Building Better Informed Americans

Building Blocks for Liberty

U.S. Constitution

Article1 Section1 Clause 1

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.

Originalist Scholarship Relying on the Language of the Law–Part II

In our last post, we provided some examples of recent scholarship that rely on the view, which we have defended, that the Constitution is written in the language of law. They are not consistent with the view that the Constitution is written in ordinary language. In this post we provide some other important examples.

Scholars have even shown the language that looks most ordinary is better understood as part of the language of the law.  The Fourth Amendment provides: “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 word “unreasonable” is sometimes used as an example of a vague word in ordinary language that renders the meaning of a constitutional provision indeterminate.   But Laura Donohue has argued that the word “unreasonable” should be instead read with the legal meaning of “against the reason of the common law.” As a result, the Fourth Amendment does not incorporate some free-floating reasonableness test, but a set of specific prohibitions of searches that violated the common law.  For instance, she argues that warrantless entry into homes except in pursuit of a fleeing felon was a paradigm example of a search against the reason of the common law and is therefore prohibited. Under this view, the Fourth Amendment is not a provision of magnificent, but indeterminate generality, but a relatively precise catalog of prohibitions on government action.

Other recent scholarship has suggested the language of the law is essential to deciding who can hold the highest office in the land.   The Natural Born Citizen Clause provides” no person, but a natural born Citizen . . . shall be eligible for the Office of President.”  It is not clear that the term “natural born Citizen” would even register in ordinary language. But if it could be read in ordinary language it would appear to require that only those born in United States territory were eligible for the Presidency. Under English law, however, a person born outside of the country could still be a natural born subject if they were classified as a subject under the laws at the time of their birth.  Thus,  Michael Ramsey argues a natural born citizen is a person who was a citizen under the laws at the time of his birth.   This recent scholarship has once again treated a constitutional provision as written in the language of the law and found its meaning in legal history.

The language of the law is also at the heart of reevaluating the meaning of the Necessary and Proper Clause. While an ordinary reading of the Clause may make it seem vague, a recent book argues that its concepts have clear foundations in eighteenth century Anglo-American law. One of the authors uses fiduciary law to conclude that the incidental powers authorized by the Clause had to be less than the principal powers specifically authorized by the Constitution. Another interesting conclusion from this analysis is that the meaning of the Clause requires that this power be used impartially and thus that the original Constitution applied some form of an equality principle to the federal government . Whatever the validity of this interpretation, it would be impossible to make it from the ordinary meaning of the words.

James Madison said in

Federalist #47:

"The accumulation of all powers, legislative, executive and judiciary, in the same hands, whether of one, a few, or many and whether hereditary, self-appointed or executive, may justly be pronounced the very definition of

What Can Be Done with Felonious Members of Congress?

 by Frank Kuchar

In 1989 when the Exxon oil tanker Valdez ran onto the Prince William Sound’s Bligh Reef in Alaska and polluted the waters along 1,000 miles of Alaskan shoreline because its captain was drunk, protestors took to singing a parody of this old children’s song:   “What do you do with a drunken sailor, early in the morning?  Make him captain of an Exxon tanker.”

The question could be raised similarly about what do you do with a felonious, and perhaps traitorous member of Congress?  Well, for the Democrats, you place them in positions of leadership (at least until the member’s actions become known widespread).  By now I’m certain most, if not all, of those reading this have heard the reports of how Democratic Representative and former head of the Democratic National Committee, Debbie Wasserman Schultz, hired Muslim individuals to be her IT technicians. These technicians had access to hers and a number of other Democratic Representatives’ computers and who knows how much sensitive data in our government files.  These same individuals defrauded us taxpayers and one was even caught trying to flee the country.  We now learn that Congresswoman Schultz continued payments to him and some of the others after they had been blocked from having access to the House computer network and could not perform the work for which they supposed had been engaged.

So what can be done with members of Congress who act so egregiously?  There’s the standard answer – vote them out of office.  Yet as someone who twice attempted in the primaries to oust a long, long-term Congressman , that is seldom done as they have too much money, influence and too many connections.  However, there is another way, but it takes more political courage than those sitting in Congress seldom exhibit.

Article I, Section 5, Clause 2 of the Constitution contains this remedy:

“Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a member.”

I would say that Congresswoman Schultz’s actions certainly meet that rather low bar of “disorderly Behaviour” wouldn’t you?  There should be an immediate appointment of a special prosecutor to investigate her actions, and when all is brought forth, the other members of Congress should expel her.  But we all know that will never happen because far too many of those in Congress could also fall into similar condemnation.  After all, there is that long-standing principle of “Honor among thieves” in play with members of our Congress.  Would that we’d just have a smattering of pure, plain old “honor”.

Things To Remember

“We Live in a Constitutional Democracy” – ???

by Frank Kuchar

I caught a clip promoting an interview with Supreme Court Associate Justice Elena Kagan recently, and the comment they played made me stop in my tracks.  She made the observation that we are a constitutional democracy.  In doing some digging, I found that wasn’t the first time she’s made that observation.

In the case in 2013 where the SCOUS struck down the Defense of Marriage Act, she made this statement to Michigan’s Assistant Attorney General:  “Mr. Bursch, we don’t live in a pure democracy, we live in a constitutional democracy. And the Constitution imposes limits on what people can do, and this is one of those cases.”

 Couple that with her comment in a 1995 review where she wrote about what influences the rulings of a Supreme Court Justice, and you have to scratch your head and wonder how the Republicans in the Senate ever let her get confirmed:  “…it should come as no surprise by now that many of the votes a Supreme Court justice casts have little to do with technical legal ability and much to do with conceptions of value.”  And just whose “conceptions of values” might they be?  Why, the individual justice, of course!

Our founders rebelled against being ruled by the ‘whims” of one man (King George), yet this is precisely what Justice Kagan is saying the basis for her decisions are.  Never mind the concept of the rule of law, or justice being blind to all but the facts.  We now are being dictated to by a subjective judicial oligarchy.

In his famous treatise, Common Sense, Thomas Paine wrote:  “But where, says some, is the King of America?  I’ll tell you….in America, THE LAW IS KING.  For as in absolute governments the King is law, so in free countries the law OUGHT to be King; and there ought to be no other.”  No Justice Kagan, you are not “King” (or “Queen”) over us, though you and the judiciary of this country act like it.  Law is not subjective, nor cannot it be for if so, then it fails to be law based upon principles and justice, but is tyrannical rule by a powerful few, or mob rule by majority (i.e., democracy).

After the draft of the Constitution was completed and ready for acceptance by the states, the aged Benjamin Franklin was leaving Independence Hall in Philadelphia where anxious citizens had gathered to learn of the actions taken by the convention being held there.  A Mrs. Powel of Philadelphia asked Benjamin Franklin, “Well, Doctor, what have we got, a republic or a monarchy?” With no hesitation whatsoever, Franklin responded, “A republic, if you can keep it.”  Justice Kagan, we are not a constitutional democracy; Benjamin Franklin stated very plainly we are a republic of democratically elected representatives of the people, and (as originally intended) state legislatively-appointed senators to represent the interest of the states (fyi, Justice Kagan, that’s called “federalism”– a great concept; maybe you could read up on it).

Elena Kagan sits on our Supreme Court and is clueless of these facts.  Thanks to the likes of Justice Kagan and the ignorance of so many of Americans, unfortunately, as Franklin warned, we have not kept our republic, but instead are seeing it fast fading into the darkness of democratic oppression and tyranny.

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