JUDICIAL ACTIVISM: Obstruction of Construction

JEFFERSON - versus Hamilton

by  Diane Rufino, September 21, 2017

In Honor of the 230th Anniversary of the US Constitution, and also to help promote Brion McClanahan’s latest book, HOW ALEXANDER HAMILTON SCREWED UP AMERICA, I wanted to post this important History Lesson —

The history surrounding the first Bank Bill (to charter a national bank), proposed to President Washington by his Secretary of the Treasury, Alexander Hamilton shows us exactly why the Federal Judiciary has become the greatest usurper of powers belonging to the States and to the People. It is an important lesson on constitutional interpretation.

Why is it important that we pay close attention to constitutional interpretation?  Because when the courts don’t bother to consult the proper original documents and commentary as authority on the meaning and intent of the provisions of the Constitution, and/or when they make the decision to disregard that history and that critical information (any student of contract laws knows the strict laws of construction that guide a contract’s interpretation), then any opinion in contradiction to that history and such commentary necessarily means that the judiciary has assumed power for the federal government that it was not intended to have. And where do those additional powers come from?  From the original depositories of government power, the People and then the States.

HISTORY –

In 1788, the US Constitution was adopted by the requisite number of states and hence, the government it created would go into effect. Later that year, elections were held, George Washington was elected our first president (and men like James Madison elected to the first US Congress), and the following year, 1789, the Union’s new government was assembled and inaugurated. One of the first decisions of the first Congress was to fund the debts that the individual states incurred in fighting the Revolutionary War. The question, of course, was how would it do that. Washington’s Treasury Secretary, Alexander Hamilton, long holding true to a belief that a large, powerful national government of centralized functions is the proper form of government for the new Union (although he conceded to the federal form that the majority of delegates at the Philadelphia Convention voted for), urged that Congress should charter a National Bank, after the British model. He took his suggestion to Washington and agreeing with Hamilton, a Bank Bill was introduced in Congress. But powerful state and government leaders, including Thomas Jefferson, Washington’s Secretary of State, James Madison, Congressman from Virginia, and several state leaders, particularly from Virginia, objected, characterizing such a bank as being “repugnant to the Constitution,” and assuming powers not expressly delegated to Congress in Article I. Washington then asked both Hamilton and Jefferson to provide him with memoranda outlining their arguments regarding the creation of such a National Bank.

(The Following section, as noted, is taken, in its entirety, from Kevin Gutzman’s book THOMAS JEFFERSON – REVOLUTIONARY (St. Martin’s Press, NY, 2017):

Jefferson began by describing the Bank Bill’s provisions, saying that he understood the underlying principle of the Constitution to be that “all powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States or to the people.” (here is quoted the Tenth Amendment, which at the time lay before the state legislatures for their ratification).  Power to pass the bill had not been delegated to the United States, he insisted. It did not fall under the power to tax for the purpose of paying debts because the bill neither paid debts nor taxed. It did not fall under the power to borrow money because the bill neither borrowed nor ensured that there would be borrowing. It did not fall under the Commerce Clause for it did not regulate commerce. Jefferson understood ‘regulating commerce’ to mean “prescribing regulations for buying and selling,” which the Bank Bill did not do. If it did that, he continued, the bill “would be void” due to its equal effects on internal and external commerce of the states. “For the power given to Congress by the Constitution,” Jefferson continues, “does not extend to the internal regulation of the commerce of a State (that is to say of the commerce between citizen and citizen), which remain exclusively with its own legislature, but to its external commerce only; that is to say, its commerce with another State or with foreign nations or with the Indian tribes.”  No other enumerated power (Article I, Section 8) gave Congress ground for passing this bill either, he concluded.

Besides the enumerated powers, the General Welfare Clause and the Necessary and Proper Clause had also been invoked by the bill’s proponents. Jefferson disposed of those clauses deftly as well. First, the General Welfare Clause said that Congress had power “to lay taxes for the purpose of providing for the General Welfare (emphasis Jefferson’s). The reference to the general welfare, he insisted, was bound to the power to tax. It did not create a separate power “to do any act they please which might be for the good of the Union, which Jefferson thought the preceding and following enumerations of powers rendered entirely obvious. To read the General Welfare Clause any other way would make the enumerations “completely useless. It would reduce the whole instrument to a single phrase, that of instituting a Congress to do whatever would be good for the United States, and as they would be the sole judges of the good or evil, it would also be a power to do whatever evil they please.”

Jefferson, the skilled lawyer that he was, noted that one of the most basic rules of construction (contract law) cut strongly in favor of his argument. That rule states that “where a phrase will bear either of two meanings, to give it that which will allow some meaning to the other parts of the instrument, and not that which would render all the others useless.” Besides that, the Philadelphia Convention had considered and expressly rejected a proposal to empower Congress to create corporations. The rejection, he noted, was based partly on the fact that with such a power, Congress would be able to create a bank.

As for the Necessary and Proper Clause, Jefferson noted that it said that the Congress could “make all laws necessary and proper for carrying into execution the enumerated powers. But they can all be carried into execution without a bank. A bank therefore is not necessary and consequently, not authorized by this phrase (emphasis Jefferson’s).”  The Bank Bill’s proponents had argued for the great convenience of having a bank, which might aid in exercising powers enumerated in the Constitution, but Jefferson would have none of the idea that “necessary” could be twisted to mean “convenient.”

Jefferson concluded his memorandum with a brief statement on the president’s veto power, which he called “the shield provided by the Constitution to protect against the invasions of the legislature: (1) The right of the Executive. (2) Of the Judiciary. (3) Of the States and State legislatures.”  To his mind, the Bank Bill presented “the case of a right remaining exclusively with the States” – that of chartering a corporation. Congress’ attempt to take this right to itself violated the Constitution and Washington should veto the bill.

Washington did not agree. Instead, perhaps on the basis of Hamilton’s argument that Congress could adopt whatever kind of legislation it judged helpful in supervising the national economy, he signed the Bank Bill.   [Gutzman, Thomas Jefferson – Revolutionary, pp. 40-42]

THE IMPACT –

When a subsequent Bank Bill was challenged by the state of Maryland, in McCulloch v. Maryland (1819), Chief Justice John Marshall would revisit the arguments submitted to President Washington and as expected, he would side with Hamilton. Hamilton’s position, after all, would give the federal government a broad pen with which to write legislation, in contrast to the limits imposed on it by the very wording of the Constitution and the listing of the only powers that the States had delegated to the federal government. McCulloch was another in a series of cases written by Marshall usurping powers from other depositories and concentrating them in the federal government. The Supreme Court, a branch of the very federal government that it presides over, has consistently used its powers not to interpret the Constitution and offer opinions to other branches, but rather to secure a monopoly over the scope and intent of the government’s powers.

Marshall’s opinion in McCulloch gave Congress power that the States intentionally tried to prevent; he read a meaning and intent in the Constitution, in Article I, that was expressly rejected by the States when they debated and then signed the document on September 17, 1787. Marshall’s reading of Article I, in particular the “Necessary and Proper” Clause, gave Congress power “to which no practical limit can be assigned,” as James Madison put it.

With McCulloch, the Supreme Court committed a grave injustice to the system established by our founding fathers and our founding states. Marshall’s opinion directly contradicted an essential element of the states’ understating of the Constitution when they ratified it, and that understanding was that the Constitution created a federal government of express and limited powers so that the residuary of government power would remain reserved to the states and hence the sovereignty they long cherished would not be overly diminished by organizing into a Union.

And the history of judicial activism continued and still does ….

 

Reference:  Kevin Gutzman, Thomas Jefferson – Revolutionary, St. Martin’s Press, NY (2017).

Advertisements

A Government of the People, By the People, For the People… How it Really Works, According to Thomas Jefferson

THOMAS JEFFERSON - Time magazine cover

by Diane Rufino, September 20, 2017

Thomas Jefferson articulated the absolute right of a state to secede from the Union. He did so in 1798, in 1799, in 1816, and up until his death in 1826 (July 4, the 50th anniversary of the signing of the Declaration of Independence). The right of self-determination was proclaimed in the Declaration as a founding principle and was never surrendered in the Constitution. In fact, Jefferson and Madison (1798 and 1800, in his written documents explaining the nature of the agreement known as the US Constitution) both agreed that such an inherent right can never be contracted away, although it should be reserved for extreme cases.

For Jefferson in 1816, the States had a clear right to leave the union. Government power, he reasoned, should never be concentrated at the top but rather at the bottom, closest to the people. If such were the case, there should never arise the level of tyranny that would warrant the drastic remedy of secession. The key, therefore, is to keep government closest to the people. Jefferson explained that the way to do this is to vest government only with those responsibilities that are absolutely necessary and those which people, in their individual capacity, cannot do or cannot be trusted to do and then to divide those responsibilities accordingly – with the governmental bodies closest to the people (localities) being responsible for the interests and affairs that touch on their lives most directly – their property, their livelihoods, their customs and communities, their education concerns, etc – and the government farthest away from them (Washington, DC) being responsible for the matters that are most external to their everyday lives, such as national security, international affairs and diplomacy, inter-state commerce, etc.

From Kevin Gutzman’s exceptional book, THOMAS JEFFERSON, REVOLUTIONARY:

Explaining the subdivision of government power, into “ward republics,” Jefferson wrote: “The way to have good and safe government is not to trust it all to one, but rather to divide it among the many, distributing to every one exactly the functions he is competent to. Let the National government be entrusted with the defense of the nation and its foreign and federal relations, the State governments with the civil rights, laws, police, and administration of what concerns the state generally, and the Counties with the local concerns of the counties; each Ward directs the interests within itself. It is by dividing and subdividing these republics from the great National one down through all its subordinations, until it ends in the administration of every man’s farm and affairs by himself, by placing under everyone what his own eye may superintend, that all will be done for the best…. I do believe that if the Almighty has not decreed that Man shall never be free (and it is blasphemy to believe it) that the secret will be found to be in the making of himself the depository of the powers respecting himself, so far as he is competent to them, and delegating only what is beyond his competence by a synthetic process, to higher and higher orders of functionaries, so as to trust fewer and fewer powers, in proportion as the trustees become more and more oligarchical. The elementary republics of the Wards – the county republics, the State republics, and the republic of the Union – would form a gradation of authorities, standing each on the basis of law, holding every one of its delegated share of powers, and constituting truly a system of fundamental checks and balances for the government. Where every man is a sharer in the direction of his ward-republic, or of some of the higher ones, and feels that he is a participator in the government of affairs not merely at an election, one day in the year, but every day; when there shall not be a man in the state who will not be a member of one of its councils, great or small, he will let the heart be torn out of his body sooner than his power he wrenched from him by a Caesar or a Bonaparte.”

The Roman Empire fell when its ruling authority in Rome presided over too large and diverse of a group to represent them and their interests properly in a concentrated government body. And the same is happening here in the United States. If we hope to make this country the one that it was originally destined to be, the country that Thomas Jefferson dreamed of and worked his life to guide, then we need to push for solutions that return power back to the people…  In my favorite movie, GLADIATOR, Emperor Marcus Aurelius confides in his loyal general, Maximus, and conveys his dying wish: “There was once a dream that was Rome. You could only whisper it. Anything more than a whisper and it would vanish… it was so fragile. And I fear that it will not survive the winter…….. There is one more duty that I ask of you before you go home. I want you to become the protector of Rome after I die. I will empower you to one end alone, to give power back to the people of Rome and end the corruption that has crippled it. It must be you. it must be you. You have not been corrupted by her politics.”

We are Rome. We are a republic in name only, and have been for a very long time now.  We must acknowledge that. Each congressman represents too large and diverse of a group of people (at least 700,000 individuals per congressional district) to act as a meaningful advocate in government, and each senator, representing each person in his or her state, has the same problem. And so, our elected representatives no longer work for us or our interests;  they become agents for the interests and preservation of the federal government – a government that becomes more interested in “the common good” with each year of its existence. Republics are only successful when they are relatively small, when the ratio of elected representatives to the constituency remains workable. The solution to returning power to the people is to subdivide our one great republic into smaller republics (as Jefferson called them, “ward republics”) – to subdivide government power with the greatest control over the individual and his or her everyday life vested in those government bodies most local and closest to the people.

A big government is not our friend, although it likes to portray itself as such. We’ve seen its violations against us over the years, including collecting our personal information, lying to the American people, refusing to punish those in office who have broken criminal laws (and have even skirted on treason), taxing us excessively (including to support terrorist regimes such as Iran and Pakistan), forcing people to purchase health insurance not because they need it but because others need it, opening our borders to leave our communities and jobs vulnerable, judicial activism from the courts, obstruction in our attempts to legitimize the election process, and most recently, wiretapping political a presidential candidate to undermine the success of a threatening political movement. Ask yourself one question: What power do We the People think really have over the governing of our states and our country?  The key to the security of freedom is the control the people have in their government. James Madison once wrote: “I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations.”

The era of King George III is here. Americans have a history of how to respond to such tyranny…. Unless, of course, we have truly become Rome.

Edward Snowden, labeled both a patriot by many and a traitor by some, said: “Being a patriot doesn’t mean prioritizing service to government above all else. Being a patriot means knowing when to protect your country, knowing when to protect your Constitution, knowing when to protect your countrymen, from the violations of and encroachments of adversaries. And those adversaries don’t have to be foreign countries.”

 

Reference:  Kevin Gutzman, Thomas Jefferson – Revolutionary, St. Martin’s Press, NY (2017).

Making Sense of the Meaning and Intent of the Second Amendment: It Isn’t Hard, Folks!

2nd amendment - there are no rights if you can't defend them

by Diane Rufino, May 24, 2017

“No free man shall be debarred (denied) the use of arms.” –  as proposed by Thomas Jefferson for Virginia’s Bill of Rights, 1776

The Federal Farmer (anti-Federalist author) in 1788: “To preserve liberty, it is essential that the whole body of the people always possess arms and be taught how to use them.”

Patrick Henry to the Virginia Convention to Ratify the US Constitution, in June 1788: “The great object is that every man be armed.”

At the same time it ratified the US Constitution in 1788, the New Hampshire Ratifying Convention proposed this amendment for the Bill of Rights: “Congress shall never disarm any citizen, unless such as are or have been in actual rebellion.”

The Federal Gazette, dated June 18, 1789, described James Madison’s proposal for a Bill of Rights: “The people are confirmed in their right to keep and bear their private arms.”

“We have found no historical evidence that the Second Amendment applies only to members of a select militia while on active duty. All the evidence indicates that the amendment, like other parts of the Bill of Rights, applies to and protects individual Americans.”   —  The Court of Appeals for the 5th Circuit (2001)

INTRODUCTION –

The Second Amendment: “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

For most of our nation’s history, the Supreme Court has essentially managed to avoid ruling on the meaning and intent of the Second Amendment and that worked out just fine. And that’s probably because for about 150 years, it apparently was universally understood that the amendment protected an individual right to arms rather than a right only when organized in a militia. It wasn’t until the 20th century that a legal debate began in earnest over the characterization of the right recognized in the Second Amendment.

Is the right to arms an individual right or a collective right?  Indeed, in the 20th century, federal courts have seemed confused on this question. Some embrace the historical model, which holds that the amendment recognizes the right of people, as individuals, to bear arms.  And others embrace the more radical model, the “collective rights” model, which holds that individuals have the right to arms but only when they are members of a militia.

The “collective rights” model was embraced in 1939 in a case called United States v. Miller.  The case arose after two men, Jack Miller and Frank Layton, were arrested for transporting a double-barrel 12-gauge shotgun across state lines and in interstate commerce. They were charged with violating the National Firearms Act (“NFA”).  Miller and Layton argued that the NFA violated their Second Amendment right to keep and bear arms and therefore it was unconstitutional as it applied to them. The federal district court agreed and dismissed the case. The government appealed and it went to the Supreme Court. The issue at the heart of the case was whether the Second Amendment protects an individual’s right to keep and bear arms. The Supreme Court concluded that it does not. It reasoned that because the possession of a sawed-off double barrel shotgun does not have a reasonable relationship to the functioning or efficiency of a well-regulated militia, the Second Amendment does not protect the possession of such an instrument.

Although the right to arms became an increasingly heated topic as the 20th century went on, the Supreme Court refused to hear cases to re-address the amendment.  And so, the Miller decision defined the position of the federal judiciary from 1939 for almost 70 years.  The Second Amendment did not recognize an individual’s right to have and bear arms for self-defense – only the defense of a State. But then in 2008 and then in 2010, the Supreme Court, with the late great Antonin Scalia on the bench, agreed to hear two cases, each addressing the same issue and each directly asking the Court to re-address the meaning and intent of the Second Amendment.  The 2008 case, District of Columbia v. Heller, addressed a federal gun control law, and the 2009 case, McDonald v. Chicago, addressed a state gun control law. [The first was a direct challenge to the Second Amendment and the second was a challenge under the incorporation clause of the Fourteenth Amendment].

In Heller, at issue was a gun ban in the District of Columbia (hence, it was a federal gun law) which regulated firearms in several ways: (1)  It made it illegal to carry an unregistered firearm; (2) It prohibited the registration of handguns; (3)  It required owners of lawfully-registered firearms to keep them unloaded and disassembled, even in the home, or bound by a trigger lock or other similar device unless the firearms were located in a place of business or being used for legal recreational activities.  Dick Anthony Heller was a D.C. special police officer who was authorized to carry a handgun while on duty. He applied for a one-year license for a handgun he wished to keep at home, but his application was denied, and so he brought suit to challenge the gun ban as violative of the Second Amendment.

The Supreme Court agreed with Officer Heller (5-4 majority, of course). It held that the Second Amendment protects an individual’s right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.  Therefore, the ban on registering handguns and the requirement to keep guns in the home disassembled or nonfunctional with a trigger lock mechanism was inconsistent with the intent of the Second Amendment. Justice Antonin Scalia delivered the opinion.  The Court held that the first clause of the Second Amendment that references a “militia” is a prefatory clause that does not limit the operative clause of the Amendment. Additionally, the term “militia” should not be confined to those serving in the military, because at the time the term referred to all able-bodied men who were capable of being called to such service. To read the Amendment as limiting the right to bear arms only to those in a governed military force would be to create exactly the type of state-sponsored force against which the Amendment was meant to protect people. Because the text of the Amendment should be read in the manner that gives greatest effect to the plain meaning it would have had at the time it was written, the operative clause should be read to “guarantee an individual right to possess and carry weapons in case of confrontation.” This reading is also in line with legal writing of the time and subsequent scholarship. Therefore, banning handguns, an entire class of arms that is commonly used for protection purposes, and prohibiting firearms from being kept functional in the home, the area traditionally in need of protection, violates the Second Amendment.

The piece of legislation addressed in the McDonald case was Chicago’s gun registration law, which: (1) Prohibited the registration of handguns, thus effecting a broad handgun ban; (2) Requires that guns be registered prior to their acquisition by Chicago residents; (3) Mandated that guns be re-registered annually, with another payment of the fee; and (4) Rendered any gun permanently non-registrable if its registration lapses. 76-year-old Chicago resident Otis McDonald, a retired maintenance engineer, had lived in the Morgan Park neighborhood since buying a house there in 1971. He complained about the decline of his neighborhood, describing it as being taken over by gangs and drug dealers. His home and garage had been broken into five times. An experienced hunter, McDonald legally owned shotguns, but believed them too uncontrollable in the event of a robbery, and so he wanted to purchase a handgun for personal home defense. Due to Chicago’s requirement that all firearms in the city be registered, yet refusing all handgun registrations after 1982 when a city-wide handgun ban was passed, he was unable to legally own a handgun. So, he and some of his neighbors challenged the Chicago gun registration law as violative of the Second Amendment, as applied to the States through the Fourteenth Amendment. He didn’t believe that the Second Amendment was meant to leave him as a sitting duck – a potential victim – in his crime-ridden neighborhood.

The Supreme Court held that the Fourteenth Amendment makes the Second Amendment’ right to keep and bear arms for the purpose of self-defense applicable to the states. With Justice Samuel A. Alito writing for the majority, the Court reasoned that rights that are “fundamental to the Nation’s scheme of ordered liberty” or that are “deeply rooted in this Nation’s history and tradition” are appropriately applied to the states through the Fourteenth Amendment. The Court recognized in Heller that the right to self-defense was one such “fundamental” and “deeply rooted” right, and so, the Second Amendment’s protections and prohibitions apply to the States.

As you read the body of this article, consider what liberal justices Stephen G. Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor argued in their dissent. They wrote that there is nothing in the Second Amendment’s “text, history, or underlying rationale” that characterizes it as a “fundamental right” warranting incorporation through the Fourteenth Amendment.  Keep that in mind.

Heller and McDonald were decided after a deep look into the historical roots of the Second Amendment, something that the Court should have done in the Miller case. The current understanding is that the Second Amendment recognizes and protects an individual’s right to arms for self-defense and equally recognizes the right to have and bear arms for the purpose of a state militia.

The opinion makes sense.  According to the Declaration of Independence, and natural law, we have the right to life and liberty. These rights are inherent with our humanity. They are inalienable. We never surrender them. Therefore, by extension (by corollary), we must have the right to defend them. In other words, the right to life, and liberty (and Property too) also implies the right to defend them. Otherwise, the rights are meaningless; there are merely parchment pronunciations.

The desire to live and survive is innate; we reflexively act to protect our lives and to thrive. And when we can’t, we feel violated. Just ask anyone who has been the victim of a violent crime, of a robbery, an assault, a break-in.  Ask someone who has the experience of a stranger breaking into their house in the middle of the night. I had that experience. And I have a gun today because I never want to feel helpless and vulnerable and the victim of predation again.

From a simple reading of the Bill of Rights, one notices that the First Amendment and the other amendments as well, address individual rights. If the Bill of Rights identifies individual rights – as did the Magna Carta and the English Bill of Rights – shouldn’t one sense pressure to view the Second Amendment similarly?

Historically, the “individual right” view is the best proven one, and so the Supreme Court rightly decided the Heller and McDonald cases.  But what is that history that so grounds our Second Amendment and so secures its meaning as an individual right?

The DVD “In Search of the Second Amendment” explains this history very clearly.

THE HISTORY of the SECOND AMENDMENT

[This section is lifted, in part, from the DVD “In Search of the Second Amendment (A Documentary),” produced and directed by David T. Hardy (2006)]

The 1930’s through the 1970’s was a time period when Americans were embracing their gun rights, but lawyers weren’t paying much attention to the Second Amendment – one way or another (that is, on either side of its interpretation).  There wasn’t much thought given to it. But as the years went on, there was growing evidence for the “individual right” view. Law reviews were publishing articles on the topic and books on the Constitution were taking notice of this meaning. Momentum was slowly building for a show-down in the Supreme Court to address this building consensus.

One of the leading Constitutional Law treatises of the later 20th century, American Constitutional Law, was written by Laurence Tribe, professor of Constitutional Law at Harvard Law School. His first edition was written in 1978. Attorney Leonard Levy wrote a subsequent book, Essays on the Making of the Constitution, in which he attacked Tribe’s textbook for failing to acknowledge the growing the evidence of the “individual right” view of the right to have a bear arms. Tribe immediately published a second edition accepting this evidence.

Why this growing trend?  And what does it mean for the Miller decision?  Did the Court at the time not have the evidence?  Before coming to the conclusion that the Second Amendment conferred only a collective right (although it appears they only alluded to this viewpoint without coming right out with a bright line rule of construction), didn’t they bother to go back and research the amendment’s history?

What got the ball rolling towards the “individual right” point of view?  One article appears to be responsible. The recent boom in Second Amendment legal scholarship that has led to most constitutional scholars to accept the view that the amendment protects an individual’s right to have and bear arms began with an article by Don Kates, published in the Michigan Law Review. That article was titled “Handgun Prohibition and the Original Meaning of the Second Amendment.’ [http://www.constitution.org/2ll/2ndschol/57mich.pdf].

Top legal scholars, many of which are liberal, such as Sandy Levinson (of the University of Texas, writing in the Yale Law Journal), Randy Barnett (Boston University School of Law), Bill Van Alstyne (Duke University), and Eugene (Professor at the UCLA School of Law) have made it clear that their research has led them to conclude that the Second Amendment protects an individual right to have arms.

The history behind the Second Amendment goes back well before the colonies were even settled. It goes back to the very history of the fore-fathers and founders of our country. It goes back to the history of England, the country that gave us so much of our common law, gave us our Bill of Rights, and gave us much of the foundation upon which we built our Declaration, our Constitution, and our system of government.

In medieval England, there was no royal army. There wasn’t enough money or control to have such a formal army. Instead, the King would have to count on his subjects to fight for him – to fight for the kingdom. And so, by law, the King established a citizen militia.  By law – the Militia laws – every male subject, beginning at a certain age, was required to own guns, have ammunition, be trained in their use, and show up for regular training sessions. Citizens could be called up at any time by the King to form the militia and so they had to always be in a state of readiness.  Henry VIII lowered the age of the males required to be trained to use guns. Under his rule, fathers were required to train their sons from age 7 and older in the use of firearms. “Bring them up in shooting!”

In 1688, a medieval “duty” to have and bear arms became an “indubitable right.”  How did this happen?   Dr. Joyce Malcolm, Patrick Henry Professor of Constitutional Law and the Second Amendment at George Mason University School of Law and fellow of the Royal Historical Society, is an expert on this topic. She has been called “the leading historian on the history of English gun rights and English gun control.” Malcolm explains that gun ownership transformed into a “right” during the tumultuous 17th century in England, and for understandable reasons. The transformation arose out of a conflict between King Charles I and Parliament. Eventually, in 1642, civil war broke out and members of Parliament, led by Oliver Cromwell, brought charges against Charles. He was captured, tried for treason, and beheaded. His sons, the future King Charles II and King James II had fled to France at the time.

After Cromwell died and his son took over, rather than stability in England, there was mass chaos. The people, out of sheer desperation, asked Charles II to come back to England, assert his right to the throne, and rule, which he did.  But what did Charles come home to?  He returned to a country that turned on his father; a country that beheaded him. He also returned to a country that was very well-armed. Almost immediately, he sought to disarm the subjects and control the bearing of arms. He instituted serious gun control measures, both on individuals and on manufacturers. Gun manufacturers had to report to the King how many guns they manufactured each week and who purchased them. There were controls on the importing of guns, licenses were required for subjects who needed to move weapons around the countryside, and subjects had to report if they were traveling with a firearm. In the year 1660, King Charles II issued a series of orders to disarm those citizens that he deemed were – or would be – political opponents. One particular act that Parliament passed, in 1662, was especially repugnant. It was the Militia Act of 1662 and it gave militia officers the power to disarm anyone they believed was likely to be an opponent of the Crown.  And at first, the Act was actively enforced.  In 1671, Parliament passed the Game Act, which proved to be the greatest control over ownership of firearms that England ever had. The Game Act listed a whole host of weapons that were prohibited for hunting, and at the head of that list was guns !!

Charles II died and having produced no heirs, he was succeeded by his brother James. King James II would use the Game Act to try to disarm all those subjects who he deemed were not well-enough off. In other words, he tried to limit gun ownership to only those of a certain class of subjects. He sent out mass orders to disarm the citizenry.  According to the record, Dr. Malcolm explains, the orders were apparently not carried out.  But the actions of the King to disarm his subjects certainly arose concern and fear among the people of England.

And so, finally in 1688, the English people had had enough. They, together with a union of Parliamentarians, invited William and Mary, of Orange to take over the throne and depose King James II. Mary was the daughter of the king. The people promised they would oust James and offer no resistance to William and Mary if they agreed to sign a Bill of Rights acknowledging the rights of the people and promised to be held to that document. William and Mary agreed. They sailed from Orange and were met with the support of the citizenry, in what would be known as the “Bloodless Revolution” (or Glorious Revolution). James was forced to flee.  A new Parliament was formed (one not loyal to James, who was still alive) and this Parliament decided that a Bill of Rights was necessary to re-affirm all the rights that had been imperiled by James.  In order to tie the new King and Queen to an obligation to abide by these rights, the same statue that elevated William and Mary to the throne also contained those rights – The Charter of Rights – The Charter of Ancient and Indubitable Rights.”  In fact, this Bill of Rights of 1689 was referred to as “The new Magna Carta.”  The statue created a contractual obligation, one that tied the right of the King and Queen to rule to an obligation to respect the rights contained in the Charter.

One of those rights was the right of British subjects (“who are Protestants”) to have arms for their defense (self-defense) “suitable to their position and allowed by law.”

Arms seizure weighed heavily during the deliberations in Parliament as it drafted the Bill of Rights of 1689. So incensed that the people, in mass, had been targeted for arms confiscation under the Militia Act (and even some members of Parliament had been targeted), that the people and Parliament felt that the “duty” to have and bear arms was actually a “right.” The ability to arm oneself for self-defense was considered a right.

Indeed, by 1688, and enshrined in the Bill of Rights of 1689, the duty to be armed became a right. One of the rights of Englishmen became the right to have arms for self-defense.

Between 1603 and 1776, the rights of Englishmen became the rights of Americans.

When the first three ships arrived in the New World, in what would become the commonwealth of Virginia, the English settlers encountered hostile French and Dutch settlers as well as hostile Indians. Because of this hostile environment, the arms laws were even stricter than the English ones. English colonists were required to have arms on them at all times and they were required to be trained in their use. “Every male inhabitant shall carry a firearm wherever he goes.”  As the colonies were settled, one by one, they established their state militias. They drew from their knowledge of the militia system in England to develop their own military forces. The resulting colonial militia laws required every able-bodied male citizen to participate and to provide his own arms. For example, in the colony of Virginia, in 1623, the Virginia General Assembly commanded, “that men go not to work in the ground without their arms; That no man go or send abroad without a sufficient partie well-armed.” In 1661, its Governor, William Berkeley stated, “All our freemen are bound to be trained every month in their particular counties.”  Virginia followed the British county lieutenant system; each county had a lieutenant, appointed as the county’s chief militia officer.

Yes, it was a “duty” to have and bear arms, in order to serve in the militia and help defend the colony, but apart from this duty, the colonists knew, as loyal British subjects (which they were and which they considered themselves), they also had the right to own them and to bear them.  For confirmation, they only needed to consult the second most popular book of the day (the first being the Bible), Blackstone’s treatise on the English common law, “Commentaries on the Laws of England” (1765).

In Blackstone’s “Commentaries on the Laws of England,” he addressed the right to arms:

“The fifth and last auxiliary right of the subject that I shall at the moment mention, is that of having arms for their defense – suitable to their condition and degree, and as such as are allowed by law. It is indeed a public allowance, of the natural right of resistance and self-preservation, when the sanctions of society and law are found insufficient to restrain violence of oppression.”

Blackstone says clearly that the right is not only for defense and for protection, but it is also to resist tyranny. The main purpose of the right to bear arms is to resist tyranny – in order that the people in the community, together and with their firearms, could overthrow a dictatorship in the last resort, should none of the other checks and balances work.

By the mid 1760’s, tensions were growing increasingly high particularly in the colonies, and in Boston in particular. It wasn’t long before the redcoats arrived, to live among the people of Boston and to make sure that they stayed “in line.” With the Redcoats came acts of criminality – rapes, robberies, murder.  The Boston Gazette published articles warning the colonists that they would soon be disarmed and should they “act out,” they would be taken to England and tried for treason. The colonists began to arm themselves – first to defend themselves against the criminal tendencies of the soldiers and also because it seemed likely that the tensions would escalate into conflict.  They cited the English Bill of Rights, the Militia Acts of the colonies, and even Blackstone’s “Commentaries” for their right to arm themselves.  “It is beyond sophistry to prove (meaning, it is clearly fallacious) that British subjects, to whom the privilege of necessary arms is expressly recognized by the [English] Bill of Rights, and who live in a province were the law requires them to be equipped with arms, are guilty of illegal acts in calling upon one another to be provided with them – as the law directs!”

Citing Blackstone, the colonists understood the reason they were vested with the right to bear arms: “It is a natural right, which the people have reserved to themselves, confirmed by the [English] Bill of Rights, to keep arms for their own defense; and as a Blackstone observer, it is to be made use of when the sanctions of society and law are found insufficient to restrain the violence of oppression.”

Tensions soon escalated and a series of events followed.  Under the Intolerable Acts, the colonial legislature in Boston was abolished and King George III sent General Thomas Gage, a proven military commander at the time, there to serve as the Royal Governor. British spies tipped off General Gage that the colonists were stockpiling ammunition and artillery at nearby Concord. On the night of April 18, 1775, Gage sent a column of soldiers to Concord to destroy the supplies. Their trip led them through Lexington, where they encountered a small group of colonial militiamen. A shot went off (no one knows how it happened), but the response was immediate. Shots rang out and armed conflict between England and Massachusetts had begun. The revolution had begun. British forces drew first blood.

Despite the skirmish, the troops continued to Concord where they found the ammunition and where they also found several thousand angry townsfolk. The troops proceeded to burn the stockpile but from the vantage point of the townsfolk, it looked like they were attempting to burn down the town. And so, the townsfolk opened fire on the troops, forcing them to retreat. As they were retreating the 15 miles or so back to Boston, more and more members of the militia turned out to fire upon them. The British soldiers suffered over 300 casualties. Not only did they draw first blood, but they were defeated.

The fighting, however, was not to be contained in Massachusetts. In Williamsburg, Virginia, the colonists built an armory to store their gunpowder. Late during the night of April 20, 1775, royal governor Dunmore ordered British sailors to raid the armory and to take the gunpowder back aboard their ships. Dunmore allowed this even as statesmen such as Patrick Henry and William Henry Lee and other Virginians were already pushing to revive the state militia – to put into execution the militia law that was passed in the year 1738 – and to put them in the posture of defense (that is, to prepare them to defend the State against the British).

Just a month prior to that event, there was a general alarm that was spreading among the colonies – fueled, no doubt, by men like Patrick Henry and Thomas Paine – that the British were removing gunpowder from the public stock in order to render the colonists unable to resist the Crown. Clearly, as was done in Boston, England was intent on disarming them – just as King Charles II had done to his subjects approximately 100 years ago in the mother country. The King (George III) was not depriving them of their right of representation in Parliament this time (no taxation without representation); now he was stripping them of their right to bear arms for defense.

Only a handful of statesmen recognized what was happening and what its significance was. Patrick Henry was one. It was this general alarm, this general fear that England was coming to disarm the colonists, that prompted him, on the night of March 23 at St. John’s Church to propose three resolutions to raise, equip and prepare the militia for conflict.

His resolutions read simply:

Resolved, that a well-regulated militia composed of gentlemen and yeomen is the natural strength and only security of a free government; that such a militia in this colony would forever render it unnecessary for the mother country to keep among us, for the purpose of our defense, any standing army of mercenary forces, always subversive of the quiet, and dangerous to the liberties of the people, and would obviate the pretext of taxing us for their support.

That the establishment of such a militia is at this time peculiarly necessary, by the state of our laws for the protection and defence of the country some of which have already expired, and others will shortly do so; and that the known remissness of government in calling us together in a legislative capacity renders it too insecure in this time of danger and distress, to rely that opportunity will be given of renewing them in General Assembly or making any provision to secure our inestimable rights and liberties from those farther violations with which they are threatened.

Resolved therefore, that this colony be immediately put into a posture of defence: and that Patrick Henry, Richard Henry Lee, Robert Carter Nicholas, Benjamin Harrison, Lemuel Riddick, George Washington, Adam Stephen, Andrew Lewis, William Christian, Edmund Pendleton, Thomas Jefferson and Isaac Zane, Esquires, be a committee to prepare a plan for the embodying arming and disciplining such a number of men as may be sufficient for that purpose.

Perhaps the most rousing speech delivered in colonial America was by Patrick Henry and it was in support of these resolutions:  [As you read the speech, consider the circumstances to which he is speaking, and keeping in mind that men like Henry, Thomas Jefferson, Lee, Washington were keenly aware of the history of the people England, the continued struggle to assert their rights, to seek assurances, to have them violated, and only to have to try to re-assert them again, and again…..]

“The question before the House is one of awful moment to this country. For my own part, I consider it as nothing less than a question of freedom or slavery; and in proportion to the magnitude of the subject ought to be the freedom of the debate. It is only in this way that we can hope to arrive at truth, and fulfil the great responsibility which we hold to God and our country. Should I keep back my opinions at such a time, through fear of giving offence, I should consider myself as guilty of treason towards my country, and of an act of disloyalty toward the majesty of heaven, which I revere above all earthly kings.

Mr. President, it is natural to man to indulge in the illusions of hope. We are apt to shut our eyes against a painful truth, and listen to the song of that siren till she transforms us into beasts. Is this the part of wise men, engaged in a great and arduous struggle for liberty? Are we disposed to be of the number of those who, having eyes, see not, and, having ears, hear not, the things which so nearly concern their temporal salvation? For my part, whatever anguish of spirit it may cost, I am willing to know the whole truth; to know the worst, and to provide for it.

I have but one lamp by which my feet are guided; and that is the lamp of experience. I know of no way of judging of the future but by the past. And judging by the past, I wish to know what there has been in the conduct of the British ministry for the last ten years, to justify those hopes with which gentlemen have been pleased to solace themselves, and the House? Is it that insidious smile with which our petition has been lately received? Trust it not, sir; it will prove a snare to your feet. Suffer not yourselves to be betrayed with a kiss. Ask yourselves how this gracious reception of our petition comports with these war-like preparations which cover our waters and darken our land. Are fleets and armies necessary to a work of love and reconciliation? Have we shown ourselves so unwilling to be reconciled, that force must be called in to win back our love? Let us not deceive ourselves, sir. These are the implements of war and subjugation; the last arguments to which kings resort. I ask, gentlemen, sir, what means this martial array, if its purpose be not to force us to submission? Can gentlemen assign any other possible motive for it? Has Great Britain any enemy, in this quarter of the world, to call for all this accumulation of navies and armies? No, sir, she has none. They are meant for us; they can be meant for no other. They are sent over to bind and rivet upon us those chains which the British ministry have been so long forging. And what have we to oppose to them? Shall we try argument? Sir, we have been trying that for the last ten years. Have we anything new to offer upon the subject? Nothing. We have held the subject up in every light of which it is capable; but it has been all in vain. Shall we resort to entreaty and humble supplication? What terms shall we find which have not been already exhausted? Let us not, I beseech you, sir, deceive ourselves. Sir, we have done everything that could be done, to avert the storm which is now coming on. We have petitioned; we have remonstrated; we have supplicated; we have prostrated ourselves before the throne, and have implored its interposition to arrest the tyrannical hands of the ministry and Parliament. Our petitions have been slighted; our remonstrances have produced additional violence and insult; our supplications have been disregarded; and we have been spurned, with contempt, from the foot of the throne. In vain, after these things, may we indulge the fond hope of peace and reconciliation. There is no longer any room for hope. If we wish to be free² if we mean to preserve inviolate those inestimable privileges for which we have been so long contending²if we mean not basely to abandon the noble struggle in which we have been so long engaged, and which we have pledged ourselves never to abandon until the glorious object of our contest shall be obtained, we must fight! I repeat it, sir, we must fight! An appeal to arms and to the God of Hosts is all that is left us!

They tell us, sir, that we are weak; unable to cope with so formidable an adversary. But when shall we be stronger? Will it be the next week, or the next year? Will it be when we are totally disarmed, and when a British guard shall be stationed in every house? Shall we gather strength by irresolution and inaction? Shall we acquire the means of effectual resistance, by lying supinely on our backs, and hugging the delusive phantom of hope, until our enemies shall have bound us hand and foot? Sir, we are not weak if we make a proper use of those means which the God of nature hath placed in our power. Three millions of people, armed in the holy cause of liberty, and in such a country as that which we possess, are invincible by any force which our enemy can send against us. Besides, sir, we shall not fight our battles alone. There is a just God who presides over the destinies of nations; and who will raise up friends to fight our battles for us. The battle, sir, is not to the strong alone; it is to the vigilant, the active, the brave. Besides, sir, we have no election. If we were base enough to desire it, it is now too late to retire from the contest. There is no retreat but in submission and slavery! Our chains are forged! Their clanking may be heard on the plains of Boston! The war is inevitable and let it come! I repeat it, sir, let it come.

Gentlemen may cry, Peace, Peace but there is no peace. The war is actually begun! The next gale that sweeps from the north will bring to our ears the clash of resounding arms! Our brethren are already in the field! Why stand we here idle? What is it that gentlemen wish? What would they have? Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty or give me death!”

With the raid on the armory at Williamsburg, thus confirming Patrick Henry’s worst fears, the most powerful colony in the South (Virginia) was driven into an alliance with the most powerful colony in the North (Massachusetts).  The Boston Revolution soon became an American Revolution.

Thus, the American revolution started over our RIGHT to keep and bear arms. Tensions between the colonies and Great Britain may have started over the right not to be taxed without representation in Parliament (the body from which such taxing measures arose), but the actual revolution itself erupted over the actions of the Crown to disarm the people.

In 1775, the colonies called up the First Continental Congress to seek a peaceful resolution of the growing tensions. That Congress sent a series of petitions to the King to implore him to intercede on their behalf and recognize that their rights were being violated. He laughed at the petitions and likened the colonist to petulant little children who liked to throw fits. [Patrick Henry referenced this effort in his fiery speech at St. John’s: “We have petitioned; we have remonstrated; we have supplicated; we have prostrated ourselves before the throne, and have implored its interposition to arrest the tyrannical hands of the ministry and Parliament. Our petitions have been slighted; our remonstrances have produced additional violence and insult; our supplications have been disregarded; and we have been spurned, with contempt, from the foot of the throne.”]  In 1776, the colonies called up the Second Continental Congress to manage the war effort against the British. General George Washington was put over the Continental Army and on July 4, 1776, the Congress signed the Declaration of Independence, declaring the colonies to be independent from Great Britain and articulating to a “candid world” the list of grievances against Great Britain which would support and justify its decision to separate.

Once the colonies proclaimed their independence, the strongest sign they could send to demonstrate that independence was to assume statehood and adopt state constitutions (the signs of sovereignty).  And so, each colony organized itself as a state and drafted and adopted a constitution. Most also adopted a Bill of Rights, in one form or another.

Different states provided different models for the right to bear arms. In 1776, George Mason went to work on the Virginia Declaration of Rights. He introduced the enumerated rights with a statement of nature’s law and a statement of the relationship of individuals and government, in general.  He wrote:

THAT all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.

That all power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants, and at all times amenable to them.

That government is, or ought to be, instituted for the common benefit, protection, and security, of the people, nation, or community; of all the various modes and forms of government that is best, which is capable of producing the greatest degree of happiness and safety, and is most effectually secured against the danger of mal-administration; and that whenever any government shall be found inadequate or contrary to these purposes, a majority of the community hath an indubitable, unalienable, and indefeasible right, to reform, alter, or abolish it, in such manner as shall be judged most conducive to the public weal.

Then he addressed the right to arms:

That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided, as dangerous to liberty….

The Virginia Declaration of Rights was adopted June 12, 1776.

Thomas Jefferson submitted a draft of a Bill of Rights to be taken up at the upcoming convention (to draft a constitution for the first government of the “united” states, which as we know, was the Articles of Confederation). He wrote: “No free man shall be debarred the use of arms.”

The Pennsylvania Bill of Rights, adopted in September 1776, recognized a right to bear arms for both self-defense and in defense of the State.

  1. That all men are born equally free, and independent; and have certain, natural, inherent, and inalienable rights; amongst which are; the enjoying and defending of life and liberty; acquiring, possessing, and protecting property, and pursuing and obtaining happiness and safety.

XIII. That the people have a right to bear arms for the defense of themselves and the state.

In March 1780, Massachusetts adopted its Constitution and Bill of Rights, written by John Adams. It acknowledged a right to keep and bear arms, but added that it was for “the common good.”  The MA Bill of Rights read, in part:

The end of the institution, maintenance and administration of government, is to secure the existence of the body-politic; to protect it; and to furnish the individuals who compose it, with the power of enjoying, in safety and tranquility, their natural rights, and the blessings of life: And whenever these great objects are not obtained, the people have a right to alter the government, and to take measures necessary for their safety, prosperity and happiness.

The body-politic is formed by a voluntary association of individuals: It is a social compact, by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good.

Part the First. A Declaration of the Rights of the Inhabitants of the Commonwealth of Massachusetts.

Art. I.  All men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness.

XVII.  The people have a right to keep and to bear arms for the common defense.

Looking at these three Constitutions and Bills of Right, we can see that there were at least three (3) colonial models to address the right to arms.

Again, to compare and contrast them concisely, addressing them in the order they were adopted:

(1)  The Virginia model emphasizes the militia.  “A well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state…”

(2)  The Pennsylvania model doesn’t mention militia; it emphases self-defense and defense of the State.  “The people have a right to bear arms for the defense of themselves and the State.”

(3)  The Massachusetts model took the Pennsylvania approach, but added a limitation in the form of the clause “for the common defense, and added the people also have a right to “keep” arms.  “The people have a right to keep and bear arms for the common defense.”

These models would become important when our new nation would look to draft a national Bill of Rights.

And that time came in 1787, when after certain leading state leaders – namely, James Madison and Alexander Hamilton – found the Articles of Confederation unworkable for the growing union and took the initiative to call up a new constitutional convention. The Convention was held in Philadelphia from May to September 1787 and rather than heed the constitutional call of the Convention to “amend” the Articles of Confederation, a brand new plan of government was pursued and a brand new Constitution was drafted. Although the delegates from 12 states labored through the hot summer months of that year, engaged in countless debates, and pursued and negotiated through many contentious issues, in the end the final draft, the US Constitution, was not acceptable to many of the delegates. Seven delegates to the Convention walked out and refused to sign it on the last day – September 20, including Virginia’s George Mason. These delegates either complained that it conferred too much power to the federal government (mainly, an unlimited power to tax and spent, and to raise an army) or that it lacked a Bill of Rights, or both. Many of those who did not sign it were anti-Federalists, those who feared a weakening of the States at the hands of the federal government.

Nevertheless, once the Constitution was signed, it went to the States, which, acting in their own conventions, would take up the issue of ratification. If they ratified the Constitution, they would become part of the Union of States and if they didn’t, they would not.  Delaware ratified first, by a unanimous vote. Then came Pennsylvania, New Jersey (unanimous vote), Georgia (unanimous vote), and Connecticut (overwhelmingly). In January 1788, Massachusetts called its convention. Samuel Adams, who, although he did not attend the Philadelphia Convention, attended the ratifying convention. Assessing the Constitution, he addressed the Convention:

“And that the said Constitution be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience, or to prevent the people of the United States, who are peaceful citizens, from keeping their own arms, or to raise standing armies, unless necessary for the defense of the United States or of one or more of them, or to prevent the people from petitioning, in a peaceable and orderly manner, the federal legislature, for a redress of grievances, or to subject the people to unreasonable searches and seizures of their persons, papers, or possessions.”

Samuel Adams is the strongest unsung hero of the Second Amendment. His writings on the right to have and bear arms goes back many years, even before his days in the Sons of Liberty.

Next, Maryland ratified the Constitution (overwhelmingly), then South Carolina, and finally New Hampshire (narrowly).  When New Hampshire ratified in June 1788, it became the ninth state to do so.  According to Article VII of the Constitution, the Constitution would go into effect when 9 states ratified. And so, the new Union was born.

But this new Union was still terribly fractured.  Virginia, New York, North Carolina, and Rhode Island still hadn’t decided. Actually, North Carolina met in Convention on August 2, 1788 but quickly rejected the Constitution (193-75). It agreed to meet again; it was waiting to see what the other States did regarding a Bill of Rights.

When New Hampshire ratified the Constitution on June 21, 1788, the Virginia Convention was actually still going on. It was contentious. Virginia, New York, and North Carolina were not expected to ratify, and the issue was over a Bill of Rights, which James Madison had argued in Philadelphia was not necessary. George Mason and Edmund Pendleton, two of the delegates from Virginia at the Philadelphia Convention who would not sign the Constitution, were now delegates at the Virginia Ratifying Convention and were committed to preventing the document from being ratified. These men, and many others, were already calling for another Constitutional Convention – particularly George Mason, and he had the potential power to move the plan forward. Mason and Pendleton were joined in sentiment at the Convention by Patrick Henry, who was highly skeptical of the Constitution and was confident it would lead to the consolidation of the states under the federal government.

At issue at the Virginia Ratifying Convention was essentially the concerns of the anti-Federalists, which was that the Constitution lacked a Bill of Rights (and that the government tended to be overly-ambitious and powerful).  The Virginia view, in general, was that a Bill of Rights is the very least that a government owes to its people. Mason argued for a Bill of Rights, and of course, any Bill of Rights worth its salt would have to include a right to bear arms. Patrick Henry told the Convention: “The great object is that every man be armed!”

In the end, a compromise was reached.  James Madison promised that if the Virginia delegation would ratify the Constitution in the Convention he would recommend to the first US Congress that a Bill of Rights be added, as a series of amendments. Madison was known to be a trustworthy man and so, the Constitution was narrowly ratified on June 25 (89-79). However, the Virginia delegation did not merely ratify; in anticipation of a national Bill of Rights, it also proposed and drafted a series of amendments for consideration.

“Resolved, that, previous to the ratification of the new Constitution of government recommended by the late federal Convention, a declaration of rights, asserting, and securing from encroachment, the great principles of civil and religious liberty, and the unalienable rights of the people, together with amendments to the most exceptionable parts of the said Constitution of government, ought to be referred by this Convention to the other states in the American confederacy for their consideration”

When the Virginia delegation went back to write the amendments they would recommend, they looked to the Massachusetts and the Pennsylvania models, in addition to their own model.  The language that they came up with is as follows: “That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state.”

The right to bear arms for defense of oneself and the State comes from the Pennsylvania model. The right to keep and bear arms comes from the Massachusetts model.  By removing express limitations (such as “for the common good” or other qualifiers that might be later construed to limit the right (“for defense of themselves and the State”), the first part of the proposed amendment construes the right to arms in its broadest terms. The second part of the proposed amendment comes from the Virginia model and addresses the militia. The Virginia delegation already believed it was expressed in its broadest terms.

So, the Second Amendment is actually two separate thoughts. The intentional, conscious effort was to express the right to arms in the broadest terms possible, to be understood in its broadest sense.

The New York Convention followed. It wrapped up on July 26, one month after the Virginia Convention. It was another contentious convention. As in Virginia, it was a battle between anti-Federalists and Federalists.  On the anti-Federalist side, the words of the Federal Farmer (possibly Richard Henry Lee) were invoked: “To preserve liberty, it is essential that the whole body of the people always possess arms and be taught how to use them.”  Daniel Webster, for the Federalists, answered: “Before a standing army can rule, the people must be disarmed, as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword because the whole body of the people are armed and constitute a force superior to any band of regular troops that can be raised in the United States.”  [to paraphrase: Because of the fact that the people are armed and therefore superior to any troops raised by the United States, they can prevent the execution of any law they perceive not to be just and constitutional].

The debates in New York led to the most famous work on the meaning and intent of the Constitution – the Federalist Papers.  In fact, Madison addresses the militia (and a standing army) in Federalist No. 46.  He wrote: “The people will never have to worry about a standing army because of the state militias.”

The New York Convention very narrowly ratified the Constitution (30-27). But as Virginia did, it called for a Bill of Rights and provided several for consideration.  North Carolina went on to ratify, but only because a Bill of Rights has actually been adopted!  And then Rhode Island ratified after that.

The Constitution was adopted on June 12, 1788 when the ninth state, New Hampshire ratified it. Fall 1788 saw the first national elections and as expected, James Madison was elected to the House of Representatives. In the months after the election and before taking his seat in Congress, which was in New York City at the time), Madison sat at his home in Montpelier and drafted a Bill of Rights. He drew from the proposed amendments that were submitted by the states.  He planned to bring them with him to the first session of Congress and present them, thus making good on his promise. He drafted twelve amendments.

On June 8, 1789, Madison stood up in the House of Representatives and proposed what would become the federal Bill of Rights. His proposed Second Amendment read: “The right of the people to keep and bear arms shall not be infringed; a well-armed and well-regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.”

The first Congress amended Madison’s proposal; it removed the language concerning the conscientious-objector.  Then a committee was formed – a drafting committee – consisting of Madison himself and Roger Sherman, an anti-Federalist, to provide the final draft. The final draft of the Second Amendment was a pared-down version which read: “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

In the debates in the Senate on the proposed Bill of Rights, a motion was made to insert into the Second Amendment the words “for the common defense” next to the words “bear arms.”  It was rejected !!

On September 25, 1789, Congress approved the amendments (all 12 of them) and then they were sent to the states.

James Madison’s friend, Tench Coxe, of Philadelphia, provided the most comprehensive analysis of the Second Amendment in a publication under the pen name “The Pennsylvanian.” It was printed in all the states.  He wrote: “As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which might be occasionally called to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the next article [the Second Amendment] in their right to keep and bear their private arms.”

The Bill of Rights was ratified on December 15, 1791.

All the leading commentators of the day saw the right to bear arms as an individual right, including  US Supreme Court Justice Joseph Story (1811-1845), who was the leading constitutional expert and commentator during the early-mid 20th century, Michigan Supreme Court Justice Thomas Cooley (1864-1885), the leading constitutional commentator at the end of the 19th century, and Sir William Blackstone, the leading English commentator who was very influential on our founders and framers.

St. George Tucker, who first gained fame as a Revolutionary War hero from Virginia, became famous again for writing a very famous treatise. In 1803, he wrote a 5-volume set, being characterized as the American version of Blackstone’s “Commentaries.”  It was titled: Blackstone’s Commentaries, with Notes of Reference to the Constitution & Laws of the Federal Government of the United States & of the Commonwealth of Virginia.  Tucker was seen as the best source and authority on the original intent and early interpretation of the US Constitution until about 1825, and his work has been cited by the US Supreme Court over forty times. For those looking to understand the meaning and intent of the Constitution at the time it was adopted and as it served our first sessions of government, it would be interesting to read Tucker’s volumes.

Tucker wrote about Blackstone’s exposition on the right to arms as it existed in the English law and explained how it applied to the United States. Tucker wrote: “’The right of the people to keep and bear arms shall not be infringed.’ This amendment is without any qualification as to their condition or degree, as in the case of the British government.”

He went on to elaborate even further:  Explaining the scope of the amendment, he wrote: “This [the Second Amendment] may be considered the true palladium of liberty…  The right of the self-defense is the first law of nature; in most governments, it has been the study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any color or pretext whatsoever, prohibited, then liberty, if not already annihilated, is on the brink of destruction.”

In 1825, Tucker’s treatise was replaced by the text written by William Rawle – A View of the Constitution of the United States of America. Regarding the Second Amendment, Rawle wrote in his book: “No clause in the Constitution could by any rule of construction be conceived to give to Congress a power to disarm the people..”  [Rawle was part of the convention in Pennsylvania that ratified the US Bill of Rights; he was offered the position of first US Attorney General but turned it down].

The most influential constitutional commentator of the late 19th century and early 20th century was Thomas Cooley. He was considered the greatest legal mind of the time. He wrote the text: The General Principles of Constitutional Law in the United States of America.  In his text, he explains exactly what the right is that is protected in the Second Amendment: “It may be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia, but this would be an interpretation not warranted by the intent. The militia, as has been elsewhere explained, consists of those persons who, under the law, are liable to the performance of military duty, and are officered and enrolled for service when called upon. But the law may make provision for the enrollment of all who are fit to perform military duty, or of a small number only, or it may wholly omit to make any provision at all; and if the right were limited to those enrolled, the purpose of this guaranty might be defeated altogether by the actions or neglect to act of the government it was meant to hold in check. The meaning of the provision undoubtedly is that the people, from whom the militia must be taken, shall have the right to keep and bear arms, and that they need no permission or regulation of law for the purpose…”

Professor Randy Burnett of Boston University’s School of Law sums up the history of the Second Amendment this way: “What is shown by the historical record is that we have statements made before the second amendment was proposed, while the second amendment was being considered, and immediately after the second amendment was ratified, each of which reflects the understanding of the speaker that the amendment protects an individual right to have and bear arms.  What we don’t have – what we don’t find in the historical record is a single example of any contemporary at the time of the second amendment referring to it as anything other than an individual right.”

Professor Eugene Volokh, of the UCLA School of Law, comments: “Throughout the 1700’s, throughout the 1800’s, and up until the early 1900’s, the right to bear arms was universally seen as an individual right. There was virtually no authority for the collective rights/ states’ right point of view.” (States right to call a militia, that is).

But yet, in the late 20th century and now in the 21st century, somehow this history means nothing?

“The Second Amendment is a right held by States and does not protect the possession of a weapon by a private citizen.”  — The Court of Appeals for the 6th Circuit (2000)

“The right to keep and bear arms is meant solely to protect the right of the States to keep and maintain an armed militia.”   — The Court of Appeals for the 9th Circuit (1996)

The conservatives on the bench in the Heller case and then in the McDonald case got it right. They chose to be intellectually honest.

References:

DVD:  “In Search of the Second Amendment (A Documentary),” produced and directed by David T. Hardy (2006).  Second Amendment Films LLC

United States v. Miller, 307 U.S. 174 (1939)

District of Columbia v. Heller, 554 U.S. 570 (2008)

McDonald v. Chicago, 561 US 742 (2010)

Don B. Kates, Jr.  “Handgun Prohibition and the Original Meaning of the Second Amendment,” 82 Michigan Law Review (MICH. L. REV.) 204-273 (1983).    Referenced:  http://www.constitution.org/2ll/2ndschol/57mich.pdf

Resolutions of the Provincial Congress of Virginia (Patrick Henry) regarding the militia, March 23, 1775 – http://avalon.law.yale.edu/18th_century/res_cong_va_1775.asp

George Mason, the Virginia Declaration of Rights.  Referenced at:  http://www.history.org/almanack/life/politics/varights.cfm

Virginia’s Ratification of the Constitution, Elliott’s Debates (June 25, 1788) –  http://teachingamericanhistory.org/ratification/elliot/vol3/june25/

The proposed amendments to the Bill of Rights submitted by the State of Virginia (June 27, 1788) –  http://teachingamericanhistory.org/ratification/elliot/vol3/june27/

Teaching American History (an Intereactive Resource) –  http://teachingamericanhistory.org/ratification/overview/

TITAN v. TITAN: President Trump and the Federal Courts Face Off Over Temporary Travel Ban

trump-v-supreme-court-2

by Diane Rufino, February 6, 2017

On January 27, President Donald Trump issued an Executive Order titled “Protecting the Nation from Foreign Terrorist Entry into the United States” which provides a 90-day suspension of entry into the United States for individuals from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen on account of their status as posing a heightened risk of terrorism. It was the US Congress, under President Barack Obama, which had assigned this status to those seven countries.

The Executive Order was issued after the President determined that “deteriorating conditions in certain countries due to war, strife, disaster, and civil unrest increase the likelihood that terrorists will use any means possible to enter the United States,” and that our Nation accordingly must take additional steps “to ensure that those approved for admission do not intend to harm Americans and that they have no ties to terrorism.” [see the text of the Executive Order]. Invoking his constitutional authority to control the entry of aliens into this country and congressionally-delegated authority to “suspend the entry of any class of aliens” whose entry “would be detrimental to the interests of the United States,” the President, by issuing the Executive Order, has directed a temporary 90-day suspension of entry for individuals from seven countries previously identified as posing a heightened risk of terrorism by Congress or the Executive Branch; a temporary 120-day suspension of the U.S. Refugee Admissions Program; and a suspension of entry of Syrian nationals as refugees until the President determines that measures are in place “to ensure that admission of Syrian refugees is consistent with the national interest.” Exec. Order §§ 3(c), (5)(a), (c).

Democrats and opposition groups have nicknamed the Executive Order “the Muslim travel ban.”

Two days ago, on February 4, a federal district judge in Seattle issued a ruling – a nationwide temporary restraining order (TRO), aka, an injunction – that temporarily blocks the Executive Order. The court order prevents the president’s Executive Order from going into effect and allows the immigration to move forward.

The State Department has agreed to abide by the ruling until it files an appeal. In the meantime, the judge’s decision allows tens of thousands of aliens from terrorist nations visas to travel to our country. The ruling came after Washington State Attorney General Bob Ferguson, filed a complaint challenging the constitutionality of the Executive Order’s key provisions. The TRO was issued by Seattle US District Judge James Robart pending a full review of Washington states’ complaint. In response to the decision, WA Attorney General Ferguson commented: “The Constitution prevailed today. No one is above the law—not even the president.”

Minnesota joined the suit with Washington and since the TRO was issued, seven other states have decided to join and challenge the “travel ban.” They want it overturned. These seven states include Washington, Virginia, Massachusetts, Hawaii, New York, Michigan, and California.

One day, earlier, however, another district court (Massachusetts) concluded in a thorough, well-reasoned opinion, the Executive Order is a lawful exercise of the political branches’ plenary control over the admission of aliens into the United States. Louhghalam v. Trump, Civ. No. 17-10154-NMG, Order 11 (D. Mass. Feb. 3, 2017)

This article will explain why the Executive Order and the temporary travel ban is legal and appropriate and why I think it will ultimately be upheld.

First, immigration is the sole responsibility of Congress (not of the States). The States expressly delegated such power to the federal Congress in Article I, Section 8: “The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States……  To establish a uniform rule of naturalization….”  (The Supremacy Clause ensures that the States respect the federal government as the sovereign on this issue). Under this authority, Congress passed the Immigration and Naturality Act of 1952 (codified at 8 USC Chapter 12) which lays out federal immigration law.  § 1182 of this Act concerns inadmissible aliens; it delegation to the President of the United States the power to suspend entry “for all aliens or any class of aliens as immigrants” or to “impose on the entry of aliens any restrictions he may deem to be appropriate.”

Second, the travel ban is a proper exercise of the President’s power to issue Executive Orders to force the government to enforce laws already on the books (such as the one discussed above), his war power as Commander-in-Chief (we are currently engaged in a War on Terror, as admitted so by our very own Congress and presidents), his Foreign Policy powers, and his National Security Powers.

I. The Executive Order and What It Says (and Doesn’t Say) –

The Executive Order, available on the White House website, reads:

By the authority vested in me as President by the Constitution and laws of the United States of America, including the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., and section 301 of title 3, United States Code, and to protect the American people from terrorist attacks by foreign nationals admitted to the United States, it is hereby ordered as follows:

Section 1. Purpose. The visa-issuance process plays a crucial role in detecting individuals with terrorist ties and stopping them from entering the United States. Perhaps in no instance was that more apparent than the terrorist attacks of September 11, 2001, when State Department policy prevented consular officers from properly scrutinizing the visa applications of several of the 19 foreign nationals who went on to murder nearly 3,000 Americans. And while the visa-issuance process was reviewed and amended after the September 11 attacks to better detect would-be terrorists from receiving visas, these measures did not stop attacks by foreign nationals who were admitted to the United States.

Numerous foreign-born individuals have been convicted or implicated in terrorism-related crimes since September 11, 2001, including foreign nationals who entered the United States after receiving visitor, student, or employment visas, or who entered through the United States refugee resettlement program. Deteriorating conditions in certain countries due to war, strife, disaster, and civil unrest increase the likelihood that terrorists will use any means possible to enter the United States. The United States must be vigilant during the visa-issuance process to ensure that those approved for admission do not intend to harm Americans and that they have no ties to terrorism.

In order to protect Americans, the United States must ensure that those admitted to this country do not bear hostile attitudes toward it and its founding principles. The United States cannot, and should not, admit those who do not support the Constitution, or those who would place violent ideologies over American law. In addition, the United States should not admit those who engage in acts of bigotry or hatred (including “honor” killings, other forms of violence against women, or the persecution of those who practice religions different from their own) or those who would oppress Americans of any race, gender, or sexual orientation.

Sec. 2. Policy. It is the policy of the United States to protect its citizens from foreign nationals who intend to commit terrorist attacks in the United States; and to prevent the admission of foreign nationals who intend to exploit United States immigration laws for malevolent purposes.

Sec. 3. Suspension of Issuance of Visas and Other Immigration Benefits to Nationals of Countries of Particular Concern.

(a) The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall immediately conduct a review to determine the information needed from any country to adjudicate any visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual seeking the benefit is who the individual claims to be and is not a security or public-safety threat.

(b) The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall submit to the President a report on the results of the review described in subsection (a) of this section, including the Secretary of Homeland Security’s determination of the information needed for adjudications and a list of countries that do not provide adequate information, within 30 days of the date of this order. The Secretary of Homeland Security shall provide a copy of the report to the Secretary of State and the Director of National Intelligence.

(c) To temporarily reduce investigative burdens on relevant agencies during the review period described in subsection (a) of this section, to ensure the proper review and maximum utilization of available resources for the screening of foreign nationals, and to ensure that adequate standards are established to prevent infiltration by foreign terrorists or criminals, pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the immigrant and nonimmigrant entry into the United States of aliens from countries referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), would be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this order (excluding those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas).

(d) Immediately upon receipt of the report described in subsection (b) of this section regarding the information needed for adjudications, the Secretary of State shall request all foreign governments that do not supply such information to start providing such information regarding their nationals within 60 days of notification.

(e ) After the 60-day period described in subsection (d) of this section expires, the Secretary of Homeland Security, in consultation with the Secretary of State, shall submit to the President a list of countries recommended for inclusion on a Presidential proclamation that would prohibit the entry of foreign nationals (excluding those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas) from countries that do not provide the information requested pursuant to subsection (d) of this section until compliance occurs.

(f) At any point after submitting the list described in subsection (e) of this section, the Secretary of State or the Secretary of Homeland Security may submit to the President the names of any additional countries recommended for similar treatment. [The full text is provided in the Appendix below]

Section 217(a)(12) of INA, 8 USC 1187(a)(12), which is the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 (and extended in 2016) and which is highlighted and italicized above in the text of the Executive Order, identifies seven countries which are excluded from the waiver program. These seven countries are Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen. These countries were identified under the Act, by the Obama administration, because they present a heightened risk of terrorism and they cannot and do not provide proper information on its nationals so that the United States can vet those coming into our country. A different section of the Order refers to Syria specifically, because it calls for the indefinite suspension of Syrian refugee admissions, until such time as the President believes security concerns have been adequately addressed. The President’s Executive Order does not seek to make new law. Rather, it clarifies existing law and aligns it with national security concerns. The Executive Order addresses the basic requirement for an alien to enter and reside in the United States – a verifiable visa.

Under the Immigration and Nationality Act (INA), 66 Stat. 163, as amended, 8 U. S. C. §1101 et seq., an alien may not enter and permanently reside in the United States without a visa. See §1181(a). President Trump is using the visa requirement to introduce proper vetting measures as it relates to those coming in from countries previously identified as engaging in terrorism and being unable to provide adequate visas. Without proper visas, the government (and the innocent citizens of the United States) do not know what type of citizens they are getting and furthermore, will be unable to keep tabs on them. According the INA, visas must ensure that the individual seeking to move to the US is not inadmissible for a number of reasons, including that they innocent of terrorist activities. The seven countries covered by the Executive Order cannot ensure that its citizens meet our threshold. Hence, the president has issued a temporary ban for 90 days in order that proper assurances can be provided.

So, to be clear about the President’s Executive Order: It bars Syrian refugees indefinitely and blocks citizens of Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen from entry into the US for 90 days. The provisions of the Executive Order will force the State Department and Homeland Security to establish proper vetting procedures by the 90-day period (the temporary ban) for those countries so that authorities can keep the United States safe. The exact process by which the president seeks to establish proper vetting procedures is explained clearly in the Order.

Here is some background information on the Immigration and Nationality Act, to which the Visa Waiver Program Improvement and Terrorist Travel Prevent Act has been recently added:

The Immigration and Nationality Act (INA), as amended, prohibits admission into the United States of a foreign national not in possession of a valid visa, with a few limited exceptions. One such exception is the Visa Waiver Program (VWP or Program) which, for a number of years, was a pilot program (VWPP). That pilot program, which was first enacted in 1986, was designed to allow nationals from certain countries to enter the United States under limited conditions, for a short period of time, without first obtaining a visa from a U.S. consulate abroad. On October 30, 2000, President Clinton signed the Visa Waiver Permanent Program Act, making the program permanent. See Section 217. The VWP, administered by the Department of Homeland Security (DHS), in consultation with the State Department, utilizes a risk-based, multi-layered approach to detect and prevent terrorists, serious criminals, and other mala fide actors from traveling to the United States. This approach incorporates regular, national-level risk assessments concerning the impact of each program country’s participation in the VWP on U.S. national security and law enforcement interests. It also includes comprehensive vetting of individual VWP travelers prior to their departure for the United States, upon arrival at U.S. ports of entry, and during any subsequent air travel within the United States, among other things.

The VWP authorizes the Attorney General, in consultation with the Secretary of State, to waive the requirement of a valid nonimmigrant visa for visitors for business (B-1) or pleasure (B-2) who are seeking to enter the United States from certain countries for not more than 90 days. In 2003, 13.5 million visitors entered the United States under this Program, constituting almost one-half of all visitors that year. The main advocates of the VWPP were the Department of State (DOS), the American tourist industry, and the business community. DOS advanced a two-fold incentive for the program: (1) eliminating the requirement for nationals of high volume application, low denial rate countries to apply for nonimmigrant visitor and business visas at the consulates, thus also eliminating processing paperwork and freeing consular resources for other activities; and (2) fostering better relations with reciprocity countries that allow U.S. citizens to also enter without a visa. The U.S. tourist industry was enthusiastic in its support of the program, as it correctly envisioned that millions of tourists would take advantage of the opportunity to travel to the United States on the spur of the moment without the time-consuming inconvenience of having to obtain nonimmigrant visas in advance of travel. The business community also welcomed the idea that people could enter the United States on short notice to conduct business without first applying for a nonimmigrant visa.6 For the most part, while the VWPP had been enthusiastically received, the Program was also the subject of a critical report issued by the Justice Department’s Office of Inspector General. Testifying before a House subcommittee on May 5, 1999, the Inspector General noted that the Pilot Program could facilitate illegal entry because visitors from VWPP designated countries avoid the pre-screening that consular officers normally perform on visa applicants. It was also pointed out that some terrorists and criminals intercepted at the time of inspection were attempting to enter under the VWPP. Another problem, according to the Inspector General, was government employee corruption involving bribery and trafficking in fraudulent or blank passports and other documents.

At press time, 27 countries are designated participants They include Andorra, Australia, Austria, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, New Zealand, the Netherlands, Norway, Portugal, 18 San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom. A small number of countries that were once designated VWP countries have been disqualified from the VWP. Belgium is currently in provisional status because of concerns about the integrity of its nonmachine-readable passports and issues associated with the reporting of lost or stolen passports. Qualifying countries are designated by the Attorney General, in consultation with the Secretary of State, based upon that country’s satisfaction of a number of requirements, including not issuing passports to persons who pose a threat to the welfare, health, safety, or security of the United States, having a low non-immigrant visa refusal rate for the two years prior to designation, and the status of the country as one that issues its citizens machine-readable passports (“MRP”) that satisfy the internationally accepted standard for machine readability.

Section 217(a)(12) provides that a visa will not be waived “from Iraq, Syria, or other country or area of concern.” Specifically, the section states that a visa will not be waived for any “alien who has been present, at any time on or after March 1, 2011, in Iraq or Syria, or any country designated by the Secretary of State or Secretary of Homeland Security [under section 6(j) of the Export Administration Act of 1979 (50 U.S.C. 2405) (as continued in effect under the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.)), section 40 of the Arms Export Control Act (22 U.S.C. 2780), section 620A of the Foreign Assistance Act of 1961 (22 U.S.C. 2371), or any other provision of law], as a country whose government has repeatedly provided support of acts of international terrorism or has provided support of acts of international terrorism.” [https://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-4391.html ]

II.  Constitutional Authority –

As mentioned earlier, immigration is a responsibility delegated to the federal government by the States. It was an express delegation for an express purpose – to “provide for the common defense.”  Together with the authority “to raise and support armies; to provide and maintain a navy; to make rules for the government and regulation of the land and naval forces; to provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions; and 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 (Article I, Section 8), Congress was vested with the authority “to establish a uniform rule of naturalization.” (also Article I, Section 8).  All of these objects, as explained in the first line of Section, comprise the federal government’s primary purpose – “to provide for the Common Defense.”

So, Article I of the US Constitution gives Congress the power to make all “necessary and proper” rules to legislate and define our nation’s immigration policy.  Because this authority was delegated from the States to the federal government, the federal government is sovereign on this topic; that is, its authority is supreme. The States of Washington and Minnesota may think it has the power to interfere with the government’s rightful role – to somehow claim that its interests supersede the federal government’s decision with respect to the nation as a whole, but it is the government which is given deference.

Article II of the US Constitution provides the president with his powers. Article II, Section 1 gives the President the authority to enforce the laws passed by Congress. The president, therefore, is tasked to make sure our immigration laws are enforced.  Article II, Section 2 gives the president additional powers over immigration – under his war powers.

Article II, Section 2 of the US Constitution reads: “The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices….”  When the Congress voted almost unanimously to authorize military force to fight the war on terror (AMU of September 14, 2001), it was taken as a declaration of war. As soon as our country engaged in military action, and especially with a declaration of war, the president holds the title of Commander-in-chief and has, on top of his executive powers, vast war powers.

The President also has Foreign Policy powers and National Security powers. (The State Department and Homeland Security Departments are executive cabinet offices under his control).

III.  Statutory Authority –

The Immigration and Naturality Act of 1952, codified under Title 8 of the United States Code (8 U.S.C. Chapter 12), also known as the McCarran–Walter Act, restricts immigration into the United States. It expressly authorizes the president to suspend entry of all aliens or any class of aliens, or place any restrictions on their entry as he deems necessary or appropriate, whenever he finds that such aliens would be detrimental to the interests of the country. There isn’t even a requirement that the country be at war or involved in any particular conflict.  Congress knowingly, expressly, granted the President of the United States with plenary power to suspend or restrict aliens, or any class of aliens, into the country.

The Immigration and Naturality Act of 1952 was passed by a Democrat-controlled Congress, both House and Senate, and was signed by a Democrat president, Harry S. Truman.

8 U.S. Code § 1182 reads:

8 U.S. Code § 1182 – Inadmissible Aliens

(10) Miscellaneous

(f) Suspension of entry or imposition of restrictions by President

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate. Whenever the Attorney General finds that a commercial airline has failed to comply with regulations of the Attorney General relating to requirements of airlines for the detection of fraudulent documents used by passengers traveling to the United States (including the training of personnel in such detection), the Attorney General may suspend the entry of some or all aliens transported to the United States by such airline.

The provision gives presidents broad authority to ban individual immigrants or groups of immigrants. Presidents haven’t hesitated to use it.  In modern times, Barack Obama invoked it 19 times, Bill Clinton 12 times, George W. Bush six times and Ronald Reagan five times. George H.W. Bush invoked it once.

Indeed, throughout our history, there have been a number of instances in which the United States has curtailed or suspended the immigration of people from certain regions or nations, both during times of war and times of peace. In several circumstances, these laws have been upheld by the Supreme Court, confirming the power of the Federal Government to regulate immigration based on the national interest. The text of the Immigration and Nationality Act is clear – the President has broad discretion to keep certain people out of the United States.

Not long after the American colonies fought the British for their independence and then established the new union (“a more perfect union”; created by the adoption of the US Constitution), the French had their own revolution. (1789-1799). The Federalists, led by Washington and then John Adams, detested the French Revolution of 1789 (1789-1799) because it led to mob rule and confiscation of property. The Republicans, which represented a new party started by Thomas Jefferson to oppose the Federalists, supported the French Revolution for its democratic ideals.

The French and English were longtime enemies. So, when President Washington developed favorable relations with Great Britain (by negotiating a treaty to settle outstanding differences between it and the States), the French revolutionary leaders became angered. In the election of 1796, Federalist John Adams won the most electoral votes to become president. Republican Thomas Jefferson came in second, which made him vice-president. (The 12th Amendment later changed this election method, requiring separate electoral ballots for president and vice-president).  Shortly after becoming president, Adams sent diplomats to France to smooth over the bad feelings. But three French representatives – dubbed X, Y, and Z – met secretly with U.S. diplomats and demanded $10 million in bribes to the French government to begin negotiations. When the Americans refused, Mr. X threatened the United States with the “power and violence of France.”  News of the “XYZ Affair” enraged most Americans. Many Federalists immediately called for war against France while Republicans spoke out against the “war fever.”

Neither the United States nor France ever declared war. But the Federalists increasingly accused Jefferson and the Republicans of being a traitorous “French Party.” Rumors of a French invasion and enemy spies frightened many Americans. President Adams warned that foreign influence within the United States was dangerous and must be “exterminated.”

Amidst this climate, in 1798, President Adams signed the notorious Alien and Sedition Acts into law to help him deal with repercussions of the French Revolution and also the Quasi-War with France. The Acts, readily adopted by a Federalist-dominated Congress, were intended to make the United States more secure from alien (foreign) spies and domestic traitors. The acts allowed the president to imprison or deport aliens considered “dangerous to the peace and safety of the United States” at any time and any male citizen of a hostile nation during times of war. The two most notable of these acts were the Alien Enemies Act and the Alien Friends Act.

The Alien Enemies Act provided that once war had been declared, all male citizens of an enemy nation could be arrested, detained, and deported. If war had broken out, this act could have expelled many of the estimated 25,000 French citizens then living in the United States. But the country did not go to war, and the law was never used. It was later used, however, to justify FDR’s rounding up of Japanese-American citizens during World War II.

The Alien Friends Act authorized the president to deport any non-citizen suspected of plotting against the government during either wartime or peacetime. This law could have resulted in the mass expulsion of new immigrants. The act was limited to two years, but no alien was ever deported under it.

In 1882, President Chester A. Arthur signed the Chinese Exclusion Law, which prohibited the immigration of Chinese laborers. The Chinese Exclusion Act was a vital test for the power of the federal government to restrict immigration. It was upheld by the Supreme Court in the 1889 case of Chae Chan Ping v. United States. In the opinion of the court, Justice Stephen Johnson Field wrote, “The power of the government to exclude foreigners from the country whenever, in its judgment, the public interests require such exclusion, has been asserted in repeated instances, and never denied by the executive or legislative departments.”  (The act was repealed by Congress in 1943).

In his 1905 State of the Union address, President Theodore Roosevelt had spoken of the need “to keep out all immigrants who will not make good American citizens.” In 1906, in his State of the Union address to Congress, he said he needed to have the power to “deal radically and efficiently with polygamy.” The following year, Congress passed and Roosevelt signed into law the Immigration Act of 1907, which read (Section 2):

“The following classes of aliens shall be excluded from admission into the United States: “All idiots, imbeciles, feebleminded persons, epileptics, insane persons, and persons who have been insane within five years previous; persons who have had two or more attacks of insanity at any time previously; paupers; persons likely to become a public charge; professional beggars; persons afflicted with tuberculosis or with a loathsome or dangerous contagious disease; ….  “polygamists, or persons who admit their belief in the practice of polygamy……”

The Immigration Act of 1907 had been meant to select only those immigrants who would make good Americans.  It is interesting to note the phrase “polygamists or persons who admit their belief in the practice of polygamy.” (The Immigration Act of 1891 had merely banned polygamists). Muslims at that time were furious over the Immigration Act of 1907 specifically because of this phrase because, as they pointed out, that phrase would prohibit the entry of the “entire Mohammedan world” into the United States. Muslims believe in polygamy. They may not actively practice it, but every faithful Muslim believes in the practice; the religion allows it.

Unlike modern presidents, Roosevelt did not view Islam as a force for good. Rather, he had described Muslims as “enemies of civilization.”  He once wrote that, “The civilizations of Europe, America and Australia exist today at all only because of the victories of civilized man over the enemies of civilization,” praising Charles Martel and John Sobieski for throwing back the “Moslem conquerors.”

In 1917, Congress passed the Immigration Act of 1917 (aka, the Literacy Act or the Asiatic Barred Zone Act). In addition to barring “homosexuals”, “idiots”, “feeble-minded persons”, “criminals”, “epileptics”, “insane persons”, alcoholics, “professional beggars”, all persons “mentally or physically defective,” polygamists, anarchists, and people over the age of 16 who were illiterate, this act barred immigration from Southeast Asia, India, and the Middle East.

Presidential Proclamations 2525, 2526, and 2527 were signed by President Franklin D. Roosevelt shortly after the attack on Pearl Harbor. Citing the Alien and Sedition Acts as precedence, these proclamations restricted the entry and naturalization of Japanese, Germans, and Italians respectively. Later, FDR would bar entry into the US of the Jews who were seeking asylum from the genocidal Nazi regime.

During the Iranian hostage crisis in 1979, President Jimmy Carter issued a number of orders to put pressure on Iran. In particular, he issued a pair of orders:  One was an order for Iranian students to report to immigration offices in order to determine if they had violated the terms of their visa; if they had, they would be deported. The second was an order to end all future visas for Iranians and to stop issuing most new visas.  Carter ordered administration officials to “invalidate all visas issued to Iranian citizens for future entry into the United States, effective today. We will not reissue visas, nor will we issue new visas, except for compelling and proven humanitarian reasons or where the national interest of our own country requires. This directive will be interpreted very strictly.”

On December 12, 1979, a federal judge, Joyce Hens Green, initially ruled the order unconstitutional, but her ruling was reversed on appeal.  On Sept. 22, 1980, the Times, citing an Immigration and Naturalization Service spokesman, reported that by that date, nearly 60,000 students had registered as required, about 430 had been deported and 5,000 had left voluntarily.

In October 1985, President Ronald Reagan temporarily barred entry to officers or employees of the Cuban government or the Communist Party of Cuba who held diplomatic or official passports. Focused on stamping out communism, he also targeted officers of the Cuban-backed Nicaraguan government and the ruling Sandinista National Liberation Front.

As mentioned above, President George H. Bush used the provision (8 USC §1182) only once. His sole use of the provision followed a 1991 a coup in Haiti that spurred thousands of people to flee on rickety boats and head for the U.S. Hundreds died at sea, but many were rescued, overwhelming processing centers set up at the U.S. Naval Base at Guantanamo Bay, Cuba, and aboard Coast Guard cutters. Rather than allow Haitians to enter the United States and be screened, Bush issued an order “to enforce the suspension of the entry of undocumented aliens by sea and the interdiction of any covered vessel carrying such aliens,” allowing the U.S. to intercept the boats and send the migrants back.

President Obama turned to the provision more than any other recent president, using it to bar people who conducted certain transactions with North Korea, engaged in cyberattacks aimed at undermining democracy, or contributed to the destabilization of Libya, Burundi, Central African Republic or Ukraine. His broadest application of the law came in 2011, when he suspended entry of foreigners “who participate in serious human rights and humanitarian law violations and other abuses,” including “widespread or systemic violence against any civilian population” based on, among other factors, race, color, disability, language, religion, ethnicity, political opinion, national origin, sexual orientation or gender identity.  Obama has also used the law to block anybody involved in “grave human rights abuses by the governments of Iran and Syria…..”

President Bill Clinton used the law to block perpetrators in the ethnic conflicts that erupted in the former Yugoslavia in the 1990s, targeting people responsible for the repression of civilians in Kosovo, along with those obstructing democracy in Yugoslavia or lending support to the Yugoslav government and the Republic of Serbia. In 1994, he also suspended individuals and their immediate family members who were said to formulate, implement, or benefit from policies that impeded war-torn Liberia’s transition to democracy. Similar suspensions were imposed on conflict-ravaged Sierra Leone in 2000.

President George W. Bush temporarily barred foreign government officials who were responsible for failing to combat human trafficking. He also blocked those whose actions threatened Zimbabwe’s democratic institutions and transition to a multiparty democracy. Amid concerns that Syria was fomenting instability in Lebanon, Syrian and Lebanese officials deemed responsible for policies or actions that threatened Lebanon’s sovereignty were also barred from entering the U.S.

To re-cap, several US presidents have banned aliens and have, in fact, targeted certain aliens in particular. Chinese were banned by Chester A. Arthur (ethnic class). Teddy Roosevelt banned anarchists (political). FDR banned Jews and Jimmy Carter banned Iranians (because of the Embassy takeover). Ronald Reagan banned Cubans (ethnic class). Clinton banned junta members of Sierra Leone and Haiti (politics). George Bush banned government officials from Zimbabwe and Belarus (politics). Even Obama banned people from Iraq.

IV. Sovereignty –

“A country that can no longer say who can, and who cannot, come in is no longer sovereign. A government that can no longer control immigration is no longer a legitimate government.”

Sovereignty is an important concept and probably the one most ignored in this current debate on the Executive Order’s temporary travel ban (from aliens from terrorist nations).

Sovereignty refers to the authority of a state to govern itself and to make all necessary laws and policies for the benefit of its physical jurisdiction and for its citizens. It’s most critical function is to keep the state safe and secure and to ensure its continued existence as an independent state. In other words, its most important function is national security. Immigration is intimately tied to the function of national security.

National security is a concept that a government, along with its parliaments, should protect the state and its citizens against all kind of “national” crises through a variety of power projections, such as political power, diplomacy, economic power, military might, and so on.

The Heritage Foundation published an excellent overview of the responsibility of the federal government in providing national security. The article explains:

Those who have not done so recently would benefit from studying what the United States Constitution says about the federal government’s responsibility to provide for the common defense. Most Americans had to memorize the preamble to the Constitution when they were children, so they are aware that one of the purposes of the document was to “provide for the common defense.” But they are not aware of the extent to which the document shows the Founders’ concern for national security.

In brief, the Constitution says three things about the responsibility of the federal government for the national defense.

National defense is the priority job of the national government. Article I, Section 8 of the Constitution lists 17 separate powers that are granted to the Congress. Six of those powers deal exclusively with the national defense—far more than any other specific area of governance—and grant the full range of authorities necessary for establishing the defense of the nation as it was then understood. Congress is given specific authority to declare war, raise and support armies, provide for a navy, establish the rules for the operation of American military forces, organize and arm the militias of the states, and specify the conditions for converting the militias into national service.

Article II establishes the President as the government’s chief executive officer. Much of that Article relates to the method for choosing the President and sets forth the general executive powers of his office, such as the appointment and veto powers. The only substantive function of government specifically assigned to the President relates to national security and foreign policy, and the first such responsibility granted him is authority to command the military; he is the “Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.”

National defense is the only mandatory function of the national government. Most of the powers granted to Congress are permissive in nature. Congress is given certain authorities but not required by the Constitution to exercise them. For example, Article I, Section 8 gives Congress power to pass a bankruptcy code, but Congress actually did not enact bankruptcy laws until well into the 19th century. But the Constitution does require the federal government to protect the nation. Article 4, Section 4 states that the “United States shall guarantee to every State a republican form of government and shall protect each of them against invasion.” In other words, even if the federal government chose to exercise no other power, it must, under the Constitution, provide for the common defense.

National defense is exclusively the function of the national government. Under our Constitution, the states are generally sovereign, which means that the legitimate functions of government not specifically granted to the federal government are reserved to the states. But Article I, Section 10 does specifically prohibit the states, except with the consent of Congress, from keeping troops or warships in time of peace or engaging in war, the only exception being that states may act on their own if actually invaded. (This was necessary because, when the Constitution was written, primitive forms of communication and transportation meant that it could take weeks before Washington was even notified of an invasion.)

In discussing the topic of national security, it is important to understand some of the concepts that the term incorporates.

The first is the concept of power. It can best be defined as a nation’s possession of control of its sovereignty and destiny. It implies some degree of control of the extent to which outside forces can harm the country. Hard, or largely military, power is about control, while soft power is mainly about influence—trying to persuade others, using methods short of war, to do something.

Instruments of power exist along a spectrum, from using force on one end to diplomatic means of persuasion on the other. Such instruments include the armed forces; law enforcement and intelligence agencies; and various governmental agencies dedicated to bilateral and public diplomacy, foreign aid, and international financial controls. Variables of power include military strength, economic capacity, the will of the government and people to use power, and the degree to which legitimacy—either in the eyes of the people or in the eyes of other nations or international organizations—affects how power is wielded. The measure of power depends not only on hard facts, but also on perceptions of will and reputation.

Another term to understand properly is military strength. This term refers to military capacity and the capabilities of the armed forces, and it is a capacity that may not actually be used. It often is understood as a static measure of the power of a country, but in reality, military strength is a variable that is subject to all sorts of factors, including the relative strength of opponents, the degree to which it is used effectively, or whether it is even used at all.

Force is the use of a military or law enforcement capacity to achieve some objective. It is the actual use of strength and should not be equated with either strength or power per se. Using force unwisely or unsuccessfully can diminish one’s power and strength. By the same token, using it effectively can enhance power. Force is an instrument of power just as a tool or some other device would be, but unlike institutional instruments like the armed forces, its use in action is what distinguishes it from static instruments of strength like military capacity. Thus, force should be understood narrowly as an applied instrument of coercion.

Finally, there is national defense. Strictly speaking, this refers to the ability of the armed forces to defend the sovereignty of the nation and the lives of its people; however, since the attacks of September 11, 2001, the mission of homeland security—using domestic as well as military instruments to defend the nation from terrorist and other attacks either inside or outside the country—has come to be understood as an element of national defense.

V. The War on Terror and the President as Commander-in-Chief –

On September 11, 2001, 19 militants associated with the Islamic extremist group al-Qaeda hijacked four airliners and carried out suicide attacks against targets in the United States. Two of the planes were flown into the towers of the World Trade Center in New York City, a third plane hit the Pentagon just outside Washington, D.C., and the fourth plane crashed in a field in Pennsylvania. Over 3,000 people were killed horrifically, including more than 400 police officers and firefighters. The Twin Towers collapsed, several surrounding buildings collapsed as well, and one section of the Pentagon was destroyed. Just like the attack on Pearl Harbor, it was a day that will live in infamy. It will continue to define certain human beings, certain groups, a fanatic religious ideology as pure evil.

[Osama bin Laden would issue a “Letter to America” in November 2002, explicitly stating that al-Qaeda’s motives for their attacks included: US support of Israel, support for the “attacks against Muslims” in Somalia, support of Philippines against Muslims in the Moro conflict, support for Israeli “aggression” against Muslims in Lebanon, support of Russian “atrocities against Muslims” in Chechnya, pro-American governments in the Middle East (who “act as your agents”) being against Muslim interests, support of Indian “oppression against Muslims” in Kashmir, the presence of U.S. troops in Saudi Arabia, and sanctions against Iraq].

As the dust barely settled in lower Manhattan on 9/11. President Bush addressed the American people and the world. He said: “Today, our fellow citizens, our way of life, our very freedom came under attack in a series of deliberate and deadly terrorist acts. The victims were in airplanes or in their offices — secretaries, businessmen and women, military and federal workers. Moms and dads. Friends and neighbors. Thousands of lives were suddenly ended by evil, despicable acts of terror. The pictures of airplanes flying into buildings, fires burning, huge structures collapsing, have filled us with disbelief, terrible sadness and a quiet, unyielding anger. These acts of mass murder were intended to frighten our nation into chaos and retreat. But they have failed. Our country is strong. A great people has been moved to defend a great nation. Today, our nation saw evil, the very worst of human nature, and we responded with the best of America, with the daring of our rescue workers, with the caring for strangers and neighbors who came to give blood and help in any way they could. The search is underway for those who are behind these evil acts. I’ve directed the full resources for our intelligence and law enforcement communities to find those responsible and bring them to justice. We will make no distinction between the terrorists who committed these acts and those who harbor them.”

In the months that followed, the US learned just how barbaric the attackers are. On January 23, 2002, Daniel Pearl, a reporter with the Wall Street Journal, left his apartment in Karachi, Pakistan for an interview. He had temporarily set up a residence in Karachi to report on America’s War on Terror. He was following a lead. He would never return that day. He was kidnapped and beheaded, with the captors turning over a 3-minute videotape of his grisly demise. President Bush watched the video. After the severed Pearl’s head, they cut up his body into ten pieces and put it into the shopping bags. They walked around with the bags to find a place to bury them, until they finally dug a hole just outside the building where he was killed. The floor of the room was then washed and they held sunset prayer there.

Months later, the US would articulate a new national security policy which would become known as the Bush Doctrine. The Bush doctrine signaled a radical break from previous national security strategies and fundamentally changed the way the US would act toward the rest of the world; the era of deterrence and containment was over. Deterrence and containment defined US policy at the end of 1945 and into the Cold War. The Bush Doctrine, defined in the positional paper “The National Security Strategy of the United States,” which was written by President Bush and the State Department (September 2002), was the answer to terrorism. As outlined in this paper, post-9/11 US foreign policy rests on three main pillars: a doctrine of unrivaled military supremacy, the concept of preemptive or preventive war, and a willingness to act unilaterally if multilateral cooperation cannot be achieved. President Bush argued that the new policy was necessary to prevent the proliferation of weapons of mass destruction among rogue states and terrorist groups. The policy of deterrence, he maintained, was no longer sufficient to prevent a rogue nation or terrorist organization from using nuclear, chemical, or biological weapons. He explained: “Given the goals of rogue states and terrorists, the United States can no longer solely rely on a reactive posture as we have in the past. The inability to deter a potential attacker, the immediacy of today’s threats, and the magnitude of potential harm that could be caused by our adversaries’ choice of weapons, do not permit that option. We cannot let our enemies strike first. Traditional concepts of deterrence will not work against a terrorist enemy whose avowed tactics are wanton destruction and the targeting of innocents; whose so-called soldiers seek martyrdom in death and whose most potent protection is statelessness.”

On Sept. 14, 2001, the U.S. Congress in effect declared war when it passed the Authorization for Use of Military Force (AUMF) as a joint resolution. The vote was overwhelmingly one-sided. In the House, the vote was 420 Ayes, 1 Nay, and 10 Not Voting. In the Senate, the vote was 98 Ayes, 0 Nays, and 2 Present/Not Voting. Rep. Barbara Lee was the nay vote in the House.

The War Powers Resolution of 1973 requires the president of the United States to notify Congress within 48 hours of ordering US armed forces for a military operation overseas. Those forces cannot operate in a deployed status for more than 60 days. Combat military operations lasting longer than that time frame require a congressional Declaration of War OR an Authorization for the Use of Military Force. Bush almost unanimously got that AUMF from Congress in 2001 when he declared the war on terrorism.

The 2001 AUMF passed by Congress in the wake of the September 11 attacks authorized the President to use force, if necessary, to seek retribution (seek justice) for the attacks on 9/11. Specifically, the AUMF states: “The President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” In other words, with the AUMF, the President has been given a free hand in conducting the War on Terrorism and also in identifying the “enemy” or “enemies.” All he has to do his tie a person to an “organization” such as al-Qaeda and make a case that the person in some way “aided” the terrorists or will pose a threat by possibly or potentially engaging in future terrorist acts. [Note: There is no exception made for American citizens. There is no distinction between persons on American soil or in other countries].

The AUMF is the legal justification for the War on Terrorism. It authorizes military operations on a broad scope and in ways to be determined by the President. It elevates the president to Commander-in-chief. It has been used as the legal justification for American military action against al-Qaeda terrorists anywhere in the world, and as the legal justification for the continuing War on Terrorism. It is inconceivable that a court, let alone the highest court in the land – the Supreme Court, would overturn the power to declare war that is vested in the Congress. Congress alone has the power to declare war. It is a power explicitly and expressly delegated to the Congress in Article I of the US Constitution. Article I, Section 8, Clause 11, sometimes referred to as the War Powers Clause, vests in the Congress the power to declare war, in the following wording: “The Congress shall have Power…. To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.” Congress need not know the details of the war or how the President intends to “command” the war effort; the details do not necessarily limit the declaration of war. It is the declaration or the Authorization for Use of Military Force that establishes that the country is at war. A government during peacetime is much different from a government in time of war. [See Federalist No. 45, written by James Madison]

Congress controls the decision to wage war in another way. It provides the funding. Congress funds the war. And without fail, Congress has provided funding for the War on Terror since 2001. Again, once the country is at war, the president assumes almost plenary war powers (consistent with the Constitution, of course) and the nation goes into self-preservation and survival mode. In 2002, President Bush asked Congress for a separate Authorization for the Use of Military Force (AUMF) for the Iraqi War, which he received.

In 2012, Congress passed the National Defense Authorization Act, which, like other versions of the bill before it, specified the budget and expenditures of the US Dept. of Defense. A version of the bill had passed for 55 years. However, this bill was a bit different. It contained provisions that many found extremely troubling.

The most controversial provisions were contained in subsections 1021–1022 of Title X, Subtitle D, entitled “Counter-Terrorism,” which declared that the “battlefield” in the War on Terror also included the United States itself. It authorized the indefinite military detention of persons the government suspects of involvement in terrorism, including US citizens (termed “belligerents”) arrested on American soil.

Section 1021 of the NDAA reads:

SEC. 1021. AFFIRMATION OF AUTHORITY OF THE ARMED FORCES OF THE UNITED STATES TO DETAIN COVERED PERSONS PURSUANT TO THE AUTHORIZATION FOR USE OF MILITARY FORCE.
(a) In General- Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107-40; 50 U.S.C. 1541 note) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.
(b) Covered Persons- A covered person under this section is any person as follows:
(1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.

(2) A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.
(c) Disposition Under Law of War- The disposition of a person under the law of war as described in subsection (a) may include the following:
(1) Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.
(2) Trial under chapter 47A of title 10, United States Code (as amended by the Military Commissions Act of 2009 (title XVIII of Public Law 111-84)).
(3) Transfer for trial by an alternative court or competent tribunal having lawful jurisdiction.
(4) Transfer to the custody or control of the person’s country of origin, any other foreign country, or any other foreign entity.

With the NDAA, which has been re-upped for fiscal year 2017, we see the president enlarging his war powers. We see that he acknowledges that the war on terror has already come to our homeland.

In 2014, ISIS (The Islamic State) was gaining power and President Obama lacked a strategy to deal with it. At the end of the year, House Speaker John Boehner advised: “I would urge the president to submit a new Authorization for Use of Military Force (AUMF) regarding our efforts to defeat and to destroy ISIL.” In that demand, Boehner was echoing constitutional scholar and then-presidential hopeful, Senator Ted Cruz and strict constitutionalist Rand Paul. Senator Cruz asserted that “initiating new military hostilities in a sustained basis in Iraq obligates the president to go back to Congress and to make the case to seek congressional authorization” and Senator Rand Paul said, “I believe the President must come to Congress to begin a war and that Congress has a duty to act. Right now, this war is illegal until Congress acts pursuant to the Constitution and authorizes it.” And so, in February 2015, President Obama asked Congress for that authorization. The US had already been bombing ISIS for six months. Ignoring the advice of Boehner, Cruz, and Paul, the White House claimed it already enjoyed the legal right to wage war under the 2001 AUMF and thus didn’t need the new authorization. But still, the White House went ahead and asked. It’s proposed AUMF would authorize force against ISIS, but only for three years. Congress never granted that AUMF, but it did go ahead and fund military actions.

Again, we note that the War on Terror is enlarging and in fact, as we learn from the events unfolding in the Middle East, the terrorist network is organizing, gaining power, and poised take over several regions. We see and that the United States is still very much determined to contain the growing evil that threatens the freedom and security of her citizens and of the world.

VI. The Korematsu v. United States decision (1944) –

The Korematsu case famously addresses the constitutionality of Japanese internment in the wake of the attack on Pearl Harbor by the empire of Japan. It addressed the war powers of Congress and the war powers of the President, as Commander-in-chief. The opinion, written by justice Hugo Black, held that the need to protect against espionage outweighed Fred Korematsu’s individual rights, and the rights of Americans of Japanese descent, and that the validity of action under the war power must be judged wholly in the context of war. He argued that compulsory exclusion, though constitutionally suspect, is justified during circumstances of “emergency and peril.”

The case upheld a law excluding certain Americans (American citizens, to be clear) from areas in the United States on account of national security. It found that although there was discrimination on account of nationality, which would subject that law to the most stringent of judicial scrutiny, the policy survived that scrutiny because national security required it.

We cannot forget that our country suffered an attack perhaps more horrific than Pearl Harbor on 9/11, as ordinary citizens were targeted in skyscrapers rather than military personnel. And although President Bush and his Homeland Security Department managed to keep us safe in our homeland during his two terms, President Obama and his Homeland Security team could not. In fact, as the world seemed to explode in Islamic attacks, so did our country. It seems quite clear to most people that terrorism is on the rise and that we need to ramp up both our offense and defense in this War on Terrorism.

The opinion of the Court, as delivered by Justice Hugo Black (appointed by FDR):

The petitioner, an American citizen of Japanese descent, was convicted in a federal district court for remaining in San Leandro, California, a “Military Area,” contrary to Civilian Exclusion Order No. 34 of the Commanding General of the Western Command, U.S. Army, which directed that, after May 9, 1942, all persons of Japanese ancestry should be excluded from that area. No question was raised as to petitioner’s loyalty to the United States. The Circuit Court of Appeals affirmed, and the importance of the constitutional question involved caused us to grant certiorari.

It should be noted, to begin with, that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.

In the instant case, prosecution of the petitioner was begun by information charging violation of an Act of Congress, of March 21, 1942, 56 Stat. 173, which provides that:

…..whoever shall enter, remain in, leave, or commit any act in any military area or military zone prescribed, under the authority of an Executive order of the President, by the Secretary of War, or by any military commander designated by the Secretary of War, contrary to the restrictions applicable to any such area or zone or contrary to the order of the Secretary of War or any such military commander, shall, if it appears that he knew or should have known of the existence and extent of the restrictions or order and that his act was in violation thereof, be guilty of a misdemeanor and upon conviction shall be liable to a fine of not to exceed $5,000 or to imprisonment for not more than one year, or both, for each offense.

Exclusion Order No. 34, which the petitioner knowingly and admittedly violated, was one of a number of military orders and proclamations, all of which were substantially based upon Executive Order No. 9066, 7 Fed.Reg. 1407. That order, issued after we were at war with Japan, declared that “the successful prosecution of the war requires every possible protection against espionage and against sabotage to national defense material, national defense premises, and national defense utilities….”

One of the series of orders and proclamations, a curfew order, which, like the exclusion order here, was promulgated pursuant to Executive Order 9066, subjected all persons of Japanese ancestry in prescribed West Coast military areas to remain in their residences from 8 p.m. to 6 a.m. As is the case with the exclusion order here, that prior curfew order was designed as a “protection against espionage and against sabotage.” In Hirabayashi v. United States, 320 U.S. 81 (1943), we sustained a conviction obtained for violation of the curfew order. The Hirabayashi conviction and this one thus rest on the same 1942 Congressional Act and the same basic executive and military orders, all of which orders were aimed at the twin dangers of espionage and sabotage.

The 1942 Act was attacked in the Hirabayashi case as an unconstitutional delegation of power; it was contended that the curfew order and other orders on which it rested were beyond the war powers of the Congress, the military authorities, and of the President, as Commander in Chief of the Army, and, finally, that to apply the curfew order against none but citizens of Japanese ancestry amounted to a constitutionally prohibited discrimination solely on account of race. To these questions, we gave the serious consideration which their importance justified. We upheld the curfew order as an exercise of the power of the government to take steps necessary to prevent espionage and sabotage in an area threatened by Japanese attack.

In the light of the principles, we announced in the Hirabayashi case, we are unable to conclude that it was beyond the war power of Congress and the Executive to exclude those of Japanese ancestry from the West Coast war area at the time they did.True, exclusion from the area in which one’s home is located is a far greater deprivation than constant confinement to the home from 8 p.m. to 6 a.m. Nothing short of apprehension by the proper military authorities of the gravest imminent danger to the public safety can constitutionally justify either. But exclusion from a threatened area, no less than curfew, has a definite and close relationship to the prevention of espionage and sabotage. The military authorities, charged with the primary responsibility of defending our shores, concluded that curfew provided inadequate protection and ordered exclusion. They did so, as pointed out in our Hirabayashi opinion, in accordance with Congressional authority to the military to say who should, and who should not, remain in the threatened areas.

In this case, the petitioner challenges the assumptions upon which we rested our conclusions in the Hirabayashi case. He also urges that, by May, 1942, when Order No. 34 was promulgated, all danger of Japanese invasion of the West Coast had disappeared. After careful consideration of these contentions, we are compelled to reject them.

Here, as in the Hirabayashi case:

….. we cannot reject as unfounded the judgment of the military authorities and of Congress that there were disloyal members of that population, whose number and strength could not be precisely and quickly ascertained. We cannot say that the war-making branches of the Government did not have ground for believing that, in a critical hour, such persons could not readily be isolated and separately dealt with, and constituted a menace to the national defense and safety which demanded that prompt and adequate measures be taken to guard against it.

Like curfew, exclusion of those of Japanese origin was deemed necessary because of the presence of an unascertained number of disloyal members of the group, most of whom we have no doubt were loyal to this country. It was because we could not reject the finding of the military authorities that it was impossible to bring about an immediate segregation of the disloyal from the loyal that we sustained the validity of the curfew order as applying to the whole group. In the instant case, temporary exclusion of the entire group was rested by the military on the same ground. The judgment that exclusion of the whole group was, for the same reason, a military imperative answers the contention that the exclusion was in the nature of group punishment based on antagonism to those of Japanese origin. That there were members of the group who retained loyalties to Japan has been confirmed by investigations made subsequent to the exclusion. Approximately five thousand American citizens of Japanese ancestry refused to swear unqualified allegiance to the United States and to renounce allegiance to the Japanese Emperor, and several thousand evacuees requested repatriation to Japan.

We uphold the exclusion order as of the time it was made and when the petitioner violated it. In doing so, we are not unmindful of the hardships imposed by it upon a large group of American citizens. Hardships are part of war, and war is an aggregation of hardships. All citizens alike, both in and out of uniform, feel the impact of war in greater or lesser measure. Citizenship has its responsibilities, as well as its privileges, and, in time of war, the burden is always heavier. Compulsory exclusion of large groups of citizens from their homes, except under circumstances of direst emergency and peril, is inconsistent with our basic governmental institutions. But when, under conditions of modern warfare, our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger.

It is argued that, on May 30, 1942, the date the petitioner was charged with remaining in the prohibited area, there were conflicting orders outstanding, forbidding him both to leave the area and to remain there. Of course, a person cannot be convicted for doing the very thing which it is a crime to fail to do. But the outstanding orders here contained no such contradictory commands.

There was an order issued March 27, 1942, which prohibited petitioner and others of Japanese ancestry from leaving the area, but its effect was specifically limited in time “until and to the extent that a future proclamation or order should so permit or direct.” 7 Fed.Reg. 2601. That “future order,” the one for violation of which petitioner was convicted, was issued May 3, 1942, and it did “direct” exclusion from the area of all persons of Japanese ancestry before 12 o’clock noon, May 9; furthermore, it contained a warning that all such persons found in the prohibited area would be liable to punishment under the March 21, 1942, Act of Congress. Consequently, the only order in effect touching the petitioner’s being in the area on May 30, 1942, the date specified in the information against him, was the May 3 order which prohibited his remaining there, and it was that same order which he stipulated in his trial that he had violated, knowing of its existence. There is therefore no basis for the argument that, on May 30, 1942, he was subject to punishment, under the March 27 and May 3 orders, whether he remained in or left the area.

It does appear, however, that, on May 9, the effective date of the exclusion order, the military authorities had already determined that the evacuation should be effected by assembling together and placing under guard all those of Japanese ancestry at central points, designated as “assembly centers,” in order to insure the orderly evacuation and resettlement of Japanese voluntarily migrating from Military Area No. 1, to restrict and regulate such migration.

Public Proclamation No. 4, 7 Fed.Reg. 2601. And on May 19, 1942, eleven days before the time petitioner was charged with unlawfully remaining in the area, Civilian Restrictive Order No. 1, 8 Fed.Reg. 982, provided for detention of those of Japanese ancestry in assembly or relocation centers. It is now argued that the validity of the exclusion order cannot be considered apart from the orders requiring him, after departure from the area, to report and to remain in an assembly or relocation center. The contention is that we must treat these separate orders as one and inseparable; that, for this reason, if detention in the assembly or relocation center would have illegally deprived the petitioner of his liberty, the exclusion order and his conviction under it cannot stand.

We are thus being asked to pass at this time upon the whole subsequent detention program in both assembly and relocation centers, although the only issues framed at the trial related to petitioner’s remaining in the prohibited area in violation of the exclusion order. Had petitioner here left the prohibited area and gone to an assembly center, we cannot say, either as a matter of fact or law, that his presence in that center would have resulted in his detention in a relocation center. Some who did report to the assembly center were not sent to relocation centers, but were released upon condition that they remain outside the prohibited zone until the military orders were modified or lifted. This illustrates that they pose different problems, and may be governed by different principles. The lawfulness of one does not necessarily determine the lawfulness of the others. This is made clear when we analyze the requirements of the separate provisions of the separate orders. These separate requirements were that those of Japanese ancestry (1) depart from the area; (2) report to and temporarily remain in an assembly center; (3) go under military control to a relocation center, there to remain for an indeterminate period until released conditionally or unconditionally by the military authorities. Each of these requirements, it will be noted, imposed distinct duties in connection with the separate steps in a complete evacuation program. Had Congress directly incorporated into one Act the language of these separate orders, and provided sanctions for their violations, disobedience of any one would have constituted a separate offense. There is no reason why violations of these orders, insofar as they were promulgated pursuant to Congressional enactment, should not be treated as separate offenses.

Some of the members of the Court are of the view that evacuation and detention in an Assembly Center were inseparable. After May 3, 1942, the date of Exclusion Order No. 34, Korematsu was under compulsion to leave the area not as he would choose, but via an Assembly Center. The Assembly Center was conceived as a part of the machinery for group evacuation. The power to exclude includes the power to do it by force if necessary. And any forcible measure must necessarily entail some degree of detention or restraint, whatever method of removal is selected. But whichever view is taken, it results in holding that the order under which petitioner was convicted was valid.

It is said that we are dealing here with the case of imprisonment of a citizen in a concentration camp solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States. Our task would be simple, our duty clear, were this a case involving the imprisonment of a loyal citizen in a concentration camp because of racial prejudice. Regardless of the true nature of the assembly and relocation centers — and we deem it unjustifiable to call them concentration camps, with all the ugly connotations that term implies — we are dealing specifically with nothing but an exclusion order. To cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue. Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily, and, finally, because Congress, reposing its confidence in this time of war in our military leaders — as inevitably it must — determined that they should have the power to do just this. There was evidence of disloyalty on the part of some, the military authorities considered that the need for action was great, and time was short. We cannot — by availing ourselves of the calm perspective of hindsight — now say that, at that time, these actions were unjustified.

Justice Felix Frankfurter concurred in the opinion. He wrote: The provisions of the Constitution which confer on the Congress and the President powers to enable this country to wage war are as much part of the Constitution as provisions looking to a nation at peace. And we have had recent occasion to quote approvingly the statement of former Chief Justice Hughes that the war power of the Government is “the power to wage war successfully.” Hirabayashi v. United States. Therefore, the validity of action under the war power must be judged wholly in the context of war.

The Korematsu decision has not been overturned. It is still good precedent.

While there are some who think Korematsu was a bad decision, Supreme Court great William Rehnquist thinks differently. In his 1998 book All the Laws But One – Civil Liberties in Wartime, he wrote: “An entirely separate and important philosophical question is whether occasional presidential excesses and judicial restraint in wartime are desirable or undesirable. In one sense, this question is very largely academic. There is no reason to think that future wartime presidents will act differently from Lincoln, Wilson, or Roosevelt, or that future Justices of the Supreme Court will decide questions differently than their predecessors.”

VI. Kerry v. Din (2015) —

The Kerry v. Din case is a recent case which speaks to the rights that foreign nationals are entitled to with respect to coming to the United States, and particularly when they come from a country that has a history of terrorism. If a person believes he or she has a right to something, such as “Life, Liberty, or Property,” then a violation of such, including imprisonment, confiscation, condemnation, a denial of an essential liberty right, triggers Due Process rights (that is, a process to challenge that denial under our constitution). When Due Process is violated, then there is potential Due Process violation, challengeable under the 5th amendment or 14th amendment (depending whether the denial is by the federal government or the state, respectively). In Kerry, the Supreme Court held: “No Due Process is owed when these interests are not at stake.” A foreign national (non-US citizen, not living in the US) is not entitled to a Due Process challenge because he has no rights that are respected by the US Constitution. Furthermore, he has no standing to bring suit in the United States for such a violation.

The case concerns a US citizen who married a citizen and resident of Afghanistan (that is, citizen of the latter). Fauzia Din, who is a United States citizen, filed a visa petition for her husband Kanishka Berashk, a citizen and resident of Afghanistan. She wanted to bring him to the United States. Nine months later, the State Department denied the petition based on a broad provision of the Immigration and Nationality Act that excludes aliens on terrorism-related grounds. Berashk asked for clarification of the visa denial and was told that it is not possible for the Embassy to provide him with a detailed explanation of the reasons for denial.

After several other unsuccessful attempts to receive explanation of the visa denial, Din sued and argued that denying notice for aliens who were not granted a visa based on terrorism grounds is unconstitutional. The federal district court held that Din did not have standing to challenge the visa denial notice. The US Court of Appeals for the Ninth Circuit reversed and held that the government is required to give notice of reasons for visa denial based on terrorism grounds. The Ninth Circuit held two things: (1) that a U.S. citizen has a protected liberty interest in her marriage that entitled her to review of the denial of a visa to her non-U.S.-citizen spouse, and (2) that the US government deprived her of that liberty interest when it denied the spouse’s visa application without providing a more detailed explanation of its reasons.

The case was appealed to the Supreme Court in 2013 and was decided in 2015. The question presented was this: “Is the government required to give a detailed explanation for denying an alien’s visa based on terrorism-related ground under the Immigration and Nationality Act?”

In a 5-4 decision for Kerry, delivered by the late Justice Antonin Scalia, the Supreme Court held that Mrs. Din was not deprived of any constitutional rights in the due process of law by denying a full explanation of why an alien’s visa was denied. The Due Process Clause of the Fifth Amendment states that no citizen may be deprived of “life, liberty, or property” without due process, but judicial precedent has held that no due process is owed when these interests are not at stake. Because none of these interests are implicated in the denial of a nonresident alien’s visa application, there is no denial of due process when the visa application is rejected without explanation. Although “liberty” has been construed to refer to fundamental rights, there is no precedent that supports the contention that the right to live with one’s spouse is such a fundamental right.

The Court agreed with Secretary John Kerry (State Department) that the U.S. has never recognized a liberty interest in having a citizen’s alien spouse admitted to the U.S, and that Congress has plenary power to deny admission. As Scalia wrote: “Neither Din’s right to live with her spouse nor her right to live within this country is implicated here. There is a “simple distinction between government action that directly affects a citizen’s legal rights, or imposes a direct restraint on his liberty, and action that is directed against a third party and affects the citizen only indirectly or incidentally.” The Government has not refused to recognize Din’s marriage to Berashk, and Din remains free to live with her husband anywhere in the world that both individuals are permitted to reside. And the Government has not expelled Din from the country. It has simply determined that Kanishka Berashk engaged in terrorist activities within the meaning of the Immigration and Nationality Act, and has therefore denied him admission into the country.”

The Court further analyzed whether procedural due process requires consular officials to give notice of reasons for denying a visa application. In Justice Anthony Kennedy’s concurring opinion, he wrote: “Notice requirements do not apply when, as in this case, a visa application is denied due to terrorism or national security concerns.” Because the consular officials satisfied notice requirements, there was no need for the Court to address the constitutional question about the right to live with one’s spouse. Furthermore, Kennedy reasoned that because the decision was made based on a “facially legitimate and bona fide reason,” the courts need not look any further, especially when national security is involved. He wrote that notice requirements “do not apply when, as in this case, a visa application is denied due to terrorism or national security concerns.”

VIII. No Discrimination –

The Left and the media has been misrepresenting President Trump’s Executive Order on immigration and refugee admission as a “Muslim ban” – or, more cleverly, a ban on immigration from “Muslim-majority countries.” In truth, the ban applies to everyone from the countries of Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen – Muslim, Christian, whatever. In fact, one of the first families caught at the airport when the executive order went into effect was a Christian family from Syria.

These seven nations were not chosen at random. They were all singled out as exceptional security risks in the Terrorist Prevention Act of 2015 and its 2016 extension. In fact, President Trump’s order does not even name the seven countries. It merely refers to the sections of U.S. Code that were changed by the Terrorist Prevention Act, signed by President Obama in 2015 and then extended in 2016.

The list of seven nations which was compiled by Obama’s Department of Homeland Security, actually goes back to Obama’s first term, around 2011. Obama made this list, not Donald Trump, and there was very little resistance from congressional Democrats at any step in the process singling out these countries for the potential danger they pose (or for the inability to provide adequate information on their citizens). And that speaks volumes. There was no resistance because the list was perfectly sensible.

Again, on its face, the Executive Order is neutral. Only the Left reads discrimination into it. Only the Left puts the concerns and rights of non-citizens above those of citizens.

But even if the travel ban were discriminatory, the Supreme Court, in Korematsu, explained how we assess its constitutionality or lack thereof. Justice Black wrote: “It should be noted, to begin with, that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.” In other words, the burden on civil liberties is to be balanced with the public necessity. The burden may also be balanced with the severity of the threat to national security. In short, we have to ensure that government strikes the proper balance between liberty and security, with the greater weight placed properly. A nation devoted to the liberties of its citizens can only live up to those promises as long as it continues to exist. If the nation is cannibalized by the very freedoms that it seeks to protect so that its very existence is threatened, then no one’s rights are secure. Liberty no longer has a safe haven.

If we were to balance the burden on civil liberties by the burden placed on non-citizens (who arguably have no entitlement or right to come here to the United States), in the balancing test outlined by the Supreme Court (aka, “strict scrutiny”), we would need to balance that burden by the need to protect our country and its citizens from the violent attacks that are occurring, and occurring at a greatly increased frequency, by persons of one particular religious sect (or ideology). By all accounts, those seeking to do harm to us (“Death to America!”) will seek to slip into the country through the refugee and relocation programs. We then need to evaluate that burden and ask if it is reasonable and whether there are other less burdensome policies to achieve the same result. Is a 90-day temporary ban reasonable? Is it reasonable to require those seven countries listed in the Executive Order to comply with a request from our State Department and Homeland Security Department to provide reliable and verifiable information on its nationals so that the United States can properly assess and vet these individuals for entry into our cities and communities?

We are not talking about the issue of whether non-citizens living in the United States should be recognized with similar rights as citizens (minus the right to vote and hold office). We are talking about the right to come here in the first place. The “right” of a foreigner to come here necessarily burdens the right of the government to control immigration and set policy for national security.

IX. No Right to Come Here —

It is settled jurisprudence that an unadmitted, non-resident alien has no right of entry into the United States and cannot challenge his denial of his visa application. In other words, he has no protections under our Constitution and no right to use it for purposes to sue. Simply put, he has no standing. [Kleindienst v. Mandel, 408 U.S. 753, cited on pg. 762 (1972)]

The decision of the Supreme Court in Kleindienst was delivered by Justice Harry Blackmun. In that decision, the Court noted Congress’ longstanding power to exclude aliens from the United States, and to set the terms and conditions of their entry. Through the Immigration and Nationality Act, Congress legitimately delegated to the executive the authority to waive a finding of inadmissibility. He described the historical pattern of increasing federal control on the admissibility of aliens, particularly regarding individuals with Communist affiliation or views. Justice Blackmun held that the Court would not intervene so long as the executive used its waiver power on the basis of a facially legitimate and bona fide reason. “In the exercise of Congress’ plenary power to exclude aliens or prescribe the conditions for their entry into this country, Congress in § 212(a)(28) of the Act has delegated conditional exercise of this power to the Executive Branch. When, as in this case, the Attorney General decides for a legitimate and bona fide reason not to waive the statutory exclusion of an alien, courts will not look behind his decision or weigh it against the First Amendment interests of those who would personally communicate with the alien.” At pp. 761-770.].

X. Standing –

The states of Washington and Minnesota alleged that it had standing to challenge the validity of President Trump’s Executive Order, claiming it would suffer irreparable injury. It alleged that the order was directed at the Muslim religion, that there have been no terrorist attacks in the United States from any persons from the countries listed in the ban which would make the religious targeting unconstitutional, and that to block Muslims from entering Washington would cause it irreparable injury. To be clear, the focus of the states’ legal challenge was the way the president’s Executive Order targeted Islam.

Michelle Bennett, lawyer for the federal government, criticized the judge’s issuing the TRO, claiming the states of Washington and Minnesota lack standing. She argues that the states can’t sue on behalf of citizens and the states and also questions the rationale for their particular claim that the ban would cause irreparable injury

What is “standing”?

“Standing” is the term for the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party’s participation in the case. In law, “standing” is the legal right to bring a lawsuit to court. Usually, it requires that the plaintiff, or the person who brings the case, has either been affected by the events in the case or will be imminently affected or harmed if the court does not address the problem. Standing is also affected by state or federal laws that apply to the events in the case, since some laws do not allow injured plaintiffs to sue certain defendants even if the plaintiff can demonstrate that she was injured by the defendant’s actions.

A plaintiff usually demonstrates that she has standing by including the following elements in her Complaint, which is the document that opens a lawsuit in court and gives the defendant some idea of what he’s being sued for. In order to show standing, most courts require the plaintiff to mention the following three things in the Complaint:

(i) Injury: The plaintiff must show either that she has been injured in a particular way or will be injured in a particular way if the court does not act to prevent it (this is the basis of many requests for injunctions). The injury can be physical, mental/emotional, financial, or an injury to one of the plaintiff’s civil rights, as long as it is a specific injury.
(ii) Causation: The plaintiff must show there’s some connection between the injury and the defendant’s actions or planned actions. In a Complaint, causation is usually shown by a single sentence linking the defendant’s acts to the plaintiff’s injury. Complicated questions involving cause in fact or proximate cause are usually saved for trial.
(iii) Addressability: The situation has to be one the court can fix in some way, whether it’s by issuing an injunction, ordering the defendant to pay damages, or by some other particular method.

In order to keep lawsuits focused on a plaintiff who was actually injured and a defendant who may be responsible, U.S. courts have, over the years, limited the kinds of cases a plaintiff has standing to bring.

Currently, a plaintiff does not have standing if any of the following are true:

(i) The plaintiff is a third party who was not injured herself, but is suing on behalf of someone who was injured. Exceptions to this rule include parents who sue on behalf of their injured children and legally-appointed guardians who sue on behalf of their wards. Courts have also allowed organizations to sue on behalf of their members in a few cases where it was obvious that all the members faced the same injury.
(ii) The plaintiff tries to sue on behalf of some large, unidentified group who may or may not be injured. Often called “taxpayer standing,” this rule prevents cases in which one plaintiff attempts to sue the government on the grounds that the plaintiff, a taxpayer, doesn’t like what the government is doing with tax revenues. So far, the only exception to this rule has been certain cases brought under the First Amendment Establishment Clause to prevent the government from funneling taxpayer dollars to particular religious institutions.

(iii) The plaintiff is not in the “zone of interest” or “zone of injury.” In other words, the plaintiff is not the kind of person a particular law was designed to protect, and/or the plaintiff is not the kind of person that lawmakers expected to be injured if they did not enact the law. For instance, a plaintiff who has severe dog allergies does not have standing to sue a dog owner for failing to license her dog, since “severe allergy attacks” were not the kind of injury the dog license law was designed to prevent, and “people with severe dog allergies” were not the kind of people the law is designed to protect. (A severe allergy sufferer may, however, have standing to sue a neighbor dog owner for nuisance or even assault if, for instance, the neighbor encourages the dog to approach the allergic plaintiff even though the neighbor knows this will make the plaintiff very ill and might even cause death.)

The state of Washington (and then Minnesota would join in) asserted it had standing to bring the challenge by claiming that the Order would “adversely affect the States’ residents in areas of employment, education, business, family relations, and freedom to travel,” and that these harms “extend to the States by virtue of their roles as parens patriae of the residents living within their borders.” Furthermore, the states claimed that they would be harmed by virtue of the damage that implementation of the Order has inflicted upon the operations and missions of their public universities and other institutions of higher learning, as well as injury to the States’ operations, tax bases, and public funds. They claimed the harm is significant and ongoing. Judge Robart agreed with the states’ position.

In issuing the Temporary Restraining Order, Judge Robart wrote: “It is an interesting question in regards to the standing of the states to bring this action. I’m sure the one item that all counsel would agree on is that the standing law is a little murky. I find, however, that the state does have standing in regards to this matter, and therefore they are properly here. And I probed with both counsel my reasons for finding that, which have to do with direct, immediate harm going to the states, as institutions, in addition to harm to their citizens, which they are not able to represent as directly.”

On the same day that Judge Robart issued the TRO (February 4), the government submitted an Emergency Motion to the Court of Appeals for the Ninth Circuit requesting that the injunction (or TRO) to be vacated.

The government’s position is that the states of Washington and Minnesota lack standing and that they failed to make a legitimate showing of standing in their motion for the TRO. In its Emergency Motion to the Court of Appeals for the Ninth Circuit, the government asserted:

“The district court reasoned that the Washington has Article III standing because the Order “adversely affects the States’ residents in areas of employment, education, business, family relations, and freedom to travel,” and that these harms “extend to the States by virtue of their roles as parens patriae of the residents living within their borders.” But a State cannot bring a parens patriae action against federal defendants. In dismissing Massachusetts’ challenge to a federal statute designed to “protect the health of mothers and infants” in Massachusetts v. Mellon, the Supreme Court explained that “it is no part of a State’s duty or power to enforce [its citizens’] rights in respect of their relations with the federal government.” 262 U.S. 447, 478, 485-86 (1923); South Carolina v. Katzenbach, 383 U.S. 301, 324 (1966). The district court also reasoned that “the States themselves are harmed by virtue of the damage that implementation of the Order has inflicted upon the operations and missions of their public universities and other institutions of higher learning, as well as injury to the States’ operations, tax bases, and public funds.” These attenuated and speculative alleged harms are neither concrete nor particularized. With respect to Washington’s public universities, most if not all of the students and faculty members the State identifies are not prohibited from entering the United States, and others’ alleged difficulties are hypothetical or speculative.

That is particularly true given the Order’s waiver authority. See Executive Order §§ 3(g), 5(e). Furthermore, any assertion of harm to the universities’ reputations and ability to attract students is insufficiently concrete for standing. Whitmore v. Arkansas, 495 U.S. 149, 155 (1990). And although Washington suggested that the Order might affect its recruitment efforts and child welfare system, it conceded that it could not identify any currently affected state employees, nor any actual impact on its child welfare system.

Washington’s contentions regarding its tax base and public funds are equally flawed. See Florida v. Mellon, 273 U.S. 12, 17-18 (1927) (finding no standing based on Florida’s allegation that challenged law would diminish tax base); see also, e.g., Iowa ex rel. Miller v. Block, 771 F.2d 347, 353 (8th Cir. 1985). Nor does Washington have any “legally protected interest,” Arizona Christian Sch. Tuition Org. v. Winn, 563 U.S. 125, 134 (2011), in the grant or denial of entry to an alien outside the United States. The INA’s carefully reticulated scheme provides for judicial review only at the behest of an alien adversely affected, and even then only if the alien is subject to removal proceedings, see 8 U.S.C. § 1252.

Under longstanding principles exemplified by the doctrine of consular non-reviewability, an alien abroad cannot obtain judicial review of the denial of a visa (or his failure to be admitted as a refugee). Brownell v. Tom We Shung, 352 U.S. 180, 184 (1956). It follows that a third party, like Washington, has no “judicially cognizable interest,” Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973), in such a denial. Or to put it in Administrative Procedure Act (APA) terms, review is precluded by the INA, the relevant determinations are committed to the Executive’s discretion (indeed, to the President, who is not subject to the APA), and Washington lacks a cause of action. 5 U.S.C. §§ 701(a), (702).”

The Ninth Circuit denied the government’s motion.

Did the Ninth Circuit engage in partisan politics by denying the government’s motion ?

XI. Conclusion —

In conclusion, in light of the government’s obligation to keep the country safe and secure, in light of its war powers, its powers with respect to immigration, foreign policy, and national security, and noting that the temporary ban is neutral with respect to the religion of the people impacted, the Executive Order should be upheld. Furthermore, even if the Order targets a class of persons, a balancing test will show that the temporary nature of the ban is more than reasonable in light of the threats posed by terrorists who may try to use the relocation efforts to gain access to the United States and do irreparable harm. Finally, the Executive Order is merely a reasonable expansion of a program that has already been in place under the previous administration.

References:

Executive Order: “Protecting the Nation from Foreign Terrorist Entry into the United States” (Jan. 27, 2017). Referenced at: https://www.whitehouse.gov/the-press-office/2017/01/27/executive-order-protecting-nation- foreign-terrorist-entry-united-states

Temporary Restraining Order (Washington v. Donald Trump, President of the United States), issued by Judge Robart. https://www.documentcloud.org/documents/3446391-Robart-Order.html

The FEDRAL GOVERNMENT’S APPEAL: of The State of Wasington’s Emergency Motion for Administrative Stay and Motion for Stay Pending Appeal (State of Washington v. Donald Trump, President of the United States, in the US Circuit Court of Appeals for the Ninth Circuit) – http://www.politico.com/f/?id=0000015a-0c44-d96b-a7fe-1efdf8da0001

8 U.S. Code §1187 – Visa Waiver Program for Certain Visitors. Referenced at: https://www.law.cornell.edu/uscode/text/8/1187

Immigration and Nationality Act (INA). 8 U.S.C. 1187, Section 217 – VISA WAIVER 2/ PROGRAM FOR CERTAIN VISITORS. Referenced at: https://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-4391.html

8 U.S Code Chapter 12: IMMIGRATION and NATURALIZATION – aka, The Immigration and Naturality Act of 1952. Referenced at: https://www.law.cornell.edu/uscode/text/8/chapter-12

“A Constitutional Basis for Defense,” The Heritage Foundation. Referenced at: http://www.heritage.org/defense/report/constitutional-basis-defense

Matthew I. Hirsch, “The Visa Waiver Program,” (8 U.S.C. 1187, Section 217: Visa. Waiver Waiver”) Referenced: http://hirschlaw1.com/wp-content/uploads/2012/07/website.aila_.visawaiver.pdf

John Howard, “The Seven Nations Covered by Trump’s Executive Order,” Breitbart, Jan. 30, 2017. Referenced at: http://www.breitbart.com/national-security/2017/01/30/7-nations-named-trump-executive-order-security-nightmares/

Korematsu v. United States, 323 U.S. 214 (1944). https://www.law.cornell.edu/supremecourt/text/323/214

Kerry v. Din, 576 U.S. ___ (2015). https://www.supremecourt.gov/opinions/14pdf/13-1402_e29g.pdf

Kleindienst v. Mandel, 408 U.S. 753 (1972). https://supreme.justia.com/cases/federal/us/408/753/case.html

Asra Q. Nomani, “This is Daniel Pearl’s Final Story,” Washingtonian. Referenced at: https://www.washingtonian.com/projects/KSM/

Sean Hannity, “There are Four Times the US Stopped Immigrants from a Particular Group.

Referenced at:  http://www.hannity.com/articles/immigration-487258/here-are-four-previous-times-the-14188916/

Daniel Greenfield, “When Roosevelt Banned Muslims from America,” Frontpagemag, August 18, 2016.  Referenced at:  http://www.frontpagemag.com/fpm/263879/when-teddy-roosevelt-banned-muslims-america-daniel-greenfield

Ann M. Simmons and Alan Zarembo, “Other Presidents Have Blocked Groups of Foreigners from the US, But Never So Broadly,” LA Times, January 31, 2017.  Referenced at:  http://www.latimes.com/nation/la-na-immigrant-ban-history-20170130-story.html

The Alien & Sedition Acts, Constitutional Rights Foundation.  Referenced at:  http://www.crf-usa.org/america-responds-to-terrorism/the-alien-and-sedition-acts.html

 

What is Standing? (Rottenstein Law Group). http://www.rotlaw.com/legal-library/what-is-standing/

Washington shopping mall mass shooter – an illegal immigrant (from a Muslim country) who voted 3 times. Referenced at: https://www.youtube.com/watch?v=0cDwCK3Dpcg [Published on Sep 28, 2016. A man who went on a shooting rampage in a store in the Cascade Mall in Burlington, Washington is in custody, accused of killing five people. The suspect, Arcan Cetin, a 20-year-old, is being charged with five counts of first-degree premeditated murder. There’s also another element to the story that could result in other charges for Cetin. The Cascade mall shooter isn’t a U.S. citizen, but voted in 3 election cycles. From King 5: The Cascade Mall shooting suspect, Arcan Cetin, may face an additional investigation related to his voting record and citizenship status. Federal sources confirm to KING 5 that Cetin was not a U.S. citizen, meaning legally he cannot vote. However, state records show Cetin registered to vote in 2014 and participated in three election cycles, including the May presidential primary. While voters must attest to citizenship upon registering online or registering to vote at the Department of Licensing Office, Washington state doesn’t require proof of citizenship. Therefore, elections officials say the state’s elections system operates, more or less, under an honor system. — Just a couple years ago, then-Attorney General Eric Holder said vote fraud was “a problem that doesn’t exist.” They operate on the honor system? What could go wrong? — That can’t be so. We’ve been assured voter fraud is a myth. The story doesn’t say who Cetin voted for. This story highlights that immigration laws and criminal laws aren’t the only laws that illegal immigrants break and are breaking. Why was FOX News the only national news organization covering this story?

Justice Jeanine Pirro (Justice with Jeanine) – https://www.youtube.com/watch?v=PSsjcLUM6xI

APPENDIX:

Executive Order: “Protecting the Nation from Foreign Terrorist Entry into the United States (Jan. 27, 2017)

EXECUTIVE ORDER

Protecting the Nation from Foreign Terrorist Entry into the United States

By the authority vested in me as President by the Constitution and laws of the United States of America, including the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., and section 301 of title 3, United States Code, and to protect the American people from terrorist attacks by foreign nationals admitted to the United States, it is hereby ordered as follows:
Secti  on 1. Purpose. The visa-issuance process plays a crucial role in detecting individuals with terrorist ties and stopping them from entering the United States. Perhaps in no instance was that more apparent than the terrorist attacks of September 11, 2001, when State Department policy prevented consular officers from properly scrutinizing the visa applications of several of the 19 foreign nationals who went on to murder nearly 3,000 Americans. And while the visa-issuance process was reviewed and amended after the September 11 attacks to better detect would-be terrorists from receiving visas, these measures did not stop attacks by foreign nationals who were admitted to the United States.
Numer  ous foreign-born individuals have been convicted or implicated in terrorism-related crimes since September 11, 2001, including foreign nationals who entered the United States after receiving visitor, student, or employment visas, or who entered through the United States refugee resettlement program. Deteriorating conditions in certain countries due to war, strife, disaster, and civil unrest increase the likelihood that terrorists will use any means possible to enter the United States. The United States must be vigilant during the visa-issuance process to ensure that those approved for admission do not intend to harm Americans and that they have no ties to terrorism.
der to protect Americans, the United States must ensure that those admitted to this country do not bear hostile attitudes toward it and its founding principles. The United States cannot, and should not, admit those who do not support the Constitution, or those who would place violent ideologies over American law. In addition, the United States should not admit those who engage in acts of bigotry or hatred (including “honor” killings, other forms of violence against women, or the persecution of those who practice religions different from their own) or those who would oppress Americans of any race, gender, or sexual orientation.
Sec.   2. Policy. It is the policy of the United States to protect its citizens from foreign nationals who intend to commit terrorist attacks in the United States; and to prevent the admission of foreign nationals who intend to exploit United States immigration laws for malevolent purposes.
Sec.   3. Suspension of Issuance of Visas and Other Immigration Benefits to Nationals of Countries of Particular Concern. (a) The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall immediately conduct a review to determine the information needed from any country to adjudicate any visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual seeking the benefit is who the individual claims to be and is not a security or public-safety threat.
(b)   The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall submit to the President a report on the results of the review described in subsection (a) of this section, including the Secretary of Homeland Security’s determination of the information needed for adjudications and a list of countries that do not provide adequate information, within 30 days of the date of this order. The Secretary of Homeland Security shall provide a copy of the report to the Secretary of State and the Director of National Intelligence.
(c) To temporarily reduce investigative burdens on relevant agencies during the review period described in subsection (a) of this section, to ensure the proper review and maximum utilization of available resources for the screening of foreign nationals, and to ensure that adequate standards are established to prevent infiltration by foreign terrorists or criminals, pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the immigrant and nonimmigrant entry into the United States of aliens from countries referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), would be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this order (excluding those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas).
(d) Immediately upon receipt of the report described in subsection (b) of this section regarding the information needed for adjudications, the Secretary of State shall request all foreign governments that do not supply such information to start providing such information regarding their nationals within 60 days of notification.
(e) After the 60-day period described in subsection (d) of this section expires, the Secretary of Homeland Security, in consultation with the Secretary of State, shall submit to the President a list of countries recommended for inclusion on a Presidential proclamation that would prohibit the entry of foreign nationals (excluding those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas) from countries that do not provide the information requested pursuant to subsection (d) of this section until compliance occurs.
(f) At any point after submitting the list described in subsection (e) of this section, the Secretary of State or the Secretary of Homeland Security may submit to the President the names of any additional countries recommended for similar treatment.
(g) Notwithstanding a suspension pursuant to subsection (c) of this section or pursuant to a Presidential proclamation described in subsection (e) of this section, the Secretaries of State and Homeland Security may, on a case-by-case basis, and when in the national interest, issue visas or other immigration benefits to nationals of countries for which visas and benefits are otherwise blocked.
(h) The Secretaries of State and Homeland Security shall submit to the President a joint report on the progress in implementing this order within 30 days of the date of this order, a second report within 60 days of the date of this order, a third report within 90 days of the date of this order, and a fourth report within 120 days of the date of this order.

Sec. 4. Implementing Uniform Screening Standards for All Immigration Programs. (a) The Secretary of State, the Secretary of Homeland Security, the Director of National Intelligence, and the Director of the Federal Bureau of Investigation shall implement a program, as part of the adjudication process for immigration benefits, to identify individuals seeking to enter the United States on a fraudulent basis with the intent to cause harm, or who are at risk of causing harm subsequent to their admission. This program will include the development of a uniform screening standard and procedure, such as in-person interviews; a database of identity documents proffered by applicants to ensure that duplicate documents are not used by multiple applicants; amended application forms that include questions aimed at identifying fraudulent answers and malicious intent; a mechanism to ensure that the applicant is who the applicant claims to be; a process to evaluate the applicant’s likelihood of becoming a positively contributing member of society and the applicant’s ability to make contributions to the national interest; and a mechanism to assess whether or not the applicant has the intent to commit criminal or terrorist acts after entering the United States.
(b) The Secretary of Homeland Security, in conjunction with the Secretary of State, the Director of National Intelligence, and the Director of the Federal Bureau of Investigation, shall submit to the President an initial report on the progress of this directive within 60 days of the date of this order, a second report within 100 days of the date of this order, and a third report within 200 days of the date of this order.
Sec. 5. Realignment of the U.S. Refugee Admissions Program for Fiscal Year 2017. (a) The Secretary of State shall suspend the U.S. Refugee Admissions Program (USRAP) for 120 days. During the 120-day period, the Secretary of State, in conjunction with the Secretary of Homeland Security and in consultation with the Director of National Intelligence, shall review the USRAP application and adjudication process to determine what additional procedures should be taken to ensure that those approved for refugee admission do not pose a threat to the security and welfare of the United States, and shall implement such additional procedures. Refugee applicants who are already in the USRAP process may be admitted upon the initiation and completion of these revised procedures. Upon the date that is 120 days after the date of this order, the Secretary of State shall resume USRAP admissions only for nationals of countries for which the Secretary of State, the Secretary of Homeland Security, and the Director of National Intelligence have jointly determined that such additional procedures are adequate to ensure the security and welfare of the United States.
(b) Upon the resumption of USRAP admissions, the Secretary of State, in consultation with the Secretary of Homeland Security, is further directed to make changes, to the extent permitted by law, to prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality. Where necessary and appropriate, the Secretaries of State and Homeland Security shall recommend legislation to the President that would assist with such prioritization.
(c) Pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the entry of nationals of Syria as refugees is detrimental to the interests of the United States and thus suspend any such entry until such time as I have determined that sufficient changes have been made to the USRAP to ensure that admission of Syrian refugees is consistent with the national interest.
(d);Pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the entry of more than 50,000 refugees in fiscal year 2017 would be detrimental to the interests of the United States, and thus suspend any such entry until such time as I determine that additional admissions would be in the national interest.
(e) Notwithstanding the temporary suspension imposed pursuant to subsection (a) of this section, the Secretaries of State and Homeland Security may jointly determine to admit individuals to the United States as refugees on a case-by-case basis, in their discretion, but only so long as they determine that the admission of such individuals as refugees is in the national interest — including when the person is a religious minority in his country of nationality facing religious persecution, when admitting the person would enable the United States to conform its conduct to a preexisting international agreement, or when the person is already in transit and denying admission would cause undue hardship — and it would not pose a risk to the security or welfare of the United States.
(f) The Secretary of State shall submit to the President an initial report on the progress of the directive in subsection (b) of this section regarding prioritization of claims made by individuals on the basis of religious-based persecution within 100 days of the date of this order and shall submit a second report within 200 days of the date of this order.
(g) It is the policy of the executive branch that, to the extent permitted by law and as practicable, State and local jurisdictions be granted a role in the process of determining the placement or settlement in their jurisdictions of aliens eligible to be admitted to the United States as refugees. To that end, the Secretary of Homeland Security shall examine existing law to determine the extent to which, consistent with applicable law, State and local jurisdictions may have greater involvement in the process of determining the placement or resettlement of refugees in their jurisdictions, and shall devise a proposal to lawfully promote such involvement.
Sec. 6. Rescission of Exercise of Authority Relating to the Terrorism Grounds of Inadmissibility. The Secretaries of State and Homeland Security shall, in consultation with the Attorney General, consider rescinding the exercises of authority in section 212 of the INA, 8 U.S.C. 1182, relating to the terrorism grounds of inadmissibility, as well as any related implementing memoranda.
Sec. 7. Expedited Completion of the Biometric Entry-Exit Tracking System. (a) The Secretary of Homeland Security shall expedite the completion and implementation of a biometric entry-exit tracking system for all travelers to the United States, as recommended by the National Commission on Terrorist Attacks Upon the United States.
(b) The Secretary of Homeland Security shall submit to the President periodic reports on the progress of the directive contained in subsection (a) of this section. The initial report shall be submitted within 100 days of the date of this order, a second report shall be submitted within 200 days of the date of this order, and a third report shall be submitted within 365 days of the date of this order. Further, the Secretary shall submit a report every 180 days thereafter until the system is fully deployed and operational.
Sec. 8. Visa Interview Security. (a) The Secretary of State shall immediately suspend the Visa Interview Waiver Program and ensure compliance with section 222 of the INA, 8 U.S.C. 1222, which requires that all individuals seeking a nonimmigrant visa undergo an in-person interview, subject to specific statutory exceptions.
(b) To the extent permitted by law and subject to the availability of appropriations, the Secretary of State shall immediately expand the Consular Fellows Program, including by substantially increasing the number of Fellows, lengthening or making permanent the period of service, and making language training at the Foreign Service Institute available to Fellows for assignment to posts outside of their area of core linguistic ability, to ensure that non-immigrant visa-interview wait times are not unduly affected.
Sec. 9. Visa Validity Reciprocity. The Secretary of State shall review all nonimmigrant visa reciprocity agreements to ensure that they are, with respect to each visa classification, truly reciprocal insofar as practicable with respect to validity period and fees, as required by sections 221(c) and 281 of the INA, 8 U.S.C. 1201(c) and 1351, and other treatment. If a country does not treat United States nationals seeking nonimmigrant visas in a reciprocal manner, the Secretary of State shall adjust the visa validity period, fee schedule, or other treatment to match the treatment of United States nationals by the foreign country, to the extent practicable.
Sec. 10. Transparency and Data Collection. (a) To be more transparent with the American people, and to more effectively implement policies and practices that serve the national interest, the Secretary of Homeland Security, in consultation with the Attorney General, shall, consistent with applicable law and national security, collect and make publicly available within 180 days, and every 180 days thereafter:
(i) information regarding the number of foreign nationals in the United States who have been charged with terrorism-related offenses while in the United States; convicted of terrorism-related offenses while in the United States; or removed from the United States based on terrorism-related activity, affiliation, or material support to a terrorism-related organization, or any other national security reasons since the date of this order or the last reporting period, whichever is later;
(ii) information regarding the number of foreign nationals in the United States who have been radicalized after entry into the United States and engaged in terrorism-related acts, or who have provided material support to terrorism-related organizations in countries that pose a threat to the United States, since the date of this order or the last reporting period, whichever is later; and
(iii) information regarding the number and types of acts of gender-based violence against women, including honor killings, in the United States by foreign nationals, since the date of this order or the last reporting period, whichever is later; and
(iv) any other information relevant to public safety and security as determined by the Secretary of Homeland Security and the Attorney General, including information on the immigration status of foreign nationals charged with major offenses.    (b) The Secretary of State shall, within one year of the date of this order, provide a report on the estimated long-term costs of the USRAP at the Federal, State, and local levels.    Sec. 11. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.    (c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

DONALD J. TRUMP

SAVE THE REPUBLIC! Rethinking the American Union of States for the Preservation of Republicanism

SECESSION - Separate or Die (head, the federal government, is chopped off)

by Diane Rufino (citing Donald Livingston in his book Rethinking the American Union for the Twenty-First Century), July 26, 2016

The purpose of this article is three-fold:  First, I want to be provocative and get readers thinking.  Second, I wish to educate the reader on our founding principles. And third, I hope to encourage the reader to read the book Rethinking the American Union for the Twenty-First Century, written in part and edited by Donald Livingston, founder and president of the Abbeville Institute.  I enjoyed the book immensely and wanted very much to help get the word out.

I think the best way to encourage one to read the book Rethinking the American Union for the Twenty-First Century is to hook him or her using one of the more thought-provoking themes of the book. And so, this article is composed in great part using selected portions from one of the chapters in that book which I found most interesting – “American Republicanism,” authored by Livingston), with a discussion of nullification, interposition, secession, and federalism by myself.  Credit, of course, goes first and foremost to Professor Livingston.

Article IV of the US Constitution guarantees to every State in the Union “a Republican form of government.”  It is known as the “Guarantee Clause.”  It has not been widely interpreted, but constitutional scholars think it ensures that each State be run as a representative democracy or a dictatorship, preventing any initiative to change a State constitution to provide such.  The Supreme Court has essentially acknowledged that it doesn’t have the slightest idea what it means, has been reluctant to specify exactly what a “republican form of government” means and has left the clause devoid of meaning.  Historically, however, republics have had distinct characteristics, namely that its citizens make the laws they are to live under, that there is a Rule of Law, and that the republic itself be relatively small with respect to population and territory, to ensure that representation is meaningful.

The American system of 1789 was not a republic. It was a federation of republics – each state itself a republic – but the Union itself was not a republic. “A federation of republics is not itself a republic, any more than a federation of country clubs is not in and of itself a country club.” Under the Constitution of 1787, the central government could rule over individuals but only under the powers delegated to it by the sovereign States. All other powers of sovereignty belong to the States, expressly reserved through the Tenth Amendment, by the natural law of sovereignty, and contractually by force of the compact theory characterizing the Constitution. Given this framework, the final safeguard for a truly republican form of government for the people in America was, and could only be, some form of lawful resistance to the concentration of coercion in the federal government, which includes state interposition, nullification, or secession. These remedies are included in the “reserved powers” belonging to the States.

Nullification is a legal theory that holds that a State has the right to nullify, or invalidate, any federal law which that State has deemed unconstitutional. If the authority for the federal government only comes from the highly-contested and debated powers that the States agreed to delegate from their reservoir of sovereign powers, as listed in the Constitution, any federal law, policy, action, or court decision that exceeds such grants of power is “null and void” and lacks enforcement power. Since the federal government will always seek to support and enforce its laws and actions, it must be the States, as the parties to the Constitution and the ones which suffer the usurpation of powers with each unconstitutional action, which must rightfully declare “unconstitutionality” and prevent them from being enforced on a free people. Because the right of nullification is not prohibited by the Constitution (nor is it even addressed), it is reserved by the States under the Tenth Amendment.

Interposition is another claimed right belonging to the States. Interposition is the right of a State to oppose actions of the federal government that the state deems unconstitutional by in order to prevent their enforcement.  The very definition of a tyrannical government is one that imposes unconstitutional actions on its citizens. Tyranny is arbitrary rule. Interposition is the actual action, whether legislative or otherwise, to prevent an unconstitutional federal law or action from being enforced on its people. The most effective remedy against unconstitutional federal action, as emphasized by both Thomas Jefferson and James Madison, is nullification together with interposition. Interposition finds its roots in the Supremacy Clause.  While the Constitution and the laws made in pursuance are considered the supreme law of the land, laws (and other actions) not grounded in rightful or legitimate Constitutional powers are not supreme and the States are well within their powers to prevent such usurpation of government power belonging to their sphere of authority.

Secession, like nullification and interposition, is not prohibited by the Constitution (or even addressed), and hence, is a reserved right of the States.

Nullification and interposition were invoked in 1798 by Kentucky and Virginia to identify the Alien & Sedition Acts as unconstitutional and to prevent citizens of those states from being imprisoned essentially for their exercise of free speech and press. Secession was threated in 1815 by Massachusetts after it characterized Jefferson’s embargo against Great Britain and his Louisiana Purchase and then Madison’s War of 1812 as a history of abuses against the North, with an intent to further the interests of the South. All three States’ Rights’ remedies were regularly invoked in the antebellum period, in every section of the Union, to assert State sovereignty and to constrain the central government. As of 1860, the central government was out of debt and imposed no inland taxes. It existed simply off a tariff on imports and land sales. The Supreme Court was tightly constrained in its exercise of judicial review. It challenged the constitutionality of acts of Congress only twice – in Marbury v. Madison (the Judiciary Act of 1789) and the Dred Scott decision (the right of a slave to challenge his status in a non-slave state when brought there by his master). States and localities in almost all States in the North refused to comply with the Fugitive Slave Act (nullification), either by statue or by civil acts of disobedience, and most strikingly, the Wisconsin legislature and the State Supreme Court in 1854 and 1859 outright challenged the constitutionality of the Act (citing coercion of the states and state officials). South Carolina nullified the Tariff of 1828, citing the improper nature of the tariff, changing it from an ordinary tariff (for revenue collection for the government) to a protectionist tariff (to provide direct funding of “improvements” for the North, as well as other enormous benefits), and claiming it was nothing more than a federal scheme to directly enrich the North at the great expense of the South.

Today, it is taught and it is believed that the “checks and balances” in the American system are only those between the president, Congress, and the Supreme Court. We know about the veto procedure, the ratification process for treaties, appointments (including federal court justices) and judicial review (this last check is not in the constitution actually but a creature of the Supreme Court itself!)  The purpose of our Separation of Powers and our series of checks and balances is to prevent the consolidation of power in any one branch of government and any one group of representatives.  But only a very limited number of Americans understand and appreciate that the greatest check on the consolidation of power comes from the unique design feature of our government established by the States and our Founding Fathers in the conventions and debates creating the Constitution – and that is Federalism.  Federalism is idea that real power is shared by the members of the “federation,” which are the States, with the creature they created (the federal government), which is the reservoir of powers expressly delegated to it by the US Constitution.  Federalism is a “sharing” or “division” of power among sovereigns in order to prevent concentration and tyranny.  The idea is that the government, as a sovereign with very limited and expressly delegated powers, and the States, as sovereigns retaining all other powers of government, will jealously guard their sphere of power and will watch, ever-so-vigilantly, the actions of one another.  What more effective check on government power could there be !!  Sovereign versus sovereign, which is what the term “dual sovereignty” refers to.  Or, as I like to refer to this design feature: “Titan versus Titan” (a reference to Greek mythology).  Alexander Hamilton, in a speech to the New York Ratifying Convention on June 17, 1788, explained it this way: “This balance between the National and State governments ought to be dwelt on with peculiar attention, as it is of the utmost importance. It forms a double security to the people. If one encroaches on their rights they will find a powerful protection in the other. Indeed, they will both be prevented from overpassing their constitutional limits by a certain rivalship, which will ever subsist between them.”

Sadly, this most effective check on consolidation of power in DC has been effectively eroded – mainly at the hands of the US Supreme Court.  The checks from the States on central authority in the form of nullification, interposition, and secession have now been ruled out.  And this is just another way of saying that the federal government can define the limits of its own powers. And that is what the American colonists and ratifiers of the Constitution drafted in Philadelphia in 1787 meant by “absolute monarchy.”

Ask yourself this:  Which branch of government ruled out the essential and natural remedies of nullification, interposition, and secession?  The answer is the US Supreme Court, supporting the ambitious plans of the federal government and improperly relying on Marbury v. Madison (1803) and the Supremacy Clause of the US Constitution for authority. For a State to treat its decisions with less than full support would bring the full resources of the federal government into its backyard. It’s happened before. Andrew Jackson, Abraham Lincoln, Andrew Johnson, Franklin D. Roosevelt, Harry S. Truman, Dwight D. Eisenhower. Rather than interpreting the Constitution, which pretty much is its sole task, the Supreme Court has redefined a new political and government system, one that is quite different from the one entrusted to us by our framers and founders.

When authority taken by the federal government falls outside of the enumerated powers, it makes no sense to ask the federal government to rule on whether the federal government has the power or not. The States, the ones which debated and ratified the Constitution for THEIR benefit, have no umpire on the bench.  As historian Tom Woods points out, if the federal government is allowed to hold a monopoly on determining the extent of its own powers, we have no right to be surprised when it keeps discovering new ones.

So, it is no surprise that the Supreme Court consistently and steadily handed down decision after decision to strip the States’ of their natural remedies against the Titan seeking to subjugate them – the federal government. Again, the Supreme Court is itself a branch of the very government that seeks to benefit from the consolidation of power it wants by weakening the States.  What better way to get the States to calm down and get in line?

Thomas Jefferson was skeptical of the federal judiciary and warned that they had the greatest potential to undermine republican government. In 1823, he wrote: “At the establishment of our Constitutions, the judiciary bodies were supposed to be the most helpless and harmless members of the government. Experience, however, soon showed in what way they were to become the most dangerous; that the insufficiency of the means provided for their removal gave them a freehold and irresponsibility in office; that their decisions, seeming to concern individual suitors only, pass silent and unheeded by the public at large; that these decisions nevertheless become law by precedent, sapping by little and little the foundations of the Constitution and working its change by construction before any one has perceived that that invisible and helpless worm has been busily employed in consuming its substance. In truth, man is not made to be trusted for life if secured against all liability to account.”

If you believe, as most Americans seem to believe (because of government indoctrination), that States no longer have the rights of nullification, interposition, and secession because of the action of one man, a virtual dictator, Abraham Lincoln, then you must reconcile the fact that no State any longer enjoys a republican form of government, as guaranteed in Article IV. That is, they no longer enjoy a republican form of government under any historical understanding of what such a government is nor under the vision of our founders. That notion has now decayed into a legal fiction.

But if the States are not republics, what are they?  Donald Livingston argues that the answer was given by Alexis de Tocqueville in his assessment of the French Revolution. According to de Tocqueville, the French revolution was intended to overturn the monarchy and return power to the people by creating a republic but in reality, it fundamentally changed nothing. The coercive government of the monarchy was simply replaced by a different type of coercive government.  The monopoly over government and land created by Kings (Divine Right of Kings) is a doctrine that embodies two bodies of the king. This duality is symbolized by this famous phrase: “The King is dead! Long live the King!” The first body of the king was the flesh and blood; the mortal body.  The second body was the monopoly, or the artificial corporation, established by birth-right and familial ties. Both bodies are coercive in nature since they are not “of the people” and can never truly represent them. When de Tocqueville said that the French Revolution fundamentally changed nothing, he meant that all that it did was kill the first body of the king. It left the second body of the king intact, merely changing its name from the “Crown” to the “Republic.” The revolution merely replaced the person of the king with a fictitious “nation-person.” In other words, what was created after the French Revolution was an absolute monarchy without the monarch; a regime that had all the major defects of a monarchy but none of the benefits. The post-French Revolution era of “republics” would increase government centralization beyond the wildest dream of any monarch. The German economist, Hans Hoppe, estimates that before the mid-nineteenth century, monarchs, as bad as they might have been, were never able to extract more than 5-8 percent of the gross national product (GNP) from the people, whereas “republics” have been able to exploit over 60 percent.

In his war to prevent Southern independence, Lincoln and the perversely-named “Republican” Party destroyed the two American institutions that had made true republicanism possible in a region on our continental scale – State nullification and secession. Without these rights, there can be no practical check to centralization and oppression of government, and hence, no practical way to ensure that the People of the several States are guaranteed a republican form of government.

Is it possible to have an exceedingly large republic, such as the size of our current-day United States?  British philosopher David Hume once considered the question of a large republic. He proposed the first model of a large republic in his essay “Idea of a Perfect Commonwealth,” which was published in 1792.  Hume’s model did not physically seek to divide territory up physically into individual sovereigns but rather to decentralize government power so as to preserve the human scale demanded of republican self-government. The question is whether this can realistically be done.

Hume agrees with the republican tradition that “a small commonwealth is the happiest government in the world within itself.” But Hume’s model of a large republic, in contrast to the historically small republic, would be to order the large republic in such a way as to have all the advantages of a little republic. The question is whether Hume’s model is translatable to the real world: Can the size of a republic be expanded without destroying those values unique to republican government (self-government and the rule of law) that require a human scale.

Hume’s idea of a large republic is something of the size of Great Britain or France. (Remember his essay was written in 1792!)  As a comparison, Great Britain is approximately equivalent in size to Wyoming and France is approximately equivalent in size to Texas. In Hume’s model, the republic is divided into 100 small republics, but with a national capital. Each of these small republics is then divided into 100 parishes. The members of each parish meet annually to elect 1 representative. This yields 100 representatives in each small republic’s legislature. The legislature selects from among its members 10 magistrates to exercise the executive and judicial functions of the republic and 1 senator to represent the republic in the national capital. That yields 100 senators, from among which 10 are chosen to serve as the national executive and judiciary.

Laws would be proposed by the national senate and passed down to the provincial republics or ratification. Each republic has one vote regardless of population, and the majority rules. To free the provincial legislature from having to vote on every trivial law, a bill can be sent instead to the ten provincial magistrates in each republic for ratification.

How does Hume’s large republic compare to the “highly-centralized regime” that the United States has become today?  Hume’s republic has 100 senators in the national capital representing the individual States, as we do. But the legislative body representing the nation of individuals is located in the several capitals of the provincial republics. This provides three essential advantages.  First, it provides a better and more republican ratio of representation to population. Hume’s republic is the size of Britain, which in his time had some 9 million people; yet his regionally dispersed legislature jointly yields 10,000 representatives.  [100 x 100].  By contrast, the United States has 305 million people, which is 34 times as many inhabitants. Its representative body contains not 10,000 representatives but only 435 representatives – a number that Congress capped by law in 1911.  Hume’s large republic provides a ratio of 1 representative for every 900 people, and so it is of a republican scale.  This is very important !!  The United States’ system provides 1 representative for every 700,000 people, which is not even remotely within a republican scale.

And if you are thinking that this unrepublican character of the United States can be remedied by abolishing the law setting the cap at 435 and increasing the number of representatives in the US House, you will need to understand that judging by the size of legislatures around the world, 435 is just about the right size for a lawmaking body. Everything in nature has a proper size for optimum functionality. A cell can only grow to a certain size (a certain volume-to-cell-surface ratio) so that it can absorb nutrients, eliminate waste, and respire most efficiently. A jury of 12 is perfectly suited to determine the facts of a case; a jury of 120 would be dysfunctional.  When the first US Congress met in New York in 1789, there were 65 representatives. There was 1 representative for every 60,000 people. James Madison thought that was an inadequate ratio to adequately represent the people in a republic. When the number of representatives was capped at 435 in 1911, the population in the United States was 93,863,000. That means that there was 1 representative for every 215,777 inhabitants. If we were to use the same ratio that was used in 1789 – 1: 60,000 – there would be over 5,000 members in the House of Representatives. This would be impossibly large for a lawmaking body. Size does matter.

So, if the number of representatives in Washington DC cannot be increased as the population increases, then we have clearly reached the point where talk of republican self-government is utterly meaningless.  We are merely a republican in name only. In the not too distant future, the population of the United States will reach 435 million. This would yield one representative for every million persons.  Who could honestly believe a regime under this system could be described as a republic?

The point is that a country can literally become too large for self-government.  It becomes unresponsive to the people because its representatives cannot possibly represent the interests of all its constituents.

If the United States has indeed reached the point of political obesity, then the only remedy would be to downsize. The United States will need to be downsized either through peaceful secession movements or through a division into a number of federative units forming a voluntary commonwealth of American federations – an idea that Thomas Jefferson was fond of.

For the moment, let’s put peaceful secession aside (which would divide the Union into distinct territorial jurisdictions or would create individual, independent sovereigns).  Suppose that the United States adopts such a model as Hume’s large republic. This would require abolishing the House of Representatives in Washington DC (Yay!) and transforming the State legislatures into a joint national legislature. The Senate would propose legislation to be ratified by a majority of the States, each State having one vote.

Consider trying to enact the unpopular legislation passed in 2009 and then 2010 under such a model. Of course, I’m referring to the Bailout bills and the stimulus packages of 2009 and then the Patient Protection and Affordable Care Act (or grossly referred to simply as the “Affordable Care Act’; or aptly named “Obamacare”) of 2010. A strong majority of Americans opposed the bailouts for the monster banks whose corrupt and inept policies caused the financial meltdown in 2009, the economic stimulus packages that they knew wouldn’t work, and Barack Obama’s healthcare plan of some two thousand pages, rushed through after secret meetings and secret deals and with publicly-acknowledged privileges given to some states and not others, and admissions by its leading supporters (Democrats) that they hadn’t even read it.  To this should be added that many believe that Congress has no constitutional authority to bailout businesses, let alone arbitrarily choosing which ones to provide federal aid, nor to impose a national healthcare plan, regardless whether it is good or not and whether or not it would help certain citizens out. Now, had these bills been sent down to the State legislatures for debate and ratification, as required by Hume’s large republic model, their defeat would have been so certain that they probably would never have even been proposed in the first place.

The second advantage presented by Hume’s model is that by dispersing the national legislature among the provincial republics (the smaller republics), he has eliminated the corruption that inevitably comes from putting the House of Representatives and the Senate in the same place. The number of representatives in Washington is 435 in the House, and 100 in the Senate– for a grand total of 535 lawmakers. A majority of this number is only 269. This small number rules 305 million people. And the majority can be even less, since both houses can lawfully operate, and they often do, with a mere quorum. A quorum majority of both houses of Congress is only 135 !!

Consider also that the US Supreme Court, centered in DC, a branch of the federal government, with justices who are appointed according to political and ideological lines – and not for proven understanding and adherence to the Constitution – has usurped the traditional “police powers” of the States, which it exercises for the health, safety (including law enforcement), welfare, education, religion, and morality of its citizens. The police powers exercised by each individual State for the benefit of its own people is the very essence of republican life. Nine unelected Supreme Court justices with life tenure – by only a vote of 5-to-4 – make major social policy for 305 million people. Political issues that are reserved to the States, such as abortion, marriage, and voter integrity laws, have been taken out of the policy arena and magically transformed into “constitutional rights.” This means, in effect, that the Court can rewrite the Constitution at will, entirely by-passing the process specifically provided for in Article V (ratification of any alteration/amendment of the Constitution by a ratification by three-fourths of the States).  Again, to think that five members of a high court can usurp lawmaking authority from the legislature (popularly-elected), can usurp powers from the States, and can transform the meaning and intent of the Constitution from the bench rather than the lawful process specifically put in place for the People themselves to define the limits of their government and we are still a republic is ludicrous.

Dispersing the legislatures among provinces would not necessarily get rid of government corruption, which is one of the biggest problems with a consolidated government. However, it would not exist on the same scale and of the same intensity that we see in DC today. Hume’s national legislature sits jointly in the 100 provincial capitals.  That means that a lobbying interest must deploy a much greater number of lobbyists and over greater distances. In addition, it would be much more difficult for representatives to coordinate with each other to buy and sell votes, as is routinely done in Congress today. With such a large republic, representatives would be more cautious and frugal in spending taxpayer money. After all, the 10,000 dispersed representatives who live in the same neighborhood with their constituents would have to look them in the eye and would have to answer to them.

Third, Hume provides a number of checks to prevent a faction from dominating the whole. If the senate rejects a proposed law, only 10 senators out of 100 are needed to veto that decision and forward the bill to the republics for consideration. Laws thought to be trivial can be sent from the senate to the ten magistrates of the republic for ratification instead of calling on the whole legislature. But only 5 out of 100 provincial representatives are needed to veto this and call for a vote of their legislature. Each (small) republic can veto legislation of another republic and force a vote on the matter by all the republics.

Should the United States be divided up into provincial republics – into a “federation of republics” – in order to provide a true republican form of government to its people?  Thomas Jefferson thought so.  George Kennan, esteemed historian and American diplomat (crafted the US policy of containment with respect to the Soviet Union) also thought so. In his autobiography, Around the Cragged Hill, Kennan argued that the United States has become simply too large for the purposes of self-government. As he argued, the central government can rule 305 million people only by imposing one-size-fits-all rules that necessarily result in a “diminished sensitivity of its laws and regulations to the particular needs, traditions, ethnic, cultural, linguistic, and the like of individual localities and communities.”  Kennan passed away in 2005.  That the lives, property, income, and fortunes of 305 million Americans should be the playthings of an oligarchy in Washington that can act by a majority in Congress of only 269 (and 135 if acting by a quorum) and that the essence of republican life – religion, morals, education, marriage, voting rights, law enforcement, and social welfare – should be decided by nine unelected Supreme Court justices is something no free, liberty-minded people should tolerate.

Of course, there is the other option – secession and the formation of individual republics, not held together in federation form. It is said that secession should and must be ruled out because it causes war and it will necessarily involve bloodshed.  But that is not necessarily true. Of course it will depend on the ambitions of the administration in Washington DC, in particular, the president.  We would hope that we should never again suffer the likes of another Abraham Lincoln. But there are many examples of states that have seceded peacefully, including a number of Baltic states from the former Soviet Union. Norway peacefully seceded from Sweden in 1905 and Singapore did so from the Malaysian federation in 1965.  Eventually, if things don’t change and freedom’s flame is close to being extinguished, secession may be the remedy to save the American experiment. Additionally, it may be the only way to save the US Constitution – by putting it in the hands of a people who will take care of it and be much more vigilante with its limited powers and its checks and balances than Americans have been.  When 11 Southern States seceded from the Union in 1860-61 and formed the Confederate States of the American, they, as a Union, established a new constitution. This would be the third constitution that Americans made for themselves, and in most respects, it was far superior to the one of 1787 – they backed out of.  It included several provisions which would have made it much more difficult for the central government to concentrate and usurp power. Had Lincoln respected the States’ right of self-determination (as proclaimed in the Declaration of Independence), we would have had the unique opportunity to compare, side-by-side, how each Union of States (North or South) fared under their constitutions.  The point is that secession gave the People (acting in State conventions) the opportunity to correct the defects in the Constitution that caused them to be oppressed by government. The question will be: when that time comes (and maybe it is already here), will we have the Will to Secede!!  Already, between 19-34% of Americans (ranked by State), now believe we would be better if States peacefully left the Union.

Donald Livingston closes his discussion of “American Republicanism” with this summary: “When a healthy cell grows too large, it divides into two cells. It is the cancerous cell that no longer knows how to stop growing. That artificial corporation, created by the individual States over two centuries ago, called the “United States” has, over time, metastasized into a cancerous growth on a federation of continental scale, sucking republican vitality out of States and local communities. The natural chemotherapy for this peculiar condition is and can only be some revived form of State interposition, nullification, or secession. If these are rejected out of hand as heresies (as our nationalist historians have taught since the late nineteenth century), then we can no longer, in good faith, describe ourselves as enjoying a republican style of government.

American secession

 

Again, I encourage everyone to read the entire book – Rethinking the American Union for the Twenty-First Century.  Aside from Donald Livingston, accomplished authors and academics Kent Masterson Brown, Dr. Thomas DiLorenzo, Dr. Marshall DeRosa, Yuri Maltsev, and Rob Williams also contributed chapters.

 

References:

Donald Livingston, ed., Rethinking the American Union for the Twenty-First Century, Pelican Publishing Company, 2013.

Poll:  One in Four of Americans Want Their State to Secede, but Why?  –   http://blogs.reuters.com/jamesrgaines/2014/09/19/one-in-four-americans-want-their-state-to-secede-from-the-u-s-but-why/

Poll: A Quarter of Americans Want Their State to Secede –   http://talkingpointsmemo.com/livewire/poll-seccession

Poll:  One in Four of Americans Want Their State to Secede –   http://dailycaller.com/2014/09/19/poll-one-in-four-americans-want-their-state-to-secede/

About these ads

Occasionally, some of your visitors may see an a

TENTH AMENDMENT KEEPERS: Keepers of the Tenth!

10th Amendment

by Diane Rufino, July 19, 2016

This short article is intended to alert the reader to the importance of the Tenth Amendment and hopefully inspire him or her to join the Tenth Amendment Movement and help bring government power back to the States in those areas historically belonging to them and reserved to them under the Tenth Amendment.

About the Tenth Amendment Movement:

The Tenth Amendment has its roots in the intent of each State to retain its full sovereignty and its right of self-determination. The Tenth Amendment comes from Article II of our very first constitution, the Articles of Confederation: “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.”  So concerned about their right of self-determination and their fear of being consumed by a centralized government under the US Constitution as drafted in 1787 at the Philadelphia Convention, that several crucial states were not willing to ratify it in convention. Virginia and New York would not ratify unless they were given assurances that amendments (for a Bill of Rights) would be added, and indeed they proposed several, including one with the language of the Tenth Amendment. To make their position firmer, they included Resumption Clauses with their Ordinances of Ratification which conditioned their ratification on the explicit right to resume all powers when they desired so. “We, the delegates of the people of Virginia do, in the name and on behalf of the people of Virginia, declare and make known that the powers granted under the Constitution, being derived from the people of the United States, may be resumed by them whensoever the same shall be perverted to their injury or oppression.”

Supporters of big government (such as Abraham Lincoln, FDR, LBJ, Obama, many Supreme Court justices, and today’s progressives) have actively down-played the Tenth Amendment because it embodies States’ Rights and state power.  In the years leading up to the War of 1861 and most certainly with that war and afterwards, the political elites in government understood that the ordinary checks and balances provided in the Constitution could be co-opted and controlled, but the most critical of all the checks and balances that our Founders provided on the federal government – the tension created by sovereign states (“Dual Sovereignty,” “federalism”… or as I like to refer to it: “Titan versus Titan”) – is the one they could not, especially the Southern States. And so began the movement to destroy the concept of States’ Rights, the great movement of Thomas Jefferson.  Indeed, most Americans believe what the victor of the War of 1861 (ie, the federal government) has indoctrinated, which is that the sovereignty of the federal government, in all cases, trumps the States and that the States are powerless to oppose the government or leave the Union.  The Tenth Amendment Movement knows that this indoctrination can be reversed by education and by the willing re-assertion of the Tenth Amendment by the States.  The Tenth Amendment Movement is about educating folks and especially members and candidates for state legislatures about the compact nature of the Constitution, which essentially says that the States, as willing parties, mutually agreed to the terms of the Constitution and assented to be bound by it (forming the Union, with its “creature” – the federal government – providing certain functions on their behalf), so long as the terms were faithfully adhered.  Compacts implicate the laws of contract and to some degree the law of agency.

Unquestionably, the Constitution was created as a social compact. It had all the requisites of a contract. There were parties: thirteen States, to which were added those that similarly ratified the document in the years after 1781. There was mutuality: each State promised to give up some of its sovereignty in exchange for what the Union promised to deliver – for receiving a “common defense” and some regulation of commerce between the States where it was necessary to ensure free trade. The Constitution was created by the States and ratified by the States, each acting in Convention. It could only be amended by and between the States. And if there was any doubt about the fact that the Constitution was an agreement entered into by and between the States, Article VII states: “The ratification of the conventions of nine States shall be sufficient for the establishment of this Constitution between the States so ratifying the same.”  Every one of our Founding Fathers characterized the Constitution as a compact. It was referred to as such in the Constitutional Convention in Philadelphia in 1787, in all the State Ratifying Conventions, Anti-Federalist Papers, the Federalist Papers, in the communications by Thomas Jefferson, in the Kentucky and Virginia Resolutions, written by Thomas Jefferson and James Madison (respectively), in Madison’s 1800 Report, in the several famous speeches by John C. Calhoun, and in the Ordinances of Secession.

It is critical that education by the Tenth Amendment Movement emphasize this compact nature of the Constitution and destroy the constitutional myth espoused by Lincoln to subjugate and consolidate forever the States because only then do certain remedies apply – such as nullification, interposition, and even secession itself.

The Constitution’s text and history before the War of 1861 did NOT change as a result of the surrender at Appomattox. Contracts do not textually change by the use of brute force; contracts change ONLY by the agreement of the parties. The Constitution was still a “constitution between the States” after the war as it was before. It remains so now.

Years ago, it would have been very rare to find folks who supported such critical doctrines such as Nullification and Interposition.  Even talk of States’ Rights seemed to be unpopular.  Which state would even think of daring to question the federal government?  But over the years, as the federal government has become exceedingly ambitious, arrogant, tyrannical, corrupt, reckless, and out of touch with the American people, I’ve seen things change. I’ve watched in seminars how voices of skepticism turned to support. Instead of people telling me such remedies were illegitimate, unconstitutional, and dangerous, all of a sudden, they started asking how to approach their legislators about using them against the federal government.  States are looking to nullification and interposition to finally define boundaries.  States are passing nullification measures on a wide range of issues – Obamacare, federal gun control, hemp, medical marijuana.

I hope that if you believe in the importance of this movement, as I believe, you will get involved, help educate others, and help elect like-minded representatives to your State legislature.  Whether individual freedom will be secured for “generations to come and millions yet unborn” will depend upon how the States choose to value the Tenth Amendment.  And the path that each State takes can be determined through the voice of its people.

How can you get involved?  Contact the Tenth Amendment Center, through its website.  If you have a chapter in your state, contact any of its members.  If you don’t have a chapter, either volunteer to start one or help recruit someone with the necessary time and skills to organize and run it. If you belong to an organization, such as the Tea Party or any other community organization, request that speakers be invited to talk about the Tenth Amendment, Nullification, Interposition, Judicial Activism, the Constitution and Original Intent, and other such topics.

Educate, educate, educate. The most important thing you can do is become educated!  You will find educational articles and updates on my blogsite (www.forloveofgodandcountry.com), on the Tenth Amendment Center website (http://tenthamendmentcenter.com/), and on the Abbeville Institute website (http://www.abbevilleinstitute.org/)

Finally, follow my blogsite – Tenth Amendment Keepers (https://tenthamendmentkeepers.wordpress.com) and the Facebook site of the same name.

Together, we must Keep the Tenth Amendment relevant.

10th Amendment - button

Desperately Seeking Security – For Our Second Amendment

SECOND AMENDMENT - minuteman with gun

by Diane Rufino, July 20, 2016

To those who are serious about preventing the federal government from coming after our Second Amendment rights, please read and take note…..   

If you really want to make a difference and prevent the government from infringing on our Second Amendment, you have to actively support Nullification as a remedy and propose nullification measures to use the power of the States and the People to protect THEIR protections expressly stated in the US Constitution – the Bill of Rights.  I’m not saying you have to necessarily come out and use that word, but you absolutely need to support the concept.

Remember what the preamble to the Bill of Rights emphasizes: “The Conventions of a number of States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added, and as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution.”   In other words, amendments One through Nine are “further restrictions on the federal government” while the Tenth is a further declaration of the intent of the Constitution (as a compact) – that the States have only delegated a select few of their sovereign powers to a common government for common purposes – for a “common defense” and some regulation of commerce between the States where it was necessary to ensure free trade – and they retain and reserve the remainder of them.

You MUST start talking about the Constitution in terms of Compact Theory and reject any characterization of the country as a Union of people rather than States (Lincoln’s rhetoric).  Only when the Constitution is once again referred to and characterized as it was intended – a compact (history is complete with its references and justifications, including from all our Founding Fathers, the Constitutional Convention of 1787, from the writings of our two greatest founders Thomas Jefferson and James Madison, the State Ratifying Conventions, and even Article VII of the US Constitution itself), can we stand on the firm ground necessary to reassert our position – that the government has no authority to burden the rights recognized and protected in the Bill of Rights and indeed which formed the very basis for our independence from Great Britain. Compacts have implicit rights and remedies reserved to its signing parties, very similar to contract law and even agency law.

You MUST start talking about State Sovereignty Bills that will protect the citizens in every state from any gun control measure that burdens our Second Amendment guarantee.  And I mean, REAL sovereignty bills that include interposition provisions and intent to enforce them. Montana introduced such a bill (or resolution) several years ago which reasserted its sovereignty under the Tenth Amendment and characterizing her position vis-a-vis the other States and the federal government in terms of a social compact where each State, as a party to that compact, has the implicit right (just as a party to a contract) to reassert the original terms of the agreement, to ensure that they are faithfully followed, and to assert her right to sever its bond and withdraw from the Union when that compact has been violated and frustrated.  The Montana bill includes a provision that puts the federal government on notice that if it attempts to do any of a list of things (I believe the bill lists 5 specific things, including GUN CONTROL, limiting the Second Amendment), then it would consider it “a fatal breach of the compact that holds us together in the Union.”

This is the only way you fight back against the designs of our present bloated, self-serving government.  These bold assertions and the strong political posturing of States will put the government on notice and equally will put the US Supreme Court on notice as well. They move forward with gun control measures, they do so at the peril of the stability of the United States.

Petitions don’t amount to a hill of beans. Over 60% of the American people showed their opposition to government-mandated healthcare but the government went ahead with it anyway.

In a politically-incorrect and realistic world, laws are supposed to protect the good people and encourage constrained behavior for the benefit of an ordered and healthy/happy society.  A person should always be free to exercise his or her God-given rights and freedoms UNTIL it burdens another’s free exercise thereof.  Laws are also supposed to punish the bad people and DISCOURAGE bad behavior.  Our government is talking about Gun Control from an incorrect point of view with respect to the purpose of laws.  It seeks to punish good people because of the actions of bad people. In doing so, it will punish good people from doing what God inherently intended people to do – protect themselves, their families, and their property, using whatever means necessary to stop the evil.  The very definition of a criminal or the criminally-inclined is a person who doesn’t obey laws.  As with Prohibition, a prohibition on guns, a registry of guns, a long waiting period on gun ownership, a limitation on gun ownership and ammunition, etc etc will only create a thriving and creative black market which will only make sure that most criminals and super bad guys (and syndicates, such as terrorist organizations) will get lots of them while honest, law-abiding, vulnerable people which characterizes the overwhelming majority of Americans who now take huge risks now every time they venture out of their homes and go into public places, will have none.

I offer these comments as someone who is equally passionate in preventing the federal government from taking our rights away or even burdening them in any way.  It’s always a slippery slope to even give in just a little.

Remember, the Second Amendment is Freedom’s Strongest Guarantee !!

SECOND AMENDMENT - poster (last time I checked, it didn't read it is a Bill of Needs)