In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Guest Essayist: J. Eric Wise, a partner at Gibson, Dunn & Crutcher LLP law firm

Amendment VII:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

If you have good facts, pound the facts; if you have good law, pound the law; if you have nothing, pound the table.  Aside from the good rule of focusing attention on the areas where one’s case has strength, advocacy, as a form of rhetoric, also requires knowing your audience.  In American criminal and civil procedure, where there is a jury, the jury is a trier of fact and the judge makes determinations of law.

The jury is a legal invention that can be traced back to at least 11th Century England, when the Domesday Book was assembled from information gathered by juries empaneled to catalogue property holdings throughout the realm.  Juries of local people were assumed to be familiar with the local facts that would be the basis of the catalogue.

As the use of juries expanded, juries came to be considered a bulwark against tyranny, because while magistrates might align with a king, a jury of peers would check the king’s power at trial.  The Bill of Rights protects jury trials in civil and criminal matters.

The Sixth Amendment provides “In all criminal prosecutions, the accused shall enjoy the right to . . . trial by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law.”  The Seventh Amendment provides “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of common law.”

While most state constitutions have jury clauses, the Supreme Court has determined that the Sixth Amendment right to an impartial jury in criminal cases extends to the states through the operation of the Due Process Clause of the Fourteenth Amendment under the doctrine known as “substantive due process.”  However, the right to a trial in the state and district where the crime is committed, known as the Vicinage Clause, is not incorporated into the Fourteenth Amendment against the states.  The right to a jury trial in a civil case is also not protected in state proceedings, unless protected under state law.

In jury trials, judges do not try questions of fact.  Rather judges determine questions of law, including questions regarding the procedures by which the facts are developed in court.  Judges further instruct the jury as to what is the law to which the facts are to be applied.  In certain cases, juries may refuse to determine the facts at all and engage in what is known as jury nullification to satisfy its own views of what the law should be in the particular case.  Arguments run here and there as to whether this is a check and balance of the justice system or whether it is a dereliction of the duties of jurors.

In certain cases and courts the judge is both the trier of fact and the trier of law.  Commercial parties frequently waive the right to a jury trial.  Administrative courts, as administrators, and bankruptcy courts, as courts of equity, largely do not employ juries.  This is in part based on the opinion that the subject matter of administrative law and commercial issues may be too sophisticated for a jury.  Left and Right take varying and perhaps contradictory positions on this.  Some on the Right advocate for removal of juries in medical malpractice cases.  The plaintiffs bar howls.  The Left admires administrative law and great bureaucracies.  They call it job creation.  Almost all commercial interests are satisfied that juries are generally absent from involvement in bankruptcy cases, which require rapid determinations and understanding of complex financial issues.

As usual, Ronald Reagan may have put it best.  In his First Inaugural Address he said first:  “[W]e have been tempted to believe that society has become too complex to be managed by self-rule, that government by an elite group is superior to government for, by, and of the people.  But if no one among us is capable of governing himself, then who among us has the capacity to govern someone else?” and then he said “Now, so there will be no misunderstanding, it is not my intention to do away with government. It is, rather, to make it work—work with us, not over us; to stand by our side, not ride on our back.”

J. Eric Wise is a partner in the law firm of Gibson, Dunn & Crutcher LLP, where he practices restructuring and finance.

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April 3, 2012

Essay # 32

Guest Essayist: Julia Shaw, Research Associate and Program Manager in the B. Kenneth Simon Center for Principles and Politics at the Heritage Foundation

Amendment VII:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Right to Trial by Jury in Civil Cases

No one likes jury duty. When the summons arrives in the mail, most Americans look to check the box that gets them out of service. Why lose a day of work to spend a day deciding some dispute about a fence or a car accident?

Far from a wasted day,  Alexis de Tocqueville praised the jury service in Democracy in America “as a school, free of charge and always open, where each juror comes to be instructed on his rights, where he enters into daily communication with the most instructed and most enlightened members of the elevated classes, where the laws are taught to him a practical manner and are put within reach within his intelligence by the efforts of the attorneys, the advice of the judge, and they very passions of the parties.” Indeed, de Tocqueville attributes Americans’ “practical intelligence and good political sense” to their maintenance of the civil jury.

At the Constitutional Convention, Hugh Williamson argued that the right to jury in civil trials should be included in the Constitution. Two delegates moved to insert the sentence “And a trial by jury shall be preserved as usual in civil cases” in Article III, but the Convention rejected this wording and did not include it in the Constitution.

Its absence proved to be a grave political miscalculation. The lack of a specific protection the right to trial by jury in civil cases accounted for the greatest opposition to the Constitution. The Anti-Federalists suggested that the absence meant that the right to trial by jury in civil cases would be abolished. The Federalists defended the omission by arguing that Congress, not the Constitution, should determine the rules for civil cases. But, this was a weak argument for two reasons. First, twelve of the states’ constitutions protected the right to trial by jury in civil cases. Second, during the American Revolution, the colonists objected that Parliament had deprived them of their right to trial by jury. It’s no surprise then that Congress passed the Seventh Amendment guaranteeing the right to trial by jury in civil cases without debate.

Justice Joseph Story argued in Parsons v. Bedford (1830) that the Seventh Amendment applied to all suits except suits of equity and admiralty. The Supreme Court, however, ultimately developed a more limited interpretation. The Court argued that the clause applies to the kinds of cases that existed under English Common Law when the amendment was adopted. The Seventh Amendment does not apply to civil cases that are “suits at common law.” It also does not apply to cases when “public” or governmental rights are at issue or when there are no analogous historical cases with juries. Personal and property claims against the United States by Congress do not require juries. Parties can waive the right to a jury in civil trials. Unlike in 1791, jury trials for civil cases no longer require a unanimous verdict from a 12-person jury.

In contrast to broad support for the right to trial by jury in the 18th century, modern jurists do not see the right to jury in civil trials as fundamental to the U.S. legal system. This explains why, unlike the Sixth Amendment’s protection of the right to trial in criminal cases, the Right to Jury in Civil Cases Clause is not incorporated against the states. Unlike the Sixth Amendment, the Seventh Amendment applies only in federal courts. The Seventh Amendment joins the Second Amendment and the Grand Jury Clause as the few parts of the Bill of Rights that the Supreme Court has not incorporated against the states.

When that jury summons arrives in the mail, we should think about service not as a wasted day but as an opportunity to participate in the justice system and to gain a deeper understanding of our rights. As Tocqueville remarked that serving on a civil jury “teaches men the practice of equity. Each, in judging his neighbor, thinks that he could be judged in turn. That is above all true of the jury in a civil matter; there is almost no one who fears being the object of a criminal persecution one day; but everyone can have a lawsuit.”

Julia Shaw is Research Associate and Program Manager in the B. Kenneth Simon Center for Principles and Politics at the Heritage Foundation.

April 2, 2012 

Essay #31 

Guest Essayist: Nathaniel Stewart, Attorney

Amendment VI:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of counsel for his defence.


Sixth Amendment Overview

The Sixth Amendment is the centerpiece of constitutional criminal procedure.  It forms the framework, the underlying first principles governing the process by which our society will try and treat those accused of a crime.  As the English legal philosopher, William Blackstone, famously quipped, “better that ten guilty persons escape than that one innocent suffer,” expressing the ancient axiom—dating even to Genesis—that the law should be made to punish the guilty, but not the innocent.[1]

The Sixth Amendment sets out the legal strictures and protections designed to protect society from its criminals, and protect the innocent from society.  To secure these protections, the Amendment prescribes three sets of rights: (1) the right to a speedy trial; (2) the right to a public trial; and (3) the right to a fair trial.

The Founding-generation was well aware that a speedy trial was a fundamental right of Englishmen.  It was approved by the First Congress without discussion.  The right to a speedy trial protects several related liberty interests, namely, the individual’s interests in avoiding a prolonged pretrial detention and in minimizing reputational damage due to an unjust or false accusation.  It protects the innocent from suffering a de facto punishment—a lengthy pre-trial detention—before ever having the chance to defend himself.  Furthermore, ensuring a speedy trial also helps to facilitate a fair trial—one designed to discover the truth of the matter, not just a verdict—since a prolonged delay may harm the accused’s legal defense as memories fade, evidence is lost or destroyed, or witnesses die or move away.  The Founders made sure that the government could not merely charge the accused with a crime, infringe upon his liberties, damage his public reputation, and then fail to give him a legal forum for mounting a defense and clearing himself of the allegations.  A defense must be afforded quickly, for as another old saying goes, “justice delayed is justice denied.”[2]

The right to a public trial is “a trial of, by, and before the people.”[3] As one legal scholar succinctly put it, a trial should be “a public thing, the people’s thing,” and included in the right to a public trial are “the rights to (a) a trial held in public, (b) featuring an impartial jury of the people, (c) who come from the community where the crime occurred.”[4] The Founders would not sanction secret criminal proceedings, and there was a deep Anglo-American tradition that trials be open and public spectacles.  The Supreme Court acknowledged as much when it wrote: “by immemorial usage, wherever the common law prevails, all trials are in open court, to which spectators are admitted.”[5] Public trials serve a number of purposes in a number of ways, chief among them an added protection for the innocent.  As Professor Amar has noted, “Witnesses for the prosecution may be less willing to lie or shade the truth with the public looking on; and bystanders with knowledge of the underlying events can bring missing information to the attention of the court and counsel.  A defendant will be convicted only if the people of the community (via the jury) believe the criminal accusation—believe both that he did the acts he is accused of, and that these acts are indeed criminal and worthy of the community’s moral condemnation.”[6]

Finally, the Sixth Amendment’s protections provide the accused with a fair trial, affording him protections against an erroneous guilty verdict.  We see this expressed in the constitutional right to an attorney—that is, the right to defense counsel—and “to be informed of the nature and cause of the accusation,” as well as the right “to be confronted with the witnesses against him,” and the right to obtain “witnesses in his favor.” The process for trying the accused is to be fair and impartial.  If the government can martial its lawyers to prosecute, the accused must be entitled to the same.  If the government can prepare its case for accusation, the accused must know of the charges.  If the government can bring forth witnesses to testify against the defendant, the defendant must be allowed to confront them in open court and before a jury of his peers, and he is entitled to call witnesses on his own behalf.  These procedural protections, too, are part and parcel of a Constitution constructed with deliberate checks and balances designed to preserve both liberty and order in a free society.

The constitutional right to a speedy, public, and fair trial at least helps to ensure—though it cannot guarantee—a just result, and it encourages the public’s continued confidence in a criminal justice system whereby all men are presumed innocent until proven guilty.

Nathaniel Stewart is an attorney in Washington, D.C.

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March 30, 2012

Essay #30

[1] See, Genesis 18:23-32: “Abraham drew near, and said, ‘Will you consume the righteous with the wicked? What if there are fifty righteous within the city? Will you consume and not spare the place for the fifty righteous who are in it?[3] … What if ten are found there?’ He [The Lord] said, ‘I will not destroy it for the ten’s sake.’”

[2] Often attributed to William Gladstone.

[3] Akhil Reed Amar, “Forward: Sixth Amendment First Principles,” 84 Georgetown L. J. 64 (1996).

[4] Id.

[5] In re Oliver, 333 U.S. 257 (1948).

[6] Akhil Reed Amar, “Forward: Sixth Amendment First Principles,” 84 Georgetown L. J. 64 (1996).


Guest Essayist: Steven H. Aden, Senior Counsel, Alliance Defense Fund

Amendment IX

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

Despite 220 years of constitutional interpretation, there really isn’t much one can say about the Ninth Amendment.  And that’s just what James Madison and the Framers intended.

The Ninth Amendment is that rare creature in American politics, a success story conceived in humility.  The first eight amendments of the Bill of Rights established freedom of worship, the freedoms of assembly, speech, press and petition, the rights to bear arms, to be free from government intrusions into citizens’ homes, to due process and to a jury of one’s peers, and many others.  Having penned what may have been the finest articulation of the rights of man in human history, Madison and his colleagues could have been forgiven for giving way to hubris and capping it with a rhetorical flourish.  Instead, they added a caution, by way of an afterthought.  The Ninth Amendment’s quiet caveat has done much more to protect fundamental rights from government encroachment than its humble phrasing would suggest.

The Bill of Rights exists because a compromise was required to satisfy the Anti-Federalists and States that were cautious about ratifying into existence a federal government of broad powers.  The Ninth Amendment exists because another compromise was necessary to satisfy those in the Federalist camp who believed that an enumeration of rights would tend to negate recognition of rights left unmentioned.  Madison, Alexander Hamilton and other Federalists contended that a Bill of Rights was unnecessary because the federal government’s powers were delineated by and limited to those set forth in Article I, Section 8 [link to John Baker’s blog on this provision  – ] Hamilton’s Federalist 84 queried, “Why declare that things shall not be done which there is no power to do?”  But the Anti-Federalists, led by Thomas Jefferson, prevailed, and history has affirmed their wisdom as through expansive interpretations of the Necessary and Proper Clause and the Commerce Clause the mantle of federal power has come to envelope virtually every aspect of life from the light bulbs in our ceilings to the “individual mandate” to purchase health insurance.  The enumeration of rights stands as a bulwark against that tide of federal authority in the sphere of private life, speech and conduct.  On the other hand, the Ninth Amendment lifts its staying hand against the argument that these rights, and only these, stand between the citizen and his seemingly omnipotent (and, with digital technology, increasingly omnipresent) government.

That the rights enumerated in the first eight amendments are not all the rights we possess may strike one at first as a challenging notion.  For rights that went unenumerated at the time, but became “self-evident” (in the words of the Declaration) much later, consider the right to be free, expressed in the Thirteenth Amendment prohibiting slavery (1865); the right to vote (Amendment XIV in 1870); and the right to vote for women, which came a half-century later (Amendment XIX in 1920).  Except for the salutary effect of the Ninth Amendment, it might have been presumed that no other fundamental human rights existed outside of those enumerated in 1789 – that the “canon of human rights” was closed, not subject to further elaboration through constitutional amendment.  Or perhaps what is worse, it might have been supposed that all “rights” secured by the people through amendment of the Constitution subsequent to the Founding were not “fundamental” human rights, but only positive political rights secured through an effective application of the Social Contract.  For unenumerated fundamental rights that have yet to be affirmed in the written constitution, consider the right of conscience; the right of parents to raise and educate their children outside of the government school system (unrecognized in parts of Europe and elsewhere), or the right to be free from genetic manipulation.

Mark Twain quipped, “Some compromise is essential between parties which are not omniscient.” Our generations, and generations to come, will have to struggle with the meaning of rights enumerated and unenumerated, and with the wisdom of further constitutional amendments.  Thankfully, because the two great forces in the making of the Constitution were willing to admit their fallibility and broker resolutions, we have the wisdom of the Bill of Rights, and the wisdom of the “Bill of Other Rights” – the Ninth Amendment.

Steven H. Aden is the Senior Counsel for the Alliance Defense Fund, .

Guest Essayist: W. David Stedman and LaVaughn G. Lewis, Co-Editors, Our Ageless Constitution

Amendment VII

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.



The following is excerpted with permission from the book Our Ageless Constitution [p.41]

Trial By Jury Of Peers Under Laws By Consent Of The People


The Constitution’s Ultimate Protection For Individuals From Government

“What a fine…consolation is it for a man, that he can be can be subjected to no laws which he does not make himself, or constitute some of his friends to make for him…What a satisfaction…that he can lie under…no guilt, be subjected to no punishment, lose none of his property…the necessaries, conveniences, or ornaments of life, which Providence has showered on him, but by the judgment of his peers, his equals, his neighbors…”

–John Adams


Americans often say they’re “innocent until proven guilty.” Most, however, give little thought to the very real Constitutional protections devised by the Founders for securing individual liberty from intrusion by arbitrary government power. Incorporated into their Constitution were two great methods of defending liberty:


  • Representation in the Lawmaking and Taxing Body

The PEOPLE, through their elected representatives, choose the laws by which they agree to be governed.

  • Trial By A Jury Of Peers

The PEOPLE, through a jury of twelve peers, have the final say about their guilt or innocence under those laws.


The people who settled this nation and who formed its government believed strongly that these were the two most important principles on which to build a Constitution for a free people.

As a matter of fact, the Continental Congress of 1774 had declared them to be the bulwarks of individual freedom and essential to the defense of all other freedoms, saying:

“The first grand right is that of the people having a share in their own government by their representatives chosen by themselves, and…of being ruled by laws which they themselves approve, not by edicts of men over whom they have no controul…

“The next great right is that of trial by jury. This provides that neither life, liberty nor property can be taken from the possessor, until twelve of his…countrymen…shall pass their sentence upon oath against him.”

John Adams called these two “popular powers…the heart and lungs…and without them,” he said, “the body must die…the government must become arbitrary.”


The  7th Amendment Defined

The Sixth Amendment assures that Americans receive a jury trial in criminal cases.  Similarly, the 7th amendment guarantees that same right for Americans in civil cases.  Unlike criminal cases, civil suits don’t require unanimity of the jurors – a simple majority can suffice – and per its terms, the 7th Amendment also provides that any conclusions of fact reached by the jurors cannot be set aside by a judge.


The following is excerpted with permission from the book Our Ageless Constitution [p.176]

Our Ageless Constitution

“The structure has been erected by architects of consummate skill and fidelity; its foundations are solid; its components are beautiful, as well as useful; its arrangements are full of wisdom and order…”

–Justice Joseph Story  –  Commentaries on the Constitution of the United States, 1789


The Qualities of Agelessness

America’s Constitution had its roots in the nature, experience, and habits of humankind, in the experience of the American people themselves-their beliefs, customs, and traditions, and in the practical aspects of politics and government. (See: Part I-Roots and Genius) It was based on the experience of the ages. Its provisions were designed in recognition of principles which do not change with time and circumstance, because they are inherent in human nature.

“The foundation of every government,” said John Adams, “is some principle or passion in the minds of the people.” The founding generation, aware of its unique place in the ongoing human struggle for liberty, were willing to risk everything for its attainment. Roger Sherman stated that as government is “instituted for those who live under it…it ought, therefore, to be so constituted as not to be dangerous to liberty.”And the American government was structured with that primary purpose in mind—the protection of the people’s liberty.

Of their historic role, in framing a government to secure liberty, the Framers believed that the degree of wisdom and foresight brought to the task at hand might well determine whether future generations would live in liberty or tyranny. As President Washington so aptly put it, “the sacred fire of liberty” might depend “on the experiment intrusted to the hands of the American people.” That experiment, they hoped, would serve as a beacon of liberty throughout the world.

The Framers of America’s Constitution were guided by the wisdom of previous generations and the lessons of history for guidance in structuring a government to secure for untold millions in the future the unalienable rights of individuals.

W. David Stedman is the retired Chairman of Stedman Corporation. Stedman was a founder of the National Center for America’s Founding Documents and the National Foundation for the Study of Religion and Economics. Stedman is Co-Editor with LaVaugn G. Lewis of Our Ageless Constitution and Rediscovering the Ideas of Liberty. A frequent lecturer on topics relating to the Constitution, America’s free enterprise system and role of the “business statesman,” Stedman holds earned degrees from Duke, Harvard, and Georgetown Universities and is a Distinguished Alumnus of Duke University.

LaVaughn G. Lewis is a former teacher. She served at the Stedman Corporation as Assistant to the Chairman and as researcher and writer. She is Co-Editor with W. David Stedman for Our Ageless Constitution and Rediscovering the Ideas of Liberty, and is a graduate of Pfeiffer University.

Guest Essayist: Marc. S. Lampkin, a Vice President at Quinn Gillespie

Amendment VI


In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Perhaps more than any other Amendment, the 6th Amendment protects the liberties of the American people most directly.  It is so effective in carrying out this goal that most Americans give its protections little thought or consideration.

By setting up the framework which limits the ability of the government to arbitrarily accuse and incarcerate the citizens at large the 6th Amendment minimizes the likelihood that criminal charges will be filed against political enemies of the state. In America no one can be arrested, tried, sentenced and imprison without it occurring under a set of rules in public, with a written record that can be accessed by the public and members of the media.  Prior to the adoption of the 6th Amendment, these protections didn’t exist for large parts of Europe and Asia.

There are seven elements of the 6th Amendment:


Speedy Trial:  As recognized by the Supreme Court this provision has three obvious benefits to the accused

  1. To prevent a lengthy period of incarceration before a trial. In other words the accused won’t be giving unlimited detention without having been tried and convicted.
  2. To minimize the effects of a public accusation. Undue suffering from a false accusation shouldn’t occur for more than an absolute minimum amount of time.
  3. To ensure that too much time didn’t lapse making it harder for the accused to defend himself either as a result of death or sickness of witnesses or due to loss of memories by needed witnesses.


Public Trial: Under its terms the trial must be open to the public and accessible by the media.  Interestingly, this right predates English common law and possibly even the Roman legal system and has been thought to be essential to ensure that the government can’t use the court system as an instrument of persecution because the knowledge that every criminal trial is open and accessible to the public operates as an effective restraint.

Impartial Jury: Unlike a trial in which a judge or panel of judges make a decision, a jury trial is a legal proceeding in which the jurors make the decision.  Interestingly the size of the jury is universally assumed to be 12 but in state criminal trials it can be as few as 6 individuals and in Ancient Greece a criminal trial might include over 500 persons in the jury.  No matter the actual size, it is essential that the individuals who make up this jury be free of bias and prejudice.  They should be representative of the population at large from which the accused comes from but should not be his immediate family or close friends.

Notice of Accusation: It is not sufficient that the state merely take the time to accuse an individual.  The government must also inform the accused of the specific nature and cause of the accusation and do so in a way which makes it reasonably possible for the accused to mount a defense against the charge.  Additionally all of the charges must be outlined and must include all ingredients necessary to constitute a crime.

In other words, the government can’t secretly charge you with speeding or tax fraud and yet not let you know specifically how or when you committed the crimes.  They must be specific and precise in order to make it possible for you to explain, justify or otherwise defend yourself against the charges.

Confrontation: The right to directly question or cross-examine witnesses who have accused a defendant in front of the jury is a fundamental right which like the impartial jury and public trial requirement pre-dates the English legal system.  A variation of this right is referenced in the Book of Acts which describes the Roman governor Porcius Festus, discussing the proper treatment of his prisoner the Apostle Paul: “It is not the manner of the Romans to deliver any man up to die before the accused has met his accusers face-to-face, and has been given a chance to defend himself against the charges.”

Compulsory Process: Like the confrontation clause, the right of “Compulsory Process” protects Americans from unfair criminal accusations by allowing them to be able to obtain witnesses who can testify in open court on their behalf. Even if a witness does not wish to testify, compulsory process means that the state can subpoena him and force the witness to testify or be in contempt of court.  If a person did not have compulsory process, witnesses who know of your innocence but who simply didn’t wish to be involved could lead to a guilt conviction of an innocent person.  Embarrassment or fear are not legitimate excuses to avoid compulsory process because this right is designed to ensure the accused has the opportunity to present his strongest defense before the jury.

Counsel:  Perhaps the most meaningful of all of the 6th Amendment rights, is the right to select the attorney or counsel of your choice to represent you in a criminal case.  While much attention has been focused on the issue of when and whether every accused person must be provided with a minimally competent attorney, the framers felt that the greatest threat was not being able to hire the advocate of your choice.  As early as the year 1300 there was an advance trade made up of individuals who represented or advocated on behalf of accused individuals or individuals who needed to make special pleadings before the government.  At the time of the founding of the United States most of the colonies had adopted a policy of allowing accused individuals in all but the rarest cases the right to hire the counsel of their choice to aid in their defense.  In other words the framers emphasized the importance of the accused having the option either through his own resources or through that of his friends and family to hire the best and most talented advocate and to prevent this would be considered an injustice.  Even though modern litigation over this provision focuses more on the need to insure that every one is provided an attorney “even if they can not afford one” the greatest benefit of this provision is that every individual may choose to expend any or all of their resources to find the most capable lawyer they desire.

The 6th Amendment embodies much of the Founder’s concerns about the potential abuse of the individual by the government.  The founders were quite familiar with the list of abuses by the English monarch.  It is interesting to note that of the 26 rights mentioned in the first through the eighth amendments, 15 of them have something to do with criminal procedure and notably 7 of those 15 are found in this amendment.

Marc S. Lampkin is a Vice President at Quinn Gillespie

Guest Essayist: Robert Chapman-Smith, Instructional Design Associate at the Bill of Rights Institute

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 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.

Guest Essayist: Kelly Shackelford, President/CEO of the Liberty Institute

Federalist 83, written by Alexander Hamilton and published in July of 1788, singles out opposition to the new Constitution due to the lack of a clause requiring jury trials in civil cases.  At the time, some opponents claimed that the Constitution’s notable silence on the issue meant that the use of a jury was abolished in civil cases, while extreme opponents argued that trial by jury in criminal cases was prohibited, which is quickly corrected in Federalist 83.  In this Paper, Hamilton shows the difficulty of inserting a phrase affirming juries in civil cases into the Constitution and that a jury is not beneficial in every situation.

From the beginning, the Constitution mandated jury trials in criminal cases (Article II, Section 2: “The trial of all Crimes… shall be by Jury…”), though it was silent on civil cases.  There was no significant opposition to this, as it was commonly agreed that juries in criminal cases provided, at the very least, an important “safeguard to liberty,” since they protect citizens against arbitrary rulings and “judicial despotism.”

However, opponents of the Constitution used old legal maxims in an attempt to prove that the Constitution’s silence implied prohibition of juries in civil cases.  One phrase that Hamilton mentions is: “’The expression of one thing is the exclusion of another.’”  Hamilton pointed out that the phrase was taken out of context and that applying it to this particular situation forgets the common sense our judicial system was built upon.  This common sense, as understood in the legal system, would say that giving a constitutional mandate for a jury trial in criminal proceedings does not deprive the people (or the legislative power) of the ability to call for a jury in civil cases.

Following Hamilton’s refutation of the assertion that the Constitution abolishes jury trials in civil cases, he shifts to his main arguments.  The most important point Hamilton makes about the non-necessity of a clause regarding trial by jury in civil cases is that the Constitution does not alter the way states use the institution of the jury.  Even today, each state has its own court system, and different courts to deal with certain kinds of issues (for example, the state of Texas has two Supreme Courts – one for civil cases and one for criminal, while other states just have one Supreme Court).  While some of the states’ court systems bore similarities, they were all distinctly different. Until the Constitution, each state had run independently and developed systems of state government.  This was important because prior to the ratification of the Constitution, the U.S. was governed by the Articles of Confederation which gave the federal government almost no authority except in issues of foreign relations and war. While the need for a stronger federal government was apparent, tensions arose over the tradeoff between decreased states rights’ and increased federal powers.

Even so, two states offered propositions affirming jury trials in civil cases for addition to the Constitution.  The first proposition, brought by Pennsylvania, reads: “’Trial by jury shall be as heretofore.’”  However, before the Constitution, the federal government had no judicial power, so to say that the institution of trial by jury should remain as it was previously meant precisely nothing.

The proposition from the Massachusetts convention says, “’In civil actions between citizens of different States, every issue of fact, arising in actions at common law, may be tried by a jury if the parties, or either of them request it.’”  According to Hamilton, this suggestion infers that among civil cases only those dealing with common law merit a jury trial.  Hamilton notes that if that was not Massachusetts’ intention and the convention believes there to be other cases which call for a jury but chose not to incorporate, then it proves his point on the difficulty of addressing the issue in the Constitution.

Propositions like these demonstrated the difficulty of inserting into the Constitution a clause providing for jury trials in civil proceedings that would have broad approval.  Since each state had its own legal system, states would be forced to change in order to comply with the Constitution or, put simply, confusion would erupt.  If a clause was added, it would probably codify the court system of one state, while many of the other states would have to change their systems extensively to be in compliance, which would surely inspire “jealousy and disgust.”

Hamilton, though, does not merely encourage opponents to support the Constitution as is because it is so difficult to insert a jury clause on civil cases; he argues that a jury isn’t always needed, and is sometimes even detrimental.  In some cases, intricate knowledge of the law is required to make a good decision, such as those that call into question foreign relations and equity, or fairness in the law.  Ultimately, juries cannot be expected to have an in-depth understanding of complex areas of the law and apply it correctly.  And since juries consist of citizens who lose time from their jobs, they also cannot be expected to sit on a jury for an extended period of time.  While juries are crucial in criminal cases, Hamilton finds that in civil cases their only benefit comes in “circumstances foreign to the preservation of liberty.”

All citizens now have the right to a jury trial, though they can waive the jury.  Some civil cases never have a jury trial, because juries are only needed in cases where the facts are in dispute.  The Seventh Amendment to the Constitution affirms citizens’ right to a jury trial in cases of common law, which modified and clarified the existing system.

Today, we can look back to our founding documents, such as the Constitution, and see how the Framers diligently strove to preserve the liberty that a jury trial system provides.  Only a handful of countries guarantee their citizens the right to a jury in all cases, including civil proceedings.  The rest prefer that only judges make decisions, which lends itself to elitism and, as Hamilton noted, to corruption.  The American system put forth in the Constitution truly seeks to protect everyday citizens and keeps the power in the hands of the people, which is yet another reason this country is so free.

Friday, August 20th, 2010

Kelly Shackelford, President/CEO of Liberty Institute, is a constitutional scholar who has argued before the U.S. Supreme Court and other courts across the country and has testified before both houses of the U.S. Congress.  Jennifer Grisham is director of media at Liberty Institute.  The Institute fights for First Amendment and Constitutional freedoms in the courts and legislature, has won significant landmark victories on religious liberty, and currently represents over 4 million veterans and all the major veterans’ groups in the famous Mojave Desert Memorial Cross case.  For more, visit


Guest Essayist: David Bobb, Director and Lecturer in Political Science | Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship | Hillsdale College

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

This complaint, however current it might sound, was lodged not against any occupant of the White House.  Rather, American revolutionaries made this claim against King George III in the Declaration of Independence.

Imbued with the “Spirit of ’76,” and given voice by a young Thomas Jefferson, early Americans also indicted the British King in the Declaration “for suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.”

The Crown had assumed all legislative, executive, and judicial powers, the colonists claimed.  Thus they declared that the “prince” (King George III) had become a “tyrant.”  And a tyrant “is unfit to be the ruler of a free people.”

To understand Article I of the Constitution—and the entirety of the “supreme law of the land”—you have to understand the argument of the Declaration of Independence.  The Declaration indicts the King for aggrandizing his power at the expense of the people.  It also acts as a blueprint for limited government by making the bold claim that our rights come not from any government but instead from the Creator.

The Constitution, then, gives structure to our liberties—and to limited government.  Article I of the Constitution is the foundation of this structure. Made up of ten sections, Article I is the longest of the Constitution’s seven articles.  Its length should not confuse us, however, for its meaning is clear if we read it carefully.

Article I, Section 1 says that the law-making authority in the national government resides in Congress.  Not in the Crown, and not directly with the people.  We the people should not vote directly on every issue, the Founding Fathers held.  That strictly democratic form of government can too easily lead to tyranny.  Instead, we the people will elect representatives.  This is republican rule, and conduces more to liberty than any other form of government.

The national legislature is bicameral, with a House of Representatives elected directly by the people, and a Senate originally composed of members elected by the state legislatures.  The Seventeenth Amendment, adopted as part of Progressive reforms in the early 20th century, required direct election of senators, a significant departure from the Founders’ Constitution.  Each state, the original Constitution specified, gets two senators (this is the only part of the Constitution today that cannot be amended).

Article I, Section 8 gives an enumeration, or list, of the powers of Congress.  When compared to the anemic Articles of Confederation, which even denied Congress the power to tax, the enumerated powers were quite expansive.  Compared to the scope and scale of congressional authority today, the enumerated powers seem quaint, kind of like a powdered wig or tri-cornered hat.

“That’s all we get to do?  That’s it?”  One can almost hear the response of many members of Congress today if they were to read Article I, Section 8 of the Constitution.  Asked to cite the constitutional justification for the recent health care bill, for example, one member of Congress said he doesn’t “worry about the Constitution on this.”  Another member, the chairman of the House Judiciary Committee, claimed that the legislation was authorized by the “good and welfare clause” (he was probably thinking of the General Welfare Clause of Article I, Section 8, Clause 1)  Still others have cited the Interstate Commerce Clause (I.8.3), while a number have cited the Necessary and Proper Clause (I.8.18).

I hope that we can discuss and debate the constitutional status of the health care law as part of this blog.  Whether you’re a Republican or Democrat, for or against the law, it seems that we should all agree that for a bill to legitimately become law it has to be grounded in the Constitution.  Otherwise Article I doesn’t mean what it says, and the foundation of our liberties is left shaky and unsure.

It’s lately been said that politicians should prepare for elections by abiding by one simple rule, “It’s the economy, stupid.”  The economy is important, to be sure, but I hope that in our national debate, today we can remember most of all that “It’s the Constitution.”  We’d be stupid not to.

Wednesday, April 21st, 2010

Posted in Article I of the United States Constitution, Constitutional Scholar Essays | Edit | 138 Comments »

140 Responses to “April 21, 2010Article I of the U.S. ConstitutionGuest Blogger: David Bobb, Director and Lecturer in Political Science | Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship | Hillsdale College

  1. Richard says:

    This is certainly an enlightening dialogue and many of the comments are well supported. I would like to add that taxes “being applied uniformly throughout the States” is interesting because we certainly do not have a fair tax system as so many pay nothing and get most of the benefits. Our Founding Fathers never intended to have this extreme level of “vote buying” by taxpayers funds. The progressive tax we have today is applied uniformly within the states, however it is not applied uniformly among the people. Whereas a flat tax would do this. A constitutional amendment limiting the tax to less than 15% would take away the congressional power and ability to “buy votes” through entitlements. Another view might be to restrict a citizens vote in any year in which they receive an entitlement exceeding $1000.00 or some similar amount. Niether would be unconstitutional.

  2. Richard says:

    This is certainly an enlightening dialogue and many of the comments are well supported. I would like to add that taxes “being applied uniformly throughout the States” is interesting because we certainly do not have a fair tax system as so many pay nothing and get most of the benefits while a few pay the majority and are constantly asked for more. It is a path to economic destruction. I have visited several socialist and communist nations in my travels and Americans have no idea of the human suffering, death, and poverty of a controlling communist or socialist goverment that always limits the individual freedoms we take for granted. Our Founding Fathers never intended for our “tax system” to have this extreme level of “vote buying” by taxpayers funds or social engineering. Envy is one of the biblical seven sins for a good reason. We have lost our national moral compass as we pit hatred (class envy) against hard work and success. Some citizens with a lacking moral compass want to covet what thier neighbor has. The Founding Fathers wanted to remove the chains of government on the individual and let them strive for thier own happiness and dreams. Progressives were certainly instumental in removing the biblical moral teaching from our schools. The progressive tax we have today is applied uniformly within the states, however it is not applied uniformly among the people. Whereas a flat tax would do this. A constitutional amendment limiting the tax to less than 15% would take away the congressional power and ability to “buy votes” through entitlements. Another view might be to restrict a citizens vote in any year in which they receive an entitlement exceeding $1,000.00 or some similar low amount. Niether would be unconstitutional.
    The constitution also grants power to the federal government to provide for the common defense. If we have to disband the armed forces every two years we would soon be overtaken by our enimies and if Officers we appointed by the states there would be no uniformity within the military. We would have lost WWII if we had to disband after two years, ditto for the Civil War, Revolutionary War, WWI, Korean War. We gain peace through military strength by constantly training, testing, and improving weapons systems so our enimies understand the high price they would pay for trying to dominate or rule our citizens.
    On heathcare, I beleive it violates all aspects of “the Right to Life, Liberty and the Pursuit of Happiness” as unelected goverment workers will decide who and what type of care an idividual may have. (Surgery or pain pills). A citizen can no longer pursue thier individual health choices. Government can directly limit thier life and happiness. I hope this can be repealed as it will cause severe pain to citizens to watch loved ones be denied the proper healthcare because the govenment has to ration care as in all other nations that have moved to socialized government healthcare.
    I look forward to tomorrows comments….

  3. Lillian Harvey says:

    Article 1, Section 7: the process for passing legislation states “..the votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively.”

    When House Minority Leader Boehner called for the vote of each individual to be recorded at least one week before the Healthcare vote was taken in the House, and also that night on the floor of the House again, why did the “Speaker” ignore the request or call it “out of order”? It seems to me that it is out of order for the people being represented not to know exactly who voted Yes to this bill. We know all the Republicans voted no, but not which Democrats voted yes or no. It seems to me that this tactic makes things very slippery and murky for those being represented.

    Raymond mentioned needing an amendment to force government to be open. It appears the mechanism for transparency in the votes already in place for 220 years isn’t honored and We the People are left guessing. Someone above mentioned that the devil is in the details. I think God is in the details and this is another one of them for us to look at carefully.

  4. Tammy Beard says:

    Question: If “all Duties, Imposts and Excises shall be uniform throughout the United States;”
    how can there constitutionally be different income tax brackets? Doesn’t seem very uniform.

    This deals with indirect taxes, not income taxes. The indirect taxes must be the same from state to state. In 1913, the Sixteenth Amendment was passed allowing income taxes.

  5. Richard says:

    I wanted to add one thought to my earlier comment on taxes. Actually the Constitution specifically said there will be no tax on individuals (Income Tax), but the progressives worked around this by adding the XVI amendment which will come later in our readings. This Amendment was originally passed to fund WWII and who was going to vote against funds to fight Germany and Japan’s agressive war of world dominance. It was to be repealed after the War but amazingly was not and has been modified to mirror class envy and morphed into a progressive tax on those who work hard and are successful. It will be interesting to hear the history from those who know on this matter as the current administration has openly confirmed the goal of redistribution of individual wealth by the government to whim they choose. It is similar to the british crown taxing colonist hard work to support the royal elitists power and position.

  6. Gitel says:

    @Richard – I’m not sure where you got your information. The income tax was proposed in 1909 and ratified in 1913. That was before WWI, and years before WWII.

  7. Gitel says:

    Actually, I meant to say the 16th Amendment, not “income tax.” There were income taxes before the 16th Amendment.

  8. Kristine says:

    Well-framed question, Debbie Beardsley, to which I say amen! What your blog entry asks is precisely what I would like to know. And in a related sense, Party aparatus in the Houses seem to be causing we the people who are supposed to be represented to feel as though we are being completely ignored! How can this be. How can Representatives be made to represent when they do not even listen? Being only 1/300 millionth of the population and with powerful moneyed interests, how do we know OUR STAND is represented for sure? We suspect, it is NOT. That begs the questions, WHAT DO WE DO ABOUT THAT?

  9. Will says:

    Anna Marie says:
    April 22, 2010 at 12:56 am
    “… in the end we will become a stronger nation, a nation UNDER GOD!!!”

    Taking a strict constructionist viewpoint, neither God or Jesus is mentioned anywhere in the Constitution’s text and therefore has no place in federal governance.

  10. Thomas Soyars says:

    I have to disagree with some of what R. B. McGinnis said in relation to the economy. The power to tax, though no direct, capitated or income tax, tariffs, regulation of interstate commerce were not designed to regulate the economy but to pay for the functions of government enumerated in the Constitution. How else were they to pay the debt, their own salaries and the salaries of the militia? Was the intent to fund the limited operations of government laid out in the constitution or was the goal to regulate the economy?

    Another item relates to the quote relating to the KATZENBACH v. McCLUNG, 379 U.S. 294 (1964) case. The court ruling said “Confronted as we are with the facts laid before Congress, we must conclude that it had a rational basis for finding that racial discrimination in restaurants had a direct and adverse effect on the free flow of interstate commerce….” Note the term rational basis. It was not decided on a constitutional basis but on what they could rationally support. The court has continued to swing on the issue of what is allowed under the commerce clause. Cases have been decided that operating a steamship on a river within one state is interstate commerce and subject to regulation. Minimum wage, child labor, and agricultural relief laws were all found to be items that the U.S. government had no right to regulate under the commerce clause. Mining, liquor, oil and electrical production were all deemed to be outside the commerce clause while meat production and wheat were found to be within (production of wheat for one’s own consumption could be subject to national quotas because that could impact national wheat prices). After, Gibson v. United States, 166 U.S. 269 (1897) the court rarely ruled on the commerce clause. During the New Deal the court changed the focus of how the court viewed commerce and what was to be regulated. A central issue was whether the courts or the legislature should decide what commerce is and the courts began deferring to congress saying that determining whether legislation impacted commerce was a legislative function. At question was whether it was more appropriate to address the issue through the courts or the ballot box and they basically fell on the side of the ballot box, thereby abdicating their responsibility to be a check and balance over congress. Finally, the Supreme Court in United States v. Darby Lumber Co., 312 U.S. 100 (1941) said that the 10th Amendment is but a truism and was not considered to be an independent limitation on Congressional power, thereby essentially ruling that congress is not limited by the Constitution.

    I agree with the decisions of the court in the cases of Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964) and Daniel v. Paul. 395 U.S. 298 (1969) but not based on the commerce clause. For that, I go back to the preamble and rely on establish Justice. Slavery, the treatment of Native Americans, and Asians Americans during World War II and

  11. Thomas Soyars says:

    Debbie, there is no prohibition on the President proposing legislation to Congress or lobbying for specific items. the Constitution prohibits the President from passing legislation or acting as a judge over it other than by veto. The problem arises when one party holds the presidency and both houses of congress by a super-majority. In that case the president can propose legislation and have limited resistance.

  12. Ann says:

    How are the classes for Senators determined? Is it by State? My State has 1 class I Senator and 1 Class 2 Senator. Does that ever change? Am I correct in assuming the class only has to do with making sure only 1/3 is up for re-election at a time? They all serve 6 years regardless of class right?

  13. I must confess that I’m going to have to reread after I finish this 90/180. I’ve read the Amendments, but this is the first time I’ve read the Articles of the Constitution. Apparently I’m not the only one having a little trouble with the double negatives. I’ve been telling everyone I know about this, hopefully they will be able to go back on this Web site to the days they haven’t read to catch up. I love the dialogue and the experts input on the Constitution. I have just recently purchased “Original Intent” by David Barton I haven’t read it yet I’m trying to keep up with all the reading recommendations. I do know that “America’s God and Country” by William Federer is a must have, I love this book. It is an Encyclopedia of Quotations from our Founding Fathers and others. There is no question what the intent of the Constitution was and that it we were designed to be a Christian Nation.

  14. Thomas Soyars says:

    One last comment on commerce, in Gonzales v. Raich (previously Ashcroft v. Raich), 545 U.S. 1 (2005), the U.S. Supreme Court held that marijuana gone at home for personal use was subject to the Commerce Clause. Justice Thomas dissented saying “Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything – and the federal Government is no longer one of limited and enumerated powers.”

  15. Robert Shanbaum says:

    The question was raised as to whether the health care reform bill, as a bill requiring appropriations (whether that makes it a “bill for raising revenue” notwithstanding), did not have to originate in the House.

    The question may be mooted by the fact that it did originate in the House, having been introduced as H.R.3590 on 9/17/2009 by Rep. Rangel – even though it eventually became known as “the Senate Bill.”

    But there is an interesting Constitutional question here: the original contents of H.R.3590 were completely replaced by amendment in the Senate. So, did the bill “originate in the House?”

  16. Debbie Beardsley says:

    It just seems to me that by the President strong arming members of Congress or bribing them to vote the way he wants he is in effect legislating. Isn’t Congress supposed to represent the people and not the President?? Once it is submitted to him he can then decide to sign it or veto it but until it gets to him he should keep his hands off.

  17. Spider says:

    I have seen a few comments on the 17th Amendment, and thought I might expand on it here, as well as give a couple of reasons why I believe it should be repealed. We will get into the Amendments when we read them on Monday, April 26, but I wanted to include this here, as it pertains directly to Article 1, Section 3, Clause 1.

    James Madison explained States representation in the Federal Government as such:

    “Whenever power may be necessary for the national government, a certain portion must be necessarily left with the states, it is impossible for one power to pervade the extreme parts of the United States so as to carry equal justice to them. The state legislatures also ought to have some means of defending themselves against the encroachments of the national government. In every other department we have studiously endeavored to provide for its self-defense. Shall we leave the states alone un-provided with the means for this purpose? And what better means can be provided than by giving them some share in, or rather make them a constituent part of, the national government?”

    At the time the Constitution was written, U.S. Representatives were to represent the people and were to be elected by the general population of a state by popular vote.

    U.S. Senators were to represent the States and were to be elected by the State Legislatures. From Wiki: “It was believed that while an unqualified candidate might win a popular-vote majority through demagoguery or superficial qualities, the legislature, which could deliberate on its choice, and whose members had been selected by their constituents and had experience in politics, would be safe from such folly.”

    The 17th Amendment took away the States representation by requiring that U.S. Senators be elected by the general population of a state, effectively reducing them from an equal partner with the Federal Government to, at best, another Representative, and at worst just another lobbyist, vulnerable to special interests influence, which has resulted with the loss of State Sovereignty and States’ Rights.

    There were two main reasons the 17th Amendment was adopted in 1913; One was the deadlock of State Legislatures when electing U.S. Senators. The other was the corruption of the State Legislators.

    One possible protection from dead-locked State Legislatures is the provision that if a State Legislature does not fill a vacancy or elect a U.S. Senator within say, 30 days for example, the Governor shall appoint the U.S. Senator.

    Our protection from corrupt State Legislatures are open caucuses, campaign disclosure statements, term limits, and the fact that we now have highly visible public information, freely accessible with the World Wide Web.

    Thanks for letting me expand on this subject. Tell me what you think, and keep up the great discussion!

  18. Robert Shanbaum says:

    @Gitel, a minor correction: there were indeed income taxes prior to the XVIth Amendment, from 1862-72, and again in 1894-95, when taxes based on income derived from property (interest, dividends, rents) were ruled unconstitutional by the Supreme Court in Pollock v. Farmer’s Loan & Trust (by a 5-4 vote!).

  19. Sharon Pharr says:

    It seems to me so far, that the Congress was to hold a few specific roles and jurisdictions, and the people, then the states everything else. Things are turning upside down. I think we should repeal the 17th amendment, return the selection of Senators to the states, and expand the 22nd Amendment, to include restricting terms of the members of Congress. The wisdom of that provision is shown in the career politicians that now dominate Congress, with power empires, and inflated influence. This would also attract talented people who have successful careers in other areas to serve. I also believe that in returning power to the states and local jurisdictions, it would be easier to weed out the potentially corrupt.

    I have a question, if the Healthcare Bill coerces a citizen to buy insurance under penalty of fines, and enforced by the IRS, doesn’t that make the insurance payment a form of taxation, even though the money goes to a 3rd party, the insurance company?

  20. Philip Thorrez says:

    I’m new at blogging and if my protocols and forms are incorrect, please excuse me:
    I realize I’m a bit late to this reading but have to ask:
    @Thomas Soyars said: “Finally, the Supreme Court in United States v. Darby Lumber Co., 312 U.S. 100 (1941) said that the 10th Amendment is but a truism and was not considered to be an independent limitation on Congressional power, thereby essentially ruling that congress is not limited by the Constitution.”

    This is the scariest comment I’ve ever heard and I wonder: has there been much further testing of this ruling and how entrenched in precedent is it? I mean “a truism”?! How much clearer does it need to be that this amendment was MEANT to be a restriction of federal power.

  21. Spider says:

    @Philip Thorrez: Welcome to the discussion – better late than never. Your “protocols and forms” are just fine. Leaving comments in a public forum such as this is just like any other public interaction; be polite and civil, and you’re way ahead of the game.

    As to your question, might I suggest taking a look at West’s Encyclopedia of American Law for a comprehensive overview of the Supreme Court’s various interpretations of the 10th Amendment through history.

    It’s really pretty stunning to realize just how often the 10th Amendment, something Thomas Jefferson once described as “the foundation of the Constitution,” has been virtually ignored or trivialized.

    I truly hope the upcoming challenges to the President’s health care reform law will once again put some more authority back into the 10th Amendment. I’ll probably be disappointed, but one can ‘hope,’ right?

  22. Anthony Viola says:

    Will says “Taking a strict constructionist viewpoint, neither God or Jesus is mentioned anywhere in the Constitution’s text and therefore has no place in federal governance.”

    You missed ths: “In the Year of our Lord one thousand seven hundred and eighty seven..”

  23. AllisonW says:

    Interesting fact I thought to share:

    According to Article I Section III, the Vice President, President of the Senate, can vote on any piece of legislation whenever the members of the Senate are “equally divided.” So whenever the vote is split 50-50, the Vice President can essentially decide the fate of the bill.

  24. […] April 21, 2010Article I of the U.S. ConstitutionGuest Blogger: David Bobb, Director and Le… […]

  25. Taylor Michael says:

    A very intriguing paragraph I discovered in the first article is the last paragraph in Section 9.
    It says ;

    “No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State”

    What I find so interesting about the subject is the fact that America already declared itself independent from Monarchal England, however the founding fathers make sure that we as a country do not associate ourselves at all with any Monarchy, and if someone does, than the United States shall not recognize it at all, and they will not accept any “present … of any kind whatever, from any King, Prince, or foreign State”, thus putting the icing on the cake, so to speak, of total detachment from any kind of English Monarchal society.

  26. Kristine says:

    I would like to understand the electoral college better from Article 1, section 2.

    I realize we are now beyond that, but it is not clear to me if we directly elect our representatives as I thought we did, or if electors are doing the electing .

    If anybody has insights and links, please reply.



  27. Kristine says:

    I figured it out. Article 1, Section. 2 first paragraph meaning of Electors refers to a state’s voters and not electors in the electoral college for the presidential elections. That is what I thought; however, for a while there I thought I might have been wrong all my voting life. I’m relieved to have this cleared up and it was good to re-read Articles 1 and 2.

  28. Bob Greenslade says:

    Kristine-hope this helps.

    What are the constitutional provisions for the electoral system?

    The electoral process is set forth in Article II, Section I, Clauses 2-4 of the Constitution for the United States. Clause 3 has been superseded by the 12th Amendment as ratified by the several States in 1804. Provisions of the 12th Amendment have been superseded by the 20th Amendment as ratified by the States in 1933.

    Do the American people vote directly for a President and Vice President when they cast their ballot?

    No. When the American people cast their vote in a presidential election they are actually voting for individual within their State called an “elector.”

    Who are the electors?

    The electors are representatives just like the members of Congress. Unlike members of Congress who are elected for a specific term of years and cast numerous votes while in office, electors perform a single function once every four years. They are entrusted with the responsibility of voting for the President and Vice President of the United States.

    How are the electors chosen?

    The legislature of each State is authorized by Article II, Section I, Clause 2 of the Constitution to prescribe the mode for appointing its electors. State election laws generally entrust that duty to the various political parties because each party has a slate of electors pledged to their candidates. Thus, if a State has five political parties qualified for the ballot, it will have five separate blocks of electors―one block for each political party.

    How are the electors in each State chosen to vote?

    The electors chosen to vote for each State are those of the political party that wins a plurality of the popular vote within the State. For example. If an Independent Party candidate wins the popular vote in California by one vote, then that party’s slate of electors are elected to vote for the State of California. In Maine and Nebraska, two electors are chosen at-large by the statewide popular vote and the rest are selected by the popular vote in each congressional district. This allows for a split slate of electors to be chosen in those two States.

    In the event of a tie in a State’s popular vote, the laws of that State would determine the procedure for breaking the tie. If there was still a tie after a re-count, there would probably be a run-off election to determine the winner.

  29. Lillian Harvey says:

    Thomas, Philip & Spider, well said! I appreciate the real push back to what you’ve all implied is the trivializaion of the 10th Amendment. Almost half of the States are involved at this time, 42%. In an earlier post, I was reacting to these readings by thinking a Constitutional Convention was needed to solve some of the problems. Now, I feel that some amendments may need to be repealed and others have their language clarified to reflect life today, like the recess appointments clause. But even allowing a small opportunity for any group to do away with this incredible document is inconceivable to me. No convention for sure. But calls for Constititutional language that fortifies Amendments like the 10th, oh yes! I love that our clarifications and corrections are recorded into the document as amendments. As humans, we make mistakes, learn and grow. This amazing document records our growth as a free society, correction & forgiveness of mistakes included. The Federal gov’t has taken powers from the States never intended for it. No matter how long it takes, we can’t give up the fight to re-fortify the 10th Amendment. Enough is enough.

    I love the phrase, think globally and act locally. It is a modern day sound bite for James Madison’s eloquent explanation of where power really resides in a free society. A state or community problem may become part of the national narrative, but the way to resolve it works best as locally as possible. Let each community see the problem through its own special lens, apply meaningful solutions and the people are served well. If a national element is needed, add an amendment to the Constitution. It takes time to do that and, if the locality can’t resolve the problem themselves, the final amendment will help the process along.

    Taylor, I feel your post underscores the “kick in the gut” reaction most people have when they see any of our Presidents bowing to kings or foreign rulers. They represent the United States of America – We the People. We the People do not bow to kings. We do not serve their will. Americans shake hands in greeting. If these kings do not want to shake hands, fine. But no bowing in our name, thank you very much.

    Allison, great question! If a bill must be passed by 2/3 of the Senate, how is a tie ever significant? The bill passes or it doesn’t. Too simple?

  30. Bob Greenslade says:

    Philip Thorrez-the reason the 10th Amendment is a truism can be found in the words of James Wilson.

    In October of 1787, in a speech at Independence Hall, Wilson, a Federalist from Pennsylvania, explained the proposed constitution and answered some of the criticisms being leveled against it. In his speech, Wilson succinctly stated why a bill of rights had been omitted from the proposed constitution. He also explained the system of limited government that would be established if the document was ratified:

    “It will be proper…to mark the leading discrimination between the State constitutions and the Constitution of the United States. When the people established the powers of legislation under their separate governments, they invested their representatives with every right and authority which they did not in explicit terms reserve…if the frame of government is silent, the jurisdiction is efficient and complete. But in delegating federal powers, another criterion was necessarily introduced, and the congressional power is to be collected, not from tacit implication, but from the positive grant expressed in the instrument of the union. Hence, it is evident, that in the former case everything that is not reserved is given; but in the latter the reverse of the proposition prevails, and everything that is not given is reserved.

    This distinction being recognized, will furnish an answer to those who think the omission of a bill of rights a defect in the proposed constitution; for it would have been superfluous and absurd to have stipulated with a federal body of our own creation, that we should enjoy those privileges of which we are not divested, either by the intention or the act that has brought the body into existence. For instance, the liberty of the press…what control can proceed from the Federal government to shackle or destroy that sacred palladium of national freedom? * * [T]he proposed system possesses no influence whatever upon the press, and it would have been merely nugatory to have introduced a formal declaration upon the subject—nay, that very declaration might have been construed to imply that some degree of power was given, since we undertook to define its extent.”

    Wilson, who had unsuccessfully advocated a strong national form of government in the Federal Convention, clearly understood the system of limited government that would be established by the proposed constitution. Since the federal government would be granted limited enumerated powers, every power not granted would be denied irrespective of whether the document contained a bill of rights.

    Thus, even if the 10th Amendment, which was part of the Bill of Rights, had not been adopted, the principle, as stated by Wilson, that “everything…not given is reserved” would still be in operation-just not enumerated.

    The Amendment is a re-statement and affirmation of the principles of limited government and enumerated powers. They exist independent of the 10th Amendment.

  31. Robert Shanbaum says:

    @Lillian – Here’s an historical note that you may find interesting, since you mentioned shaking hands. After having been inaugurated as president, Washington refused to shake hands, thinking it beneath the dignity of the office.

    Also, for a bill to finally pass the Senate does not require a 2/3 vote – the procedural step that requires a 2/3 vote is to end debate on a motion (called “cloture”, a feature of the rules of the Senate, which you now know are left up to the Senate by the Constitution), which is a necessary step that precedes an actual vote on whether the motion shall be adopted or rejected.

    Yesterday, for example, in a vote to end debate on a motion to allow a financial reform bill to proceed to the floor (which is itself a required procedural step) the yeas came up short of the 60 votes required by the rules… so technically, I guess you could say that the debate on that motion will go on until the end of the current session, at which point, the motion vanishes, having never been directly voted upon.

    As mentioned, the only relation of Congressional rules to the Constitution is that it explicitly leaves them up to the each House. But I rather doubt that any of the participants at the Philadelphia Convention would have aniticpated a rule effectively requiring a supermajority in the Senate.

  32. Robert Shanbaum says:

    @Lillian – I neglected to mention Washington’s preferred mode of greeting, given that he did not shake hands.

    He bowed.

  33. Debbie Beardsley says:

    Re: Anthoney Viola – I do not think there was any reference to God intended by placing Year of our Lord before a date. It was a common term used at the time and is included in the Julian and Gregorain Calendars to reference the epoch after Jesus was born. Anno Domini is the Latin way to say the same thing.

    Stop looking for religious reference where none was intended. Thats how we get in trouble and move very far away from the Constitution.

    I fully believe the founders intent was not to support a specific belief or church but to allow everyone the freedom to choose what they belive in.

  34. yguy says:

    ‘…the 10th Amendment is a truism…’

    ‘Thus, even if the 10th Amendment, which was part of the Bill of Rights, had not been adopted, the principle, as stated by Wilson, that “everything…not given is reserved” would still be in operation-just not enumerated.’

    Similarly it could be argued that Congress would have no authority to legislate against freedom of speech and so on had the first amendment not been ratified, but I don’t think I’d call it a truism; and if Justice Marshall’s observation that “[i]t cannot be presumed that any clause in the Constitution is intended to be without effect” is accurate, I think we may rest assured that the framers of the tenth amendment considered it as necessary as the other “declaratory and restrictive clauses” in the Bill of Rights.

  35. JoeSwiss says:

    Art 1, S 10: No state shall, without the consent of Congress, … or engage in War, unless actually invaded …

    This was a point I had missed.

    First, it seems a state may engage in war with the consent of Congress.

    Second, it seems a state may engage in war without the consent of Congress once it has actually been invaded.

    Seem to be relevant points in the current contest of opinions over Arizona’s late legislative actions. Arizona is currently under invasion by illegal aliens.

  36. al williams says:

    Can anyone explain article 1 sec 9 para 4
    “No Capitation, or other direct, Tax shall be laid,unless in Proportion to the Census or Enumeration herein before directed to be taken.”

  37. Susan Craig says:

    Yes they did not want to tax incomes (head tax).

  38. al williams says:

    So,was this section repealed by the 16th amendment?

  39. Ralph T. Howarth, Jr. says:

    Will says:
    April 22, 2010 at 1:59 pm

    Taking a strict constructionist viewpoint, neither God or Jesus is mentioned anywhere in the Constitution’s text and therefore has no place in federal governance.
    True; but a strict constructionist must be thorough and construct from all the organic documents declared by the First Congress in the midst of passing the Bill of Rights.

    They are:

    1) The Unanimous Declaration (of Independence)
    2) US Articles of Confederation
    3) The Northwest Ordinance
    4) US Constitution

    Such can be found reproduced here and is at the very beginning of the US Code 1.

    The very first congress instituted the Organic Laws declaration as a reference of the founding documents of the US as a collection foundational proofs of where rights, laws, and governance comes from. The US Constitution alone does not stand alone and provide enough information to describe what the legal basis of the document stands on. Legal basis did not just appear out of thin air but is predicated on legal terms and underpinnings found in the Constitution that correlate to the English Common Law and the history of constitution writing.

    Inspection of the Organic Laws finds the following words concerning religion and morality:

    Year of our Lord (Constitution, Articles, Ordinance)
    Divine Providence (Declaration)
    Creator (Declaration)
    Nature’s God (Declaration)
    Appealing to the Supreme Judge of the world (Declaration)
    the Great Governor of the world (Articles)
    Religion (Bill of Rights, Articles, Ordinance)
    Establishment of Religion (Bill of Rights) [aka: state run church]
    Morality (Ordinance)
    Mode of worship (Ordinance)
    Religious sentiments (Ordinance)
    Blessings of Liberty (Constitution) [blessings: lit. “anoint with blood”]
    Good Behavior (Constitution, Ordinance) [syn. “morality”]
    Common law (Bill of Rights, Ordinance) [that law contains many Biblical references]

    Remember also, that some states would not ratify the Constitution without assurances of a bill or rights, which includes free exercise of religion. If you strictly construct just from the text of the Constitution alone without the amendments, you can rest assure that the Constitution would not have been ratified and be moot. The Bill of Rights had to be pushed for ratification quickly to head of a call for another constitutional convention that would have rewritten the constitution. Had that movement been successful, then it may have happened that the original would have been another anal to the Organic Laws and we have a different constitution today.

    So for a strict constructionist to stop right at the Constitution and observe Jesus and God is not mentioned, and to possibly excuse Lord as being a cultural custom, and not consult supporting text, is akin to taking out an insurance policy and saying that any riders, insurance laws, and governing policies have no place in insurance governance and insurance claims.

  40. Ralph T. Howarth, Jr. says:

    @yguy — James Madison, and other Federalists, contended that the Constitution did not need a bill of rights because it was strictly a positive law document: what the federal government can do. He contended that introducing a negative law document such as a bill or rights: what the federal government cannot do, would wiggle leave room for creative inventions of new powers of government by implication and completely bypass the amendment process.

    @al williams says: so,was this section repealed by the 16th amendment?
    –Capitation tax is a head tax…not exactly an income tax. Such was more akin to a poll tax or census tax. A direct tax essentially was any tax on property like real estate or durable goods; hence the federal government does not do property taxes; but such was not entirely prohibited. If the federal made a capitation or direct tax scheme that was proportional to actual populations in a state, then the federal could lay such a tax and it would be regardless of a person’s level of income. When the income tax amendment came along, it removed the census proportion requirement on that form of tax as it would be construed as a direct tax on property being income considered as a form of your property or estate. For perspective: an indirect tax would be akin to a sales tax as a tax on commerce.