Is it Time for a Balanced Budget Amendment?
One of several provisions of a debt ceiling agreement floated by Republicans is that both houses of Congress pass a Balanced Budget Amendment (BBA) resolution. Not a new idea – all states but Vermont currently have balanced budget requirements. Germany and Switzerland both have balanced budget provisions in their constitutions. In a letter to John Taylor of Caroline on November 26, 1798, Thomas Jefferson wrote:
“I wish it were possible to obtain a single amendment to our Constitution. I would be willing to depend on that alone for the reduction of the administration of our government; I mean an additional article taking from the Federal Government the power of borrowing. I now deny their power of making paper money or anything else a legal tender. I know that to pay all proper expenses within the year would, in case of war, be hard on us. But not so hard as ten wars instead of one. For wars could be reduced in that proportion; besides that the State governments would be free to lend their credit in borrowing quotas.”
Since 1975, 32 states have petitioned Congress to consider a BBA. Should two additional states issue similar petitions, some contend Congress would then be required to call a Constitutional Convention, in accordance with Article 5 of the US Constitution, to consider the BBA.
There is currently a joint resolution in Congress to pass a BBA.
JOINT RESOLUTION
Proposing an amendment to the Constitution of the United States relative to balancing the budget.
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States:
Article
Section 1. Total outlays for any fiscal year shall not exceed total receipts for that fiscal year, unless two-thirds of the duly chosen and sworn Members of each House of Congress shall provide by law for a specific excess of outlays over receipts by a rollcall vote.
Section 2. Total outlays for any fiscal year may not exceed 20 percent of the gross domestic product of the United States for the calendar year ending before the beginning of such fiscal year, unless two-thirds of the duly chosen and sworn Members of each House of Congress shall provide by law for a specific amount in excess of such 20 percent by a rollcall vote.
Section 3. Prior to each fiscal year, the President shall transmit to the Congress a proposed budget for the United States Government for that fiscal year in which total outlays do not exceed total receipts.
Section 4. No bill to increase Federal taxes shall become law unless approved by two-thirds of the duly chosen and sworn Members of each House of Congress by a rollcall vote.
Section 5. The Congress may waive the provisions of this article for any fiscal year in which a declaration of war is in effect. The provisions of this article may be waived for any fiscal year in which the United States is engaged in military conflict which causes an imminent and serious military threat to national security and is so declared by a joint resolution, adopted by a majority of the duly chosen and sworn Members of each House of Congress, which becomes law.
Section 6. The Congress shall enforce and implement this article by appropriate legislation, which may rely on estimates of outlays, receipts, and gross domestic product.
Section 7. Total receipts shall include all receipts of the United States Government except those derived from borrowing. Total outlays shall include all outlays of the United States Government except for those for repayment of debt principal.
Section 8. This article shall take effect beginning with the fourth fiscal year beginning after its ratification.
There have been discussions of changes to the supermajority requirements, from two thirds to three quarters, as well as whether 20% of GDP is the appropriate limit. Amendments have also been proposed requiring state ratification of all increases to the debt ceiling, which would be intended to supplement rather than replace the BBA and would be of little effect if the BBA were properly enforced – a belt and suspenders approach.
Criticism of a BBA largely centers around the Keynesian argument that deficit spending is necessary in times of recession, though this particular argument seems to be dulled if not entirely refuted by recent attempts to dampen the recession with historic annual deficits. Given the clear propensity for members of the Executive and Legislative branches, including many who claim to fly the flag of fiscal conservatism, to consider prior year spending as the budget baseline, expecting a change to that approach absent a Constitutional requirement seems unrealistic at best.
With current debt exceeding $14 trillion, any agreement to allow an increase should come with passage of the joint resolution. The President is right……..enough is enough.
http://en.wikipedia.org/wiki/Balanced_Budget_Amendment
Is It Time For A Balanced Budget Amendment?
One of several provisions of a debt ceiling agreement floated by Republicans is that both houses of Congress pass a Balanced Budget Amendment (BBA) resolution. Not a new idea - all states but Vermont currently have balanced budget requirements. Germany and Switzerland both have balanced budget provisions in their constitutions. In a letter to John Taylor of Caroline on November 26, 1798, Thomas Jefferson wrote:
“I wish it were possible to obtain a single amendment to our Constitution. I would be willing to depend on that alone for the reduction of the administration of our government; I mean an additional article taking from the Federal Government the power of borrowing. I now deny their power of making paper money or anything else a legal tender. I know that to pay all proper expenses within the year would, in case of war, be hard on us. But not so hard as ten wars instead of one. For wars could be reduced in that proportion; besides that the State governments would be free to lend their credit in borrowing quotas.”
Since 1975, 32 states have petitioned Congress to consider a BBA. Should two additional states issue similar petitions, some contend Congress would then be required to call a Constitutional Convention, in accordance with Article 5 of the US Constitution, to consider the BBA.
There is currently a joint resolution in Congress to pass a BBA.
JOINT RESOLUTION
Proposing an amendment to the Constitution of the United States relative to balancing the budget.
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States:
Article
Section 1. Total outlays for any fiscal year shall not exceed total receipts for that fiscal year, unless two-thirds of the duly chosen and sworn Members of each House of Congress shall provide by law for a specific excess of outlays over receipts by a rollcall vote.
Section 2. Total outlays for any fiscal year may not exceed 20 percent of the gross domestic product of the United States for the calendar year ending before the beginning of such fiscal year, unless two-thirds of the duly chosen and sworn Members of each House of Congress shall provide by law for a specific amount in excess of such 20 percent by a rollcall vote.
Section 3. Prior to each fiscal year, the President shall transmit to the Congress a proposed budget for the United States Government for that fiscal year in which total outlays do not exceed total receipts.
Section 4. No bill to increase Federal taxes shall become law unless approved by two-thirds of the duly chosen and sworn Members of each House of Congress by a rollcall vote.
Section 5. The Congress may waive the provisions of this article for any fiscal year in which a declaration of war is in effect. The provisions of this article may be waived for any fiscal year in which the United States is engaged in military conflict which causes an imminent and serious military threat to national security and is so declared by a joint resolution, adopted by a majority of the duly chosen and sworn Members of each House of Congress, which becomes law.
Section 6. The Congress shall enforce and implement this article by appropriate legislation, which may rely on estimates of outlays, receipts, and gross domestic product.
Section 7. Total receipts shall include all receipts of the United States Government except those derived from borrowing. Total outlays shall include all outlays of the United States Government except for those for repayment of debt principal.
Section 8. This article shall take effect beginning with the fourth fiscal year beginning after its ratification.
There have been discussions of changes to the supermajority requirements, from two thirds to three quarters, as well as whether 20% of GDP is the appropriate limit. Amendments have also been proposed requiring state ratification of all increases to the debt ceiling, which would be intended to supplement rather than replace the BBA and would be of little effect if the BBA were properly enforced – a belt and suspenders approach.
Criticism of a BBA largely centers around the Keynesian argument that deficit spending is necessary in times of recession, though this particular argument seems to be dulled if not entirely refuted by recent attempts to dampen the recession with historic annual deficits. Given the clear propensity for members of the Executive and Legislative branches, including many who claim to fly the flag of fiscal conservatism, to consider prior year spending as the budget baseline, expecting a change to that approach absent a Constitutional requirement seems unrealistic at best.
With current debt exceeding $14 trillion, any agreement to allow an increase should come with passage of the joint resolution. The President is right……..enough is enough.
http://en.wikipedia.org/wiki/Balanced_Budget_Amendment
Strip Searching the Casual Terrorist
In the news, across dining room tables, and around water coolers from coast to coast–everywhere–is heard the public’s outrage at being strip searched and/or physically groped by government toadies. And for what? Because people opted to purchase a seat on an airplane, in order to travel from Point A to Point B. And each of those seemingly innocuous purchases, in turn, set off loud alarms within the federal government, because, surely everyone who purchased a ticket is the essence of evil in the world, hell bent on rampages of destruction in the air.
The federal toadies have proclaimed loudly that the only way to ensure our national security is to treat each and every American as a potential terrorist, though they don’t phrase it quite so directly. Instead, they exclaim that being strip searched, and possibly groped, is the next step in the evolution of air travel security, and it is necessary if we are to guarantee our national security (which sounds very much like saying “we’re doing it for the children”). And, while it’s true that, since September 11, 2001, we’ve not seen another incident involving aircraft, that success is not due to our having subjected our citizens to potentially humiliating violations of their persons. And the success of the virtual strip searches has not been proved. Indeed, TSA officials reported that in one year, the scanners identified 130 illegal, prohibited or dangerous items that were seized before they could make it on the plane. The officials opted to identify only one of those 130 items–a syringe full of heroin–ironically, the one item least likely to be used in downing a jumbo jet. That should call into question the precise nature of the other items: what were they, and what’s the likelihood that they were potentially implements of terror?
All of this pales in comparison to the question all should be asking. Is the federal government, in subjecting everyone to these searches, in violation of constitutional protections? The answer is almost certainly yes.
The Fourth Amendment to the Constitution states:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The Fourth Amendment came about largely as a result of general warrants issued during the colonial years. Magistrates were compelled to issue them based on nothing more than mere suspicion of the local tax collector, or even an informant. The warrants themselves had no real limits, in that they permitted blanket searches of anything and everyone in an area, and colonists had no recourse against them.
According the the Fourth Amendment (hereafter, “4th”), all American citizens have the natural right to privacy; that is, to be free of unwarranted intrusion of their persons, homes, etc., by the government. That, however, is not the whole of the amendment, as it continues, in the same sentence, stating that no warrant shall be issued without probable cause and it must describe the person of things to be searched and/or seized. Note that the second half of the sentence ties to the first, making evident that before government may invade our privacy it must have cause enough to obtain a warrant (there are exceptions to this, but all are based on the requirement of probable cause).
Even the Supreme Court, that most estimable of bodies which routinely distorts the Constitution, has found that government’s interference with the natural right to privacy is nearly sacrosanct. When a citizen can demonstrate that he has a reasonable expectation of privacy, government’s freedom to infringe that right is subject to the 4th. In Katz v. United States, 389 US 347, the Court wrote that:
What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. … But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.
Surely, a person entering an airport for the purpose of traveling on an airplane seeks to “preserve as private” his naked body, and that constitutes a reasonable expectation of privacy. With that in mind, it seems unreasonable that government can require him to disrobe (either literally or virtually), without probable clause. In support of that, in Terry v. Ohio, 392 US 1, the Court ruled that:
An officer who reasonably believes that “criminal activity is afoot” in a public place may stop an individual suspected of wrongdoing and “conduct a carefully limited search of his outer clothing” for weapons that could be used against the officer.
In another case, Bond v. US, 529 US 334, the Court ruled that police cannot feel and squeeze passengers’ luggage in order to try and find illegal drugs. Carrying this ruling to its logical conclusion, it stands to reason that if police cannot squeeze luggage, they most certainly cannot squeeze the passengers themselves, even when looking for non-drug-related contraband, absent probable cause, a warrant, or an outright arrest.
The use of backscatter or millimeter wave scanners, which virtually disrobe passengers–and the more invasive “pat downs” to which we may also be subject–is clearly a violation of the protection afforded citizens by the 4th. Public safety is one of the quintessential functions of government, but when, in doing so, it robs citizens of constitutionally protected natural rights, it has violated the law. There exist other, more efficient and less costly technologies that have been proved to work to better effect, and we should demand their use.
Benjamin Franklin once said, in a 1775 letter to the Pennsylvania governor, “They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.” Are we they?
(4 votes, average: 5.00 out of 5)
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Is the Electoral College in Jeopardy?
Article 2, Section 1 of the United States Constitution says, in part:
The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows:
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.
The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate; — 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; — The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed;
The Founders had two reasons to create the Electoral College. The first was out of concern that without a buffer between the population and the selection of the President, a tyrant could come to power through manipulation of public opinion. In Federalist 68, Alexander Hamilton wrote:
It was equally desirable, that the immediate election should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice. A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations. It was also peculiarly desirable to afford as little opportunity as possible to tumult and disorder. This evil was not least to be dreaded in the election of a magistrate, who was to have so important an agency in the administration of the government as the President of the United States. But the precautions which have been so happily concerted in the system under consideration, promise an effectual security against this mischief.
In short, Hamilton and other founders did not trust the public to make the right choice and felt that, as a group that met infrequently, the Electoral College was at lesser risk of being manipulated by forces either internal or external to the United States.
The second reason for the Electoral College was to provide smaller states with greater power in deciding Presidential elections than they might have with the popular vote. With the exception of Maine and Nebraska, both of which use the Congressional District Method of allocating their Electoral College votes, all states allocate their votes through the winner-take-all method. Without the Electoral College process, Presidential elections could and likely would be decided by the most populous states, and more specifically by those states with significant urban and suburban communities surrounding large cities like New York, Chicago and Los Angeles. The Electoral College process marries the one-man-one-vote principle with the federal principle that the states created the federal government. If prevents the balkanization of the country that could occur with the most populous areas deciding all Presidential elections. It prevents the tyranny of the majority.
Yesterday, the Massachusetts legislature approved a bill that would give the state’s Electoral College votes for president to the winner of the national popular vote. If the bill is signed by Governor Deval Patrick as anticipated, Massachusetts will join New Jersey, Illinois, Maryland, Washington and Hawaii, all of which have passed similar legislation, and bring the total number of Electoral College votes decided by this method to 73. If states possessing a majority of the electoral votes (or 270 of 538) enact such laws, the candidate winning the most popular votes nationally would be assured a majority of the Electoral College votes, no matter how the other states vote and how their electoral votes are distributed. This movement against the Electoral College is being led by a group called National Popular Vote, which has slowly built support for the idea since George W. Bush won the presidency in 2000 over Al Gore, despite Gore having won the popular vote.
Massachusetts’ House Speaker Robert DeLeo’s office issued this statement in support of the measure:
“The National Popular Vote measure will ensure that our presidential elections reflect the true will of the people. Speaker DeLeo is pleased that the House has enacted this measure to give each voter equal say in the election of our president.”
What this statement fails to acknowledge is the possibility that should the national popular vote go to the candidate not favored by Massachusetts voters, all of the state’s electoral votes would still go to that candidate, effectively nullifying the entire popular vote of the state. Under such a scenario, one can easily image that measures would quickly be introduced to reverse the NPV bill. This bill raises not only a constitutional question regarding equal protection, but also a logistical question regarding certification of the national popular vote, for which there is currently no process. Radio talk show host Mark Levin points out that the concept of protecting the varied and diverse interests of all states, which is behind the Electoral College process, was also behind creation of a Senate comprised of two representatives from each state. If we are to invalidate the Electoral College, should we also abolish the Senate and the protections that come with it?
Nullification of the Electoral College process through amendment of the Constitution is highly unlikely given the requirement for ratification by 3/4 of the states. Similarly, it would seem improbable that NPV laws could be passed in states representing 270 electoral votes, though improbable is not impossible. Each state has the right to decide how their electoral votes will be allocated, but do the citizens of Massachusetts and other states allocating their votes in this manner fully understand the implications of these changes passed by their state legislators? Do they recognize this as an attempt to effectively amend the United States Constitution without following the formal amendment process? Do the citizens of Maryland, Washington and Hawaii understand that they are abdicating their role in the Presidential election process to the ten to twelve most populous states in the union, a list they will likely never be on?
“If the manner of it be not perfect, it is at least excellent.” Alexander Hamilton, Federalist No. 68
The Brilliance of the Electoral College, Jeff Jacoby, The Boston Globe, July 16, 2008
The 14th Nullity
Since its adoption, the Constitution of the United States has been amended twenty-seven times. Of those amendments, one of the most controversial, despite its original, narrow intent, is Amendment XIV, whose five sections state the following:
1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.
2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
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.
4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
Of the five sections, sections 2 through 5 are predominantly free of insult, although in Section 3 is found language that abridges the right of a free people to select for themselves those who will represent them in government. The presumption that a person who had taken an oath to support the US Constitution had somehow incited insurrection or rebellion by choosing to secede from the union, based on his belief–and that of his constituents–that his state’s interests were no longer served by remaining so affiliated, presumes that secession is itself unconstitutional. Nothing could be further from the truth. Many have attested that since the Constitution only addresses the admission of new states, but does not mention the voluntary departure of a state once so joined, secession must not be legal. The federal courts have ruled secession to be unconstitutional, because the Articles of Confederation–not the Constitution–spoke of a “perpetual union.” However, because Amendment X quite specifically commands that powers not vested in the federal government are reserved to the states, or the people, there can be little doubt that secession is, in fact, within the powers of a state and not, as the protagonists claim, a crime against the Constitution. Moreover, since those who opted to secede did no harm to the Constitution itself, they did not violate their oaths. In that light, Section 3 can only be viewed as a gross intrusion on the liberties of the people. But that pales in comparison to the abuses heaped on the states by Section 1.
Following the ratification of Amendment XIII, which abolished slavery throughout the United States, the citizenship status of the emancipated slaves was left indeterminate: were they citizens or were they not? The primary purpose of Amendment XIV was to codify that black Americans were, in fact, citizens of the United States and that they enjoyed the same rights and privileges, and the same protection of the law, as those enjoyed by every other citizen. Though many people claim its intent and application were more far-reaching, consider that amendments to the Constitution are introduced to remedy problems extant at the time the amendments are introduced. They do not address or correct quandaries that either do not exist, or that cannot at the time be imagined. And yet, the first section of Amendment XIV has been so broadly interpreted that it has spawned a federal juggernaut against which the states are powerless to defend themselves.
Today, Section 1 has been interpreted to mean that any child born within a state or territory of the United States is automatically a citizen. Thus, expectant mothers from south of the border–or anywhere else, for that matter–can step into the United States and deliver their children, knowing with certainty that their children will be considered citizens. This interpretation of Section 1 is deeply flawed, as it ignores the qualifier, that one must be “subject to the jurisdiction of” the United States. If we play semantic games with that phrase, we can twist it into any form we like, but the fact is that at the time the amendment was drafted, the phrase was understood to mean that such children’s parents must “owe allegiance to” the United States for birthright citizenship to apply. Based on that understanding, it is certain that the children of those born to parents here illegally are not citizens.
Section 1 has been further corrupted to permit federal courts the power to incorporate selected portions of the Bill of Rights and apply the protections therein to the states (Incorporation Doctrine), despite the fact that those protections specifically targeted federal encroachment on the rights of the people and the states. As a direct result, we today find that the federal courts have the power to strike down state laws, overturn state courts’ decisions, and, ultimately, to annihilate the very constitutions of the states, thus cementing the states’ current role of administrative districts of the federal government.
At this point, let us take a short detour and examine the debates that led to the proposal of Amendment XIV. The debates are important because they serve to illustrate the fact that the Constitution was already misunderstood and misinterpreted at such an early date. Two remarks, in particular, clearly evidence the flawed understanding already coming to the fore. In the first, Senator James Nye suggested that Congress enjoys the power necessary to enforce the Constitution against the states:
In the enumeration of natural and personal rights to be protected, the framers of the Constitution apparently specified everything they could think of — “life,” “liberty,” “property,” “freedom of speech,” “freedom of the press,” “freedom in the exercise of religion,” “security of person,” &c.; and then, lest something essential in the specifications should have been overlooked, it was provided in the ninth amendment that “the enumeration in the Constitution of certain rights should not be construed to deny or disparage other rights not enumerated.” … All these rights are established by the fundamental law.
Will it be contended, sir, at this day, that any State has the power to subvert or impair the natural and personal rights of the citizen?
In the second, Senator William Stewart contended that:
… [T]he federal Constitution is “the vital, sovereign, and controlling part of the fundamental law of every State,” and although the states may repeat parts of it in their own bills of rights, “no State can adopt anything in a State constitution in conflict.”
Clearly, neither these men nor their successors today understand that the Constitution, with very few exceptions, places no restrictions on the states, but instead constrains the federal government alone. Yet with the current understanding of Amendment XIV, the federal government wields enormous power over the states, power the Framers most assuredly never intended or envisioned. That power, however, is unfounded, because Amendment XIV was neither proposed nor ratified in accordance with Article V of the Constitution.
Article V spells out the process by which the Constitution may be amended:
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, 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; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
In proposing Amendment XIV, Congress was in outright violation of Article V. Representatives of ten southern states (Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, Texas, and Virginia), having been legitimately elected by the people of those states, were forbidden to take their seats in Congress. The Radical Republicans then in control, in an ironic twist, claimed that those states were, in fact, not states and, therefore, not entitled to representation. Yet, as President Johnson pointed out in a message to Congress:
This bill and the acts to which it is supplementary are all founded upon the assumption that these ten communities are not States and that their existing governments are not legal. Throughout the legislation upon this subject they are called “rebel States,” and in this particular bill they are denominated “so-called States,” and the vice of illegality is declared to pervade all of them. The obligations of consistency bind a legislative body as well as the individuals who compose it. It is now too late to say that these ten political communities are not States of the Union. Declarations to the contrary made in these three acts are contradicted again and again by repeated acts of legislation enacted by Congress from the year 1861 to the year 1867.
During that period, while these States were in actual rebellion, and after that rebellion was brought to a close, they have been again and. again recognized as States of the Union. Representation has been apportioned to them as States. They have been divided into judicial districts for the holding of district and circuit courts of the United States, as States of the Union only can be districted. The last act on this subject was passed July 23, 1866, by which every one of these ten States was arranged into districts and circuits.
They have been called upon by Congress to act through their legislatures upon at least two amendments to the Constitution of the United States. As States they have ratified one amendment, which required the vote of twenty-seven States of the thirty-six then composing the Union. When the requisite twenty-seven votes were given in favor of that amendment — seven of which votes were given by seven of these ten States — it was proclaimed to be a part of the Constitution of the United States, and slavery was declared no longer to exist within the United States or any place subject to their jurisdiction. If these seven States were not legal States of the Union, it follows as an inevitable consequence that in some of the States slavery yet exists. It does not exist in these seven States, for they have abolished it also in their State constitutions; but Kentucky not having done so, it would still remain in that State. But, in truth, if this assumption that these States have no legal State governments be true, then the abolition of slavery by these illegal governments binds no one, for Congress now denies to these States the power to abolish slavery by denying to them the power to elect a legal State legislature, or to frame a constitution for any purpose, even for such a purpose as the abolition of slavery.
So much for continuous legislative recognition. The instances cited, however, fall far short of all that might be enumerated. Executive recognition, as is well known, has been frequent and unwavering. The same may be said as to judicial recognition through the Supreme Court of the United States. That august tribunal, from first to last, in the administration of its duties in banc and upon the circuit, has never failed to recognize these ten communities as legal States of the Union.
But it gets worse. Not content with having excluded the southern states, on March 27, 1866, the Senate then retroactively unseated John P. Stockton–as opposed to expelling him–the duly elected senator from New Jersey, thereby denying New Jersey a portion of its representation. Even more damning is Congress’s consideration of a resolution that would “prohibit the admission of senators and representatives into either house of Congress from the States lately in rebellion until Congress shall have declared such States entitled to representation.” [emphasis added] Such a resolution, on its face, may seem justified. However, in light of President Johnson’s message, and given Article V’s uncontestable declaration that “no state, without its consent, shall be deprived of its equal suffrage in the Senate,” there is no doubt that Congress committed an act of egregious violence against the Constitution.
Having patted themselves on the back for their artful chicanery, the rump Congress (i.e., a Congress not representative of all the states), submitted the amendment to all of the states for ratification. Thirteen states, including Delaware and Maryland, promptly rejected it. Congress responded by enacting the Reconstruction Acts, which illegally dissolved the legally constituted governments of nine southern states, and formed them into military districts subject to the military authority of the United States. The acts went on to require that:
Sec. 5. And be it further enacted, That when the people of any one of said rebel States shall have formed a constitution of government in conformity with the Constitution of the United States in all respects, framed by a convention of delegates elected by the male citizens of said State twenty-one years old and upward, of whatever race, color, or previous condition, who have been resident in said State for one year previous to the day of such election, except such as may be disfranchised for participation in the rebellion, or for felony at common law; and when such constitution shall provide that the elective franchise shall be enjoyed by all such persons as have the qualifications herein stated for electors of delegates; and when such constitution shall be ratified by a majority of the persons voting on the question of ratification who are qualified as electors for delegates; and when such constitution shall have been submitted to Congress for examination and approval, and Congress shall have approved the same; and when said State, by a vote of its legislature elected under said constitution, shall have adopted the amendment to the Constitution of the United States proposed by the Thirty-ninth Congress, and known as article fourteen; and when said article shall have become a part of the Constitution of the United States, said State shall be declared entitled to representation in Congress, and senators and representatives shall be admitted therefrom on their taking the oath prescribed by law; and then and thereafter the preceding sections of this act shall be inoperative in said State; Provided, That no person excluded from the privilege of holding office by said proposed amendment to the Constitution of the United States shall be eligible to election as a member of the convention to frame a constitution for any of said rebel States, nor shall any such person vote for members of such convention.
Sec. 6. And be it further enacted, That until the people of said rebel States shall be by law admitted to representation in the Congress of the United States, any civil government which may exist therein shall be deemed provisional only, and in all respects subject to the paramount authority of the United States at any time to abolish, modify, control, or supersede the same; and in all elections to any office under such provisional governments all persons shall be entitled to vote, and none others, who are entitled to vote under the fifth section of this act; and no person shall be eligible to any office under any provisional governments who would be disqualified from holding office under the provisions of the third article of said constitutional amendment.
President Johnson vetoed each of the Reconstruction Acts (which ultimately led to his impeachment), correctly noting that they were wholly unconstitutional–and Congress overrode the veto each time
Here again, Congress committed an act of violence on the Constitution. It had no power under the Constitution to dissolve the previously recognized, republican governments of those states. Its sole purpose was to ensure ratification of Amendment XIV, and that ratification was doomed to fail if Congress let stand the southern states’ original votes. And, of course, Congress, through its unconstitutionally installed military governors, managed to get the requisite votes for ratification. Those votes, however, were null and void, since those governments were not representative of the people of the southern states, but of the federal government itself.
On July 9, 1868, with the southern states chained into submission and having changed their votes from “nay” to “yea,” 28 of the 37 states then in the union had, at least in theory, assented to the amendment. But that’s not the end of the story. Both New Jersey and Ohio had withdrawn their assents prior to the actual ratification. New Jersey’s resolution, in particular, is a scathing indictment of a run-away federal government:
The said proposed amendment not having yet received the assent of the three-fourths of the states, which is necessary to make it valid, the natural and constitutional right of this state to withdraw its assent is undeniable….
That it being necessary, by the constitution that every amendment to the same should be proposed by two-thirds of both houses of congress, the authors of said proposition, for the purpose of securing the assent of the requisite majority, determined to, and did, exclude from the said two houses eighty representatives from eleven states of the union, upon the pretence that there were no such states in the Union; but, finding that two-thirds of the remainder of the said houses could not be brought to assent to the said proposition, they deliberately formed and carried out the design of mutilating the integrity of the United States senate, and without any pretext or justification, other than the possession of the power, without the right, and in palpable violation of the constitution, ejected a member of their own body, representing this state, and thus practically denied to New Jersey its equal suffrage in the senate, and thereby nominally secured the vote of two-thirds of the said houses.
The object of dismembering the highest representative assembly in the nation and humiliating a state of the Union, faithful at all times to all its obligations, and the object of said amendment, were one: to place new and unheard of powers in the hands of a faction, that it might absorb to itself all executive, judicial and legislative power, necessary to secure for itself immunity for the unconstitutional acts it had already committed, and those it has since inflicted on a too patient people….
It enlarges the judicial power of the United States so as to bring every law passed by the state, and every principal of the common law, relating to life liberty, or property within the jurisdiction of the federal tribunals, and charges those tribunals with duties, to the due performance of which, they, from their nature and organization, and their distance from the people, are unequal….
But the demand of the supporters of this amendment in this state: that congress should compel the people of New Jersey to adopt what is called “impartial suffrage,” makes it apparent that this section was intended to transfer to congress the whole control of the right of suffrage in the state, and to deprive the state of a free representation by destroying the power of regulating suffrage within its own limits, a power which they have never been willing to surrender to the general government, and which was reserved to the states as the fundamental principle on which the constitution itself was constructed, the principle of self-government.
Neither Congress nor Secretary of State Seward recognized either state’s withdrawal. Indeed, on July 20, 1868, Seward certified that the amendment had been ratified, if the said withdrawals were ineffective. He dismissed out of hand New Jersey’s correct assertion that a state was free to withdraw its assent at any time prior to the actual ratification of the amendment. In doing so, he also overlooked the fact that the southern states, under their military rulers, had withdrawn their rejections. If it is permissible for a state to withdraw its rejection and choose to assent, logic dictates that the reverse must also be true. Furthermore, absent law forbidding such acts, they are entirely legal and constitutional. Nevertheless, on July 21, 1868, Congress issued a joint resolution declaring that the amendment had passed, and directed Seward to promulgate it as such. Congress’s declaration, however, did not magically make constitutional that which had not been so before.
For the amendment to have been ratified in accordance with Article V required that 28 of the then 37 states assented to it. Discounting the votes of the nine states whose legitimate governments had been illegally dissolved, and acknowledging the right of both New Jersey and Ohio to withdraw their assents, by 1870, only 26 states had voted to ratify (70.27 percent), falling short of the 3/4 required. Since then, only four other states have given their assents (Delaware, Maryland, California, and Kentucky). All of those assents occurred after 1900, by which time there were 45 states in the union, which meant that ratification depended on the assents of 34 states. Since 3/4 of the states did not, and still have not, assented to it–and, more importantly, because its proposal was a violation of Article V–Amendment XIV is null and without effect.
Sources:
- Readings in American Constitutional History, 1776-1876
- New Jersey Joint Resoution Rescinding Its Assent to Amendment XIV
- The 14th Amendment–Equal Protection Law or Tool of Usurpation?
- Intent of the Fourteenth Amendment …”
- Reconstruction Acts of 1867
- Footnote on 14th Amendment Ratification
- Senate Journal, March 27, 1866
- Senate Journal, 39th Congress, First Session
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Amendment I and Incorporation Doctrine
Over the years since its supposed ratification (a subject for another day), the Fourteenth Amendment to the Constitution has come to mean something entirely different from its original purpose. It is now the club with which the federal government, the servant of the several states, beats its masters into submission.
A series of Supreme Court decisions, starting in the 1920s, ushered in the “incorporation doctrine,” whereby selected provisions of the federal Bill of Rights were forced upon the states through the Fourteenth Amendment’s due process clause, which says, “nor shall any State deprive any person of life, liberty, or property, without due process of law.” It is this club to which the federal courts have turned to subjugate the state governments, over time turning them into little more than federal vassals. There is, of course, no question that incorporation is an unconstitutional intrusion into the sovereign rights of the states, (more…)
What the Constitution Really Says About Congressional Power
The Constitution created the United States government and established the foundational law that governs it. At its heart is Article I, Section 8, precisely because all federal law (aside from that in the Constitution itself) originates in legislation enacted by Congress, and this section of the Constitution describes the matters upon which Congress may legislate. And it is here that the problems begin.
Although the Constitution is a static document, in that it remains unchanged unless and until it is formally amended, throughout history, it has been subject to many and varied interpretations, interpretations that have effectively altered the accepted understanding of what the actual text clearly says. As an example, consider that most people today believe the general welfare clause is the basis for numerous entitlement programs, all aimed at ensuring the well-being of each and every individual citizen. Unfortunately, that belief is unfounded, since, at the time the Constitution was written, it was clearly understood that the federal government’s responsibility was to secure the well-being of the union, not the individual. (more…)
The Power to Tax … and Revolt
By Mark Alexander · The Patriot Post (PatriotPost.us)
“An unlimited power to tax involves, necessarily, a power to destroy; because there is a limit beyond which no institution and no property can bear taxation.” –John Marshall
On December 16th, 1773, “radicals” from Boston, members of a secret organization of American Patriots called the Sons of Liberty, boarded three East India Company ships and threw into Boston Harbor 342 chests of tea.
This iconic event, in protest of oppressive British taxation and tyrannical rule, became known as the Boston Tea Party.
Resistance to the Crown had been mounting over enforcement of the 1764 Sugar Act, 1765 Stamp Act and 1767 Townshend Act, which led to the Boston Massacre and gave rise to the slogan, “No taxation without representation.”
The 1773 Tea Act and resulting Tea Party protest galvanized the Colonial movement opposing British parliamentary acts, which violated the natural, charter and constitutional rights of the colonists.
In response to the rebellion, the British enacted additional punitive measures, labeled the “Intolerable Acts,” in hopes of suppressing the burgeoning insurrection. Far from accomplishing their desired outcome, however, the Crown’s countermeasures led colonists to convene the First Continental Congress on September 5th, 1774, in Philadelphia. (more…)
The 2010 Census: Simple Count or Gross Intrusion?
As we all prepare to be counted as part of the 10-year census cycle authorized in the Constitution (Article I, Section 2), information appearing in news and other media outlets suggests that this year’s census is in violation of the Constitution. Specifically, the Constitution permits the federal government to enumerate, or count, the population of the United States so that it may apportion representation in Congress (since amended, it also originally served to determine each state’s fair share of the tax burden).
This year’s census will apparently ask a number of intrusive questions, none of which pertains to the actual act of counting how many of us there are. (more…)
Is it Time for Congressional Term Limits?
In proposing term limits for members of the Continental Congress, Thomas Jefferson stated that a limit was necessary “to prevent every danger which might arise to American freedom by continuing too long in office the members of the Continental Congress.” The Constitution does not include a provision for Congressional term limits, but prior to the Civil War many members of Congress in fact served only a few terms. However, as the power and importance of the federal government has grown, the incentive to seek a career as a federal politician has also grown.
On November 10, 2009, Senator Jim DeMint (R-SC) introduced a joint resolution proposing an amendment to the Constitution to limit the number of terms that a member of Congress may serve to 3 in the House of Representatives and 2 in the Senate. The resolution, cosponsored by Senators Tom Coburn (R-OK), Kay Bailey Hutchison (R-TX) and Sam Brownback (R-KS) has been referred to the Committee on the Judiciary. As an amendment to the Constitution, passage requires a two-thirds majority approval in the House and Senate and ratification by three-fourths of the states. In introducing the amendment, Senator DeMint said:
“Americans know real change in Washington will never happen until we end the era of permanent politicians. As long as members have the chance to spend their lives in Washington, their interests will always skew toward spending taxpayer dollars to buyoff special interests, covering over corruption in the bureaucracy, fundraising, relationship building among lobbyists, and trading favors for pork – in short, amassing their own power. I have come to realize that if we want to change the policies coming out of Congress, we must change the process itself. Over the last 20 years, Washington politicians have been reelected about 90% of the time because the system is heavily tilted in favor of incumbents. If we really want to put an end to business as usual, we’ve got to have new leaders coming to Washington instead of rearranging the deck chairs as the ship goes down.”
Senator Coburn added:
“The best way to ensure we are truly a government of the people, for the people, and by the people, is to replace the career politicians in Washington with citizen legislators who care more about the next generation than their next election. The power of incumbency has created an almost insurmountable advantage for Washington politicians. Incumbency allows politicians to raise millions of dollars in campaign funds in exchange for earmarks. Incumbency gives Congress the power to raise money for itself – Congress just approved itself an increase of nearly $250 million from the U.S. Treasury that members will spend to promote themselves. Finally, with redistricting incumbents can choose their voters rather than voters choosing their representatives. Term limits is the best way to break this cycle.”
Proponents of term limits seek:
- More competitive elections, bringing new candidates and ideas into the process on a more regular basis and eliminating some of the inequalities that currently benefit incumbents. In addition to generally greater name recognition, political contributions and media access, incumbents enjoy the benefits of franking (free mail to constituents) along with taxpayer-funded staff, offices and travel. Incumbents maintain their comfortable salaries while campaigning, a benefit many challengers do not share. State legislators routinely redraw congressional districts to benefit incumbents, and both the House and Senate maintain lawyers specifically to handle term limits litigation.
- A more transparent government with greater access by the people, and a significant reduction in pork-barrel spending. Freshman politicians, by their nature, are more closely connected with those who elect them, reducing the need to buy ongoing loyalties with spending sprees designed around re-election campaigns.
- Significantly reduced influence by special interest groups. Career politicians build long-standing relationships with lobbyists which are often extremely lucrative. These lobbying “investments” yield much smaller returns when term limits are imposed.
- An end to control of the legislative process by those who are most out of touch with their constituents and the realities outside the beltway, a situation clearly demonstrated by the debate over health care over the past twelve months.
Opponents, on the other hand, argue that:
- Term limits are undemocratic in that they restrict choice. In fact, term limits should expand choice as the significant advantages of incumbents will largely disappear, reducing barriers to challengers.
- The most experienced legislators with the greatest understanding of the legislative process would be eliminated. This argument presumes that freshman legislators would have no previous involvement or knowledge of the process, when in fact most elected officials have previous experience at the state level and/or through staff-level positions. Further, no other profession requires years of on-the-job training in order to be effective in the position. The legislature is no exception. Term limits could attract more talent from more diverse fields as the need for years and years of experience in order to wield significant influence disappears.
- What is needed is campaign finance reform, not term limits. In fact both are needed and one does not preclude the other. Having career politicians presume to write campaign finance reform laws is tantamount to putting the fox in charge of access to the hen house.
- Unelected people – lobbyists, staffers and bureaucrats – would effectively run Congress while freshman legislators learn the ropes. As noted previously, it is far more likely that relationships with lobbyists would be diminished and would not continue as new legislators come into office. Turnover in both staffers and bureaucrats would likely increase, with greater focus directed toward legislation rather than re-election activities. Term limits may actually provide incentive to work for reforms that transfer more power away from bureaucrats and back to Congress.
- Politicians at the end of their terms will see no political advantage to following the will of the people and every advantage to seeking personal gain. Certainly we see little propensity today to follow the will of the people, but this argument also fails in that lobbyists lose their ability to use funds to generate long-term influence. This again argues for campaign finance and lobbyist reform, not against term limits.
It is hardly coincidental that those primarily opposed to Congressional term limits are career politicians and special interest groups who support them. Term limits would eliminate incumbent election advantages, reduce incentives for wasteful spending, reduce influence of special interest groups and eliminate concentrations of power with career politicians out of touch with their constituents. The volume of legislation passed contrary to the wishes of the American people over the last several years should be ample justification to support such an amendment.
http://www.heritage.org/research/governmentreform/bg994.cfm
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