Enjoy Your Rights ... But Only One at a Time?

Your State's Constitution protects you from a variety of police and prosecutorial infringements on your natural rights to life, liberty and property. The US Constitution's Bill of Rights -- containing like provisions, many based on then-existing State constitutional provisions -- does the same.

Notice that I did not say that these documents grant rights to you.

Instead, those that drafted them, those that adopted them, those men knew that the source of our rights could not be the shifting and uncertain basis that a grant of permission constitutes. Rather, as Jefferson wrote in the Declaration of Independence, "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."

Equally important, as the emphasis always seems to make its way to the three rights stated -- life, liberty, pursuit of happiness -- those men did not consider that we are endowed with just those three rights. The text states, "among these are" the particular rights asserted. Odd language indeed if our natural rights were understood by the framers of our Nation to be limited to just the right to live, the right to be free, and the right to seek happiness. Still, even a cramped view of our rights -- an unfortunate perspective too often seemingly held by governments and government agents -- suggests that more is at stake than merely being allowed to remain alive, at large, and in pursuit of happiness.

So, as suggested above, many of these rights are recognized in State Constitutions and in the US Constitution by inclusion of restrictions on the power of government, limitations on what the government and its agents may do to citizens.

For example, if police learn from a "confidential informant" that you are growing marijuana in your basement, they do NOT get to bust down your doors and search for those plants UNLESS THEY FIRST OBTAIN A WARRANT to search. That warrant must be specific as to the places to be searched and the items or persons to be seized. If the police then execute on the warrant, and find 20 pot plants, they will seize them, and likely developments include your arrest and probable indictment for manufacture for sale or distribution of a controlled substance. If you are *****indicted*****, you have the right to counsel, you have the right to confront witnesses against you, you have the right to a jury of your peers.

Now, to get to the point of this post, imagine -- on that first day you appear in court -- if the court asked you to stand up and said the following to you:

Mr Jones, the State and Federal Constitution guarantee you a broad variety of rights in a criminal prosecution. For example, you have the right to an attorney, like Ms. Smith there with you. You have a right to a speedy trial, and if you exercise that right, we'll get you right on the calendar. You have the right to a jury trial, by a jury of your peers. Oddly, though, there is nothing in either the State Constitution or the Federal one that says you get to enjoy all those rights at the same time. So, for purposes of this charge, do you prefer to be represented by an attorney, or do you prefer to have a jury trial?

Sounds improbable, right?

Since when are your rights, you might think, subject to a sort of "one per customer" rule like might be imposed by a department store for any of its Black Friday loss-leader promotions. "Oh yes, we do have a 60" flat screen television for $299.99, but quantities are limited, and only one television set per customer!" Those who framed our Declaration and Constitutions would cringe at the thought that the government could say to you, "Oh yes, we do have constitutional rights to freedom of speech, press, assembly, religion, and the like, but quantities are limited, and only one per customer."

Yet, the same State and federal constitutions guarantee both the freedoms of speech, peaceable assembly, and press, on one hand, and the right to keep and bear arms, on the other hand. So how is it that government agents, particularly police, think that if you are demonstrating -- in other words, exercising your right to freedom of speech, of assembly -- you cannot be armed and, if you're armed, you cannot be demonstrating?

One right at a time? Quantities limited?

Says who?

The Rutherford Institute is a nonprofit, public interest legal organization. Thirty years ago, I was a client of theirs.  In one of their recent cases, the Institute defeated a motion to dismiss a lawsuit, in a case that brings to public eye that niggardly approach of government agents toward the existence of, and enjoyment of, "supremely precious" and "important" but "delicate" constitutional rights.

Rutherford attorneys represent Brandon Howard. The Institute's website includes this description of the incident leading to the lawsuit:

On Monday, Aug. 26, 2013, Brandon Howard arrived at an overpass above Interstate 295 in the City of Hopewell, Va., and displayed a 6 foot by 4 foot sign that read “Impeach Obama.” Howard was carrying a DMTS Panther Arms AR-15 rifle slung over his shoulder on a strap, and a .380 caliber Bersa Thunder sidearm pistol in a belted holster on his waist. Howard lawfully owned each firearm and did not point or brandish them at any time while engaged in his First Amendment protest activity on the overpass. Howard displayed his protest sign for 30 minutes, but Howard did not directly engage with anyone. 

At about 5:30 p.m., a police officer pulled up to the area, remained in his car and observed Howard. Thereafter, three to five additional police cruisers arrived at the scene with emergency lights engaged.  Approximately eight officers exited these vehicles with their guns drawn and ordered Howard to drop his sign and get on the ground with his hands spread above his head. Howard complied with the officers’ orders. 

Despite the fact that Howard at no time made any threatening action toward the officers or anyone else, one police officer allegedly asked Howard, “What do you think you are doing threatening people on my interstate?” Howard explained that he had not threatened anyone but was simply exercising his First and Second amendment rights. Howard was then handcuffed and transported to the police station, where he was left, handcuffed, in an interrogation room for 90 minutes, after which time he had his firearms returned and was released. 

A month later, the Deputy Chief of Police acknowledged in writing that an internal investigation had concluded that one of the officers violated department policy and would be disciplined and sent to remedial training.

To clarify the ruling recently obtained, the Court refused a request (a motion) by the Defendant, Officer Hunter, to throw Howard's case out on the basis that Howard's lawsuit did not state any legally recognized basis for him to prevail over the police officer. The Institute identified Hunter as the police official that accused Hunter of threatening people, and who asserted that the overpass where Howard demonstrated was, "his overpass."

The Hopewell Police Department, whose officer is the defendant, has publicly acknowledged the error of its officers' conduct, and directed the officer to have remedial training.

Camels might apologize for sticking their nose under your tent flap. It is a hopeful sign when the involved agency quickly acts to rectify wrongs done. But the slap on the nose is the better lesson, and the Rutherford Institute's lawsuit is the better lesson too.

Some reading this post may think Howard was "out of bounds" bringing firepower to his demonstration. They may assert that other incidents of violence at the hands of criminals justifies treating those against whom no reasonable basis of suspicion that they have done wrong, or that they are contemplating doing wrong, as though they too are criminals. For any readers of such mind, I bring this post back to the opening considerations.

There is, no less in the enjoyment of our natural rights than in life, a kind of continuity, a circle, if you will, of rights. Just as the circle of life can be disrupted by ill-motivated actors and ignorant ones, the circle or continuity of our rights is, because it is both "supremely important" and extremely delicate, in want of constant, careful attention. With their representation of Mr. Howard, and their vindication thus far of his rights, the attorneys for the Rutherford Institute are proving themselves diligent and effective advocates for our natural rights.

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.

An A-Z of Liberty

A

is for America, Land of the (formerly) Free

Four score and seven years ago our fathers brought forth on this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal. 

Abraham Lincoln, The Gettysburg Address 

People say America is exceptional. I agree, but it's not the complexion of our skin or the twists in our DNA that make us unique. America is exceptional because we were founded upon the notion that everyone should be free to pursue life, liberty, and happiness. 

Rand Paul, TEA Party Response to President Obama 

B

is for Bastiat, Frederic, French economist and economic journalist, and philosopher:

[W]hen the law, by means of its necessary agent, force, imposes upon men a regulation of labor, a method or a subject of education, a religious faith or creed — then the law is no longer negative; it acts positively upon people. It substitutes the will of the legislator for their own wills; the initiative of the legislator for their own initiatives. When this happens, the people no longer need to discuss, to compare, to plan ahead; the law does all this for them. Intelligence becomes a useless prop for the people; they cease to be men; they lose their personality, their liberty, their property. 

Try to imagine a regulation of labor imposed by force that is not a violation of liberty; a transfer of wealth imposed by force that is not a violation of property. If you cannot reconcile these contradictions, then you must conclude that the law cannot organize labor and industry without organizing injustice. 

Frederic Bastiat, The Law 

C

is for conscience, the birthplace of, and the last fortress for, liberty:

No people can be truly happy, though under the greatest enjoyments of civil liberties, if abridged of the Freedom of their Conscience as to their Religious Profession and Worship. 

William Penn, Pennsylvania Charter of Liberties, 1701

No provision in our constitution ought to be dearer to man, than that which protects the rights of conscience against the enterprizes of the civil authority. it has not left the religion of it’s citizens under the power of it’s public functionaries, were it possible that any of these should consider a conquest over the consciences of men either attainable, or applicable to any desirable purpose. to me, no information could be more welcome than that the minutes of the several religious societies should prove, of late, larger additions than have been usual, to their several associations. and I trust that the whole course of my life has proved me a sincere friend to religious, as well as civil liberty. 

Thomas Jefferson to The Society of the Methodist Episcopal Church at New London

D

is for the Declaration of Independence, the pre-eminent statement of the natural right to liberty, together with a masterful indictment of tyrannical abuse of liberty:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

E

is for Elrod v. Burns, a Supreme Court case addressing the limits on patronage decisions in public employment based on political opinions:

The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury. 

F

is for Friedman, Milton, American economist, winner of the Nobel Prize in Economics, economic adviser to Barry Goldwater's failed presidential campaign, Ronald Reagan's successful one, and economic adviser to President Ronal Reagan:

Indeed, a major source of objection to a free economy is precisely that it... gives people what they want instead of what a particular group thinks they ought to want. Underlying most arguments against the free market is a lack of belief in freedom itself. 

Milton Friedman, Capitalism and Freedom.

The great virtue of a free market system is that it does not care what color people are; it does not care what their religion is; it only cares whether they can produce something you want to buy. It is the most effective system we have discovered to enable people who hate one another to deal with one another and help one another. 

Milton Friedman, Capitalism and Freedom

G

is for Gibbon, Edward, English Historian of the Enlightenment Era

The obvious definition of a monarchy seems to be that of a state, in which a single person, by whatsoever name he may be distinguished, is entrusted with the execution of the laws, the management of the revenue, and the command of the army. But unless public liberty is protected by intrepid and vigilant guardians, the authority of so formidable a magistrate will soon degenerate into despotism. The influence of the clergy, in an age of superstition, might be usefully employed to assert the rights of mankind; but so intimate is the connection between the throne and the altar, that the banner of the church has very seldom been seen on the side of the people. A martial nobility and stubborn commons, possessed of arms, tenacious of property, and collected into constitutional assemblies, form the only balance capable of preserving a free constitution against enterprises of an aspiring prince. 

Edward Gibbon, The History of the Decline and Fall of the Roman Empire

H

is for Henry, Patrick, attorney, planter, member of Burgesses, Founder, Governor,

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

Patrick Henry, Speech to the Virginia House of Burgesses, 1775

I

is for insurrection, an indispensable cognate of liberty, as a tonic and cure to tyrannical government and usurpations:

I hold it that a little rebellion now and then is a good thing, and as necessary in the political world as storms in the physical.1 Unsuccesful rebellions indeed generally establish the incroachments on the rights of the people which have produced them. An observation of this truth should render honest republican governors so mild in their punishment of rebellions, as not to discourage them too much. It is a medecine necessary for the sound health of government." 

Thomas Jefferson (Letter to James Madison Jan 30, 1787)

[T]he right of secession may be urged from higher ground. I believe that, irrespective of any written law -- of any human laws -- there are circumstances in which a people have a right to rise in rebellion and take up arms. I can conceive of circumstances in which the sacred right of rebellion would not only be a right but a duty. I fully indorse the "sacred right of insurrection." But it is not to be lightly used:  but on good and adequate ground, insurrection is more than a right, it is a duty. In some cases rebellion to man is obedience to Cod. But to justify rebellion, two conditions are indispensable: firstly there must be an intolerable grievance and secondly every moral legal and constitutional means for obtaining redress must have been exhausted before the sword is drawn. Then a people have a right to rebel and God defend the right. 

Ernest Jones, Esq., The Slaveholders War

J

is for Jefferson, Thomas, author the Declaration of Independence, the Virginia Statute on Religious Freedom, the Third President of the United States:

the tree of liberty must be refreshed from time to time with the blood of patriots & tyrants. it is it[]s natural manure. 

Thomas Jefferson, Letter to William Stephens Smith, 1787

Under the law of nature, all men are born free, every one comes into the world with a right to his own person, which includes the liberty of moving and using it at his own will. This is what is called personal liberty, and is given him by the author of nature, because necessary for his own sustenance. 

Thomas Jefferson, Argument for the Slave, Howell, in Howell v. Netherland, 1770

And can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are of the gift of God?  That they are not to be violated but with his wrath?  Indeed I tremble for my country when I reflect that God is just: that his justice cannot sleep for ever: that considering numbers, nature and natural means only, a revolution of the wheel of fortune, an exchange of situation, is among possible events: that it may become probable by supernatural interference! 

Thomas Jefferson, Notes on Virginia

K

is for knowledge, the indispensable tool for the diffusion of liberty, and the security of liberty, amongst the People:

Your old friend Mr. Jefferson still lives, and will close his illustrious career, by bequeathing to his Country a Magnificent Institute for the advancement and diffusion of Knowledge, which is the only Guardian of true liberty, the great cause to which his life has been devoted. 

James Madison (Letter to George Thompson, June 20, 1825)

A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives. 

James Madison (Letter to W. T. Barry, 1822)

Freedom can exist only in the society of knowledge. Without learning, men are incapable of knowing their rights, and where learning is confined toa  few people, liberty can be neither equal nor universal. 

Benjamin Rush Essay Proposing a System of Public Schools (1786)

L

is for liberty,

If ye love wealth better than liberty, the tranquility of servitude better than the animating contest of freedom, go home from us in peace. We ask not your counsels or your arms. Crouch down and lick the hands which feed you. May your chains set lightly upon you, and may posterity forget that you were our countrymen. 

Samuel Adams

Nip the shoots of arbitrary power in the bud, is the only maxim which can ever preserve the liberties of any people. 

John Adams.

By liberty I mean the assurance that every man shall be protected in doing what he believes his duty against the influence of authority and majorities, custom and opinion. 

Lord Acton.

M

is for Mill, John Stuart, whose interest in liberty can only be taken seriously to edges of the British Isles, for he found no problem with exercising tyranny over "barbarians":

The only freedom which deserves the name is that of pursuing our own good in our own way, so long as we do not attempt to deprive others of theirs, or impede their efforts to obtain it. Each is the proper guardian of his own health, whether bodily, or mental or spiritual. Mankind are greater gainers by suffering each other to live as seems good to themselves, than by compelling each to live as seems good to the rest. 

John Stuart Mill, On Liberty

The peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error. 

John Stuart Mill, On Liberty

If all mankind minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind. 

John Stuart Mill, On Liberty

N

is for Nature, and for Nature's God, the source of the rights to life, to liberty, and to property.

O

is for Otis, James, American colonist, lawyers, statesman and author:

Taxation without representation is tyranny. 

James Otis, A Vindication of the Conduct of the House of Representatives (1762)

P

is for Paine, Thomas, the English-American political writer and agitator, author of Common Sense and The American Crisis:

When men yield up the exclusive privilege of thinking, the last shadow of liberty quits the horizon. 

Thomas Paine, Common Sense

An avidity to punish is always dangerous to liberty. It leads men to stretch, to misinterpret, and to misapply even the best of laws. He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself. 

Thomas Paine, First Principles of Government

The Grecians and Romans were strongly possessed of the spirit of liberty but not the principle, for at the time they were determined not to be slaves themselves, they employed their power to enslave the rest of mankind. 

Thomas Paine, The American Crisis, No. 5

Q

is for quorum, the minimum number of an assembly necessary to be present before the assembly may lawfully proceed to do its work. The work of liberty is the work of every man, no quorum is required for each man to act in provocation of liberty, in expansion of liberty, in exploration of liberty, and in defense of liberty.

R

is for Reagan, Ronald, small town boy, Hollywood actor, Union president, California Governor, President of the United States:

Freedom is never more than one generation away from extinction. We didn't pass it to our children in the bloodstream. It must be fought for, protected, and handed on for them to do the same, or one day we will spend our sunset years telling our children and our children's children what it was once like in the United States where men were free. 

Ronald Reagan, Phoenix Chamber of Commerce (1961)

General Secretary Gorbachev, if you seek peace, if you seek prosperity for the Soviet Union and Eastern Europe, if you seek liberalization: Come here to this gate! Mr. Gorbachev, open this gate! Mr. Gorbachev, tear down this wall. 

Ronald Reagan, Speech at the Brandenburg Gate, Berlin (1987)

I hope we have once again reminded people that man is not free unless government is limited. There's a clear cause and effect here that is as neat and predictable as a law of physics: as government expands, liberty contracts. 

Ronald Reagan, Farewell Address to the Nation

S

is for Spooner, Lysander, American abolitionist and anarchist,

[E]very man who puts money into the hands of a "government" (so called), puts into its hands a sword which will be used against him, to extort more money from him, and also to keep him in subjection to its arbitrary will. [] That those who will take his money, without his consent, in the first place, will use it for his further robbery and enslavement, if he presumes to resist their demands in the future. [] That it is a perfect absurdity to suppose that any body of men would ever take a man's money without his consent, for any such object as they profess to take it for, viz., that of protecting him; for why should they wish to protect him, if he does not wish them to do so? To suppose that they would do so, is just as absurd as it would be to suppose that they would take his moeny without his consent, for the purpose of buying food or clothing for him, when he did not want it. [] If a man wants "protection," he is competent to make his own bargains for it; and nobody has any occasion to rob him, in order to "protect" him against his will. [] That the only security men can have for their political liberty, consists in their keeping their money in their own pockets, until they have assurances, perfectly satisfactory to themselves, that it will be used as they wish it to be used, for their benefit, and not for their injury. [] That no government, so called, can reasonably be trusted for a moment, or reasonably be supposed to have honest purposes in view, any longer than it depends wholly upon voluntary support. 

Lysander Spooner, No Treason

T

is for taxation, which is not the price of liberty, but an encroachment on it:

Taxation is theft, purely and simply even though it is theft on a grand and colossal scale which no acknowledged criminals could hope to match. It is a compulsory seizure of the property of the State’s inhabitants, or subjects. 

Murray N. Rothbard

Government: If you refuse to pay unjust taxes, your property will be confiscated. If you attempt to defend your property, you will be arrested. If you resist arrest, you will be clubbed. If you defend yourself against clubbing, you will be shot dead. These procedures are known as the Rule of Law. 

Edward Abbey

It would be thought a hard government that should tax its people one tenth part. 

Benjamin Franklin (Sorry, Ben Carson, Ben Franklin says no to the tithe system of taxation)

Changes in attitudes toward authority, in some cases manifested as open hostility and organized resistance. Taxpayers are exhibiting a declining respect for and reliance on “the law” and government in general. A “decay in the social contract” is detectable; there is a growing feeling, particularly among middle—income taxpayers, that they are not getting back, from society and government, their money’s worth for taxes paid. The tendency is for taxpayers to try to take more control of their finances, perhaps because they see an uncertain economic future for themselves; they exhibit a declining willingness to pay the share of governmental expenditures (including expenditures they may strongly disagree with) which government says is theirs to pay. 

IRS Strategic Plan, (May 1984)

U

is for unalienable, the spelling used by Thomas Jefferson in the writing of the Declaration of Independence, because the idea is more important than how you spell the idea, and the idea is that the rights endowed on us by Nature and Nature's God are not alienable, that is, they cannot be taken away or denied.

V

is for vigilance, eternal, the actual price of liberty.

W

is for West Virginia Board of Education v. Barnette, the Supreme Court decision protecting students from compulsory participation in flag salutes, because, the Court concluded, the effort to compel student was rooted in a tyranny of the mind:

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.  

West Virginia Board of Education v. Barnette (1943)

X

is for X, Malcolm, American Muslim, formerly in leadership of Nation of Islam, social activist:

Nobody can give you freedom. Nobody can give you equality or justice or anything. If you're a man, you take it. 

Malcolm X

You can't separate peace from freedom because no one can be at peace unless he has his freedom. 

Malcolm X

If you're not ready to die for it, put the word 'freedom' out of your vocabulary. 

Malcolm X (quoted in Chicago Defender, 28 Nov. 1962, p.8)

Y

is for Youngstown Sheet and Steel Tube Co. v. Sawyer, in which the Supreme Court rejected the seizure of private property by the Executive Branch:

The President's power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself. There is no statute that expressly authorizes the President to take possession of property as he did here. Nor is there any act of Congress to which our attention has been directed from which such a power can fairly be implied. Indeed, we do not understand the Government to rely on statutory authorization for this seizure.  [] Nor can the seizure order be sustained because of the several constitutional provisions that grant executive power to the President. In the framework of our Constitution, the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute. The first section of the first article says that "All legislative Powers herein granted shall be vested in a Congress of the United States. . . ." [] The Founders of this Nation entrusted the lawmaking power to the Congress alone in both good and bad times. It would do no good to recall the historical events, the fears of power, and the hopes for freedom that lay behind their choice. Such a review would but confirm our holding that this seizure order cannot stand. 

Justice Hugo Black, Opinion for the Court

Z

is for zombification, the process by which the heart born yearning for freedom is coddled into a comfortable and submitted relationship with the State:

Dependence begets subservience and venality, suffocates the germ of virtue, and prepares fit tools for the designs of ambition. 

Thomas Jefferson, Notes on the State of Virginia

Compelling Teacher's Conscience in Pennsylvania School

Sometimes you'll bother watching tennis, or table tennis (don't dare offend real players by using the belittling "pin-pong"). But if you do, and if you take the approach of closely watching the ball, rather than leaning back and taking in the entire field of play, you get that neck pain from the back and forth, back and forth.

Coerced payments to unions can cause a mental version of that neck pain. After all, as Thomas Jefferson said, in his proposed and adopted Virginia Statute for Religious Freedom,  "To compel a man to furnish funds for the propagation of ideas he disbelieves and abhors is sinful and tyrannical." Yet, when a worker is compelled by a constellation of factors, including state laws permitting closed shops and National Labor Relations Board recognition of particular unions as the authorized collective bargaining agent for workers, she will, in fact, be compelled "to furnish funds for the propagation of ideas [s]he disbelieves and abhors...."

Here's an example of what unions do with dues that falls entirely outside the scope of collective bargaining:  "AFL-CIO Files Supreme Court Amicus Briefs to Support Marriage Equality." That's the headline of a page on the AFL-CIO webpage. Now, suppose you are coerced to pay union dues. You might wonder, if you disagree with the position taken by the AFL-CIO on the question of same-sex marriage equality, why it is okay to compel you to furnish funds for the propagation of ideas you disbelieve and abhor.

In Pennsylvania, in a school district with a closed shop, a teacher with more than three decades teaching foreign languages is currently asking that very question. Lisa Misja teaches in Armstrong County, Pennsylvania's Apollo-Ridge High School. She objects to paying union dues on religious grounds. The Pennsylvania State Education Association does not dispute the validity of her religious objection. Because of a state law, Misja is required to pay the equivalent of union dues amount, which are collected by the PSEA and are, by state law, supposed to be paid over to a charity chosen by Misja and agreed to by the PSEA. For three years, the PSEA has refused to send her contributing amount to the Pennsylvania Coalition for the Unborn Child or the National Rifle Association. The Fairness Center has now brought suit against the PSEA on Misja's behalf to force the union to make the payments.

To better understand the problem with what the PSEA is doing, consider the following:

Public schools in Pennsylvania are GOVERNMENT schools. Their employees are GOVERNMENT employees. When a school district agrees to enter into a closed shop agreement with the union that is recognized by the NLRB to represent GOVERNMENT employees, it does not transform the employee into a non-GOVERNMENT employee, it does not transform the job into a NON-GOVERNMENT job.

So here it is. The School District compels teachers to be members of the Union.

Past decisions of the Supreme Court have construed the First Amendment to protect a right to freedom of association. That "freedom of association" expresses itself in at least two polar ways: those with whom we just to associate, and those with whom we chose not to associate. As a consequence, while employees may be compelled to pay the equivalent of the cost of union dues, they cannot be coerced actually to join and be a member of a union.

Past decisions of the Supreme Court have also construed the First Amendment as guaranteeing union objectors to be protected from being coerced to contribute to the union in amounts over and above the cost of negotiation and representation costs. You may not have realized it, but as I noted above, many unions collect more in union dues than the cost of representation in collective bargaining. The amounts over and above representation can be used for a variety of things. One thing that unions have done, though, is engage in broad programs of social advocacy. And, with respect to the use of YOUR MONEY THAT YOU EARNED THROUGH YOUR LABOR, the Supreme Court has held that the Freedom of Association protects conscientious objectors from having those "over and above" costs used by the Union for political advocacy.

So, while the Court has held that individuals can be compelled to pay the costs of collective bargaining (but not the over and above advocacy costs), in Pennsylvania, the law provides that, where a collective bargaining agreement requires it, an objecting non-union member must pay the equivalent of the union dues as a Fair Share Charitable Contribution. Pennsylvania requires that such fees MUST be contributed to a CHARITABLE CAUSE AGREED TO BY THE UNION AND THE NON-MEMBER. (As an aside, I should mention the law requires that the contribution be made to a NON-RELIGIOUS charitable cause.)

This case, then, comes from the fact that the Pennsylvania State Education Association and the teacher HAVE NOT AGREED ON the charity chosen by the teacher. Misja's choices -- the Pennsylvania Coalition for the Unborn Child and the National Rifle Association -- have not been approved by the PSEA. For that reason, the PSEA has withheld her contributions in an interest-bearing escrow account.

The lawsuit will bring into sharp focus, if it is allowed to proceed, this culturally odd solution, potentially unconstitutional in nature, offered by the Commonwealth of Pennsylvania when it permits the creation of closed shops in GOVERNMENT employment but seeks to assuage conscientious objectors AND THE CONSTITUTION by creating what is now proving to be an unworkable system of COERCED CHARITY.

Two Other Great Truths

National Archives Architectural Inscription from

Shakespeare’s The Tempest, Act II, Scene 2

Preface

Nothing changes simply because it might, it could, or it should. Change happens because it is made to happen. Change happens because those that desire change commit to bringing it about and devote time, labor, and wealth, to the end of change.

Our independence from Great Britain, for example, was not necessarily inevitable. Preconditions necessary to change came into play. Those preconditions included threats to, and loss of, civil and economic liberties, denial of equal representation in government, the exacerbation of dangers attending to the exploration, settling and development of a new land, and the denial of accept rights of Englishmen.

But neither calamity nor oppression necessarily create change. How different this world would be if that were so. If change occurred simply upon realization of circumstances of oppression, no Iraqi invasion would have been necessary to the removal of Saddam Hussein. Under regimes whose histories and brutalities spell the name of the Twentieth Century – from the Soviet Union and Communist China on the grand scale, to Albania and Cuba on the small scale – people continue to demonstrate a shocking toleration for their own suppression, repression and oppression. 

In colonial America, change was preceded by agitation for change. Agitation for change was preceded by realization that the circumstances in which free Englishmen were living would not have been tolerated broadly in their homeland. Realization produced agitation, agitation coalesced a corps of advocates committed to bringing change to pass. Finally, in colonial America, change required active risk of loss.

TWO OTHER GREAT TRUTHS

Imagine the era in which our Nation’s birth was imminent.

From first footholds on the coast of the land, to exploration, to building villages, towns, and then cities, Englishmen and others labored to wrest, first, that foothold, then, an existence, and eventually, an enduring life in that distant, promising, and sometimes strange new world. This story is America’s story.

It is also my family’s story.

One of my forebears, John Beckley, came from England to America as an indentured servant. Beckley worked seven years to pay for his passage and freedom. After, as so many others, he began to build just such a life in America. In the course of his life, he befriended Thomas Jefferson, became the first clerk of the House of Representatives, the first Librarian of Congress and, as some historians conclude, the first political campaign manager in United States politics.

His story matters. Our story, as a People, matters. Understanding our story matters.

This nation did not simply “happen.” Coincidence did not craft our liberties, nor did it separate us from our English ruler. Coincidence did not articulate the Declaration of Independence, one of the most profound statements of the natural rights of men.

An increasingly hostile British government neglected the dangers facing its distant sons and daughters. Worse, that government began predating on them. Special taxes and levies were imposed on goods and services. Taxes and penalties were imposed without representative participation in the process.

An ancient and established right – to have one’s guilt or innocence when accused of a crime decided by a jury of one’s peers – was denied. The hard won livelihoods of colonists were violated by coercing colonists to fund bed and board to the very troops sent by the hostile government to keep subversive sentiment at bay. When those troops attacked colonists, even killed them, the government evinced that same hostility by protecting those troops from the consequences of their criminal conduct.

These impositions, hostilities, and attacks did not come all at once. Rather, they accumulated over time. In fact, some of them were met with such strenuous opposition in response that they were retracted; the Stamp Act of 1765 provoked a significant and burdensome boycott of British goods that led to its repeal, although the repealing Act, the American Colonies Act, asserted the direct power of Parliament to legislate for the colonies.  Over the course of time, like the healed bruises and bones of an abused child, the unmistakable evidence mounted that the American child was not as well loved as his brothers back in England. The constant train of abusive conduct led American colonists ineluctably to the conclusion that only worse abuses and oppression would follow.

It was that temper of those times that set the stage for Thomas Jefferson’s crafting of the Declaration of Independence, his profound statement of the natural rights of man. In our modern times, the connection of the abuses of American colonists’ liberties to Jefferson’s clarion cry of liberty may have become quite attenuated. That this is so was most recently evidenced by the rather blank assertion by TV news reader Chris Cuomo that our rights are not gifts of God. 

Cuomo might, of course, be right. There might be no God. Or, there might be a disinterested God that grants no rights. Nonetheless, Thomas Jefferson asserted and the signers of the Declaration of Independence agreed, Nature’s God exists and Nature’s God established certain truths as self-evident. On those truths, Jefferson built the case that the Englishmen of the New World possessed the right to dissolve their connection to the Crown and Parliament and stand up a new federation of States.

Of course, for patriotic events, and for the sheer force of its cogency, few statements so soundly lay a claim on the mind, or set fire to reason as thoroughly as these:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

Jefferson and the signers of the Declaration knew that a world beyond the American shores would watch what would happen here. They knew that other peoples, living under other kings, in other lands, would necessarily consider what was done, and on what grounds it was justified. In fact, in his preamble, Jefferson wrote:

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

Now we have the long view of history to aid us as we consider the premises of that revolution, the provocations of it, and the truths on which it was premised. We also have the benefit of the testing of the truths of the Declaration over time, and the opportunity to evaluate whether, given the present course of events, a like train of abuses and usurpations is driving a free people to a new revolution.

Like most American school children, in elementary school, and in junior and senior high school, at varying levels of detail and sophistication, I learned about the great truths asserted by Jefferson and the signers of the Declaration of Independence. You, too, remember those truths:  that we are endowed by our Creator with certain unalienable rights, including the rights to life, liberty, and the pursuit of happiness. These familiar truths focus on the rights of every person, on what we today call our civil rights. To observe that little emphasis was placed on two other self evident truths stated in the Declaration of Independence would be, I think, fair.

Those two further truths suffer in desuetude. Perhaps they are mostly ignored, not intentionally, but because, we have, as a people, lived a long period of national remorse of our failing to respect these truths, most particularly because we recognize the inconsistency between the stirring assertion of those fundamental, unalienable rights and our Nation’s checkered history in relation to them, particularly our historic dalliance with, and blood-letting devotion to, the Peculiar Institution of Human Slavery, the treatment of Native Americans, and other tolerated instances of disrespect for those rights.

Of course, schooling on these topics might be different today. In my youth, we lived in the shadow of the burgeoning civil rights movement. As significantly, we witnessed a growing, generational focus on personal rights. For that reason, the other two great truths, self-evident truths, asserted in the Declaration remained hidden in plain sight under the umbra of the rights to life, liberty and the pursuit of happiness. Those latter principles pertain to the defense and maintenance of the previously stated natural rights.

So, then, what were those two additional self-evident truths? And, as importantly, was there a nexus between those two further truths and the monumental act of civil disobedience, The Revolutionary War?

Jefferson stated those two truths this way:

That to secure those rights, governments are instituted among men, deriving their just powers from the consent of the governed.

and

That whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and institute a new Government, laying its foundation on such principles and organizing its power in such form, as to them shall seem most likely to effect their safety and happiness.

Let those self-evident truths sink in. Imagine the impact of such a declaration. Remember how different were the times in which they were asserted, in the face of monarchical rule across Western Europe, indeed, right around the globe. Yet, these words declared that the only true and good purpose of government is to secure the unalienable rights to life, liberty, and the pursuit of happiness.

The reason. To secure those rights.

As a practical theorem, this presumption – that governments come into existence and continue in force to secure those natural rights, those civil rights – is one we can evaluate objectively, with a significant body of history as evidence. Do governments exist only for this great purpose? What evidence exists to support, or to disprove, that theorem?

Sadly, substantial empirical evidence exists that this theorem of government – as the servant and protector of liberty – is unfounded, or at least it is not a universal truth. Indeed, it is probably, certainly, easier to prove that governments exist for other purposes, nefarious, dark ones, then the contrary and wholesome purpose of securing liberty.

Abounding examples include the brutal scourge that has been Marxist communism.

In Eastern Europe and Western Asia, the Russian Revolution and eventual rise of the Soviet Union provide ample evidence that the securing of life, liberty, and the pursuit of happiness did not drive monumental governmental and social change. If securing life was the goal, then how do we explain the millions of people dead in Soviet Georgia and Ukraine under Stalin? If securing liberty was the goal, then what explanation justifies the creation of the Soviet Gulag, a system of internal incarceration for subjects of the Soviet state? If securing the right to the pursuit of happiness was the Marxist-Leninist vision, then how do we explain the assignment of jobs, of housing, and of university courses of study by the state? And how do we explain the constant exodus from such a place?

What of the bloody and devastating reign of Mao Zedong in China? What of the continued brutality of China’s “one child” policy, with forced abortions, the consequent devaluation of baby girls, and the resulting desperate efforts of those who value, but fear the deprivation of, the right to procreate, to flee their homes, their native land?

And what of the Haitian procession of brutal dictators name Duvalier? Or the brutality of Ho Chi Minh’s regime, including the puncturing the eardrums of Catholic school children and slicing off the tongues of the Catholic priests who taught them? How to fit the syphilitic madness and cruelty of President for Life General Doctor Idi Amin Dada into such a theorem?

Hitler. Mussolini. Mugabe. Pol Pot. Khrushchev. Hussein.

Just these few names – chart toppers, if you will, on a hit parade of governmental brutality and denial of individual rights and liberties – lay substantial doubt at the feet of Jefferson’s notions about the purpose of governments. There is no end to the litany of governments and leaders whose aspirations, whatever they may have been, worked themselves out in the blood, forced labor, deprived opportunity, and coerced choices of those trapped under their heels.

Were the framers of the Declaration of Independence in error?

Are governments not really instituted to secure these rights? Or, is there a further truth that illuminates the meaning of the principle they enunciated?

If there is unstated, but intended, a sense that good governments, right governments, are created for the sole and salutary purpose of securing self evident, unalienable rights, then that self-evident truth purchases greater support in reality. After all, our new governments, we understand, were instituted because the British one preceding them became destructive of the rights to life, to liberty, and to the pursuit of happiness. And that “good” sort of government just might be what is apprehended in that self-evident truth, for, as they explain their view, such governments derive “their just powers from the consent of the governed.”

(No Pollyanna here, the very men that pledged their lives on these truths nonetheless acceded to the continuation in force of the Peculiar Institution of Human Slavery. Their singular hypocrisy – declaring the created equality of everyman while impressing into hard bondage and uncompensated labor the men and women of Africa – cannot be ignored. Yet, for the success of their venture, wisely or no, they believed a compromise on the question of slavery was necessary to get the entire enterprise of liberty off the ground. Yet, we should not lose sight of the fact that, had America remained part of the English kingdom, slavery would have ended decades sooner, and possibly at the cost of less blood, fewer lives, and shorter bondage.)

The Declaration speaks of just powers.

The question arises, what are the “just powers” of a government? It seems reasonable to wonder if there is a connection between “just powers” and the reason they government exists: to secure the unalienable rights before mentioned. Perhaps the just powers of a government are those necessary to the securing of those unalienable rights. In other words, a power to secure the natural rights of the people, by the creation and maintenance of an armed force, military or police, would be, by such reasoning, a just power, if at all, because it is necessary to secure those unalienable rights and because its uses are limited to that end, served only by means consistent with it.

In fact, the test of whether American colonists could continue to consent to being governed by the Crown and Parliament is set out in the Declaration. Jefferson does not just set a clarion call for liberty, he justifies that call by setting out a brief catalog of intrusions, violations, denials, and usurpations; of remonstrations to the Crown and Parliament, and to their brothers at home; and of disregard for their oppression. See sidebars.

So, a constant course, a design, could be discerned in the actions and inactions of the British government. How hard would it be to divine an intention from among such acts as denying representation in Parliament, denying colonial legislatures permission to convene, suspending laws enacted by colonial bodies, targeting the colonies with burdensome laws not generally applicable within the Kingdom, denying rights of due process and property, quartering troops among the people in response to petitions and objections to the abuses suffered? That design, Jefferson wrote, was “to reduce the[ colonists] under absolute despotism . . . .”

Despotism is absolute authority. Despotism is autocratic rule. Despotism is tyranny.

The litany of crown abuses given by Jefferson left little room for doubt that King George III was ill-disposed toward the American colonists. The failure of Parliament to act on the constant pleas of those colonists for relief left little room for doubt that the Parliament cared not for the depredations suffered in America by British citizens. The Declaration of Independence left little room for doubt that a people suffering so, under the heel of a tyrant and with the complicity of Parliament, had both a right and a duty “to throw off such government, and to provide new guards for their future security.” 

Barack Obama:  American Despot?

Have we come to such a time? Are we now under a design to reduce us under the “absolute despotism” of Barack Obama? Have our pleas for rectification of his wrongs gone unheard and unanswered in the Congress?

A few examples serve to outline a justification, at least, for asking these questions, for questioning whether the imperious acts of the President evince a design of rendering the People subject to the singular, autocratic rule of a President that consistently, when afforded the opportunity to do so, gone so far outside the boundaries of his responsibilities and proper powers. Indeed, these examples, which can certainly be supplemented by myriad others, justify asking whether we are witnessing anew the careless push by a potentate of the People toward the precipice of new revolution.

To understand despotic action, to evaluate a claim that our Nation is being led toward such an absolute despotism, we must understand the nature and structure of government in America. Not a democracy, America is a federal republic: fifty separate States, each guaranteed a republican form of government by the United States Constitution, that have created a general government, also republican, or representative, in nature.

The framers of our governments, State and federal, anticipated the dangers of despotism and sought to prevent its occurrence here by fracturing governmental power in two ways. First, as a federated republic, we are a body of States, each constructed on a republican – that is, representative – mode of government. Thus, though a Nation of some 320 million inhabitants, we are not a monolithic nation-state, but 50 separate States. Second, those States have joined together in a single union, the central powers and responsibilities of which have been voluntarily deposited by those States in three distinct, separated branches: the Legislative, the Executive, and the Judicial.

These structural divisions – between the States and the general government and between the branches of the general government – reflect a reality. That reality is that concentration of power (think “despotism”) endangers liberty.

The separation between States and the general government entirely withdraws from the sphere of the general government’s authority the power to interfere with a broad variety of concerns often referred to as matters of health, safety, and morals. That separation produces a circumstance in which Vermont can permit marriage with parental consent at age 14 and South Carolina can prohibit that same marriage. Likewise, it recognizes that Florida may desire to provide personal injury immunity to amusement park operators while New Mexico can allow personal injury lawsuits for serving coffee hot.

The separation of powers among the branches of the general government likewise withholds from any single branch of the government a sufficient quantum of power to risk the rise of despotic rule.

Given these parameters, we see that the constitutional design limits the power of the President to a specific set of authorities, and does not grant him a broad writ to undertake the exercise of kinds of power belonging to the States, or to the coordinate branches of the federal government. In respect of the separation of power, we have to understand that, in matters assigned to one branch alone, it is a violation of the Constitution, for one branch of the federal government to usurp powers assigned to another branch. The Constitution deposits the power to legislate solely in the Congress of the United States. Neither the President nor the Courts have any legislative power at all. 

While some might pause and wonder over a concept like separation of powers, raising concerns that such considerations are above the grasp of minds not trained in the law, the basics are fairly easy to grasp.

If you will, picture a common circumstance in your life, such as visiting a doctor’s office. You would suspect something awry if you arrived at the office, were checked in at the registration desk by the doctor, had basic vitals and health information taken by a visiting pharmaceutical sales representative, and your examination conducted by the building janitor. Your suspicions would be greatly aroused if you noticed that the doctor was handcuffed to the registration desk, the sales representative had fresh bruises on her face from being punched, and the janitor had a pistol tucked into the back of her jeans. In either circumstance, no one is doing their assigned task, and while some are doing tasks they might manage as well as anyone, others are clearly out of their element.

The separation of powers designed into the Constitution by the States and the People is not so very different. So, imagine if Chief Justice Roberts and a majority of the Supreme Court issued a decision tomorrow declaring that the United States was at war with Russia, ordering troop movements, dispatching our strategic bombers, and recalling the ambassador to Russia. Or, imagine if the President decided to conduct all federal criminal trials before panels of attorneys from the Department of Justice. Not jury trials by one’s peers, but panel trials conducted by the very officials accusing defendants of crimes. Or, imagine if Congress began passing laws declaring named individuals guilty of stated crimes and imposing sentences on them, all the while omitting indictments, pleas, trials, attorneys and the like.

These examples show what a separation of powers violation might resemble. To be sure, the offered examples are blunt instruments, showing ham-fisted grabs for power and obvious constitutional violations. Does subtlety of action, however, mean that a violation of the separation of powers has not occurred? 

President Obama’s Penchant for Executive Action:

When President Obama stated, “I’ve got a pen and I’ve got a phone,” he signaled his conclusion that, on important matters of policy planning and execution, he would bypass the Congress where, in his view, it had failed to act. This tantrum – “I’m not getting what I want out of Congress so I’ll do things that my impatience with Congress confirms are responsibilities of Congress and not the President” – justifies NOTHING.  It merely confirms the President’s lawless disregard for the Constitution.

Thus far, we know that, by executive action, Obama has adopted as a rule of action provisions of the DREAM Act, under so called “Deferred Action for Childhood Arrivals.” Via executive action, Congress having not enacted the DREAM Act, Obama has opened a door to millions of undocumented aliens living in America that arrived here as children (up to age 16), so long as they show that they are in school, or have completed school,  and are free from any significant history of criminal activity. Via executive action, Obama has announced his intention to expand that amnesty to millions of additional family members of persons that qualify under DACA.

Obama’s administration has signaled its intention to prohibit, by executive action, the importation and sale of one of the most widely popular bullets used by AR-15 owners. Leave aside the constitutional question – no small objection except to Democrats – whether a ban on bullets with militia use and effect may be regulated or suppressed by the federal government. Under which clause of Article II of the Constitution arises this presidential authority to sift among bullets and prevent importation of those not intended for “sporting purposes?”

In both cases – regularizing the status of undocumented aliens and restricting imports and sales of goods – Obama’s executive action violates the constitutional separation of powers.  First, Congress, not the president, has the power to provide a uniform rule of naturalization. So it is beyond the president’s power to make rules in this area.  Second, Congress, not the president, has the Commerce Clause power to regulate interstate and international commerce.

Now, as the Obama administration pursues international agreements, with China and with Iran, we learn that the President will at least consider embodying those agreements in packages that are not treaties. Treaties, of course, must be ratified by the Senate to bind the United States:

The President ... shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur ....

Yet, in a daily press briefing, Press Secretary Josh Earnest asserted that duly elected members of the Senate, who with their fellows enjoy an equal role with the President in the treaty making power, were not qualified to vote on any climate change accord that the United States and China might craft:  "I’m not sure they would be in the best position to decide whether or not a climate change agreement is one that is worth entering into." Further pressed by the Fox News correspondent whose question provoked the response above, Earnest announced a test for qualification for the right to vote on treaty ratification that is entirely a-constitutional:  "I think it's hard to take seriously from some members of Congress who deny the fact that climate change exists, that they should have some opportunity to render judgment about climate change agreements."

Obama’s administration also admitted consideration of raising taxes through executive action:

[T]he President has asked his team to examine the array of executive authorities that are available to him to try to make progress on his goal.  So I’m not in a position to talk about any of those in any detail at this point, but the President is very interested in this avenue generally.

Pick nits with me over immigration.

Accuse me of counting angels on pinheads over the threatened ammunition import and sales bans.

Still, you cannot deny that as a matter of history, this Nation’s tumultuous rise fixed as a principle of our future government that imposition of taxes without representation was tyranny. The Executive Branch is not a representative body of the people. Moreover, the power to lay and collect taxes belongs to the Legislative Branch, not the Executive:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.

Thus, this Administration’s acknowledgment that it is looking at such action is its admission that it considering a flagrant constitutional violation with a strong nexus to the provocations leading to the first American Revolution.

You can see for yourself the White House’s assertion of “executive action” on a variety of matters here. A White House document summarizing planned executive actions, prepared for the 2014 State of the Union address is here. 

Obama publicly remonstrates that he “isn’t a dictator.”  His denials, however, are belied by his frequent and increasing reliance on executive action, particularly when his actions are on matters plainly and solely within spheres of responsibility and authority assigned to Congress by the Constitution.

Suspension of Legislation:

King George III, Jefferson wrote, forbade colonial governors from passing “laws of immediate and pressing importance.” In the push for health care reform, the White House and the Democratic leadership of Congress constantly pressed precisely the case that such reform was of immediate and pressing importance. Its importance was highlighted by the decision of congressional leadership to press for immediate passage rather than to consider amending the Affordable Care Act to make it more amenable to Republican, and thus, bipartisan, support.

President Obama spoke to the urgent need for reform: “The tens of millions of men and women who cannot afford their health insurance cannot wait another generation for us to act.  Small businesses cannot wait.  Americans with pre-existing conditions cannot wait.  State and federal budgets cannot sustain these rising costs. It is time for us to come together.  It is time for us to act.  It is time for those of us in Washington to live up to our responsibilities to the American people and to future generations.”

Then Speaker of the House, Nancy Pelosi, claimed that the Act would “provide Americans and American businesses … quality, affordable, accessible health care they need and deserve[ and] give Americans stability and peace of mind that they cannot be denied care or coverage for pre-existing conditions.”

Then-Senate Leader Harry Reid, in like vein, addressed the pending reform legislation, stating, “these are serious problems. And serious problems deserve serious efforts by serious legislators to develop serious solutions.”

So, without the vote of a single Republican representative or Senator, Congress, enacted the Patient Protection and Affordable Care Act. The Act reformulated the health care insurance industry in America, one previously regulated by each of the fifty States. The Act imposed mandates requiring individuals to have health insurance and employers to provide such insurance. Obama, of course, signed the Act indicating his consent to its terms and conditions.

As quickly as the ink dried, however, Obama’s administration began to swiss-cheese the law’s requirements with exceptions and exemptions. In all, over 1000 exemptions were granted, and over 24 implementation deadlines were waived or moved back. These were granted by Obama’s administration but not authorized under the terms of the Act. Each of these administrative suspensions of the Act’s requirements had the same impact, identical in effect, as if Obama had suspended Congress from legislating as to the involved issues.

In another area, Obama has likewise “refused his assent to laws, the most wholesome and necessary for the public good.” He did this by vetoing the Keystone XL Pipeline Construction Act.  That legislation enjoyed bipartisan support in the House and the Senate. In effect, the pipeline would lessen dependence on Venezuelan and Middle Eastern supplies of energy. An earlier Obama candidly acknowledged that our dependence on foreign energy supplies weakened us as a Nation. Candidate Obama, in 2008, stated, “The price of a barrel of oil is now one of the most dangerous weapons in the world. [] The nearly $700 million a day we send to unstable or hostile nations also funds both sides of the war on terror, paying for everything from the madrassas that plant the seeds of terror in young minds to the bombs that go off in Baghdad and Kabul. [] Our oil addiction even presents a target for Osama bin Laden, who has told al Qaeda, ‘focus your operations on oil, since this will cause [the Americans] to die off on their own.’”

Yet, given the opportunity, Obama vetoed the Act, a law most “wholesome and necessary for the public good.”

Quartering Others amongst Us:

Under British rule, colonists were required to provide quarters and, at times, provisions for British troops. At times, the requirement to provide such quarters and provisions was accepted; for example, during the French and Indian War, troops were housed and provisioned by the colonists, and, as the war was fought to protect them, colonists accepted the burden. The same burden of quartering and provision, however, imposed on the colonists when the troops were posted in the colonies for the purpose of suppressing dissent, caused substantial unrest.

To be clear, however, quartering of troops did not typically mean having to give up one’s own beds and food. The Quartering Acts simply required that quarters and provisions be provided.  It was not that colonists were being forced out of their own beds. Rather, it was that they were assessed considerable financial burdens to support the British troops.

Today, no one living in America can complain that they are being rousted from their beds to provide space for troops.

Yet, by a series of executive actions and inactions, the American people are being strangled financially by a like harm.  The unresolved problem of illegal immigration to the United States, together with recent executive actions calculated to substantially increase the tax burdens of American citizens and legal residents, inflicts the identical set of harms on the livelihoods of Americans.

Some will dispute any comparison between quartering troops involuntarily and being required, involuntarily, to receive, regularize and financially support illegal immigrants.  Remember, the principal objection to the Quartering Act was its costly burden, not just the seeming unseemliness of having to provide bed and board to your oppressors. While the quartering provisions to which the Founding generation objected were temporary in nature, the Obama Administration recently acknowledged in Texas litigation that it had extended deferrals under its DACA program for over 100,000 applicants for an additional three year period.

Given the porous condition of the Nation’s borders, the refusal of Congress to secure the borders, and the words and actions of the Obama Administration, the quartering harms associated with illegal immigration and illegal executive amnesty far outstrip those temporary ones provoking our colonial rebellion.

Erecting a Multitude of New Offices:

It will be said that, under Obama, the number of government employees has fallen to its lowest level since the Johnson presidency.  But the enactment of the Patient Protection and Affordable Care Act has resulted in a call by the Internal Revenue Service for an additional 9,000 agents and an additional $2,000,000,000 in funding. 9,000 REVENUE agents ADDED! And to what end, if not to eat out the substance of the people, both through the extortionate command to purchase health care insurance and the punitive imposition of a tax penalty -- the so-called Shared Responsibility payment -- on those that fail to obey the statist command to buy health insurance.

Abolishing Our Most Valuable Laws and Altering Fundamentally Our Forms of Government

As to the latter charge – altering fundamentally our forms of government – the discussion above regarding Obama’s persistent violation of the separation of powers evidences his design to “fundamentally transform America.”

As to the former, with some trepidation I approach the contentious question of the legal structure of marriage in America. Whether you are gay or straight, for same sex marriage or traditional marriage, you should be taken aback by the Obama administration’s wanton failure to defend a federal statute defining marriage for federal law purposes and affirming the sovereign right of each State to define the institution of marriage through its own system of law. Yet, Obama and Holder refused to present the defensible arguments for the constitutionality of the Defense of Marriage Act. That failure of duty only marks a waypoint in the present administration’s decision to one-sidedly attack political solutions adopted in the States and in the Congress for an unresolved, still developing, highly contentious issue.

Declaring Us Out of His Protection:

Amity – friendship – is a lost skill. It is, it seems, more intensely missing on the battlefields of politics and ideology today than ever before. Still, being an ideological opponent or a political opponent, while sharing a common heritage in this Nation and a love for this land and its people, had formerly put beyond the pale certain kinds of character attacks and assassinations. The relationship of Ronald Reagan and Tip O’Neill amply evidence how political opposites had related formerly.

With Obama’s rise, however, we see foreign enemies treated with kid gloves. In Iran, the Supreme Leader smiles while crowds chant "Death to America," and Obama labors to find a nuclear détente with that oppressive regime. Yet, in the very same moment, here at home, Obama’s military and Homeland Security identify as extreme and dangerous: conservatives, Catholics, Christian fundamentalists, constitution advocates, and others whose single greatest threat to America is their evident clinging to God, guns and the Bible.

Obama’s stand-ins, following the 2012 election, were even more direct and chilling in their threats to Americans that opposed the President and resisted his agenda. It is broadly reported that Valerie Jarrett expressed this threat quite directly:

After we win this election, it’s our turn. Payback time. Everyone not with us is against us, and they better be ready because we don’t forget. The ones who helped us will be rewarded; the ones who opposed us will get what they deserve. There is going to be hell to pay.

Apparently the Obama administration believes it also has power to declare war on Americans.

Exciting Domestic Insurrection:

As a nine year old living in the suburbs of Washington, DC, I saw urban centers erupt in flames following Martin Luther King’s assassination. When a jury acquitted the officers that beat Rodney King, I watched on television as Los Angeles erupt in flames. Still, these incidents of manic self-destruction and wanton violence – understandable I suppose in the way that a Buddhist monk’s self-immolation as a political statement is understandable – were infrequent episodes on the road toward fulfillment of the Declaration’s promises of equality.

Today, with the insufferable interposing of Obama’s Department of Justice, the chant “Hands up, don’t shoot!” has come to represent a reality:  America is more deeply divided on racial lines than prior to the Obama presidency. We now know that the rioters’ mantra was a sick fantasy and unrelated to the facts of the Ferguson incident. 

Yes, we are sick to our soul over needless deaths of young black men. And we rightly worry about a too ready resort to lethal force by police. Still, when Obama might have quelled unrest in Ferguson, Missouri, he followed the race-baiters’ playbook. When placation and calming would have protected people and property, Obama could not, would not. Attorney General Holder would not, could not. Their participation in the fomenting of riot shames them, harms the Nation and aligns them with King George, who sought to endanger the lives of colonists by stirring up strife at home in the colonies.

Combined with Others to Subject Us to a Jurisdiction Foreign to our Constitution, and Unacknowledged by Our Laws:

Under Article VI of the Constitution, the Constitution itself is the Supreme Law of the land. Together with the Constitution, federal statutes and treaties share in that supremacy, but the Article’s meaning could not be clearer. Any federal statute, any treaty, inconsistent with the Constitution is subject to the boundaries and binding of the Constitution. So, for example, the Treaty on Small Arms being contemplated for signature by the Obama administration, would threaten the right of Americans to keep and bear arms. That Second Amendment right is Supreme over treaty law, yet the administration continues to consider becoming a signatory to the treaty and subjecting the People of the United States to the jurisdiction of international bodies with respect to handgun ownership.

The kinds of treaties so loved by progressives are just this kind of attack on liberty. Not just the Small Arms treaty, recall the Clinton/Gore push for approval of the Kyoto Protocols on “climate change” that would have hamstrung American business, raised astronomically the cost of energy generation, and reduced our international footing for economic competition.

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We Americans, those sensible to the danger to liberty that a rising tyrant presents, have not failed to seek redress. We have called on the House of Representatives to exercise its constitutional powers – budget, oversight, and impeachment – in answer to the tyrannical bent of Obama. We have prayed for their solicitude to our claim that each exercise by him of executive action usurping the Legislative Power does not merely demeaning the Congress, but strikes a deadly blow against representative government, against our Republic.

Our pleas go unanswered.

Congress withholds its disciplinary hand. The President proceeds apace in his constitutional profligacy. In so doing, he looms larger in his tyranny. The precious liberties of the People fall under the looming shade of his usurpation. Still, a Congress entirely in the hands of the political party opposite the President does not heed the danger, does not act to curtail the abuses.

If you see tyranny, whether in its infancy or blossoming into full vigor, in this administration, you have a duty to speak. And the sufficiency of speaking may soon pass. We may be peering into that time, as Jefferson described it, “when[] a[] form of government [has ]become[] destructive of these ends . . . .” If so, will you stand with Jefferson and the Framers, averring “the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness[?]”