Hillary vs Trump: Yes, There Are Differences

Hillary Clinton is a crook, a bully, a toad.

So, as you ramp up talking about how horrible it would be to have Donald Trump as our next president, let's talk about what the Hillary presidency looks like. We can predict the nature of that presidency based on her track record.

What has Hillary done in life? What is the basis from which a track record can be devised?

Her professional resume is, essentially, the following:

1. Staff, Watergate Committee
2. First Lady of Arkansas
3. Rose Law Firm partner
4. First Lady of the United States
5. United States Senator
6. Secretary of State

Hillary Clinton, Capitol Hill Staffer: Entering the Ethics Free Zone

The story of her service on the Watergate Committee is well known by now. She was a young attorney. She was assigned a research and writing project. Her performance suited the needs of the Committee chair, but would have denied an accused president the right to representation by counsel. The problem with the conclusion is that it was contrary to prior practice in Congress. To overcome that problem, typically, one would master legal arguments justifying a contrary approach and use the power of persuasion. Or, if easier, one might confiscate relevant records and deny their existence. Hillary preferred the latter, easy course. Fox News explained:

When the investigation was over, Zeifman fired Hillary from the committee staff and refused to give her a letter of recommendation – one of only three people who earned that dubious distinction in Zeifman’s 17-year career. 

Why? 

“Because she was a liar,” Zeifman said in an interview last week. “She was an unethical, dishonest lawyer. She conspired to violate the Constitution, the rules of the House, the rules of the committee and the rules of confidentiality.”

Hillary Clinton, First Lady of Arkansas, Land Speculator, Attorney

Regarding Hillary’s time with the Rose Law Firm, the key concerns have to do with using her offices as an attorney there to cover up crooked dealings in land speculation with a now defunct Savings and Loan called Madison Guaranty. You can follow the time line and come to your own conclusions at this site. The bottom line, from my reading of these matters, is that Hillary, land speculator, used Hillary, attorney, to cover up serious deficiencies at Madison Guaranty S & L, and, in fact, hid the billing records of the Rose Law Firm when the Clintons moved to the White House, so that her role could not be substantiated.

During this time period, Bill has been a serial womanizer, taking advantage of his positions as Arkansas Attorney General and Arkansas Governor to bed a variety of women, amongst whom the now most prominent are Gennifer Flowers and Paula Jones. These women, and others who were his special perks discovered in Hillary a rage of unforgivability, directed at them, rather than at her own husband. True, he was in a position of power and had the advantages of their willingness, but in the politics of power, Hillary’s bullying of Bill’s women fails to account for Bill’s responsibility. It also belies any sense that Hillary could effectively command a definitive offense for the fairer sex in the so-called war on women. Women have, because of Bill Clinton’s proclivities, been too often in Hillary’s angry cross-hairs.

Hillary Clinton, First Lady of the Nation, Poor Procurer of Personnel, Wager of a War on (Bill’s) of Women, Perpetual Plug of Prosecutorial Probes, Plunderer of Presidential Pickings

Hillary Clinton spearheaded the Clinton administration effort at health care reform. At the time, during the first two years of his administration, Clinton’s party owned both the House and the Senate during this period. Despite her “catbird” seat of leading a Democratic Party favored proposal – health care reform – under a Democratic administration with a Democratic Congress, Hillary could not obtain any legislative reform of health care (thank goodness). To call her failure on health care reform catastrophic is a fair summation.

Bill entrusted Hillary with the task of selecting an appropriate female nominee for Attorney General. Her record there offers nothing to recommend her as the Chief Executive of America’s single largest corporate employer, the federal government.

For Attorney General, Hillary proposed

• First, Zoe Baird, who was forced to withdraw her name from consideration when her employment of an illegal alien as a nanny, and her failure to pay income taxes on her nanny’s employment income came to light.
• Second, Kimba Wood, who was also forced to withdraw when a similar, but less disturbing nanny issue arose. Like Baird, Wood employed an illegal alien as a nanny. Wood had the good sense to comply with federal tax laws and paid the relevant taxes. The disturbing similarities took the fire out of the administration’s stomach to fight for Wood’s nomination.
• Third, and finally, Janet “Kill ‘Em to Save ‘Em” Reno. As Attorney General, Reno made the decision to gas and burn David Koresh and the Branch Davidian religious sect in Waco, Texas, resulting in dozens of deaths of women and children. Even Bill Clinton later described the selection of Reno as “my worst mistake.”

Next, Bill entrusted Hillary with the task of finding a head for the United States Civil Rights Commission. Hillary chose Lani Guanier. Guanier immediately catalyzed opposition because of her legal theoretical writings. Guanier wrote on race-conscious redestricting. Though disputed by some, her writings gave rise to the impression that she thought only blacks could validly represent blacks in Congress. Her troubles were exacerbated by her reputation of supporting race-conscious quotas, so-called benign discrimination. Clinton withdrew Guanier's nomination from consideration after her political views – radical to say the least – came to light.

Hillary intervened in the operations of the White House Travel Office. She did so to benefit a family friend by insuring that he would be able to obtain unrestricted travel contracts. When the Travel Office staff balked, Hillary had them fired. Although a subsequent investigation did result in the prosecution of a single staffer – for commingling personal and office funds – that prosecution resulted in a jury acquittal.

Next, as she fully explored the inanity forever preserved in her paranoid notions of a “vast right wing conspiracy,” she placed a family friend as Director of White House Security. That friend, Craig Livingston then proceeded to use his position, illegally, to access and peruse the FBI investigatory files of some 900 Clinton “enemies.” (Apparently the only thing Hillary learned from investigating Nixon was how to get information on your political enemies.)

As the Clinton administration blossomed into the waiting room of Bill’s bordello of booty, Hillary “managed” that scandal too. Rather than settling quickly with Bill’s sexual harassment victim, Paula Jones, Hillary pushed him to fight the charges in her lawsuit. By the time that (legal) affair ended, an American president had lied under oath, had wagged his finger in the face of a nation while lying to it, and had become only the second US president to be impeached by the House of Representatives.

In a departing cascade of criminality, Hillary and Bill looted about two hundred thousand dollars in china, silverware, and art objects from the White House. Of that total, the Clintons returned, by valuations, about half, and paid to keep the remainder.

Hillary Clinton: Leftist Senator

After time away from Washington, Hillary’s next career move was to seek and to win a seat in the Senate as the junior senator from the State of New York. In a March 31, 2015, posting on The Daily Kos, an analysis of her record as Senator puts her to the LEFT of John Kerry, Joe Biden, Barbara Mikulski, Dick Durbin, Harry Reid, and Claire MacCaskill. To find a more leftist progressive in the Senate one needed to seek out the likes of Bernie Sanders and Barbara Boxer. Even Illinois junior senator came out more moderate in the Daily Kos rankings than did Senator Clinton.

If you suspect Daily Kos and its analysis, similar analysis of Hillary Clinton’s service as a senator, though not precisely the same, is found on the GovTrack website.

Madame Secretary, The Widely Traveled Accomplisher of Naught

Perhaps no picture better symbolizes the “successes” of Hillary Clinton’s initiatives as Secretary of State under Barack Obama than the famous foible of the “reset button.” You know the story, or can read about it. Here’s one link covering the goof.

Oddly, Madame Secretary Clinton could not, herself, quite put her finger on the signature accomplishments or even accomplishment of her tenure at the State Department. Both in a one on one interview with ABC News news reader Diane Sawyer, and in an earlier speech to a women’s forum in Manhattan, Madame Secretary Clinton did not, or could not, identify a single accomplishment.

Her accomplishments are just as well known to her supporters. The Bloomberg news organization explored the Clinton candidacy with a focus group.

Nearly all loved Hillary Rodham Clinton. “She’s a bad mama-jama,” said one female participant. 

Bad mama-jama is good, by the way. 

The woman explained that Clinton is “not afraid to step up” or “afraid to say, ‘No. I don’t want to do it that way. I’m going to do it this way.’” 

Another participant insisted that Clinton is a “better woman than I am” — a great standard for selecting a president, to be sure — because of Clinton’s ability to weather various scandals and humiliations. 

The awkward part came when Bloomberg’s Mark Halperin asked the room, “What did she accomplish that you consider significant as secretary of state?” 

The answers — or rather, the replies, since no one had an answer — were awkward, to say the least. 

“I really can’t name anything off the top of my head,” one squirming Democrat admitted. 

“Give me a minute. Give me two minutes. Go to someplace else,” another Iowa Democrat pleaded. 

A third let the uncomfortable silence play out for as long as she could before confessing, “No.”

Of course, to be fair, though not necessarily to Hillary, her term as Secretary of State saw this stupendous collection of developments:

• Madame Secretary Clinton gave away American resources to Russian companies after/because they donated to the Clinton Foundation. 
• Hillary got off her lumpy backside and pushed through State Department paperwork on the Keystone XL Pipeline. Did she do it because it's good for America? Well, if so, then why has Obama refused to approve it? Did she do it because the money behind the pipeline donated to the Clinton Foundation? Ahhhh, now you see. 
• Hillary FAILED to take immediate action to buttress security at Benghazi facilities despite repeated requests. Hillary knew, during the attack, that the attack on Benghazi is not a random act of protest against an online video that defamed Islam. If you doubt that, you haven't been reading the email dumps from State this summer. So when she told grieving parents that we would punish the malefactor responsible for stirring up that strife, she was lied to the parents of a dead son. 
• Hillary kept quiet about that certain knowledge -- that Benghazi was a planned attack -- when America's UN Ambassador appeared on all of the Sunday morning talk shows and lied to America's face that the attack was the result of a protest gone amok, following the inflaming of passions caused by a video that defamed Islam.

Noto Bene:  Hillary Clinton knew otherwise when this happened. She knew that the American people were being lied to by the President and his administration, herself included. Presidents will ask their staff, from time to time, to do that which strikes them as fundamentally wrong, perhaps in violation of moral law, or against constitutional principles.

How one handles such orders under fire tells us much about the character of the (wo)man.

For example, when Archibald Cox, the Special Prosecutor, got too far up into Nixon's business, he directed the Attorney General to fire him and to take control of the contents of the Office of the Special Prosecutor. Elliot Richardson, the Attorney General refused AND resigned. Nixon then ordered the Deputy Attorney General to carry out the order that Richardson had refused to obey. William Ruckelshaus, the Deputy AG, also refused AND resigned. When the Offices of the AG and the Deputy AG are vacant, the responsibility of these offices falls to the Solicitor General. Robert Bork was that SG. He carried out Nixon's Order.

Hillary served as Secretary of State in the Obama administration as the President and his minions (including Hillary) lied to us about a terrorist attack on our Benghazi assets. She watched and said nothing to the contrary when the lies occurred. And in heart wrenching moments of deeply personal pain for the families of those who died, she did the dirty work of lying to us. Unlike Richardson, Nixon's AG, she did not refuse and resign. Unlike Ruckelshaus, Nixon's Deputy AG, she did not refuse and resign.

Did you ever wonder how instructors at England's private schools become the kind of sadistic pedophiles that scream "you can't have your pudding if you haven't eaten your meat, how can you have any pudding if you haven't eaten your meat?" Perhaps it's because, once upon a time, they were students in those schools, with sadistic pedophiles screaming at them that they couldn't have their pudding until they'd eaten their meat. In much the same vein, if you really believe that Hillary, who played Obama's toadie will not demand equally despicable acts of dishonor and dishonesty by those that serve in a Hillary Clinton administration, you are fatally naive, and I fear, armed to the Nation's great harm with the power of the elective franchise.

Are We Actually Wiser than the Founders?

To venerate the Founders to the point of denying errors in their judgments, or injustices in their actions, serves no good purpose.

Jefferson, Washington, and others owned slaves. We know that this was a moral wrong. In fact, we know that Jefferson and Washington both understood this point. That leaves us in the position of understanding that they made a choice to justify the ends -- development of their own landed estates, finding a ground on which the varying interests of the newly independent States would still permit the formation of new Nation -- while deploying wrongful means.

Still, the genius in their words, their actions, is evidenced by the fact that America is the longest-lived constitutional republic in the world. So, admiration of their words and work is warranted, but is tempered by recognition of their human failings.

As we approach another election season, a variety of "hot-button" issues allow us insight into the thinking of various candidates. That insight, in turn, allows us to compare those candidates with the Founders, and draw what conclusions that we may.

Hillary Clinton and Martin O'Malley, two of the three announced candidates for the nomination of the Democratic Party, have positioned themselves well as proponents of new and additional legislation to address gun crimes in the United States.

Hillary Clinton, in a recent campaign stop, as reported by CNN, staked out her claim as the President that would accomplish the necessary task of winning the "gun control" battle:

"We have got to do something about gun violence in America. And I will take it on," Clinton said. "It's a very political, difficult issue in America. But I believe we are smart enough, we are compassionate enough, to figure out how to balance the legitimate Second Amendment rights with preventive measures and control measures so that whatever motivated this murderer who eventually took his own life, we will not see more deaths, needless, senseless deaths."

Oddly, for a candidate opposed to the use of guns to solve problems, she has adopted a violent motif for her campaign website, casting her campaign themes as a "fight." Her major motif is "The Four Fights."

FDR liked the number four as well. In his day, with a broken economy, growing tyranny in Europe and Asia, he still did not stoop to portraying efforts at change, even progressive transformation, as a battle or a fight. Instead, he spoke of the Four Freedoms. How different are Democrats now, and Hillary at the front, making her policy initiatives "fights." By transforming engagement about policy into "fighting," she has, of course, made those who oppose her views, the "enemy." I certainly hope the two term bath of divisiveness given to us in Barack Obama is not extended a single day under that used up windbag's attempt to create energy by declaring war on Americans.

Martin O'Malley's Maryland has restricted gun rights literally since its founding. In fact, one argument made in defense of the gun restrictions that the Supreme Court overturned in the District of Columbia v. Heller case was that, because the District of Columbia was carved out of Maryland, that State's historically restrictive laws meant that DC residents had never had an unfettered right to keep and bear arms.

In the wake of the Charleston, South Carolina church shooting, candidate O'Malley sent an email to his supporters. He wrote:

I’m pissed that after an unthinkable tragedy like the one in South Carolina yesterday, instead of jumping to act, we sit back and wait for the appropriate moment to say what we’re all thinking: that this is not the America we want to be living in.

O'Malley bragged:

I proudly hold an F rating from the (National Rifle Association), and when I worked to pass gun control in Maryland, the NRA threatened me with legal action, but I never backed down. What we did in Maryland should be the first step of what we do as a nation.

Finally, O'Malley pitched a three point plan to further restrict gun rights:

A national assault weapons ban. Stricter background checks. Efforts to reduce straw-buying, like fingerprint requirements.

Bernie Sanders, the third announced Democratic candidate, and Hillary Clinton's stalking horse, has a mixed record of voting on gun control measures in Congress. Sanders has reacted to recent shootings and questions from media in a way suggestive that he will make pursuit of further gun legislation a feature of a Sanders presidency:

I do not accept the fact that I have been weak on this issue. In fact, I have been strong on this issue. And in fact, coming from a rural state which has almost no gun control, I think I can get beyond the noise and all of these arguments and people shouting at each other, and come up with real, constructive gun control legislation which most significantly gets guns out of the hands of people who should not have them.

See how his basic instinct is not to be seen as "weak on this issue"? And, of course, he voted to ban the sale of guns that look dangerous (the assault weapons ban), and he voted to ban possessing and using magazines with more than 10 bullets, so that a woman, trapped in her home and being assaulted by a gang of would-be rapists and murderers would be required to reload and reload to protect herself. The NRA has given Sanders a lifetime grade of D- on gun rights.

No real surprise is to be discovered in any of this information. These are candidates for the Democratic nomination. Of course they would support limiting the right to keep and bear arms. Of course Governor O'Malley pushed legislation in Maryland to require those that exercise the right to keep and bear arms to be fingerprinted as a precondition to the exercise of the right. For the Democratic Party, the fact that the "right to keep and bear arms" appears in the Bill of Rights is, at best, an anachronism, a throwback to the uncertain and unsettled times of our Nation's founding.

The right of the People to keep and bear arms, the Framers of the Constitution expressly concluded, was "necessary to the defense of a free State[.]" Moreover, the conclusion that the amendment was a necessary component of the federal Constitution plainly indicates that the danger at issue was one that would come, if it did, from federal encroachments. If the People of individual States were concerned that States would interfere with their right to keep and bear arms then the amendments would be to State Constitutions (many of which expressly guarantee the right).

The source of the dangers addressed in the Bill of Rights was the federal government. Episcopalians in Virginia no more wanted a federal government that could establish Presbyterianism as the National religion than did Baptists in Rhode Island want a federal government that could establish Episcopalianism as the National religion. Antifederalists in Virginia and the Carolinas no more wanted a federal government empowered to silence their speech than did Federalists want a federal government empowered to silence theirs.

The Founders did not stumble across the body of rights sheltered in the Bill of Rights. These particular rights -- religious freedom, freedom of speech, press, petition and assembly, rights against warrantless searches and seizures, rights to "due" (appropriate) legal process in criminal proceedings, rights to be tried by a jury of one's peers, and rights to the ownership and use of firearms against tyrannical government -- were the very ones violated by the Crown and Parliament. Those rights were the ones that were understood as being among the natural rights of men. Alexander Hamilton, in the Federalist No. 84, laid out the argument that iterating a Bill of Rights would serve only to limit the larger body of rights natural to men. He noted that New York, for example, did not have a Bill of Rights in its State Constitution. He also argued that the English Bill of Rights actually served as a boundary of the rights of free men, and that, in the same way, the provisions of Magna Carta ceded broad swaths of power to the Crown, reserving only certain identified rights to the Barons and the Crown's subjects.

Hamilton's view nothwithstanding, James Madison eventually agreed to the compromise demanded by anti-Federalists, that if the Constitution was to be ratified it should be supplemented immediately thereafter by the express adoption of a Bill of Rights. In fact, in the first Congress following the ratification of the Constitution, James Madison managed the House legislation that eventually proposed the Bill of Rights, including the amendment guaranteeing the right to keep and bear arms.

James Madison is often touted for his express concerns about Establishment of Religion and religious freedom. In particular, strict separationists are fond of citing to a set of writings, the "Detached Memoranda." Madison's writings there, for example, are cited and quoted because he concludes, nearly thirty years after proposing the Bill of Rights, including its provisions for Free Exercise of Religion and against the Establishment of Religion, that the appointment of chaplains for the Houses of Congress violates the Constitution and is inconsistent with principles of religious freedom. So, when it comes to strict separation of church and State, James Madison is, for lack of a better way to put it, a "latter day saint."

Yet the same Madison that thought that chaplains in Congress violated the Constitution and the principles of religious freedom also thought a strict guarantee against interference with the right to keep and bear arms was necessary to guarantee what he thought should be considered a fundamental maxim:

The political truths declared in that solemn manner acquire by degrees the character of fundamental maxims of free Government, and as they become incorporated with the national sentiment, counteract the impulses of interest and passion.

Those who would canonize and lionize Madison for his separationist views go quiet on Madison when the question is arms. Madison wrote:

Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. 

[The Constitution preserves] the advantage of being armed which Americans possess over the people of almost every other nation...(where) the governments are afraid to trust the people with arms.

Madison's views of the necessity of preserving a robust right to keep and bear arms was not singular.

Thomas Jefferson accumulated a collection of thoughts and writing on questions related to government. The following quotation appears in his Commonplace but, while it is often attributed to him, he recorded these ideas from the text of an Italian author:

[Consider] that legislator has false ideas of utility who considers particular more than general convenienc[e]s, who had rather command the sentiments of mankind than excite them, who dares say to reason, 'Be thou a slave;' who would sacrifice a thousand real advantages to the fear of an imaginary or trifling inconvenience; who would deprive men of the use of fire for fear of their being burnt, and of water for fear of their being drowned; and who knows of no means of preventing evil but by destroying it. 

The laws of this nature are those which forbid to wear arms, disarming those only who are not disposed to commit the crime which the laws mean to prevent. Can it be supposed, that those who have the courage to violate the most sacred laws of humanity, and the most important of the code, will respect the less considerable and arbitrary injunctions, the violation of which is so easy, and of so little comparative importance? Does not the execution of this law deprive the subject of that personal liberty, so dear to mankind and to the wise legislator? and does it not subject the innocent to all the disagreeable circumstances that should only fall on the guilty? It certainly makes the situation of the assaulted worse, and of the assailants better, and rather encourages than prevents murder, as it requires less courage to attack unarmed than armed persons.

Lest it be supposed that this quotation in Jefferson's Commonplace was merely a copy book exercise in handwriting, Jefferson's thoughts on the right to keep and bear arms are known. In his proposed draft of a Constitution for the Commonwealth of Virginia, Jefferson included this provision:  "No Free man shall ever be debarred the use of arms." While that version of that language was not adopted, Jefferson's inclusion of it illuminates his thinking on the subject. More directly, Jefferson is well known for his prospect that "the tree of liberty be watered" by the blood of tyrants and patriots. His observation came in a larger letter to William Smith, in which he reflected on the fact that Shay's Rebellion was not, in his view, an entirely evil matter. His view reflected his thinking that those in authority ought to be reminded of the essential powers of the People:

What country before ever existed a century & half without a rebellion? & What country can preserve it's liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms. The remedy is to set them right as to facts, pardon & pacify them. What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time with the blood of patriots & tyrants. It is its natural manure.

Alexander Hamilton, though he died in a duel, understood the importance of the individual right to bear arms in maintaining the balance of power against an over reaching tyranny. On this point, he wrote in The Federalist No. 28:

If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers, may be exerted with infinitely better prospect of success than against those of the rulers of an individual state. In a single state, if the persons intrusted with supreme power become usurpers, the different parcels, subdivisions, or districts of which it consists, having no distinct government in each, can take no regular measures for defense. The citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair. 

...

[I]f circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist.

Many, many more evidences in the writings of those that framed the Constitution and the amendments that came to be the Bill of Rights demonstrate that the Second Amendment's topic, the right to keep and bear arms, was not an add on or a tag along, but understood to be an important tonic in the preservation of liberty.

Now, today, between Hillary Clinton, Martin O'Malley, and Bernie Sanders, Democrats face a choice of three candidates none of whom respect the reasoning or conclusions of those very Framers. And that brings me back to those opening thoughts.

Yes, the Framers were human. Yes, they exhibited frailties of character not much different than are common today. Certainly slavery is a weighty charge against honor and decency. One might say the same, however, of other policy choices that are weighed in lives, such as abortion, authorizations for the use of force, confiscatory taxation.

In the main, it occurs to this observer that these candidates' thoughts on the right to keep and bear arms warrant small regard. Because they mock as some distant memory that imminent threat to liberty that tyranny constituted in the Revolutionary era, because their party was, itself, responsible for the armed reign of terror known at Ku Klux Klan, and its depredations against the newly freed slaves and their Republican patrons, because they are forever aligned with devotion to government rather than liberty, they are simply without sufficient indicia of reliability.

No, in this respect, we are not wiser than the Founders.

Another Page Stolen from Barack Obama's Diary

Dear Diary,

Well, getting back from vacay is a real pain. I can't wait until Labor Day, I think I'll jet down to Miami for a weekend of golf then. Getting away from the Mooch (thank goodness she doesn't know where I hide you, Diary, or we'd both be in some serious doo doo) cannot come soon enough.

Today was a strange day. It started out really well. I got this cool letter from one of my peeps, Gavin Nore. Maybe you remember me writing about him back in the campaign days. Anyway, he wrote me to report that my support for stem cell research probably saved his life! YAY ME!!!!

Here's his letter:

Pretty cool, huh?

Of course, I got that honky press stooge to release this on the social sites right away.

Strange thing though.

I got down to the Oval Office a little earlier than usual, like around 10:30 am. I had a couple chats with staff and a phone call or two. Then around 11, I was feeling pretty slow, so I grabbed that pitching wedge and went out to the Rose Garden to practice my short game for a while.

When I got done, like around 1 pm, I came back in to the Oval Office and there was another letter on my desk. I figure, I'm on a roll, so why not see what other fan mail is waiting for me. You won't believe this letter when you read it. After I cooled down, I called my Chief of Staff and demanded they find out who put the letter on my desk.

Weird thing. On the tape, there's this flash of light, and then the letter is just there. I think someone shone a laser pen into the surveillance lens to blind it while they did their little practical joke. Anyway, the original is being tested at the FBI, they did a quick fingerprint check, and even though there are prints on the letter, the agent stated that the prints were even smaller than a newborn baby's prints, and no prints in the database match it. Really kind of spooky. Plus, when you read the letter, you'll see why it kind of freaked me out. Here it is:

Help Abby Walk Again!

I do not do this lightly, or often, but I want to share with you a need. You can find this campaign on the youcaring website. Here's the story:

The Story

A couple weeks ago I woke up and I couldn't feel or move my legs. Most of you who know me know I'm no stranger to back problems and already have one surgery under my belt, but it has been 12 years with no problems that anyone would deem significant.

Fast forward two weeks, a couple ER and doctors visits, and I find out I have bilateral sciatica. Typically sciatica affects one leg, causing intense shooting pain to go from the buttocks area down to the foot. Rarely does it affect both legs, but it seems I won the nerve damage lottery. Because of this I have been bed/recliner ridden for over two weeks now, I cannot drive because of the constant spasms, I can barely wobble from the recliner to the bathroom and as my condition deteriorates I don't know what I will do about that particular problem.

Unfortunately this couldn't have happened at a worse time. I left my old job and moved out of state, losing my insurance in the process. The state of North Carolina does not have "obamacare"/medicaid for low income people, so getting help from that is also out of reach. The doctors have suggested I apply for short term disability in order to get the surgery I need that will hopefully fix this issue. So that is what I'm doing, but in the meantime I need to find a primary doctor who will see me over the next few months and write prescriptions for me out of pocket until the disability has been approved. I'm hoping some of my relatives and close friends will help make that possible as I have no resources to my name. 

I just want to say thank you in advance , not just to the people helping me financially but the ones who have been here with me helping me get through this emotionally as well.

Abby had an MRI Saturday, and the MRI report shows several bulging discs in the Lumbar and Thorasic spine. It also shows a major herniation in the Lumber spine. The report also shows multiple other issues contributing to Abby's crippling pain and disability. It appears that, ultimately, she will need surgery for the herniation.

If you can, please consider giving to her campaign.

Thank you!

Will a Roving Court Tame a Lazy Congress?

The federal government of the United States is a creation. It did not come into existence of its own intention, will, or design. Thirteen free and independent States brought the federal government into being by the device of the Constitution. Those States ratified the Constitution and are, therefore, the creators of the federal government.

The Constitution provides a basic framework for that government. This is the stuff of junior high civics classes. The States pre-existed that federal government and were independent free States. As such, the States possessed all the rights, powers, and prerogatives belonging to them as such. From those powers that the States already possessed, they deliberately carved out aspects and parts and donated them via the act of ratifying the Constitution to the newly minted government. Nothing in the Constitution provides a bootstrapping power by which the federal government might increase the reservoir of its powers, expand the scope of its powers, or re-allocate those powers within the branches of the federal government.

Under the first three articles of the Constitution, the three branches of the federal government are devised and equipped with discrete powers. Article I deposits all legislative power that was being donated from the States to the federal government in the Legislative Branch, which consists of the House of Representatives and the Senate. Article II deposits all executive power that was being donated from the States to the federal government in the Executive Branch, which consists of the President. Article III deposits all judicial power that was being donated from the States to the federal government in the Judicial Branch, which consists of the Supreme Court and such inferior courts as Congress might subsequently create.

Over the course of two hundred twenty-six years, that framework has been bumped around, bent, twisted.

Evidence of the abuse of that framework is everywhere.

When the Executive Branch conducts proceedings that are, in their basic nature, judicial, the Executive Branch takes on powers not delegated to it in the Constitution, and it does so by stealing authority from the Judicial Branch. Does this happen? It does, every day, day in and day out. Administrative hearings by federal agencies are a plain example of Executive encroachment on the Judicial Branch.

Similarly, when the Supreme Court (or a lower court), "rewrites" a statute by construing its words to mean other than what its words actually say, the Court is, in effect, legislating from the bench. That habit of legislative encroachments by the Court was evidenced again, for example, when Chief Justice Roberts, in an opinion touching on Obamacare, ignored the plain words of the Patient Protection and Affordable Care Act in King v. Burwell. Roberts explained that, if the Court had given the words of the statute their literal meaning, the effect would have been to take federal tax subsidies away from approximately 8 million lower income health insurance subscribers. Thus, rather than leave the statute as Congress actually wrote its words, the Supreme Court decided to "read" the contested language differently. That act, acknowledging that a set of words had a particular meaning, acknowledging that by changing their meaning the effect of the statute would change, and then, in effect, changing the words of the statute, is the essence of a legislative act.

From time to time, although still doing its lifework of undermining the States, and of pursuing dominance over the Legislative and Executive Branches of the Federal government, the Supreme Court does push back against obvious excesses by the other federal branches.

One example is the Court's two century old decision in Marbury v. Madison. In Marbury, the Supreme Court chastised Congress, which had attempted to authorize the Supreme Court to entertain lawsuits (as though it was the trial court) over certain cases involving claimants against the government. Marbury, had he succeeded in a lawsuit he filed in the Supreme Court based on that law, would have gotten a judicial appointment as a magistrate. That appointment had been made by President John Adams and approved by the Senate, just prior to the Inauguration of Thomas Jefferson. Jefferson refused to provide Marbury with his commission, and he sued to get it.

Marbury's problem, however, was that he sued in the Supreme Court. He did that because Congress had passed a law, presumably in keeping with powers granted to it in Article III of the Constitution. The particular provision of Article III states that the Supreme Court does have that "original jurisdiction" (like a trial court) over certain explicitly stated categories of cases (for example, lawsuits affecting ambassadors), and that the Supreme Court would have appellate jurisdiction under terms and conditions set by Congress. Here's the relevant language:

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

As you can see, the Constitution did not say that Congress could extend the "original jurisdiction" of the Supreme Court to other cases. So, when the Supreme Court decided Marbury's case, they tossed his lawsuit out for lack of jurisdiction. The Court concluded that Congress exceeded the power afforded under that provision of Article III. As far as it goes, the Court's conclusion about Congressional power is correct and can't be gainsaid. [The Court goes further in Marbury, asserting things about its power, "to say what the law is."]

I am not one to complain that the Court has confined itself to what I understand to be its constitutional duties and limits. In Marbury, I find nothing objectionable in the Court's conclusion that it could not entertain the suit. Everything else the Court said in that case was simply unnecessary to that brief conclusion.

The Court has moved into its summer retreat. It will not be hearing arguments as the summer progresses. Justices will travel, teach, speak, recreate. In September, they will gather again in their Conference Room and begin the process of choosing cases to be considered in the October 2015 Term of Court.

That is not to say that there will not be anything going on at the Court.

Emergency petitions and applications, ones seeking stays of execution, will still be filed, and will still be acted on by individual justices, or, where necessary, by the whole Court. In addition, attorneys representing parties in cases that have already been granted review will be researching, writing, editing, refining and filing briefs about their cases with the Court. Among those cases, one has garnered my interest because it has the potential of affecting the numbers of cases in which federal courts are called on, and therefore tempted, to act like legislators who decide the propriety of laws, rather than as judges.

The case is Spokeo, Inc. v. Robins.

This case presents the Court with a question about the limits of Congressional power to authorize courts to hear cases. The Court agreed to consider this question:

Whether Congress may confer Article III standing upon a plaintiff who suffers no concrete harm, and who therefore could not otherwise invoke the jurisdiction of a federal court, by authorizing a private right of action based on a bare violation of a federal statute.

One of the limits on the power of Courts to hear cases is the text of the Constitution which grants power to the Courts to hear "actual cases." This provision is often summarized as the "case or controversy" requirement. It embodies the idea that our courts should not be engaged in hypothesis on the law. Hypothesizing about the law -- forecasting how it would apply in future cases -- is much like legislating and belongs to the Congress, not the Courts.

There is great mischief tucked into a concept like the one the Court will examine:

Imagine deputizing individuals that have not suffered harm (and cannot show that they will) to sue farmers because their farming threatens a rare slug or beetle.

Imagine deputizing individuals that have not suffered harm (and cannot show that they will) to sue companies that build oil refineries, or coal-powered energy generation facilities over their compliance with regulations.

Spokeo, Inc. does not present quite the same lightning rod underlying issue, as do Endangered Species and EPA cases. But the principle to be decided in this case may serve to limit the ongoing overreach of federal courts.

Obamacare Round 4? Round 5?

The Patient Protection and Affordable Care Act has come before the Supreme Court on three occasions for full briefing and argument. As we begin the run-up to the October 2015 Term of the Supreme Court, it is worth noting and watching for the possibility that the Court may take on at least two additional categories of cases involving Obamacare. Based on petitions already filed, or that will likely be filed near the beginning of the Court's next Term, the Court may have to confront further arguments for religious exemptions from Obamacare's contraceptives mandate, and may have to decide how a clause of the Constitution that requires tax legislation to be offered first in the House of Representatives plays into the Capitol Hill hi-jinx that preceded enactment of the law.

In Round One, in the case called National Federation of Independent Businesses v. Sebellius, Chief Justice Roberts, writing for a 5-4 majority, held that the "Shared Responsibility Payment" imposed on individuals that chose not to comply with the Individual Mandate to purchase health insurance was a tax. The decision conflicted with the claims and arguments of the Democrats who enacted Obamacare. While Roberts and the majority found the Shared Responsibility Payment to be a tax permissibly imposed by Congress, rather than a penalty.

In Round Two, in the case called Burwell v. Hobby Lobby, Justice Samuel Alito, writing for a 5-4 majority, held that small corporations could claim an accommodation under Obamacare from requirements of Obamacare that would have resulted in the corporation providing abortifacient contraceptive coverage as part of employer-provided health insurance. The accommodation protecting the corporations was required by another federal statute, the Religious Freedom Restoration Act ("RFRA"). RFRA imposes on the federal government an obligation to use the most narrowly crafted means of serving even compelling government purposes when the government's regulation limit or interfere with the free exercise of religion. The corporations, including Hobby Lobby, satisfied the Supreme Court that the obligation to fund abortion-inducing contraceptives violated their religious faith.

In Round Three, in King v. Burwell, writing for a 6-3 majority, Chief Justice Roberts rejected the obvious and plain meaning of a provision of Obamacare that provided federal tax subsidies to cover the cost individuals subscribing to health insurance through health insurance exchanges "established by the State[s.]" The IRS and the Obama administration had enacted rules by which individuals buying insurance through federally operated exchanges in the 34 States that refused to establish exchanges would still qualify for the tax subsidies to cover the costs of premiums. Roberts rejected the actual meaning of the plain words of the statute, essentially on the ground that, had the Court held Congress and the administration to the text of the statute, the purpose of Congress in adopting Obamacare would be frustrated by the resulting failure of the entire program.

Perhaps, though, the Court has had enough of Obamacare.

Perhaps the Court needs a break from the rancorous debate and the heat. Justice Scalia certainly did not pull any punches when he remarked the statute had been rescued enough times by the Court that it should now be known as SCOTUS-care, a result he concluded was obtained by a tortured process of "interpretative jiggery-pokery."

We should know, perhaps sometime in early October, or shortly thereafter, whether the Court will again revisit the crown jewel of the Obama crown. By then, the Justices will have had the opportunity to look at petitions involving another round of disputes over the Obama administration's efforts to force employers to fund health insurance coverage for services against which they maintain a religiously based, conscientious scruple. In addition, shortly after the Court resumes its work, another constitutional challenge, a systemic attack on the entire Act, will be presented to it, in a petition filed by the Pacific Legal Foundation.

In a series of cases involving religiously affiliated colleges and universities, the Supreme Court may have the opportunity to further refine its thinking on whether the federal government violated rights of religious freedom when it imposes obligations on private parties, in this case, Catholic and Baptist affiliated schools and colleges, to provide coverage for contraceptive services against which they hold a religious scruple of conscience. The first Obamacare contraceptives case involved, as noted above, small, closely held corporations. These cases, if the Court takes one or more of them for decision, involved religiously affiliated institutions of higher education but not religious societies as such.

In another case, about which I posted a series of blog entries a year ago, the Court will be asked to consider whether the entire Obamacare statutory framework was enacted in violation of a provision of the Constitution known as the Origination Clause. Under the Origination Clause, all bills that raise revenue must originate in the House of Representatives, although the Senate is permitted to offer amendments to such bills.

As I explained in the previous post introducing the Sissel case:

Litigation raising the Origination Clause argument against Obamacare has been pending in the Nation’s Capitol for some time now.  Matt Sissel, the plaintiff, claimed that, because the penalty for failing to purchase health insurance is a tax, the Origination Clause required that the House of Representatives originate the legislation. Obamacare, however, was an invention of the Senate.

In fact, the Democrat-controlled Senate took a pending House bill – one regarding tax credits for home ownership by members of the military -- stripped out every jot and every tittle of it including its title, and inserted the Affordable Care Act in place of its original text and title.  This, on Capitol Hill, is called an amendment in the nature of a substitute.

A decision on the Sissel case out of the US Court of Appeals in Washington, DC, on Friday, August 7, may provide the set-up for the Origination Clause challenge to Obamacare to be considered at the Supreme Court.

In a strange twist, as the most recent development in Sissel case, Democrat appointed appellate judges all rejected Matt Sissel's claim that Obamacare was a tax and therefore unconstitutional because it originated in the Senate. Republican appointed judges on the same court rejected the majority's view that Obamacare was not a bill for raising revenue. Nonetheless, they agreed with the outcome of the case because, while, in their view Obamacare, which will raise some 490 billion dollars in revenue for the general fund of the United States, was clearly a bill for raising revenue, the bill that became Obamacare actually did originate in the House.

Of course, the original legislation that became Obamacare was a proposal to provide relief on home financing to veterans and service personnel. After that bill passed in the House, the Senate took the bill and gutted everything to do with assisting veterans and service members. In place of the veterans' assistance language, the Senate substituted the text that became the health care insurance overhaul legislation. F

The Supreme Court grants review in fewer than 100 cases most years. The number is substantially lower than under Chief Justices that preceded William Rehnquist. Still today, the likelihood that a case will be reviewed is substantially greater where the federal appeals courts are of a divided view on the legal question at issue in the case.

In the contraceptives cases, the division of the Circuit Courts of Appeal make the likelihood of a further decision from the Court substantial. At the same time, the Court has the power to decide cases only on the papers -- without full briefing and argument -- this is what the Court calls summary disposition. The contraception cases require the Court's attention to resolve the division among the Courts of Appeal. The Court could, however, summarily dispose of the cases by invoking its earlier decision in Burwell v. Hobby Lobby. (That summary disposition is not highly likely, but is at least possible.)

In the Origination Clause case, the chances of review are substantially lower. I say that, not because the argument is wrong, or the case unworthy of consideration. It just reflects the reality of a limited resource -- the Court's time and attention -- and the need to accomplish such ends as maintaining a uniform application and understanding of federal law. At this point, the appeals court in Washington, DC, is the only one to have ruled on the Origination Clause. [In Hotze v. Burwell, a case from Texas and decided by the federal appeals court there, a physician offered the same Origination Clause argument as did Sissel. In Hotze's case, however, the Fifth Circuit dismissed the appeal and directed the trial court to dismissed the lawsuit. The appeals court did not decide the Origination Clause argument because the court concluded that Hotze was not a proper party to bring the lawsuit.]

While court watchers may wonder whether the justices wince when requests for review in highly contentious cases keep returning to the Court, Abraham Lincoln explained once that it was the Court's unavoidable duty to decide cases properly before it:

At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal. Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink to decide cases properly brought before them, and it is no fault of theirs if others seek to turn their decisions to political purposes.

In like vein, though it might pain them to undertake the process so soon again, the duty of the justices is to decide these cases. It would be nice, however, if, from time to time, they would decide them correctly. Perhaps by next Spring we will have reason to congratulate the Court on doing so.

The Flibberdigibbit Clause of the Constitution

Suppose that we all could agree that Congress should annually enact a budget for the operation of the federal government that is "balanced." If you ask Scott Walker, he would tell you the idea is good but that sometimes the vagaries of economies can frustrate budgets and expectations. Still, as we know, many States are bound by State Constitutional Amendments requiring a balanced budget.

So we agree. You, Senator Somebody or Other, and me, Representative Whose It, agree that each will offer a Resolution in our respective chambers of Congress, proposing an amendment to the Constitution that requires that Congress annually to adopt a balanced budget for the income and spending of the federal government. There is just that matter of the wording of the proposed constitutional amendment.

You bring me a draft of yours. It states:

“Article  —

“Section 1. Total outlays for any fiscal year shall not exceed total receipts for that fiscal year, unless three-fifths of the whole number of each House of Congress shall provide by law for a specific excess of outlays over receipts by a rollcall vote.

“Section 2. Total outlays for any fiscal year shall not exceed one-fifth of economic output of the United States, unless two-thirds of each House of Congress shall provide for a specific increase of outlays above this amount.

“Section 3. The limit on the debt of the United States held by the public shall not be increased unless three-fifths of the whole number of each House shall provide by law for such an increase by a rollcall vote.

“Section 4. Prior to each fiscal year, the President shall transmit to the Congress a proposed budget for the United States Government for that fiscal year in which total outlays do not exceed total receipts.

“Section 5. A bill to increase revenue shall not become law unless three-fifths of the whole number of each House shall provide by law for such an increase by a rollcall vote.

“Section 6. The Congress may waive the provisions of this article for any fiscal year in which a declaration of war is in effect. The provisions of this article may be waived for any fiscal year in which the United States is engaged in military conflict which causes an imminent and serious military threat to national security and is so declared by a joint resolution, adopted by a majority of the whole number of each House, which becomes law. Any such waiver must identify and be limited to the specific excess or increase for that fiscal year made necessary by the identified military conflict.

“Section 7. The Congress shall enforce and implement this article by appropriate legislation, which may rely on estimates of outlays and receipts.

“Section 8. Total receipts shall include all receipts of the United States Government except those derived from borrowing. Total outlays shall include all outlays of the United States Government except for those for repayment of debt principal.

“Section 9. This article shall take effect beginning with the fifth fiscal year beginning after its ratification.”.

(Hat tip to Representative Bob Goodlatte (R-VA). This draft is the one he offered in the last Congress.)

I too have a draft. It reads:

"Article--

Flibberdidigit flibberdidigit flibberdidigit flibberdidigit flibberdidigit flibberdidigit flibberdidigit flibberdidigit flibberdidigit flibberdidigit flibberdidigit flibberdidigit flibberdidigit; flibberdidigit flibberdidigit, flibberdidigit flibberdidigit flibberdidigit flibberdidigit flibberdidigit flibberdidigit. Flibberdidigit flibberdidigit flibberdidigit flibberdidigit flibberdidigit flibberdidigit flibberdidigit flibberdidigit flibberdidigit flibberdidigit. Flibberdidigit flibberdidigit flibberdidigit flibberdidigit flibberdidigit flibberdidigit flibberdidigit flibberdidigit flibberdidigit flibberdidigit."

Sensibly, but with great diplomacy, you express the view that my draft may not fully, clearly, and completely communicate the intention that Congress and the federal government must be made to plan to live within a predefined budget and, in fact, actually to live within it.

I find your concern touching and amusing. I explain that I will be conducting hearings, and already have several experts lined up who will testify that my amendment requires a balanced budget in exactly the same manner as does yours. I also reminded him that, when I introduced my amendment, I gave a floor speech in which I stated that my amendment required Congress annually to balance the federal budget. In fact, as I explained to him, during that floor speech, I engaged in a colloquy with another member that went like this:

Representative Insight: Would my learned friend yield for a question?
Representative Whose It: I would gladly yield for a question related to the Resolution just filed at the desk.
Rep. Insight: It is. My question is this: As I read your proposal, it merely repeats the word, "flibberdidigit" over and over. It actually says nothing about budgets, balancing of them, or the duty of Congress to do so. Do I misunderstand?
Rep. Whose It: Indeed my good friend, you do. When I use the word "flibberdidigit" in this proposal, it means precisely that the Congress has a duty to produced a balanced budget and to do so annually.
Rep. Insight: Many who read this text might conclude, as have I, that it says no such thing. Would the gentleman's purpose not be better served by employing more direct language.
Rep. Whose It: I think not. As I have said, this is the meaning and purpose of my proposal, and experts will testify to that end.

In what may, to you, gentle Reader, seem a stunning development, my proposal is approved in sufficient proportions by both Houses of Congress and ratified by a sufficient number of States. It becomes, in fact, the Twenty-Eighth Amendment to the Constitution. In a subsequent term of Congress, during a time when a declaration of war against Awkwardistan is in effect, the Congress adopts a budget that increases revenue (that's a weaselly way of saying that it raises taxes) by adoption of an excise tax on cotton-polyester blend garment imports.

Importers of such garments sue. They argue that a bill for raising revenue, under the Twenty-Eighth Amendment, is invalid unless approved by three-fifths of each House of Congress and that such vote must be by a roll call vote.

In court, a judge is, frankly, taken aback by the importers' arguments. He says, "why this amendment says no such thing. In fact, all it says is "flibberdidigit, flibberdidigit, flibberdidigit" again and again. The importers, of course, provide the judge with a copy of the Congressional Record containing the colloquy with Representative Insight, along with the complete explanation of the Amendment I provided when I introduced the Resolution, along with references to the record of hearings held by the House when it considered the proposal.

Now, put yourself in the position of that judge. You are being asked by a group of importers to find that the federal excise tax on cotton-polyester blend garments violates a provision of the Constitution.

How do you rule? Do you choose (a) or (b):

(a)  The Twenty-Eighth Amendment strips Congress of power to increase revenue without a roll call vote in each Chamber and passage by a vote of three-fifths of each House.  

(b)  The Twenty-Eighth Amendment does not strip Congress of power to increase revenue without a roll call vote in each Chamber and passage by a vote of three-fifths of each House.

So how did you rule? If you selected option (b), then I understand why you might be reading my blogs. If you selected (a), I am wondering why you aren't listening to Mark Levin right now. I mean no disrespect to Mark, but, in fact, he is currently taking exactly the same approach in addressing the question of so-called "Anchor Babies" as a judge would take were his ruling to embody option (a).

You see, words do have meaning. Judges do their job when they confine themselves to the meanings of words as they are written, rather than as they wish they were written, or as they might bend them to mean though otherwise written, or as their authors intended that they be written. This isn't the stuff of how many angels can dance on the head of a pin. This is the stuff of whether a law enforcement officer may enter your home without a search warrant, whether a court may allow you to be tried for a crime without the ability to confront your accuser, and whether the government may silence you because it disagrees with your views.

Allow me to explain.

Great disputes and debates throughout our Nation's history have frequently resulted in resort to the Constitution. Entirely unsurprisingly, however, many of those great disputes and those that debated them on both sides of any question alike resorted to the language of the Constitution in defense of their stated positions. A few examples suffice to show that this is typical.

When Thomas Jefferson refused judicial commissions to certain Federalists that had been appointed by Jefferson's 1800 presidential election opponent, then-President John Adams, one of those opponents resorted to the Supreme Court to get an Order compelling Jefferson's administration to cough up the commissions. Problem: the thwarted Federalists filed suit under the Judiciary Act, in which Congress created certain categories of lawsuits that could be originally filed in the Supreme Court, rather than the more typical route of filing in a trial court. Resort to the Constitution revealed that Congress had exceeded the authority granted to it to make statutes regarding the Supreme Court's "original" jurisdiction.

When the Congress sought to find a way forward in a Nation closely divided overly the question of how to temporize the Peculiar Institution of Slavery, the Missouri Compromise prohibited the expansion of slavery into federal territories above a designated parallel. In Dred Scott v. Sandford, in which a slave sought redress against his master for assaulting the slave, the slave's wife and the slave's child. Problem: unless the slave was a citizen of the United States, he could not invoke the court's jurisdiction over his cause in federal court. The Supreme Court, rejecting the idea that blacks could ever be citizens of the United States, also held that it its view of it, the Constitution did not grant to Congress power to regulated slavery in the territories.

When Democrats in the Reconstruction South begin to peel away the post Civil War integrational gains of former slaves, the took a number of legislative steps, embodying discrimination in state law. Some States, for example, passed laws requiring that separate rail cars had to be provided for members of the African race. Problem: the assignment of separate accommodations based on race, or perceived race, obviously conflicted with the new Equal Protection Clause that was adopted as part of the Fourteenth Amendment. The Supreme Court, in Plessy v. Ferguson, concluded that "separate but equal" policies for public accommodations satisfied the Equal Protection Clause of the Constitution.

Many more examples could be provided. Whether the topic is abortion legalization or same sex marriage, resort is always had by judges, lawyers and commentators, to the Constitution. In some ways, it reminds one of the New Testament, in which Jesus said, "you search the Scriptures because in them you hope to find life, but these speak about me." That resort to the Constitution is as it should be.

The problem with a claimed reliance on the Constitution is that, in virtually every epic dispute of this Nation's history, opposing forces have both taken refuge in the Constitution. Remember, the nominee denied his commission by Jefferson argued that Congress had the power to allow the Supreme Court to hear his lawsuit, the anti-slavery forces argued Congress had constitutional power to restrict slavery in the federally administered territories, the equality forces argued that "separate" was not equal.

I suppose we could conclude that the Constitution is a hopelessly confusing document that engenders doubt and uncertainty simply because it is not well-crafted. That, of course, is at least an academic possibility. Another possibility, one that credits the States that ratified the Constitution and its amendments with good faith and fair dealing is that the Constitution is a document of fixed and discoverable meaning. That concept, in turn, embodies one side in one of America's great conflicts in judicial philosophy.

On one side of that philosophic dispute, modern liberal justices view the Constitution as a "living" document, capable of growing and changing with the needs of a growing and changing nation. On the other side of that dispute, conservative justices -- and Presidents like Thomas Jefferson, Abraham Lincoln, and Ronald Reagan -- view the Constitution as a document of fixed meaning, a view sometimes derogatorily called the "hidebound" Constitution. While "living Constitution" philosophy permits the Court to move the Nation toward different ends (e.g., legalization of abortion, legalization of same sex marriage), Justices who hold that the Constitution is, in fact, "hidebound," acknowledge that the Constitution is subject to change by amendment. Their objection is to changing the Constitution by interpretation of judges rather than by ratification of amendments by the States.

"Anchor babies" are much in the news of late.

Many TEA party inclined Americans and many conservatives are talking about recent coverage of the "anchor baby" question because Donald Trump has decried the idea that children born to persons illegally present in the United States have "birth right" citizenship. Notables such as Mark Levin dispute claims of students of the Constitution that the only way to resolve the present circumstance is to amend the Constitution.

Levin, as he should, looks to the Constitution to answer the question whether "Anchor babies" are entitled to birth right citizenship. I, too, look to the Constitution. Yet, we two come to different conclusions in resort to that same Constitution.

Levin concludes, not based on the words in the Constitution, that the Fourteenth Amendment does not grant birthright citizenship to any others than those persons born in the United States whose parents (actually, fathers) did not owe allegiance to a foreign power. Levin's conclusion rests on statements made about the meaning which a proponent of the Fourteenth Amendment stated he intended by language of the Citizenship Clause. To the contrary of Levin's position, I conclude that a child born in the United States is a citizen by birth so long as the mother giving birth to the child is present in the United States for any reason other than that they are on diplomatic service from another nation. Unlike Levin, I do not need to look past the words of the Constitution for hidden meanings, intended meanings, or other hopeful monsters of constitutional construction.

Mark Levin knows better than to use the reasoning he has employed here. Frankly, that he does use it suggests that he has no good legal grounding for his assertions. I, like Mark, am a constitutionalist. I am an adherent of the "hidebound" Constitution. I have an established record of commentary and argument that much of the social engineering accomplished through the judiciary results precisely from resort to the wobbly and floppy, "living Constitution" of Justices such as Brennan, Marshall, Breyer, and Ginsburg. So, I refuse to simply defer to Levin simply by virtue of his having a microphone.

Mark has committed an obvious error of construction.

The link included above shows the erroneous methodology of his reasoning.

First, the Congress that proposed the Fourteenth Amendment to the States also enacted the Civil Rights Act of 1866. That is, the exact same session of Congress enacted the statute and proposed the Amendment. 

Second, the statute included this language: "That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States[.]" 

Third, Senator Jacob Howard, who proposed the Citizenship Clause language of the Fourteenth Amendment, "will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States." 

Fourth, consequently, the Citizenship Clause does not extend birthright citizenship to those persons born in the United States to parents not legally present in the United States.

The error is right there. The 1866 Civil Rights Amendment granted citizenship to "all persons born in the United States and not subject to any foreign power[.]" The Fourteenth Amendment grants citizenship to "all persons born or naturalized in the United States, and subject to the jurisdiction thereof." The exact same Congress crafted both provisions. The exact same Congress contemplated the passage of both provisions. The exact same Congress -- with respect to the 1866 Civil Rights Act -- re-considered its passage of the Act when President Andrew Johnson vetoed the legislation, when each chamber voted to override Johnson's veto.

Yet that exact same Congress chose to employ two completely different formulations of language. Ask yourself: does "no" mean "yes?" Does "yes" mean "no?" Do you use "yes" when you mean "no?" I realize these question belong in a discussion of the problem of college campus sexual assault awareness. Nevertheless, you get the point. Why do we accept Levin's argument that a Senator that intended (and I admit his words stating his intent) a certain result and pursued it through the use of a known and familiar phrase, "not subject to any foreign power" in the statute immediately turned around and used completely different language in the constitutional proposal?

So, riddle me this BatLevin, if the Congress knew how to write these words, "not subject to any foreign power," why did the very same Congress write the words, "and subject to the jurisdiction thereof" to accomplish the exact same result as obtained directly and clearly by the former language.

In fact, courts employ rules of construction for the purpose of comprehending the meaning of, and making application of, statutes and constitutions. One of those rules accepts as a principle that when drafters use language to accomplish some purpose in one place, but do not use the same language in another place, the difference in language does, in fact, signal an intended difference in the effect of the words.

Suppose you and I were in a business relationship. I make and sell widgets to you. You sell my widgets to the public. Our contract states that the pricing of widgets sold to you by me shall be $ 1.00 each, when ordered in a single order, in quantities fewer than 100, $ 0.90 each, when ordered in a single order, in quantities of 101-200, and $ 0.80 each, when ordered in a single order, in quantities of 201 or more. Based on the contract, you regularly place orders for 100 widgets, month in and month out. At the end of the year, you will have ordered 1200 widgets for sale to the public. Doing quick math, you realize that, had you ordered 1200 widgets at one time, you would have spent $ 960.00, whereas, ordering them piecemeal in quantities of 100, you spent $ 1200.00.  You sue for return of the $ 240.00 difference between your actual outlay, and your costs had you ordered all the widgets at once.

You might argue that you had intended that pricing be based on total quantity ordered during the year.

I would argue that your intention had to be understood in light of the words actually employed in our written agreement.

We would both, of course, look to the terms of the contract to resolve the dispute.

No court acting in accord with settled principles of contract law would accept your argument. Your claim would be denied. If you intend a certain result, you will use language you have demonstrated the ability to use to communicate the result you intended. The question is not even a close one. To win, you would have to have purchased the judge.

Levin's argument is indistinguishable.

You see, there is no "flibberdidigit" clause in the Constitution. Certainly, the Citizenship Clause is not such a clause. It is a provision of defined and understood meaning. Its meaning is one that was communicated by the use of words of settled and accepted meanings at the time of their use. Levin asks to much of We the People in asking us to accept the words of a Senate sponsor of a constitutional amendment, rather than the words of that amendment.

* * * * *

I realize that many who read these words will be disappointed in finding my conclusion to be that the citizenship by birthright is a constitutional fact. The fact that this is so, however, does not mean that it must remain so. Of course, the Constitution may be amended. Perhaps it should be amended. But what should not happen, what happens all too frequently and often without sufficiently rigorous opposition, is that the Constitution be amended by pretense and artifice rather than by the means the Constitution itself sets forth in Article V.

If we are to deny newly born children birthright citizenship, then we should do so, not by modeling modernist judges who read absent meanings into text. Rather, we should bear true faith and allegiance to the Constitution and amend its provisions by amendment.

What a Quarter Century of Public Interest Litigation Practice Looks Like

From time to time, I publish posts on topics related to law, to legal history, to politics, to elections, and the like. It occurs to me that you might want to have some idea about the writer of these posts. So I am using this blog post to introduce you to the professional side of me.

James Matthew Henderson, Sr.

Contact Information Available Via Email 

Request to jmhenderson58@gmail.com

Executive Profile

Accomplished appellate and trial litigation counsel.  Highly skilled team leader.  Effective written and oral advocate. Perceptive, innovative, positive.  Talented and inspiring instructor and mentor.

Skill Highlights

•           Federal Constitutional Law   

•           Legal Research and Writing, Trial and Appellate

•           Drafting Litigation Documents

•           Skilled Legal Editor

•           Client Management

•           Section 1983 Civil Rights Actions

•           Oral Advocacy

Experience

American Center for Law and Justice, Inc., Washington, DC

Senior Counsel, July 1992 to September 2012 

Led and directed trial and appellate litigation of federal constitutional and civil rights cases. Organized, lead and supervised team litigation of staff attorneys in Washington, DC, Virginia Beach, Virginia and Nashville, Tennessee. Conducted all aspects of preparation, trial and appeal, including fact development, legal research and writing and trial practice. Researched and wrote on legislative issues related to mission of the Center or to questions of federal constitutional or civil rights law. Initiated organizational system of demand correspondence for the representation of clients to resolve disputes in advance of litigation.

Emily Echols et al. v. FEC.

Supreme Court 2003.

Bipartisan Campaign Reform Act of 2002 ban on campaign contributions by minors held unconstitutional. Lead counsel in three judge district court.  Drafted all documents including trial  brief.  Successfully argued before three judge district court. Co-Counsel in US Supreme Court.  Drafted Summary Affirmance Motion, Motion on Divided Argument, and Appellee's Brief.  Assisted arguing counsel with preparation for argument.

Hill v. Colorado.

Supreme Court 2000.

State statute restricting speech at health care facilities held constitutional. Lead counsel in Jefferson County District Court, Colorado Court of Appeals and Colorado Supreme Court.  Drafted all documents, including discovery devices, summary judgment briefing, and appellate briefs, and first round Petition for Writ of Certiorari in the US Supreme Court. Co-Counsel in US Supreme Court.  Drafted Petition for Writ of Certiorari and Reply Supporting Petition, Drafted Petitioners' Brief and Reply Brief.  Assisted arguing counsel with  preparation for argument.

Lamb's Chapel v. Center Moriches Union Free School District.

Supreme Court 1993.

School district exclusion of church from using school facility after hours because  of its religious content overturned. Co-counsel in US Supreme Court.  Edited Petitioner's Brief and Reply Brief.  Assisted Arguing Counsel with preparation for argument.

Bray v. Alexandria Women's Health Clinic.

Supreme Court 1993.

Ku Klux Klan Act of 1871 does not apply to women seeking abortions. Trial Counsel in District Court, drafting all pleadings and briefs. Co-Counsel in US Supreme Court.  Edited Petition for Writ of Certiorari and Reply Supporting Certiorari, both Petitioners' Briefs and Reply Briefs, and assisted arguing counsel with preparations for both arguments.

Evergreen Association v. City of New York.

US Court of Appeals for the Second Circuit 2014. 

US District Court for the Southern District of New York 

City of New York enjoined from enforcing speech restrictions against crisis pregnancy. Lead Counsel in District Court and US Court of Appeals.  Argued preliminary injunction motion successfully in trial court, argued in US Court of Appeals for affirmance. Organized and lead team litigating in trial and appeals court.

Bynum v. U.S. Capitol Police Board.

US District Court for the District of Columbia 2000.

USCPB enjoined from enforcing a prohibition of praying as a form of demonstration in the public areas of the United States Capitol. Lead Counsel.  Drafted all documents and argued successful injunction motion.

Mahoney v. Babbitt.

US Court of Appeals for the DC Circuit 1997.

Emergency injunction granted on emergency appeal barring National Park Service from carrying out threatened arrest of protestors criticizing newly re-inaugurated President. Lead Counsel in District Court and US Court of Appeals.  Drafted all documents in both courts and argued the case.

Ex Parte: Reverend Keith Tucci.

Texas Supreme Court 1992.

Texas Court of Civil Appeals 1992.

Seven ministers protested the issuance of an injunction effectively preventing prayer on public sidewalk were arrested when they violated the injunction.  Texas Supreme Court ordered ministers  released on habeas. Co-Counsel in 1st Court of Appeals and Texas Supreme Court.  Drafted Petitions for Writ of Habeas Corpus resulting in order releasing Petitioners.

Jews for Jesus v. Massachusetts Bay Transportation Authority. 

US Court of Appeals for the First Circuit 1993.

US District Court for the District of Massachusetts 1991.

Judgment striking complete ban on distribution of free literature on station platforms sustained. Lead Counsel in District Court and US Court of Appeals.  drafted all documents and briefs, including trial brief and Appellees' Brief in the US Court of Appeals. Argued at District Court and US Court of Appeals.

Regent University School of Law

Adjunct Professor of Law and Director of Washington Program, 2004-2011

Directed Washington, DC, Semester Experience Program for Regent University School of Law, an American Bar Association accredited law school. Supervised participating law students participating in 255 hour externship program each semester of the program. Taught three credit hour course on advanced constitutional law. Taught one hour Law Practice Lecture Course. Progressively improved externship program to satisfy Law School upper level writing and oral advocacy requirements.

Advanced Constitutional Law: The Law of Religious Liberties

Three credit hour course on the history of, and the law of, religious liberties beginning with Colonial America to the present day. Consistent rated superior by students participating in program

Legal Practice

One hour course on legal practice basic skills, covering drafting

pleadings, motions, memoranda, scheduling orders, discovery devices,

and covering oral advocacy. Recognized by faculty as providing students necessary writing and oral advocacy opportunities to satisfy upper level writing and oral advocacy requirements.

Christian Advocates Serving Evangelism, Washington, DC

Litigation Counsel, October 1989 to July, 1992

Trial and appellate litigation of federal constitutional and civil rights cases. Litigation including all aspects of preparation, trial and appeal, including factual development, legal research, legal writing and trial practice. Research and writing on legislative issues related to mission of the Center.

United States v. Kokinda.
Supreme Court 1990
Decision of US Court of Appeals for the Fourth Circuit that soliciting political donations on post office sidewalk enjoyed First Amendment protection against postal service restrictions reversed. Co-Counsel in Supreme Court. Assisted Lead Counsel in preparation of brief and reply brief, and assisted lead counsel in oral argument preparation.

Henderson v. Lujan.

US Court of Appeals for the DC Circuit 1992.

Injunction barring enforcement of ban on free distribution of literature on public sidewalk in public  park affirmed. Lead Counsel in US Court of Appeals. Drafted Appellee's Brief and argued at US Court of Appeals.

Zauber v. Stone Mountain Memorial Association.
Georgia Supreme Court ()
DeKalb County Superior Court ()
Injunction barring enforcement of ban on free distribution of literature in Georgia's Stone Mountain Park affirmed. Co-Counsel in Georgia Supreme Court, Drafted Appellee's Brief and Reply Brief, assisted Counsel in preparation for argument. Lead Trial Counsel in Dekalb County Superior Court, first chair counsel on motions and trial.

National Organization for Women v. Operation Rescue.
US District Court for Washington, DC
US District Court for Maryland 
US District Court for the Eastern District of Virginia
Injunctions against abortion business blockades by nonviolent protestors under Ku Klux Klan Act of 1871 reversed. Lead Counsel in Washington, DC and Maryland litigation, Co-Counsel in Eastern District of Virginia. Drafted oppositions to motions for preliminary injunctions, oppositions to orders to show cause on contempt, and on attorneys fees.

Mahoney and Christian Defense Coalition v. District of Columbia. 

US District Court for the District of Columbia 1990.

Emergency ordinance restricting picketing and demonstrating on public ways near medical facilities in the City of Washington enjoined. Lead Counsel.  Drafted all documents and argued successful preliminary injunction motion.

Free Speech Advocates, New Hope, KY

Staff Counsel, October 1987 to October, 1989

Trial and appellate litigation of federal constitutional and civil rights cases. Litigation including all aspects of preparation, trial and appeal.

Bar Admissions

Commonwealth of Kentucky (No. 82072)

District of Columbia (No. 452639)

Supreme Court of the United States

US Courts of Appeal for the First, Second, Fourth, Sixth, Eighth and Tenth Circuits

US District Courts for the Western District of Kentucky, the District of Columbia, the District of Colorado and the Southern District of Indiana

Publications

Sekulow, Henderson, Broyles, Religious Freedom and the First Self-Evident Truth: Equality as a Guiding Principle in Interpreting the Religion Clauses, 4 Wm. & Mary Bill of Rights J. (Issue 1) (1995)

Sekulow, Henderson, Tuskey, Proposed Guidelines for Student Religious Speech and Observance in Public Schools, 46 Mercer L. Rev. 1017 (1995)

"The Public Forum Doctrine in Schools," 69 St. John's Law Review 529, Symposium, "Twenty-Five Years After Tinker: Balancing Students' Rights" (Summer-Fall 1995). 

"Poor Way to Quash Protestors", Nat'l Law Journal (March, 30, 1992)

Missouri Home Education: Free at Last?, 6 St. Louis U. Pub. L. Rev. 355 (1987)

Education

St. Louis University School of Law, JD, May 1987

            Law Review

                 Staff, St. Louis University Public Law Forum 1985-86

                 Managing Editor, St. Louis Univ. Public Law Review 1986-87

            Honors and Awards

                 Thomas J. White Family Foundation Fellow in Public Law and
                      Government, 1985-87

            Graduated Top Third of Class

            Memberships

                 Federalist Society, 1985-87

                 Christian Legal Society, 1984-87

University of North Carolina at Wilmington, BA in Biology, August 1981