Jefferson and the Barbary Pirates (Some interesting history)

By: Dave Benner| Published on: May 24, 2016

Famously, President Thomas Jefferson’s first inaugural address articulated his philosophical manifesto: “Peace, commerce, and friendship with all nations – entangling alliances with none.” These basic maxims were stressed repeatedly by Jefferson, who cherished a commercially free country that would avert the costly European wars of the past. Optimally, Jefferson hoped to avoid foreign conflicts completely.
Jefferson had long championed the idea that conquest and imperial pursuits, which had consumed Europe for centuries, was to be avoided in America. Writing to his friend Thomas Paine in 1801, he put it this way:

“Determined as we are to avoid, if possible, wasting the energies of our people in war and destruction, we shall avoid implicating ourselves with the powers of Europe, even in support of principles which we mean to pursue. They have so many other interests different from ours, that we must avoid being entangled in them. We believe we can enforce these principles as to ourselves by peaceable means, now that we are likely to have our public councils detached from foreign views.”[1]

As a young country without a strong military presence, at its infancy the United States was exposed to stresses that would shape its early actions on the foreign stage. Deficient to protect itself, contemporary Americans would have no conception of these inadequacies, and find this situation unrecognizable. Before he was president, Jefferson was already familiar with these circumstances, and was accustomed to the practices of the Barbary pirates.

After the states lost the protection of the British navy through their independence, American sailors were especially vulnerable to capture. In 1795, Algeria captured 115 sailors and demanded a tribute for $1 million, a huge sum of money at the time. Sailors were held in poor conditions, food was scarce, and disease was rampant. In 1786, the Confederation government sent Thomas Jefferson and John Adams to negotiate with the Tripoli to prevent future hostilities.
When they asked the envoy the reasoning concerning the hostile actions, ambassador Sidi Haji Abdrahaman responded:

“It was written in their Koran, that all nations which had not acknowledged the Prophet were sinners, whom it was the right and duty of the faithful to plunder and enslave; and that every mussulman who was slain in this warfare was sure to go to paradise.”[2]

The pirates were in no mood for negotiation, and they strongly maintained that their religious beliefs obligated them to make war upon non-Muslims. For his part, Jefferson believed that capitulating to the demands of the pirates would simply encourage future kidnappings, and advised against making the payments. However, the United States was in no position to clash with an opponent on the high seas – it had no virtually no navy and its financial resources were exhausted. Strained by debt from the war with Britain, the United States continued to pay the $1 million figure for the next 15 years.
During some of this timeframe, American vessels enjoyed the protection of the French navy as a result of the Franco-American alliance. This perk changed during the Washington and Adams administrations, as relations with France soured and the two powers engaged in a series of naval clashes in 1798. Ultimately, the Quasi War was resolved through the 1800 Treaty of Mortefontaine, but American ships never again enjoyed the protection of a superior navy.
Early in his presidency, Jefferson was thrust into a second test concerning the pirates that could have challenged his principles regarding foreign policy. Unprovoked, Barbary Pirates had captured and enslaved American sailors and demanded excessive ransom payments. As a fledgling country, America was faced with one of its first true foreign predicaments. Once in the presidency, would Jefferson uphold his political philosophy by carrying out foreign policy in a manner that was consistent with the Constitution?
Clearly, those who wrote and explained the document purposefully confined war powers to Congress. In Pennsylvania’s ratification convention, prominent Federalist James Wilson assured the delegation that war-making authority would “not be in the power of a single man.” Beyond this, he noted:

“The important power of declaring war is vested in the legislature at large: this declaration must be made with the concurrence of the House of Representatives: from this circumstance we may draw a certain conclusion that nothing but our interest can draw us into war.”[3]

Similarly, in The Federalist #69, Alexander Hamilton described the president’s authority this way:

“His authority would be nominally the same with that of the King of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first general and admiral of the confederacy; while that of the British king extends to the declaring of war, and to the raising and regulating of fleets and armies; all which by the constitution under consideration would appertain to the Legislature.”[4]

No alternative narrative concerning the executive was ever presented in the state ratification conventions, and despite widespread skepticism and apprehension concerning the office, the states ratified the document under the postulation that the president could not wage his own wars or engage in military excursions without explicit congressional authorization.
This was a wise decision, reached by observing the tragedies of the past. Through the annals of western history, powerful executives were prone to abusing war powers. It allowed them to conscript armies, drain national treasuries, and curtail individual liberty under the guise of heightened security. The tendency created continual civil disputes that ended in much bloodshed, such as those between Charles Stuart and the Long Parliament of England. Certainly, an executive with the power of a hereditary monarch was a recipe for disaster that the founders sought to avoid.
Jefferson, to his credit, wished to deviate from the kings of old by walking a different pathway in pursuit of republicanism. Still, the lack of American naval protection afforded the Barbary states an enticing opportunity. Without viable security to protect them, American sailors would be vulnerable targets for extortion and tribute payments.
Jefferson’s response to the problem would be critical for several reasons. For the country, it would determine whether America had the ability to alleviate such international quandaries. For Jefferson’s philosophy, it would help answer the question of whether the expansion of executive power in wartime was inevitable. Assuredly, the plausibility of republicanism was at stake.
The young United States Navy, which consisted of six frigates, was operational by the time Jefferson was sworn in as president. Prior to his presidency, Congress passed naval legislation that authorized the ships to “protect our commerce and chastise their insolence—by sinking, burning or destroying their ships and vessels wherever you shall find them.”
Upon Jefferson’s refusal to pay Tripoli’s new demand of $225,000, tensions flared. Jefferson sent three frigates and one schooner under the command of Commodore Richard Dale to attempt to maintain peace and engage in diplomacy with the Barbary states. In the event of aggression, Dale was instructed to protect the ships and their crew from hostility by taking responsive action against the pirates.
In response, Pasha Yusuf Karamanli of Tripoli declared war on the United States on May 14, 1801. Ironically, unlike under the American constitutional system, the Pasha could personally declare war against an enemy country. As a symbolic gesture, he cut down the American flagpole in front of the American consulate.
Using the power that was already authorized by Congress, Jefferson was steadfast in his pledge to demonstrate America’s commitment in the matter. Still, he pledged that he was “unauthorized by the Constitution, without the sanction of Congress, to go beyond the line of defense.” Recognizing that only Congress had the power to authorize offensive military attacks, Jefferson communicated this message:

“I communicate all material information on this subject, that in the exercise of this important function confided by the Constitution to the Legislature exclusively their judgment may form itself on a knowledge and consideration of every circumstance of weight.”[5]

In the years to come, Jefferson unfailingly deferred to Congress in matters concerning the Barbary pirates. Evidently, Jefferson thought that America’s resolve could be demonstrated while still abiding by the dictates of the Constitution.
Because of Jefferson’s reluctance to pursue the engagement with more vigor, then-retired Alexander Hamilton took the opportunity to criticize the president. Writing to the New York Post under the pseudonym of Lucius Crassus, he inquired, “What will the world think of the fold which has such a shepherd?” This was written just after a significant victory was achieved – the USS Enterprise had defeated a Tripolitan corsair without the loss of life, and the Americans had established a blockade of Tripoli. According to historian and preeminent Jefferson biographer Dumas Malone, Jefferson’s actions during this endeavor establish that “there are insufficient grounds here for characterizing the president as a timid and foolish shepherd.”[6]Hamilton seemed to be grasping at straws.
Still, the fight was not over. Congress passed additional legislation in 1802, authorizing the president to:

“Equip, officer, man, and employ such of the armed vessels of the United States as may be judged requisite by the President of the United States, for protecting effectually the commerce and seamen thereof on the Atlantic ocean, the Mediterranean, and adjoining seas.”

Additionally, the president was given the capacity to “subdue, seize, and make prize of all vessels, goods, and effects belonging to the Bey of Tripoli,” and “to cause to be done all such other acts of precaution of hostility as the state of war will justify, and may, in his opinion, require.” The law intended to allow for the continuance of the current policy, and reiterated its constitutional legitimacy. At no point did Jefferson take independent military action beyond the bounds prescribed by Congress. In fact, Congress seemed willing to impart authority to the executive beyond what Jefferson had requested.
While the engagements with the Barbary powers continued intermittently throughout the next few years, Jefferson’s diligence paid off in the end. There were a small amount of American losses, but the pirates never resumed their foothold over American interests until after the War of 1812. Jefferson’s stand against the pirates was effective, and the conflict’s toils were largely kept out of sight of the American people.[7] The successful endeavor surely dissuaded European powers from meddling with the young country without good reason, and prevented farther extortion by the pirates. In addition, Jefferson never used the engagement as a pretext to curtail individual liberty like so many of his successors would do.
Some historians have opined that the result of the Barbary crisis elevated America to a new position on the world stage, and solidified its prominence as a world power. They are not totally inaccurate, but this situation brought forth a blessing and a curse. Jefferson proved executive expansion during wartime was not inevitable, but America’s naval successes on the high seas were short-lived. A decade later, the British outmaneuvered the American navy during the War of 1812, where some naval successes were overshadowed by the inability to form a blockade against the British.
Refusing to go past the line of defense prescribed by Congress, Jefferson fostered an encouraging early example for how the executive was to carry out foreign policy. In contrast, today’s presidents unilaterally send forces all throughout the world to achieve foreign policy goals without the direction of Congress. They constantly cite the constitutional transgressions of their predecessors as justification for their actions. This is often done even in the face of congressional opposition.
While all modern presidents should recognize Jefferson’s refusal to usurp war power, they haven’t done so for over a century. Still, it behooves all Jeffersonians to point to this incident as a quintessential proof of the potential for republican government to exist under an executive that understood the confines of the Constitution.

References:
[1] Thomas Jefferson to Thomas Paine, Quoted in The Life and Writings of Thomas Jefferson, Edited by S.E. Forman (Indianapolis: Bowen-Merrill Company, 1900), 215.
[2] “American Peace Commissioners to John Jay,” March 28, 1786, Thomas Jefferson Papers, Series 1, General Correspondence. 1651–1827, Library of Congress.
[3] The Debates in the Several State Conventions on Adoption of the Federal Constitution, Edited by Jonathan Elliot, Volume II, (Washington: Taylor & Maury, 1861), 488.
[4] The Federalist #69, Alexander Hamilton, James Madison, and John Jay, The Federalist, Edited by Jacob E. Cooke (Middletown: Wesleyan University, 1961), 465.
[5] First Annual Message, in Thomas Jefferson, Thoughts on War and Revolution, Edited by Brett Woods (New York: Algora Publishing, 2009), 157.
[6] Dumas Malone, Jefferson and His Time, Volume Four: Jefferson The President, First Term, 1801-1805 (Boston: Little, Brown and Company, 1970), 98-99.
[7] Ibid, 263.

Dave Benner

Dave Benner [website] speaks and writes on topics related to the United States Constitution, founding principles, and the early republic. Dave is also the author of Compact of the Republic: The League of States and the Constitution and The 14^th Amendment and the Incorporation Doctrine. See his blog archive here, his article archive here, and his patreon page here.

 

LINK

TAC: Top-5 Myths About the Constitution

We’ve all heard the claims – various clauses of the constitution, rather than limiting federal power, are used as a justification for more and more of it.

From the necessary and proper, general Welfare and commerce clauses, to the preamble, federal “supremacy” and more – there are a lot to choose from.

The hardest part about putting this list together was keeping it to just the top-five.

5. Commerce

“The Constitution gives Congress broad power to regulate activities that have an effect on interstate commerce.”
-Nancy Pelosi (2009)

Remember when the Commerce Clause challenge to the individual insurance mandate was dismissed by all serious and knowledgeable constitutional law professors and Pelosi as “frivolous”?

“Are you serious?” Nancy didn’t even want to answer a question about the Constitution.

Here’s how James Madison described the Commerce Clause: it “was intended as a negative and preventative provision against injustice amongst the states themselves, rather than as a power to be used for the positive purposes of the General Government.”

Simply put, under the Constitution, the Commerce Clause is not something that authorizes the federal government to regulate, control, or prohibit anything and everything they want.

I covered the clause in detail in an episode of our podcast, Path to Liberty. You can check it out here.

4. The Preamble 

“The Preamble should guide our understanding of the Constitution.”

Because the Preamble to the Constitution has beautiful, sweeping prose – and is quite broad in what it says – supporters of the monster state love to rely on it to justify their favorite federal programs or proposals.

Leading “living, breathing constitution” advocate Erwin Chemerinsky (who is often called upon by mainstream media reporters to be the “expert” who refutes our work here at TAC) says the Preamble “should guide the interpretation of the Constitution.”

Unsurprisingly, this is totally untrue.

In an important article, Mike Maharrey cited James Madison in opposition to Erwin’s view:

“They will waste but little time on the attempt to cover the act by the preamble to the constitution; it being contrary to every acknowledged rule of construction, to set up this part of an instrument, in opposition to the plain meaning, expressed in the body of the instrument. A preamble usually contains the general motives or reasons, for the particular regulations or measures which follow it; and is always understood to be explained and limited by them. In the present instance, a contrary interpretation would have the inadmissable effect, of rendering nugatory or improper, every part of the constitution which succeeds the preamble.”

Read the rest here

For us, if it’s a choice between Erwin’s view or Madison’s, we’ll go with the “Father of the Constitution” every single time.

3. Necessary and Proper
The “necessary and proper” clause provides constitutional authorization for much of what the feds do today.

“Necessary and proper” ranks among the most abused clauses in the Constitution. It has been dubbed the “elastic clause” because of the perception that it allows the scope of federal power to expand. The federal government began abusing this clause within years of ratification. In 1800, James Madison countered these early abuses, forcefully arguing that it’s not elastic at all, and doesn’t give the government any additional powers.

Under the Constitution, there are three criteria that need to be met for something to be both “necessary” and “proper.” I cover this all in more detail in this episode of Path to Liberty.

2. general Welfare
“The general welfare clause gives the federal government the power to run social welfare programs”

At the Virginia ratifying convention, Edmund Randolph said that reading the general welfare clause as a broad grant of power would “violate every rule of construction and common sense.” 

As Thomas Jefferson put it in an 1817 letter to his friend Albert Gallatin:

“Congress had not unlimited powers to provide for the general welfare, but were restrained to those specifically enumerated; and that, as it was never meant they should provide for that welfare but by the exercise of the enumerated powers, so it could not have been meant they should raise money for purposes which the enumeration did not place under their action; consequently, that the specification of powers is a limitation of the purposes for which they may raise money.”

For a great overview, read this article from Mike Maharrey, “The General Welfare Clause is not about writing checks.”

1. Supremacy
“Federal law always trumps state law.”

As Brion McClanahan noted in a 2010 article, “this opinion is held by a majority of constitutional law “scholars,” but they are far from correct.”

He continues:

"The so-called “supremacy clause” of the Constitution, found in Article 6, states, “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding [emphasis added].”

The key, of course, is the highlighted phrase. All laws made in pursuance of the Constitution, or those clearly enumerated in the document, were supreme, State laws notwithstanding. In other words, the federal government was supreme in all items clearly listed in the document.

Brion summed it up with this gem:

When asked to read between the lines to “find” implied powers, Jefferson responded that he had done that, and he “found only blank space.”

---

If you prefer a quick overview of all this, last week's Fast Friday show ran through it all in 10 minutes flat. We have a podcast and a video version - plus a number of reference links so you can read more - a lot more.

GET IT HERE


--Michael Boldin, TAC

Congress’ Constitutional Prerogative vs. Executive Branch Overreach

by Matthew Spalding 

 This piece has been excerpted from testimony before the Executive Overreach Task Force for the House Judiciary Constitution and Civil Justice Subcommittee.

“In framing a government which is to be administered by men over men, the great difficulty lies in this,” Madison writes in Federalist 51, “You must first enable the government to control the governed; and in the next place oblige it to control itself.”

That meant that, in addition to performing its proper constitutional functions, there needed to be an internal check to further limit the powers of government. For that purpose, the Founders not only divided power, but also set it against itself.

This separation of powers is the defining structural mechanism of the Constitution. It divides the powers of government among three branches and vests each with independent powers and responsibilities.

“The accumulation of all powers,” Madison notes in Federalist 47, “legislative, executive and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” Thus, for “the preservation of liberty,” each branch has only those powers granted to it, and can do only what its particular grant of power authorizes it to do.

“In framing a government which is to be administered by men over men, the great difficulty lies in this,” Madison writes in Federalist 51, “You must first enable the government to control the governed; and in the next place oblige it to control itself.”

That meant that, in addition to performing its proper constitutional functions, there needed to be an internal check to further limit the powers of government. For that purpose, the Founders not only divided power, but also set it against itself.

This separation of powers is the defining structural mechanism of the Constitution. It divides the powers of government among three branches and vests each with independent powers and responsibilities.

“The accumulation of all powers,” Madison notes in Federalist 47, “legislative, executive and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” Thus, for “the preservation of liberty,” each branch has only those powers granted to it, and can do only what its particular grant of power authorizes it to do.

...The U.S. has been moving down the path of administrative government in fits and starts from the initial Progressive Era reforms through the New Deal’s interventions in the economy. But the most significant expansion occurred more recently, under the Great Society and its progeny.

The expansion of regulatory activities on a society-wide scale in the 1960s and 1970s led to vast new centralizing authority in the federal government and a vast expansion of federal regulatory authority.
When administration is nationalized, though, it does not easily or naturally fall under the authority of one branch or another. As we’ve seen, bureaucracy and its control created a new source of conflict between the executive and legislative branches.

During the first part of our bureaucratic history, Congress had the upper hand. Congress, after all, had been creating these regulatory agencies to carry out its wishes and delegating its legislative powers to them in the form of broad regulatory authority.

Congress was the first to adapt to the administrative state, continuously reorganizing itself since 1970 by committees and subcommittees to oversee and interact with the day-to-day operations of the bureaucratic apparatus as it expanded.

Rather than control or diminish the bureaucracy through lawmaking or budget control, Congress has settled mostly on “oversight” of the bureaucracy.

Today, when Congress writes legislation, it uses very broad language that turns extensive power over to agencies, which are also given the authority of executing and usually adjudicating violations of their regulations in particular cases. The result is that most of the actual decisions of lawmaking and public policy — decisions previously the constitutional responsibility of elected legislators — are delegated to bureaucrats whose “rules” have the full force and effect of laws.

In 2014, about 220 pieces of legislation became law, amounting to a little more than 3,000 pages of law, while federal bureaucrats issued 79,066 pages of new and updated regulations. The modern Congress is almost exclusively a supervisory body exercising post-legislative oversight of administrative policymakers...

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toda

And therein lays most of the problems we face
 

Is Government Faithful to the Constitution?

By Andrew P. Napolitano

When the government is waving at us with its right hand, so to speak, it is the government’s left hand that we should be watching. Just as a magician draws your attention to what he wants you to see so you will not observe how his trick is performed, last week presented a textbook example of public disputes masking hidden deceptions. Here is what happened.

Last week was dominated by two huge news stories. One was the revelation by the Senate Intelligence Committee of torture committed by CIA agents and contractors on 119 detainees in the post-9/11 era — 26 of whom were tortured for months by mistake. In that revelation of anguish and error were the conclusions by CIA agents themselves that their torture had not produced helpful information. President Barack Obama acknowledged that the CIA had tortured, yet he directed the Department of Justice not to prosecute those who tortured and those who authorized it.

The other substantial news story was the compromise achieved by Congress and the White House to fund the government through the end of September 2015. That legislation, which is 2,000 pages in length, was not read by anyone who voted for it. It spends a few hundred billion dollars more than the government will collect in tax revenue. The compromise was achieved through bribery; members of Congress bought and sold votes by adding goodies (in the form of local expenditures of money borrowed by the federal government) to the bill that were never debated or independently voted upon and were added solely to achieve the votes needed for passage. This is how the federal government operates today. Both parties participate in it. They have turned the public treasury into a public trough.

Hidden in the law that authorized the government to spend more than it will collect was a part about funding for the 16 federal civilian intelligence agencies. And hidden in that was a clause, inserted by the same Senate Intelligence Committee that revealed the CIA torture, authorizing the National Security Agency to gather and retain nonpublic data for five years and to share it with law enforcement and with foreign governments. “Nonpublic data” is the government’s language referring to the content of the emails, text messages, telephone calls, bank statements, utility bills and credit card bills of nearly every innocent person in America — including members of Congress, federal judges, public officials and law enforcement officials. I say “innocent” because the language of this legislation — which purports to make lawful the NSA spying we now all know about — makes clear that those who spy upon us needn’t have any articulable suspicion or probable cause for spying.

The need for articulable suspicion and probable cause has its origins in the Fourth Amendment to the Constitution, which was written to prohibit what Congress just authorized. That amendment was a reaction to the brutish British practice of rummaging through the homes of American colonists, looking for anything that might be illegal. It is also a codification of our natural right to privacy. It requires that if the government wants nonpublic data from our persons, houses, papers or effects, it must first present evidence of probable cause to a judge and then ask the judge for a search warrant.

Probable cause is a level of evidence that is sufficient to induce a judge into concluding that it is more likely than not that the place to be examined contains evidence of crimes. In order to seek probable cause, the government must first have an articulable suspicion about the person or place it has targeted. Were this not in the law, then nothing would stop the government from fishing expeditions in pursuit of anyone it wants to pursue. And fishing expeditions turn the presumption of liberty on its head. The presumption of liberty is based on the belief that our rights are natural to us and that we may exercise them without a permission slip from the government and without its surveillance.

Until last week, that is. Last week, Congress, by authorizing the massive NSA spying to continue and by authorizing the spies to share what they have seized with law enforcement, basically permitted the fishing expeditions that the Fourth Amendment was written to prevent.

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The case of the missing 13th amendment to the Constitution

by Scott Bomboy

A few years ago, a group of Iowa Republicans claimed the legitimate 13th Amendment to the Constitution was “missing.” The debate is part of a historical detective story with some surprising twists that is still taking place.

The Daily Beast did a fairly extensive feature on the missing amendment in 2010, which didn’t feature a cloaked Freemason stealing the amendment because it had a secret treasure map printed on it.

Instead, the debate between historians and conspiracy buffs is about an amendment that was almost ratified in 1812 that would have been the 13th Amendment, bumping back the current 13th Amendment–which was ratified on this day in 1865 and abolished slavery–to the position of the 14th Amendment.

Writer Jerry Adler’s 2010 explanation of the “Thirteenthers” controversy is pretty detailed and covers both sides of the issue—which isn’t new but got a big burst of publicity thanks to the Iowa GOP’s 2010 platform.

The Iowa Republicans didn’t want the current 13th Amendment banned; they just wanted the “original” one reintroduced for approval.

That “missing” proposal was called the “Titles of Nobility Amendment” (or TONA). It sought to ban any American citizen from receiving any foreign title of nobility or receiving foreign favors, such as a pension, without congressional approval. The penalty was loss of citizenship.

It was an extension of Article I, Section 9, of the Constitution, which doesn’t allow a public office holder to receive a foreign title or similar honors without the consent of Congress.

Today, the idea of a constitutional controversy about the royals may seem kind of silly, but in 1812, the United States was fighting the British and had a rocky relationship with France.

The fear of both nations using noble titles as bribes, along with pensions from a foreign government, was persistent. And both the Senate and the House easily passed the TONA and passed it on to the states.

By late 1812, a total of 12 states had approved the 13th Amendment and ironically, it needed a 13th state to become ratified. As the War of 1812 escalated, the TONA faded away as an issue and was never ratified.

Or so we think.

In the 1980s, Adler says a conspiracy researcher started finding copies of the Constitution from the pre-Civil War era that had TONA listed as the 13th Amendment. The premise was that Virginia’s legislature had approved the amendment in 1819, but somehow, it was never listed as accepted by the federal government.

Further research revealed that President James Monroe asked his Secretary of State, John Quincy Adams, to confirm that the TONA was never ratified, which he did.

A law journal article from 1999 by Jol A. Silversmith, an attorney, explains how the TONA appeared in widely published versions of the Constitution for more than 30 years, including the official United States Statutes at Large (an official compilation of laws published by the government in 1815).

READ ENTIRE ARTICLE

Scott Bomboy is the editor-in-chief of the National Constitution Center.

Editorial - ‘Udall amendment’ an assault on free speech

The effort to amend the U.S. Constitution to allow Congress and the states to regulate campaign finance isn’t simply misguided. It’s dishonest, and, even were it successful, it would be ineffective, as well.

Senate Democrats are forging ahead with a plan to bring a joint resolution to the floor that would add a 28th Amendment explicitly giving Congress the authority to regulate contributions and spending in federal elections. It would also give state governments the same authority in statewide contests.

The effort is ostensibly in response to the U.S. Supreme Court’s widely lamented Citizens United decision and other rulings that have undone regulatory efforts of the past four decades. But while the role of money in politics is a serious problem, it’s difficult to take this effort seriously.

Think about it: The amendment, crafted by Sen. Tom Udall of New Mexico and hyped by Senate Majority Leader as “the salvation of American politics,” doesn’t have a snowball’s chance on the 4th of July. 

...Were the amendment to pass, it would be the only time other than Prohibition that the Constitution has been amended to limit rights, and it would do so by granting Congress unimaginable authority to limit speech in the name of “political equality for all,” a meaningless if catchy slogan that obfuscates the real impact of this amendment: a deck stacked in favor of incumbents.

...This newspaper has long taken the position that the lack of transparency has been of far greater consequence than limits on donations, which have done little or nothing to prevent influence peddling in electoral politics. We support, for example, Democrats’ efforts to introduce a new version of the DISCLOSE Act, a bill intended to cast light on so-called dark money.

Overturning Citizens United through a constitutional amendment that undermines the First Amendment, however, is not an answer. Democrats would be wise to drop the idea.

READ ENTIRE EDITORIAL

Alaska group advances call for convention of states

A proposal urging a convention of the states to propose amendments to the U.S. Constitution has advanced from the House Finance Committee. HJR22 would place Alaska on record as urging Congress to call a convention of the states to propose constitutional amendments that "impose fiscal restraints on the federal government, limit the power and jurisdiction of the federal government, and limit the terms of office of federal government officials." HJR22 is sponsored by North Pole Republican Rep. Tammie Wilson. The resolution is meant to serve as a "continuing application" making the request until at least two-thirds of state legislatures around the country make similar petitions. AP

Will the Supreme Court Permit EPA Fraud?

The U.S. Supreme Court recently heard oral arguments in Utility Air Regulatory Group v. Environmental Protection Agency. The case will determine how far EPA can extend its regulatory overreach, to control “climate changing” carbon dioxide from power plants and other facilities – by ignoring the Constitution’s “separation of powers” provisions, rewriting clear language in the Clean Air Act, and disregarding laws that require the agency to consider both the costs and benefits of its regulations and what it is regulating. Put more bluntly, the Court will decide whether EPA may deceive and defraud the American people, by implementing regulations that have no basis in honest science and will be ruinous to our economy. It is the most important energy, economic and environmental case to come before the Court it in decades. Suppose a used car dealership routinely rolled back speedometer mileage, deleted customer complaints from its website, posted fabricated compliments, and lied about defects and accidents. Or a manufacturer misstated its sales and bottom line, failed to mention major safety violations and fines, and made false claims about new product lines, to attract investors and inflate stock prices? Both would be indicted for fraud. Now apply the same standards to EPA, whose actions and regulations will affect far more people: virtually every family, facility, business and community in the United States. Most jurors would rule that the agency is engaged in routine, purposeful deceit, dishonesty and fraud...more

Federal Court Upholds School Ban on American Flag T-Shirts

 by Andrew Kloster

Yesterday, the United States Court of Appeals for the Ninth Circuit upheld a California high school’s prohibition on American flag t-shirts on Cinco de Mayo. The case is Dariano v. Morgan Hill Unified School District, and while it might get the law right, it certainly highlights a worrying trend in American schools: the inability or unwillingness to protect students whose speech is unpopular.

On Cinco de Mayo, May 5, 2010, three students wore American flag t-shirts to Live Oak High School. Live Oak, according to the Ninth Circuit, had a history of gang and racial violence. The students who wore the American flag t-shirts were threatened with physical violence. Rather than discipline the students who made the threats, the school decided to tell the American flag t-shirt-wearing students that they could either turn their shirts inside-out, or go home. Two of the students went home, and the students collectively sued the school district in federal district court, claiming that the school violated their First Amendment rights. Yesterday, the Ninth Circuit upheld the dismissal of the students’ claim, on the grounds that school officials “anticipated violence or substantial disruption of or material interference with school activities, and their response was tailored to the circumstances.”

In the landmark 1969 case of Tinker v. Des Moines Independent Community School District, the Supreme Court of the United States upheld the First Amendment right of students to peacefully protest the Vietnam War by wearing black armbands to school. In a famous passage, the Court opined that neither students nor teachers “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

However, the Tinker case did give wide latitude to K-12 school officials to regulate conduct that would “materially and substantially interfere” with school operations. In yesterday’s case, the Ninth Circuit held that under Supreme Court First Amendment law in the K-12 context, it was “reasonable for school officials to proceed as though the threat of a potentially violent disturbance was real,” and to order the removal of the American flag t-shirts as a result.

While this result might be legally correct, it is still troubling. The admission that school officials in California have no control over their violent students is not something to be proud of. Intuitively, Americans recoil against the so-called “heckler’s veto.” A heckler’s veto is where a peaceful exercise of speech rights is shut down because that speech might offend other people, and those other people are or might be violent. State sanction of the heckler’s veto has been repeatedly struck down by the Supreme Court outside of the school context. Just because cartoons of Mohammad might lead to riots does not allow a police department to arrest a publisher; just because a Nazi speaking in Central Park might cause others to riot does not allow New York City to deny his permit.

Yet in this case, a heckler’s veto occurred, and worked.  The peaceful wearing of American flag t-shirts was prohibited because school officials were unable to protect those wearing them.  The bad actions of anti-American-flag-t-shirt students effectively shut down the speech.  Lawful or not, Live Oak High School evidently has huge problems if it cannot protect its students or maintain school discipline.

Heritage

Liberal Prof.: Obama Has Brought Us To ‘Constitutional Tipping Point’

During testimony before the House Judiciary Committee Wednesday, liberal constitutional professor Jonathan Turley said that the growth of executive power is “accelerating” and that the growth of such power has brought us to a “constitutional tipping point”. “I believe we are now at a constitutional tipping point in our system,” Turley, who teaches law at George Washington University, said. “It’s a dangerous point for our system to be in, and I believe that your response has to begin before this president leaves office. No one in our system goes it alone.” Turley noted that while he agrees with the President on most of his policies, it still “does not alter the fact that I believe the means he is doing is wrong” and that the continued acceleration of executive power can be “a dangerous change in our system.” Turley flatly rejected the Obama administration’s reason for using more executive powers, which the President claims is a gridlocked Congress. “It is simply untrue that we’re living in very different or unprecedented times. The framers lived in these times,” Turley pointed out, noting that back then Congress used the Alien and Sedition Act to arrest opponents and Thomas Jefferson referred to his opponents as the “reign of witches.” “This is not a different political time, and it shouldn’t be used as an excuse for extra-constitutional action,” Turley warned.

Source

Go here for the Turley and others testimony.

Why not even Congress can sue the administration over unconstitutional executive actions

by Elizabeth Price Foley

Law Professor, Florida International University

    What happens if a president refuses to “take care that the laws be faithfully executed” as required by Article II of the Constitution? The Framers assumed that neither Congress nor the courts would tolerate such usurpation. In Federalist No. 48, James Madison said power was “so divided and balanced among several bodies … that no one could transcend their legal limits, without being effectually checked and restrained by the others.” Madison’s confidence assumes a wayward president could be reversed by the courts, reigned in by Congress or — as a last resort — impeached. But what if none of these checks and balances works?      Americans may soon find out.
    First, courts have limited ability to check a president’s failure to execute. The primary obstacle is “standing,” a doctrine that requires a plaintiff to have a concrete, personal injury in order to sue. Citizens can’t file generic lawsuits to enforce the Constitution; they must prove that the government has harmed them in a personal, palpable way.
    When a president delays or exempts people from a law — so-called benevolent suspensions — who has standing to sue him? Generally, no one. Benevolent suspensions of law don’t, by definition, create a sufficiently concrete injury for standing. That’s why, when President Obama delayed various provisions of Obamacare — the employer mandate, the annual out-of-pocket caps, the prohibition on the sale of “substandard” policies — his actions cannot be challenged in court.
    Similarly, when the president decided not to deport certain young people, not to prosecute most marijuana users, and rewrote the work requirement of welfare reform, courts cannot rule on these acts’ constitutionality because no individual has suffered the personal harm required for standing. Sure, the Constitution and its separation of powers are tremendously harmed. But the Supreme Court has made clear such generalized societal harms won’t suffice.
    Congress probably can’t sue the president, either. The Supreme Court has severely restricted so-called “congressional standing,” creating a presumption against allowing members of Congress to sue the president merely because he fails to faithfully execute its laws.
    If courts can’t be counted on to check the president, couldn’t Congress just enact another law reversing him, or even impeach him? In today’s hyper-partisan climate, the answer appears to be no.
Even if the House passed a bill undoing presidential action — for example, a bill that declared, “We don’t want individuals brought into this country illegally to be exempt from deportation, and we really, really mean it this time” — the Democrat-controlled Senate wouldn’t likely allow a vote on the measure. House Republicans passed a spending measure this fall to keep the government operating. But because the bill included a one-year delay in Obamacare — something the president threatened to veto — Senate Majority Leader Harry Reid refused to even bring the bill to the floor.
    Indeed, why should Congress even bother to legislate in the current environment? If it somehow miraculously passed something the president opposed, it would be promptly vetoed, and getting two-thirds of both Houses of Congress to overrule his veto — particularly in the Senate — is as likely as a snowstorm in Miami.
    Even when a congressional majority agrees with the president and passes a law the president signs, there’s little confidence he will faithfully execute the law as written. Why pass comprehensive immigration reform, for example, if it includes tight border security or deportation measures with which the president disagrees and may ignore? As Congressman Paul Ryan put it, ”Here’s the issue that all Republicans agree on: We don’t trust the president to enforce the law.” The president’s failure to faithfully execute has made Congress grind to a halt and with it, democracy itself.
    If the president’s actions are so bad, why not just impeach him? Presidential impeachment has occurred only three times. Reconstruction President Andrew Johnson narrowly escaped conviction after the House impeached him for firing the Secretary of War in contravention of the Tenure of Office Act. Richard Nixon resigned after being impeached for obstructing an investigation into the Watergate break-in, and using the IRS and other executive agencies to target political opponents. Bill Clinton was impeached for abusing the judicial process and executive power to cover up his extramarital relationships. The Democrat-controlled Senate acquitted him.
    The one thing all three attempts at presidential impeachment share is this: An assertion that the president was failing to faithfully execute the laws. Each situation involved — to a greater or lesser degree — a president intent on ignoring or manipulating the law for his own political or personal advantage.
Has President Obama committed similarly serious acts? Some Americans believe his unilateral changes to various laws and use of the IRS to target tea party and conservative groups are just as serious as Clinton’s, Nixon’s, or Johnson’s transgressions. But even assuming this is true and the House passed articles of impeachment, would two-thirds of Harry Reid’s Senate convict the first African-American president? The question seems to answer itself.
    Sadly, in the Washington of 2014, partisanship trumps constitutional principles. While President Obama’s pattern of failing to execute laws is serious, the ability of courts and Congress to stop him is shockingly limited. The Framers relied on the other branches of government to jealously guard Congress’s prerogative to make laws and the president’s duty to faithfully execute those laws. Unfortunately, the Framers may have been wrong.

Originally posted at the Daily Caller.

Senator Lee Questions Eric Holder on Executive Orders

For an interesting discussion on the legal authority of the President to issue Executive Orders, watch this exchange between Senator Mike Lee and AG Eric Holder.  The part on EO's starts at 3 minutes into the video.

http://youtu.be/Tvs_BssD5eU

Jessie Vetter’s Olympic goalie mask has U.S. Constitution removed by IOC

U.S. women’s hockey goalie Jessie Vetter had an awesome concept for her 2014 Sochi Olympics mask: Using actual 23 karat gold in the paint – hey, she’s going for gold, right? – and adorning it was inspiring American iconography. 

One of the images was of the Constitution’s famous opening line, “We The People” and some text from that historic document. But when Vetter takes the ice for Team USA next month, it won’t be found on her mask – the International Olympic Committee ruled it had to be deleted.  

From IN GOAL Magazine and mask artist Ron Slater:

“[It] had to be removed because no writings of any kind to promote the country is allowed,” Slater explained in an email to InGoal. “A sort of ‘our country is better than your country” kind of thing that the IOC frowns upon. Her name had to come off because they see it as self promotion. They wanted everything to be team based. … Our original idea was ‘land of the free, home of the brave,’ and that would have had to have been removed as well.”

The IOC’s Rule 51 bans any sort of advertising, demonstration, and/or propaganda on an athlete's equipment at the Olympics. American men’s hockey goalies were hit with the regulation in the 2010 Vancouver Games, as Jonathan Quick’s “support our troops” slogan and Ryan Miller’s “Matt Man,” a tribute to his late cousin who died of leukemia, were stripped from the mask designs.

Vetter and Slater were able to keep a USA logo, the Statue of Liberty and a bald eagle on the mask, as apparently none of that is propaganda. Here's the new back to the mask.

And the side, which was maintained:

 

Look, the Olympics have any number of silly restrictions on freedom of expression, and the idea that the U.S. Constitution is seen as “propaganda” rather than a procedural document establishing societal and governmental rules is asinine.

It’s not like the preamble reads, “We the People of the United States, in Order to form a more perfect Union and be soooo much better than you unwashed heathens across the oceans …”

But our real question here: If Jessie Vetter can’t have a few words of the Constitution on her mask, why can Team Slovakia have their ENTIRE NATIONAL ANTHEM sewn into their hockey sweaters?

AP

The Most Important Constitutional Law Case You Probably Haven’t Heard Of: How an act of vengeance turned into an assault on federalism

by John Malcolm

    “Heaven has no rage like love to hatred turned, Nor hell a fury like a woman scorned.” That observation, first penned by English playwright and poet William Congreve, certainly applies to Carol Anne Bond.  Her amateurish attempts at revenge have resulted in two trips to the Supreme Court of the United States and will likely result in one of the most consequential constitutional cases in the next, or any, term.  The justices must decide whether our Congress is one of limited powers or whether the Treaty Power grants Congress potentially unlimited power to regulate anything, anywhere, at any time.
    In 2006, Carol Anne Bond discovered that her best friend, Myrlinda Haynes, had an affair with her husband and was pregnant with his child.  Vowing revenge, Bond, who was a technical assistant working for a large chemical manufacturer, spread chemicals (one purchased online, the other stolen from her employer) on Haynes’ car door, mailbox, and apartment doorknob on 25 occasions over the course of three months.  Although Haynes was able to detect the presence of these chemicals because of their distinctive color, on one occasion she forgot to clean the door knob and suffered a minor chemical burn on her thumb.  Bond was apprehended after federal postal inspectors placed surveil­lance cameras around Haynes’s home and identified her as the perpetrator.  Rather than leave this salacious, but garden variety crime to local authorities, federal prosecutors pursued a rather novel approach: charging Bond with violating the Chemical Weapons Implementation Act of 1998 (CWIA), a statute designed to implement the United States’ treaty obligations under the 1993 Chemical Weapons Convention.
    The Chemical Weapons Convention, ratified by the Senate in 1997, is an international arms-control agreement that was intended to address the proliferation of weapons of mass destruction by outlawing the production, stockpiling, and use of chemical weapons.  Because the treaty was not self-executing, Congress passed the CWIA, 18 U.S.C. §§ 229 et seq., making it unlawful for a person “knowingly” to “develop, produce, otherwise acquire, transfer directly or indirectly, receive, stockpile, retain, own, possess, or use, or threaten to use, any chemical weapon.”
    Bond’s conduct clearly violated state law but would not appear to implicate any core concern of the treaty.  She moved to dismiss the charges arguing that, as applied to her, section 229 exceeded Congress’s enumerated powers and invaded the powers traditionally reserved to the States by the Tenth Amendment (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”).  Bond also challenged the statute as exceeding Congress’s power under the Commerce Clause, but the government responded that section 229 was not passed pursuant to any Article I, Section 8 enumerated power of Congress, but rather was passed pursuant to the Treaty Power and the Necessary and Proper Clause.
    The trial court denied Bond’s motion, and she pled guilty, reserving the right to appeal.  On appeal, the U.S. Court of Appeals for the Third Circuit ruled that Bond lacked standing to challenge the CWIA, but in June 2011, the Supreme Court unanimously reversed in an opinion by Justice Anthony Kennedy (Bond I), holding that a criminal defendant indicted under a federal statute has standing to challenge that statute on the grounds that it interferes with States’ rights under the Tenth Amendment.
    On remand, the Third Circuit affirmed Bond’s conviction, expressing reluctance but believing itself “bound to take at face value” a single sentence in the 1920 Supreme Court case Missouri v. Holland, in which Justice Oliver Wendell Holmes wrote:

“If [a] treaty is valid there can be no dispute about the validity of the statute [implementing that treaty] under Article 1, Section 8, as a necessary and proper means to execute the powers of the Government.”

    The Third Circuit reluctantly, but broadly, construed Holland as allowing the Senate and the President to expand the federal government’s constitutional authority by negotiating a valid treaty requiring the passage of implementing legislation that would otherwise exceed Congress’s enumerated powers.
In Bond’s second trip to the Supreme Court, the question that the justices will address is whether the Treaty Power expands Congress’s power beyond its enumerated powers set forth in Article I, section 8...
    Most international treaties are premised on the assumption that all nations have the same structure and can therefore implement treaties in the same way.  However, unlike most other countries, we have a federal system in which many of the subjects covered by treaties are, or at least heretofore have been, left to state and local governments and to the people themselves to address as they see fit.  Indeed, unlike other countries, the Supreme Court made clear in cases such as Printz v. United States, that our Constitution limits the authority of the federal government to insist that state officials act as its agents to carry out federal policy.  If the legislative power can be increased without limit as to scope or subject matter by treaty, this would represent a significant disruption of the delicate balance of our federal system and would undermine the fundamental principle that Congress’s powers are limited to those enumerated in Article I, Section 8.

READ ENTIRE COLUMN

Oklahoma Rep. seeks constitutional amendment to protect agriculture industry

A House lawmaker intends to file a bill that would protect the rights of Oklahoma farmers and ranchers to engage in and utilize modern and traditional agriculture practices. State Rep. Scott Biggs’ legislation would place a state question on the November 2014 ballot to amend the constitution to protect “the right of farmers and ranchers to engage in modern farming and ranching practices” and would prevent any state law or regulation that would “[abridge] the right of farmers and ranchers to employ agricultural technology and modern livestock production and ranching practices.” Biggs, a member of the House Agriculture and Wildlife Committee who grew up on a farm in Indiana and studied agriculture economics at Oklahoma State University, said the amendment is necessary to protect the industry from outside special interest and activist groups. “Whether it is one of these liberal eco-terrorist groups that complain about the way we use our land or the animal-rights groups that claim we mistreat our livestock, our rural way of life is under attack,” said Biggs, R-Chickasha. “Farmers and ranchers are environmentalists by necessity. We have sweat and blood invested in our land, and we care for it deeply. “We depend on the land to provide for our families and we work hard to preserve it for our kids and grandkids. By imbedding this natural right into our state constitution, we can protect our land and our way of life for generations to come.” In November, voters in North Dakota overwhelmingly approved a similar measure that amended that state’s constitution. link