The Constitution's Week in Review - Jan 30, 2016

(This shows no signs of stopping).
Ted Cruz’s problems mount as challenges to his eligibility to appear on primary ballots increases, the latest in Illinois.  There is no doubt in my mind that Ted Cruz is an American citizen, he has never been forced to go through a naturalization process and today holds a high office in our government.  But the question of whether he fits the definition of a “natural-born citizen” in constitutional terms remains in question. 

A WND article "Motion Demands Cruz be Removed from Illinois Ballot" brings out, this could be quite the problem should Cruz somehow succeed and become the Republican nominee (or less likely, be chosen as Trump’s VP candidate).  Democrat challenges at that point could have the effect of forcing the Republican Party to replace Cruz with…?  Who knows, but likely an “establishment candidate.”  It could also serve to throw the 2016 election itself in turmoil, causing the President to order a delay of the election, which could run on until the Court resolves the issue.  Perhaps the Court system will act before November, but it will certainly not act before the primary season begins. 

I think Cruz should withdraw from the race instead of continuing in the face of this uncertainty.  On the other hand, what else could have gotten the American people to ever read articles about the Constitution?  Thank you Ted Cruz (and Marco Rubio, and Bobby Jindal.)

Article 5.

It never fails: Friday night I send out my “Week in Review” to the two websites which publish it (Fairfax Free Citizen and ConservativeTruth.com) and, invariably, some article arrives in my inbox Saturday morning that I wish I had included.  A friend sent me the article "Time for an Article 5 Convention?" last Saturday morning from CentralMaine.com; the writer relates yet another endorsement to the Article V convention project: University of Tennessee law professor Glenn Harlan Reynolds has added his support.  The writer of the article includes a couple of related points worth commenting on.  I quote:

“Considering that the U.S. Supreme Court already sits as an unelected nine-member constitutional convention every time it meets…”

We all know this is true, even if it shouldn’t be.

Quoting Thomas Sowell he writes: “Is it better to have the Constitution amended de facto by a 5-to-4 vote of the Supreme Court? By the unilateral actions of a president? By administrative rulings by anonymous bureaucrats in federal agencies, to whom federal judges ‘defer’?”

Those opposed to an Article V Convention will quickly point out that these two quotes reflect unconstitutional actions by the federal government.  I agree.  But to quote Hillary: “At this point, what difference does it make?” 

The American people, rightly or wrongly, have accepted the Supreme Court as the final arbiter of Constitutional interpretation.  We all know there is nothing in the Constitution which requires this view, but that is, incontrovertibly, the state of things. 

I’ve written before of our “unwritten” Constitution, as have some prominent Constitutional scholars.  Let’s face facts: John Marshall succeeded in establishing the Court as the Constitution’s final arbiter (much to President Thomas Jefferson’s chagrin, and ours today), it has not been a recent phenomenon; and this fact has become ingrained in our unwritten Constitution.  To change that you have to change our culture, which can be done, of course, but which will take a long, long time – longer than I believe we have, frankly.

I’m a realist, definitely not a romantic (ask my wife); that’s why I am amused to encounter those still clinging to the notion that “all we need to do is get Congress to obey the original Constitution” and all will be well.  I used to be one of these idealists, and then reality slammed me in the face.

Theoretical physics predicts the existence of as yet undiscovered elementary particles.  Physicists are sure these particles are there, they just haven’t looked in the right place or in the right way – yet.  Well, I propose a new field of study: theoretical Constitutionalism: the study of what America would be like if only we could return to operating under the Constitution of 1787, the America that existed before the Supreme Court sunk its teeth into the document.  As the song goes: “What a wonderful world that would be.”

But as Donald Rumsfeld will tell you: “…you go to war with the army you have---not the army you might want or wish to have ….”

Congress operates under the Constitution the Supreme Court has created for them, not the Constitution we wish they would operate under, and it’s going to take a lot, lot more Constitutionalists getting elected to Congress to change that paradigm.  A lot more Constitutionalists than the American people seem willing to elect, frankly. 

As I see it, only three events are going to significantly change things:

1)  general insurrection: the American people decide enough is enough, march on Washington en’ masse, forcibly remove and replace their representatives with ones who have pledged to operate under the 1787 Constitution (however we interpret it); or,

2) the nine members of the Supreme Court wake up next Wednesday, sit up straight in their beds and shout out loud, in unison, “We’ve got to fix things.”  Later that morning they assemble at the Court and begin the careful dismantling of 200+ years of power-expanding rulings of previous Courts until they arrive, Voi’la!, at the 1787 Constitution; or,

3) “We the People” decide that Scenario 1 sounds messy and Scenario 2 is indeed not going to happen, and we thus have to do the Court’s work for them; except we don’t have the power to overturn previous SCOTUS rulings (or do we?). 

The Constitution gives “We the People” very, very limited power over our federal government – that was by design: a well-founded fear of democracy.  We can influence things at the ballot box and we can influence things through persuasion of those we elect.  But there is a third, very important power we have:  we can take the very broad, ambiguous language that the Framers gave us, the very language the Court has used to expand the power of the federal government, and “tighten it up a bit.”  Even then we need the help of the state legislatures to exert this power.

What would I do with this power?

I would re-word the Commerce Clause to make it say precisely what we believe the Framers had in mind. Maybe Professor Randy Barnett, author of “The Original Meaning of the Commerce Clause” should draft this change. 

We then turn to the phrase “General Welfare.”  We define the phrase to say that all spending of Congress must enhance the welfare of all Americans, and not inure to the benefit of any particular group of Americans, or words to that effect.

Can you see the effect just these two changes would have?  They would instantly negate hundreds of Supreme Court rulings which have concluded those two phrases mean otherwise.  Thousands of federal regulations and programs based on those Court rulings would be as well negated, their legal “rug” pulled from beneath them. 

Just these two amendments would change our political landscape in manifold ways.  They wouldn’t of course, put the Supreme Court out of a job, there’s plenty more ambiguity in the Constitution to deal with.  And eventually someone would challenge the meaning of even the amended words we came up with, but it might just provide us some breathing room, time to put our fiscal house back in order, time to deal with our crushing debt and unfunded promises, time to have a national conversation over the meaning of our foundational document of law.

"The Constitution...is a mere thing of wax in the hands of the judiciary which they may twist and shape into any form they please," Said Thomas Jefferson

“If [the opinion that says judges may interpret the Constitution, not just for their sphere of authority for also for the Executive and Legislative] be sound, then indeed is our constitution a complete felo de se” (suicide pact)."  Thomas Jefferson.

First Amendment

In a significant blow to religious liberty this week, a private Catholic girl’s school in Massachusetts lost their attempt to be guided by their church doctrine in their staff hiring practices.  They retracted a job offer (as a food handler) inadvertently offered to a homosexual after learning he was one.  The court denied the school an exemption from Massachusetts anti-discrimination law because the school “accepts students of all faiths, it is [therefore] not exempt as a religious institution.”  Amazing logic – not.

The homosexual community naturally celebrated the decision.  We hope Fontbonne Academy appeals, and wins.  This could have dire repercussions should this decision be upheld.

6th Amendment - Right to a Jury Trial

My friend Pastor David Whitney of the Institute on the Constitution had an interesting experience recently: caught using his cell phone while driving, he was charged with a traffic infraction.  He requested a jury trial in the confirmation of his court appearance time and, when the time came, the policeman bringing the charge failed to show up to verify the charge, giving the judge no recourse but to dismiss it.  A friend of David’s reported a similar experience.  Perhaps they are on to something.  I can imagine a policeman not wanting to sit through a jury trial and be cross-examined by the accused (which is precisely what David intended) so he chose to be elsewhere. 

Both Article 3 and the 6th Amendment guarantee you the right to a jury trial in most circumstances. The Supreme Court has ruled that if the potential imprisonment for a criminal charge is longer than six months, you have a right to a trial by jury, but if you request one, be sure you know why, and be ready.  I encourage you to consider the reasoning David intended to use.  Check your state Constitution and see whether you have similar protections that your legal system may be ignoring.

Jury Nullification

Last week on “We the People” we discussed the Rule of Law.  Towards the end we mentioned the importance of juries in judging the law and how this power of the jury has been routinely suppressed by jealous judges.  Courses like IOTC’s “Duty of the Jury” aim to correct our national ignorance and other organizations are in the fight as well.  One such organization is The Fully Informed Jury Association.

Keith Wood was arrested last November 24th on the orders of Mecosta County District Court Judge Peter Jaklevic while he was handing out leaflets published by the Fully Informed Jury Association to members of the public on public property.

This is a slam dunk Right of Speech case.  Wood was charged with obstruction of justice and jury tampering.  One problem: it was not yet a jury but rather a jury pool from which a jury would later be selected.  There could be no “jury tampering” because there was no jury.

“In fact, judges regularly assist the prosecution by dismissing prospective jurors who will admit knowing about this right – beginning with anyone who also admits having qualms with the law,” says the article.

Of course, if all Americans took time to inform themselves of the rights of the jury, there would be no need for activists like Mr. Wood to pass our leaflets.  If he is convicted, I predict he will win on appeal.  Last month a judge in Denver dismissed all charges against two other men similarly accused.

If you want to advance the cause of liberty by assisting FIJA in their project and hand out similar pamphlets outside your local courthouse, FIJA has some educational material you should study first.


Sources:

Motion Demands Cruz be removed from Illinois BallotTime for an Article 5 Convention?
America's Unwritten Constitution: The Precedents and Principles We Live By
“The Original Meaning of the Commerce Clause”
Milton Catholic School Loses Gay Bias Case
Jury Nullification Activist
Juror Rights Educators Triumph Again in Denver

Upcoming Events.
Constitutional Conversations – 8 February.  For my local subscribers, the next “Constitutional Conversations” will be coming up on Monday, 8 February, at Christopher Newport College, Newport News, VA (Freeman Center Room 201).  The topic: “Freedom of Speech.”  Nowhere is Freedom of Speech more imperiled today than on college campuses, thus I hope for a good turnout and a lively discussion.  Hope to see you there. 

Lessons in Liberty – 15 February.  For those both local and not, on Monday, 15 February you will have a wonderful opportunity to hear Pastor David Whitney, Senior Instructor at the Institute on the Constitution, speak on the subject: “The Most Powerful Vote You Will Ever Cast – Your Vote As A Juror.”  The presentation will be held at the Foundation for American Christian Education classroom but will also be Livestreamed to anywhere you happen to be.  Cost to attend, either locally or via Livestream is a whopping $10.  Most Americans know little to nothing of the real power of a jury, and judges have a vested interest in seeing it stay that way.  You should become informed in case you are ever called to serve.  Go to www.face.net to register.