Tag: the constitution

The Deep State Wins Again: All the Ways ‘We the People’ Keep Losing Our Freedoms

Almost one month into the Trump presidency, and the Constitution and the entire section on the various branches of government and how they work together are still missing from the White House website.

This is no small thing.

This omission, deliberate or inadvertent, speaks volumes about the priorities of this current administration. It also explains a lot about the legal mindset that is driving the Trump train, which continues to push forward with a theory of unitary executive power.

You know what is not driving the Trump government? Any sense that it is bound by the rule of law, i.e, the US Constitution. As Trump recently declared, “He who saves his Country does not violate any Law.”

Then again, Trump has never made any pretense of his aspirations to rule as a strongman. As the Washington Post reports:

In 2017, he claimed “an absolute right to do what I want with the Justice Department.” In 2019, he claimed that Article II of the Constitution gave him “the right to do whatever I want as president.” In 2020, he said he could override state and local public health orders related to the coronavirus pandemic by saying: “When somebody is the president of the United States, the authority is total. And that’s the way it’s got to be. It’s total.” In 2022, he said that purported voter fraud in the 2020 election “allows for the termination of all rules, regulations, and articles, even those found in the Constitution.” In 2023, he mused that he would be a dictator, but only on Day One of his presidency. And a year ago, he argued that presidents should have total immunity from criminal prosecution, even for “EVENTS THAT ‘CROSS THE LINE.’ ”

Listen, when someone shows you who they are, believe them.

Then again, maybe the majority of Americans just don’t care about the Constitution anymore.

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Tariffs and the Constitution

The taxing power in the federal government resides in the Congress. The Constitution states that Congress has the power to “lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts” of the federal government. Indeed, in order to emphasize the location of this power in the Congress, the Constitution also requires that all legislation “for raising Revenue shall originate in the House of Representatives.”

So, if only Congress can impose taxes, how can the president impose tariffs?

Here is the backstory.

However one characterizes a tariff, since it consists of the compulsory payment of money to the federal government, it is a form of taxation. It is – to use James Madison’s language – a duty or an impost. The federal government survived on duties and imposts – some of which were imposed on the states – from the time of its creation in 1789 until the War Between the States. Even under Abraham Lincoln, when unconstitutional income taxes were imposed, they were done by legislation, not executive fiat.

Then came Franklin D. Roosevelt and a congressional ban on the exportation of armaments to be implemented at the president’s discretion. This sounds fairly benign, yet it fomented the supercharged presidency that we have today. When Congress banned the sale of American arms to foreign countries, it did so by giving FDR the power to decide what to ban and upon which countries to impose the ban. Then it did the unthinkable: It made a violation of the president’s fiats a federal crime.

I call this unthinkable because under the Constitution’s Due Process Clause jurisprudence, at the federal level only Congress can make behavior criminal.

In defiance of FDR’s ban, Curtiss-Wright Export Corporation, an American manufacturer of military hardware, sold armaments to the government of Bolivia, and the Department of Justice persuaded a federal grand jury to indict the corporation. Then a federal judge dismissed the indictment on the constitutional basis that only Congress can decide what behavior is criminal and it cannot give that power to the president.

The trial court merely enforced the well-known and universally accepted non-delegation doctrine. It stands for the principle that the three branches of government cannot delegate away any of their core powers. Among Congress’ core powers is writing laws and deciding what behavior is criminal. By giving away this power to the president, the trial court ruled, Congress violated the non-delegation principle, and thus FDR’s determination that arms sales to Bolivia was criminal was itself a nullity.

The government appealed directly to the Supreme Court. Had the court simply reversed the trial judge and sent the case back to him for trial, we might never have heard of this case or the policy it established.

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Killing the Constitution at Guantánamo

When British kings wanted to dispose of troublesome enemies – real or imagined – they often had them or their colleagues arrested on pretextual charges and then brutally tortured until confessions were extracted. The confessions were then read aloud during so-called trials; and, of course, the defendant was convicted of whatever crime was the subject of the confession.

All this was done in order to satisfy the political, and in many cases the personal, desires of the monarch by creating the impression of due process.

Often the torture occurred in remote places, so remote that there was no government there, and the king and his counselors could argue that the protections of the British traditions of fair play – the British do not have a written Constitution, but rather a set of traditions – was not violated because the torture occurred in a place where the traditions did not apply.

When one of the victims of this practice was an official who had previously engaged in perpetrating it, the House of Commons, many of whose members feared becoming victims of the monarch’s desires, adopted the principle of habeas corpus. That ancient right compelled the jailer of any person anywhere to bring the jailed person before a neutral magistrate and justify the confinement.

Due process has numerous definitions and aspects, but for constitutional purposes it basically means that all charged persons are presumed innocent and entitled to a written notice of the charges, a speedy and fair hearing before a neutral fact finder, a right to appeal; and the entire process imbued with fairness and a profound recognition of personal innocence until guilt is proven beyond a reasonable doubt. Due process also explicitly prohibits the use of torture.

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Witches, Covid, and Our Dictatorial Democracy

On December 1, President Joe Biden announced that he was pardoning his son Hunter for all the crimes he committed from January 1, 2014 through December 1, 2024. Biden’s sweeping pardon of all of his son’s abuses epitomizes how presidents and their families are now above the law. It also illustrates how the “King James Test for American Democracy” could become the death of the Constitution.

The American Revolution was heavily influenced by a political backlash that began across the ocean in the early 1600s. King James I claimed a “divine right” to unlimited power in England, sparking fierce clashes with Parliament. Since the 9/11 attacks, some of the same moral and legal principles have been advanced in this nation, but few people recognize the historical roots.

Before he became king of England in 1604, James was king of Scotland. He cemented his claims to absolute power thereby launching witch panics and burning hundreds of Scottish women alive to sanctify his power. Harsh methods were not a problem because James insisted that God would never allow an innocent person to be accused of witchcraft.

“While James’s assertion of his [Scottish] royal authority is evident in his highly unorthodox act of taking control of the pre-trial examinations, it is his absolutism which is most apparent in his advocating the use of torture to force confessions during the investigations,” according to the University of Texas’s Allegra Geller, author of Daemonologie and Divine Right: The Politics of Witchcraft in Late Sixteenth-Century Scotland. Torture produced “confessions” that spurred further panic and the destruction of far more victims. England did not have similar witch panics because officials were almost entirely prevented from using torture to generate false confessions. James justified the illicit torture, “asserting his belief that as an anointed king, he was above the law.”

After Queen Elizabeth died and James became king, he vowed that he had no obligation to respect the rights of the English people: “A good king will frame his actions according to the law, yet he is not bound thereto but of his own goodwill.” And “law” was whatever James decreed. Nor did he flatter the men elected to the House of Commons: “In the Parliament (which is nothing else but the head court of the king and his vassals) the laws are but craved by his subjects and only made by him at their rogation.”

James proclaimed that God intended for the English to live at his mercy: “It is certain that patience, earnest prayers to God, and amendment of their lives are the only lawful means to move God to relieve them of their heavy curse” of oppression. And there was no way for Parliament to subpoena God to confirm his blanket endorsement of King James.

James reminded his subjects that “even by God himself [kings] are called Gods.” Seventeenth-century Englishmen recognized the grave peril in the king’s words. A 1621 Parliament report eloquently warned: “If [the king] founds his authority on arbitrary and dangerous principles, it is requisite to watch him with the same care, and to oppose him with the same vigor, as if he indulged himself in all the excesses of cruelty and tyranny.” Historian Thomas Macaulay observed in 1831, “The policy of wise tyrants has always been to cover their violent acts with popular forms. James was always obtruding his despotic theories on his subjects without the slightest necessity. His foolish talk exasperated them infinitely more than forced loans would have done.”

Macaulay scoffed that James was “in his own opinion, the greatest master of kingcraft that ever lived, but who was, in truth, one of those kings whom God seems to send for the express purpose of hastening revolutions.” After James’s son, Charles I, relied on the same dogmas and ravaged much of the nation, he was beheaded. Charles I’s son ascended to the English throne in 1660, but his abuses spurred the Glorious Revolution of 1688 and sweeping reforms that sought to forever curb the power of monarchs.

A century and a half after King James denigrated Parliament, a similar declaration of absolute power spurred the American Revolution. The Stamp Act of 1765 compelled Americans to purchase British stamps for all legal papers, newspapers, cards, advertisements, and even dice. After violent protests erupted, Parliament rescinded the Stamp Act but passed the Declaratory Act, which decreed that Parliament “had, hath, and of right ought to have, full power and authority to make laws and statutes of sufficient force and validity to bind the colonies and people of America, subjects of the crown of Great Britain, in all cases whatsoever.” The Declaratory Act canonized Parliament’s right to use and abuse Americans as it pleased.

The Declaratory Act ignited an intellectual powder keg among colonists determined not to live under the heel of either monarchs or parliaments. Thomas Paine wrote in 1776 that “in America, the law is king. For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other.” The Founding Fathers, having endured oppression, sought to build a “government of laws, not of men.” That meant that “government in all its actions is bound by rules fixed and announced beforehand — rules which make it possible to foresee with fair certainty how the authority will use its coercive powers,” as Nobel Laureate Friedrich Hayek noted in 1944.

For generations, American politicians spoke reverently of the Constitution as America’s highest law. But in recent years, the Constitution has fallen into disrepute. The rule of law now means little more than the enforcement of the secret memos of the commander-in-chief.

We now have the “King James Test for American Democracy.” As long as the president does not formally proclaim himself a tyrant, we are obliged to pretend he is obeying the Constitution. Government is not lawless regardless of how many laws it violates — unless and until the president formally announces he is above the law.

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Dismantling the Bill of Rights Is No Solution

After the recent school shooting in Madison, Wisconsin, the usual suspects immediately called for more “gun control.”  Joe Biden’s White House released a statement demanding these additional infringements upon Americans’ Second Amendment rights: “Universal background checks.  A national red flag law.  A ban on assault weapons and high-capacity magazines.”  (The president conveniently ignored reports that the teenaged attacker used a 9mm pistol.)  Democrat Congressman Mark Pocan insists that gun manufacturers be held responsible for the school shooter’s violence.  Disgraced former FBI deputy director Andrew McCabe (who was rewarded for leaking classified information and lying to federal agents) wants “legislation that changes the context of gun ownership” in the United States and new requirements that “eliminate the ability” of Americans “to purchase guns without a background check.”

So the departing president wants executive authority to determine which Americans enjoy Second Amendment protections.  The congressman from Wisconsin wants to hold manufacturers criminally and civilly liable for the misdeeds of others.  And the former acting director of the FBI wants to fundamentally transform the “context of gun ownership.”  What part of “shall not be infringed” do they not understand?  

If we were still a country that took loyalty oaths seriously, it would be worth noting that all three of these men raised their hands and solemnly swore to protect and defend the Bill of Rights.  As retired FBI supervisory special agent Arthur P. Meister once wrote, “all public office oaths require true faith and allegiance to principles of lawful authority derived from the Constitution.”  An official’s “deference” to the Bill of Rights “must trump all other promises and commitments” precisely because “the public elects, empowers, and allows a select few to govern many.”  The U.S. government cannot expect public trust if its officers regularly violate their oaths to the U.S. Constitution.  Accordingly, if faith in the U.S. government is historically weak, then government officials should consider their disregard for the Bill of Rights the proximate cause.

Unconstitutional attempts to confiscate Americans’ firearms have become such a regular reaction to mass shootings that lawmakers act as if erasing the Second Amendment were no big deal.  “Oh, what’s the harm?” they dismissively suggest on cable television.  “It’s just an annoying little right.  It was written, like, three centuries ago…by white supremacists!  And if it saves even one child, it’s worth it!”  

It does not take much mental acuity to recognize how dangerous the “Let’s do it for the children” exception to the Constitution is in practice.  To save the children from “misinformation,” we must embrace censorship!  To save the children from “hate,” we must snoop on their private text messages and their parents’ bank accounts!  To save the children from inequality and State-sponsored religion, we must discriminate by race and ban school prayer!  To save the children from “global warming,” we must redistribute wealth and ration life-saving energies!  “Doing it for the children” makes it super-easy to dispense with the First, Second, Fourth, Fifth, and Fourteenth Amendments!  

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Medieval ‘Social Justice’ With a Contemporary Twist

Can one impeach a witch, a sorcerer or a dead person? In the Middle Ages, such “impeachments” were a fact of the “social justice” mindset of the time. When one considers “the level to which alchemy and pagan superstition (climate change, DEI, etc.) have become predominant” in today’s cultural and political milieu, writes panoptic scholar Robert Orr (personal communication), it might be appropriate to revive the tradition, this time with just cause. There are a myriad of candidates on the political stage ripe for impeachment and arraignment, including those at the very top of the hierarchy. As Orr puts it, “maybe impeaching the corpse fronting for the Demsheviks isn’t that strange an idea.” 

One thinks of the famous, or infamous, Cadaver Synod held in 897 in which the corpse of Pope Formosus, who had been dead for over half a year, was exhumed from its sarcophagus and brought to the Basilica of St John Lateran in Rome to be put on trial. According to Joseph Dispenza’s fascinating The Death and Trial of Pope Formosus, the cadaver was clad in papal vestments, seated on a throne,  provided with a church officer to speak on his behalf, and forced to answer the charges—as best he could—of perjury, defilement of church doctrine, and illegal accession to the pontifical throne. This latter was a crucial accusation, the assumption by apostolic fraud of a position to which he was not entitled. Formosus was declared guilty on all counts, all his judgments, appointments and decretals annulled, the papal vestments stripped from the body, and the corpse flung into the Tiber. 

Of course, the accused in the current hypothetical case is in a condition of terminal decrepitude and is regarded as “dead” only metaphorically. He may be depicted as evil, malevolent, nasty, corrupt, a practitioner of the black arts and a master of necromantic ritual, a champion of the pishogue, and thus morally “dead.”  In any event, many believe he should be lashed to the Constitutional stake. 

Article IV, Section 4 of the U.S. Constitution states that “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion,” a phrase known as the “Guarantee Clause.” As Orr explains, the meaning is clear: the federal government must intervene if a state is attacked by another country. The federal government is legally and constitutionally bound to keep invaders out, not allow—and certainly not invite—them in. Ten to twenty million illegal migrants overwhelming a nation’s borders is clearly an invasion, a cataclysm such as was foretold in Jean Raspail’s harrowing 1987 The Camp of the Saints, which should have alerted us to what was coming. Those who have permitted such an onslaught to happen have surely committed an impeachable offense—no less than General Mark Milley confabulating against Trump with his Chinese counterpart General Li Zuocheng, according to Bob Woodward and Robert Costa’s blockbuster Peril. If true, such an act would constitute treason and its perpetrator would have to be indicted.

Orr also points to the Third Amendment, which states: “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.” The settling of vast numbers of migrants, which Trump has called a “crisis,” a “war,” and an “invasion,” in places like Springfield, Ohio, critically burdening and often terrifying the local population, may qualify as impeachable as well. These interlopers may be viewed as “soldiers” in terms of their gradually spreading and severely destabilizing effect on the nation, precisely as Jean Raspail recognized. (One must be skeptical of the usual run of suborned media “fact-checkers” who deny or downplay the urgency of the situation.) One thinks, too, of the immense surge of illegals crossing the Canadian border into small towns like Swanton, Vermont and Champlain, New York—an invasion in everything but name. Orr compellingly argues that If Americans took their Constitution seriously, several recent presidents—Bush fils, Obama and Biden—would all have been impeached and cashiered.

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War and the Constitution

Can the president fight any war he wishes? Can Congress fund any war it chooses? Are there constitutional and legal requirements that must first be met before war is waged?

These questions should be addressed in a national debate over the U.S. military involvement in Ukraine and Israel. Sadly, there has been no debate. The media are mouthing what the CIA is telling them, Congress is in lock-step, and only a few websites and podcasts — my own, “Judging Freedom” on YouTube, among them — are challenging the government’s reckless, immoral, illegal and unconstitutional wars.

The Supreme Court has ruled that all power in the federal government comes from the Constitution and from no other source. Congress, however, has managed to extend its reach beyond the confines of the Constitution domestically by spending money in areas that it cannot regulate and purchasing compliance from the states by bribing them; and in foreign policy by paying for wars it cannot legally declare.

Congress cannot legally declare war on Russia or Iran, since there is no American militarily grounded reason for doing so. Russia and Iran pose no credible threats to American national security. Moreover, the U.S. has no treaties with Ukraine or Israel that trigger an American military defense. But Congress spends money on those wars nevertheless.

Under the Constitution, only Congress can declare war on a nation or group. The last time it did so was to initiate American involvement in World War II. But Congress has given away limited authority to presidents and permitted them to fight undeclared wars, such as the War Powers Resolution of 1973 and President George W. Bush’s disastrous and criminal invasions of Afghanistan and Iraq.

Last week, the Biden administration announced that it was sending around 100 troops to Israel to man the Terminal High Altitude Area Defense system, or THAAD, the U.S. has sent there. Then, the administration announced that it was sending a second THAAD unit and another 100 troops. The THAADs will presumably be used in Israel’s defense against Iran.

Congress has not only not declared war on Iran; it has not authorized the use of American military forces against it. Yet, it has given President Joe Biden a blank check and authorized him to spend it on military equipment for Israel however he sees fit, without a lawful or even credible American military objective.

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The Philosophy that Framed the Constitution

Today [September 17] is Constitution Day in America. The federal holiday (technically Constitution Day and Citizenship Day) commemorates the signing of the US Constitution on September 17, 1787. The 2004 law that established it requires all taxpayer-funded educational institutions to provide lessons on the Constitution on that day.

However, learning cannot be legislated into existence. Two decades later, the Constitution is as misunderstood by the American public as ever. The education establishment bears a big part of the blame for this plight. But another culprit is mainstream media.

Political Football or Romantic Relic?

Journalists, pundits, and politicians treat the Constitution as little more than a political football. In newspapers, on news shows, and online, the overriding concern is whether and how the document can be leveraged to advance the policy agenda of one political faction or another.

Constitutional scholars and educators are more often “above the fray.” But their treatment of the Constitution just breeds public misunderstanding in a different way. In classrooms, textbooks, museum exhibits, documentaries, and mass-market history books, discussions of the meaning of the Constitution are usually either vague or wrong. The “Constitution education complex” reveres the document as a national treasure and commemorates its framing, signing, and ratification as the triumphant conclusion of the Revolution and the Founding: America’s epic origin story. But it glosses over so much that even today’s Constitution-loving patriots perceive the piece of parchment as little more than a romantic relic.

What both the education establishment and mainstream media almost always omit from their discussions of the Constitution is a clear and correct explanation of its philosophy. It is necessary to understand the Constitution as a work of philosophy in order to correctly interpret what it says as the law of the land and fully appreciate why it is a national treasure. Without that grounding, journalistic discourse is doomed to devolve into “political football” bickering, and scholarly explorations are bound to meander into “romantic relic” territory.

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Overthrowing The Constitution: All Sides Are Waging War On Our Freedoms

“We the people are the rightful masters of both Congress and the courts, not to overthrow the Constitution but to overthrow the men who pervert the Constitution.” — Abraham Lincoln

It is both apt and ironic that the anniversary of 9/11, which paved the way for the government to overthrow the Constitution, occurs the week before the anniversary of the day the U.S. Constitution was adopted on September 17, 1787.

All sides are still waging war on our constitutional freedoms, and “we the people” remain the biggest losers.

This year’s presidential election is no exception.

As Bruce Fein, the former associate deputy attorney general under President Ronald Reagan, warns in a recent article in the Baltimore Sun, “In November, the American people will have a choice between Harris-Walz and Trump-Vance. But they will not have a choice between an Empire and a Republic.”

In other words, the candidates on this year’s ballot do not represent a substantive choice between freedom and tyranny so much as they constitute a cosmetic choice: the packaging may vary widely, but the contents remain the same.

No matter who wins, the bureaucratic minions of the Security/Military Industrial Complex and its Police State/Deep State partners will retain their stranglehold on power.

Neither Donald Trump nor Kamala Harris have the greatest of track records when it comes to actually respecting the rights enshrined in the Constitution, despite the rhetoric being trotted out by both sides lately regarding their so-called devotion to the rule of law.

Indeed, Trump has repeatedly called for parts of the Constitution to be terminated, while both Harris and Trump seem to view the First Amendment’s assurance of the right to free speech, political expression and protest as dangerous when used to challenge the government’s power.

This flies in the face of everything America’s founders fought to safeguard.

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Timely lessons about tyranny from the father of the Constitution

“Take alarm at the first experiment on our liberties.” — James Madison

James Madison, often referred to as the “Father of the Constitution,” once predicted that the Bill of Rights would become mere “parchment barrier,” words on paper ignored by successive generations of Americans.

How right he was.

The rights of the people reflected in those 10 amendments encapsulated much of Mr. Madison’s views about government, the corrupting influence of power, and the need for safeguards against tyranny.

Mr. Madison’s writings speak volumes to the present constitutional crisis in the country.

Read them and weep.

“The accumulation of all powers, Legislative, Executive, and Judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”

“A standing military force, with an overgrown Executive will not long be safe companions to liberty. The means of defense against foreign danger have been always the instruments of tyranny at home.”

“Wherever the real power in a Government lies, there is the danger of oppression.” 

“Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives.”

“I believe there are more instances of the abridgement of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations.”

In the years since the founders laid their lives on the line to pursue the dream of individual freedom and self-government, big government has grown bigger and the rights of the citizenry have grown smaller.

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