When can you sue the government? What started out as an erroneous credit report filing has turned into the heart of the question brought before the Supreme Court in the case Department Of Agriculture Rural Development Rural Housing Service V. Kirtz (USDA v. Kirtz). What the court found, and how it got there, points to a serious flaw in the constitutional education of lawyers and judges throughout this nation.
Although not at the heart of our story, this begins with a simple violation of the Constitution.
This case arises from a loan Reginald Kirtz secured from The Rural Housing Service. The Service, a division of the United States Department of Agriculture (USDA), “issues loans to promote the development of safe and affordable housing in rural communities.” USDA v. Kirtz
The Constitution does not authorize the United States to
issue loans for any reason. As the Tenth Amendment states:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. U.S. Constitution – Amendment X
This may seem like a trivial thing, but if Congress had not passed legislation to allow agencies to loan money, then Mr. Kirtz would not have had the problems that led to this case. Yes, Mr. Kirtz’s problems began after he paid off the loan, but that is not the heart of this case.
According to Mr. Kirtz, he repaid his loan in full by mid-2018. … Despite this, the USDA repeatedly told TransUnion, a company engaged in the business of preparing consumer credit reports, that his account was past due. …
These misrepresentations damaged his credit score and threatened his ability to secure future loans at affordable rates. … In an effort to resolve the problem, Mr. Kirtz alerted TransUnion to the error, and the company, in turn, notified the USDA. But, Mr. Kirtz says, the USDA failed to take “any action to investigate or correct” its records. So he eventually decided to sue the agency under the FCRA. USDA v. Kirtz
Yes, any lending firm could have erroneously reported past due a loan that had been paid in full. And any lending agency could fail to take action to resolve the error, which could lead to a lawsuit. In this case, Mr. Kirtz sued under the Fair Credit Reporting Act (FCRA).
The court gave a unanimous opinion, written by Justice Gorsuch.
How a U.S. President gets elected is both simpler and more complicated than most people think it is.
What is this Electoral College and why does it exist?
How can you participate in an election if you don’t know how it works?
Every four years, the United States goes through the ritual of electing a President. I use the term ritual for two reasons. First, most Americans’ understanding of the election process is based on custom or rites rather than the law. Second, most of the customs Americans follow directly contradict the actual process of electing a President of the United States.
Many years ago, I was in Raleigh, NC working on a project with an international team. Every day the whole team would go out for lunch. Since it was a presidential election year, and I was the only American on the team, I was asked about the apparently convoluted process of electing an American President. This was before I had begun studying the Constitution, so I explained the process as best I could based on the customs I had been taught. Today my answer would not only be more coherent, but would include references to the actual laws it was based on.
The first, and probably most fundamental misunderstanding most Americans have about the presidential elections process, is the belief that they vote for President. They do not.
Like primaries, before 1964 and the ratification of the Twenty-Fourth Amendment, the idea of the people voting for President did not exist in the Constitution.
In fact, the Twenty-Fourth Amendment did not say that people voted for President, only that they could not be denied the right to vote in such an election for failing to pay taxes. It’s yet another example of lack of understanding of the Constitution by Congress and the Several States. The reporting of a national popular vote for President is another lie, since there is no such thing. The people do not elect the President, the states do.
Based on Article II, Section 1, the states have established the manner of appointing electors to be based on a popular vote in the state for a political party. The details vary from state to state, but the general process is the same. Each political party puts together a slate of party faithful who pledge to vote for their party’s candidate. When the state puts together their ballot, they list the party candidates.
In the past most states noted that you were voting for electors for that candidate, although recently that has changed. In the 2020 elections 37 of the 50 states (74%) lie on the ballots, claiming their citizens are voting for the actual President and Vice-President, even though they aren’t.
So even when the ballot tells you the vote is for electors for President, what you’re actually voting for are pre-selected operatives for a specific party.
After election day in November, each state determines which slate of electors to appoint. These electors meet in their state on the first Tuesday after the second Wednesday in December, (3 USC §7).
This is the only federal or national election in the United State. While elections for the House and Senate are for federal offices, they are still state elections. Some states require their electors to vote based on the results of their states’ election. However, in some states the penalty for not voting based on the state’s popular vote may not be all that significant, which has led for some to call for the electors to be unfaithful to their pledge in an attempt to win the election.
Actually, the presidential electors cast two ballots, one for President and another for Vice President, as required by the Twelfth Amendment:
Since most state laws appoint their electors in a “winner take all” manner, all the electors vote unanimously for their party’s candidates. These electors are party apparatchiks, so they simply vote for their party’s ticket, which was established through a combination of Primary Elections and other internal political machinations. Once the electors have done their duty to their political party, the list of a single name for President and another for Vice-President is signed, certified, and sent to the sitting Vice-President in their role as President of the Senate.
Next comes the counting of the votes of the presidential electors. This has been codified into law by Section 15 of Title 3 of the United States Code. The process starts with the President of the Senate opening the certificates to be counted.
Sounds simple enough. When does this counting happen?
According to the Twelfth Amendment, the only role the President of the Senate has during this session is to open the certificates and then have them counted. Congress confirmed this in section (b) of §15.
Sadly, this is where Congress has begun interfering with the election process.
Yes, this is a minor point. The Constitution doesn’t say how the votes are to be counted. After all, I guess they would assume a group of intelligent men could figure out how to safely and accurately count the votes. Congress, on the other hands, wanted their input on the process.
If you read the Twelfth Amendment, you see Congress has no role in the presidential election unless none of those voted for an office receives a majority. Here we see Congress has decided for themselves that they will pick the tellers who will count the votes. That’s not the only way Congress has decided to interfere with the election.
It starts with a subtle point:
What are these purported certificates? The Constitution says nothing about purported certificates. The Twelfth Amendment says the President of the Senate will open the certificates he has received from the states and have them counted. What does the section 5 say?
Who the state electors are is none of the United States’ business; it is solely a state matter. I suppose the reasoning behind sending the list of electors to the Archivist of the United States is to allow fake certificates to be identified and not counted. In fact, federal law claims to establish a rather complicated process for the sending of the certificates from the electors to the President of the Senate and others. The problem is, the Constitution does not delegate to Congress the authority to tell states they have to register their electors with the United States or to have their certificates be sent anywhere but to the President of the Senate. That’s not all of Congress’ interference in the election.
Again, the Constitution does not give Congress any say in counting of the presidential electoral votes; they are there only to observe. So what are the reasons Congress thinks it can object?
Remember back to January 6th, 2020? There were several states that did not lawfully appoint electors. Not because of some law made up by Congress, but because the manner of appointing them was modified by state courts or the state’s Secretary of State, not the legislature. Those objections though, should have been dealt with at the state level, not the Congress.
With the election process dominated, and in many cases controlled, by the two major parties, it seems fairly unlikely that that a candidate would not receive the votes of a majority of the electors, as required by the Twelfth Amendment.
However, as dissatisfaction with the two dominant parties grows, this becomes more and more a possibility. There are two things the American people need to be aware of should such a situation happen.
In the case of the House choosing a President, the state delegations vote by ballot. That means each state gets a single vote. Since the Congress is seated before the votes for President are counted, and the partisanship that exists in both houses is so rampant, the choice would ultimately be decided by the majority in each state’s delegation in the House.
As I’ve noted, the process is similar if no candidate for Vice-President receives a majority of votes.
Only after the decisions have been made as to who will be the new President and Vice-President, are they legally considered President-elect or Vice-President-elect. These positions have absolutely no power, but we recognize this as a time for them to work on their transition to office at the inauguration.
Before their terms begin, the President and Vice-President must take an oath or affirmation of office. The President’s oath is specified in Article II, Section 1, Clause 8 of the Constitution.
Then, and only then, does the United States have a new President.
If I could go back in time and explain to those visiting teammates how our presidential elections work, I would focus on three points.
While many people say “Knowledge is Power”, that is not actually true. Knowledge only has power if it’s used for some action. Now that you have the knowledge and a better understanding of how the United States elects a President, I hope you will use it to exercise your power as a United States citizen. Use this knowledge to push for your state to accurately portray who is being voted for on Election Day. Demand that they follow the Constitution in the appointment of their electors for President. Last, and probably most important, choose wisely who you vote for as presidential electors.
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I’ve spoken repeatedly about the unconstitutionality of most mask mandates. Recently, the Third Circuit Court of Appeals was asked to review two cases where people were punished for attending school board meetings while refusing to wear masks. Sadly, the cases, as described in the Circuit Court opinion, seem poorly founded, thus leading to decisions against the plaintiffs. I think a closer look will not only show the flaws in the case, but help others build better ones in the future.
Before we start, I want to state that the COVID-19 mask mandates were not only unconstitutional, but illegal as well, as I will show later in this review. However, we need to start where the Circuit Court started: With their own assumptions.
The court stated their opinion with some background on the two cases they were reviewing.
In order to perform a fair review, we must take into consideration what was known back in 2020 even though much of it has since been proven false. We must also consider what is fact and what is opinion. For example, the court points to a statement from the Centers for Disease Control and Prevention (CDC) about how COVID-19 spreads. However, nothing in the document referenced even suggests that there are studies showing that this is how COVID spreads. This “common knowledge” may be based in some reason and logic, but that does not make it true. While later studies such as one known as the Chocrane Report found that, in general, masking made little if any difference in the transmission of SARS-COV-2, the virus that causes COVID-19.
Once again, we see decisions being driven by assumptions that later turn out to be untrue. For example, Asymptomatic transmission of covid-19 was published in December of 2020, and stated.
How are people supposed to make informed decisions with so many opinions being treated as scientific facts? In part because of these assumptions, Governor Murphy took several steps.
Both Mr. Falcone and Ms. Murray-Nolan objected to the New Jersey mask mandate in schools. Both attended school board meetings unmasked, were confronted by members of the school board, and threatened by the board with contacting law enforcement. Both stated that attending the board meeting maskless was constitutionally protected political speech, and that the boards had retaliated against them for it, Mr. Falcone by the board canceling subsequent meetings and Ms. Murray-Nolan by her being arrested. Both eventually sued their respective school boards and law enforcement under 42 USC § 1983, Civil action for deprivation of rights and New Jersey Statutes Title 10. Civil Rights 10 § 6-2.
In Mr. Falcone’s case:
The Circuit Court reversed that decision on standing, and remanded the case back to the District Court.
In Ms. Murray-Nolan’s case:
The Circuit Court found:
In both cases, the plaintiffs sued under both state and federal laws, claiming a deprivation of rights under the First Amendment. While the court focused on issues of standing, I see a much more fundamental issue with both cases: The claim of a First Amendment violation. That amendment reads:
Many people claim that the Fourteenth Amendment somehow makes the First Amendment apply to the states, but the language of the Fourteenth Amendment does nothing to change the language of the First.
In my opinion, that makes the foundation of both of these cases very weak. They may have sued alleging violation of Article I, Section 6 of the New Jersey Constitution.
That is still a weak argument, since in neither case the plaintiff was prevented from speaking. Rather, what we have here is a deprivation of both liberty and property without due process of law.
While this argument can be laid at the feet of the School Boards, it would more properly be extended to Gov. Murphy.
Let’s look at the details of my argument for the rights of Mr. Falcone and Ms. Murray-Nolan being violated. Let’s start where this legal issue began, with Gov. Murphy’s executive order.
The Governor of New Jersey has the power to make sure the laws be faithfully executed. Therefore, for Gov. Murphy’s executive order to be valid, it must be allowed under New Jersey law. I am not an expert on New Jersey law, so let’s assume that the law allows the Governor to issue such an executive order. There’s still one very serious problem with that mandate: It deprives people of both their liberty and the property they have in their own body without due process of law.
Blanket mandates, such as those used by the State of New Jersey, violate due process because they do not safeguard the rights of the individual. There is no requirement someone be shown to have COVID-19 nor that they are contagious, before their liberty is infringed. As shown earlier in this article, the assumptions that supported the mask mandates were not based in rigorous scientific studies, but unsubstantiated statements from government agencies that do not legally exist. (The Constitution does not delegate to the United States the power to regulate public health, food, or drugs.)
Furthermore, in the United States, the government is supposed to have the burden of proof before they infringe on your rights. Since no probable cause was established that Mr. Falcone or Ms. Murray-Nolan were contagious, and therefore a danger to others, requiring them to wear masks violated their liberty. Also since wearing a mask can and does have an impact on the wearer, these mandates deprived them both of control of their property, namely their bodies. Even if we accept that at the time of these incidents, the medical establishment believed in the efficacy of wearing masks, the logic of mandates contradicts that assumption. After all, if masks were really that effective, why do they only work if everyone is wearing one? Since there was no due process either in the executive order creating the mask mandate or in its implementation, then the government-mandated health and safety measure was not, as the Circuit Court claimed, valid, and the school districts were not required to enforce them.
Since 42 USC §1983 states that “Every person who”, under color of law, deprives someone of a right protected by the Constitution or laws is liable, that would include not just the Governor, as the court stated, but both the board members and law enforcement as well.
I’m not saying this argument would have ultimately brought about a different outcome for Mr. Falcone or Ms. Murray-Nolan. However, imagine the scene where they entered the board meeting without masks. What if, rather than a general claim of speaking maskless being a constitutionally protected right, they could have provided both the board and law enforcement with a simple 1-2 page document pointing out that the governor’s executive order was unconstitutional and therefore void.
What if they could have stood in front of their boards and not only articulated their points in detail, but provided evidence both constitutional and judicial of the rightness of their point? What if, should law enforcement still have been engaged, they could show not only the unconstitutionality of the acts of the governor and the board, but their criminality as well?
Would the outcome of their situations have been different? We will never know. However, I for one have found that a well reasoned and supported case, especially with documentation, can have a profound impact on those we are trying to persuade.
Paul Engel is an Affiliate of Institute on the Constitution. He founded The Constitution Study in 2014 to help everyday Americans read and study the Constitution. Author and speaker, Paul has spent more than 20 years studying and teaching about both the Bible and the U.S. Constitution. Freely admitting that he “learned more about our Constitution from School House Rock than in 12 years of public school” he proves that anyone can be a constitutional scholar. You can find his books on the Institute on the Constitution Store (theamericanview.com), Amazon, and Apple Books. You can also listen to his weekday radio show on America Out Loud (https://americaoutloud.com/the-constitution-study). You can reach him at paul@constitutionstudy.com
]]>While looking through recent oral arguments at the Supreme Court, I stumbled across the case FBI v. Fikre. At first, I thought it was another simple procedural case, but something about it caught my attention. The oral arguments held before the Supreme Court were about whether Mr. Fikre’s rights were violated when he was placed on the No Fly List, and was not moot because he ad been removed from the list. As I started looking deeper into the case though, I found intrigue worthy of a Grisham novel.
Most Americans have heard of the “No Fly List”. Created after the 9/11 terrorist attacks, the “watch list” is actually two lists.
The Terrorist Screening Center, a division within the FBI’s National Security Branch, maintains a terrorism watchlist. Two components of that watchlist are the No Fly List, which contains the names of individuals who are prohibited from flying within, to, from, and over the United States, and the Selectee List, which contains the names of individuals who must undergo enhanced security screening before being permitted to board a flight.
FBI v Fikre – Petition for Certiorari
According to Laura K. Donohue in her book The Cost of Counterterrorism: Power, Politics, and Liberty, when the watch list was created, the No Fly and Selectee lists contained less than 1,000 names. By April, 2005, those lists contained over 70,000 names. Updated numbers are hard to obtain since the FBI keeps membership in the list secret, even from those on the list.
Individuals can appeal travel-related issues through DHS’s Traveler Redress Inquiry Program (TRIP). See 49 C.F.R. 1560.205. Before 2015, individuals who requested redress using DHS TRIP were not told whether they were on the No Fly List and were not given any reasons or evidence supporting their possible inclusion on that list. …
In 2015, the government revised DHS TRIP to include additional procedural safeguards. See ibid. United States citizens and lawful permanent residents seeking redress now are told whether they are on the No Fly List and, to the extent possible consistent with national-security and law-enforcement interests, the reasons for their status.
Fikre v. FBI (16-36072) – Ninth Circuit Court of Appeals – Opinion
Which brings us to Mr. Yonas Fikre and his encounter with the No Fly List and the FBI.
Fikre is an American citizen who, until 2009, lived in Portland, Oregon and worked for a cellular telephone company. In late 2009, Fikre traveled to Sudan to establish a consumer electronics business in East Africa. In April 2010, while still in Sudan, Fikre was approached by two FBI agents who questioned him about his association with the as-Saber Mosque in Portland and his commercial finances. The agents told Fikre that he had been placed on the No Fly List, which identifies individuals who are prohibited from flying into, out of, or over the United States and Canadian airspace by commercial airlines.
Fikre v. FBI (16-36072) – Ninth Circuit Court of Appeals – Opinion
A United States citizen travels to Sudan for work, where he is approached and questioned by two FBI agents. While I did not find the details in the Ninth Circuit opinion, it appears that the primary, if not only reason, the FBI questions Mr. Fikre was his association with a mosque and his business. Somehow, this was enough to place Mr. Fikre on the infamous No Fly List. Or was it?
The FBI agents offered to remove Fikre from the list if he became a government informant. Fikre refused.
Fikre v. FBI (16-36072) – Ninth Circuit Court of Appeals – Opinion
Here’s where red flags flew up for me. Is Mr. Fikre a danger to air travel, or merely a potential informant for the FBI? Either way, Mr. Fikre was unable to return to the country of his citizenship because he had been put on a list. But his tribulations were not over.
Fikre’s business took him to the United Arab Emirates (UAE) in September 2010. As recounted by Fikre, Emirati secret police seized him from the place where he was staying in June 2011 and transported him to an unknown location where he was imprisoned and tortured for 106 days. During this time, Fikre was interrogated about his connection to the as-Saber Mosque and the nature of his financial dealings.
Fikre v. FBI (16-36072) – Ninth Circuit Court of Appeals – Opinion
Why was the UAE interested in a mosque in Portland, OR?
One of the interrogators told Fikre that the FBI had requested his detention.
Fikre v. FBI (16-36072) – Ninth Circuit Court of Appeals – Opinion
Mr. Fikre was released by UAE officials in September 2011. Since he was unable to return home because of being on the No Fly List, he sought refuge in Sweden.
While the process for being placed on the No Fly List is shrouded in secrecy, the government was nice enough to provide a way to challenge your placement.
The Department of Homeland Security (DHS)’s Traveler Redress Inquiry Program (TRIP) allows individuals the opportunity to have the Transportation Security Administration review and, if appropriate, correct their files if it determines that a person has been erroneously placed on a watchlist.
Fikre v. FBI (16-36072) – Ninth Circuit Court of Appeals – Opinion
It appears, when it comes to the No Fly List, you’re considered guilty until proven innocent. That is, if you could actually find out you were on the No Fly List.
As initially implemented in 2007, the government responded to TRIP inquiries without confirming a traveler’s inclusion on the No Fly List. Fikre attempted in November 2013 to rectify his situation through TRIP, but the DHS neither confirmed nor denied his placement on the No Fly List in response to this first inquiry; it stated only that “no changes or corrections [we]re warranted at th[at] time.”
ikre v. FBI (16-36072) – Ninth Circuit Court of Appeals – Opinion
Basically, the United States government would neither confirm, nor deny, that Mr. Fikre was on the No Fly List, even though he was not allowed to board an airplane to the United States because he was on the list. Standard bureaucratic double-speak.
In 2015, the DHS modified TRIP to comply with the judgment in Latif v. Holder, 28 F. Supp. 3d 1134 (D. Or. 2014). The revised TRIP protocol includes additional procedural safeguards that were unavailable at the time Fikre filed his action. Requesters are now apprised of their presence or absence on the No Fly List and the unclassified reasons for their status. Applying the revised procedures, in February 2015 the DHS informed Fikre that he was and would remain on the No Fly List because he had been “identified as an individual who may be a threat to civil aviation or national security.” No other reasons were provided for the decision to maintain Fikre on the No Fly List.
Fikre v. FBI (16-36072) – Ninth Circuit Court of Appeals – Opinion
Eight years after its implementation, the Traveler Redress Inquiry Program now actually admits if someone is on the No Fly List. Now this program admits Mr. Fikre is, in fact, on the No Fly List. The only reason given is that someone thinks he is a threat to civil aviation or national security. Apparently, the concept of Due Process is as foreign to the FBI as the idea of liberty and justice for all.
What did Mr. Fikre do in response to this revelation from the FBI? He filed a lawsuit.
Fikre avers that these events damaged his reputation by stigmatizing him as a suspected terrorist and so strained his marriage that his wife divorced him while he was stranded outside of the country.
Fikre brought the instant suit against the government raising a variety of common law, statutory, and constitutional claims. As relevant here, Fikre alleged that the FBI violated his right to substantive due process by depriving him of his liberty interest in his reputation and international travel, and by conditioning his removal from the No Fly List upon his agreement to become a government informant. Fikre’s complaint also maintained that the FBI denied him procedural due process by placing and keeping him on the No Fly List without adequate notice and an opportunity to be heard. Fikre prayed for injunctive and declaratory relief for both due process claims and asked, among other things, for a declaration by the government that he should not have been added to the No Fly List.
Fikre v. FBI (16-36072) – Ninth Circuit Court of Appeals – Opinion
The court noted that Mr. Fikre’s original complaint contained 16 causes of action, but the appeal only dealt with his due process and Fourth Amendment claims.
This is when the next twist in our saga appeared.
The Defendants moved to dismiss the operative complaint and, shortly thereafter, notified Fikre that he had been removed from the No Fly List. In a joint status report filed at the district court’s direction, Fikre agreed that, to the extent he sought an injunction requiring the Defendants to remove him from the list, that claim was moot. Fikre contended, however, that he remained entitled to other injunctive and declaratory relief.
Fikre v. FBI (16-36072) – Ninth Circuit Court of Appeals – Opinion
Now that they’re being sued, the FBI removes Fikre from the No Fly List, then claims he no longer has a cause of action because he’s not on the list anymore. The Ninth Circuit Court noted:
The district court subsequently dismissed Fikre’s remaining procedural and substantive due process claims in a detailed decision. The court reasoned that the government’s removal of Fikre from the No Fly List was “a sufficiently definite action” to render his claims moot. In reaching this conclusion, the district court observed that the Defendants had publicly stated that Fikre was no longer on the No Fly List, that more than six months had elapsed since this change in status, and that the record did not indicate a lack of good faith on the government’s part. The district court also “emphasize[d]” that “the courthouse doors will be open to [Fikre]” were he to be reinstated to the No Fly List in the future.
Fikre v. FBI (16-36072) – Ninth Circuit Court of Appeals – Opinion
Not only did the District Court ignore the consequences of the FBI placing Mr. Fikre on the No Fly List, it actually claimed there was no lack of good faith on the government’s part. To my knowledge, the FBI has yet to produce any evidence of probable cause that Mr. Fikre was ever a threat to air travel or national security. Furthermore, the FBI tried to extort Mr. Fikre to become an informant in exchange for not only being removed from the list, but being allowed to go home. There is also testimony that the FBI engaged a foreign entity, the United Arab Emeries, to detain and torture Mr. Fikre in what appears to be an attempt to circumvent U.S. law and the Constitution. How much bad faith does the District Court need?
We reverse the district court’s dismissal of Fikre’s due process claims and remand for further proceedings.
Fikre v. FBI (16-36072) – Ninth Circuit Court of Appeals – Opinion
In 2018, eleven years after his saga began, the Ninth Circuit reversed the District Court’s decision of mootness. This means the case went back to the District Court to be heard. One might hope that Mr. Fikre’s ordeal was over, but no. The District Court again found Mr. Fikre’s case moot, although with a few modifications. Once again, Mr. Fikre appealed to the Ninth Circuit.
The panel reversed the district court’s dismissal on mootness grounds of Yonas Fikre’s substantive due process and non-stigma-related procedural due process No Fly List claims; vacated the district court’s dismissal of Fikre’s stigma-plus procedural due process claim; and remanded to the district court to consider, in the first instance, whether Fikre stated a viable stigma-plus procedural due process claim considering both his past placement on the No Fly List and his alleged inclusion in the Terrorist Screening Database.
Fikre v. FBI (20-35904) – Ninth Circuit Court of Appeals – Opinion
Meanwhile the District Court separated the stigma-related and non-stigma-related claims, the Circuit Court pointed out.
The panel held that because the government failed to follow the instructions given by this Court the last time Fikre’s case was before the court, see Fikre v. FBI (Fikre I), 904 F.3d 1033 (9th Cir. 2018), the district court erred by dismissing as moot Fikre’s No Fly List claims.
Fikre v. FBI (20-35904) – Ninth Circuit Court of Appeals – Opinion
What did the government fail to do?
In Fikre I, the Court held that an exception to mootness – the voluntary cessation doctrine – applied to Fikre’s No Fly List claim. On remand, FBI Supervisory Special Agent Christopher Courtright filed a declaration in support of the government’s motion to dismiss. The panel held that the Courtright Declaration did not provide the assurances specified by Fikre I as adequate to overcome the voluntary cessation to mootness. The government has assured Fikre only that he does not currently meet the criteria for inclusion on the No Fly List. It has not repudiated the decision to place Fikre on the list, nor has it identified any criteria for inclusion on the list that may have changed. Because Fikre I governs, the district court should not have dismissed the No Fly List due process claims as moot.
Fikre v. FBI (20-35904) – Ninth Circuit Court of Appeals – Opinion
So the FBI basically said “Oops”, and thought that would get them off the hook. Well, the Ninth Circuit didn’t buy that. And since the FBI did not buy the Ninth Circuit’s opinion, they appealed to the Supreme Court.
The court of appeals erred in holding that respondent’s claims challenging his placement on the No Fly List are not moot even though he was removed from that list seven years ago and the government has submitted a sworn declaration stating that he “will not be placed on the No Fly List in the future based on the currently available information.”
FBI v Fikre – Petition for Certiorari
Not surprising, the FBI seems to be ignoring those inconvenient facts found in the Ninth Circuit case. The reasoning behind their appeal? It’s that other circuits have found differently.
The court’s holding directly conflicts with decisions of the Fourth and Sixth Circuits that have found similar No Fly List claims moot upon the execution of declarations materially identical to the one in this case.
FBI v Fikre – Petition for Certiorari
Yet Sopan Joshi, attorney representing the FBI, stated in his opening remarks during oral arguments at the Supreme Court claimed:
Respondent’s No Fly List claims are moot. He’s not on the list. He hasn’t been on the list in eight years. And he won’t be put back on the list in the future based on the currently available information. That makes it absolutely clear that his return to the list for the same reasons he was put on it initially can’t reasonably be expected to recur.
FBI v. Fikre – Oral Arguments before the Supreme Court
How is it absolutely clear that Mr. Fikre will not be returned to the No Fly List for the same reason he was initially put on it, if the FBI refuses to identify the reason he was put on the list in the first place? And how can Mr. Fikre avoid being placed on the list if the FBI won’t identify what changed to have him removed from the list?
What at first seemed to be little more than a procedural case has really captured my attention. Intrigue, spy craft, and black lists reminds me of the Tom Clancy novels I used to enjoy. Imagine being stranded overseas, unable to return home, and not knowing the reason why? He was interrogated first by the FBI, and next by a foreign power’s secret police. Then, when you finally get your day in court, the government simply changes its mind and expects to get away scot-free.
This should be an interesting opinion to read. I wonder how many U.S. citizens have been captured by the No Fly List without any probable cause or due process? This is also not the first time a government has attempted to get away with illegal acts by changing things after the fact and calling the claims against them moot. All in all, it could be a very interesting opinion indeed.
Paul Engel is an Affiliate of Institute on the Constitution. He founded The Constitution Study in 2014 to help everyday Americans read and study the Constitution. Author and speaker, Paul has spent more than 20 years studying and teaching about both the Bible and the U.S. Constitution. Freely admitting that he “learned more about our Constitution from School House Rock than in 12 years of public school” he proves that anyone can be a constitutional scholar. You can find his books on the Institute on the Constitution Store (theamericanview.com), Amazon, and Apple Books. You can also listen to his weekday radio show on America Out Loud (https://americaoutloud.com/the-constitution-study). You can reach him at paul@constitutionstudy.com
I propose that all elections for the board members of non-profit corporations should be run by the state at taxpayer expense. After all, we already have taxpayer funded elections for private organizations. We call them “Primaries”.
While this year’s presidential primaries are pretty much a fait accompli, there are still hundreds, if not thousands, of primary elections that will be held over the next few months. In some cases the race is so partisan that the primary effectively decides the race and the general election is moot. What’s the purpose of these taxpayer funded private elections? Why to limit your choices on election day, of course. So why do we keep paying for someone else to take away our choices?
It may surprise many of you, but the word “primary” did not exist in the Constitution until 1964, with the ratification of the Twenty-Fourth Amendment.
The reason is quite simple. Though there were a few primaries in the United States as early as the 1840s, it wasn’t until the early 20th century that they became widespread. In fact, the modern primary is merely the latest attempt by political parties to control elections. Starting in the colonial period, and continuing into the 19th century, political parties widely used caucuses to choose their candidates for state and local offices. Although the use of caucuses declined in the 20th century, several states still use them to choose their state’s political parties’ candidates for President. Concerns about abuses of the caucus system led state political parties to adopt conventions as the method of choosing their candidates. However, abuses of this system has led to their general demise, with the exception of the national parties choices of their presidential candidate. For the most part, conventions have been replaced by primaries elections in the 20th century. The process of political parties choosing their candidates became more and more influential as we changed how we voted.
For the first 50 years of our history, people did not vote by secret ballot. Rather, people voted “viva voce”, or by voice. This helps explain why Article II of the Constitution requires Presidential Electors to vote by ballot.
Imagine walking into a courthouse, swearing on a Bible that you were who you claimed to be, and had not already voted, then announcing in front of the entire room your name and who you were voting for? That’s how it was done until the early 19th century. While this may sound crazy to modern ears, the party atmosphere that surrounded voting probably explains why turnouts routinely reached as high as 85%.
In the early 19th century, states started adopting the paper ballot, but not like the ones we see today. The original paper ballot was nothing but a blank scrap of paper, which you would write in your candidate’s name and drop it in a box. In an attempt to be helpful, Newspapers began printing blank ballots, listing only the offices which were up for election. Voters could clip these ballots out of the paper, write in their candidates name, and drop them in the ballot box. How long do you think it was before political parties figured out a way to influence the vote? If your answer is “Not long”, you’d be correct.
By the mid-19th century, state Democrat and Republican parties were printing flyers with not only the offices, but the parties candidate already filled in. It was legal for people to simply drop these pre-printed “tickets” in the ballot box, which certainly made voting down the party line easier. This, of course, led to claims of fraud, which led the states of New York and Massachusetts in 1888 to require voters to only use ballots printed by the state. These ballots resemble what we see today, listing not only the offices, but all the candidates who were running for those offices. By using state laws to hamper a candidate’s ability to be on said ballot, the political parties have been able to regulate who you get to vote for in the actual elections.
States do allow write-in voting, but the laws often make it extremely difficult to win a race that way. For example, most states have a requirement that the candidate’s name be legible, written a certain way, and that it be spelled properly. Joe Biden ran a write-in campaign for the Democratic primary in New Hampshire. I wonder if the rules required people to write in “Joe Biden”, “Joseph Biden”, “Joseph R. Biden”, or “Joseph Robinette Biden”? Not only does a write-in candidate have to convince people to vote for them, they also have to train them to spell their name correctly. That is probably why, since the general adoption of state printed ballots, only two congressional races have been won by a write-in candidates, Strom Thurmond in 1954 and Charlie Wilson in 2006.
Now the states are not only in control of who is on the ballot, but allow the state political parties to make that decision for them. This creates a very incestuous relationship, where those in office make the laws that make sure the political parties have an advantage. Which leaves us with the situation where the political parties tell us which of their members the people will be “allowed” to vote for. Of course we’re told that it’s the people in the parties who are choosing their candidates, but the last two presidential elections exposed that to be a lie. In both 2016 and 2020, Bernie Sanders was leading the race for the Democratic nomination for President, only to have his chance taken away by party machinations. While that might be the most blatant example, it certainly isn’t the only time political parties have influenced the nomination process. Through money, power, and influence, the American people are told who would be the “most electable” candidate or who would best represents “the party”, all to get us to choose the candidate the party wants. The higher the office, the more time, money, and influence the parties expend to tell you how to vote. By the time we get to Election Day, most of the decisions have already been made, because most people vote for their party’s candidate. And as a last insult to our injury, the states have their own taxpayers paying to help take away your choice. We’ve even created a phrase I hear almost every election: We’re told we have to choose the lesser of two evils. Of course it’s never mentioned that the two evils were chosen by the political parties.
Since these primaries are run by the state, the taxpayer gets to pay the bill. Not just the printing of the ballot, but insuring they are distributed to each and every county. Then, of course, the county has to pay to make sure the ballots are available at each polling station. Then there’s the manpower needed at those polling stations, a cost that is ever increasing as election day has been expanded to election week, and even election month. Then there are the ballot collection, counting, and reporting. And let’s not forget what happens if there’s a run-off or a problem? Paid for by the good ole’ We the People, run by the state, and controlled by the political parties. All so that on the actual Election Day you are psychologically directed to choose only from those candidates the political parties have approved.
What most people don’t seem to realize is that your state’s political parties are non-profit corporations. Which means that primaries are actually elections for private organizations, the political parties. So not only are you the taxpayer paying for elections for private organizations, your own state laws are used to allow those private organizations to limit who you see on the ballot. How corrupt does that sound to you?
I’ve seen several people make suggestions to solve this problem, and a few states have tried. Some states have an “Open Primary”, where an individual can vote in a primary without being affiliated with that party. Some states have started using “Ranked Choice Voting”, where people choose up to three candidates, followed by a rather complicated process that is used to weed the selection down to one. Others use a “Jungle Primary”, also known as a “Cajun Primary” or “Louisiana Majority Vote” system, where all candidates are on the ballot. If an individual gets a majority of the vote for an office, they win. If not, then there is a run-off election between the top two vote getters. This has the advantage of getting rid of the primary, but often requires a later run-off vote.
Personally, I like the idea of just having all of the candidates eligible and running for an office on the ballot, like we see in both Ranked Choice Voting and Jungle Primaries. Of the two, I much prefer the latter. Although it does frequently delay the decision, it doesn’t have the complicated “whittle down” process of Ranked Choice, and I think the cost in both time and money for a Louisiana Majority Vote are offset by the improved ability to accurately represent the will of the voters. Maybe there’s another idea or an even better system. If there is, I’m not aware of it, but would be interested. So if you have what you think is a better idea, please let me know.
It seems this idea of the political primary or its variants, have become so much a part of our election process, most people don’t even realize it’s a relatively new thing. While I have no problem with political parties choosing their preferred candidate, I am opposed to them doing all they can to limit my choices to those candidates.
Imagine walking into a voting booth, and the ballot listing all the names of the people who have qualified to run for office? There still needs to be some vetting process for candidates, some paperwork to request access to the ballot, and probably some process to insure there is enough support to warrant being included. Beyond that, let all comers be on the ballot and let the people decide. I know what I’m saying sounds radical, but really it’s just a return to how things used to be. I’m not saying we should go back to voice voting, but shouldn’t We the People be the deciders of who we can vote for, rather than the political parties? Don’t we denigrate countries like Iran and Venezuela where political actors limit the choices on the ballot? I’m not naive enough to think such a change could happen in the current spirit of revenge between our two largest political parties. For everyone who wished for a chance to vote for a third-party candidate though, shouldn’t we be working to make it more possible, rather than following those fighting tribes further down the road to the ruin of our public liberty?
Paul Engel is an Affiliate of Institute on the Constitution. He founded The Constitution Study in 2014 to help everyday Americans read and study the Constitution. Author and speaker, Paul has spent more than 20 years studying and teaching about both the Bible and the U.S. Constitution. Freely admitting that he “learned more about our Constitution from School House Rock than in 12 years of public school” he proves that anyone can be a constitutional scholar. You can find his books on the Institute on the Constitution Store (theamericanview.com), Amazon, and Apple Books. You can also listen to his weekday radio show on America Out Loud (https://americaoutloud.com/the-constitution-study). You can reach him at paul@constitutionstudy.com
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For decades, Congress has been turning over more and more lawmaking power to the Executive Branch. Frequently this is done by legislation giving the head of some agency or department the power to establish rules which have the force of law. What happens when the legislation doesn’t explicitly say that such-and-such department has the power to make a certain rule? To deal with this, courts have come up with something called “Chevron Deference”. While the case Loper Bright Enterprises, v Gina Raimondo, Secretary Of Commerce deals with who pays the salaries of federal observers on fishing boards, a more fundamental questioning of the court’s deference to government agencies’ interpretation of law is the cornerstone of the petitioner’s arguments.
Let’s start off with a discussion of what is commonly called “Chevron”. This precedent comes from the 1984 case Chevron U.S.A., Inc. v NRDC.
The primary holding of the Chevron case is:
The idea seems simple enough. Government agencies must follow any clear legislative statements when they apply a law, However, if there is an ambiguous situation, the courts will defer to the interpretation of the agency as long as it’s reasonable. After all, you cannot expect any man-made organization to be able to predict every possible permutation of every situation. So it makes sense, if something in a law is ambiguous (capable of being understood in two or more possible senses or ways), somebody has to decide. And technically, there are three possibilities as to who that might be. The courts, the agency, or Congress. Since 1984 the courts have deferred to the agency to make such decisions. As is often the case though, give an agency an inch and they’ll take a mile. Such is true in Loper Bright Enterprises, v Gina Raimondo, Secretary Of Commerce.
The petitioners, Loper Bright Enterprises, et. al., were represented at the Supreme Court by Paul D. Clement. He starts his argument with the specifics of the case.
Congress established by law that domestic fishing vessels had to be monitored to insure they follow the law, but they didn’t specifically say who was to pay for the monitoring. The Department of Commerce decided that since Congress didn’t say they couldn’t make the fishing vessels pay the monitor’s salaries, they had the statutory authority to do so. As you would expect, the petitioners disagreed.
Both the Administrative Procedures Act (APA) and the concept of constitutional avoidance (federal courts should avoid a constitution based decision when a statutory or regulatory one is available) state that the court review the case de novo, or anew, to determine the best understanding of the law. Though that is exactly what Chevron Deference by-passes.
Representing the government is Solicitor General Elizabeth B. Prelogar. She opened her defense with.
While that belief is commonly held, the purpose of Article III courts is not to arbitrarily say what the law is, but to decide controversies based on those laws. Since the specifics of those laws need to be considered when applied to the specifics of any case, there is obviously some interpretation that goes along with the role of a judge. Gen. Prelogar then sets up a straw-man for the court.
First Gen. Prelogar attempts to redirect the question at hand. Petitioners are questioning the deference to the agency when Congress is silent, not when they have explicitly delegated authority to an agency. This is based on two fundamental errors by Gen. Prelogar. First, nothing in the Constitution delegates to Congress the authority to delegate to another the power to “fill in the gaps” in their legislation. Second, neither does the Constitution delegate to the executive branch the authority to fill in those gaps.
Still, there is a more fundamental constitutional flaw in Gen. Prelogar’s argument.
Gen. Prelogar’s straw-man doesn’t show Congress vesting authority to interpret the law, but to apply the law. In her argument, Congress gives the “Administrator” authority to define the term “stationary source”, not to interpret the law whichever way they want. To make matters worse, Gen. Prelogar claims that when Congress does not tell an agency they can do something, that means they have the power to do it. This not only violates the plain language of the Constitution, but places the executive agencies above the very Congress that created it. After all, if any agency can interpret for itself what the law means, their word becomes law. Only after those harmed by such totalitarian rule have spent years and untold dollars pursuing a court case, can they expect any sort of redress of grievance for those agencies’ actions, and then only if the court finds the agencies’ interpretation “unreasonable”. A very fickle standard indeed. Should Congress draft new legislation to restore its intent to the law, we once again would have a long and fraught process, one that does not guarantee that the original intent of the law is applied.
After each attorney presented their case, the justices had a chance to ask them questions.
Here we see Justice Sotomayor using the same sleight of hand that Gen. Prelogar did. Petitioners are not questioning the agencies definition of “reasonableness”, but their actions without ANY statutory language. Remember, the law did not give discretion to the Dept. of Commerce when it comes to who pays the salary for monitors, it was silent on the subject.
It’s not the role of the agencies or the courts to speak for Congress. If Congress did not speak, it did not speak. It’s then up to Congress to decide if it wishes to speak on the matter. What Justice Kagan wants is to subvert the separation of powers and to assume the role of medium in order to divine what Congress wants. Even Congress doesn’t think that’s a good idea.
When the actor you’re claiming to fill in the gaps for, or at least part of that actor, is telling you that you’re wrong, that should pretty much seal the deal. Not for Justice Kagan.
Oh contraire, Ms. Kagan. Chevron is not the creation of Congress, but of the very court you currently sit on. Yes, Congress could have passed a law that more tightly defines who decides ambiguities, and probably should have, but that would certainly take longer than tomorrow. And just what would keep the courts from simply reinterpreting Congress’ intent in the future?
Again, Mr. Clement brings us back to the point. Because of Congressional laziness, even dereliction of duty, they have given up the work of actually writing complete laws, leaving the executive agencies to “fill in the gaps” in their legislation. While that may be the fundamental intent in some cases, it is a violation of the Constitution of the United States. By deferring all decisions to the agencies, the courts too have violated their oaths to support the Constitution.
Did you catch that switch-a-roo? Justice Thomas ask Gen. Prelogar how to tell the difference between delegation and silence, and she switched it to silence and ambiguity.
Justice Thomas’ question has a very simple answer. Delegation is a positive statement “as defined by the Administrator”. Silence is the absence of a statement.
The entire issue of both this case and Chevron comes down to a single question: Is governmental power positively or negatively defined? Does a government actor have to have a positive statement that they can do something, or are they free to act unless there is a specific prohibition? When it comes to the federal government the answer should be clear:
The United States only has the powers delegated to it by the Constitution. Since, as Article I, Section 1 of the Constitution states:
All power for making law (legislative powers) is vested in Congress. They do not have the power to delegate lawmaking power to executive agencies. And since Article III only delegates to the courts judicial power and the power to decide controversies, they do not have the power to “fill gaps” as Gen. Prelogar claims.
Chevron appears to have been an attempt to “keep things going” when Congress was silent or ambiguous on a specific issue. If Congress leaves gaps in their legislation, it’s up to Congress, the representatives of the people and the states, to fill them in. It’s most certainly not within the powers delegated to the executive or judicial branches. We’ll have to wait and see if a majority of the justices on the court recognize the usurpation of powers Chevron Deference has become.
Paul Engel is an Affiliate of Institute on the Constitution. He founded The Constitution Study in 2014 to help everyday Americans read and study the Constitution. Author and speaker, Paul has spent more than 20 years studying and teaching about both the Bible and the U.S. Constitution. Freely admitting that he “learned more about our Constitution from School House Rock than in 12 years of public school” he proves that anyone can be a constitutional scholar. You can find his books on the Institute on the Constitution Store (theamericanview.com), Amazon, and Apple Books. You can also listen to his weekday radio show on America Out Loud (https://americaoutloud.com/the-constitution-study). You can reach him at paul@constitutionstudy.com
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Have you noticed how often the government of the United States decides how you should live your life? It seems everything from food and drugs to the light-bulbs in your home are regulated by Uncle Sam. And whenever some bureaucrat deems it necessary; they simply roll out another “rule” or “regulation” to clamp down on the American people. It seems though, that one of those agencies may have bitten off more than they could chew, at least according to the Fifth Circuit Court of Appeals. In the case Louisiana, et. al. v. U.S. Department of Energy the court decided that one of the DOE’s rules was illegal, but was it unconstitutional?
When Congress decides it wants to exercise a power not delegated to it by the Constitution, it usually reaches for the General Welfare Clause:
They seem to forget the fact that this clause empowers Congress to collect taxes, not to regulate. They also seem to ignore that it only allows Congress to collect taxes for the general welfare of the United States, the very same proper noun used in the Tenth Amendment.
Does this clause of the Constitution allow Congress to do whatever it thinks would be good for America? Not according to James Madison.
Looks like Mr. Madison was correct. Once Congress believed they could apply money indefinitely to the general welfare, they took over everything, including regulating dishwashers and washing machines.
What led up to the 2022 decision by the Department of Energy to tighten regulations for dishwashers and laundry machines? Why did several states including Louisiana, Alabama, Arkansas, Kentucky, Missouri, Montana, Oklahoma, South Carolina, Tennessee, Texas and Utah file suit?
Apparently the Competitive Enterprise Institute thought of a way to get around the DOEs restrictions on energy and water usage. The petitioned the DOE to make a rule that would create a new class of dishwasher that would not need to comply with DOE’s energy and water restrictions.
The DOE adopted the rule proposed by CEI. Apparently, DOE liked the rule so much, they created another rule for laundry machines, or what most of us call washing machines.
Does the DOE thinks it’s valuable to consumers to minimize cycle time in such appliances? Apparently the DOE is more interested in how long an appliance runs than how well. So far so good, until the Biden Administration takes office.
In come the politicians, apparently overriding the rules of the bureaucrats, this time to the detriment of the people who actually purchase and use dishwashers and washing machines. Then a group of states decide to stand up and, if not come to the rescue, at least push back on the repeal of these new rules.
What was the basis of the state’s lawsuit? What was the Fifth Circuit asked to decide?
Part of the law Congress passed to regulate how agencies create rules and regulations is known as the Administrative Procedures Act or APA.
If a court finds that an agency acts in an arbitrary or capricious way, or beyond their legal authority, it must hold those actions as unlawful, therefore deciding for the plaintiff who sued.
Things aren’t looking so good for the Department of Energy at this point.
Basically, the court found that the DOE tripped over itself in two primary areas; their legal powers and the impact of the Repeal Rule. Let’s look at these individually.
First, there is the question of whether or not the Energy Policy and Conservation Act of 1975 delegates to the Department of Energy the authority to regulate water use.
So first, the court found that the Department of Energy did not have the statutory authority to regulate water use in these appliances under the EPCA. (See the Constitutionality of the DOE for more on this.) What about the second problem the court found?
Strike two for the Department of Energy. It appears that not only has the DOE gone beyond its statutory powers, but in the name of being energy efficient, their latest rules actually promote the use of more energy and water to do the same job.
According to the court, since the Repeal Rule was outside of the DOE’s statutory authority and did not fulfill the requirements of the policy, that policy is arbitrary and capricious, and therefore did not comply with the Administrative Procedures Act.
While the striking down of the Repeal Rule is a good thing, there’s one very important point the court missed.
Look all you want, but you will not find the power to conserve energy supplies, improve energy efficiency, or conserve water as a power delegated to the United States. You may be thinking, but what about the international energy program, that was probably done via treaty, which makes it the supreme law of the land, right?
No. The Supremacy Clause states:
Only treaties made under the Authority of the United States are the supreme law of the land. The United States does not have the authority regulate energy or water supplies. Therefore, any treaty that may have been signed is not within the authority of the United States, not the supreme law of the land, and as an unconstitutional act, void.
In fact, since regulating energy is not a power delegated to the United States, the legislation that created the Department of Energy is an unconstitutional act, and therefore also void.
So while the court came to mostly the right conclusion, their failure to consider the constitutionality of the Department of Energy leave the American people with the false belief that the Department of Energy is legitimate and that their regulations have the force of law. This in spite of previous court decisions to the contrary.
Rather than dealing with the unconstitutionality of the Repeal Rule, they merely turned it back over to the illegal agency that created it in the first place.
This is why it’s so important for you to read and understand the Constitution for yourself. Not only so you can recognize these unconstitutional acts, but so you can prepare yourself to defend and assert your rights, including the right to have the supreme law of the land faithfully enforced.
Paul Engel is an Affiliate of Institute on the Constitution. He founded The Constitution Study in 2014 to help everyday Americans read and study the Constitution. Author and speaker, Paul has spent more than 20 years studying and teaching about both the Bible and the U.S. Constitution. Freely admitting that he “learned more about our Constitution from School House Rock than in 12 years of public school” he proves that anyone can be a constitutional scholar. You can find his books on the Institute on the Constitution Store (theamericanview.com), Amazon, and Apple Books. You can also listen to his weekday radio show on America Out Loud (https://americaoutloud.com/the-constitution-study). You can reach him at paul@constitutionstudy.com
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We begin with the basis of the multiple claims that Donald Trump is ineligible to hold federal office under Section 3 of the Fourteenth Amendment to the Constitution of the United States. Most of these suits have been filed by a single person, John Anthony Castro, a candidate for the republican nomination for President with an extremely small chance of success. To date, Mr. Castro has filed suites in Arizona, Idaho, Kansas, Montana, Nevada, New Hampshire, North, Carolina, South Carolina, Utah, and West Virginia. Interestingly enough, it does not appear that Mr. Castro has filed a suit in his home state of Texas. In addition, the group Citizens for Responsibility and Ethics in Washington has filed suit in Colorado, and Robert Davis has filed suit in Michigan.
Meanwhile, the Secretary of State of the State of Maine has determined, under state law, that Donald Trump is ineligible to be on the ballot because of his participation in events at the capitol on January 6th.
While there are subtle differences between these suits, they are all based in a claim that Donald Trump is ineligible to hold federal office for participating in an insurrection on January 6th, 2021.
When most people think of the Fourteenth Amendment, they generally focus on the first section. That covers things like citizenship, due process, and equal protection of the law, while the argument being made in the states comes out of Section 3:
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
U.S. Constitution, Amendment XIV, Section 3
While the most basic question that should be asked is did Donald Trump incite, assist, or engage in a rising or rebellion against the Constitution of the United States, there are other things that need to be considered as well.
I’m sure some of you are wondering, does Mr. Castro, a resident of Texas, have standing to bring suit in these other states. The short answer is yes. As a candidate for the republican nomination for the Presidential election, it’s expected that Mr. Castro would logically compete for the votes in all 50 states. Therefore, if Mr. Trump is ineligible for office in any, it would increase what little chance Mr. Castro has of winning delegates in that state.
One of the arguments being made is that Donald Trump is not subject to Section 3 because the office of President is not listed.
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President,
U.S. Constitution, Amendment XIV, Section 3
The Fourteenth Amendment lists the three offices elected by the people of the United States, Senator, Representative, and elector for President and Vice-President. Since neither the President nor the Vice-President are elected by the people, they are not included in this part of the list. However, that’s not the entire list.
No person shall … hold any office, civil or military, under the United States
U.S. Constitution, Amendment XIV, Section 3
This is where things get a little tricky. Some people claim that the President is not a civil officer,
By this term are included all officers of the United States who hold their appointments under the national government, whether their duties are executive or judicial, in the highest or the lowest departments; of the government, with the exception of officers of the army and navy.
Civil Officer – The Free Legal Dictionary
Therefore the President is not subject to Section 3. But that’s not what the Constitution says.
No person … hold any office, civil or military, under the United States
U.S. Constitution, Amendment XIV, Section 3
It seems difficult to say that the office of the President is not an office under the United States.
An office is a right to exercise a public function or employment, and to take the fees and emoluments belonging to it.
Office – The Free Legal Dictionary
There is one other area where I see a lot of misunderstanding when it comes to Section 3 of the Fourteenth Amendment, and that is the need to have perviously taken an oath.
who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States,
U.S. Constitution, Amendment XIV, Section 3
Just because someone has participated in an insurrection or rebellion does not disqualify them from holding office under the Fourteenth Amendment. They must have previously taken an oath to support the Constitution of the United States as a member of Congress, an officer of the United States, or as a member of the legislature or officer of any state. I don’t know of anyone claiming the Donald Trump did not take an oath to support the Constitution of the United States when he assumed the office of President, but it does shoot holes in the claim that the Presidency is not an office of the United States.
Which leads us to the crux of the matter. Did Mr. Trump engage in insurrection or rebellion?
shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.
U.S. Constitution, Amendment XIV, Section 3
This entire argument rests on the claim that the events of January 6th, 2021 was an insurrection. That Donald Trump helped to organize the event, and that when he said,
I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.
Donald Trump Speech “Save America” Rally Transcript January 6
he really meant for people to overturn the government of the United States. After all, that is what an insurrection is.
A rising or rebellion of citizens against their government, usually manifested by acts of violence.
Under federal law, it is a crime to incite, assist, or engage in such conduct against the United States.
Insurrection – The Free Legal Dictionary
Since Donald Trump spoke to the group that would walk from the Ellipse to the Capitol, it would be difficult to say that he did not engage in the demonstration. And though he did acknowledge that people would be walking to the Capitol, he neither encouraged them to do so, nor to act in an illegal fashion. Acknowledging that people would be peacefully and patriotically assembling to petition their representatives for a redress of the grievances they perceived, was in no way an attempt to rebel against their government. Since at least five (5) states violated the Constitution by appointing electors for President in a manner other than the one determined by their state’s legislature, they were asking their members of Congress to enforce the Constitution which created the government of the United States, even though the governments of those states refused to do so.
The cases against Donald Trump are fundamentally based on a misunderstanding. Granted, that misunderstanding has been promulgated and promoted by supporters of a political agenda, it’s a misunderstanding nonetheless: That the government of the United States is sovereign and therefore above the law.
The government of the United States did not create the United States. Both the United States and its government are a creation of a compact between the states: The Constitution. No action by the United States is the supreme law of the land unless it is founded on the Constitution of the United States.
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land;
U.S. Constitution, Article VI, Clause 2
To claim that the demonstration on January 6th, 2021 was an insurrection requires the assumption that political parties are the authority in the United States. At least according to Noah Webster.
A rising against civil or political authority; the open and active opposition of a number of persons to the execution of a law in a city or state.
Insurrection – Webster’s 1828 Dictionary
For a rising in the United States to be insurrection, it must be against a legitimate civil or political power. As I’ve already shown, at least five states were exercising an illegitimate power to appoint electors for President, since the manner of choosing them was established by the judicial or executive branch of the state government, not its legislature. Furthermore, the vast majority of the crowd was not looking to overturn the Congress or even the Presidency, but what was evidently the flawed and corrupt elections in several of the states. Even those who were convinced that Donald Trump had won and wanted him installed as President were not committing insurrection, since they were not trying to remove someone from office, but questioning the process by which he would be placed in it. How can the United States call itself a republic if the people in whom that sovereign power comes are not allowed to question the elections of their representatives? How can a calling for following the supreme law of the land be an insurrection against that law and the government it created?
Add to all this the obvious political biases in everything from the reporting on the event to the claims made by the political actors. After all, when thousands shutdown highways, burned effigies, and stated that “Donald Trump is not my President”, no one claimed they were committing insurrection. When violent demonstrations rampaged through Washington, D.C. in 2020, including the setting of fires across the street from the White House, those who call for such demonstrations were not accused of insurrection.
While the Fourteenth Amendment does not require someone to be convicted of insurrection, it does claim someone must have engaged in such a thing. In the United States we are supposed to have due process. That includes the assumption of innocence and the government bearing the burden of proof. Yet to date the only “proof” provided in support of this claim of insurrection have been misquotes, misrepresentation, and outright lies about the action of the majority of the demonstrators. Yes, some did force their way though a barrier, but that is trespassing not insurrection. There is video evidence that the majority of those who entered the capitol did so peacefully and with the consent of the Capitol Police officers there at the time. Congress was not forcibly removed, but evacuated due to an abundance of caution. In fact, Congress returned later that day to observe the rest of the counting of the votes by the electors for president.
So who has engaged in insurrection? While those who have harassed the people for the sin of being in Washington, D.C. on January 5th through 7th have committed crimes, insurrection is not one of them. Those agents of the federal government who have used abusive force, including heavily armed teams with overwhelming firepower to take someone into custody for non-violent and misdemeanor allegations, have committed crimes but not insurrection. Even those who are in the media, or who is or is not in the office of President doesn’t make the government. While some of the actors in this drama we’ve been reviewing may come close, insurrection must be a rejection of the government, not of those in office. Otherwise the United States is just another banana republic, run by emotions rather than the rule of law. George Washington warned us what would happen if we allow our political partisanship to rule our emotions:
The alternate domination of one faction over another, sharpened by the spirit of revenge, natural to party dissension, which in different ages and countries has perpetrated the most horrid enormities, is itself a frightful despotism.
Washington’s Farewell Address 1796
If we continue down this road, then insurrection will no longer be political hyperbole used to promote an agenda. It will lead to something much, much worse.
It serves always to distract the public councils and enfeeble the public administration. It agitates the community with ill-founded jealousies and false alarms, kindles the animosity of one part against another, foments occasionally riot and insurrection.
Washington’s Farewell Address 1796
Is that the future you want for your children?
Paul Engel is an Affiliate of Institute on the Constitution. He founded The Constitution Study in 2014 to help everyday Americans read and study the Constitution. Author and speaker, Paul has spent more than 20 years studying and teaching about both the Bible and the U.S. Constitution. Freely admitting that he “learned more about our Constitution from School House Rock than in 12 years of public school” he proves that anyone can be a constitutional scholar. You can find his books on the Institute on the Constitution Store (theamericanview.com), Amazon, and Apple Books. You can also listen to his weekday radio show on America Out Loud (https://americaoutloud.com/the-constitution-study). You can reach him at paul@constitutionstudy.com
One of the most common ways for an American to seek a redress for some grievance is to file a law suit. This has made the United States a very litigious society. I was not able to determine the number of lawsuits filed, but in 2023 there were more attorneys in the United States (1.33 million) than doctors (1.08 million). As you might imagine, it’s unlikely that all of these lawsuits are legitimate.
Take for examples the case of Acheson Hotels, LLC v. Laufer. In this case, Acheson Hotels claims that Deborah Laufer filed a lawsuit against them not because she was harmed by their hotel, but because she is an activist using the Americans with Disability Act to harass companies who do not advertise whether or not they have handicapped accessible rooms. While the Supreme Court found that the case was moot, both the facts of the case and the courts decision points to what appears to be a case of Ms. Laufer using lawsuits for both revenge and profit.
The fundamental question the Supreme Court was asked to decide in Acheson Hotels, LLC v. Laufer was standing. Did Ms. Laufer have standing to sue Acheson Hotels? The Free Legal Dictionary defines standing as:
Standing, sometimes referred to as standing to sue, is the name of the federal law doctrine that focuses on whether a prospective plaintiff can show that some personal legal interest has been invaded by the defendant. It is not enough that a person is merely interested as a member of the general public in the resolution of the dispute. The person must have a personal stake in the outcome of the controversy.
A person cannot sue simply because they see something wrong; they have to have a personal stake in the issue at hand. Which brings us to the opinion in this case.
Deborah Laufer has sued hundreds of hotels whose websites failed to state whether they have rooms accessible to the disabled. As the sheer number of lawsuits suggests, she does not focus her efforts on hotels where she has any thought of staying, much less booking a room. Instead, Laufer systematically searches the web to find hotels that fail to provide accessibility information and sues to force compliance with the Americans with Disabilities Act of 1990 (ADA), 104 Stat. 327, 42 U. S. C. §12101. Ordinarily, the hotels settle her claims and pay her attorney’s fees, but some have resisted, arguing that Laufer is not injured by the absence of information about rooms she has no plans to reserve. Only plaintiffs who allege a concrete injury have standing to sue in federal court. Laufer, these hotels have argued, is suing to enforce the law rather than to remedy her own harms.
It appears rather obvious that Ms. Laufer had no intention to book rooms at most of these hotels, or any at all. As Justice Barrett, who wrote the opinion, noted, it seems Ms. Laufer was looking to force hotels to comply with the Americans with Disabilities Act. In other words, Ms. Laufer was acting as a federal vigilante, and quite a prolific one at that.
Laufer has singlehandedly generated a circuit split. The Second, Fifth, and Tenth Circuits have held that she lacks standing; the First, Fourth, and Eleventh Circuits have held that she has it. We took this case from the First Circuit to resolve the split.
In fact, Ms. Laufer has brought so many suits, in so many jurisdictions, that she has created her own circuit split regarding her standing. The Supreme Court took the case in order to resolve said split.
After we granted review, the case took an unusual turn. In July, the United States District Court for the District of Maryland suspended Laufer’s lawyer, Tristan Gillespie, from the practice of law for defrauding hotels by lying in fee petitions and during settlement negotiations. … It based the suspension on a report finding that Gillespie demanded $10,000 in attorney’s fees per case even though he used “boilerplate complaints.”…
Following these revelations, Laufer voluntarily dismissed her pending suits with prejudice, including her complaint against Acheson in the District of Maine. … She then filed a suggestion of mootness in this Court. At this point, Acheson had already filed its principal brief on the standing issue, and we deferred a decision on mootness until after oral argument.
It seems that Ms. Laufer’s original attorney, Tristan Gillespie, was “cooking the books” and defrauding the companies that agreed to settle rather than go through the time and expense of a trial. After Mr. Gillespie was suspended, Ms. Laufer dismissed her pending suits, including the one against Acheson, with prejudice, meaning she could not refile the case. She then suggested that, since she had no case pending against Acheson Hotels, the case they filed against her was moot, i.e., no longer meaningful. Since the plaintiffs had already filed their briefs, the court decided to hold their decision on mootness until they heard oral arguments.
Ms. Laufer did not say the court must dismiss for mootness, but that it could, if it wished, decide the jurisdictional issue at hand. Acheson Hotels on the other hand, stated it was quite important for the court to deal with the matter, since mooting the case would leave untold hotels exposed to potential malicious prosecution from Ms. Laufer and others. Justice Barrett stated that the court was sensitive to Acheson’s concerns, but had no proof that Laufer dropped her case to avoid their review. For that reason, the court decided:
The judgment is vacated, and the case is remanded to the United States Court of Appeals for the First Circuit with instructions to dismiss the case as moot.
In addition to the opinion of the court, Justices Thomas and Jackson offered concurring opinions.
Deborah Laufer has filed hundreds of lawsuits against hotels she has no intention of visiting, claiming that their websites lack accessibility information mandated by a federal regulation. At both parties’ request, this Court agreed to answer a question that has divided the Courts of Appeals: whether plaintiffs like Laufer have standing to bring these claims. The Court decides not to decide that question because, after briefing began, Laufer voluntarily dismissed her claim in the District Court. I would answer this important and recurring question, which, as all agree, we have the authority to do. And, I conclude that Laufer lacks standing.
Justice Thomas noted that the court agreed it has the authority to decide if Ms. Laufer, along with plaintiffs like her, have standing to sue. The court decided to punt on that question, simply because Ms. Laufer voluntarily dismissed her claim against Acheson Hotels. In Justice Thomas’ opinion, Ms. Laufer lacks the standing necessary to pursue such litigation.
The District Court concluded that Laufer lacked standing and dismissed her complaint. The First Circuit reversed, relying primarily on this Court’s holding in Havens Realty Corp. v. Coleman, 455 U. S. 363 (1982), that a tester had standing to sue under the Fair Housing Act. …
Laufer lacks standing because her claim does not assert a violation of a right under the ADA, much less a violation of her rights. Her claim alleges that Acheson Hotels violated the ADA by failing to include on its website the accessibility information that the Reservation Rule requires. Yet, the ADA provides that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the . . . services . . . of any place of public accommodation.” 42 U. S. C. §12182(a). In other words, the ADA prohibits only discrimination based on disability—it does not create a right to information.
While agreeing that the case was moot, Justice Jackson disagreed with the other part of the opinion of the court.
I agree with the Court that this case is moot and that it should be resolved on that basis. But the Court goes further, ordering vacatur of the judgment of the Court of Appeals under United States v. Munsingwear, Inc., 340 U. S. 36 (1950). … In my view, when mootness ends an appeal, the question of what to do with the lower court’s judgment, if anything, raises a separate issue that must be addressed separately.
In Justice Jackson’s view the question of vacating the opinion of the First Circuit Court of Appeals was not decided as a separate fact.
So what are we to make of all of this? Let me start with a question the court did not even consider: That the Americans with Disabilities Act is unconstitutional. The ADA states…
It is the purpose of this chapter:
- to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities;
- to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities;
- to ensure that the Federal Government plays a central role in enforcing the standards established in this chapter on behalf of individuals with disabilities; and
- to invoke the sweep of congressional authority, including the power to enforce the fourteenth amendment and to regulate commerce, in order to address the major areas of discrimination faced day-to-day by people with disabilities.
Stopping discrimination against individuals with disabilities is not a power delegated to the United States by the Constitution, which is required for Congress to act under the Tenth Amendment.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
While the constitutionality of the ADA was not a question before the court, the question of a Ms. Laufer’s right to sue under that law was. Since the stated purpose of the act was not to implement a power delegated to the United States, but instead “to invoke the sweep of congressional authority”, not only was it unnecessary and improper for Congress to pass it, but a violation of George H. W. Bush’s duty when he signed it, and a violation of the justices’ oaths of office to uphold it.
Don’t get me wrong, I do not believe people with disabilities should not be discriminated against. My wife and I regularly have to deal with disabled access to buildings both private and public, due to her disability. That does not mean the United States has the authority “to ensure that the Federal Government plays a central role in enforcing the standards established in this chapter on behalf of individuals with disabilities.” Perhaps I’ll write an article one day on the problems with the ADA, but that is not the focus of this article.
Another item not considered, except possibly by Justice Thomas, is that Ms. Laufer’s attacks not only harmed the companies she has sued, but by taking up time in the judicial system, may have prevented legitimate suits from being heard in a timely manner, if at all. Not only are the owners of these hotels having to bear the cost of litigation, but the shear number of suits, combined with the obvious purpose of using them to enforce the law, may have enriched Ms. Laufer and her attorneys, but at the cost of justice to others.
By both mooting the case and vacating the First Circuit’s decision that Ms. Laufer had standing, the court does restore some sense of justice by restricting the use of malicious prosecution. However, by not deciding the question of Ms. Laufer’s standing, the court also allows her, and others like her, to act as federal vigilantes. I hope you’ll think of this case the next time you hear of some outrageous lawsuit being filed to promote an agenda.
Paul Engel is an Affiliate of Institute on the Constitution. He founded The Constitution Study in 2014 to help everyday Americans read and study the Constitution. Author and speaker, Paul has spent more than 20 years studying and teaching about both the Bible and the U.S. Constitution. Freely admitting that he “learned more about our Constitution from School House Rock than in 12 years of public school” he proves that anyone can be a constitutional scholar. You can find his books on the Institute on the Constitution Store (theamericanview.com), Amazon, and Apple Books. You can also listen to his weekday radio show on America Out Loud (https://americaoutloud.com/the-constitution-study). You can reach him at paul@constitutionstudy.com
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There are certain words that are so commonly used we think they have a universal understanding. One of those words is “income”. Think about it, what is income? Your paycheck? Dividends on your investments? Profits from your business? When does an increase in the value of something you own become “income”? The answer to that question is important to more than just the parties in the case Moore v. United States, but to just about every American. Can the United States tax, as income, the value of something you have not sold yet?
The Income Tax
Before 1913 and the ratification of the Sixteenth Amendment, the United States had no reason to care how much money you made and what you did with it. The Framers of the Constitution placed the states between the people and the United States when it came to taxes.
Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers,
U.S. Constitution, Article I, Section 2, Clause 3
While there were multiple attempts to institute an income tax from the mid-19th century to the early 20th century, it wasn’t until 1913 and the Sixteenth Amendment that the United States was legally allowed to create one.
The Congress shall have 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.
U.S. Constitution, Amendment XVI
For the first time in our history, Congress had the power to directly tax the American people. However, this was limited to taxes on income.
What is Income?
As I said at the opening, income is one of those words most people understand from its common usage.
a gain or recurrent benefit usually measured in money that derives from capital or labor
Income – Merriam-Webster Dictionary Online
As much as you may curse Tax Day, complain about the withholding on your paystub, or dream about abolishing the IRS, the states ratified the Sixteenth Amendment allowing Congress to directly collect taxes on your income. While federal politicians and bureaucrats have tried to tax wealth rather than income in the past, they have never succeeded. Not yet at least.
The word “income” is not an inkblot. “Income” was understood at the time of the Sixteenth Amendment’s adoption to refer to gains coming into the taxpayer, like wages, rents, and dividends. Appreciation in the value of a home, a stock investment, or other property is not and never has been taxed as income. The reason is that a gain is not income unless and until it has been realized by the taxpayer. …
It is undisputed that the Petitioners realized nothing from their stock investment. They were taxed not because they had any income but because, in 2017, they happened to own shares in a corporation carrying retained earnings on its books.
This is a tax on the ownership of property. It therefore must be apportioned. …
The Court should reaffirm that there is no income without realization.
Moore v. United States – Oral Arguments
These words of Mr. Andrew Grossman, attorney for Charles Moore, seem to be pretty straightforward. As you would expect, the government of the United States has a different view of income.
The MRT is firmly grounded in the Sixteenth Amendment’s text and history. The amendment allows Congress to impose taxes on incomes. That phrase had a well-established meaning drawn from numerous preratification income taxes that Congress enacted before this Court’s decision in Pollock.
Several of those taxes were like the MRT in that they taxed shareholders on undistributed corporate earnings, including the income taxes in 1864, 1865, 1867, and 1870. And this Court upheld Congress’s power to impose those taxes in Hubbard.
The Sixteenth Amendment’s drafters, therefore, would have understood taxes on incomes to include taxes like the MRT.
Moore v. United States – Oral Arguments
Solicitor General Elizabeth Prelogar, arguing for the United States, claims that the MRT, or Mandatory Repatriation Tax, is grounded in the text and history of the Sixteenth Amendment. She points to several taxes that considered undistributed corporate earnings as income. However, each of the taxes she mentions predate the Sixteenth Amendment. She then claims that the drafters of that amendment would have understood income to include such unrealized gains. She claims that such “pass-through” taxation has been passed by Congress on several occasions, and that the courts have limited the case the plaintiffs are relying on, Macomber, to specific dividends.
A stock dividend, evincing merely a transfer of an accumulated surplus to the capital account of the corporation, takes nothing from the property of the corporation and adds nothing to that of the shareholder; a tax on such dividends is a tax an capital increase, and not on income, and, to be valid under the Constitution, such taxes must be apportioned according to population in the several states.
Gen. Prelogar even makes an interesting claim:
Finally, the Court doesn’t actually need to resolve any fundamental questions in this case about whether the Sixteenth Amendment requires realization. The MRT taxes income that was actually realized by the foreign corporations, and Congress permissibly attributed the tax on that realized income to U.S. shareholders just as it has done in any number of pass-through taxes throughout our nation’s history. The Court could say only that and affirm.
Moore v. United States – Oral Arguments
It appears Gen. Prelogar doesn’t think the court needs to decide the question of realization because the tax being challenged is against income realized by a third party. To understand this, we need to learn a little more about corporations.
Corporations
While there are numerous forms of corporations, each with their own specific definitions and limitations, in general a corporation is:
an organization formed with state governmental approval to act as an artificial person to carry on business (or other activities), which can sue or be sued, and (unless it is non-profit) can issue shares of stock to raise funds with which to start a business or increase its capital.
Corporation – The Free Legal Dictionary
A corporation is a separate entity, an artificial person. The purpose of a corporation is to separate, and thereby shield, the owners from liability for the actions of this artificial person. For example, if a corporation makes a defective product, you don’t sue the owners of the corporation, but the corporation itself. Similarly, when a corporation makes money it is not the shareholders who are taxed, but the corporation. At least, that’s how it’s supposed to work. In response to a question by Justice Thomas about “realized” gains, Gen. Prelogar said:
I think that this is a paradigmatic case of realization, Justice Thomas, insofar as the thing that’s being taxed, the underlying tax base for the MRT, are the earnings that actually were — came into the corporation, the foreign corporation’s coffers.
So the tax base here was the substantial ordinary business income that the foreign corporation generated through its operations in the foreign country and that has to date been subject to tax deferral.
That income has never been taxed at the corporate or entity level. Instead, what Congress did in the MRT is enact a pass-through tax that attributed the liability on that actual income that was realized to the U.S. shareholders.
Moore v. United States – Oral Arguments
I think what we’re seeing here is the greed of Congress. Remember, the purpose of the Mandatory Repatriation Tax is to tax funds earned overseas back to the United States. In this case, the Moores invested in an Indian startup company known as KisanKraft in 2006. As I believe is common with many startups, the company’s earnings were reinvested in the company. In other words, the Moores did not realize any income, since the earnings were reinvested in the company. Then, in 2018, under the recently passed MRT, the Moores were expected to pay taxes on the reinvested earnings going all the way back to their original investment. However, since the corporation in question is domiciled in India, not the United States, any earnings are taxed under Indian law. Since the income to a foreign corporation, for its operations in a foreign country, was subject to that country’s tax deferrals, no taxes had been collected. Not only did Congress want to tax the Moores for income to a foreign corporation they had not received, they wanted to do so ex post facto, or after the fact, violating Article I, Section 9 clause 3 of the Constitution as well.
No Bill of Attainder or ex post facto Law shall be passed.
U.S. Constitution, Article I, Section 9, Clause 3
Conclusion
We’ll have to wait for the justices’ decision on this case, but this is what I’ve found so far. There are several issues with the Mandatory Repatriation Tax, or MRT.
First, the MRT taxes one party for the income of another. The entire purpose of a corporation is to separate the owners from the corporation for tax and legal purposes. If Congress can simply decide to breech that legal divide for whatever purpose they want, then corporations are useless.
Second is the apportionment problem. Since the Moores, as far as I know, did not receive any earnings from KisanKraft, they have no income to be taxed. Therefore, they are being taxed on the value of their property. Legally, how is this any different than you being taxed on the increase in value of your home or stock portfolio? The answer is, it isn’t. This is a tax on the value of property, a wealth tax collected directly from the people, so it must be apportioned to the states under Article I, Section 2, Clause 3.
Lastly, since the legislation that created the MRT wishes to collected taxes on the increase in value of the Moores stocks since before the tax went into effect, it’s an ex post facto law, and thereby a violation of Article I, Section 9 of the Constitution of the United States.
Why should you pay very close attention to this case? Because, as a direct tax on something other than income, a wrong opinion from the court could open up a deluge of new direct federal taxes on everything from your home, investments, even your childhood Baseball Card collection. Before you dismiss this last statement as fear mongering, remember both Bernie Sanders and Elizabeth Warren have called for wealth taxes at the federal level. While they claim these taxes would be limited to the very wealthy, remember the same was said about the income tax back in 1913. How has that worked out for the American people every April 15th?
Paul Engel is an Affiliate of Institute on the Constitution. He founded The Constitution Study in 2014 to help everyday Americans read and study the Constitution. Author and speaker, Paul has spent more than 20 years studying and teaching about both the Bible and the U.S. Constitution. Freely admitting that he “learned more about our Constitution from School House Rock than in 12 years of public school” he proves that anyone can be a constitutional scholar. You can find his books on the Institute on the Constitution Store (theamericanview.com), Amazon, and Apple Books. You can also listen to his weekday radio show on America Out Loud (https://americaoutloud.com/the-constitution-study). You can reach him at paul@constitutionstudy.com
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I don’t “do” New Years Resolutions. To me, they’re one step above a campaign promise. (At least you intend to keep your resolutions.) That said, the beginning of a new year is a good time to consider your future. What plans do you have for the new year? So, while I do not make New Years Resolutions, if you do, here are a few ideas I think you should consider.
Read the Constitution
I know, I sound like a broken record, but I believe reading the Constitution is something we should be doing at least once a year. In fact, it you read the Constitution 3, 4, or even 12 times a year, that would not be a bad thing. I agree with our first Chief Justice of the United States, John Jay. If you want to know when your rights are being violated, and be prepared to defend and assert them, then read and study the Constitution of the United States.
If you are feeling really ambitious, how about reading both the Federalist and Anti-Federalist papers while you’re at it? These were the essays, published in New York newspapers, discussing what the Framers expected the Constitution to actually do, and the concerns some of them had about the central government. If you’re really looking to go deep, follow that up with reading the state ratification debates.
Attend a Bootcamp
Even if you are not considering The Patriots Program, I would recommend attending the bootcamp online. It’s free, and you’ll walk away with tools you can use today to defend and assert your rights.
I’m considering doing a few bootcamps online via Zoom. If you are interested, either sign up for one of my mailing lists or watch the website for the announcement. These Zoom Bootcamps will contain the same information as the recorded one currently available, but it will offer you an opportunity to ask questions and get feedback.
Meet your Sheriff
Believe it or not, the most powerful law enforcement officer in your county is not the State Police, the FBI, or any federal agency, but your Sheriff. Shortly after moving to Middle Tennessee, I setup a meeting with the Sheriff in my county. At first, he was confused because I wasn’t there to complain. I wanted to meet him outside of any campaign, just to know a little bit about the man.
During our meeting I told him what I wanted to know was if anyone from my house calls 911, I wanted to be sure the deputy that showed up was trained that their first and primary responsibility was to protect the rights of everyone involved. The good news, at least for me and the others in my county, my Sheriff agreed. I told him that if he protects our rights, then I would have his back. Granted, I have a unique set of skills; I can teach his deputies, or write a position paper based on the Constitution. I told him I would also stand with him at a press conference, or testify to the constitutionality of his actions.
Have you ever talked to your Sheriff? Ever made sure they understood what you expected from them? More important, have you let your Sheriff know you’ve got their back? If you expect your Sheriff to protect your rights, is it too much to ask that you will back them up when they do? OK, so maybe you don’t think you could write a position paper, but you can stand by them during a press conference, offer to speak up at a county meeting, or just help in any way possible. Imagine what it must feel like for a Sheriff, knowing that if they do anything controversial, the media, politicians, and yes, the public, will be after them. How good would it feel to know that if they fulfill their oath to support the constitutions of their state and the United States, at least some of the citizens of their county will back them up.
Attend School Board or Board of Elections’ Meetings
Now, let’s think about the future. Our children will grow up in the world we leave for them. What will your children learn about themselves, our history, and this country? Since about 90% of children attend a government school, don’t we have a responsibility to make sure they are taught properly? Taught the truth about this country, i.e., the good, the bad, and the ugly? Shouldn’t we make sure they are taught what their rights are, and what their civic responsibilities are to keep this nation free? Then, whether you have school aged children or not, being involved in the school board is a great step. If nothing else, you can help make sure the racism and pornography that has been spreading across academia lately stays out of your schools.
If schools aren’t your thing, what about the Board of Elections? If the United States is to remain a republic, then We the People must choose our representatives by election. Recent history has shown that those elections are under attack. What better way to help preserve the republic than to make sure the elections in your county are free, fair, and transparent? Remember, every election starts at the county level. Keeping your Board of Elections on the right side of the Constitution may not seem like much, but as more and more people do so, we can change not just our counties, but our states and our nation, too.
Vote Wisely
So many people focus on whether or not you vote, few consider how you decide who to vote for? Don’t get me wrong, voting is an important civic duty, but how you decide who to vote for is just as important.
Here’s what I do. When anyone asks for my vote, I start by asking them one question. “Show me when you did something to fulfill your oath to support the Constitution when it cost you something?” I’m looking closely not only at what they say, but how they act. Most people are caught off guard, unsure, and reply with some sound bite platform plank that doesn’t mean a thing. Occasionally, someone will tell me that they raised their hand and signed up to defend this nation, but most people are all talk and no action. To me, it’s not what you say, but what you do that really matters. As we look toward the chaos of the 2024 elections, if you make resolutions, please resolve to vote wisely, not just this year, but in all future years.
Conclusion
If you are making New Years resolutions, I hope you’ll consider some of these ideas. If, like me, you don’t make resolutions, I still hope you will consider these things you can do to help restore liberty and justice to all. Remember, as President James Garfield said at this nation’s first centennial:
[N]ow more than ever before, the people are responsible for the character of their Congress. If that body be ignorant, reckless and corrupt, it is because the people tolerate ignorance, recklessness and corruption. If it be intelligent, brave and pure, it is because the people demand these high qualities to represent them in the national legislature … [I]f the next centennial does not find us a great nation…it will be because those who represent the enterprise, the culture, and the morality of the nation do not aid in controlling the political forces.
James A. Garfield, A Century of Congress
In the middle of our third century, just as it was at the end of the first, the character of not only our Congress, but of our state legislature, our governors, and our county office holders, is our responsibility. I hope you will take that responsibility seriously.
Paul Engel is an Affiliate of Institute on the Constitution. He founded The Constitution Study in 2014 to help everyday Americans read and study the Constitution. Author and speaker, Paul has spent more than 20 years studying and teaching about both the Bible and the U.S. Constitution. Freely admitting that he “learned more about our Constitution from School House Rock than in 12 years of public school” he proves that anyone can be a constitutional scholar. You can find his books on the Institute on the Constitution Store (theamericanview.com), Amazon, and Apple Books. You can also listen to his weekday radio show on America Out Loud (https://americaoutloud.com/the-constitution-study). You can reach him at paul@constitutionstudy.com
]]>Now I would be remised if I didn't remind you of the reason that we are celebrating this joyous occasion, so I wanted to share with you this short clip that has been a favorite of mine for many years. Enjoy and share it with the little one's.
Oh,and thank you for all of your support over the years. May God continue to Bless you all!
Larry Mayo- President
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In the last article, I started reviewing George Washington’s Farewell Address. As we pick up in the middle of the document, you may want to go back and refresh your memory. Washington has already talked about the strength of the union and the centrality of the Constitution. Now, we pick up his advice with the separation of powers.
Separation of Powers
Liberty itself will find in such a government, with powers properly distributed and adjusted, its surest guardian.
Washington’s Farewell Address 1796
There’s a reason why power is distributed in this country, not just within the federal government, but between the state and federal governments as well. Liberty, the ability to live your life as you see fit, is protected by such separation. So when we see the Executive Branch being delegated and assuming powers not their own, your liberty is in danger. Even worse, when the states relinquish their power to the bribes and intimidations from Washington, D.C., liberty is not only in danger, but under direct attack.
Political Parties
The alternate domination of one faction over another, sharpened by the spirit of revenge, natural to party dissension, which in different ages and countries has perpetrated the most horrid enormities, is itself a frightful despotism. But this leads at length to a more formal and permanent despotism. The disorders and miseries which result gradually incline the minds of men to seek security and repose in the absolute power of an individual; and sooner or later the chief of some prevailing faction, more able or more fortunate than his competitors, turns this disposition to the purposes of his own elevation, on the ruins of public liberty.
Washington’s Farewell Address 1796
The only thing worse than the states turning over control to a centralized government, is for them to turn their power over to political parties. The spirit of revenge Washington talked about is alive, well, and on full display not only in Washington, D.C., but in many of our states and cities as well. And as he warned, more and more people are turning to the absolute power of an individual to restore order, but they will only find the ruins of our public liberty.
It serves always to distract the public councils and enfeeble the public administration. It agitates the community with ill-founded jealousies and false alarms, kindles the animosity of one part against another, foments occasionally riot and insurrection. It opens the door to foreign influence and corruption, which finds a facilitated access to the government itself through the channels of party passions. Thus the policy and the will of one country are subjected to the policy and will of another.
Washington’s Farewell Address 1796
This war between the political parties not only distracts those we hire to represent us, but in many cases makes it impossible for them to govern based on the Constitution to which they took an oath. It foments the animosity of groups, driving them toward more militant positions which will one day lead to riots and insurrection. If you search the news, you will see several groups have already gone that far, and their political allies accuse their opponents of doing the same.
Religion and Government
Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. In vain would that man claim the tribute of patriotism, who should labor to subvert these great pillars of human happiness, these firmest props of the duties of men and citizens.
Washington’s Farewell Address 1796
Before the Supreme Court wrote their own opinions about separation of church and state, Thomas Jefferson stated the it was created to protect the church from the state, not the other way around. Before Jefferson’s letter where we get that phrase, Washington stated that religion and morality were indispensable to political prosperity. Or as John Adams put it:
Our Constitution was made only for a moral and religious People. It is wholly inadequate to the government of any other
From John Adams to Massachusetts Militia, 11 October 1798
So why do we work so hard today to keep religion and morality out of politics? If, as Washington said, you cannot claim the name of patriot while subverting these two great pillars, what does that say about those today who labor so hard at tearing them down?
Debt
As a very important source of strength and security, cherish public credit. One method of preserving it is to use it as sparingly as possible, avoiding occasions of expense by cultivating peace, but remembering also that timely disbursements to prepare for danger frequently prevent much greater disbursements to repel it, avoiding likewise the accumulation of debt, not only by shunning occasions of expense, but by vigorous exertion in time of peace to discharge the debts which unavoidable wars may have occasioned, not ungenerously throwing upon posterity the burden which we ourselves ought to bear.
Washington’s Farewell Address 1796
The full faith and credit of the United States is a source of great strength and influence, not only in times of peace, but for our ability to fund necessary wars. Therefore our credit should be something jealously guarded. Today, with our almost $34 trillion in debt, (that $34,000,000,000,000), it seems we not only no longer guard our national credit, but debase it. Rather than using our credit sparingly and shunning occasions of expense, as Washington suggested, we’ve been finding every possible way to expend more and more money, generally for political gain. When in times of peace, rather than taking the opportunity to discharge our debts, we have been ungenerously throwing upon our posterity a burden they could never bear.
Foreign Relations
In the execution of such a plan, nothing is more essential than that permanent, inveterate antipathies against particular nations, and passionate attachments for others, should be excluded; and that, in place of them, just and amicable feelings towards all should be cultivated.
Washington’s Farewell Address 1796
Washington was trying to make a point. As a nation we should not have strong positions, either for or against, any other nation. This is quite the opposite of America’s foreign policy for several generations. Why did Washington think we should stay out of foreign entanglements?
The nation which indulges towards another a habitual hatred or a habitual fondness is in some degree a slave. It is a slave to its animosity or to its affection, either of which is sufficient to lead it astray from its duty and its interest.
Washington’s Farewell Address 1796
When we make a relationship with another nation, when we tie our future to theirs for good or for ill, we put them in charge of our foreign policy. Our alliance with Great Britain got us into two world wars, and our alliance with Saudi Arabia has frequently put us at odds with other Middle Eastern nations, including until recently having our embassy in Israel in Tel Aviv rather than Jerusalem. In the same way our fear of the Soviet Union influenced our decisions in Eastern Europe for decades, our fear of China means we still won’t officially recognize Taiwan as its own country.
Against the insidious wiles of foreign influence (I conjure you to believe me, fellow-citizens) the jealousy of a free people ought to be constantly awake, since history and experience prove that foreign influence is one of the most baneful foes of republican government. … Excessive partiality for one foreign nation and excessive dislike of another cause those whom they actuate to see danger only on one side, and serve to veil and even second the arts of influence on the other. Real patriots who may resist the intrigues of the favorite are liable to become suspected and odious, while its tools and dupes usurp the applause and confidence of the people, to surrender their interests.
Washington’s Farewell Address 1796
Compare Washington’s urging against foreign influence to today’s agenda of the United States as the world’s policeman, the nation you go to when you need assistance or protection. So what would Washington have us do? How would he have us deal with other nations?
The great rule of conduct for us in regard to foreign nations is in extending our commercial relations, to have with them as little political connection as possible.
Washington’s Farewell Address 1796
Put another way, in commerce friends; beyond that we should have as little connection as possible. Think back, how many wars have started because of treaties between nations? Now we have calls for the U.S. to not only send weapons to Ukraine, but put American boots on the ground.
Why forego the advantages of so peculiar a situation? Why quit our own to stand upon foreign ground? Why, by interweaving our destiny with that of any part of Europe, entangle our peace and prosperity in the toils of European ambition, rivalship, interest, humor or caprice?
It is our true policy to steer clear of permanent alliances with any portion of the foreign world; so far, I mean, as we are now at liberty to do it; for let me not be understood as capable of patronizing infidelity to existing engagements. I hold the maxim no less applicable to public than to private affairs, that honesty is always the best policy. I repeat it, therefore, let those engagements be observed in their genuine sense. But, in my opinion, it is unnecessary and would be unwise to extend them.
Washington’s Farewell Address 1796
If honesty is the best policy, both in public and private affairs, here is a truth we all should share. My father told me not to co-sign a loan for a friend, because your future is tied to them paying the loan. When we link our futures to the affairs of other nations, they are in control, not us. Put another way, we enslave our future to their decisions.
Farewell
Though, in reviewing the incidents of my administration, I am unconscious of intentional error, I am nevertheless too sensible of my defects not to think it probable that I may have committed many errors. Whatever they may be, I fervently beseech the Almighty to avert or mitigate the evils to which they may tend.
Washington’s Farewell Address 1796
Here is something rare in politics today: Humility. The father of the nation, the first President of the United States, and the only man known for walking away from power, had the humility to know that he has probably committed many errors. Now there is a farewell with class. If only our current crop of politicians, bureaucrats, pundits, and so-called experts, could show a faction of such class.
Conclusion
What have you learned from the farewell address of the Father of our country? Was it the importance of following the Constitution, or of religion and morality? That we should avoid debt and foreign entanglements? Or was it something else? While no man is perfect, a fact Washington not only knew but expressed, there is a lot to learn from his advice. Perhaps a frequent review of his sentiments on such matters would alleviate us of many of our problems, turmoil, and pain.
Paul Engel is an Affiliate of Institute on the Constitution. He founded The Constitution Study in 2014 to help everyday Americans read and study the Constitution. Author and speaker, Paul has spent more than 20 years studying and teaching about both the Bible and the U.S. Constitution. Freely admitting that he “learned more about our Constitution from School House Rock than in 12 years of public school” he proves that anyone can be a constitutional scholar. You can find his books on the Institute on the Constitution Store (theamericanview.com), Amazon, and Apple Books. You can also listen to his weekday radio show on America Out Loud (https://americaoutloud.com/the-constitution-study). You can reach him at paul@constitutionstudy.com
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As he prepared to leave office, President George Washington gave a Farewell Address.
Friends and Citizens:
The period for a new election of a citizen to administer the executive government of the United States being not far distant, and the time actually arrived when your thoughts must be employed in designating the person who is to be clothed with that important trust, it appears to me proper, especially as it may conduce to a more distinct expression of the public voice, that I should now apprise you of the resolution I have formed, to decline being considered among the number of those out of whom a choice is to be made.
Washington’s Farewell Address 1796
As our thoughts are employed in the designation of the person who is to be clothed with the trust of administering the executive branch of the government of the United States, I think we should look back at the advice and warnings from the first occupant of that office.
Retirement at Last
As Washington said in the opening of his farewell address, he would not serve a third term.
The acceptance of, and continuance hitherto in, the office to which your suffrages have twice called me have been a uniform sacrifice of inclination to the opinion of duty and to a deference for what appeared to be your desire. I constantly hoped that it would have been much earlier in my power, consistently with motives which I was not at liberty to disregard, to return to that retirement from which I had been reluctantly drawn. The strength of my inclination to do this, previous to the last election, had even led to the preparation of an address to declare it to you; but mature reflection on the then perplexed and critical posture of our affairs with foreign nations, and the unanimous advice of persons entitled to my confidence, impelled me to abandon the idea.
Washington’s Farewell Address 1796
Not once, but twice, George Washington was called on to be President of the new country under the new Constitution, and twice he agreed. With the expectation that he would be called again a third time, Mr. Washington wished only to retire to Mount Vernon. After seeking advice from those in his confidence, he made it clear that he intended to return to the retirement he had previously enjoyed.
In looking forward to the moment which is intended to terminate the career of my public life, my feelings do not permit me to suspend the deep acknowledgment of that debt of gratitude which I owe to my beloved country for the many honors it has conferred upon me; still more for the steadfast confidence with which it has supported me; and for the opportunities I have thence enjoyed of manifesting my inviolable attachment, by services faithful and persevering, though in usefulness unequal to my zeal. …
Here, perhaps, I ought to stop. But a solicitude for your welfare, which cannot end but with my life, and the apprehension of danger, natural to that solicitude, urge me, on an occasion like the present, to offer to your solemn contemplation, and to recommend to your frequent review, some sentiments which are the result of much reflection, of no inconsiderable observation, and which appear to me all-important to the permanency of your felicity as a people.
Washington’s Farewell Address 1796
As Mr. Washington prepares to retire, his concerns over the welfare of the people of the United States leads him to one last duty. He takes the time to record the dangers he foresees and to provide advice. It was his hope that the people would frequently review his warnings. Let us renew that tradition, starting today.
Strength of the Union
The unity of government which constitutes you one people is now dear to you. It is justly so, for it is a main pillar in the edifice of your real independence, the support of your tranquility at home, your peace abroad; of your safety; of your prosperity; of that very liberty which you so highly prize. But as it is easy to foresee that, from different causes and from different quarters, much pains will be taken, many artifices employed to weaken in your minds the conviction of this truth; as this is the point in your political fortress against which the batteries of internal and external enemies will be most constantly and actively (though often covertly and insidiously) directed, it is of infinite moment that you should properly estimate the immense value of your national union to your collective and individual happiness; that you should cherish a cordial, habitual, and immovable attachment to it; accustoming yourselves to think and speak of it as of the palladium of your political safety and prosperity; watching for its preservation with jealous anxiety; discountenancing whatever may suggest even a suspicion that it can in any event be abandoned; and indignantly frowning upon the first dawning of every attempt to alienate any portion of our country from the rest, or to enfeeble the sacred ties which now link together the various parts.
Washington’s Farewell Address 1796
Washington knew that enemies, both foreign and domestic, would seek to pull this nation apart. That only a people devoted to unity within the union would support the peace and safety they so greatly prized. That those enemies would work to devalue and divide the union. That the division and alienation that has become the basis of so much of our society would be the destruction of more than the union, but of our domestic tranquility itself. We are witnessing the prescience of Washington’s warning. Perhaps we can learn how best to rescue ourselves from this situation by reading more of his words.
For this you have every inducement of sympathy and interest. Citizens, by birth or choice, of a common country, that country has a right to concentrate your affections. The name of American, which belongs to you in your national capacity, must always exalt the just pride of patriotism more than any appellation derived from local discriminations. With slight shades of difference, you have the same religion, manners, habits, and political principles. You have in a common cause fought and triumphed together; the independence and liberty you possess are the work of joint counsels, and joint efforts of common dangers, sufferings, and successes.
Washington’s Farewell Address 1796
Being an American used to be a source of pride. Whether a citizen by birth or by choice, patriotism should supercede our petty differences. Our willingness to tolerate our minor differences led to our independence and liberty in a way no other nation has ever achieved. Our willingness to come together to face our common dangers and sufferings and to protect the rights of our neighbors and fellow citizens now seems to have weakened to the point of failure. Because of this, the American motto e pluribus unum, out of many one, is collapsing into e unum pluribus, out of one many. More and more we are no longer Americas, but African-Americans, Latino-Americas, Asian-Americans, LGBTQ-Americans, along with another host of hyphenated titles. We forget that what all of these labels have in common is that we are all Americans. While we set ourselves against our hyphenated brethren, while we tear the Union apart with our focus on division, we lose one of the things that once made America the shining city on a hill Ronald Reagan once talked about: Affection for our neighbors.
In contemplating the causes which may disturb our Union, it occurs as matter of serious concern that any ground should have been furnished for characterizing parties by geographical discriminations, Northern and Southern, Atlantic and Western; whence designing men may endeavor to excite a belief that there is a real difference of local interests and views. One of the expedients of party to acquire influence within particular districts is to misrepresent the opinions and aims of other districts. You cannot shield yourselves too much against the jealousies and heartburnings which spring from these misrepresentations; they tend to render alien to each other those who ought to be bound together by fraternal affection.
Washington’s Farewell Address 1796
It’s not just ethic backgrounds that are being used to divide us. Have you noticed how we all have fallen into these geographic distinctions? North vs south, eastern vs western, coastal vs central, even urban vs rural. How often have we seen those who seek after influence lie about those of other groups? So often that we even have a joke about it. “How can you tell when a politician is lying…” We have divided ourselves to the point that some are calling for a national divorce, a dividing of the union, or even a civil war. It seems to me that most of this division comes more from political agitation than actual differences.
Centrality of the Constitution
The basis of our political systems is the right of the people to make and to alter their constitutions of government. But the Constitution which at any time exists, till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all. The very idea of the power and the right of the people to establish government presupposes the duty of every individual to obey the established government.
Washington’s Farewell Address 1796
For this union to exist, all parties must agree to the obligation of following the Constitution established by the people. We create governments via constitutions. Until the people change the powers and function of the government established by the Constitution, we are all obliged to follow that government. However, what happens when that government violates the constitution which created it? As the Constitution states, we owe our allegiance to the Constitution as the supreme law of the land, not to the men who may pervert it. Yet how many today even know what the Constitution says? You are almost certainly not going to learn it in law school, where they teach the opinion of judges supersedes the supreme law of the land. If we do not read the Constitution for ourselves, how are we to know whether an act of Congress, a regulation from the executive branch, or the opinion of a judge is obstructing the supreme law? How are we to know if those who serve in government are obstructing the very law they swore or affirmed to support?
All obstructions to the execution of the laws, all combinations and associations, under whatever plausible character, with the real design to direct, control, counteract, or awe the regular deliberation and action of the constituted authorities, are destructive of this fundamental principle, and of fatal tendency. They serve to organize faction, to give it an artificial and extraordinary force; to put, in the place of the delegated will of the nation the will of a party, often a small but artful and enterprising minority of the community;
Washington’s Farewell Address 1796
Have you noticed how the execution of laws seems to be focused on factions and political parties? What one group does goes unpunished while a group from another faction is severely punished. This is not merely double standards, but is destructive to the fundamental principle of liberty and equal protection under the law. We shouldn’t be surprised, since for decades those in charge of making and executing the laws, not to mention those tasked with deciding controversies, have been obstructing the execution of the Constitution as the supreme law of the land while We the People stood around, watched, and cheered.
Conclusion
There is so much we can learn from Washington’s Farewell Address I’ve had to break it up into two parts. In the next article I will review the rest of the document. Before I close today though, I would like you to consider this. At the birth of our country, our very first President set the standards and traditions that Presidents have followed for almost 150 years. As the people we have placed in office, along with those we hire to represent us and the states, have walked away from his advice, we have watched the crumbling of the republic. Perhaps, by frequent review of Washington’s advice, we can return the republic to the constitutionally sound country he helped create.
——
Paul Engel is an Affiliate of Institute on the Constitution. He founded The Constitution Study in 2014 to help everyday Americans read and study the Constitution. Author and speaker, Paul has spent more than 20 years studying and teaching about both the Bible and the U.S. Constitution. Freely admitting that he “learned more about our Constitution from School House Rock than in 12 years of public school” he proves that anyone can be a constitutional scholar. You can find his books on the Institute on the Constitution Store (theamericanview.com)
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It’s no secret that America’s downward spiral is picking up speed. We're seeing tyrannical electric vehicle mandates, government induced inflation, outlawing gas stoves and water heaters, a two tiered justice system and millions of illegal border crossings. The American, Biblical view of law and government is being stomped out of history books, the educational system, and culture. This makes our mission to restore the principles of our Constitutional Republic through grassroots education even more urgent.
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In 1837, Daniel Webster wrote:
“I apprehend no danger to our country from a foreign foe… Our destruction, should it come at all, will be from another quarter. From the inattention of the people to the concerns of their government, from their carelessness and negligence, I must confess that I do apprehend some danger.”
I’ve been thinking about that statement lately. I also came across a video that I had forgotten about that’s part of an interview with Soviet defector Yuri Bezmanov. Mr Bezmanov was a former KGB agent who defected to Canada in 1970. In 1984 he gave an interview to G Edward Griffin, where he exposed a long-term Soviet plan to defeat America not by force of arms, but through psychological warfare.
You may be asking, what does a late 20th century defector have to do with a 19th century lawyer and statesman, and how could it possibly be relevant to our situation in the 2020s? I came to find out both of these men were quite prescient in their warnings to the American people.
Daniel Webster
As Daniel Webster warned, America is not being destroyed from without, but from within. Our apathy about what the federal government does, our carelessness in dealing with the bad actors that inevitably enter government services, and our negligent attitude when the Constitution is violated, has certainly led the United States to the brink of collapse. Mr. Webster went on to warn:
I fear that they may place too implicit a confidence in their public servants, and fail properly to scrutinize their conduct; that in this way they may be made the dupes of designing men, and become the instruments of their own undoing.
Just think of the things the American people have placed blind confidence in those in government for: Retirement, health care, food and drug safety, education, and energy, just to name a few. Yet no matter how often government fails, the answer always seems to be a call to give them more. The collapse of our republic should be laid not at the feet of some nameless, faceless government actor, but on the American people who have been duped by their false promises.
However, there is one area where Mr. Webster appears to have gotten things wrong, because there was a danger from a foreign foe. They used our carelessness and neglect to not only accelerate our destruction, but also to supplant the American way with a collectivist and communist agenda.
Yuri Bezmanov
As a former KBG officer, Mr. Bezmanov was aware of many of the methods used by that organization to subvert the United States. In his 1984 interview with Mr. Griffin, he detailed some of these techniques, starting with “ideological subversion”. (Please excuse the flaws in the original transcript.)
Ideological subversion is is the process which is legitimate overt and open you you can see it with your own eyes all all you have to do all American mass media has to do is to unplug their bananas from their ears open up their eyes and they can see it … But in reality the main emphasis of the KGB is
not in the area of intelligence at all according to my opinion and opinion of many defectors of my caliber only about 15% of time, money, and Manpower is spent on espionage as such the other 85% is a slow process which we call either ideological subversion or active measures активные меры in the language of of the KGB or psychological warfare what it basically means is to change the perception of reality of every American to such an extent that despite of the abundance of information no one is able to come to sensible conclusions in the interest of defending themselves their families their community and their country. It’s a great brainwashing uh process which goes very slow and it’s divided in in four basic stages.
Yuri Bezmanov – G. Edward Griffin Interview Transcript [1984]
Mr. Bezmenov then goes into describe ideological subversion in some detail.
The first one being demoralization it takes from 15 to 20 years to demoralize a nation. Why that many years because this is the minimum number of years which requires to educate one generation of students in the country of of of your enemy exposed to the ideology of the enemy. In other words Marxism, Leninism ideology is being pumped into the soft heads of of at least three generations of American students without being challenged or counterbalanced by the basic values of americanism American patriotism. The result the result you can see. Most of the people who graduated in 60s, dropouts or half baked intellectuals are now occupying the positions of power in the government, civil service, business, mass media, educational system. You are stuck with them you cannot get rid of them they are contaminated they are programmed to think and react to certain stimuli in a certain pattern. You cannot change their mind even if you if you expose them to authentic information even if you prove that white is white and black is black you still cannot change the basic perception and the logic of behavior. In other words these people uh uh the process of demoralization is complete and irreversible.
Yuri Bezmanov – G. Edward Griffin Interview Transcript [1984]
In 1960, then First Secretary of the Communist Party of the Soviet Union, Nikita Khrushchev spoke at the United Nations, stating that Communism would outlast the United States. While the 1990s made it look like Mr. Khrushchev was wrong, it seems the KGB’s plans may have won in the long run.
Today we have people who refuse to believe video evidence of the atrocities committed by Hamas against civilians in Israel. Others continue to line up to get vaccinated in the face of evidence that these “vaccines” are neither effective or very safe. As Mr. Bezmenov describes, there is more to come.
Unlike in present United States there will be no place for descent in in future Marxist Leninist America uh here you can you can get uh popular like Daniel Ellsberg and filthy rich like Jane Fonda for being dissident for criticizing your pentagon. In future these people will be simply squashed like cockroaches nobody’s going to pay them nothing for their beautiful noble ideas of equality this they don’t understand and uh it will be greatest shock for them of course
Yuri Bezmanov – G. Edward Griffin Interview Transcript [1984]
Today, we have not only governments, but private actors censoring information they don’t like. Cancel culture attempts to punish individual and businesses for expressing ideas contrary to the agenda of the appartchik. In short, as Mr. Bezmanov describes, this phase of the demoralization of America was completed even before his 1984 interview, and we have taken in far, far beyond what the KGB had hoped.
The demoralization process in the United States is basically completed already uh for the last 35 years actually it’s over fulfilled because demoralization now reaches such areas where previously not even Comrade Andropov and and all his experts would would even dream of such a tremendous success most of it is done by Americans to Americans thanks to lack of moral standards as I mentioned before uh exposure to true information does not matter anymore a person who was demoralized is unable to assess true information the facts tell nothing to him uh even if I shower him with information with with authentic proof with documents with pictures even if I take him by force to the Soviet Union and show him concentration camp he will refuse to believe it until he he’s going to receive a kick in the in his fat bottom when a military boot crashes his then he will understand but not before that that’s the tragic of the situation of demoralization so basically America is stuck with with demoralization and unless even if if you start right now here this minute you start educating new generation of American it will still take you 15 to 20 years to turn the tide of uh of ideological perception of reality uh back to normal normally and and patriotism.
Yuri Bezmanov – G. Edward Griffin Interview Transcript [1984]
Ladies and gentlemen, this was 39 years ago! We could have turned the demoralization around twice, yet the American people were unwilling to do so. Rather, we have let the American education system poison the minds of several generations with little if any challenge. We stood by while the federal government illegally meddled in our educational system, making things worse.
The KGB may have started this process, but ultimately, we have done it to ourselves.
The next stage is destabilization this time subverter does not care about your ideas and the patterns of your consumption whether you eat junk food and get fat and flab it doesn’t matter anymore this time and it takes only from two to five years to destabilize a nation uh it’s what what matters is essentials economy foreign relations defense systems uh and you can see it quite clearly that in some areas uh in such sensitive areas as as uh defense and economy the influence of Marxist Leninist ideas in the United States is absolutely fantastic I I could never believe it 14 years ago when I landed uh in this part of the world that the process will go that fast.
Yuri Bezmanov – G. Edward Griffin Interview Transcript [1984]
Have you seen how the collectivist ideas have taken over our businesses, foreign relations, and defense? Businesses are being forced to hire people based on the color of their skin rather than their skills. Under Obama we turned our back on two of our staunches allies, the United Kingdom and Israel, to support China and Iran. The Defense Department not only has placed the “climate change” agenda above national defense, but the transgender, racial, and sexualization agendas as well.
The next stage of course is crisis it it it may take only up to six weeks to to bring a country to the verge of crisis you can see it in in Central America now and after crisis with a violent change of of power structure and economy you have so-called the period of normalization it may last indefinitely normalization is a cynical expression borrowed from Soviet propaganda when the Soviet tanks moved into Czechoslovakia in ‘ 68 com BR said now the situation in brotherly Czechoslovakia is normalized this is what will happen in United States if you allow all the Schmucks to bring the country to crisis to promise people all kind of goodies and the paradise on Earth uh to to destabilize your economy to eliminate the principle of free market competition and to put a big brother government in Washington DC.
Yuri Bezmanov – G. Edward Griffin Interview Transcript [1984]
How many crises have we had since 1984? The first and second Gulf Wars, 9/11, the Afghanistan War, the dot-com bust, the housing crisis, and I’m sure there are more. Then we have the self-inflicted crises: The Patriot Act, the surveillance state, COVID, the 2020 election, and the January 6th incarcerations. Now we’re told that these are normal.
Time Bomb is ticking with every second the disaster is coming closer and closer unlike myself you will have nowhere to defect to unless you want to live in Antarctica with penguins this is it this is the last country of freedom and and possibility
Yuri Bezmanov – G. Edward Griffin Interview Transcript [1984]
This time bomb Mr. Bezmanov has been talking about has been ticking for almost four decades. That is four decades of propaganda being pumped into the minds of the rising generations. Four decades of people being told the lie is the truth. Four decades of opportunities to restore not only the Constitution, but the American way of life, lost. Where does that leave us? What can we do?
people well uh the the um the immediate thing that comes to my mind is of course there must be a very strong National effort to educate people in in in the spirit of real patriotism number one number two to to explain them the real danger of Socialist Communist whatever welfare state Big Brother government if people will fail to grasp the impending danger of that development nothing ever can help United States you make his goodbye to your freedom including freedoms to to homosexuals to prison inmate all this Freedom will vanish evaporating in 5 seconds including your precious lives.
Yuri Bezmanov – G. Edward Griffin Interview Transcript [1984]
Step one must be an effort to educate the people. As John Jay put it, to teach the rising generation to be free. We need to teach the spirit of real patriotism and the dangers of all collectivist systems, including communism. If we fail at this, then we can wave goodbye to our freedoms. There’s a problem though; in most aspects, it’s the government actors who have been leading this country to destruction.
The second thing I the moment at least part of United States population is convinced that the danger is real they have to force their government and I’m not talking about sending letters signing petitions and all this beautiful noble activity I’m talking about forcing United States government to stop aiding communism because there is no no other problem more burning and and urgent than to stop the Soviet military industrial complex from destroying what is whatever is left of the free world. …
USSR the Soviet people 270 millions of of Soviets will be eternally thankful to you if you stop aiding a bunch of murderers who sit now in Kremlin and whom president Reagan respectfully calls government Today, it is not the Soviet military industrial complex, but the academic system that is destroying the free world. Our job, our duty, if we are to remain free is to FORCE government to stop aiding communism.
Yuri Bezmanov – G. Edward Griffin Interview Transcript [1984]
If We the People wish to remain free, it’s up to us to FORCE the government to stop aiding the collectivists. I don’t mean denying their rights, but stop aiding and abetting those who are trying to destroy this country. Stop federal funding of education. Stop subsidizing the collectivist agenda. Not by writing letters or signing petitions, but by making the politicians more afraid of disappointing the American people than their donors and political parties.
Conclusion
Daniel Webster was correct when he wrote:
Make them intelligent, and they will be vigilant; give them the means of detecting the wrong, and they will apply the remedy.
While Mr. Bezmanov is right about many things, the one thing I think he missed is the how. How do we force governments to stop supporting collectivism and start honoring their oath of office to support the Constitution? How do we educate the people in the spirit of real patriotism? We can’t expect the same government that is promoting collectivism to teach our children the spirit of liberty. That job falls to us. Actually, that job was always ours; we’ve just been convinced to turn it over to government. Now it’s time to take it back.
Will we learn the lesson Yuri Bezmanov tried to teach us back in 1984? Do we still have time to save the republic? Whether we’ve past the point of no return or not, what is our alternative? Do we simply give up and drown in the tyranny of others, or fight for every breath of freedom we can?
Paul Engel is an Affiliate of Institute on the Constitution. He founded The Constitution Study in 2014 to help everyday Americans read and study the Constitution. Author and speaker, Paul has spent more than 20 years studying and teaching about both the Bible and the U.S. Constitution. Freely admitting that he “learned more about our Constitution from School House Rock than in 12 years of public school” he proves that anyone can be a constitutional scholar. You can find his books on the Institute on the Constitution Store (theamericanview.com), Amazon, and Apple Books. You can also listen to his weekday radio show on America Out Loud (https://americaoutloud.com/the-constitution-study). You can reach him at paul@constitutionstudy.com
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Our nation was created under a Biblical World View, yet today most people, even most who call themselves Christians don’t have a Biblical world view.
Year after year we have observed the world around becoming more self- interested, more violent and more immoral. A great majority of youth from Christian homes are steadily moving away from our Judeo-Christian worldview heritage in favor of Secularism and now dipping into Socialism. What was considered unacceptable just 50 years ago in society, is now not only being tolerated, it is being promoted.
It will be Christendom or Communism in America, it’s that simple.
Our friends at Nehemiah Institute has been conducting worldview testing with Christian schools in America for 30+ years. Year after year they have observed results worsening. Last fall a traditional Christian school with 22 seniors took the PEERS test which resulted in a Composite Score of -7 (scale of +100 to -100), which ranked them in the Socialism worldview category. You can only imagine the scores of public school students
Based on PEERS results of the past several years, we must say- America is moving rapidly into a Post-Christian era. This worldview trend for youth will not change unless their parents, their schools, and most important, their churches begin teaching and living by a mature biblical worldview.
To that end, we have designed a new platform for primary use of PEERS within churches. This platform is called Worldview Checkup. Worldview Checkup has these features:
1- Instant worldview Scorecard including a printout of test questions showing the individual’s answers.
2- Results are strictly confidential.
3- Teaching Papers (biblical studies) included as PDFs on most critical test statements, accessible with simple click on a test item.
4- Easy access to follow-up training materials.
PEERS is an acronym standing for Politics, Economics, Education, Religion and Social Issues. Over 125,000 tests have been taken by high school age youth from over 1,000 Christian schools and other Christian organizations. By answering 70 test items (14 from each category) PEERS ranks the individual into one of four basic worldview categories:
Based on 30+ years of test results, PEERS testing shows that the majority of youth from Christian homes are abandoning a Christian worldview (Biblical Theism) if favor of a Secular worldview if not a Socialist worldview. When PEERS testing was launched in the 1980s, the majority of youth from Christian homes scored in either the Moderate Christian worldview or Biblical Theism worldview. Today, that same demographic shows over 90% of Christian youth scoring in the Secular Humanism category (using exact same questions) and less than 3% scoring in Biblical Theism.
If we can use Worldview Checkup to substantially move church members to embrace a mature biblical worldview, they are likely to have conviction to change views on several things, especially change where they are having their kids educated.
Average score of adults in evangelical churches over the last three years was 44.6, (on scale of +100 to -100) the lower half of the Moderate Christian worldview. Average score of youth from Christian homes was 19.8. A mature biblical worldview is demonstrated with scores in the 70-100 range. We are losing the next generation.
This is arguably the single greatest problem facing the Church in America today!
The purpose of this site is to offer the PEERS Test to parents and all adults in local churches to have their own personal Worldview Checkup. Restoring our youth to a mature biblical worldview position will require that parents and church leaders first believe and live in the Biblical Theism category themselves.
The new platform provides an easy and quick way to get a checkup on your worldview position. With use of any computer device, you can get an instant PEERS Scorecard plus instant access to high quality Position Papers on the most frequently missed PEERS items..
The full PEERS test, and Position Papers, are available here only for low cost of $17.76 per person. Use this Ambassador Code AMB118 and receive a 15% discount.
These are ideal for individual use or group studies.
https://www.worldviewcheckup.org/payment/checkout
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Studies show that the best outcomes for children is when they live in a home with their married parents. If the world were perfect, then all children would have that chance. The world isn’t perfect though, and either by accident or as the consequences of the actions of adults, children will be in need of people to step in for their parents. In our modern society, the role of finding homes for these children has been filled by the state governments. What happens when those government entities place politics above the needs of their charges? A recent case in the U.S. District Court for Massachusetts deals with that very topic. Plaintiffs Michael and Catherine Burke claim that the State of Massachusetts Department of Children and Families (DCF) discriminated, for religious reasons, against their application to become foster parents. When I looked at the case what I saw wasn’t simply religious discrimination, but DCF placing political viewpoints above not only the Constitution of Massachusetts, but what is best for the children in their care.
Foster Care
When I moved from New York City to a small town upstate, my very first friend was a boy my age who was in foster care. The details do not matter, but I remember his first foster family took care of him, but seemed distant and cold. A couple of years later, he was placed with another foster family, and I watched as my friend changed for the better. His new family was loving and kind, and helped him grow from a scared child into a young man. Along the way, I got a small glimpse into the foster care system, which is not easy for either children or parents. It takes a lot to open your home to a child, with no guarantees as to what personality traits, or even medical and psychological issues, they may bring. For people prepared to be parents and families to those who either don’t have one or whose families are dysfunctional, I tip my hat. While I am sure there are those in the foster care system more interested in the check than the child, from what I’ve seen they are the small exception. I’ve also seen reports of people in Child Services, under many different names, who seem to place what they think best above the needs of the child. This appears to be the situation in the case Burke v. Walsh.
Burke v. Walsh
Michael and Catherine Burke are described as a loving couple. After finding out they were infertile, they decided to become foster parents, hoping they may eventually adopt a child into their family.
The Burkes applied to become foster parents through the Massachusetts Department of Children and Families (DCF). They went through thirty hours of training, lengthy interviews, and assessments of their home, health, and family life.
In the end, DCF “[a]cknowledged” the “family[’s] strengths, this including their willingness to parent a child w/ moderately significant medical, mental health and behavioral needs.” … One interviewer praised how they “really seem[] to understand adoption/foster care.” …
Burke v. Walsh et. al. – Complaint
The process of becoming foster parents is not easy. There’s training to take, interviews to sit through, and numerous intrusive assessments of just about every part of the applicant’s life. All of which the Burkes appeared to pass with flying colors. Not only did one interviewer praise the Burkes’ understanding of the adoption and foster care system, but they were willing to take an otherwise difficult to place child, one with medical, mental, or behavioral needs. Sounds like the perfect candidates, don’t they?
But DCF denied the Burkes a foster care license, and, as such, their last opportunity to become parents.
Only one reason was given for that denial: they “would not be affirming to a child who identified as LGBTQIA.”
Burke v. Walsh et. al. – Complaint
I’m not sure of the statistics in Massachusetts but, in general, most foster care systems are desperate to find foster families. Mostly because there are so many more children in the system than parents willing to care for them, especially if the child has special needs. One would think that DCF would jump at the chance to have a family not only so well qualified, but willing to take on some of their more difficult cases. DCF’s reason about not affirming an “LGBTQIA” child seems quite ridiculous for a couple of reasons. First, what percentage of children in foster care in Massachusetts identify as “LGBTQIA”? Again, I don’t have numbers, but by looking at the rest of the population, my guess is only a relatively small number of children would be effected if they were to be fostered by the Burkes. Second, while not an expert on the subject, I don’t believe Massachusetts law would require DCF to place children with a family that they believe would not be philosophically compatible.
Of course, the Burkes believe there is more to them being denied a foster care license.
As DCF recorded, “Kitty and Mike are devoutly Roman Catholic and not only attend church with regular frequency, they both also work for local churches as musicians.” …
As faithful Catholics, the Burkes believe that all children should be loved and supported, and they would never reject a child placed in their home. They also believe that children should not undergo procedures that attempt to change their God-given sex, and they uphold Catholic beliefs about marriage and sexuality.
Because of those decent and honorable beliefs, DCF decided the Burkes were not “affirming,” and therefore prohibited from fostering any child in Massachusetts.
Burke v. Walsh et. al. – Complaint
In short, the Burkes believe they are being denied a foster care license because they are faithful Roman Catholics. This seems to be supported by something the author of their license study wrote.
As the author of their license study put it, while the Burkes are “lovely people,” “their faith is not supportive and neither are they.”
Burke v. Walsh et. al. – Complaint
In other words, it was not what the Burke’s said, but the fact that their faith appears unsupportive that the author of the study concluded that they are not supportive. However, I can understand why the author of the Burke’s license study may have felt they had to see things that way. Massachusetts regulations require licensed adoptive or foster parents…
to promote the physical, mental, and emotional well-being of a child placed in his or her
care, including supporting and respecting a child’s sexual orientation or gender identity;
110 CMR 7.104(1)(d)
Yes, Massachusetts regulations require adoptive and foster families respect and support a child’s sexual orientation or gender identity. However, the complaint also noted:
Yet at the same time, DCF regulation and policy—and the Massachusetts Foster Parent Bill of Rights—all prohibit religious discrimination against potential foster parents.
Burke v. Walsh et. al. – Complaint
The Burke’s attorney points to Massachusetts law, but not their constitution. Specifically, Part the First, (that’s how they title it), Article II:
It is the right as well as the duty of all men in society, publicly, and at stated seasons to worship the Supreme Being, the great Creator and Preserver of the universe. And no subject shall be hurt, molested, or restrained, in his person, liberty, or estate, for worshipping God in the manner and season most agreeable to the dictates of his own conscience; or for his religious profession or sentiments; provided he doth not disturb the public peace, or obstruct others in their religious worship.
MA Constitution, Part the First, Article II
Wouldn’t being denied a foster care license fall under the Burke’s being ‘hurt’ or ‘restrained’ in their liberty?
Claims for Relief
The Burke’s case lists five counts of violation of the First Amendment of the U.S. Constitution, four of the Free Exercise Clause, and one of the Free Speech Clause. In all counts, the claim is that the law is not generally applicable, a requirement under the Supreme Court’s strict scrutiny doctrine. The first four counts focus on the consideration of the Burke’s religious beliefs and using those beliefs as a justification for treating them differently than others. The last count deals with the law’s coercive requirement that adoptive/foster parents express an idea that may violate their religious beliefs. While the complaint claims that the First Amendment is incorporated against the states under the Fourteenth Amendment, I have repeatedly shown that the language of the latter amendment does not change the scope of the former.
The Burkes are asking the court to declare that DCF stop discriminating against them and any others who hold similar religious beliefs, that DCF be enjoined from withholding the Burke’s foster care license, and for legal costs & damages.
Conclusion
As this is just the initial stages of the suit, we’ll have to wait to see how things proceed. Since this case is likely to be appealed, it may take years before we get a final decision. To me, there are a couple of interesting things we should consider.
First, while I do not subscribe to the Supreme Court’s strict scrutiny doctrine, it’s most likely what the courts will use to help decide this case. I would think DCF could not prove that this was the least restrictive means necessary to achieve what the Commonwealth of Massachusetts is most likely to claim as a compelling government interest in the mental and emotional well-being of the children in foster care. After all, I would think there are plenty of children in the foster care system who would not be disturbed by the Burke’s religious beliefs, thereby allowing them to provide what appears to be a desperately needed service without harming a child. Furthermore, by denying a license to anyone with a sincere Roman Catholic faith the Commonwealth of Massachusetts is denying the mental and emotional well-being of children who share that faith.
Second, as the lawsuit points out:
As faithful Catholics, the Burkes believe that all children should be loved and supported, and they would never reject a child placed in their home. They also believe that children should not undergo procedures that attempt to change their God-given sex, and they uphold Catholic beliefs about marriage and sexuality.
Burke v. Walsh et. al. – Complaint
With the recent attempts by the Commonwealth of Massachusetts to promote not only sexualized lifestyles in children, including denying the sex of these children, the question must be asked: Is the Commonwealth of Massachusetts placing their political agenda above the needs of the children in their care? Why does the Commonwealth appear to be focusing on the few confused children with mental health issues, to the detriment of the others? It also seems that the Commonwealth is ignoring 110 CMR 7.104(1)(e) in favor of their transgender agenda.
to respect and make efforts to support the integrity of a child’s racial, ethnic, linguistic,
cultural and religious background;
110 CMR 7.104(1)(d)
How can the Commonwealth claim to be promoting the mental and emotional well-being of the children, when they place their politicized sexual agenda above broader mental, emotional, or religious needs?
It makes me wonder if DCF is more concerned with a child’s ability to mutilate their body rather than the overall health and welfare of the child? Which begs, another question: Who is more dangerous? Religious families or the Commonwealth of Massachusetts?
Paul Engel is an Affiliate of Institute on the Constitution. He founded The Constitution Study in 2014 to help everyday Americans read and study the Constitution. Author and speaker, Paul has spent more than 20 years studying and teaching about both the Bible and the U.S. Constitution. Freely admitting that he “learned more about our Constitution from School House Rock than in 12 years of public school” he proves that anyone can be a constitutional scholar. You can find his books on the Institute on the Constitution Store (theamericanview.com), Amazon, and Apple Books. You can also listen to his weekday radio show on America Out Loud (https://americaoutloud.com/the-constitution-study). You can reach him at paul@constitutionstudy.com
]]>A copy of this proclamation was sent to the executives of the States by the President in a brief form letter (October 3). This form is recorded in the “Letter Book” in the Washington Papers.
Whereas it is the duty of all Nations to acknowledge the providence of Almighty God, to obey his will, to be grateful for his benefits, and humbly to implore his protection and favor, and Whereas both Houses of Congress have by their joint Committee78 requested me “to recommend to the People of the United States a day of public thanks-giving and prayer to be observed by acknowledging with grateful hearts the many signal favors of Almighty God, especially by affording them an opportunity peaceably to establish a form of government for their safety and happiness.”
The Senate concurred in the House resolve to this effect, September 26.
Now therefore I do recommend and assign Thursday the 26th. day of November next to be devoted by the People of these States to the service of that great and glorious Being, who is the beneficent Author of all the good that was, that is, or that will be. That we may then all unite in rendering unto him our sincere and humble thanks, for his kind care and protection of the People of this country previous to their becoming a Nation, for the signal and manifold mercies, and the favorable interpositions of his providence, which we experienced in the course and conclusion of the late war, for the great degree of tranquillity, union, and plenty, which we have since enjoyed, for the peaceable and rational manner in which we have been enabled to establish constitutions of government for our safety and happiness, and particularly the national One now lately instituted, for the civil and religious liberty with which we are blessed, and the means we have of acquiring and diffusing useful knowledge and in general for all the great and various favors which he hath been pleased to confer upon us.
And also that we may then unite in most humbly offering our prayers and supplications to the great Lord and Ruler of Nations and beseech him to pardon our national and other transgressions, to enable us all, whether in public or private stations, to perform our several and relative duties properly and punctually, to render our national government a blessing to all the People, by constantly being a government of wise, just and constitutional laws, discreetly and faithfully executed and obeyed, to protect and guide all Sovereigns and Nations (especially such as have shown kindness unto us) and to bless them with good government, peace, and concord. To promote the knowledge and practice of true religion and virtue, and the encrease of science among them and Us, and generally to grant unto all Mankind such a degree of temporal prosperity as he alone knows to be best.79
From the original in the writing of William Jackson. It was signed by Washington, who had written in the day “third” in the date.
This was the first national Thanksgiving Day proclamation under the Constitution.
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Social media has become so much a part of our everyday lives that we often don’t think about how we use it. This has led to what appears to be a large percentage of Americans developing what can at best be described as some “interesting ideas” about the relationship between government and the various social media platforms. Some recent cases bring the question of the relationship between government actors and social media companies into question. Probably the most well known would be Missouri v. Biden, where the states of Missouri and Louisiana have brought suit claiming that members of the Biden Administration violated the First Amendment by attempting to influence what content would be deleted or deemphasized on various social media platforms. Two other cases involving local officials focus on how government actors can block access to their social media accounts. While most of the country seems to be focused on Missouri, these two cases bring up some questions the American people should really think about.
Should the federal government pressure social media companies to censor content on their platforms? I would hope the American people would not only recognize that it would be wrong, but a violation of the First Amendment. Today, we’ll be looking at a couple of other cases involving local government actors and how they use social media. While the case Missouri v. Biden is extremely important, like so many other things we should not let what’s going on in Washington, D.C. distract us from what is going on in our own back yard. That is why we’re looking at Lindke v. Freed and O’Connor-Ratcliff v. Garnier.
I have to admit to a bit of a love-hate relationship with social media. On the one hand, these platforms help me put content in front of thousands of people I wouldn’t normally have access to. They allow me to post articles, videos, and podcasts on their platforms, usually for no charge. That is a tremendous boon for the information age. Many of these platforms have not only censored some of my content, but have blocked my account entirely, preventing me from using their services. These are private organizations, so I don’t have a problem with them censoring content since these are their platforms, not mine. Still, these two cases highlight dangerous misunderstandings about social media.
The dialogue between public officials and their constituents is fundamental to our democracy. Much of that conversation now takes place online, with social media platforms serving as the new town square, where public officials provide important information about what they’re doing on the public’s behalf and soliciting comments in return.
Lindke v. Freed – Oral Arguments
First of all, the United States and each of the Several States are republics not democracies. While the fundamental difference has been ignored and corrupted over the years, it’s especially important in these cases. In a democracy, the people legislate directly.
Government by the people; a form of government, in which the supreme power is lodged in the hands of the people collectively, or in which the people exercise the powers of legislation.
Democracy – Webster’s 1828 Dictionary
While in a republic, the people’s sovereign power is vested in representatives elected by the people.
A commonwealth; a state in which the exercise of the sovereign power is lodged in representatives elected by the people.
Republic – Webster’s 1828 Dictionary
If we lived in a democracy, the need to dialog with public officials would not be as great since we could create laws to dictate their powers directly. In a Republic, public officials are exercising power loaned to them from their election to office. That means the need to dialog is even greater.
Second is this idea of social media platforms serving as the new “town square”, or as it is sometimes referred to, the new “public square”. The most fundamental problem with this view of social media is that it’s not publicly owned, but privately. When someone posts something on social media, it’s not equivalent of posting a broadside on the town hall or in the square around it. Rather, social media is the equivalent of your neighbor allowing people to post notices on the fence that runs along their property. The fence is still their property, so they have every right to deny individuals or content for whatever reason they deem fit. Furthermore, this metaphorical fence, with all of these posts on it, is not directly accessible via public property. In order to access many of the features, especially the ability to “dialog” with the poster, a person must have an active account on these services. Since these companies are privately owned, their property and their systems are private as well. This means that not only can these companies regulate what gets posted, but also who has access to it and to what level. For these reasons, social media is not, cannot, and never should be considered the “public square”.
Mr. Kedem, attorney for Mr. Lindke, went on with another common misunderstanding often used in the legal profession.
While public officials retain First Amendment rights, use of a private social media account does not immunize an official’s conduct from First Amendment or constitutional scrutiny.
Lindke v. Freed – Oral Arguments
Whatever these officials have done, it cannot be a violation of the First Amendment. As I’ve stated numerous times in these pages, the first five words of that amendment are “Congress shall make no law”. Since the defendant, Mr. Freed, is a city manager, not only is he not a member of Congress and his actions were not taken under a law created by Congress, there can be no First Amendment violation. If there is a violation of the right to petition, it would be of Article I, Section 3 of the Michigan Constitution:
The people have the right peaceably to assemble, to consult for the common good, to instruct their representatives and to petition the government for redress of grievances.
Michigan Constitution, Article I, Section 3
Public vs Private
Mr. Mooppan, the attorney for Ms. O’Connor-Ratcliff, one of two members of the Poway Unified School District Board of Trustees, approached his argument from the other side of the issue.
Individuals who hold public office are still private citizens too. When acting in their personal capacity, they retain their First Amendment rights to decide who can participate in a community discussion that they host at their own property. They are thus free to block users from their personal social media pages, unless they chose to operate those pages in their official capacities instead.
O’Connor-Ratcliff, v. Garnier – Oral Arguments
While making the same First Amendment mistake as Mr. Kedem, Mr. Mooppan also claims that a person’s social media pages are their property. Is that true? To an extent.
The exclusive right of possessing, enjoying and disposing of a thing; ownership. …
Possession held on one’s own right.
The thing owned; that to which a person has the legal title, whether in his possession or not.
Property – Webster’s 1828 Dictionary
A person’s social media space is not owned by them, but by the social media company. This company effectively rents the space on their system, in exchange for access to the data and activity of the user. Just as the renter of an apartment has the legal authority to determine who may enter said property, the user of a social media platform has the right to determine who may enter and participate in their virtual space.
The Right to Petition
As with all of our rights, the right to petition comes with the responsibility of the consequences of those actions. In both cases the government officials claimed that in their case, the other party abused their right to petition.
In 2020, Petitioner Kevin Lindke posted disparaging remarks on Freed’s personal Facebook page. Freed deleted Lindke’s comments and blocked Lindke from the page. Lindke sued, claiming Freed violated his constitutional rights under the First Amendment.
Lindke v. Freed – Petition for Certiorari
Petitioners, two elected members of the Poway Unified School District Board of Trustees, used personal Facebook and Twitter accounts to communicate with the public about their jobs and the District. Respondents, parents of children attending schools in the District, spammed Petitioners’ posts and tweets with repetitive comments and replies. So Petitioners blocked Respondents from the accounts.
O’Connor-Ratcliff v. Garnier – Petition for Certiorari
The Crux of the Matter
In both of these cases, one party is a government employee who used their “private” social media accounts to communicate with the public about matters related to their jobs. Apparently neither of the governments that employed these people had any control over the social media accounts in question. To me, the only way to determine if these actions were public or private is to determine whether these government actors were using their private accounts to conduct government business, and if so, to what extent would that limit their control over those accounts?
Let’s step away from the social media question and look at this another way. Say a government official occasionally uses their private vehicle when conducting public business. While they were doing so, you could reasonably require they follow all government regulations. For example, if the official was using their private vehicle in a public parade, they could not deny certain individuals from approaching while allowing others full access. In a similar way, they could not deny access to public information they posted on their private page, especially if that was the primary way of communicating with the public. However, unlike a private vehicle, access to a social media content is not limited to specific posts. You either have access to view and comment or you don’t. So it’s not an exact analogy, but I think it shows the problem. To me, the real problem is not the blocking of specific accounts by government actors, but the mixing of public and private data on a platform not fully within the control of the account holder.
Conclusion
If social media platforms cannot be the “public square” and account holders can determine who is allowed to access their information, we seem to have a legal quandary. Can government actors hide or otherwise deny access and commentary to content simply by placing it on a “private” social media account? Once the government actor places official material on their private account, is that account still private? Then there’s the question of consequences for people who abuse their right to petition their government for a redress of grievance via social media?
There are several conclusions I think we can come to from this discussion. First, treating social media as a public area is not only legally dubious, but very dangerous. Since the social media companies themselves can determine whether or not a person is allowed to access or have an account on their platform, they effectively have veto power over access to information from government actors, and the ability to comment on them. If we make social media platforms the “new public square”, we effectively are allowing government to take them over. Under the Fifth Amendment, would that be a takings or a deprivation of property without due process, or both? Furthermore, does posting information on “private” social media accounts allow government actors to unilaterally deny access to said information without any due process? Would placing data on a “private” social media account violate any Freedom of Information laws? Do you see how complicated and dangerous this “public square” view of social media is?
There is a lot more to these cases than first meets the eye. Since the Supreme Court has only just heard oral arguments, it is likely to take months before they release their decision. Could all of this been avoided by state and local governments requiring that government business only be performed on government accounts, maybe with an exception for posts on private accounts that point to the publicly available information? Perhaps what we really need is a separation of social media and state?
Paul Engel is an Affiliate of Institute on the Constitution. He founded The Constitution Study in 2014 to help everyday Americans read and study the Constitution. Author and speaker, Paul has spent more than 20 years studying and teaching about both the Bible and the U.S. Constitution. Freely admitting that he “learned more about our Constitution from School House Rock than in 12 years of public school” he proves that anyone can be a constitutional scholar. You can find his books on the Institute on the Constitution Store (theamericanview.com), Amazon, and Apple Books. You can also listen to his weekday radio show on America Out Loud (https://americaoutloud.com/the-constitution-study). You can reach him at paul@constitutionstudy.com
Yesterday, September 17, 2023, was the 236th anniversary of the signing of the Constitution of the United States. Did you, your family, or your neighbors honor that day? Have you considered what parts of your life you enjoy because of that document and the 27 amendments that have been made to it? Have you considered what your life, and that of your family, would be like should that document continue its fall into obscurity? To paraphrase William Shakespeare, “It was a constitution, take it for all in all, I shall not look upon its like again.”
Today, I want to take some time to consider not only what life would be like with a neutered and disabled Constitution, but also what we’re willing to do to keep the protection of our rights alive and well in America. In our national anthem, we proclaim that the United Staters of America is the land of the free and the home of the brave. If we let the Constitution fall though, then we will no longer be the land of the free, because We the People have not been brave.
On September 17, 1787, after the signing of the Constitution, Benjamin Franklin was stopped outside Liberty Hall and asked a question. What type of government have you given us? His answer?
A republic, if you can keep it.
Benjamin Frankin
The “if” in that statement is very important. Having a republic, one based on a paramount law, such as the delegates to the Constitutional Convention had proposed, is not a self-sustaining situation. The republic has been threatened many times over the years, by war, invasion, and even corruption. Today, the republic must face its greatest attack of all: Apathy. To expose this problem, let us break down what a republic is and why it’s so important.
A Republic, if You Can Keep it
Most people today refer to America as a democracy, but it’s not, it’s a republic. Why is this distinction so important?
I know we’ve all been taught, either explicitly or implicitly, that democracy is inherently a good thing. This has been so instilled into the American psyche that Merriam-Webster has even redefined the word to include a republic.
a government in which the supreme power is vested in the people and exercised by them directly or indirectly through a system of representation usually involving periodically held free elections
Democracy – Merriam-Webster Dictionary Online
This redefinition is somewhat new. Back during the drafting and ratification of the Constitution, the difference between a republic and a democracy were not only defined, but extremely important. From Noah Webster’s 1828 dictionary we read that a democracy is:
Government by the people; a form of government, in which the supreme power is lodged in the hands of the people collectively, or in which the people exercise the powers of legislation.
Democracy – Webster’s 1828 Dictionary
Now compare this to Mr. Webster’s definition of a republic.
A commonwealth; a state in which the exercise of the sovereign power is lodged in representatives elected by the people.
Republic – Webster’s 1828 Dictionary
Do you see how the modern dictionary has redefined a democracy to include a republic? In a democracy, the people exercise their power directly, while in a republic they do so through elected representatives. Why did the Founding Fathers find this distinction so important? Look at what Alexander Hamilton said during the convention.
We are now forming a republican government. Real liberty is neither found in despotism or the extremes of democracy, but in moderate governments
Alexander Hamilton – Federal Convention, June 26, 1787
Real liberty is not found in democracies. Why, you ask? Because, in a democracy the passions of the people rule. Hence, Mr. Hamilton referred to the extremes of democracy. So, the Framers of the Constitution created not a democracy, where the people rule directly, but a republic, where the people and the states choose representatives to exercise their sovereign powers. They even went so far as to ensure that each state had a republican form of government.
The United States shall guarantee to every State in this Union a Republican Form of Government and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.
U.S. Constitution, Article VI, Section 4
In order for the republic to survive, it needed two things. A paramount law to guide it, and the people to oversee their representatives.
Paramount Law
It seems today that we don’t often think about the idea of a paramount, or supreme law. However, having a law that supersedes the actions of our elected representatives and the governments they are a part of, is essential to retaining the republic.
Certainly, all those who have framed written Constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an act of the Legislature repugnant to the Constitution is void.
Marbury v. Madison, 5 U.S. 137 (1803)
The Constitution is the fundamental and paramount, or supreme, law of the nation. It supersedes every act of government, and law passed by the legislature, every treaty signed by the executive. It even says so.
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
U.S. Constitution, Article VI, Clause 2
If we are to keep the republic, there must be something above the elected representatives to which we hold them accountable. We the People must have a way to oversee those who are exercising sovereign power in our name. That ultimate power is established and protected by the Constitution of the United States and confirmed in the Tenth Amendment.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
U.S. Constitution, Amendment X
As I have said, if we are to keep the republic, we need two things; a paramount law and a people to oversee their representatives.
Government Oversight
The thing is, the Constitution is just ink on parchment; it cannot rise up and save the day. It’s not going to land on Capitol Hill in some superhero pose and defeat its enemies in Congress. No one is going to rush into 1600 Pennsylvania Avenue and cry, “There’s no need to fear! The Constitution is here!” The Constitution is not the method of reining in an out-of-control government, it’s the tool by which We the People do so. This is why our first Chief Justice, John Jay, once said:
Every member of the State ought diligently to read and to study the constitution of his country, and teach the rising generation to be free. By knowing their rights, they will sooner perceive when they are violated, and be the better prepared to defend and assert them.
John Jay, First Chief Justice of the United States
The Constitution was not written to be understood only by lawyers and judges, but by 18th century farmers. It was not meant solely for the politicians, but for everyone. This is why Mr. Jay said, “Every member of the state ought diligently to read and to study the constitution of his country”. This document was never meant solely for the elite, but for We the People. It includes the tools we need to control the government of the United States, of the several states, and even of our cities, towns, and counties.
Like any other tool, the Constitution is useless unless and until we pick it up and learn how to use it. Which is why I encourage every American to see Constitution Day as an opportunity to read and study the Constitution of our country. Whether this would be the first time, or the thousandth, take this opportunity to learn how to defend and assert your rights. This has been the goal of The Constitution Study since its inception. It is why I devote so much time every week to these articles, videos, and podcast episodes. It is why I wrote and published tools to help you read and study the Constitution. And in honor of this Constitution Day, The Constitution Study is announcing the Patriots Program.
The Patriots Program
I believe the root of many of the problems afflicting the United States and the Several States today, come from a failure of these entities to follow the Constitution. Why do so many government entities not follow the Constitution? Because most Americans have not read, much less studied, the constitution of their country, meaning their assumptions about the role and function of governments is skewed. Furthermore, we as a society have not prioritized teaching the rising generation to be free. In large part because of these failings, we have now multiple generations who neither understand nor cherish what Thomas Jefferson referred to as self-evident truths.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
What can we do about these problems? Most people I’ve encountered look at the size of the problem and are overwhelmed. So what Harvard researcher Erica Chenoweth, who has been studying political protests, has found is extremely interesting.
Looking at hundreds of campaigns over the last century, Chenoweth found that nonviolent campaigns are twice as likely to achieve their goals as violent campaigns. And although the exact dynamics will depend on many factors, she has shown it takes around 3.5% of the population actively participating in the protests to ensure serious political change.
The ‘3.5% rule’: How a small minority can change the world – BBC
Notice two things. First, those campaigns that are non-violent are twice as likely to achieve their goals. Second, it only takes around 3.5% of the population to actively engage to bring about serious political change. Which brings me to the Patriots Program.
The Patriots Program is designed to take a few dedicated people and help make them more effective. In other words, it’s not about replacing whatever you are doing, but to give you tools so you can be more effective, more confident in your positions, and better able to defend and assert your rights.
I have an entire page devoted to the Patriots Program, so if you are interested, or just intrigued by the idea, please check it out. Before you enter the program though, you have to do it through a Bootcamp. I’ve videoed one of these bootcamps, so you don’t have to travel to take part. Once you’ve been through the video and pass the test, you’ll receive an invitation to the Patriots program. If you join the program, you can choose any or all of the specialities, the Scholars, the Committee of Correspondence, or the Minute Men. Just as a small band of dedicated men and women won our independence, I believe a small group can preserve our independence today.
Conclusion
I believe most Americans have never read the Constitution of their country, and of those who have they seem to lack the confidence and understanding to use it. Part of the reason for this seems to be the fact that the Constitution is not taught in schools anymore. Sure, students may be told about the Constitution, expected to memorize when it was signed, and even taught about the three branches of government, but are they taught what it says? For example, how many of you were taught that the federal government has three co-equal branches of government? There are three branches, but if you read the Constitution, you should quickly realize that most of the powers delegated to the United States are actually vested in Congress. I discussed this in my article Do We Have Three Co-Equal Branches of Government? If we cannot depend on our government run schools, or even our law schools, to teach the rising generation to be free, then it is up to us, We the People, to do it for ourselves. I hope you have found The Constitution Study helpful in your efforts to live free. I also hope you will join us as we continue to learn to defend and assert our rights.
Paul Engel is an Affiliate of Institute on the Constitution. He founded The Constitution Study in 2014 to help everyday Americans read and study the Constitution. Author and speaker, Paul has spent more than 20 years studying and teaching about both the Bible and the U.S. Constitution. Freely admitting that he “learned more about our Constitution from School House Rock than in 12 years of public school” he proves that anyone can be a constitutional scholar. You can find his books on the Institute on the Constitution Store (theamericanview.com), Amazon, and Apple Books. You can also listen to his weekday radio show on America Out Loud (https://americaoutloud.com/the-constitution-study). You can reach him at paul@constitutionstudy.com
]]>Who is in charge of your children? That has been a perennial question that has grown in importance over the last few years. When I was a child, it was understood that, with rare exceptions, parents were in charge of a child’s upbringing. This included medical, religious, and educational decisions. Over the last few decades though, the role of the parent in these decisions has been replaced by experts. What happens when the goal of the experts differs from those of the parents? Who decides the future of the rising generations? It was understood that the state acted in loco parentis-in place of the parents-only for the safety of the child. A recent case in U.S. District Court shows that it can also be health departments, child services, schools, or even the courts. Government not only believes they know better than the parents but are more than willing to act in loco parentis tyrannis.
In Loco Parentis
Who decides what is best for your child? This is a fundamental question and is often referred to as parental rights. For most of human history, the answer was simple and straightforward: The parents decide. With the advent of governments, opportunities were cerated for state intervention in parental rights, but they were limited to protecting the safety of the child. Of course, it didn’t take long for Lord Acton’s warning to enter the picture:
Power tends to corrupt and absolute power corrupts absolutely.
Lord Acton
We’ve probably all heard the stories about some overeager Child Protective Services (or their counterparts), taking children away from parents for the flimsiest of reasons. Sometimes, all it took for CPS to get involved is for a neighbor who didn’t like the decisions the parents have made, to file a complaint. It didn’t take long before schools were to get involved as well.
There’s a saying I’ve heard often enough, “Bad facts make bad laws.” Put another way, when you write general laws based on the exception rather than the rule, the often unintended consequences can be catastrophic. For example, many states and localities, in an attempt to protect children from abuse, empowered faculty and staff at schools to report incidents of suspected child abuse. Rare but terrible incidents of abuse not only morphed the ability to report into a duty to report, but also changed the standards of reporting from evidence of physical abuse to suspicion of mental abuse. The problem is two-fold. First, “mental abuse” is not well defined, and second, suspicion is not necessarily based on anything real. This has led to an attitude that the schools are ultimately responsible for the physical and mental welfare of a child, including determining what they need for an education. Whereas school boards used to work with parents and parental groups to determine educational standards, today they are being decided by “experts”, completely devoid of parental involvement, and with little if any concern for the individual needs of the child. A recent case out of the U.S. District Court of Maryland seems to be a perfect example.
Mahmoud v. McKnight
The premise of the case is fairly simple.
In this lawsuit, parents whose elementary-aged children attend Montgomery County Public Schools (“MCPS”) seek the ability to opt their children out of reading and discussion of books with lesbian, gay, bisexual, transgender, and queer characters because the books’ messages contradict their sincerely held religious beliefs about marriage, human sexuality, and gender.
The Montgomery County Public Schools (MCPS) was using material in the classroom that several parents found objectionable. In this case the objections revolved around the parents’ religious belief and the faith they wished to instill in their children. Why did these parents feel the need to sue MCPS in federal court? Because their right to opt their children out of offensive material was being denied by MCPS.
Last school year, MCPS incorporated into its English language arts curriculum a collection of storybooks featuring LGBTQ characters (the “storybooks” or “books”) in an effort to reflect the diversity of the school community. Initially, parents could opt their children out of reading and instruction involving the books, as they could with other parts of the curriculum. In March of this year, the defendants—the Montgomery County Board of Education, the MCPS superintendent, and the elected board members (collectively, the “School Board”)—announced that parents no longer would receive advance notice of when the storybooks would be read or be able opt their children out.
When MCPS initially incorporated into their curriculum material of a sexual nature, the parents could opt their children out. In March of this year, leadership in MCPS decided that the material they wished to expose to children attending their schools was more important than the concerns of the parents and their religious instruction. Ironically, the attempt by MCPS to reflect diversity denied the diverse ideas of these parents. This action led to some concerned parents filing the lawsuit.
Following the announcement, three families of diverse faiths filed suit against the School Board, claiming the no-opt-out policy violates their and their children’s free exercise and free speech rights under the First Amendment, the parents’ substantive due process rights under the Fourteenth Amendment, and Maryland law. …
The plaintiffs contend state law requires MCPS to provide opt-outs from the storybooks because, in their view, the books concern family life and human sexuality. The School Board’s position is that the storybooks are part of its English language arts curriculum and opt-outs are required only for the family life and human sexuality unit of instruction, a separate curriculum.
As part of the suit, in order to protect their children from the exposure to, and potential damage from, these books, the parents requested a preliminary injunction against MCPS to prevent them from implementing the no-opt-out policy.
Opt Out Laws
Most states recognize, at least on paper, that parents ultimately have the power to control the education of their children. For this reason, states that require education in sensitive areas have laws allowing parents to opt their children out of that specific instruction.
Like most other states that require or permit instruction on human sexuality in public schools, Maryland allows for opt-outs from such instruction in certain circumstances and requires schools to adopt “policies, guidelines, and/or procedures for student opt-out” and to provide alternative learning activities.
I say that states recognize parental rights on paper because these laws mean nothing if they are not logically enforced. By that I mean that the laws allow parents to opt their children out of instruction they find objectionable, even over the objections of the school or district.
Hazel??? states the new no-opt-out policy was the result of meetings with a small group of principals in March 2023, during which the School Board determined that principals and teachers “could not accommodate the growing number of opt out requests without causing significant disruptions to the classroom environment and undermining MCPS’s educational mission.”
Sadly, this is a sentiment I’ve heard all too frequently before. From politicians to bureaucrats and, yes, even school boards and principals, it seems more often than not these groups prefer to force others to comply with their failure rather than learn from it themselves. The School Board for MCPS found that a lot of parents were opting their children out of the classes with these objectionable books. Rather than asking themselves, “Hey, if so many parents object, do we need to look again at these books we’ve chosen?” Instead, their response is to prevent parents from opting their children out.
The School Board had three concerns. First, high student absenteeism. In one instance, for example, parents sought to excuse dozens of students in a single elementary school from instruction. Second, the infeasibility of managing numerous opt-outs. Teachers would have to track and accommodate opt-out requests for their students, and other staff who spent time in multiple classrooms would have to do so across an entire school. Finally, the School Board was concerned that permitting some students to leave the classroom whenever books featuring LGBTQ characters were used would expose students who believe the books represent them and their families to social stigma and isolation. The School Board believed that would defeat its “efforts to ensure a classroom environment that is safe and conducive to learning for all students” and would risk putting MCPS out of compliance with state and federal nondiscrimination laws. Based on these concerns, the School Board decided to disallow opt-outs from the storybooks, regardless of the reason, after the 2022–2023 school year.
Did you see that? The School Board was more concerned about their lives than those of the children. They were concerned with high student absenteeism, but not why the students were absent. They were concerned about the workload of the teachers, but not the impact on the students. And finally, while claiming they were concerned about the social stigma of the students who believe the books represent them, the Board showed absolutely no concern for the significant number of students who might be uncomfortable, even stigmatized, by being exposed to such topics at their age.
Constitutional Issues
My heart breaks to see people who have such a powerful grievance receive unconstitutional advice from their legal counsel.
The plaintiffs claim the School Board’s decision to disallow opt-outs from the storybooks likely violates their rights under the Free Exercise Clause of the First Amendment and the Due Process Clause of the Fourteenth Amendment. The School Board argues the plaintiffs have not established a likely constitutional violation.
The plaintiffs claim that the School Board’s policy violates the Free Exercise of the First Amendment. Faithful readers of The Constitution Study probably know what I’m going to say next. This cannot be a violation of the First Amendment to the Constitution of the United States, since the first five words of that amendment are:
Congress shall make no law
Constitution of the United States, Amendment I
Congress had nothing to do with this policy, so it cannot be a violation of the First Amendment. Furthermore, even if this case violated the First Amendment, it plainly is not a violation of the Free Exercise Clause.
The First Amendment, applicable to the states through the Fourteenth Amendment, provides in part that “Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof.” U.S. Const., amend. I. The Free Exercise Clause “protects against laws that discriminate against or among religious beliefs or that restrict certain practices because of their religious conduct.” … To violate the Free Exercise Clause, a law, regulation, or government policy must “burden religious exercise.”
The fact that a government school is teaching something that does not comport with your religious beliefs, doesn’t prevent you from exercising your religion. It does not even prevent a parent from teaching their children that the instruction they receive from the government school is wrong because it’s contrary to their belief. What we have here is not a violation of plaintiff’s free exercise right, but an establishment of religion. By claiming that plaintiffs’ religious beliefs are superseded by the state’s beliefs about diversity and sexuality, the MCPS School Board has effectively established the tenants of faith that all public-school children must adopt.
While this case is not a violation of the First Amendment to the Constitution of the United States, it is a violation of Article 36 of the Declaration of Rights in Maryland’s Constitution.
no person ought by any law to be molested in his person or estate, on account of his religious persuasion, or profession, or for his religious practice,
Maryland Constitution, Article 36
By forcing children to be taught a form of belief contrary to their parent’s desire, they are molesting both the parents and the children for the professions of their faith.
As noted before, Plaintiffs also claim MCPS’s violate their rights protected under the Due Process Clause of the Fourteenth Amendment.
The plaintiffs assert that the School Board’s refusal to allow parents to opt their children out of reading and discussion of the storybooks infringes their right to direct their children’s upbringing in violation of the Due Process Clause of the Fourteenth Amendment. They claim this due process right is fundamental, triggering strict scrutiny.
What is the Due Process Clause of the Fourteenth Amendment?
nor shall any State deprive any person of life, liberty, or property, without due process of law;
U.S. Constitution, Amendment XIV, Section 1
So, does the School Board’s policy violate this right?
[T]he Supreme Court has stated consistently that parents have a liberty interest, protected by the Fourteenth Amendment, in directing their children’s schooling. When the parents’ interest includes a religious element, however, the Court has declared with equal consistency that reasonable regulation by the state is permissible, even if it conflicts with that interest. That is the language of rational basis scrutiny.
Once again, we see courts placing their opinions above the supreme law of the land. The Supreme Court recognizes that parents have a liberty interest in directing their children’s schooling, but then they add a religious exception that does not exist in the text of the Constitution. The court is effectively saying, “You have a right to due process, unless there is a religious element.” In fact, it’s the Supreme Court that’s prohibiting the free exercise of religion by creating a religious test for due process.
Conclusion
So where does that leave our plaintiffs and their request for a preliminary injunction?
The plaintiffs have not established the requirements for a preliminary injunction. Their motion is denied. Their request for an injunction pending appeal is denied. A separate Order follows.
In other words, “No injunction for you!” I can understand the First Amendment argument against the injunction, but not the Fourteenth Amendment one. Yes, the court states that the Supreme Court has placed a religious exemption on a parent’s liberty to direct their child’s education, but the judge took oath to support the Constitution of United States, not the opinions of judges. Which brings me back to my opening question. Who ultimately guides the education of your child? If the schools, with the support of the courts, are able to take their role as in loco parentis, and use it for whatever agenda they decide, then their actions are tyrannical indeed.
Paul Engel is an Affiliate of Institute on the Constitution. He founded The Constitution Study in 2014 to help everyday Americans read and study the Constitution. Author and speaker, Paul has spent more than 20 years studying and teaching about both the Bible and the U.S. Constitution. Freely admitting that he “learned more about our Constitution from School House Rock than in 12 years of public school” he proves that anyone can be a constitutional scholar. You can find his books on the Institute on the Constitution Store (theamericanview.com), Amazon, and Apple Books. You can also listen to his weekday radio show on America Out Loud (https://americaoutloud.com/the-constitution-study). You can reach him at paul@constitutionstudy.com
]]>With the release of ChatGPT and other artificial intelligence (AI) applications, there has been a lot of speculation and downright assertions about our future. With over 30 years of experience in Information Technology (IT), I have more than a passing understanding of AI’s, and have come to the conclusion that much of what I’ve heard is more science fiction than fact. A recent court case decided in the D.C. District Court revolved around one very important question. Do AIs have rights?
Artificial Intelligence
There’s a lot of confusion out there about artificial intelligence. Some claim that AI’s have the power of independent thought which will, one day, allow them to take over the world. Others write AI’s off as nothing but a novelty. Based on my experience, the truth is somewhere in the middle.
I am not an expert on the current state of artificial intelligence, but there are certain things I know to be true. Let’s start with what an AI currently is. Today’s AI’s are, in general, sophisticated pattern matching software. What differentiates them from other types of software is their ability to “infer” a conclusion. For example, if you create a standard pattern matching algorithm designed to identify dogs in pictures, it can only match a picture of a dog it has already been programmed with. However, an AI designed to perform the same task will compare the pictures with what it has been trained with and attempt to “infer” if a dog is present based on how closely it can match the images in its database. The process of adding known dog images to the AI’s database is known as training. That’s a very important point. AI’s don’t have an innate understanding of what a dog is. They must be trained, usually with thousands to millions of samples, for it to stand a chance of accurately inferring if there is a dog in a picture. This is how ChatGPT, Siri, and Google Assistance all work, but with words rather than images. It looks at what you have typed or spoken and compares that to its database to infer what you are asking for. Then it searches for what it thinks you want and returns it to you, whether that be the sports scores, playing a song, or compiling data into your latest term paper. With that in mind, let’s look at the recent case Thaler v. Perlmutter.
Thaler v. Perlmutter
This case starts with a man, a computer, and a piece of art.
Plaintiff Stephen Thaler owns a computer system he calls the “Creativity Machine,” which he claims generated a piece of visual art of its own accord. He sought to register the work for a copyright, listing the computer system as the author and explaining that the copyright should transfer to him as the owner of the machine.
The important part of Mr Thaler’s claim is not that he wants a copyright for the art, but that he wanted the computer to be listed as the “author”. I find this a very dubious claim, since he clearly wants the copyright for himself, and I’m not the only one suspicious of Mr. Thaler’s copyright application.
The Copyright Office denied the application on the grounds that the work lacked human authorship, a prerequisite for a valid copyright to issue, in the view of the Register of Copyrights.
Shira Perlmutter is the Register of Copyrights and Director of the United States Copyright Office. She is the one who ultimately denied Mr. Thaler’s application for one simple reason. Listing the computer system “Creativity Machine” as the author would mean there was no human authorship, thereby making the application invalid. This, to me, is the crux of the matter. Do computer systems have property rights?
Property Rights
To properly analyze this question, we have to understand what property is.
This term in its particular application means “that dominion which one man claims and exercises over the external things of the world, in exclusion of every other individual.”
In its larger and juster meaning, it embraces everything to which a man may attach a value and have a right; and which leaves to everyone else the like advantage.
James Madison – Property – For the National Gazette, 27 March 1792
Property is that which someone holds dominion over. Mr. Madison specifically refers to a man here, but I want to discuss that later in the article. So, can a computer system hold dominion and exercise control over external things? In some cases, yes, but in the case of a piece of art, no. Even if “Creativity Machine” has the ability to interact with external things, it cannot hold dominion over them, since it is owned by Mr. Thaler. Which brings us to the question of “free will”.
He has an equal property in the free use of his faculties and free choice of the objects on which to employ them.
James Madison – Property – For the National Gazette, 27 March 1792
“Creativity Machine” did not have the free use of its faculties; it was programmed to make visual art. It did not have a free choice of what to create, it was instructed to create a picture. So, by all aspects of Mr. Madison’s words, the art in question was not the property of “Creative Machine”, rather it was the property of Mr. Thaler. This is confirmed by Mr. Thaler’s own application for copyright since he claimed, “the copyright should transfer to him as the owner of the machine.”
Copyright
Next, we need to look at the question of copyright. In Article I, Section 8, Clause 8, Congress is delegated the power:
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
U.S. Constitution, Article I, Section 8, Clause 8
Congress can make laws granting authors exclusive right to their writings. Is “Creative Machine” an author? Copyright law (Title 17, U.S.C.), does not define the word “author”, so let us look at a couple of other sources.
AU’THOR, noun One who produces, creates, or brings into being;
Author – Webster’s 1828 Dictionary
“Creative Machine” did produce the art. Does that make it the author? If an author is “one who produces”, then we need to look at the definition of “one” in this context.
ONE is used indefinitely for any person;
One – Webster’s 1828 Dictionary
one used as a third person substitute for a first person pronoun
One – Merriam-Webster’s Online Dictionary
Since “one” in this context is a pronoun used for a person, “Creative Machine” is not an author because it is not a person. The court came to a similar conclusion, although by a much longer method.
The 1976 Act’s “authorship” requirement as presumptively being human rests on centuries of settled understanding.
The blurring of the lines between man and machine-made products will most definitely lead to future confusion.
Undoubtedly, we are approaching new frontiers in copyright as artists put AI in their toolbox to be used in the generation of new visual and other artistic works. The increased attenuation of human creativity from the actual generation of the final work will prompt challenging questions regarding how much human input is necessary to qualify the user of an AI system as an “author” of a generated work, the scope of the protection obtained over the resultant image, how to assess the originality of AI-generated works where the systems may have been trained on unknown pre-existing works, how copyright might best be used to incentivize creative works involving AI, and more. …
However, there do appear to be some questionable aspects in Mr. Thaler’s claim.
This case, however, is not nearly so complex. While plaintiff attempts to transform the issue presented here, by asserting new facts that he “provided instructions and directed his AI to create the Work,” that “the AI is entirely controlled by [him],” and that “the AI only operates at [his] direction,” …—implying that he played a controlling role in generating the work—these statements directly contradict the administrative record. … Here, plaintiff informed the Register that the work was “[c]reated autonomously by machine,” and that his claim to the copyright was only based on the fact of his “[o]wnership of the machine.”
Conclusion
It should be obvious to everyone that we are heading into a brave new world. One where machines will act more and more autonomously, thereby decreasing human involvement. While this will be a tremendous boon to productivity, it also raises serious concerns. This case involved the question of authorship and whether a computer system had the right to own and control its creations. Today, in this court and this case, the answer is no. This case, however, does bring to light a potential issue.
What happens if one day a court decides that an author does not need to be human? Could an AI own, as property, the copyright for more than just a work of art? Could a machine hold the patent for a drug or vaccine? Could an AI develop, and therefore own, a DNA sequence? Would it then own whatever the sequence is, be it for viruses, cattle, or even a human?
Congress has the power to protect the works of authors and inventors. As we enter this brave new world, perhaps we should make sure our employees in that body protect We the People by defining what an author is in the law.
Paul Engel is an Affiliate of Institute on the Constitution. He founded The Constitution Study in 2014 to help everyday Americans read and study the Constitution. Author and speaker, Paul has spent more than 20 years studying and teaching about both the Bible and the U.S. Constitution. Freely admitting that he “learned more about our Constitution from School House Rock than in 12 years of public school” he proves that anyone can be a constitutional scholar. You can find his books on the Institute on the Constitution Store (theamericanview.com), Amazon, and Apple Books. You can also listen to his weekday radio show on America Out Loud (https://americaoutloud.com/the-constitution-study). You can reach him at paul@constitutionstudy.com
]]>Since last year’s Supreme Court decision in Dobbs v. Jackson Women’s Health Organization overturned the court’s precedent in Roe v. Wade, there has been a flurry of work on both sides of the debate. Some states passed legislation restricting access to abortions except for medically sound reasons, others to not only secure abortion access in law but effectively declare themselves abortion sanctuary states. Some groups are working to enshrine abortion in their state’s constitution. With all the heated rhetoric on both sides, one question never seems to be asked: Would any of these state constitutional amendments be constitutional?
The Issue That Will Not go Away
Just as those in 1973 who thought that Roe v. Wade would put an end to the abortion debate, there are those who thought the 2022 case Dobbs v. Jackson Women’s Health would also end the debate. Both groups were wrong. In 1973, the Supreme Court, rather than tamping down the controversy, simply encouraged the two sides to further entrench their positions and inflame their demonstrations. In 2022 the court did the same thing, just in the other direction. So, I was not surprised when state legislatures, many who had already prepared for the overturning of Roe v. Wade, simply changed their battlegrounds. States like Florida, Texas, and others placed more restrictions on abortions, while states like California and New York protected abortions with state laws. Some states are even trying to take abortion protection to the next level. Not content to protect abortion with state law, they are trying to amend their state’s constitution to do so.
Ohioans will vote next November on a petition to amend their constitution with language that includes the following:
The Amendment would amend Article I of the Ohio Constitution by adding Section 22, titled “The Right to Reproductive Freedom with Protections for Health and Safety”.
The Amendment provides that:
Arizona for Abortion Access, a political action committee, has contacted Arizona Secretary of State, Adrian Fontes, in an attempt to get a constitutional amendment protecting abortion on the November 2024 ballot. Activists in Florida have been collecting signatures in an attempt to overturn recent state law to protect the right to abortion. Nebraska and South Dakota also appear to be moving toward putting a constitutional amendment before their citizens. Other states like North Dakota, Oklahoma, Arkansas, and Montana have been trying to amend their state’s constitution, but with little apparent success.
All these actions have one thing in common: They are attempts to supersede the will of the people as expressed by their representatives, with the will of the people as expressed at the ballot box. To understand this maneuver, we have to understand what a constitution is.
What is a Constitution
Certainly, all those who have framed written Constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an act of the Legislature repugnant to the Constitution is void.
A Constitution is the fundamental and paramount law, either of a nation or of a state. Since any changes to a state constitution must be ratified by a vote of the people of that state, we see that the people of a state are sovereign not only over their government, but their elected representatives as well. Unfortunately, the process in most of our states for amending their constitution appears to ignore the fundamental nature of their constitution and replace their republican form of government with a democracy.
DEMOCRACY, noun Government by the people; a form of government, in which the supreme power is lodged in the hands of the people collectively, or in which the people exercise the powers of legislation.
DEMOCRACY, Webster’s 1828 Dictionary
The issue is not where the supreme power of a state is lodged, but the method by which it is exercised. Most of the states only require a simple majority to ratify an amendment to their constitution. While at first this may seem a good and equitable process, it ignores one fundamental issue: If the fundamental law of a state can be changed by a simple majority vote of the people, we will have left the realm of a republic and become a form of democracy. Good, you say? America is a democracy, so its amendment processes should be democratic.
That is not what the Framers of our Constitution thought though:
“Democracy… while it lasts is more bloody than either aristocracy or monarchy. Remember, democracy never lasts long. It soon wastes, exhausts, and murders itself. There is never a democracy that did not commit suicide.”
John Adams, letter to John Taylor, 1814
This is why the United States is a republic, not a democracy.
We are now forming a republican government. Real liberty is neither found in despotism or the extremes of democracy, but in moderate governments
Alexander Hamilton – Federal Convention, June 26, 1787
So why is amending a constitution by a simple majority so dangerous? Because it can easily be used as a citizen legislature rather than the fundamental law of the state.
The Constitution for the United States, including all the amendments, is just under 8,000 words. According to Ballotpedia, it’s 39,000 words long and has been amended 115 times. If you are curious, the longest and most amended constitution is Alabama’s at 389,000 words and 950 amendments. To a certain extent the size difference between the constitution of a state and the United States makes sense. After all, as James Madison wrote in Federalist Paper #45:
The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.
James Madison – Federalist Paper #45
Yet, as often happens, the people of these states have abused their power to establish the fundamental laws for their state in order to become direct legislators, thereby turning their state from a republic into a form of democracy. Again, many of you may be thinking “Great! Majority rules.” But is that true? Between 2005-2008, Erica Chenoweth and Maria Stephan studied the effectiveness of violent and non-violent political uprisings. Their research led to the 2011 book, Why Civil Resistance Works: The Strategic Logic of Nonviolent Conflict.
Further research showed the surprisingly small critical mass needed for success: movements that were able to mobilize at least 3.5 percent of the population were uniformly successful.
If Mss. Chenoweth and Stephan’s research is correct, it doesn’t take 50%+1 to change a society, just a committed 3.5%. Which may explain why state constitutions, supposedly the fundamental and paramount law of the state, include laws regulating private sewer systems, the use of golf carts on city streets, and the confinement of pigs during pregnancy.
Supremacy
Regardless of the manner used amending the constitution of their state, those who would enshrine abortion in their states’ constitution are attempting either to void the acts of the legislature that have restricted it or as a preemptive strike against any future legislation. On its face, this seems to be a winning strategy. That is, except for one little thing: Supremacy.
If the constitution of a state is the fundamental and paramount law of the state, it seems to reason that, as the supreme law of the state, the abortion activists have a winning plan. However, each state has joined the compact known as the Constitution of the United States. In this compact we find the following clause:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
U.S. Constitution, Article VI, Clause 2
While the constitution of any state may be the fundamental law of the state, the Constitution of the United States holds supremacy over it. This means that any state law or constitutional clause in that state that is contrary to the Constitution of the United States is void. What does that say about these attempts to amend a state constitution? If I can show you that any such amendment is a violation of the Constitution of the United States, then those acts are void, and the judges in every state should ignore them, right?
The Right to Life
While the right to life is an adage adopted by many in the pro-life movement, it’s certainly more fundamental than that. All the way back in 1791, when the Bill of Rights was adopted, it protected the right to life.
No person shall … be deprived of life, liberty, or property, without due process of law;
U.S. Constitution, Amendment V (emphasis added)
The Due Process clause of the Fifth Amendment makes it quite clear; no person shall be deprived of life without due process of law, which the free legal dictionary defines as:
An established course for judicial proceedings or other governmental activities designed to safeguard the legal rights of the individual.
Due Process – The Free Legal Dictionary
This protection of life was once considered so important that in 1868 it was again enshrined into the Constitution by the Fourteenth Amendment, this time specifically limiting the states.
nor shall any State deprive any person of life, liberty, or property, without due process of law;
U.S. Constitution, Amendment XIV, Section 1
I know, many pro-abortionists do not believe that the child in the womb is a person, but do political actors get to redefine words to support their political agendas?
PERSON An individual human being consisting of body and soul.
PERSON – Webster’s 1828 Dictionary
PERSON A living human.
PERSON – The Free Legal Dictionary
The child in the womb, from the moment of conception, is an individual human being. They possess DNA separate and distinct from their mother. Furthermore, from the moment of conception, the fertilized egg shows signs of life such as taking in nourishment and growing. After just five weeks there’s a detectable heartbeat which, in short, is evidence the child is alive. Therefore, to legally deprive that child of their right to life, there must be due process, a process designed to protect the legal rights of that child.
Conclusion
So where does all this leave us? If we had a constitutional judicial system, the judges in every state would ignore these state amendments as acts contrary to the supreme law of the land: The Constitution of the United States. They would require the state to either prove that the child in the womb is not an individual, living human being, or that their existence violates a fundamental right of the mother, such as her right to life. To all of those who say that the woman has a right to her own body, I do not disagree. Just as the child does not have the right to take the mother’s life, the mother does not have an inherent right to take the child’s life.
As the Supreme Court was wrong in 1973 to think the Roe v. Wade decision would end the controversy over abortion, they were just as wrong to think the Dodd v. Jackson Women’s Health would end it. While people may not like the fact that the Constitution of the United States protects the right to life, it’s the supreme law of the land. Imagine what life would mean if the United States were a democracy, i.e., if those protections for life could be overturned by a mere 50% vote. Then the United States would truly resemble the dystopia described in the saying:
Democracy is two wolves and a lamb voting on what to have for lunch. Liberty is a well-armed lamb contesting the vote!
Attributed to Benjamin Franklin.
Paul Engel is an Affiliate of Institute on the Constitution. He founded The Constitution Study in 2014 to help everyday Americans read and study the Constitution. Author and speaker, Paul has spent more than 20 years studying and teaching about both the Bible and the U.S. Constitution. Freely admitting that he “learned more about our Constitution from School House Rock than in 12 years of public school” he proves that anyone can be a constitutional scholar. You can find his books on the Institute on the Constitution Store (theamericanview.com), Amazon, and Apple Books. You can also listen to his weekday radio show on America Out Loud (https://americaoutloud.com/the-constitution-study). You can reach him at paul@constitutionstudy.com
]]>I encourage people to ask questions. I believe there are only two “stupid” questions in the world: The one you don’t ask and the one you ask three times. Questions are important. We cannot truly learn unless we ask questions. Several weeks ago, I posted the article The Role of Congress. I was pleased when I was asked a question about that article. Specifically, what are the powers of Congress? This article is the answer to that question.
Legislative Powers
We find most of the powers delegated to Congress in Article I, Section 8, but not all of them. As I pointed out in the article on the role of congress, Article I, Section 1, states:
All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
U.S. Constitution, Article I, Section 1
According to Webster’s 1828 Dictionary, that legislative power is:
LEG’ISLATIVE, adjective
Capable of enacting laws
LEG’ISLATIVE – Webster’s 1828 Dictionary
So, the first, and most important power, delegated to Congress is the sole power of enacting laws. Yes, the President can veto a bill before it becomes law, but Congress has the power to override such a veto. We find this in Article I, Section 7, Clause 2
Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law.
U.S. Constitution, Article I, Section 7, Clause 2
We find the power of impeachment, and the trial thereof, in Sections 2 and 3 of Article I.
The House of Representatives …shall have the sole Power of Impeachment.
U.S. Constitution, Article I, Section 2, Clause 5
The Senate shall have the sole Power to try all Impeachments.
U.S. Constitution, Article I, Section 3, Clause 6
Which brings us to Section 8.
Section 8
As I stated before, we find the majority of the powers delegated to Congress in Article I, Section 8 of the Constitution. There are 18 clauses delegating power solely to the Congress as a whole. This represents the vast majority of the powers delegated to the United States.
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
U.S. Constitution, Article I, Section 8, Clause 1
This is where Congress is delegated the power to lay and collect taxes. Yes, even taxes on income. Before the Sixteenth Amendment, the collection of any taxes directly from the people, including on income, was to be apportioned to the states.
The Congress shall have 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.
U.S. Constitution, Amendment XIV
The Sixteenth Amendment did not add the power for Congress to collect income taxes, but to do so without apportionment to the states.
Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union,
U.S. Constitution, Article I, Section 2, Clause 3
Notice that this is not a general power of taxation. Congress can only collect taxes to do three things:
While paying the debts and the common defense of the United States seem pretty well understood, this General Welfare Clause has been used illegally to expand the powers of the federal government for decades. Notice that Congress only has the power to collect taxes for the general welfare of the United States, not the several states or the people, but only the United States.
To borrow Money on the credit of the United States;
U.S. Constitution, Article I, Section 8, Clause 2
This is another example of Congress abusing their power. One amendment I would love to see added to the Constitution would be to restrict this power to borrow money.
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
U.S. Constitution, Article I, Section 8, Clause 3
Three for three. This clause, known as the Commerce Clause, says Congress can only regulate commerce with three entities: Foreign nations, the several states, and the Indian tribes. Not to regulate commerce in general, or anything that might pass through interstate commerce, but only the actual commerce that travels between these entities.
To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
U.S. Constitution, Article I, Section 8, Clause 4
Congress has the power to create rules for naturalization: How someone becomes a citizen. That would logically include the rules for when someone is a citizen. Congress also creates bankruptcy laws throughout the United States.
To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
U.S. Constitution, Article I, Section 8, Clause 5
Congress has the power to coin (create) money and regulate its value. It also has the power to regulate the value of foreign currency and establish standard weights and measures. If you’ve ever wondered why the United States never adopted the metric system, part of the reason is because enough people couldn’t convince enough members of Congress to do so.
To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
U.S. Constitution, Article I, Section 8, Clause 6
If a government issues money or instruments that promise to pay a debt (securities), what happens when someone makes counterfeits? It not only defrauds the person who accepts them, but devalues all of the actual legal tender in everyone else’s pocket. That is why Congress has the power to determine what the punishment should be for such crimes.
To establish Post Offices and post Roads;
U.S. Constitution, Article I, Section 8, Clause 7
Ever wonder why every town has its own post office? Because Congress has the power to establish post offices. Most of the time these post offices are created to serve the people who live in that town. Sometimes though, they’re there to give the local Congressman a political bump. Want to make townsfolk happy? Give them a post office closer than the one they have. Already have a post office? No problem, just find a reason to build a new one.
Then we have the “post roads”. What is a post road? In the colonial days and the early days of the republic, post roads were how the mail got from post office to post office. Today, things are a bit different. Not only does the mail travel on everything from back roads to interstate highways, but by air as well. So, what are today’s post roads? The closest thing to post roads I can think of is the Interstate Highway system, even though that’s not why it was created. Of course, the fact that Congress can only establish post roads hasn’t stopped them from building and funding all sorts of roads across the county.
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
U.S. Constitution, Article I, Section 8, Clause 8
Remember Clause 1, where Congress has the power to lay and collect taxes? Of the three things Congress can collect taxes for, grants, loans, and other ways to “invest” in the arts and sciences is not one of them. Congress can establish copyrights and patents, but that’s the only way they can legally promote science and the arts.
To constitute Tribunals inferior to the supreme Court;
U.S. Constitution, Article I, Section 8, Clause 9
Remember the article The Role of the Federal Courts? Article III, Section 1 reads:
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.
U.S. Constitution, Article III, Section 1
If the judicial power of the United States is going to include courts inferior to the Supreme Court ordained and established by Congress, then Congress needs the power to create those tribunals.
To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;
U.S. Constitution, Article I, Section 8, Clause 10
One of the problems under the Articles of Confederation was that each state could have a different set of rules and punishments for international crimes. Under the Constitution, there would be one set of rules and punishments for crimes on the high seas and violations of international laws.
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
U.S. Constitution, Article I, Section 8, Clause 11
While we’re talking about international relations, let’s talk about war. Congress has the power to declare war, but there are no standards about how it’s to do so. Sure, Congress can pass a resolution declaring war, but we haven’t done that since 1941. If Congress funds military actions just like a war, but doesn’t call them wars, does that make a difference? Part of war in the 18th century included privately owned ships, who acted for a country under letters of marque.
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
U.S. Constitution, Article I, Section 8, Clause 12
If the United States was going to declare war, it was going to need an army. The Framers had dealt with full-time professional armies, and they were concerned about a military coup. That’s why no appropriation of money for an army can be for longer than two years. That way, any army would have to come back to Congress for funding every two years.
To provide and maintain a Navy;
U.S. Constitution, Article I, Section 8, Clause 13
If you’re going to have an army, you really need a navy as well, but who is going to set the rules?
To make Rules for the Government and Regulation of the land and naval Forces;
U.S. Constitution, Article I, Section 8, Clause 14
Congress makes the rules for the military. Yes, the President is the Commander in Chief, but he works under the rules established by Congress.
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
U.S. Constitution, Article I, Section 8, Clause 15
Again, most people think it’s the President who calls up the militia, but legally it’s Congress. However, the militia cannot be called up for just any reason. The only things Congress can use the militia for is to execute U.S. Law, suppress insurrections, and repel invasions. Makes you wonder about all those National Guard units being deployed overseas, doesn’t it?
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
U.S. Constitution, Article I, Section 8, Clause 16
Since the militias belong to their home state when not called up to serve the United States, it’s easy to see how training and discipline standards could vary. By placing the organization and discipline standards in the hands of Congress, the militias will be able to work together when called into service.
To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;
U.S. Constitution, Article I, Section 8, Clause 17
This clause does two things. 1) Authorizing a federal district to become the seat of government, and 2) Giving Congress legislative power over federal land.
Let’s start with the district. Most people are aware of the ten miles square but forget that states had to cede the land and Congress had to accept it. While both Maryland and Virginia originally ceded land for the district, Virginia asked, and was eventually granted, its land back.
Some people want the District of Columbia to become a state, forgetting not only that it would be a violation of the Constitution to do so, but that the purpose of the district is to be the seat of the government of the United States, not the hometown of the 670,000 who live there today.
As to the legislative power over federal land, that’s limited by this clause to specific places; forts, magazines, arsenals, dockyards, and other needful buildings. Also, all of this land needs to be purchased with the consent of the legislature of the state. That brings into question not only the Louisiana Purchase, but the acquisition of the entire western U.S., including Alaska and Hawaii.
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
U.S. Constitution, Article I, Section 8, Clause 18
If you remember, in the separation of powers Congress legislates and the President executes. Congress has the power to make laws necessary and proper to make sure the powers vested in the United States by the Constitution are put into effect. That means that any legislation putting into effect a power not delegated to the United States is neither necessary nor proper. In fact, according to Alexander Hamilton and multiple Supreme Court opinions, such laws are void and as meaningless as if they had never been passed.
There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.
Alexander Hamilton, Federalist Paper #78
Other Powers
There are other powers delegated to Congress. For example, in Article II, Section 2, Clause 2 we find:
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law:
U.S. Constitution, Article, II, Section 2, Clause 2
Speaking of the Presidency, there is a rumor that has been going around claiming that Congress certifies the election held within the Electoral College. That is not true.
the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;
U.S. Constitution, Amendment XII
The only role Congress has in the election of the President is to observe the counting of the votes of the electors in each state.
Then there’s the Full Faith and Credit Clause:
Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.
U.S. Constitution, Article IV, Section 1
Congress determines how the public acts and records of the states are proved and what their affect is.
Congress has the power to admit new states into the union.
New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.
U.S. Constitution, Article IV, Section 3, Clause 1
They also may dispose of and make rules and regulations for the territories of the United States.
The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.
U.S. Constitution, Article IV, Section 3, Clause 2
Lastly, Congress has the power to propose amendments to the Constitution and to determine if their ratification shall be by vote of the legislature or by convention in each state.
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, …, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress;
That’s it. While the vast majority of the powers delegated to the United States are delegated to Congress, these are all of them.
Conclusion
This was not an in-depth look at each of the powers delegated to Congress. For that I suggest you take a look at my book, The Constitution Study. I hope you found this overview of the powers of Congress a good companion to The Role of Congress. I want to thank those who asked for this, and encourage all of you, if you have a question, please ask. You can find the Ask a Question button on The Constitution Study website.
It is my hope that, by better understanding the powers of Congress, we can stop asking our representatives to do what they are not legally allowed to do. After all, how can we expect them to stop violating their oath to support the Constitution if we keep electing them to do so?
Paul Engel is an Affiliate of Institute on the Constitution. He founded The Constitution Study in 2014 to help everyday Americans read and study the Constitution. Author and speaker, Paul has spent more than 20 years studying and teaching about both the Bible and the U.S. Constitution. Freely admitting that he “learned more about our Constitution from School House Rock than in 12 years of public school” he proves that anyone can be a constitutional scholar. You can find his books on the Institute on the Constitution Store (theamericanview.com), Amazon, and Apple Books. You can also listen to his weekday radio show on America Out Loud (https://americaoutloud.com/the-constitution-study). You can reach him at paul@constitutionstudy.com
]]>I don’t think I’m exaggerating today that Judge Terry Doughty did more to protect Freedom of Speech and Press in America in my lifetime, possibly since the Bill of Rights was ratified in 1791. What could one man do that had such a tremendous impact? How could one preliminary injunction be so important? While there has been plenty of hype about judge Doughty’s order, from both sides, as I have taken the time to review it, I am impressed both by its scope and its quotations, of both the Constitution and the Founding Fathers to prove the rightness of its position. What decision of a judge could have such an impact on the rights of the American people? The recognition of its infringement on one of our most basic rights: The freedom of expression, and the willingness to stand against it.
Some may say it’s fate that this judge issued his order on the 4th of July, 2023. I see it as providence that this judge has once again honored that date as our Independence Day!
As I said in the opening, there has been a lot of talk about this judge’s preliminary injunction against the Biden Administration, not all of it accurate. I gave my preliminary observation on the Radio Program, and have to say, I was impressed, mostly by the scope of those enjoined. It took me a while to review the injunction itself, which impressed me even more.
Background
I may disapprove of what you say, but I would defend to the death your right to say it.
Evelyn Beatrice Hill, 1906, The Friends of Voltaire
This case is about the Free Speech Clause in the First Amendment to the United States Constitution. The explosion of social-media platforms has resulted in unique free speech issues— this is especially true in light of the COVID-19 pandemic. If the allegations made by Plaintiffs are true, the present case arguably involves the most massive attack against free speech in United States’ history. In their attempts to suppress alleged disinformation, the Federal Government, and particularly the Defendants named here, are alleged to have blatantly ignored the First Amendment’s right to free speech.
Missouri v. Biden – Preliminary Injunction
The introduction to the order starts with one of my favorite free speech quotes from Evelyn Beatrice Hill. Anyone who has followed The Constitution Study for any length of time knows that many so called “First Amendment” cases cannot be so because the first five words of the First Amendment are:
Congress shall make no law…
U.S. Constitution, Amendment I
Since most so-called First Amendment disputes have nothing to do with Congress, they cannot be violations of the Fist Amendment. However, this case involves the federal government, the President of the United States, and numerous members of the Executive Branch, which were created by Congress. So this truly is a First Amendment case. Although plaintiffs claim a violation of the Free Speech Clause, it involves more violations of the Free Press Clause. Why? Because most of the censorship claimed involved the posting of information and videos, which falls under the definition of press, not speech.
The art or business of printing and publishing.
Press (noun) – Webster’s 1828 Dictionary
That detail aside, what grievances are the plaintiffs claiming?
Plaintiffs allege that Defendants, through public pressure campaigns, private meetings, and other forms of direct communication, regarding what Defendants described as “disinformation,” “misinformation,” and “malinformation,” have colluded with and/or coerced social-media platforms to suppress disfavored speakers, viewpoints, and content on social-media platforms. Plaintiffs also allege that the suppression constitutes government action, and that it is a violation of Plaintiffs’ freedom of speech under the First Amendment to the United States Constitution.
First Amendment states:
Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof: or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. (emphasis added).
First Amendment, U.S. Const. amend. I.
Missouri v. Biden – Preliminary Injunction
It is so rare to find a judge actually quoting the Constitution, I find this a breath of fresh air. The judge then explains why freedom of speech is so important.
The principal function of free speech under the United States’ system of government is to invite dispute; it may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.... Freedom of speech and press is the indispensable condition of nearly every other form of freedom. ...
Missouri v. Biden – Preliminary Injunction
Then, before getting into the details of the case, Judge Doughty quotes several of our Founding Fathers on the topic of free speech:
The following quotes reveal the Founding Fathers’ thoughts on freedom of speech:
For if men are to be precluded from offering their sentiments on a matter, which may involve the most serious and alarming consequences, that can invite the consideration of mankind, reason is of no use to us; the freedom of speech may be taken away, and dumb and silent we may be led, like sheep, to the slaughter.
George Washington, March 15, 1783.
Whoever would overthrow the liberty of a nation must begin by subduing the free acts of speech.
Benjamin Franklin, Letters of Silence Dogwood.
Reason and free inquiry are the only effectual agents against error.
Thomas Jefferson.
Missouri v. Biden – Preliminary Injunction
The Allegations
The judge then goes into the actual allegations that led to the injunction.
In this case, Plaintiffs allege that Defendants suppressed conservative-leaning free speech, such as: (1) suppressing the Hunter Biden laptop story prior to the 2020 Presidential election; (2) suppressing speech about the lab-leak theory of COVID-19’s origin; (3) suppressing speech about the efficiency of masks and COVID-19 lockdowns; (4) suppressing speech about the efficiency of COVID-19 vaccines; (5) suppressing speech about election integrity in the 2020 presidential election; (6) suppressing speech about the security of voting by mail; (7) suppressing parody content about Defendants; (8) suppressing negative posts about the economy; and (9) suppressing negative posts about President Biden.
Missouri v. Biden – Preliminary Injunction
That is quite a list of accusations. He then goes into the details of the alleged suppression of freedom of speech (press), a list too long for me to go into detail here. While the case is called Missouri v. Biden, there are actually a number of plaintiffs:
Plaintiffs consist of the State of Missouri, the State of Louisiana, Dr. Aaron Kheriaty (“Kheriaty”), Dr. Martin Kulldorff (“Kulldorff”), Jim Hoft (“Hoft”), Dr. Jayanta Bhattacharya (“Bhattacharya”), and Jill Hines (“Hines”).
Missouri v. Biden – Preliminary Injunction
Each of these plaintiffs is alleging that the Biden Administration suppressed their speech by pressuring social media companies censor, remove, de-platform, or otherwise suppress plaintiff’s content for them.
The following facts are pertinent to the analysis of whether or not Plaintiffs are entitled to the granting of an injunction.
Plaintiffs assert that since 2018, federal officials, including Defendants, have made public statements and demands to social-media platforms in an effort to induce them to censor disfavored speech and speakers. Beyond that, Plaintiffs argue that Defendants have threatened adverse consequences to social-media companies, such as reform of Section 230 immunity under the Communications Decency Act, antitrust scrutiny/enforcement, increased regulations, and other measures, if those companies refuse to increase censorship. Section 230 of the Communications Decency Act shields social-media companies from liability for actions taken on their websites, and Plaintiffs argue that the threat of repealing Section 230 motivates the social-media companies to comply with Defendants’ censorship requests. Plaintiffs also note that Mark Zuckerberg (“Zuckerberg”), the owner of Facebook, has publicly stated that the threat of antitrust enforcement is “an existential threat” to his platform.
…
Plaintiffs assert that by using emails, public and private messages, public and private meetings, and other means, the White House Defendants have “significantly encouraged” and “coerced” social-media platforms to suppress protected free speech posted on social-media platforms.
Missouri v. Biden – Preliminary Injunction
The injunction then goes on to site almost 150 specific instances of members of the Biden administration encouraging, coercing, and bullying social media platforms to censor content from the plaintiffs, in violation of the First Amendment. Again, that’s too long for me to go into here.
The Injunction
Someone does not deserve an injunction simply because they claim a grievance.
The standard for an injunction requires a movant to show: (1) the substantial likelihood of success on the merits; (2) that he is likely to suffer irreparable harm in the absence of an injunction; (3) that the balance of equities tips in his favor; and (4) that an injunction is in the public interest. ... The party seeking relief must satisfy a cumulative burden of proving each of the four elements enumerated before an injunction can be granted. ...
Missouri v. Biden – Preliminary Injunction
Judge Doughty then looks at the arguments for and against each factor required for the plaintiffs to get their injunction. In short, the judge found that the plaintiffs are likely to succeed on the merits of their case. Due to the number of defendants listed, this explanation takes up a significant percentage of the injunction, over 50 pages in fact. The judge also notes that:
Additionally, violation of a First Amendment constitutional right, even for a short period of time, is always irreparable injury.
Missouri v. Biden – Preliminary Injunction
On the question of balance of equities, the judge states:
Plaintiffs’ free speech rights thus far outweighs the rights of Defendants, and thus, Plaintiffs satisfy the final elements needed to show entitlement to a preliminary injunction.
Missouri v. Biden – Preliminary Injunction
With all of the required elements satisfied, the judge was bound to issue the injunction, again beginning with another quote.
Once a government is committed to the principle of silencing the voice of opposition, it has only one place to go, and that is down the path of increasingly repressive measures, until it becomes a source of terror to all its citizens and creates a country where everyone lives in fear.
Harry S. Truman
The Plaintiffs are likely to succeed on the merits in establishing that the Government has used its power to silence the opposition. Opposition to COVID-19 vaccines; opposition to COVID-19 masking and lockdowns; opposition to the lab-leak theory of COVID-19; opposition to the validity of the 2020 election; opposition to President Biden’s policies; statements that the Hunter Biden laptop story was true; and opposition to policies of the government officials in power. All were suppressed. It is quite telling that each example or category of suppressed speech was conservative in nature. This targeted suppression of conservative ideas is a perfect example of viewpoint discrimination of political speech. American citizens have the right to engage in free debate about the significant issues affecting the country.
Although this case is still relatively young, and at this stage the Court is only examining it in terms of Plaintiffs’ likelihood of success on the merits, the evidence produced thus far depicts an almost dystopian scenario. During the COVID-19 pandemic, a period perhaps best characterized by widespread doubt and uncertainty, the United States Government seems to have assumed a role similar to an Orwellian “Ministry of Truth.”
Missouri v. Biden – Preliminary Injunction
This summation of the evidence provided so far can and should lead to only one conclusion for this judge at this time.
The Plaintiffs have presented substantial evidence in support of their claims that they were the victims of a far-reaching and widespread censorship campaign. This court finds that they are likely to succeed on the merits of their First Amendment free speech claim against the Defendants. Therefore, a preliminary injunction should issue immediately against the Defendants as set out herein. The Plaintiffs Motion for Preliminary Injunction [Doc. No. 10] is GRANTED IN PART and DENIED IN PART.
Missouri v. Biden – Preliminary Injunction
What was denied? The plaintiffs had asked for this case to be certified as a class action. That was the only part that was denied. Following the memorandum, the judge enjoined nine departments and 38 individuals from:
(1) meeting with social-media companies for the purpose of urging, encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech posted on social-media platforms;
(2) specifically flagging content or posts on social-media platforms and/or forwarding such to social-media companies urging, encouraging, pressuring, or inducing in any manner for removal, deletion, suppression, or reduction of content containing protected free speech;
(3) urging, encouraging, pressuring, or inducing in any manner social-media companies to change their guidelines for removing, deleting, suppressing, or reducing content containing protected free speech;
(4) emailing, calling, sending letters, texting, or engaging in any communication of any kind with social-media companies urging, encouraging, pressuring, or inducing in any manner for removal, deletion, suppression, or reduction of content containing protected free speech;
(5) collaborating, coordinating, partnering, switchboarding, and/or jointly working with the Election Integrity Partnership, the Virality Project, the Stanford Internet Observatory, or any like project or group for the purpose of urging, encouraging, pressuring, or inducing in any manner removal, deletion, suppression, or reduction of content posted with social-media companies containing protected free speech;
(6) threatening, pressuring, or coercing social-media companies in any manner to remove, delete, suppress, or reduce posted content of postings containing protected free speech;
(7) taking any action such as urging, encouraging, pressuring, or inducing in any manner social-media companies to remove, delete, suppress, or reduce posted content protected by the Free Speech Clause of the First Amendment to the United States Constitution;
(8) following up with social-media companies to determine whether the social-media companies removed, deleted, suppressed, or reduced previous social-media postings containing protected free speech;
(9) requesting content reports from social-media companies detailing actions taken to remove, delete, suppress, or reduce content containing protected free speech; and
(10) notifying social-media companies to Be on The Lookout (“BOLO”) for postings containing protected free speech.
Missouri v. Biden – Preliminary Injunction
However, the request for injunction against four departments and 7 individuals, including the Disinformation Government Board and its director Nina Jankowicz was denied. The injunction goes on to state that these departments and persons are not prohibited from informing social media companies about criminal actives, national security or public safety threats, or other permissible government speech.
Conclusion
Just when I start questioning the effectiveness of the federal judiciary, we have decisions like this one. I’m not sure what disturbs me more, the number of alleged acts of censorship or the number of departments and government actors involved. Public health departments like Health and Human Services, Centers for Disease Control and Prevention, and the Surgeon General are implicated, along with security agencies like the Federal Bureau of Investigation, Department of Justice, Department of Homeland Security, and Cybersecurity and Infrastructure Security Agency are included. The surprising ones for me are the Census Bureau and the Department of State. Not only are the number of individuals names extraordinary, but look at who some of them are: White House Press Secretary Karine Jean-Pierre, Counsel to the President Suart Delery, Special Assistant to the President Aisha Shah, White House Climate Advisor Ali Zaidi, White House Senior Advisor Andrew Slavitt, and more.
We need to remember, this is only a preliminary injunction. While it will remain in effect until the case is decided, or the injunction is overturned by a higher court, there is still a long way to go before justice can be served. That said, this injunction, not to mention the details within, gives me hope that our judicial system isn’t completely corrupt.
Paul Engel is an Affiliate of Institute on the Constitution. He founded The Constitution Study in 2014 to help everyday Americans read and study the Constitution. Author and speaker, Paul has spent more than 20 years studying and teaching about both the Bible and the U.S. Constitution. Freely admitting that he “learned more about our Constitution from School House Rock than in 12 years of public school” he proves that anyone can be a constitutional scholar. You can find his books on the Institute on the Constitution Store (theamericanview.com), Amazon, and Apple Books. You can also listen to his weekday radio show on America Out Loud (https://americaoutloud.com/the-constitution-study). You can reach him at paul@constitutionstudy.com
]]>In this third installment of the three-part series on the branches of government, we look at the role of the third and weakest branch. At least that’s what our Founding Fathers thought. What is the role of the federal judiciary? What is the extent of their powers, how do they relate to the other two branches of government, and why is a proper understanding of the role of the judiciary critical if the United States is to remain a constitutional republic?
Like many of you I’ve watched courtroom dramas, read about federal court decisions, and drawn conclusions about how these courts work. Then I read the Constitution and learned just how wrong that education I had received was. Let’s start with the creation of the federal judiciary.
Judicial Power
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.
U.S. Constitution, Article III, Section 1
Just as the legislative branch was created in Article I, and the executive in Article II, the judicial branch is created in Article III. What is this judicial power that has been vested by this Article?
JUDI’CIARY, noun That branch of government which is concerned in the trial and determination of controversies between parties, and of criminal prosecutions; the system of courts of justice in a government.
JUDICIARY – Webster’s 1828 Dictionary
The role of the judiciary is two-fold: The prosecution of crimes and the determination of controversies. While the prosecution of federal crimes does happen in the federal judiciary, most of the cases we see coming out of these courts have to do with controversies, disputes, or disagreements. That means, as I believe more than one Supreme Court nominee has stated, the role of the courts is primarily that of an umpire.
Picture this: A base runner is charging toward home plate. The catcher is standing over the plate, waiting to receive the throw from the outfield. In less than a second, the ball enters the catcher’s mitt, and he immediately sweeps down to tag the runner sliding into home plate with his arm outstretched to sweep across it. The base runner believes he is safe, while the catcher believes he tagged the runner out. We have a controversy. What we need is a disinterested third party, someone who knows the rules and can look at the evidence to decide this controversy. That is the role of the umpire. He knows the rules of the game, things like the ball must be in the mitt to legally tag someone out and that the base runner must physically touch home plate. The umpire also has access to the evidence and the memory of what he observed in the split-second interaction. Based on this information, he must decide if the runner is safe or out. Then the umpire will announce his decision with a grand gesture and a loud call. And to nobody’s surprise, the loser of the decision will immediately confront the umpire to appeal it, possibly even appealing to others judges to confirm their position. This is a very good analogy of how the federal judicial system should work.
A person is charged with a crime or files a lawsuit for a redress of some grievance. The plaintiff, in the case of a suit, believes he has been aggrieved and is looking for the courts to agree with him, while the accused, called the defendant, believes they have done nothing wrong. (In a criminal case, the prosecutor believes the laws of government have been aggrieved by the defendant.) Both sides come before a judge, someone who’s supposed to be a neutral third party who is familiar with the law. Sometimes the judge will make the final decision, but in the case of a crime or some civil suit, the decision will actually be made by a jury and the judge is there to make sure the two parties follow the law in the courtroom. The parties to the case present evidence and the law to show they are correct. While a jury trial is a bit different, in a judicial trial the judge makes his or her decision on the controversy. Often, one party will not be happy with the decision, sometimes leading them to appeal to a higher court. Which explains the beginning of Section 1:
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.
U.S. Constitution, Article III, Section 1
The Constitution only creates a single court, a supreme court. Notice the “s” in supreme is not capitalized. That’s because it is an adjective; it modifies the noun ‘court’. It wasn’t until the formation of this court before it was given the name ‘Supreme Court’, a proper noun. Congress creates all the inferior courts, giving them the names of District and Circuit Courts. There’s another very important phrase in Section 1, and it’s not that the judges get paid:
The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour,
U.S. Constitution, Article III, Section 1
We’ve been taught for so many years that federal judges have lifetime appointments. This lie has been repeated enough that it’s believed to be true, but federal judges only hold their offices during their good behavior. Who decides what good behavior is? Congress, through the impeachment process.
Jurisdiction
Section 2 of Article III deals with the question of jurisdiction, or the limits within, which the judicial power of the United States may be exercised.
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;— between a State and Citizens of another State,—between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
U.S. Constitution, Article III, Section 2, Clause 1
The federal courts can only legally deal with cases that come up under the Constitution, Laws, or Treaties made by the United States, or cases involving foreign actors such as ambassadors or public ministers, where the United States is a party, or controversies between states. Controversies “between a State and Citizens of another State” were changed with the Eleventh Amendment.
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
U.S. Constitution, Amendment XI
The federal courts are further broken down between the original and appellate jurisdictions.
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
U.S. Constitution, Article III, Section 2, Clause 2
Cases involving ambassadors, public ministers, or where a state is a party to the case, go directly to the Supreme Court, since they have original jurisdiction. All other cases must go to an inferior court first, but then can be appealed to the Supreme Court. That is, unless Congress creates an exception or regulation to that jurisdiction.
Lastly, the Constitution deals with the type and location of trials.
The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
U.S. Constitution, Article III, Section 2, Clause 3
With the sole exception of impeachment, federal criminal trials must be jury trials. Such trials are to be held in the state where the crime or crimes were committed, and if the crime did not occur in a state, Congress has the power to pass laws to determine where such a trial is to be held.
Treason
Lastly, Article III deals with the question of treason.
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.
U.S. Constitution, Article III, Clauses 1-2
The word treason is thrown around a lot lately. However, I remind people that, within the United States, treason has a very specific definition, levying war or giving aid and comfort to the enemies of the United States. The word enemy is bandied about quite readily, yet it, too, has a specific definition, not from the Constitution but from the language of the time.
EN’EMY: A foe; an adversary. A private enemy is one who hates another and wishes him injury or attempts to do him injury to gratify his own malice or ill will. A public enemy or foe, is one who belongs to a nation or party at war with another.
Enemy – Webster’s 1828 Dictionary
Since the United States is a public entity, then its enemies are public as well. That means enemies of the United Stare are those who belong to a nation or party at war with it.
Congress gets to decide the punishment for treason, but no punishment shall work corruption of blood, meaning the loss of ability to inherit land, or extend beyond the life of the convicted. In general, this language is to prevent the punishment for treason from extending to the family of the convicted.
That’s it. Those are all of the powers delegated to the third branch of government, but there is one point that has passed into lore that we need to deal with before we conclude.
Supremacy of the Supreme Court
The supreme Court is the last court of appeal, but that does not make their opinions the supreme law of the land.
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
U.S. Constitution, Article VI, Clause 2
The supremacy clause lists three things that are the supreme law of the land. 1) The Constitution, 2) The laws of the United States made following the Constitution, and 3) Treaties made under the authority of the United States, which is established by the Constitution. Notice what you don’t see: The opinion of a court. People may call them “rulings”, but they are nothing but opinions. They may even call them “case law”, but they are not law because, if you remember when we covered the role of Congress, all legislative (lawmaking) power is vested in them, not the courts.
All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
U.S. Constitution, Article I, Section 1
Judicial Power
With all of the impact the courts routinely have on our lives, why did I refer to them as the weakest branch of government in the introduction? Because they are.
Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors but holds the sword of the community. The legislature not only commands the purse but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.
Alexander Hamilton – Federalist Paper #78
If, as Alexander Hamilton says, the courts have neither force nor will, only judgment, then why do many call their decisions “rulings”? I’m sure there are several theories behind that, but to me the answer is the elevation of stare decisis over the law.
[Latin, Let the decision stand.] The policy of courts to abide by or adhere to principles established by decisions in earlier cases.
Stare Decisis – The Free Legal Dictionary
While often used interchangeably, stare decisis is different than precedent, which is defined as:
A court decision that is cited as an example or analogy to resolve similar questions of law in later cases.
The Anglo-American common-law tradition is built on the doctrine of Stare Decisis (“stand by decided matters”), which directs a court to look to past decisions for guidance on how to decide a case before it. This means that the legal rules applied to a prior case with facts similar to those of the case now before a court should be applied to resolve the legal dispute.
Precedent – The Free Legal Dictionary
Precedent is the simple matter of looking at past cases for guidance to help decide a case, whereas stare decisis is the idea that previous decisions should be abided by. The problem with stare decisis is it assumes previous decisions are both legal and correct. By following stare decisis, it has become very difficult, often turbulent, for a court to decide a case based on the actual law rather than the opinions of their predecessors.
The elevation of stare decisis has also led to a form of gnosticism within our legal system.
gnosis: esoteric knowledge of spiritual truth held by the ancient Gnostics to be essential to salvation
gnosis – Merriam-Webster’s Online Dictionary
The idea of Gnostics was that they had special knowledge of spiritual truth. The gnostic ideas in our legal system today are that the judges have special knowledge of the law, and that attorneys are there to walk your case through the vagaries of that special knowledge. That is why so many people believe they need an attorney to file a lawsuit or to defend themselves in a criminal case. The complications of the actual law make those actions difficult enough but mix in the gnostic knowledge of “case law” and the legal field has created a barrier to entry for all but the most dedicated, thereby keeping everyday Americans ignorant of both the law and their rights.
Conclusion
How are we to approach this weakest branch of government? We start by reminding people that, with the exception of jury trials, the decision of a court is an opinion, nothing more. We must relearn what Alexander Hamilton taught us, that the courts control neither the purse nor the sword and “must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” Understanding this may help as we wade through the morass of political double-speak that inundates us every day.
The role of the courts is that of an umpire, making decisions based on the law using the facts presented to them. Today, we have elevated their decisions beyond law into rulings, as if they were kings and queens on high. It would be one thing if their decisions were based on the law rather than the rantings of their predecessors. Read a Supreme Court opinion and you will rarely find the Constitution quoted. Even when it’s referenced, it’s most often the quotation of the opinion of a previous court. We used to have courts of justice. Then we had courts of law. Today, we have courts of opinions.
How can the United States be a republic, if we are ruled not by the law, but by the opinions of nine high-priests in black robes?
Paul Engel is an Affiliate of Institute on the Constitution. He founded The Constitution Study in 2014 to help everyday Americans read and study the Constitution. Author and speaker, Paul has spent more than 20 years studying and teaching about both the Bible and the U.S. Constitution. Freely admitting that he “learned more about our Constitution from School House Rock than in 12 years of public school” he proves that anyone can be a constitutional scholar. You can find his books on the Institute on the Constitution Store (theamericanview.com), Amazon, and Apple Books. You can also listen to his weekday radio show on America Out Loud (https://americaoutloud.com/the-constitution-study). You can reach him at paul@constitutionstudy.com
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Our judicial system today works like a bad case of the game “telephone”. You probably remember that game from grammar school. The teacher would whisper something into one child’s ear, who would then whisper it into the next child’s ear, and on and on until the message got all the way around the room. Then the teacher would compare what they had whispered in to the first child’s ear with what the last child heard, and it would be completely different. This child’s game shows the dangers of what I call a “compounding replication error”, the idea that small errors that occur when something like a message is replicated, compounded with each new replica, until the original message is lost. This is how our judicial system works today, often with disastrous effects. In the case of Groff v. Dejoy, Postmaster General most people see a win for religious liberty. I, however, see another generation of a compounding replication error in judicial opinion that, while granting the correct outcome today, lays the groundwork for the destruction of our rights and the rule of law tomorrow.
On it’s face, the case Groff v. Dejoy, Postmaster General seems quite simple. Can the United States Postal Service punish an employee for refusing to work on Sundays for religious reasons?
Petitioner Gerald Groff is an Evangelical Christian who believes for religious reasons that Sunday should be devoted to worship and rest. In 2012, Groff took a mail delivery job with the United States Postal Service. Groff’s position generally did not involve Sunday work, but that changed after USPS agreed to begin facilitating Sunday deliveries for Amazon. … Groff received “progressive discipline” for failing to work on Sundays, and he eventually resigned.
Groff v. Dejoy, Postmaster General
This seems simple enough. Mr. Groff took a mail delivery job with the United States Postal Service (USPS), which did not generally involve working on Sundays. When the USPS signed an agreement with Amazon which included Sunday deliveries, Mr. Groff moved to another station, a more rural one that did not offer Sunday deliveries. When that station began to offer Sunday deliveries, Mr. Groff refused to work those days, forcing the USPS to redistribute his work to other employees. This led to progressively increased discipline, which caused Mr. Groff to resign and file suit.
Groff sued under Title VII of the Civil Rights Act of 1964, asserting that USPS could have accommodated his Sunday Sabbath practice “without undue hardship on the conduct of [USPS’s] business.” … The District Court granted summary judgment to USPS. The Third Circuit affirmed based on this Court’s decision in Trans World Airlines, Inc. v. Hardison, …, which it construed to mean “that requiring an employer ‘to bear more than a de minimis cost’ to provide a religious accommodation is an undue hardship.” … The Third Circuit found the de minimis cost standard met here, concluding that exempting Groff from Sunday work had “imposed on his coworkers, disrupted the workplace and workflow, and diminished employee morale.”
Groff v. Dejoy, Postmaster General
Both the District and Circuit courts sided with the USPS, concluding that they only had to show a de minimus (Latin for “of minimum importance”) cost to be able to deny a religious accommodation. These courts came to this decision based on a previous decision called Trans World Airlines, Inc. v. Hardison. This is where we pick up our game of Judicial Telephone.
Undue Hardship
Let’s start where all legal cases should start: With the law. Title VII of the Civil Rights Act of 1964 prohibited discrimination in public places, provided for the integration of schools and other public facilities, and made employment discrimination illegal. Title VII, dealing with employment discrimination, was added to the U.S. Code until Title 42, Sections 2000e-2000e-17. Within that law we find:
It shall be an unlawful employment practice for an employer-
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin;
Later the Equal Employment Opportunity Commission added regulations requiring that employers make a reasonable accommodation for religious practice.
After an employee or prospective employee notifies the employer or labor organization of his or her need for religious accommodation, the employer or labor organization has an obligation to reasonably accommodate the individual’s religious practices. A refusal to accommodate is justified only when an employer or labor organization can demonstrate that an undue hardship would in fact result from each available alternative method of accommodation.
First, we need to note that the regulation is 29 CFR §1605.2(c)(1) not §1605.1 as the court claims in the opinion’s syllabus. This religious accommodation requirement was eventually codified in the U.S. Code under §2000e(j):
The term “religion” includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.
The law quite clearly states that employers cannot discriminate against an individual because of their religious observance and practice unless they can show doing so would be an undue hardship on their business. What is an undue hardship?
exceeding or violating propriety or fitness: EXCESSIVE
Undue – Merriam-Webster’s Online Dictionary
something that causes or entails suffering or privation
Hardship – Merriam-Webster’s Online Dictionary
In other words, employers must make accommodation for religious practices unless it would cause excessive suffering or privation. However, in Mr. Groff’s case, the Third Circuit did not base their decision on the law, but on their interpretation of a previous case, Trans World Airlines, Inc. v. Harrison. The Supreme Court noted the error in using this precedent in their decision.
Instead, the Court’s opinion stated that “the principal issue on which TWA and the union came to this Court” was whether Title VII “require[s] an employer and a union who have agreed on a seniority system to deprive senior employees of their seniority rights in order to accommodate a junior employee’s religious practices.” … The Court held that Title VII imposed no such requirement.
…
But the Court’s opinion in Hardison contained this oft quoted sentence: “To require TWA to bear more than a de minimis cost in order to give Hardison Saturdays off is an undue hardship.” Although many lower courts later viewed this line as the authoritative interpretation of the statutory term “undue hardship,” the context renders that reading doubtful. In responding to Justice Marshall’s dissent, the Court described the governing standard quite differently, stating three times that an accommodation is not required when it entails “substantial” “costs” or “expenditures.”
Groff v. Dejoy, Postmaster General
Do you see how Judicial Telephone is so dangerous to our rights and the rule of law? How many lower court decisions were made on the faulty reasoning found in Hardison? How would Mr. Groff’s case have been decided if this court had not gone to the text of the law?
To determine what an employer must prove to defend a denial of a religious accommodation under Title VII, the Court begins with Title VII’s text. The statutory term, “hardship,” refers to, at a minimum, “something hard to bear” and suggests something more severe than a mere burden. If Title VII said only that an employer need not be made to suffer a “hardship,” an employer could not escape liability simply by showing that an accommodation would impose some sort of additional costs. Adding the modifier “undue” means that the requisite burden or adversity must rise to an “excessive” or “unjustifiable” level. Understood in this way, “undue hardship” means something very different from a burden that is merely more than de minimis, i.e., “very small or trifling.” The ordinary meaning of “undue hardship” thus points toward a standard closer to Hardison’s references to “substantial additional costs” or “substantial expenditures.”
Groff v. Dejoy, Postmaster General
By now you may be thinking, “Great, Paul! The Circuit Court got it wrong, but at least the Supreme Court came to the right conclusion because they went back to the law.” If that is what you’re thinking, you’re wrong.
Equal Employment Opportunity
You see the Hardison decision was based on a previous decision, Dewey v. Reynolds Metals Co..
This is an action arising under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, which provides, among other things, for relief against religious discrimination in employment.
OK, Paul, so what is wrong with Dewey? Dewey, which is the first case I found regarding Title VII of the Civil Rights Act of 1964, does not appear to have even considered whether or not Title VII was even constitutional.
Because an application of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, will permit the court to decide the case, it is not necessary to reach the question of whether plaintiff’s constitutional rights have been violated.
The Dewey court recognized that the Constitution, either directly or indirectly, had to be considered, but not because the Constitution said so, but because another court had.
An agreement which violates a provision of the federal constitution or of a constitutional federal statute, or which cannot be performed without violating such a provision, is illegal and void. Ewert v. Bluejacket,
Because of these views, the Dewey court never appears to question whether or not Title VII of the Civil Rights Act of 1964 violated the Constitution of the United States in the first place, which would have made the law void. This despite the fact that the court pointed out the unconstitutional nature of the law in their opinion.
In relation to Sherbert, one might question its relevance, since in that case there was “state action,” while in the instant case there is only private action. That distinction would be important if this opinion were dealing with whether defendant’s overtime rule is unconstitutional. But the issue before the court is whether the defendant has violated a federal statute a statute which restricts the activities of private employers and does not require “state action.” The importance of Sherbert to this analysis is not its holding on constitutionality, but its definition of discrimination, a definition which is equally valid whether employed to measure private or state action.
Title VII of the Civil Rights Act of 1964 restricted the activities of private employers, which is not a power delegated to the United States by its Constitution.
The term “employer” means a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person,
But Congress is not granted the power to regulate commerce, only:
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
U.S. Constitution, Article I, Section 8, Clause 3
Furthermore, Title VII does not regulate commerce, it regulates employment. While it’s assumed that Congress can regulate employment within the federal government, they have not been delegated any power to regulate employment outside of that sphere. This means Title VII violates the Tenth Amendment.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
U.S. Constitution, Amendment X
Since Title VII is a U.S. Law not made in pursuance of the Constitution, it is not the supreme law of the land.
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
U.S. Constitution, Article VI, Clause 2 (emphasis added)
And, since the judges in every state are bound to the supreme law, including those of the Supreme Court who take an oath to support the Constitution, they should have found Title VII unconstitutional and therefore void.
The One Good Thing Found in This Mess
There is one good thing found in this mess, and that’s the actual decision. You see, the USPS is part of the federal government (https://www.usa.gov/agency-index/p#P). Its very existence came from Congress, and therefore, it’s subject to the First Amendment:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; …
U.S. Constitution, Amendment I
The United States Postal Service, as an entity created by Congress, is barred from prohibiting the free exercise of religion, including observing the Sabbath.
Held: Title VII requires an employer that denies religious accommodation to show that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business.
Groff v. Dejoy, Postmaster General
So, while the Supreme Court got it wrong, the outcome for Mr. Groff is correct.
The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.
Groff v. Dejoy, Postmaster General
Conclusion
When I was young my mother used to say, “Two wrongs don’t make a right.” That is true for this case. With everyone focusing on the court deciding in Mr. Groff’s favor, lost are the numerous wrongs that brought them to it. You may be asking, “Paul, how can you be upset with a win for religious liberty?” The answer is simple: Because it depends solely on the largess of nine black robed oligarchs, and what the oligarchs give, the oligarchs can take away. This decision is founded on nothing but a towering house of cards waiting for the slightest breeze to blow it down. What happens when the next judge or justice arbitrarily decides that an employee’s Sunday off is an undue hardship? Are you willing to bet your financial future, not to mention your rights, on how burdensome some judge might find your accommodation?
We used to have courts of justice, then we had courts of law, but now we are saddled with courts of opinions. How can we build a just and stable judicial system on such shifting sands?
Paul Engel is an Affiliate of Institute on the Constitution. He founded The Constitution Study in 2014 to help everyday Americans read and study the Constitution. Author and speaker, Paul has spent more than 20 years studying and teaching about both the Bible and the U.S. Constitution. Freely admitting that he “learned more about our Constitution from School House Rock than in 12 years of public school” he proves that anyone can be a constitutional scholar. You can find his books on the Institute on the Constitution Store (theamericanview.com), Amazon, and Apple Books. You can also listen to his weekday radio show on America Out Loud (https://americaoutloud.com/the-constitution-study). You can reach him at paul@constitutionstudy.com
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Freedom of speech has been under attack in this country, and Colorado has been a big part of it. First, Jack Phillips of Masterpiece Cakeshop has spent ten years trying to defend his right to not be compelled to create custom cakes with messages which violate his beliefs. So, when Lorie Smith wanted to expand her business into developing custom wedding websites, she was concerned that Colorado would do to her what it was doing to Jack Phillips. Her request for an injunction went all the way to the Supreme Court.
Freedom of speech includes the freedom not to be compelled to speak as well, but what happens when a person’s freedom of speech conflicts with a state’s law? In the case of 303 Creative LLC v. Elenis, the question was asked if the State of Colorado could dictate to Ms. Smith what type of message she had to communicate in her business.
Like many States, Colorado has a law forbidding businesses from engaging in discrimination when they sell goods and services to the public. Laws along these lines have done much to secure the civil rights of all Americans. But in this particular case Colorado does not just seek to ensure the sale of goods or services on equal terms. It seeks to use its law to compel an individual to create speech she does not believe. The question we face is whether that course violates the Free Speech Clause of the First Amendment.
I don’t know how many times I’ve covered this, but then I doubt the justices on the Supreme Court read my articles. This cannot be a First Amendment case because Congress did not make this law.
Congress shall make no law … abridging the freedom of speech, or of the press;
U.S. Constitution, Amendment I
Since Congress did not make this law, it cannot be a violation of the First Amendment. So, what this case truly is, is a violation of the Colorado Constitution:
No law shall be passed impairing the freedom of speech; every person shall be free to speak, write or publish whatever he will on any subject, being responsible for all abuse of that liberty;
Colorado Constitution, Article II, Section 10
It’s also a violation of the Fourteenth Amendment of the Constitution of the United States.
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
U.S. Constitution, Amendment XIV
While the court opinion appears to focus on the First Amendment and freedom of speech, the real issue they were looking at was freedom of the press. Specifically, does the state have the power to compel others to publish content with which they disagree?
Through her business, 303 Creative LLC, Lorie Smith offers website and graphic design, marketing advice, and social media management services. Recently, she decided to expand her offerings to include services for couples seeking websites for their weddings. As she envisions it, her websites will provide couples with text, graphic arts, and videos to “celebrate” and “conve[y]” the “details” of their “unique love story.” … The websites will discuss how the couple met, explain their backgrounds, families, and future plans, and provide information about their upcoming wedding. All of the text and graphics on these websites will be “original,” “customized,” and “tailored” creations. The websites will be “expressive in nature,” designed “to communicate a particular message.” Viewers will know, too, “that the websites are [Ms. Smith’s] original artwork,” for the name of the company she owns and operates by herself will be displayed on every one.
Ms. Smith wants to create and publish webpages, without being compelled to use them to communicate a message she doesn’t agree with. Well, at least that was her plan.
While Ms. Smith has laid the groundwork for her new venture, she has yet to carry out her plans. She worries that, if she does so, Colorado will force her to express views with which she disagrees. Ms. Smith provides her website and graphic services to customers regardless of their race, creed, sex, or sexual orientation. But she has never created expressions that contradict her own views for anyone—whether that means generating works that encourage violence, demean another person, or defy her religious beliefs by, say, promoting atheism. Ms. Smith does not wish to do otherwise now, but she worries Colorado has different plans. Specifically, she worries that if she enters the wedding website business, the State will force her to convey messages inconsistent with her belief that marriage should be reserved to unions between one man and one woman. Ms. Smith acknowledges that her views about marriage may not be popular in all quarters. But, she asserts, the First Amendment’s Free Speech Clause protects her from being compelled to speak what she does not believe. The Constitution, she insists, protects her right to differ.
I’m sure this language came from Ms. Smith’s attorney, because it uses the same phrases I’ve seen in other opinions used by lawyers. Since I’ve already explained why this case cannot be a First Amendment issue, let me explain why this is a free press case, not a free speech one.
Freedom of What?
Both the First Amendment of the United States Constitution and Article II, Section 10 of the Colorado Constitution protect both freedom of speech and press. Have you ever considered the difference between the two?
The faculty of uttering articulate sounds or words
Speech – Webster’s 1828 Dictionary
Ms. Smith isn’t planning to articulate sounds or words in her business, but publishing websites.
The art or business of printing and publishing.
Press – Webster’s 1828 Dictionary
While Ms. Smith, and for that matter the Supreme Court, see this as a First Amendment Freedom of Speech case, it’s really a Colorado Constitution Freedom of Press case and a Fourteenth Amendment privileges and immunities cases.
To clarify her rights, Ms. Smith filed a lawsuit in federal district court. In that suit, she sought an injunction to prevent the State from forcing her to create wedding websites celebrating marriages that defy her beliefs. To secure relief, Ms. Smith first had to establish her standing to sue. That required her to show “a credible threat” existed that Colorado would, in fact, seek to compel speech from her that she did not wish to produce.
Ms. Smith, having seen what had happened to Jack Phillips, and probably others, initiates a preemptive strike, filing a lawsuit and seeking an injunction against the State of Colorado before they have a chance to infringe on her rights. However, since she has not been aggrieved yet, she doesn’t have an obvious standing for the courts. Generally, courts don’t appear to like preemptive law suits, deciding to wait until someone actually suffers some harm before accepting them. In order to show that she had standing, Ms. Smith had to show a credible threat that the State of Colorado would compel her to publish websites that she did not want to produce.
In her lawsuit, Ms. Smith alleged that, if she enters the wedding website business to celebrate marriages she does endorse, she faces a credible threat that Colorado will seek to use CADA [Colorado Anti-Discrimination Act] to compel her to create websites celebrating marriages she does not endorse. … As evidence, Ms. Smith pointed to Colorado’s record of past enforcement actions under CADA, including one that worked its way to this Court five years ago. See Masterpiece Cakeshop,
Did Ms. Smith have a credible threat that Colorado would compel her to produce websites celebrating marriages she does not endorse? Absolutely. All the court had to do was look at a previous case it had dealt with, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n. In that case the court found that Colorado had violated the Free Exercise Clause, not so much because they compelled speech, but because the Colorado Civil Rights Commission was hostile to Jack Phillips beliefs.
That consideration was compromised, however, by the Commission’s treatment of Phillips’ case, which showed elements of a clear and impermissible hostility toward the sincere religious beliefs motivating his objection. As the record shows, some of the commissioners at the Commission’s formal, public hearings endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, disparaged Phillips’ faith as despicable and characterized it as merely rhetorical, and compared his invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. No commissioners objected to the comments. Nor were they mentioned in the later state-court ruling or disavowed in the briefs filed here. The comments thus cast doubt on the fairness and impartiality of the Commission’s adjudication of Phillips’ case.
Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n
Like all such cases, Ms. Smith’s case started in district court, where she lost. The case was appealed to the Tenth Circuit, which found that she did have standing, but was not entitled to the injunction she sought.
Turning to the merits, however, the Tenth Circuit held that Ms. Smith was not entitled to the injunction she sought. The court acknowledged that Ms. Smith’s planned wedding websites qualify as “pure speech” protected by the First Amendment. … As a result, the court reasoned, Colorado had to satisfy “strict scrutiny” before compelling speech from her that she did not wish to create. Id… Under that standard, the court continued, the State had to show both that forcing Ms. Smith to create speech would serve a compelling governmental interest and that no less restrictive alternative exists to secure that interest. … Ultimately, a divided panel concluded that the State had carried these burdens. As the majority saw it, Colorado has a compelling interest in ensuring “equal access to publicly available goods and services,” and no option short of coercing speech from Ms. Smith can satisfy that interest because she plans to offer “unique services” that are, “by definition, unavailable elsewhere.” …
The Tenth Circuit acknowledged that Ms. Smith’s websites would be pure speech (press), so you would think that it would be protected. Unfortunately, under our current and irrational jurisprudence, we have this theory of “strict scrutiny”.
A standard of Judicial Review for a challenged policy in which the court presumes the policy to be invalid unless the government can demonstrate a compelling interest to justify the policy. …
Once a court determines that strict scrutiny must be applied, it is presumed that the law or policy is unconstitutional. The government has the burden of proving that its challenged policy is constitutional. To withstand strict scrutiny, the government must show that its policy is necessary to achieve a compelling state interest. If this is proved, the state must then demonstrate that the legislation is narrowly tailored to achieve the intended result.
Strict Scrutiny – The Free Legal Dictionary
Under this interpretation of “judicial review”, a court can find an act to be unconstitutional, but allow it anyway because of a “compelling government interest”. The fact that this is a direct violation of both the Supremacy Clause and the justices’ oaths of office doesn’t seem to bother them one bit.
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
U.S. Constitution, Article VI, Clause 2
As the supreme law of the land, once an act is found unconstitutional that should be the end of the debate. As has become quite common among today’s courts though, they’ve placed their preferences and options above their oaths to support the Constitution.
As these cases illustrate, the First Amendment protects an individual’s right to speak his mind regardless of whether the government considers his speech sensible and well intentioned or deeply “misguided,” … and likely to cause “anguish” or “incalculable grief,” …. Equally, the First Amendment protects acts of expressive association. … Generally, too, the government may not compel a person to speak its own preferred messages. Nor does it matter whether the government seeks to compel a person to speak its message when he would prefer to remain silent or to force an individual to include other ideas with his own speech that he would prefer not to include. … All that offends the First Amendment just the same.
Your freedom to speak and publish is not subject to government regulation. Not only do the constitutions of the several states and the United States prohibit government from restraining your expression, no matter how misguided they may think it to be, they cannot compel or coerce you into expressing the message they would prefer. Suppressing, even eliminating a message they did not like, is exactly what the State of Colorado has done with the CADA.
As surely as Ms. Smith seeks to engage in protected First Amendment speech, Colorado seeks to compel speech Ms. Smith does not wish to provide. As the Tenth Circuit observed, if Ms. Smith offers wedding websites celebrating marriages she endorses, the State intends to “forc[e her] to create custom websites” celebrating other marriages she does not. … Colorado seeks to compel this speech in order to “excis[e] certain ideas or viewpoints from the public dialogue.” … Indeed, the Tenth Circuit recognized that the coercive “[e]liminati[on]” of dissenting “ideas” about marriage constitutes Colorado’s “very purpose” in seeking to apply its law to Ms. Smith.
Before we look at the majority opinion, let’s take a quick look at the dissent from justice Sotomayor, joined by justices Kagan and Jackson
Dissent
Five years ago, this Court recognized the “general rule” that religious and philosophical objections to gay marriage “do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.” ... The Court also recognized the “serious stigma” that would result if “purveyors of goods and services who object to gay marriages for moral and religious reasons” were “allowed to put up signs saying ‘no goods or services will be sold if they will be used for gay marriages.’ ”…
Today, the Court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class. Specifically, the Court holds that the First Amendment exempts a website- design company from a state law that prohibits the company from denying wedding websites to same-sex couples if the company chooses to sell those websites to the public. The Court also holds that the company has a right to post a notice that says, “ ‘no [wedding websites] will be sold if they will be used for gay marriages.’ ”…
Reading this opening to the dissent, I was reminded of a letter written by Dietrich Bonhoeffer that was quoted under the title Theory of Stupidity:
Against stupidity we are defenseless. Neither protests nor the use of force accomplish anything here; reasons fall on deaf ears; facts that contradict one’s prejudgment simply need not be believed —
Theory of Stupidity, Dietrich Bonhoeffer
A quick look at the facts stipulated by both Ms. Smith and the State of Colorado shows that at no time did Ms. Smith deny services to people based on their sexual preferences.
Rather, she recognized it was illegal for the State of Colorado to coerce her to express a message with which she disagreed. It appears that, as Mr. Bonhoeffer noted, the dissenting justices “reasons fall on deaf ears; facts that contradict one’s prejudgment simply need not be believed”. It’s like getting directions to drive from Nashville to Boston but starting in San Diego. With such a flawed starting point it’s no wonder these justices came to such a ridiculous, may I even say stupid, conclusion. While the language he used was quite different, it appears Justice Gorsuch was just as confused by the dissenting opinion:
It is difficult to read the dissent and conclude we are looking at the same case. Much of it focuses on the evolution of public accommodations laws, … and the strides gay Americans have made towards securing equal justice under law, ... And, no doubt, there is much to applaud here. But none of this answers the question we face today: Can a State force someone who provides her own expressive services to abandon her conscience and speak its preferred message instead?
When the dissent finally gets around to that question— more than halfway into its opinion—it reimagines the facts of this case from top to bottom. The dissent claims that Colorado wishes to regulate Ms. Smith’s “conduct,” not her speech. … Forget Colorado’s stipulation that Ms. Smith’s activities are “expressive,” … and the Tenth Circuit’s conclusion that the State seeks to compel “pure speech,” … The dissent chides us for deciding a pre-enforcement challenge. ... But it ignores the Tenth Circuit’s finding that Ms. Smith faces a credible threat of sanctions unless she conforms her views to the State’s. … The dissent suggests (over and over again) that any burden on speech here is “incidental.” … All despite the Tenth Circuit’s finding that Colorado intends to force Ms. Smith to convey a message she does not believe with the “very purpose” of “[e]liminating . . . ideas” that differ from its own.
Decision
Now let us look at the decision the rest of the justices came to.
If she wishes to speak, she must either speak as the State demands or face sanctions for expressing her own beliefs, sanctions that may include compulsory participation in “remedial . . . training,” filing periodic compliance reports as officials deem necessary, and paying monetary fines. … Under our precedents, that “is enough,” more than enough, to represent an impermissible abridgment of the First Amendment’s right to speak freely.
Sadly, but not unexpectedly, Justice Gorsuch places the opinions of the court above the supreme law of the land. Rather than recognizing that the State of Colorado had made a law abridging the rights and privileges of a citizen of their state and applying the protections of the law unequally, he points to the courts’ prior opinions, their precedent, to grant to Ms. Smith the justice she deserves. There is one portion of this opinion where Justice Gorsuch gives some recognition to the supremacy of the Constitution.
At the same time, this Court has also recognized that no public accommodations law is immune from the demands of the Constitution. In particular, this Court has held, public accommodations statutes can sweep too broadly when deployed to compel speech. In Hurley, the Court commented favorably on Massachusetts’ public accommodations law, but made plain it could not be “applied to expressive activity” to compel speech.
Although they got to their decision predictably, via a convoluted act of judicial gymnastics, the court did, in a 6-3 decision, come to what I believe is the correct conclusion.
In this case, Colorado seeks to force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance. In the past, other States in Barnette, Hurley, and Dale have similarly tested the First Amendment’s boundaries by seeking to compel speech they thought vital at the time. But, as this Court has long held, the opportunity to think for ourselves and to express those thoughts freely is among our most cherished liberties and part of what keeps our Republic strong. Of course, abiding the Constitution’s commitment to the freedom of speech means all of us will encounter ideas we consider “unattractive,” …“misguided, or even hurtful,” … But tolerance, not coercion, is our Nation’s answer. The First Amendment envisions the United States as a rich and complex place where all persons are free to think and speak as they wish, not as the government demands. Because Colorado seeks to deny that promise, the judgment is Reversed.
Conclusion
While I disagree with how the court arrived at its opinion, my concerns are not with the conclusion, but the fact that the placing of precedent above the supreme law of the land could have just as easily led the court to another conclusion. If the Constitution does not mean exactly what it says, it can mean nothing at all. And that, ladies and gentlemen, should concern us all.
While there are still concerns, today is a day to celebrate an important victory for freedom of expressions, whether by speech or by press. I hope this case will also provide relief not only to Jack Phillips, but to Darnelle Stuzman and all of our fellow Americans struggling to exercise their rights without government censorship or compelled speech.
Three cheers for Lorie Smith. For her courage to stand up, for her willingness to see this case through, and for the beautiful websites she can now design without worrying that the State of Colorado will try to compel her to publish a message against her will.
Paul Engel is an Affiliate of Institute on the Constitution. He founded The Constitution Study in 2014 to help everyday Americans read and study the Constitution. Author and speaker, Paul has spent more than 20 years studying and teaching about both the Bible and the U.S. Constitution. Freely admitting that he “learned more about our Constitution from School House Rock than in 12 years of public school” he proves that anyone can be a constitutional scholar. You can find his books on the Institute on the Constitution Store (theamericanview.com), Amazon, and Apple Books. You can also listen to his weekday radio show on America Out Loud (https://americaoutloud.com/the-constitution-study). You can reach him at paul@constitutionstudy.com
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