Constitutional Law – Choose Freedom, Not Slavery
By
Robert G. Beard Jr., C.P.A., C.G.M.A., J.D., LL.M.
Received Master of Laws (LL.M.) and a Certificate of Expertise in Anti-Money Laundering and Compliance, Summa Cum Laude; Thesis, The U.S. Individual Income Tax is Incompatible with a Free Society, available from www.jeffersoniangroup.com or directly from Amazon.com and Barnes & Noble.
Former Candidate for the Doctor of Science of Law (J.S.D.) from Thomas Jefferson School of Law (from Spring Semester 2010 through Spring Semester 2012); obtained 24 semester hours in J.S.D. Dissertation. Dissertation Proposal, The Impact of Constitutional Interpretation on Individual Freedom. In 2017, converted the first chapter (Introduction, and, Summary and Scope of Chapters II through VII) into a book entitled, The United States Government is Illegitimate, which is available from www.jeffersoniangroup.com or directly from Amazon.com and Barnes & Noble.
Worked for three of the four largest international public accounting firms as a Tax Manager; over 40 years of experience in accounting, taxation, estate & asset protection, financial and business planning; and, a Vietnam Era Veteran with an Honorable Discharge from the United States Air Force.
To date, have written and published seven books.
Required Reading
Primary Text and page references are to Stone, Seidman, Sunstein, Tushnet, Karlan, CONSTITUTIONAL LAW, Eighth Edition (2018); supplemental reading, Robert G. Beard Jr., Take Politics Out of the Supreme Court and Restore Freedom; The Cato Pocket Constitution, required for Module I and future reference; and, The Law, Frederic Bastiat (1801-1850), to be read before or while completing Module 1.
Module 1 – Introduction and Founding Documents
I. Write a Biography, e.g., where did you grow up, where have you travelled and attended school, what activities did you participate, what are your hobbies, why do you want to be a Lawyer, and, what do you plan to do once you complete Law School.
II. Read, the Introduction (by Dr. Roger Pilon) and the Declaration of Independence in The Cato Pocket Constitution. Without a proper understanding of the Declaration, you will not be able to properly interpret the U.S. Constitution. When you begin reading the primary text, which includes the U.S. Constitution, ask yourself, why did the Authors exclude the Declaration of Independence in the primary text?
You may need to do additional research to answer the following questions:
A. What was the tax and regulatory environment like between 1765 and 1776; how does it compare today? Dr. Milton Friedman used the Declaration substituting the U.S. Government for King George III, “[The U.S. Government] has erected a multitude of New Offices, and, sent hither swarms of Officers to harass our people, and eat out their substance.”
B. What is the difference between positive and negative rights? Pay close attention to the word, “pursuit” of Happiness versus guarantees.
C. Are “unalienable” rights positive or negative?
III. Read, the Constitution and Bill of Rights (first 10 Amendments) in The Cato Pocket Constitution.
A. Are there any provisions in the Constitution that would lead you to believe that the entire Constitution, including the Bill of Rights, does not apply to the States?
B. Are the “unalienable” rights listed in the first ten Amendments positive or negative rights?
C. List several rights, not specifically stated in the Bill of Rights, that you believe are covered by the Ninth Amendment and why.
IV. Read, the Bill of Rights (first ten Amendments) again and the Eleventh through the Twenty-Seventh Amendment in The Cato Pocket Constitution.
A. Were there any subsequent Amendments (11 through 27) that superseded or are superior to the first ten Amendments?
B. What Amendments to the Constitution do you believe allowed Congress and the States the ability to tax and regulate all economic activity, including the right to earn a living, and, interfere with an individual’s right to self-defense?
As we proceed through this Course, it is important that you keep the following information in mind since most, if not all, is not included in your primary text:
1. Thomas Jefferson stated, in his first inaugural address on March 4, 1801, “A wise and frugal government, which shall restrain men from injuring one another, which shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from labor the bread it has earned. This is the sum of good government, and this is necessary to close the circles of our felicities.”
According to Jefferson, “to close the circle of our felicities,” or rather, to pursue happiness and private property, NO American would be subject to an income tax; and, would not be regulated, licensed, and taxed in their economic endeavors to support themselves, their families, and to pursue happiness or acquire property.
2. In 1789 Thomas Jefferson wrote, “There are rights which it is useless to surrender to the government, and which governments have yet always been found to invade.” These include, “the right of free commerce [and] the right to personal freedom.”
3. The Declaration states we have unalienable Rights to Life, Liberty and the Pursuit of Happiness. Jefferson explained the meaning of personal freedom or “rightful liberty” as “. . . unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add ‘within the limits of the law,’ because law is often the tyrant’s will, and always so when it violates the right of an individual.”
4. Contrary to what you may hear, the United States is NOT a Democracy; we are a CONSTITUTIONAL REPUBLIC, where Government’s primary responsibility is to protect individual freedom and private property rights from majorities, energetic minorities, politicians and government bureaucrats. Attributed to Ben Franklin, an example of a Democracy is two wolves and one sheep deciding what to have for dinner; freedom, on the other hand, is a well-armed sheep, contesting the vote.
5. The Constitution guarantees to each State a “Republican Form of Government,” “. . . ‘whose citizens shall be entitled to all the privileges and immunities of other citizens’; where ‘no law shall be made prohibiting the free exercise of religion’; where ‘the right of the people to keep and bear arms shall not be infringed’; where ‘the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated’; and where ‘no person shall be deprived of life, liberty, or property without due process of law’.” Roswell Hart
6. “During earlier periods, Congress and the Supreme Court had far greater respect for the Constitution. They understood that if the federal government was to have a power not delegated, or expressly forbidden, by the Constitution, they had to use the provisions of Article V to gain the power by amendment.” For example, in 1919 Congress understood that to prohibit the sale of alcohol, it required the passage of the Eighteenth Amendment. “Today, it’s an entirely different story. Congress, the White House and the Supreme Court have abiding contempt for the Constitution and . . . Americans are left with a constitutional carcass.” Dr. Walter E. Williams
“No matter what [Americans may] think about the alcohol prohibitionists, [they] can have a bit of admiration for them because [the alcohol prohibitionists] used the constitutional route to get their agenda across.” Whereas today, “constitutional stealth (e.g., taxation, majority votes for legislation and “totalitarian tactics” of agencies like the EPA, FDA, SEC and IRS) seem to be employed to circumvent the Constitution; thereby avoiding the amendment process required by Article V.” Dr. Walter E. Williams
According to Dr. Williams, “. . . the education establishment has played a greater role through the dumbing down of Americans. The resulting ignorance has allowed . . . charlatans and quacks in the legal profession [to] tell [Americans] what the Constitution means.” When the Constitution was written, it was easily understood by a Nation of farmers, not intellectual elites.
The purpose of this Course is to educate, not indoctrinate; to overcome the ignorance; to think critically and challenge the system or status quo, especially when it comes to restrictions on an individual’s right to earn a living, excessive regulation and taxation of private property, government interference with contracts, and, all other infringements of our unalienable rights.
At the conclusion of this Course, it is hoped that you will understand the difference between true freedom or “rightful liberty” and the current enslavement of Americans by the power-elites that control government.
Module 2 – Separation of Powers, Checks & Balances and The Basic Framework
I. THE ORIGINS OF THE U.S. CONSTITUTION: Read pages 1 to 25, Stop at B, THE BASIC FRAMEWORK, Marbury v. Madison
A. The Federalist No. 10 (Madison), on page 9 the concluding sentence reads, “The Federalist Papers count among the classic works in the theory of democracy and constitutionalism.” Notice the emphasis on “democracy.” Many of the Framers despised and feared democracy; they were more concerned with a limited government, republicanism, and, protection of unalienable rights. Keep this in mind as you read the text.
The Authors give the appearance of providing arguments on all sides of the political spectrum, which is not true. If you pay close attention, you will see a bias slant that tends to agree with Harvard Law Professor Laurence Tribe who believes the Constitution to be “. . . imperfect, and . . . highly objectionable.” Tribe also referred to the Founders/Framers as a “highly limited constituency of white property owners . . . with whom most [Americans] have only the most limited link (if any at all), [who decided] to limit our future freedom to exercise power.”
Query: According to Tribe, the Founders/Framers decided to limit our future freedom to exercise power. Who is “our”, we the people, or the power-elites, like Tribe and his political views, that control government? What were the Framers trying to limit, individual freedom or government power? Was Tribe using “esoteric hermeneutics” when he used the word “freedom”? What would be the more appropriate word to use instead of “freedom”? Please rewrite Tribe’s statement in order to remove any confusion regarding what he really stated, not the purposeful distortion.
B. The Federalist No. 10 (Madison), beginning on page 9, outlined what the Framers were facing when they drafted the Constitution. They were concerned about factions (e.g., political parties, special-interest groups); they were concerned about the fallibility of man or human nature; and, they were concerned about democracies which “have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been short in their lives as they have been violent in their deaths.” The Framers solution, a Republic with limited government, separation of powers and checks & balances.
What transpired between the ratification of the Constitution and Bill of Rights (first ten Amendments) in 1789 and today, where we have gone from a government with limited powers to a government with unlimited powers? My belief is that the Constitution has been ignored, misinterpreted, and reinterpreted, continually granting more power to government at the expense of individual freedom. The following is a list of how and why this may have happened:
1. Human nature has not changed since recorded history. Dr. Will Durant, who wrote 11 volumes on “The History of Civilization” concluded, “. . . known history shows little alteration in the conduct of mankind. The Greeks of Plato’s time behaved very much like the French of modern centuries; and, the Romans behaved like the English. Means and instrumentalities changed, motives and ends remain the same. Since we have admitted no substantial change in man’s nature during historic times, all technological advances will have to be written off as merely means of achieving old ends—the acquisition of goods, the pursuit of one sex by another (or by the same), the overcoming of competition, the fighting of wars. One of the discouraging discoveries of our disillusioning century is that science is neutral; it will kill for us as readily as it will heal, and, will destroy for us more readily than it can build.”
The Founders recognized this “fallibility of man” (Federalist No. 10), which continues to exist today, as pointed out by Dr. Durant. We failed to heed Jefferson’s warning that a revolution was needed about every twenty years to keep the power-elites that control government in check. “The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.”
2. “At the Constitutional Convention in 1787,” Ben Franklin “gave a discourse on the need to fix the course of American public service so that it would always attract men of public virtue and repel scoundrels scrambling for a soft job.” For example, George Washington served two terms as President and did not take the $25,000 annual salary; and, there was no retirement benefits for public service. Also, when Washington was Commander of the Continental Army during the Revolutionary War, he did not receive any compensation. We failed to heed Franklin’s warning; today, public service has become extremely profitable resulting in corruption and growth of government.
3. The ratification of the Eleventh Amendment in 1798, denying a U.S. citizen the right to sue another State, increased the power and control of government at the expense of fairness, justice, and individual freedom.
4. The ratification of the Sixteenth Amendment on February 3, 1913 granting Congress the power “to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.”
5. The ratification of the Seventeenth Amendment on April 8, 1913, taking away the appointment of U.S. Senators by State Legislatures and making them subject to election by the people of each respective State.
6. The passage of the Federal Reserve Act on December 23, 1913 creating the Central Bank of the United States.
7. The Progressive Era (1900-to-1932) and the controversial domestic programs of the New Deal.
8. Government controlled “K through Ph.D.” compulsory schooling and indoctrination.
Assignment (Choose only one): (1) Research the salaries, benefits, and annual funds under control by members of Congress (House and Senate, and Leaders) and the President, and compare to Washington, Adams and Jefferson’s time (when did it change) ; or (2) describe the Progressive Era and why you believe it was good or bad for the United States of America; or (3) explain the importance of what happened in 1913, who benefited, and why; or (4) research compulsory schooling (hint: John Taylor Gatto).
C. Madisonian Republicanism and Contemporary Constitutionalism (page 20-21)
1. The complexity of history versus the simplifications of theory (page 20): When you read this summary, keep in mind that the three views offered may represent “esoteric hermeneutics” where the Authors have ignored the Declaration of Independence, and are more concerned with democracy, granting more power to government, and, are less concerned with “rightful liberty.”
Many, if not all, of the Authors, do not believe in “unalienable” rights, rights that precede government and cannot be legislated away. For example, Cass R. Sunstein has stated, “What people ‘have’ is partly a product of what the law protects as ‘theirs.’ And everything people ‘have’ is, simply as a matter of fact, a creation of legally conferred rights.” If the Constitution is interpreted based upon Sunstein’s belief, which is happening today, any rights granted by government can be taken away at any time, as they were in ancient times when Kings ruled.
Jefferson believed in unalienable rights and wrote, “the palpable truth, that the mass of mankind has not been born with saddles on their backs, nor a favored few booted and spurred, ready to ride them legitimately, by the grace of god.”
Query: Do you believe as Jefferson did; or, do you believe that if the power-elites that control government can convince the majority, they can make the rules and grant or take away the rights of the minority? Explain why you believe one way or the other/
2. Republican theory and judicial review (pages 20-21): The Authors pose the question, “What does republicanism . . . have to offer to people currently assessing American constitutional law?” Then they ask, “In light of history, how should we think about current politics, and about associated constitutional issues, for example, those involving campaign finance restrictions and access to the ballot?” And finally, they state, “If democratic self-determination is the end, a powerful judiciary hardly seems the means.”
First, even though we are operating as a democracy, we are a Republic… “We pledge allegiance to the flag, to the Republic for which it stands. . .” In an essay by the Cato Institute in 1995, titled, Restoring Constitutional Government, Dr. Roger Pilon wrote, “Most of what the federal government does today—to put the point as plainly and candidly as possible—is illegitimate because done without explicit constitutional authority.” What about history? As Dr. Pilon suggests, “It is time to go forward by looking back [in our history] to the principles that brought us together in the first place: individual liberty, individual responsibility, limited government—all secured through fundamental law.”
It is also interesting that the Authors select or point out constitutional issues like campaign finance restrictions and access to the ballot, then suggest that we should not have “a powerful judiciary” “if democratic self-determination is the end” game.
First, we’ll take on “democratic self-determination.” Democracy has been used interchangeably with freedom; nothing could be further from the truth; they are diametrically opposed terms. Aristotle described democracy as a perversion of constitutional government and tyranny by the many, ultimately leading to revolution. “The American founding fathers feared and even loathed democracy, described by James Madison as ‘the violence of faction’ in Federalist #10.”
The Founders/Framers provided Americans with a “Republican Form of Government,” a limited government whose primary purpose was to protect the natural rights and private property of each individual against the whims and aspirations of the majority; and, against enthusiastic “factions” or minorities with an agenda.
And, what about the constitutional issues we face today, like campaign finance reform and access to the ballot? This question suggests that the Authors believe that democracy and majority rule are the most important criteria, which may solve our problems, if only all Americans would abandon the ideas of unalienable rights and Republicanism; and, accept the principle of majority rule. Democracy represents enslavement by the majority, which was understood by the Founders/Framers.
Regarding access to the ballot or the right to vote, maybe we should consider some changes. For example, everyone regardless of race, sex, or ethnicity, who are U.S. citizens, should have the right to vote, subject to the same restrictions: (1) Before being able to vote, every U.S. citizen should be required to read the Declaration of Independence and the Constitution, and, take and pass a test; (2) an Oath must be taken to support the Constitution; and (3) in order to vote, a U.S. citizen must own property or have a job and pay taxes. Approximately 43% of the population pays no federal individual income taxes. Why should anyone be allowed to vote to tax their fellow citizens and redistribute their property if they have no skin in the game? One of the main requirements to vote in many of the 13 American Colonies was the ownership of a minimum amount of property. Why? Because property owners were the ones that would pay the taxes.
Maybe, if we only allowed property owners, including wage earners, the right to vote, along with the requirement that they read and understand our Founding Documents, campaign finance restrictions may not have been considered an issue in the first place.
Unlike the Authors examples of major issues facing Americans today such as access to the ballot, I would suggest that the most important constitutional issues we are currently facing are the Supreme Courts reinterpretation of the General Welfare Clause, the Commerce Clause, the Contracts Clause, and the First, Second, Fourth, Fifth, and Fourteenth Amendments. See Robert A. Levy and William Mellor, The Dirty Dozen, How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom (2008)
Query: What do you think about access to the ballot and campaign finance restrictions and why? Who do you believe should be voting and why? Do you really want someone to vote who wants to take away your individual freedom and your private property, including your ability to earn a living?
3. Problems with deliberation and direct democracy (page 21): The Authors wrote, “Contrary to Madison’s view, many people have argued in favor of a larger role for popular referenda.” I would suggest that this is due to compulsory schooling and indoctrination, resulting in ignorance of the masses.
The Constitution is anti-democratic for a purpose. It was drafted to protect individual freedom and private property from the whims of the majority, enthusiastic minorities (factions); and, to prevent both the federal and state governments from becoming tyrannical. Unfortunately, as Dr. Will Durant stated, economic freedom has become “more and more exceptional, making political freedom a consolatory pretense.” This has all come about because of the nature of man, which has not changed since recorded history.
As Dr. Roger Pilon stated, “Nothing in the Constitution remotely suggests that economic liberty should be treated any differently than any other kind of liberty;” and, “most of the ‘problems’ Congress spends most of its time addressing—from health care to day care to retirement security to economic competition—are simply the personal and economic problems of life that individuals, families, and firms, not governments, should be addressing—quite apart from the absence of constitutional authority to address them.”
The problems that Congress is addressing today, which are not authorized within the original and properly amended Constitution, were similar to the problems that the Framers of the Constitution faced and dealt with on a personal basis. The Founders and Framers did not expect the federal and state governments to get involved in the day-to-day lives of Americans and solve their personal problems; they did not create or authorize a welfare state by taking from some and giving it to others, which now exists in the United States.
“The Framers did not empower government to take from some and give to others. They did not establish a welfare state.” Dr. Roger Pilon
Query: Do you believe in democracy or do you believe in “rightful liberty”? Explain why.
4. Adapting or living with an old constitution (page 21): The Authors’ wrote, “In some ways, the original constitutional commitments have been severely qualified . . . The system of checks and balances has been altered . . .” They attribute these changes, “in large part” “to the Civil War and Franklin Roosevelt’s New Deal, which saw a huge expansion of federal power.”
The Civil War Amendments properly amended the original constitution; and, set in place what many of the Founders/Framers desired from the beginning. The Civil War Amendments increased individual freedom; they did not expand the powers of the federal government.
The Constitution was not properly amended with respect to Franklin Roosevelt’s New Deal. This suggests that the Authors certainly do understand that the original and properly amended constitution has either been ignored, or, has been improperly reinterpreted, or both.
Professor Richard A. Epstein wrote, “. . . anyone on any side of the political spectrum can play fast and loose with authoritative text [Constitution], and those evasions are no more palatable when done by one side or the other. The Progressives were wrong on matters of constitutional interpretation because they consciously used their intellectual powers to rewrite, not understand, key provisions of the constitutional text.” Richard A. Epstein, How Progressives Rewrote the Constitution (2006).
Professor Randy E. Barnett wrote, “Since the adoption of the Constitution, courts have eliminated clause after clause that interfered with the exercise of government power. . . All this has been done knowingly by judges and their academic enablers who think they can improve upon the original Constitution and substitute for it one that is superior. . . many constitutional scholars write as though [Americans] are not bound by the actual words of the Constitution because those words are obstacles to noble objectives . . . by subtly undercutting the legitimacy of the Constitution while at the same time preserving its much-revered form, a judge or even a clever constitutional scholar can become the man behind the curtain. This is a fraud on the public.” Randy E. Barnett, Restoring the Lost Constitution; The Presumption of Liberty (2004)
5. “Constitutional moments” revisited (page 21): The Authors wrote, “Consider Bruce Ackerman’s argument that we have a ‘dualist democracy’ where constitutional change occurs at ‘constitutional moments’ involving popular mobilization.” “Ackerman . . . argues that there have been three such moments: the founding period, the Civil War era, and the New Deal period. . . In his view, much of the work of the Supreme Court can be understood as efforts to synthesize the commitments of these three different republics. Ackerman’s arguments are controversial, but as we shall see, both the Civil War period and the New Deal did help inaugurate major changes in constitutional law, not all of which can be explained by changes in the Constitution’s text.”
I would suggest “changes in the Constitution’s text” were minimal, and, for the most part, non-existent; and, those minimal changes to the text did not result in “major changes in constitutional law” that exist today. The major changes in constitutional law are the result of the Supreme Court’s reinterpretation of the original Constitution. Bruce Ackerman has a point and Professor Robert A. Dahl seems to confirm his thesis, “. . . the Supreme Court has often used its power to impose policies that were little more than reflections of the political ideologies of the majority of members of the Court. . . The Supreme Court will continue to exist . . . as the unelected policy-making body that it has been since 1803.”
Professor Dahl believes that the United States has two constitutions, one written, in his opinion, which has too many “undemocratic features,” and, an unwritten constitution, supported by the Supreme Court. Dahl seems to believe, and I concur, that the original Constitution has been ignored since 1803, while Americans have been subjected to an “unwritten constitution” supported by the Supreme Court. See Robert A. Dahl, How Democratic is the American Constitution? (2d ed. 2003)
Query: Is the “unwritten constitution” superior to the original and properly amended Constitution, if so why? Since we are operating under the “unwritten constitution,” is the U.S. Government illegitimate? What did our Founders do when they could not convince the British Government to respect their rights as British citizens? And, as Americans today, what can we do to regain our “rightful liberty” short of another revolution?
D. Why (and How) Does the Constitution Bind? (pages 22-25)
1. Popular sovereignty (page22): The Authors wrote: “Why is the Constitution binding? One reason might be that it is a reflection of popular sovereignty. The first three words of the document claim that [the Constitution] is legitimate because it is the work of ‘We the People’.” And, “The American constitutional text was widely debated in what amounted to a national symposium on constitutional theory and ratified by popularly elected state conventions. Do these facts create a duty to obey the Constitution?”
Then, the Authors begin to put their negative spin on the Constitution; most likely to justify the reinterpretation that has taken place for more than 100 years. Here’s what they wrote: “Although the ratification process was relatively democratic by standards of the time, African Americans, American Indians, women, and most people who did not own property were excluded from the process. Even aside from these deficiencies, the ratification project lacked democratic legitimacy in several ways . . . some Founders referred to democracy in disparaging terms – ‘the worst . . . of all political evils’. . . Madison opposed a second convention specifically on the ground that the People, at least at that moment, were neither well enough informed nor sufficiently dispassionate to participate responsibly in making a constitution. . .”
Here we go again, “the ratification project lacked democratic legitimacy.” It certainly did! If democracy worked, we would all most likely be speaking Greek. Democracies throughout history ended up in revolution and our Founders knew this, see Federalist No. 10: “. . . democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been short in their lives as they have been violent in their deaths.”
The Framers understood that the masses were ignorant, just as the power-elites that control government—including members of academia, e.g. the Authors of the primary text on constitutional law—believe today, i.e. the masses are ignorant as to what is going on; and, can be controlled and manipulated. Today, the power-elites that control government, and our compulsory schooling & indoctrination system, use the ignorance of the masses to reinterpret the Constitution and stay in power, by promising to take property from those that have earned it and redistribute it to others, to them, the masses.
According to Dr. Will Durant, “Democracy is the most difficult of all forms of government, since it requires the widest spread of intelligence, and we forgot to make ourselves intelligent when we made ourselves sovereign. Education has spread, but intelligence is perpetually retarded by the fertility of the simple . . . It may be true, as Lincoln supposed, that ‘you can’t fool all the people all the time,’ but you can fool enough of them to rule a large country. . . the imitative majority follows the innovating minority. . . History in the large is a conflict of minorities; the majority applauds the victor and supplies the human material of social experiment.” Today, the “conflict of minorities” is between those that desire power & control of government and those that believe in individual freedom and private property. See Will & Ariel Durant, The Lessons of History (1968 – copyright renewed 1996)
Unlike today, the Founders attempted to set the masses free from compulsion, slavery, and poverty which existed throughout the ancient world. In 1776, they challenged the ancient belief system of government by establishing a new belief system, whereby individuals had certain pre-existing inalienable rights that were the basis of legitimate government; they enshrined this belief in the Declaration of Independence; and later, in the Constitution and Bill of Rights (first ten Amendments).
Granted, slavery existed and some, not all, of the Founders/Framers owned slaves. Furthermore, the Constitution would not have been ratified had slavery not been allowed. However, the provision in Article I, Section 9, suggests that many Framers wanted Congress to be able to end slavery in 1808 or shortly thereafter. During the peak of slavery, few Americans owned slaves; anywhere from 3%-to-7.4% of Americans appeared to own slaves. Also, it seems that there were 3,000 Blacks who owned 20,000 slaves in 1860; and, there were many Irish slaves.
I would suggest to you that the power-elites that control government, legitimize democracy, and encourage socialistic policies, are attempting to reverse the course set by our Founders, towards individual freedom and protection of private property; and, go back to ancient times when government was deemed the grantor and protector of human rights, which resulted in compulsion, slavery and poverty throughout the “Old World.” See Rose Wilder Lane, The Discovery of Freedom, Man’s Struggle Against Authority (1943) Fox & Wilkes (1993)
The reason the U.S. Constitution is so revered and should be binding—along with the Declaration of Independence, which is important for the proper understanding of the Constitution—is because it does not enslave humankind, as was done prior to 1776 and under modern constitutions today. The purpose of the original and properly amended U.S. Constitution was to limit government tyranny; and, protect individual rights and private property. This is why the U.S. Constitution is revered and should be binding; anything else, including the addition of “democratic principles,” through amendment via Article V, or, further reinterpretation by the Supreme Court, would result in greater tyranny and enslavement of all Americans by those in control of government.
Assignments (U.S. Constitution):
Read Article I, Section 8, which limits Congress to 17 powers. Many of the Framers, including James Madison, believed that the Bill of Rights (first ten Amendments) was unnecessary because of the limitations on the power of Congress. Do you see any power granted Congress that would allow them to interfere in the day-to-day lives of all Americans? If so, please explain.
Read Article I, Section 10. What are the provisions that protect individuals from the States interfering with the day-to-day lives of ordinary people?
Read Article IV, Section 4: What is a Republican Form of Government? Does the Bill of Rights include similar guarantees?
Read Article IV, Section 2, the first paragraph only; read Article I, Section 10 and Article VI. When combined with Article IV, Section 4 (Republican Form of Government), do you believe that the Constitution, including the Bill of Rights, should have been applied to the States prior to the adoption of the Fourteenth Amendment? See Robert G. Beard, Jr., Take Politics Out of the Supreme Court and Restore Freedom, 38-41 (2019)
2. The dead hand problem (page 22): The Authors wrote, “Even if the Constitution was supported by mobilized popular majorities in the late eighteenth century, no one alive today voted to ratify it. Why should the ‘dead hand’ of the framers control people alive today? Consider in this regard Thomas Jefferson’s insistence that ‘[the] earth belongs in usufruct to the living; the dead have neither powers nor rights over it,’ and that ‘one generation is to another as one independent nation to another.’” Then the Authors state: “Consider the extent to which the United States ‘commitments over time’ have involved resistance to, as well as embrace of, constitutional obligation.” Then they give examples of “some of our most revered Presidents [who] have exhibited at best an ambivalent attitude toward constitutional obligation.” The Authors are completely wrong about Jefferson’s “ambivalent attitude” towards the Constitution; they got it right with respect to Abraham Lincoln and Franklin Roosevelt. Even so, just because several Presidents did not like the constraints put on them by the Constitution, why does that justify ignoring constitutional constraints permanently, granting more government power at the expense of individual freedom?
The Authors further suggest that the ratification of the Constitution was not supported “by mobilized majorities” and, even if it were, nobody alive today ratified the Constitution; then they cherry-pick the one quote from Thomas Jefferson that supports their position to either ignore or reinterpret the Constitution. Jefferson also stated: “A wise and frugal government, which shall restrain men from injuring one another, which shall leave them otherwise free to regulate their own pursuits of industry and improvement, and, shall not take from the mouth of labor the bread it has earned. This is the sum of good government, and this is necessary to close the circle of our felicities.” According to Jefferson, “to close the circle of our felicities,” or rather, to pursue happiness and private property, no American would be subject to an income tax; and, would not be regulated, licensed, and taxed in their economic endeavors to support themselves, their families, and to acquire property.
Jefferson also wrote, “the palpable truth, that the mass of mankind has not been born with saddles on their backs, nor a favored few booted and spurred, ready to ride them legitimately, by the grace of god.” Unfortunately, today, many constitutional scholars, along with Congress, the Executive Branch, and the Supreme Court believe they are the “favored few booted and spurred, ready to ride [the mass of Americans].”
Unlike the Authors, who selected just one quote that appeared to support their position, a reading of a preponderance of Jefferson’s writings and using some common sense, one might deduce that Jefferson would have been inclined to make it easy to amend the Constitution for certain technical or administrative reasons, e.g., raising the age to become President and serve in Congress, but, he would not have favored any amendments or changes that infringed, taxed, regulated or restricted the unalienable rights to life, liberty, and the pursuit of happiness or property, which pre-exist government; and, cannot legitimately be forfeited to or denied by “a wise and frugal government.” For more information about what Jefferson truly believed, See Thomas Jefferson, Democracy (Saul K. Padover ed., 2d ed., The Classics of Liberty Library (1994))
Query: Why would you prefer to ratify a Constitution that grants government unlimited power over your day-to-day life, rather than accept an existing Constitution that protects your unalienable rights to Life, Liberty, and the Pursuit of Happiness or property?
3. A quick dead hand solution (page 23): The Authors wrote, “Consider a simple answer to the dead hand question: Ideas about democracy and legitimacy are a distraction, and a dead end. We have to ask about human welfare. . . The fact is that if we take the Constitution as binding, we are a lot better off in terms of welfare. What would we do without it?”
As much as I dislike the terms “democracy” and “welfare,” “we are a lot better off . . . if we take the Constitution as binding . . .” Agreed, however, Americans would be much better off by “Restoring the Lost Constitution,” the written Constitution. Unfortunately, today, Americans are subject to the unwritten constitution, supported by the Supreme Court. See Randy E. Barnett, Restoring the Lost Constitution, The Presumption of Liberty (2004)
4. The problem of constitutional mistake (or worse) (page 23): The Authors wrote, “If a constitution contained only provisions that the people of the United States today thought wise, the problem of constitutional obligation would never rise.” I would suggest that the only people today that disagree with many provisions of the U.S. Constitution are those people who do not believe in individual freedom; and, who desire unlimited government power under their control.
And, of course, once again, the Authors use the slave card: “For an example illustrating the problem, consider the fact that the Constitution, as originally drafted, had many provisions that protected the rights of slave holders, at the expense of enslaved individuals.” “Citing [three] provisions [within the U.S. Constitution], Supreme Court Justice Thurgood Marshall once wrote that he did not ‘find the wisdom, foresight, and sense of justice exhibited by the framers particularly profound. To the contrary, the government they devised was defective from the [start].’ Why should anyone have felt obligated to obey provisions in the original Constitution that protected slavery?”
First, I would suggest that Justice Thurgood Marshall had been properly indoctrinated, just as you would be if you only read the primary text; and, just as former slave, Frederick Douglass (1818 –1895), was, as explained below.
According to David Barton: “During Douglass’s first years of freedom, he studied at the feet of abolitionist William Lloyd Garrison, who taught him that the Constitution was a pro-slavery document. Douglass accepted this claim, and his early speeches and writings reflected that belief. However, Douglass later began to research the subject for himself; he read the Constitution; he read the writings of those who wrote the Constitution; and what he found revolutionized his thinking. He concluded that the Constitution was not a pro-slavery but an anti-slavery document. [Douglass] explained: ‘I was, on the anti-slavery question, . . . fully committed to [the] doctrine touching the pro-slavery character of the Constitution. . . I advocated it with pen and tongue, according to the best of my ability. . . Upon a reconsideration of the whole subject, I became convinced . . . that the Constitution of the United States not only contained no guarantees in favor of slavery but, on the contrary, it is in its letter and spirit an anti-slavery instrument, demanding the abolition of slavery as a condition of its own existence as the supreme law of the land. Here was a radical change in my opinions. . . Brought directly, when I escaped from slavery, into contact with a class of abolitionists regarding the Constitution as a slaveholding instrument. . . it is not strange that I assumed the Constitution to be just what their interpretation made it . . . [But] I was [now] conducted to the conclusion that the Constitution of the United States . . . [was not] designed . . . to maintain and perpetuate a system of . . . slavery—especially as not one word can be found in the Constitution to authorize such a belief.’”
“Douglass therefore concluded: ‘The Constitution is a glorious liberty document. Read its preamble; consider its purposes. Is slavery among them? Is it at the gateway? Or is it in the temple? It is neither. . . If the Constitution were intended to be, by its framers and adopters, a slaveholding instrument, why neither slavery, slaveholding, nor slave can anywhere be found in it? . . . Now, take the Constitution according to its plain reading and I defy the presentation of a single pro-slavery clause in it. On the other hand, it will be found to contain principles and purposes entirely hostile to the existence of slavery.’”
Barton asks: “But if the Constitution is not pro-slavery, then what about the Three-Fifths Clause? Had Douglass not read that clause? Yes, he had. Then how could he conclude what he did about the Constitution? Douglass understood that the Three-Fifths Clause dealt only with representation and not the worth of any individual.” For an in-depth discussion of why Douglass arrived at his conclusion, see David Barton, Setting the Record Straight: American History in Black & White, 10-14 (2004)
Because of Justice Thurgood Marshall’s misunderstanding of the Constitution, he did not “find the wisdom, foresight, and sense of justice exhibited by the framers particularly profound.” On the other hand, “A British scholar, writing about the founders, said that never in the course of history had there been so many men at one time and place so skilled in the art of statecraft. William Gladstone made a similar comment in 1887: The American Constitution is the most wonderful work ever struck off at a given time by the brain and purpose of man.” Charles Adams, Those Dirty Rotten Taxes: The Tax Revolts that Built America, 16-18 (1998)
After leaving the readers with the belief that the original Constitution “was defective from the [start],” the Authors state: “Of course, the modern, amended Constitution outlaws, rather than protects slavery. Still even as amended, the Constitution contains provisions that many think anachronistic, foolish, or morally questionable.” What do the Authors give as an example? Only one thing, the fact that the Constitution requires the President to be a “natural born citizen.” Then the Authors conclude, “Why should the text of the Constitution prevent the election of this person?”
If this is the only example that the Authors believe is necessary to prove their point that the Constitution includes provisions that are “anachronistic, foolish, or morally questionable,” I would question their judgement.
My response is what Thomas Jefferson said: “The legitimate powers of government extend to such acts as are only injurious to others. But it does me no injury for my neighbor to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg.” Accordingly, I would have no problem amending the Constitution under Article V, so that any U.S. citizen can run for President because it “neither picks my pocket nor breaks my leg.”
In fact, as Jefferson believed—“The legitimate powers of government extend to such acts as are only injurious to others”—I came to the conclusion that the only valid or legal amendments to the U.S. Constitution may be those that (1) increase individual liberty and private property rights, (2) decrease or limit government authority and power, and (3) are of a minor or technical nature that does not infringe upon “unalienable rights.” Amending the Constitution to allow any U.S. citizen to run for President falls under (3) is of a minor or technical nature that does not infringe upon “unalienable rights.” Robert G. Beard, Jr., The United States Government is Illegitimate (2017), available from www.jeffersoniangroup.com or directly from Amazon.com and Barnes & Noble
5. Amendments and supermajorities (page 24): The Authors wrote, “Perhaps the Constitution is entitled to respect because if the people disapprove of specific constitutional commands, they can change them through the amendment process.” Then they agonize that the amendment process is “extraordinarily arduous.”
The Authors then ask: “Does the very difficulty of amendment, as well as the supermajority requirements for initial ratification, provide a built-in guarantee that constitutional provisions are wise?” Then they suggest you consider McGinnis and Rappaport, Originalism and the Good Constitution: “[Supermajority] rule helps assure the bipartisan consensus that facilitates the widespread allegiance of citizens and guarantees rights for minorities . . . [Supermajority rule also] improves the erratic judgment of legislators. . .” Rather than stop here, the Authors cannot help themselves; they go back to the slavery issue.
Here’s the Authors attempt to find fault with Article V: “Notice, though, that supermajority requirements can also give a relatively small group veto power over the entire constitution and therefore create the potential of constitutionalizing narrow, special interest provisions. For example, as noted above, delegates to the constitutional convention from slave states made clear that they would not vote for the new constitution unless slavery was granted constitutional protection.”
It is certainly true that if slavery was not initially tolerated, the original Constitution would not have been ratified. However, the example given regarding slavery—that “a relatively small group” can have “veto power over the entire constitution”—is moot or has no practical relevance today. Furthermore, the Authors are wrong, because the written Constitution, as properly amended, which unequivocally “outlaws slavery,” no small group can have “veto power over the entire constitution” because the entire Constitution already exists.
Today, “a relatively small group” can, and should have, veto power over any amendment that might infringe upon the unalienable rights to life, liberty, and the pursuit of happiness or private property. Remember, this is not a democracy, the United States is a Constitutional Republic; 51% cannot take away the rights and property of the minority (49%). That is the reason for the difficult amendment process under Article V.
Query: At this point in your studies, do you believe the U.S. Constitution deserves respect? If so, why. If not, why not.
6. The good (enough) constitution (page 24): The Authors wrote, “Is constitutional obligation justified on the ground that, for the most part, the Constitution is substantively sound and that it is worth putting up with its suboptimal features given the risk of chaos or tyranny if it were ignored?”
I would suggest that the Authors believe the only “suboptimal features” of the Constitution are the constraints put on government power; and, the protection of unalienable rights of the individual from government, majorities, and enthusiastic minorities. Unfortunately, the power-elites that control government, aided by academia and the Supreme Court, have figured a way around many of the constitutional provisions that they believe to be “suboptimal.”
As Professor Randy E. Barnett explained, “courts have eliminated clause after clause that interfered with the exercise of government power. . . All this has been done knowingly by judges and their academic enablers who think they can improve upon the original Constitution and substitute for it one that is superior. . . many constitutional scholars write as though [Americans] are not bound by the actual words of the Constitution because those words are obstacles to noble objectives. . . by subtly undercutting the legitimacy of the Constitution while at the same time preserving its much-revered form, a judge or even a clever constitutional scholar can become the man behind the curtain. This is a fraud on the public.” Randy E. Barnett, Restoring the Lost Constitution; The Presumption of Liberty (2004)
Of course, the Authors continued and ended with a negative spin, “the fact that the Constitution as currently written allows for the election of a President who loses the popular vote and gives wildly disproportionate representation to small states in the Senate;” and, “the fact that we have in the past ignored some clear constitutional provisions without obvious adverse consequences. For example, article I, section 3, clause 2 provides that all senators, except for the first set of senators, are to serve for six years, yet ever since Vermont was admitted as the first new state in 1791, one senator from new states has always served less than six years so as to provide for the staggered election of senators.”
Democracy (popular vote) is an important concept to the Authors; due to the ignorance of the masses, the Authors most likely believe that the masses can be manipulated. The Framers of the Constitution established a Republic where the federal government had limited powers and created a scheme with Checks & Balances and a separation of powers. Part of this scheme included the Electoral College, which if abolished, and the President was elected by popular vote, only about four states would be represented to include New York and California; or rather, as many as 46 States might not get to choose the President if the Electoral College was abolished. With respect to the Senate, each State is equal regardless of their population, while population matters with respect to the House of Representatives, e.g., California has more Congressmen than Wyoming. The ratification of the Seventeenth Amendment, taking away the appointment of U.S. Senators by State Legislators and making them subject to election by the people of each respective State, took power away from the States. If the President was elected by popular vote and the Senate allocated seats based upon population, all power would most likely reside in Washington D.C., controlled and manipulated by 4-to-5 states to include New York and California. This would not be a good idea if you believe in individual freedom.
The Authors example of the fact that we have ignored some clear constitutional provisions relates to a senator in “new states” serving less than six years in order to provide for the staggered election of senators. This apparently started to happen in 1791 when Vermont was admitted as a new state. I personally have no problem with this since it is more about a minor technical or administrative violation that does not infringe upon any unalienable rights; nor does it grant government more power at the expense of individual freedom. Really, this was all that the Authors could think of to support their position that “we have in the past ignored some clear constitutional provisions without obvious adverse consequences…”
Query: When was the last time a senator from a “new state” served less than six years? Do you think this example is even relevant? If so, why? What would you suggest we do?
7. Modern acquiescence (page 25): The Authors wrote, “The framers of the Constitution have no actual power over us. If the Constitution is obeyed today, it is because of the consent of living people who could disregard it if they chose to do so. . . The Constitution is law today because it continues to be accepted today. . . If modern acquiescence is the basis for obligation, does it follow that particular provisions of the Constitution should not be enforced when public opinion (measured how?) opposes enforcement?”
Unlike what the Authors insinuated, public opinion (a democratic majority) should not matter when it comes down to enforcing provisions of the Constitution, which is the supreme law of the land. The U.S. Constitution was the first and still is, the only one of its kind; its purpose, as originally written, was to limit government power and protect unalienable rights to life, liberty, and private property from government, majorities and enthusiastic minorities.
The Declaration of Independence and the U.S. Constitution established a new belief system that rescued Americans from compulsion, slavery and poverty, which existed throughout the “Old World.”
The protection of individual freedom is what makes the U.S. Constitution relevant, revered, legitimate, and, accepted by most Americans today.
It’s too bad that Congress, the Executive Branch, and the Supreme Court, aided by academia, have made every effort to gain and grant greater power to government at the expense of individual freedom.
8. The relevance of the question (page 25): The Authors wrote, “For better or worse, constitutional obligation is generally taken to be an axiom of our system.”
“For better or worse” … those who believe in the benefits of democracy, those that believe that certain individuals with the right schooling and political beliefs ought to be able to make the rules for everyone else, and, those people who desire power and control over their fellow citizens, are the ones that do not like the constraints put on them by the U.S. Constitution. The Authors, like Laurence Tribe, appear to fit into one of these categories, i.e. Tribe referred to the Founders/Framers as a “highly limited constituency of white property owners [the race card again!] . . . with whom most [Americans] have only the most limited link (if any at all), [who decided] to limit our future freedom to exercise power.” Tribe, like the Authors, are engaged in propaganda and indoctrination. The Founders/Framers were not trying to limit “our future freedom;” they were trying to “limit [the power-elites] future [ability] to exercise power” over their fellow citizens.
The Authors continued: “Note, however, recent polling data showing that 76 percent of the American people think that justices of the Supreme Court at least sometimes decide cases because of their personal or political views rather than because of legal analysis.”
Due to the continued propaganda and indoctrination through compulsory schooling and the mainstream media, I’m actually impressed that 76% of the American people may still be able to think critically, exercise some form of common sense, and, recognize the real problem we face today, the Supreme Court.
“To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps . . . the germ of dissolution of our federal government is in the constitution of the federal judiciary; an irresponsible body . . . working like gravity by night and by day, gaining a little to-day and a little to-morrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped from the States, and the government of all be consolidated into one. . . when all government . . . shall be drawn to Washington as the center of all power, it will render powerless the checks provided of one government or another, and will become as venal and oppressive as the government from which we separated.” Thomas Jefferson, letter to T. Ritchie (1820)
Query: What did Professors Robert A. Dahl and Randy E. Barnett write about the Supreme Court in 2003 and 2004, respectively?
Finally, the Authors conclude, “although justices on the Supreme Court, presidents, and members of Congress rarely or never question constitutional obligation, constitutional law is dominated by debate about what the Constitution consists of and how it should be interpreted. Contending sides in the debate regularly make claims that various forms of constitutional interpretation are inconsistent with true obligation.”
I would suggest that most presidents and members of Congress have continually violated their oaths to support the Constitution; they believe that they can do almost anything and pass any kind of legislation, without even reading it, leaving it up to the Courts to sort it out. Unfortunately, the Supreme Court has often gone along with the other two branches effort to increase government power at the expense of individual freedom.
Query: Can members of Congress be impeached? What can be done to members of Congress who violate their oaths to support the Constitution?
What about the statement, “Contending sides in the debate regularly make claims that various forms of constitutional interpretation are inconsistent with true obligation?” This is one statement by the Authors that I agree with entirely.
There are at least seven recognized methods of constitutional interpretation, not including variations of many of these methods. “The truth is that at one time or another during its long history the Supreme Court has employed [probably] every one of [the available] methods [of constitutional interpretation], sometimes even in the very same case.” Louis E. Wolcher, A Philosophical Investigation into Methods of Constitutional Interpretation in The United States and The United Kingdom, 373, 13Va. J. Soc. Pol’y & L. 238 (2006)
In my opinion, instead of there being at least seven methods of constitutional interpretation, there are only two ways to interpret the Constitution; and, Professor Barnett seems to agree. In 2016 he published Our Republican Constitution. His thesis is that there are only two ways of looking at the American Constitution: (1) As a Republican Constitution, based upon the “Lost Constitution,” which can be restored under the “Presumption of Liberty;” and (2) as a Democratic Constitution, which is how it has been interpreted for well over seventy years. I also believe there are only two ways to interpret the Constitution: (1) Under the Doctrine of Freedom, more comparable to Barnett’s Republican Constitution; and (2) under the Doctrine of Slavery, or Barnett’s Democratic Constitution. “[F]or well over seventy years” the seven-plus methods of constitutional interpretation have been used, at one time or another, to justify the reinterpretation of the Constitution as a “Democratic Constitution” under the Doctrine of Slavery, i.e., those in control of government, able to sway the majority, take the property of some individuals and groups and redistribute it to others after they, of course, take their share of the legalized plunder (Frederic Bastiat, same as theft).
As Professor Barnett wrote, “Americans today are divided politically, ideologically, and culturally.” He referred to this division as divergent visions and called them the “Democratic Constitution” and the “Republican Constitution,” which has nothing to do with the two major political parties in the United States. Although Barnett wrote that the Republican Constitution was the appropriate approach, which represented liberty and would restore the “Lost Constitution,” he appeared to believe that this was merely an argument and a debate:
“At its core, this debate is about the meaning of the first three words of the Constitution: ‘We the People.’ Those who favor the Democratic Constitution view We the People, as a group, as a body, as a collective entity. Those who favor the Republican Constitution view We the People as individuals. This choice of visions has enormous real-world consequences.”
The “real-world consequences” of the “Democratic Constitution” have already occurred. There is no longer much time for argument and debate, or, for that matter, further study. The survival of the last great empire standing, the United States of America, is at stake; in 2026 the United States of America will be 250 years old, the average age when all past empires have declined and imploded. In the Preface to the Eighth Edition of your primary text, Constitutional Law, dated October 2017, written by five Professors (your Authors) who appeared to believe in the “Democratic Constitution” wrote:
“We live in deeply unsettled times, and the future is even more unknowable than usual. It is at least possible that over the lifetime of this Edition, crucial issues of constitutional stability will take center stage.
‘[We] have tried to ask questions of our students that, for one reason or another, the Justices have failed to ask of themselves.’ As before, and now more than ever, ‘We are guided by the firm conviction that thinking clearly about constitutional law—both what it is and what it might be—is vital for law students, and, indeed, for citizens generally’.”
The reason why we live in “unsettled times” is due to human nature and the failure of the Supreme Court to uphold their oath to support the Constitution, which was based upon liberty and the protection of private property rights. The Supreme Court, throughout most of their history, succumbed to the political aspirations of State legislatures and Congress, along with their personal political aspirations; they continue to do so today.
By accepting Barnett’s premise—that this is merely a debate about the meaning of three words—those in control of government, aided by academia and the Supreme Court, will continue to subvert economic liberty. The Supreme Court will continue to use many of the seven-plus methods available or “esoteric hermeneutics” to rewrite the original meaning of the Constitution (based upon individual inalienable rights), granting more power to government, which will ultimately legislate away what little economic and private property rights Americans still have.
If Americans desire to avoid a constitutional crisis, a possible revolution, and the ultimate demise of the empire of the United States of America, among other things, the Supreme Court must change its rules, requiring unanimity and begin interpreting the Constitution under the Doctrine of Freedom or using a “presumption of liberty” as Justice Chase did in Calder v. Bull back in 1798. The Constitution has not been formally amended since 1798 that would change anything in Justice Chase’s opinion; yet, it is ignored today, as if it never existed. According to Professor Tribe, here’s why Justice Chase’s opinion is disregarded:
“. . . sometimes meanings are subject to chronic flux. In particular, documents of considerable importance—like the Constitution—may themselves give new importance to terms previously the beneficiaries of easy consensus, and thereby open the meaning of such terms to new debate.”
“The upshot is that the Constitution’s text, and historical material relevant to the text’s proper understanding will almost invariably recede into the background behind a parade of precedents, until the Constitution itself begins to seem ‘rather like . . . a remote ancestor who came over on the Mayflower.’ As Robert Post has rightly observed, beginners in constitutional law are often amazed by how little of the Constitution they find in constitutional opinions, which tend to be filled with the elaboration and application of various doctrinal ‘tests’ extracted from prior decisions.”
Query: Has Professor Tribe and his ilk in academia (including the Authors of your primary text), aided by the Supreme Court, perpetrated a fraud on the American people? Are Americans bound by the original written Constitution, as properly amended, or, are they bound by the rewritten Constitution, or, as Professor Barnett calls it, the “Democratic Constitution”?
Let’s look again at a portion of Justice Samuel Chase’s opinion:
“The people of the United States erected their constitutions or forms of government, to establish justice . . . to secure the blessings of liberty, and to protect their persons and property from violence. . . The nature, and ends of legislative power will limit the exercise of it. This fundamental principle flows from the very nature of our free republican governments. [There] are acts which the federal, or state legislature cannot do, without exceeding their authority. There are certain vital principles in our free republican governments, which will determine and overrule an apparent and flagrant abuse of legislative power. [An] act of the legislature (for I cannot call it a law), contrary to the great first principles in the social compact, cannot be considered a rightful exercise of legislative authority. [A] law that punishes a citizen for an innocent [action;] a law that destroys or impairs the lawful private contracts of citizens; . . . or a law that takes property from A and gives it to B: it is against all reason and justice, for a people to entrust a legislature with such powers. . . [To] maintain that our federal, or state legislature possesses such powers, if they had not been expressly restrained, would, in my opinion, be a political heresy, altogether inadmissible in our free republican governments.”
Prior to being appointed to the Supreme Court, among other things, Samuel Chase was a Representative of Maryland; and, signed the Declaration of Independence. By signing the Declaration, as did all the other signers, he risked his life and property. On July 4, 1776, the 13 British Colonies, whose Representatives unanimously signed the Declaration, became the United States of America.
America’s Founders and the 13 United States, which included Samuel Chase, adopted the principles of “self-evident truths,” natural law, inalienable rights to life, liberty, and the pursuit of happiness or property, which, 11-years later, not only inspired the Framers, they incorporated the principles set forth in the Declaration within the Constitution.
In his opinion, Justice Chase refers to “free republican governments.” Where did he get this? Article IV, Section 4 of the Constitution reads, “The United States shall guarantee to every State in the Union a Republican Form of Government.” All the Founders and Framers knew what a republican government was, as explained by Roswell Hart:
“[A Republican Government was one] ‘whose citizens shall be entitled to all the privileges and immunities of other citizens’; where ‘no law shall be made prohibiting the free exercise of religion’; where ‘the right of the people to keep and bear arms shall not be infringed’; where ‘the right of the people to be secure in their person, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated’; and where ‘no person shall be deprived of life, liberty, or property without due process of law’.”
Not only does the Constitution guarantee to each State a “Republican Form of Government,” the Bill of Rights (first ten amendments) includes similar guarantees. In addition, most, if not all of the State constitutions included similar provisions.
To further support Justice Chase’s opinion, Article IV, Section 2 of the Constitution states: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” And, Article I, Section 10 reads, “No State shall . . . pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts. . .” In addition, Article VI states, “This Constitution . . . shall be the supreme Law of the Land . . .” and, all Senators, Representatives, “Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution. . .” And, Article III, Section 1 states, “The judicial Power of the United States, shall be vested in one Supreme Court. . .” Section 2 of Article III reads, “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, [and] the Laws of the United States. . .” And Finally, the Fifth Amendment (Bill of Rights) states, among other things, “No person shall . . . be deprived of life, liberty, or property, without due process of law.”
Samuel Chase, as one of the Founding Fathers, risked his life and property, to change the British-American “subjects” into “citizens” of the newly created United States. Twenty-two years later, as a Justice of the Supreme Court, he appeared to understand the provisions of the Constitution mentioned above, to include the “Privileges and Immunities” clause in Article IV Section 2, combined with Article III, Section 2, extending the “judicial Power” “to all Cases, in Law and Equity” made the States subject to the Constitution to include the first ten amendments (Bill of Rights), which includes the “Due Process” clause of the Fifth Amendment; and, that it was the Supreme Court’s responsibility to protect the “unalienable Rights” of individuals against majorities and enthusiastic minorities that may control the federal and state governments.
Following Justice Chase’s opinion in Calder v. Bull in 1798, the States continued to pass legislation “(for I cannot call [it] law[s])” that impaired contracts, violated private property rights, and, at one time or another, discriminated against Blacks, Jews, Catholics, Italians, Irish, ad infinitum, ignoring the Bill of Rights in the process. In fact, the Supreme Court caved and even opined that the Bill of Rights only applied to the federal government, thereby rewriting the Constitution without formal amendment. Robert G. Beard, Jr., Take Politics Out of the Supreme Court and Restore Freedom, 35-41, (2019)
Assignment: Read Chapter VI. Constitutional Interpretation in a Free Society (pages 44 - 60) and Chapter VIII. Summary and Conclusion (pages 64 – 67) in Take Politics Out of the Supreme Court and Restore Freedom.
Query: Do you agree or disagree and why? Do you have any questions, concerns, or any other ideas?
9. My take on why the Constitution is relevant and revered: The American Constitution is the first and only one of its kind, which recognizes that individuals have inalienable rights to life, liberty and the pursuit of happiness or property; these rights pre-exist government and cannot be legislated away by a legitimate government. Article I, Section 8 grants Congress the power to do only seventeen things.
Because of this limitation, the Bill of Rights (first ten Amendments) were an afterthought, i.e. the framers thought that this limitation in Article I, Section 8 would prevent Congress from interfering in the day-to-day lives of Americans. However, Thomas Jefferson was a staunch supporter of a Bill of Rights because he understood human nature, i.e. Congress would figure out a way to circumvent the limitations in Article I, Section 8, which they have done, aided by academia and supported by the Supreme Court. As a result of this insistence, several states required a Bill of Rights as a requirement for ratification.
Article I, Sections 9 and 10 contain numerous protections afforded the American people, as individuals, against the federal and State governments. Article III, Section 2 and Article IV, Sections 2 and 4 contain provisions which protect individuals. Article VI is an important provision, when combined with the previously mentioned provisions, protect all Americans.
The Bill of Rights or first 10 amendments, especially the first nine, protect the inalienable rights of all Americans… when combined with Amendments XIII, XIV, XV, XIX and XXIV, all individual Americans should be protected from the tyranny of both the Federal and State governments. Unfortunately, the Supreme Court has failed to do its job, i.e., protect the rights of citizens against the stealthy encroachment by government.
In spite of the lack of respect for the U.S. Constitution by those that desire a strong central government with unlimited power, there appears to still be many Americans that believe humankind is not born into slavery; and, recognize that 51% of Americans should not be able to enslave the other 49%.
It is hoped that by the end of this course, you will believe in “rightful liberty” defined by Thomas Jefferson as “unobstructed action according to our will within limits drawn around us by the equal rights of others—I do not add “within the limits of the law,’ because law is often but the tyrant’s will, and always so when it violates the right of an individual.”
Assignment: Carefully read the U.S. Constitution, including the Amendments, and write down by Article, Section and Amendment, all the individual rights protected against the Federal and State governments. This will be your outline of protected rights.
As you continue through this course and begin reading the cases, your outline of protected rights should be referred to as you read the facts and opinions. Your understanding of the written Constitution, and the individual rights protected, may cause you to challenge or question some of the opinions of the Court. In some cases, you may very well agree with a minority opinion; in other cases, you may not agree with either the majority or minority opinions.
It is required that you understand the current law, as interpreted by the Supreme Court. However, it is important that you think for yourself and understand how the “courts have eliminated clause after clause that interfered with the exercise of government power” at the expense of individual freedom.
II. THE BASIC FRAMEWORK, Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803):
Module 3 – The Sources of Judicial Decisions and Constitutional Interpretation
Constitutional Law I