-year career in the House of Representatives, he was a powerful defender of life, a leading advocate for a strong national defense, and an unwavering voice for liberty, democracy, and free enterprise around the world.  A true gentleman of the House, he advanced his principles without rancor and earned the respect of friends and adversaries alike.  The United States honors Henry Hyde for his distinguished record of service to America.”[3]

“Veteran” referred to Hyde’s service in the U.S. Navy during WWII and his continued service in the Naval Reserve from 1946 to 1968, ending in command of a U.S. Naval Intelligence Reserve Unit in Chicago and retirement at the rank of Commander (O-5).

As a public servant, Hyde served first in the Illinois House of Representatives (1967-1974) including a stint as Majority Leader from 1971 to 1972, and then represented Illinois’ 6th District in Congress for the next 32 years, from 1975 to 2007.

Beyond the 1976 Hyde Amendment, Hyde is perhaps best known for his efforts in leading the impeachment of President Bill Clinton in 1998.  When the Lewinsky Scandal[4] first became public, Hyde apparently did not take calls to impeach Clinton very seriously; he considered the issue to one of be sexual misconduct and not a concern of Congress.[5] That changed after Clinton boldly lied to the House Judiciary Committee, stating that he had not had sexual relations with “Ms. Lewinsky” — with Hyde sitting before him as chairman of the committee!  Hyde skillfully led House “managers” in successfully passing an impeachment resolution and sending the case to the Senate for trial where, despite Hyde’s efforts as chief prosecutor, Clinton was acquitted of perjury and obstruction of justice charges. Hyde ended his closing argument in the Senate trial by stating:

“A failure to convict will make the statement that lying under oath, while unpleasant and to be avoided, is not all that serious…We have reduced lying under oath to a breach of etiquette, but only if you are the President…And now let us all take our place in history on the side of honor, and, oh, yes, let right be done.”

Once more, a call to conscience.

Over the years, Hyde also waged vigorous battles against flag-burning, doctor-assisted suicide, and same-sex marriage.  Speaking out about partial-birth abortion, Hyde eloquently stated:

“This is not a debate about sectarian religious doctrine or about policy options. This is a debate about our understanding of human dignity, what does it mean to be human? Our moment in history is marked by a mortal conflict between a culture of death and a culture of life, and today, here and now, we must choose sides.”

A graduate of Georgetown University, Hyde later earned his law degree from Loyola University Chicago, a Jesuit Catholic University. In 1947, Hyde married the former Jeanne Simpson. Together they had four children, who brought them four grandchildren. Jeanne died in 1992 and Henry soon married the former Judy Wolverton. No further children issued.

When Hyde died on November 29, 2007, Crisis Magazine began a collection of online condolences. They paint a picture of a remarkable patriot:

“… one of the rarest, most accomplished, and most distinguished Members of Congress ever to serve.”

“… one of the great leaders of America’s modern age.”

“…the most eloquent defender of the right to life who ever served in the United States Congress.”

“…the greatest Catholic statesman of our generation.”

“His courage should be an example for us all.”[6]

Perhaps this short bio should end, as it began, with the words of Congressman Henry Hyde:

 “When the time comes as it surely will, when we face that awesome moment, the final judgment, I’ve often thought, as Fulton Sheen wrote, that it is a terrible moment of loneliness. You have no advocates, you are there alone standing before God – and a terror will rip through your soul like nothing you can imagine. But I really think that those in the pro-life movement will not be alone. I think there will be a chorus of voices that have never been heard in this world but are heard beautifully and clearly in the next world – and they will plead for everyone who has been in this movement. They will say to God, ‘Spare him because he loved us,’ – and God will look at you and say not, ‘Did you succeed?’ but ‘Did you try?’”  –Congressman Henry Hyde, speech on abortion.

Amen.

Gary Porter is Executive Director of the Constitution Leadership Initiative (CLI), a project to promote a better understanding of the U.S. Constitution by the American people.   CLI provides seminars on the Constitution, including one for young people utilizing “Our Constitution Rocks” as the text.  Gary presents talks on various Constitutional topics, writes a weekly essay: Constitutional Corner which is published on multiple websites, and hosts a weekly radio show: “We the People, the Constitution Matters” on WFYL AM1140.  Gary has also begun performing reenactments of James Madison and speaking with public and private school students about Madison’s role in the creation of the Bill of Rights and Constitution.  Gary can be reached at gary@constitutionleadership.org, on Facebook or Twitter (@constitutionled).

[1] This “Hyde Amendment” should not be confused with the Hyde Amendment of 1997, which dealt with an entirely different matter.

[2] http://www.presidency.ucsb.edu/papers_pdf/117717.pdf

[3] https://georgewbush-whitehouse.archives.gov/news/releases/2007/11/20071105-7.html

[4] https://en.wikipedia.org/wiki/Clinton%E2%80%93Lewinsky_scandal

[5] Hyde had himself confessed to an adulterous affair that had taken place in the early 1960s before he entered public life, calling it a “youthful indiscretion[].”

[6] https://www.crisismagazine.com/2007/remembering-henry-hyde-2

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A Bill Of Rights Is What The People Are Entitled To … — The People Limit Their Government

“In questions of power,… let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.” Thomas Jefferson, 1798.

Sunday, 8 April 1787

Young “Jemmy” Madison, frustrated by what he had observed over the last six years, sat down at his writing desk in his New York City boarding room. After an unseasonably severe winter, the spring of 1787 was finally becoming pleasant. But Madison had little time to reflect upon the fair weather.

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Most Americans realize that the Declaration of Independence established our separation from Great Britain and that sometime later the U.S. Constitution established the U.S. Congress, the Legislative Branch of government, along with its sister branches: the Executive and the Judiciary.  But most Americans would be surprised to learn that the Congress, through the Constitution, has a connection to the Declaration of Independence as well.  Many view the two documents as separate and distinct; they were, after all, drafted eleven years apart by two different groups of men for different purposes.[1] But the U.S. Supreme Court has affirmed their connection; in Gulf, C. & S. F. R. CO. v. Ellis , 165 U.S. 150 (1897), the Court declared that while the Constitution was indeed the “body and letter” of our government, the Declaration was the “thought and spirit.”

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