Monday, September 27, 2010

For Jeremy

The following blog entry is for our friend, Jeremy, who asked us questions about our beliefs at a time that we were not able to give complete answers. Hopefully, this will explain what we wanted to say and will also provide material for future conversations:


Our spirits are eternal. They existed before we came to earth and will continue to exist after we leave the earth. God is not only our Ruler and Creator; He is also our Heavenly Father. All men and women are literally the sons and daughters of God. Every person who was ever born on earth is our spirit brother or sister. Because we are the spirit children of God, we have inherited the potential to develop His divine qualities.

Our Heavenly Father knew we could not progress beyond a certain point unless we left Him for a time. We needed to leave our premortal home to be tested and to gain experience. Our spirits needed to be clothed with physical bodies. We would need to leave our physical bodies at death and reunite with them in the Resurrection. Then we would receive immortal bodies like that of our Heavenly Father. If we passed our tests, we would receive the fulness of joy that our Heavenly Father has received.

Our Heavenly Father called a Grand Council to present His plan for our progression. We learned that He would provide an earth for us where we would prove ourselves. A veil would cover our memories, and we would forget our heavenly home. This would be necessary so we could exercise our agency to choose good or evil without being influenced by the memory of living with our Heavenly Father. Thus we could obey Him because of our faith in Him, not because of our knowledge or memory of Him. He would help us recognize the truth when we heard it again on earth.

He has chosen the time and place for each of us to be born so we can learn the lessons we personally need and do the most good with our individual talents and personalities.

At the Grand Council we also learned the purpose for our progression: to have a fulness of joy. However, we also learned that some would be deceived, choose other paths, and lose their way. We learned that all of us would have trials in our lives: sickness, disappointment, pain, sorrow, and death. But we understood that these would be given to us for our experience and our good. If we allowed them to, these trials would purify us rather than defeat us. They would teach us to have endurance, patience, and charity

At this council we also learned that because of our weakness, all of us except little children would sin. We learned that a Savior would be provided for us so we could overcome our sins and overcome death with resurrection.

When the plan for our salvation was presented to us in the premortal spirit world, we were so happy that we shouted for joy.

We needed a Savior to pay for our sins and teach us how to return to our Heavenly Father. Our Father said, “Whom shall I send?" Jesus Christ, who was called Jehovah, said, “Here am I, send me.”

Jesus was willing to come to the earth, give His life for us, and take upon Himself our sins. He, like our Heavenly Father, wanted us to choose whether we would obey Heavenly Father’s commandments. He knew we must be free to choose in order to prove ourselves worthy of exaltation. Jesus said, “Father, thy will be done, and the glory be thine forever.”

Satan wanted to force us all to do his will. Under his plan, we would not be allowed to choose. He would take away the freedom of choice that our Father had given us. Satan wanted to have all the honor for our salvation. Under his proposal, our purpose in coming to earth would have been frustrated.

After hearing both sons speak, Heavenly Father said, “I will send the first.”

Jesus Christ was chosen and foreordained to be our Savior. When Jesus lived on earth, He taught: “I came down from heaven, not to do mine own will, but the will of him that sent me. … And this is the will of him that sent me, that every one which seeth the Son, and believeth on him, may have everlasting life: and I will raise him up at the last day”(John 6:38, 40).

Because our Heavenly Father chose Jesus Christ to be our Savior, Satan became angry and rebelled. There was war in heaven. Satan and his followers fought against Jesus Christ and His followers. The Savior’s followers “overcame [Satan] by the blood of the Lamb, and by the word of their testimony” (Revelation 12:11).

In this great rebellion, Satan and all the spirits who followed him were sent away from the presence of God and cast down from heaven. A third part of the hosts of heaven were punished for following Satan. They were denied the right to receive mortal bodies.

Because we are here on earth and have mortal bodies, we know that we chose to follow Jesus Christ and our Heavenly Father. Satan and his followers are also on the earth, but as spirits. They have not forgotten who we are, and they are around us daily, tempting us and enticing us to do things that are not pleasing to our Heavenly Father. In our premortal life, we chose to follow Jesus Christ and accept God’s plan. That continues to be the choice for us while we are on earth. Will we choose Jesus, or will we choose Satan?

The right to choose between good and evil and to act for ourselves is called agency. In our premortal life we had moral agency. One purpose of earth life is to show what choices we will make. If we were forced to choose the right, we would not be able to show what we would choose for ourselves. Also, we are happier doing things when we have made our own choices.

Agency was one of the principal issues to arise in the premortal Council in Heaven. It was one of the main causes of the conflict between the followers of Christ and the followers of Satan.

Agency makes our life on earth a period of testing. Without the gift of agency, we would have been unable to show our Heavenly Father whether we would do all that He commanded us. Because we are able to choose, we are responsible for our actions.

We began to make choices as spirit children in our Heavenly Father’s presence. Our choices there made us worthy to come to earth. Our Heavenly Father wants us to grow in faith, power, knowledge, wisdom, and all other good things.

When we choose to live according to God’s plan for us, our agency is strengthened. Right choices increase our power to make more right choices.

We cannot choose righteousness unless the opposites of good and evil are placed before us.

God allows Satan to oppose the good.

When we follow the temptations of Satan, we limit our choices.

Even though we are free to choose our course of action, we are not free to choose the consequences of our actions. The consequences, whether good or bad, follow as a natural result of any choice we make.

Heavenly Father has told us how to escape the captivity of Satan. We must watch and pray always, asking God to help us withstand the temptations of Satan. Our Heavenly Father will not allow us to be tempted beyond our power to resist.

God’s commandments direct us away from danger and toward eternal life.

Tuesday, September 21, 2010

Fundamentals of Our Constitutions

Utah’s Constitution Day Celebration

Tabernacle, Salt Lake City, Utah

September 17, 2010

“Fundamentals of Our Constitutions”

Elder Dallin H. Oaks

I feel very privileged to be invited to speak to this great audience on Constitution Day. I appreciate the University of Utah Hinckley Institute’s invitation and its sponsorship of this and other community events over the last 45 years.

I will speak about the written constitutions of the United States and its 50 states. As I give examples of various issues under these constitutions — matters on which respected public officials have taken controversial positions — please remember that I am not referring to the persons who hold the various offices under those constitutions. I am speaking of the “institution” of constitutional government. The principles I describe apply regardless of who holds the offices and regardless of party affiliation. Our loyalty is to the institution. If we oppose persons who hold particular offices or the policies they pursue, we are free to vote against them or work against their policies. But we should not carry our opposition to the point of opposing their offices, or we weaken the institution of constitutional government.

Some of the things said by various persons in recent public discourse cause me to urge that we be more careful in the way we throw around the idea that something is unconstitutional. A constitution should not be used as a weapon to end debate. A public policy or a proposed law that is unwise is not necessarily unconstitutional. Even if it is a stupid proposal, it is not necessarily unconstitutional. A constitution gives the people and their elected leaders the opportunity to make many decisions that are unwise or even reckless. When that happens — when the government or one of its officials engages in some kind of action that we consider to be wrong — we should engage in vigorous public debate about it. But we should not use up a constitution by attempting to strike down every ill-conceived act of government or to discredit every unwise official. A constitution is the ultimate weapon, and we preserve that weapon best by using it sparingly and carefully. If we call some action unconstitutional, we should be prepared to explain what provision or principle of a constitution it violates. In this way, a constitution can be used to stimulate discussion and to seek unity.

We should, of course, always be vigilant to insist that our governments and their executives, lawmakers and judges stay within the limits prescribed by our constitutions. That is part of the rule of law, and all of the blessings enjoyed under our constitutions are dependent upon it. President J. Reuben Clark, an honored authority on the Constitution, declared that “our allegiance run[s] to the Constitution and to the principles which it embodies, and not to individuals. All that we say about the Constitution and our reliance upon it depends upon the rule of law and not of the men or women who hold the offices under it.”[1]

There is need for public praise of our constitutions and their principles. A rising generation of influential opinion makers seems to place a lesser value on the United States Constitution. An example of that was related to me by a recent law graduate. In a panel discussion at the Harvard Law School, a professor of constitutional law criticized the United States Constitution in harsh terms. Another faculty panelist speculated that if his colleague’s criticisms were valid we might as well just take our written constitution and “roll it and smoke it.” That kind of disdain for our national constitution is more than concerning.

The United States Constitution is the oldest written national constitution still in use. It has served Americans well, enhancing freedom and prosperity during the changing conditions of more than 200 years. Frequently copied, it has become the United States’ most important export. After two centuries, every nation in the world except six have adopted written constitutions,[2] and the United States Constitution was a model for all of them. Consequently, if we abandon or weaken its fundamental principles, we betray our own national ideals and we also weaken our global neighbors.

Now I will proceed to discuss four major fundamentals of the United States Constitution. In an earlier setting, under Church sponsorship, I referred to these fundamentals as the divinely inspired principles in the Constitution,[3] and I here affirm my belief that they are. But in this setting of a community program I will only refer to these as the great fundamental principles of our Constitution.

As I speak of these great fundamentals, I wish to take the long view. I do not wish to be understood as endorsing or condemning specific actions or proposals on current issues. I know that some will apply what I say — one way or another — to issues currently being reported in the media. But I do not seek to be heard for the short term. Drawing on over 50 years of observing a multitude of controversies over the application of constitutions, I am trying to describe fundamental principles that will be meaningful for decades to come. I leave to my listeners the task of agreeing or disagreeing with my description of the great fundamentals and — if they wish — trying to apply them to the very complex issues of this day and the different issues of the days to come.

I. Popular Sovereignty

I mention first what is probably the most important of the great fundamentals of the United States Constitution—the principle of popular sovereignty: The people are the source of government power; it is they who consented to a constitution that delegates certain powers to the government. I stress this fundamental by emphasizing what are not the sources of sovereign power. Sovereignty is not inherent in a state or nation just because it has the power that comes from force of arms. Sovereignty does not come from the divine right of a king, who grants his subjects such power as he pleases or is forced to concede, as in the Magna Carta. And sovereignty does not rest in an aristocracy of self-appointed wise men who think that their high birth or prestigious education gives them the right to prescribe what is best for everyone else. Sovereignty is in the people as a whole, and their sovereignty is supreme, subject only to a few crucial limitations that I will discuss in a moment.

Sovereignty in the people necessarily implies responsibility in the people. Instead of blaming their troubles on a king, on a cabal of military leaders, or on some distant group of wise men, citizens who are sovereign must share a measure of the burdens and responsibilities of governing. I will say more of this later.

The delegates to the Constitutional Convention did not originate the idea of popular sovereignty, since they lived in a century when persuasive philosophers had argued that political power originated in a social contract. But the United States Constitution provided the first national implementation of that principle.

After two centuries in which Americans may have taken popular sovereignty for granted, it is helpful to be reminded of the difficulties in that pioneering effort. A direct democracy was impractical for a country of four million people and about a half million square miles. As a result, the delegates had to design the structure of a constitutional, representative democracy, what they called “a Republican Form of Government.”[4] They also had to decide how minority rights could be protected when the government was, by definition, directed by a majority of the sovereign people. Part of that effort was to resolve whether a constitution adopted by popular sovereignty could be amended, and if so how.

The government of the United States had to be ultimately responsible to the will of the sovereign people, but it also had to be stable. Without stability against an aroused majority, government could not give individuals or minorities protection against overreaching by the ruling majority, a reality most evident when an outraged public calls for immediate punishment of one accused but not yet shown guilty of a crime. Government policies should not be tossed about with temporary swings in public opinion. The Constitution had to give government the power to withstand the cries of a majority of the sovereign people in the short run, but it had to be subject to their direction in the long run. The delegates to the Constitutional Convention achieved the required balance among popular sovereignty, stability, and protection of minorities through a power of amendment that was ultimately available but deliberately slow. It required the action of very large majorities — two-thirds in the Senate and the approval of three-fourths of the states.

II. Division of Powers in a Federal System

Another great fundamental of the United States Constitution is its federal system, which divides government powers between the nation and the various states. This principle of federalism is at the heart of our Constitution. Unlike the next two fundamentals I will discuss, which were adaptations of earlier developments in English law, this division of sovereignty between two government levels was unprecedented in theory or practice. In a day when it is fashionable to assume that the national government has the power and means to right every perceived injustice, we should remember that the United States Constitution limits the national government to the exercise of powers expressly granted to it. The Tenth Amendment provides:

“The powers not delegated to the United States by the Constitution, nor prohibited to it by the States, are reserved to the States respectively or to the people.”

This principle of limited national powers, with all residuary powers reserved to the people or to the state and local governments, which are most responsive to the people, is one of the great fundamentals of the United States Constitution.

In my lifetime I have seen much neglect of this fundamental constitutional principle. For example, the power to make laws on personal relationships is one of those powers not granted to the federal government and therefore reserved to the states. Thus, the ordinary laws governing marriage and family rights and duties are state laws, subject to the power of national law to govern the extent to which the law of one state is binding on others. The dominance of state law in these personal matters would have been changed by the Equal Rights Amendment (E.R.A.) proposed about 30 years ago. The dominance of state law will also be changed if, after full review, federal courts decree that a state law on marriage is invalid under the United States Constitution. Whatever the merits of current controversies over the laws of marriage and child adoption and the like, let us not forget that if the decisions of federal courts can override the actions of state lawmakers on this subject, we have suffered a significant constitutional reallocation of lawmaking power from the lawmaking branch to the judicial branch and from the states to the federal government.

III. Bill of Rights

A bill of rights, the third great fundamental of the United States Constitution, came by amendment, but I think almost all Americans look upon these first ten amendments as an essential part of the original Constitution.

The idea of a bill of rights was not new. Almost 600 years earlier, King John had been compelled to sign the Magna Carta, which contained a written guarantee of some rights for certain of his subjects. Later, the Magna Carta was relied upon by the English Parliament in guaranteeing additional rights against royal power in the English Bill of Rights of 1689. In the century that followed, many of the charters used in the establishment of the American colonies included some written guarantees of citizen liberties and privileges. And in the rush of constitution-making that followed the Continental Congress’s 1776 invitation, almost all of the 13 colonies developed these guarantees further. The delegates to the Constitutional Convention were familiar with this history and made brilliant application of its principles in framing a Bill of Rights suited to the needs of the people of a new nation.

There are several supremely important guarantees in the Bill of Rights, including the freedoms of speech and press. I have chosen only one to discuss in detail.

The Bill of Rights begins with what many believe to be the most important guarantee in the United States Constitution. The First Amendment reads:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

The prohibition against “an establishment of religion” was intended to separate churches and government, to prevent a national church of the kind found in Europe. In the interest of time I will say no more about the establishment of religion, but only concentrate on the direction that the United States shall have no law prohibiting the free exercise of religion. For nearly a century this guarantee of religious freedom has been understood as a limitation on state as well as federal power.

The guarantee of the free exercise of religion, which I will call religious freedom, is one of the supremely important founding principles in the United States Constitution, and it is reflected in the constitutions of all of our 50 states. It is the first expression in the First Amendment to the United States Constitution. As noted by many, this “pre-eminent place” identifies freedom of religion as “a cornerstone of American democracy.”[5] I maintain that in our nation’s founding and in our constitutional order, religious freedom, and the freedoms of speech and press associated with it in the First Amendment, are the motivating and dominating civil liberties and civil rights.

The American colonies were originally settled by people who, for the most part, had come to this continent to be able to practice their religious faith without persecution, and their successors deliberately placed religious freedom first in the nation’s Bill of Rights. So it is that our national law formally declares: “The right to freedom of religion undergirds the very origin and existence of the United States.”[6]

This principle was affirmed impressively 22 years ago when a group of prominent citizens assembled at Williamsburg, Virginia, and signed what was called the Williamsburg Charter. I was privileged to sign that charter in behalf of The Church of Jesus Christ of Latter-day Saints. Its stated purpose was to celebrate and reaffirm religious liberty as the foremost freedom in the First Amendment to the United States Constitution.

The Williamsburg Charter states:

“The First Amendment Religious Liberty provisions have both a logical and historical priority in the Bill of Rights. . . . In sum, as much if not more than any other single provision in the entire Constitution, the Religious Liberty provisions hold the key to American distinctiveness and American destiny.”[7]

The free “exercise” of religion obviously involves both the right to choose religious beliefs and affiliations and the right to “exercise” or practice those beliefs. But in a nation with citizens of many different religious beliefs the right of some to act upon their religious principles must be qualified by the government’s responsibility to protect the health and safety of all. Otherwise, for example, the government could not protect its citizens’ person or property from neighbors whose religious principles compelled or justified stealing or taking human life.

The inherent conflict between the precious religious freedom of the people and the legitimate regulatory responsibilities of the government is the central issue of religious freedom. The problems are not simple, and over the years the United States Supreme Court, which has the ultimate responsibility of interpreting the meaning of the lofty and general provisions of the Constitution, has struggled to identify principles that can guide its decisions when government action is claimed to violate someone’s free exercise of religion. As would be expected, many of the battles over the extent of religious freedom have involved government efforts to impose upon the practices of small groups like Jehovah’s Witnesses and Mormons. Recent experiences suggest adding Muslims to the category of threatened religious minorities.

Unpopular minority religions are especially dependent upon a constitutional guarantee of free exercise of religion. We are fortunate to have such a guarantee in the United States, but many nations do not. The importance of that guarantee should make us ever diligent to defend it. And it is in need of being defended. During my lifetime I have seen a significant deterioration in the respect accorded to religion in our public life, and I believe that the vitality of religious freedom is in danger of being weakened accordingly.

A recent book illustrates this danger. In Freedom From Religion, published by the Oxford University Press, a law professor makes this three-step argument:

1.In many nations “society is at risk from religious extremism.”[8]
2.“A follower is far more likely to act on the words of a religious authority figure than other speakers.”[9]
3.Therefore, “in some cases, society and government should view religious speech as inherently less protected than secular political speech because of its extraordinary ability to influence the listener.”[10]
He concludes:

“[W]e must begin to consider the possibility that religious speech can no longer hide behind the shield of freedom of expression. . . .[11]

“Contemporary religious extremism leaves decision-makers and the public alike with no choice but to re-contour constitutionally granted rights as they pertain to religion and speech.”[12]

I hope that those who might be persuaded by these arguments will consider how easy it would be over time to manipulate the definition of “religious extremism” to suppress any unpopular religion.

Religious belief and preaching must be protected against government action, even while the practice of that belief must have some limits, as I suggested earlier. But unless the guarantee of free exercise of religion gives a religious actor greater protection against government prohibitions than are already guaranteed to all actors by other provisions of the Constitution (like freedom of speech), what is the special value of religious freedom? Surely the First Amendment guarantee of free exercise of religion was intended to grant more freedom to religious preaching and action than to other kinds of speech and action. Treating actions based on religious belief the same as actions based on other systems of belief should not be enough to satisfy the special place of religion in the United States Constitution.

IV. Separation of Powers

The fourth great fundamental of the United States Constitution and of our state constitutions is the principle of separation of powers. This principle puts our national government on a significantly different foundation than the parliamentary systems of most western governments. The idea of separation of powers came out of the English experience, when parliament wrested certain powers from the king in the conflicts of the 1600s, thus achieving some separation of legislative and executive authority. But the United States Constitution carried this separation much further.

The concept of separating the executive, legislative, and judicial functions was established in the American colonies in the 1700s. A commentary on the Massachusetts Constitution of 1778, of which John Adams was a principal author, explained the basic principle.

“The legislative, judicial, and executive powers are to be lodged in different hands, that each branch is to be independent, and further, to be so balanced, and be able to exert such checks upon the others, as will preserve it from dependence on, or a union with them.”[13]

Thus, we often refer to the principle of separation of powers in terms of the checks and balances each branch exercises upon the others.

If the idea of checks and balances is to work properly, each branch of government must preserve its independence from the others. Moreover, the powers of each of these three branches must be exercised in a good faith effort to serve the interests of the public, rather than to dominate the others or to enhance the personal position of a particular official. Politics, revenge or personal gain must never be the primary driving force in the application of checks and balances.

For checks and balances to work properly, and for the fundamental principle of separation of powers to be honored and perform its proper function, each branch of government must fulfill its duties fully, and each must refrain from attempting to exercise the functions of the others. For example, Congress should perform its duty of making the laws and specifying the principles—even politically difficult principles—and not dodge this responsibility by delegating this function to regulations made by the executive branch. The courts must limit themselves to interpreting the Constitution and the laws and not stray into the legislative function of law-making. In contrast, we are all aware that in our day the actions of courts on major issues of public policy receive great attention in the media, and are frequently represented and understood as the actions of those who make laws rather than those who merely interpret them.

These are, of course, very broad assertions, and in practice these ideas are complex and controversial. I will attempt to express my thoughts about them without getting into too much technical legal jargon. If my remarks seem to deal excessively with the judicial branch and the conduct of judges, you will understand that I choose to elaborate on that subject because the judicial branch is the one with which I have had my greatest experience.

V. The Judicial Branch’s Role in Separation of Powers

There are two different views of the role of the judicial branch of government in our constitutional system. One maintains that the genius of the American system is its expectation that the courts will resolve very difficult and important questions that the legislative and executive branches of government have been unable to resolve. For example, it was the Supreme Court of the United States that compelled this nation to resolve the problem of racially segregated public schools, after many decades in which the nation’s elected lawmakers were unwilling to recognize this injustice or unable to resolve it. Other examples could be given. The important thing is that many believe the courts have a legitimate function in lawmaking when the problem is large and urgent enough and the legislative and executive branches have shown by inaction or ineffective action that they are unable to perform their functions to resolve it.

The opposite point of view argues that the courts should stay entirely out of the domain of legislative lawmaking, leaving this function to the popularly elected legislative bodies and the elected chief executives who presumably reflect the will of the people. A generation ago a prominent legal scholar described this position:

“Outside of a few important, well-defined personal liberties set forth in the document, the Constitution allows the people to make public policy through their elected representatives. When the Court ventures into policymaking in the guise of constitutional interpretation, it oversteps the role assigned to it under the Constitution.”[14]

The differences in these approaches will not be resolved. Both will be followed in their time, with the ebb and flow of judicial appointments, politics, and legal thought. But it is important to note that we currently have widespread public dissatisfaction on this subject. The 2006 Georgetown Conference on Judicial Independence considered a Princeton survey finding that 62% of Americans say the courts in their state are legislating from the bench rather than interpreting the law. This reveals a widespread public feeling that the courts are revising the moral and cultural life of the nation by making policy determinations that should be made by lawmakers in the elected branches.

Judicial Independence

What concerns us most about this widespread public dissatisfaction is that if not attended to it will threaten the independence the judicial branch must have to perform its function in our system of separation of powers. In the last few years, retired Justice Sandra Day O’Connor has performed a great service by leading a series of conferences at Georgetown University on the state of the judiciary. They focused on this question of judicial independence.

As I have cheered these efforts from the sidelines, I have thought of how our system contrasts with that of the now defunct Soviet Union. During my years as president of BYU (1971–80), I hosted the chief justice of the Supreme Court of the Soviet Union, who was touring the United States in that Cold War period. In a private one-on-one discussion, I asked him how the Soviet system really worked in a highly visible criminal case, such as where a person was charged with an offense like treason or other crimes against the state. He explained that on those kinds of cases they had what they called “telephone justice.” Judges conducted the trial and heard the evidence and then went back to their chambers and had a phone call from a government or party official who told them how to decide the case.

I am grateful that, whatever difficulties we have in our system of justice — and there are many — we are still far away from what he called “telephone justice.” What stands between us and that corruption of the judicial system — what stands between us and the destruction of a vital check and balance in our system of separation of powers — is the independence of our state and federal judges.

I speak of state as well as federal judges because in most citizen encounters with the law state judges are by far the most important representatives of the judicial branch. I thought of that as I listened to our Utah Chief Justice, Christine M. Durham, speak to a group of lawyers last month.[15] She told them that in a recent year there were 384,000 cases filed in the federal courts, but the state courts had over 47 million. This is about 123 state court cases for every single case filed in the federal courts. She reminded her audience that “state courts are closer to everyday life where the legal meanings of such elemental concepts as birth and death and family take shape.” It is in the state courts where family law issues are adjudicated, where foreclosures take place, and where injured persons come to recover damages. When we speak of the importance of judicial independence, we must not neglect the important role of state courts as a co-equal branch of government.

Chief Justice Durham cited three troubling recent developments that put the judicial independence of state courts at risk. One of these she called “the politicization of state judiciaries.” This is the subject Justice O’Connor’s various conferences have pursued so persuasively with various recommendations, including judicial selection and tenure, judicial salaries, and limits on judicial campaign contributions.

As I give my strong endorsement of judicial independence, I am conscious that many in this audience will have observed or personally experienced court decisions with which they disagreed. I have also had that experience. In endorsing judicial independence, I do not approve every court decision it makes possible. What I advocate are the conditions necessary to preserve the institution of judicial independence, which is essential to the principle of separation of powers. We must defend judicial independence. We must not tolerate existing laws or support new laws that would make judges the servants of the legislative or executive branches or of any private interest.

At the same time, we must acknowledge that there are limits. Judicial independence does not mean that judges are free to decide controversies or cases according to their personal preferences.

Our constitutions and the acts of our legislative bodies are the paramount and most obvious examples of restraints upon judicial independence. In interpreting these and in applying the common law on subjects where there are no legislative enactments, judges are constrained by the precedents of prior judicial opinions. Less obvious, and subordinate to these restraints, are those elusive but very real community and personal standards of right and wrong that comprise what we might call the moral framework that defines what is workable or appropriate for persons living in an organized society. In total, these constraints should prevent a judge from having his or her personal interests take command of the decision-making process to augment personal power, property, prominence or prestige.

Judicial Activism

Unfortunately, the constraints I have described do not always hold judges within the limits imposed by our constitutional order. The label many put on judicial decisions that break free of these limits is judicial activism. It could just as well be called judicial arrogance. It has a variety of causes, including misinterpretation of the law and excessive reliance on personal predilections in the decision of cases. But neither of these should override the framework of the law, especially in those cases where the judicial branch should make no decision, but leave the matter to popularly elected lawmakers.

In criticizing judicial activism, I am not agreeing with those critics who define judicial activism as a circumstance where a judge makes the law rather than merely interprets it. That is an over-simplified definition. Our system of law clearly contemplates that judges will make law as well as interpret it. Appellate courts inevitably make law as they interpret legislative enactments that are ambiguous or contradictory. Judges make law by giving meaning to legislative language that is deliberately vague, such as laws using words like “fair” or “reasonable” or “obscene.” Appellate courts make law gradually on a case-by-base basis as they define and apply the common law, which consists of the decisions of courts on subjects not treated by the legislature. None of these lawmaking functions of judges is subject to criticism as judicial activism, because if the popularly elected lawmakers don’t like these judicial actions, they can change them by legislation.

In my opinion, the judicial lawmaking that has been legitimately criticized as judicial activism concerns the interpretation of state and federal constitutions. This kind of judicial action is not reversible by the popularly elected lawmakers, and cannot even be changed by the sovereign people except in those unusual circumstances in which a constitutional amendment is feasible. If such judicial action sets aside laws enacted or approved by a direct vote of the people, it offends two fundamentals: separation of powers and popular sovereignty.

Constitutional adjudication is the kind of activity that requires the highest exercise of the judicial talent and should cause the greatest soul-searching on the part of judges. On the one hand, the compelling traditions of common law adjudication show that the law — even constitutional law — can grow gradually to meet the problems and challenges of a new day. On the other hand, the overriding requirements of stability in the law forbid judges from using their office to enact their own personal preferences and moral framework in the way they could justifiably do as legislators. The question that should always be asked in constitutional adjudication is, “Is this a matter that the sovereign people in our democracy ought to decide through their popularly elected lawmakers, or is it a matter that our constitution clearly assigns to judges not directly accountable to the popular will?”

In the end, the only complete remedy for judicial activism is judicial restraint. Only judges can make judicial restraint a reality. The rarest kind of power in our troubled world is a power recognized but unexercised. Yet that is what the people have a right to expect from the judicial branch, which must define the limits of all government branches, including its own. I maintain that the same branch of government that has defined the power and forged the tools of judicial activism should decline to exercise them.

VI. Citizen Responsibilities

I conclude with some suggestions about our responsibilities as citizens. We have a great Constitution whose fundamental principles many believe to be divinely inspired. Therefore what? I will suggest five responsibilities that I believe are appropriate for all citizens—whatever their religious or philosophical persuasion.

1.Understand the Constitution
All citizens should be familiar with its great fundamentals: the sovereignty of the people, the structure of federalism that divides powers between the state and the federal government, the individual guarantees in the Bill of Rights, and the principle of separation of powers among the various branches of government. We should take alarm at and consider how to oppose any action that would infringe these fundamentals.

2.Support the Law
All citizens should give law-abiding support to their national, state, and local governments. My religious faith expresses this principle in an official declaration of belief:

“We believe that governments were instituted of God for the benefit of man; and that he holds men accountable for their acts in relation to them. . . .

“We believe that all men are bound to sustain and uphold the respective governments in which they reside” (D&C 134:1, 5).

3.Practice Civic Virtue
Those who enjoy the blessings of liberty under our national and state constitutions should promote morality, and they should practice what the Founding Fathers called “civic virtue.” John Adams, the second president of the United States, declared, “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.”[16]

James Madison argued in the Federalist Papers that “republican government presupposes the exercise of these qualities [of virtue] in a higher degree than any other form.”[17]

Citizens should also be practitioners of civic virtue in their conduct toward our states and our nation. They should obey the laws. They should be ever willing to fulfill the duties of citizenship. This includes compulsory duties like military service and the numerous voluntary actions they must take if they are to preserve the principle of limited government through citizen self-reliance. For example, since U.S. citizens value the right of trial by jury, they must be willing to serve on juries, even those involving unsavory subject matter.

Then there is the matter of voting. I have been alarmed at the steady decline of voter turnout in many parts of the United States, including Utah. Voting is a fundamental right and responsibility that must not be taken for granted. Political participation can be inconvenient. It requires sacrifices of time and resources, but it is essential to our democratic society. Without substantial voter turnout, the people abrogate the great fundamental of popular sovereignty.

It is also part of civic virtue to be moral in our conduct toward all people. We believe with the author of Proverbs that “righteousness exalteth a nation: but sin is a reproach to any people” (Proverbs 14:34). The personal righteousness of citizens will strengthen a nation more than the force of its arms.

4.Maintain Civility in Political Discourse
If representative government is to function effectively under our constitutions, we must have civility in political discourse. We currently have an excess of ugliness and contentiousness in our communications on many political issues. I don’t need to give examples; we have all been exposed to it, and some of us have occasionally been part of it. We all bear some responsibility for the current political polarization and the stalemates that have resulted from it. We ought to tone it down. Meaningful debate and discussion about policies, programs, and procedures is essential to a democratic society. But contentiousness for the sake of division is bad for democracy. It is bad for law observance. It is bad for neighborly relations. And it is particularly destructive as an example for the rising generation, who, if not taught better, will perpetuate and magnify its ugliness and divisiveness for generations to come.

A year ago our Church published a statement called “The Mormon Ethic of Civility.” I quote from that statement:

“The Church views with concern the politics of fear and rhetorical extremism that renders civil discussion impossible. . . . Our democratic system [should] facilitate kinder and more reasoned exchanges among fellow Americans than we are now seeing.”[18]

Our President, Thomas S. Monson, has said, “When a spirit of goodwill prompts our thinking and when unified effort goes to work on a common problem, the results can be most gratifying.”[19]

5.Promote Patriotism
Finally, the single word that best describes a fulfillment of the responsibilities of citizenship is patriotism. Citizens should be patriotic. My favorite prescription for patriotism is that of Adlai Stevenson, the Illinois governor who was twice the Democratic candidate for President:

“What do we mean by patriotism in the context of our times? . . . A patriotism that puts country ahead of self; a patriotism which is not short, frenzied outbursts of emotion, but the tranquil and steady dedication of a lifetime.”[20]


I close with a poetic prayer. It is familiar to most Americans because we sing it in one of our loveliest hymns. It expresses gratitude to God for liberty, and it voices a prayer for continued blessings:

Our fathers’ God, to thee,

Author of liberty,

To thee we sing;

Long may our land be bright

With freedom’s holy light.

Protect us by thy might,

Great God, our King! [21]

[1] J. Reuben Clark: Selected Papers on Religion, Education, and Youth, ed. David H. Yarn, Jr., Provo, Utah: Brigham Young University Press, 1984, p. 43.

[2] See A. E. Dick Howard, “Making It Work,” Wilson Quarterly, Spring 1987, pp. 122, 126.

[3] See “The Divinely Inspired Constitution,” Ensign, February 1992, 68-74.

[4] U.S. Constitution, Art. IV, Sec. 4.

[5] Final Report of the Advisory Committee on Religious Freedom Abroad to the Secretary of State and to the President of the United States, May 17, 1999, p. 6.

[6] 22 USC 6401(a).

[7] The Williamsburg Charter, pp. 11-12. The text of the Williamsburg Charter is reproduced in the appendix (pp. 127-45) of Articles of Peace, the Religious Liberty Clauses and the American Public Philosophy (James Davison Hunter and Os Guinness, eds., Brookings Books, Washington, D.C., 1990).

[8] Amos N. Guiora, Freedom From Religion (Oxford University Press, 2009), p. 27.

[9] Ibid., at p. 30.

[10] Ibid., at p. 31.

[11] Ibid., at p. 31.

[12] Ibid., at p. 39.

[13] Quoted in Gerhard Casper, “Constitutionalism,” Occasional Papers from the Law School, The University of Chicago, no. 22 (1987).

[14] Michael W. McConnell, “Four Faces of Conservative Legal Thought,” University of Chicago Law School Record, Spring 1988, 12, 13.

[15] “State Courts and Justice for All,” BYU J. Reuben Clark Law School Founders Day Dinner, Salt Lake City, Utah, August 26, 2010.

[16] John Adams, The Works of John Adams, Second President of the United States, ed. C. F. Adams (Boston: Little, Brown, and Co., 1854), Vol. IX, p. 229, October 11, 1798.

[17] Federalist No. 55, February 13, 1788.

[18] ”The Mormon Ethic of Civility,” October 16, 2009 (see commentary/the-mormon-ethic-of-civility).

[19] Ibid.

[20] Adlai Stevenson, speech given in New York City, 27 August 1952, quoted in John Bartlett, Familiar Quotations, Boston: Little Brown and Co., 1955, p. 986.

[21] Hymns, no. 339.

Friday, September 17, 2010

Today is Constitution Day

The following article was written by Chip Wood and published on September 17, 2010, on the Personal Liberty Digest website.

Do You Really Know The Constitution?
September 17, 2010 by Chip Wood

Today is Constitution Day — a day specifically designated by an Act of Congress when Americans are supposed to honor the remarkable document that created our system of government. The date was chosen because the Constitution was approved at the original Constitutional Convention on Sept. 17, 1787.

The act that created Constitution Day mandates that all publicly-funded educational institutions provide educational programming on the history of the American Constitution on that day. Let’s see how well the schools have done their job.

Ask a recent high school or college graduate to take the following brief quiz. I’ll be interested to hear how many of the 20 questions he or she answers correctly.

And be sure to take the quiz yourself. Even if you score 100 percent, it’s good to be reminded of some of the fundamental principles upon which our country was founded. The quiz was compiled by an old friend, John McManus, who is president of the John Birch Society. Thanks, John, for permission to share this with my readers today.

1. Has the Constitution always guided our country?

2. What are the three branches of government named in the Constitution?

3. Does the Constitution allow the Supreme Court to make law?

4. Does the Constitution empower the President to make law?

5. Does the Constitution give the Federal government any power in the field of education?

6. Where in the Constitution is there authorization to dispense foreign aid?

7. Did the Constitution give the Federal government power to create a bank?

8. Can the provisions of a treaty supersede the Constitution?

9. Does the Constitution allow a President to take the nation into war?

10. Can you name any of the four crimes mentioned in the Constitution?

11. Should the Bill of Rights be considered part of the original Constitution?

12. According to the Constitution, how can a President and other national officers be removed from office?

13. How many amendments have been added to the Constitution?

14. How is an amendment added to the Constitution?

15. Does the Constitution say anything about illegal immigration?

16. Is the term of a President limited by the Constitution?

17. Which part of the Federal government holds “the power of the purse”?

18. Does the Constitution provide a method for expelling a member of Congress?

19. How many times is the word “democracy” mentioned in the Constitution?

20. Does the Bill of Rights grant the people free speech, freedom of the press, the right to possess a weapon, etc?

It wasn’t as easy as you thought it would be, was it? Here are the answers, also as provided by McManus.

1. No. Originally the nation functioned under the Continental Congress and the Articles of Confederation. Eleven years after the Declaration of Independence the Constitution was written, agreed to and sent to the states for ratification. When ratified by nine states (as the document itself prescribed), the Constitution was declared to be the new governmental system. That occurred on Sept. 13, 1788. The new government was ordered to be convened on March 4, 1789.
2. Legislative, Executive and Judicial.

3. No. The very first sentence in the Constitution states: "All legislative powers herein granted shall be vested in a Congress of the United States….” Any Supreme Court decision is the law of the case that binds only the plaintiff and the defendant. The meaning of the word “all” has not been changed.

4. No. Executive Orders issued by the President that bind the entire nation are illicit because, as noted above, “All legislative powers” are possessed by Congress. An Executive Order that binds only the employees of the Federal government (such as granting a holiday) is proper because the President should be considered to be the holder of power much like that possessed by the CEO of a company. But the entire nation is not in the employ of the President.
The President does have a role in lawmaking with his possession of a veto. He can veto a measure approved by Congress (which can be overturned by a two-thirds vote in each house of Congress), or simply allow it to become law by doing nothing within 10 days, “Sundays excepted.”

5. No. The Constitution contains no mention of any power “herein granted” in the field of education.

6. No such authorization appears in the Constitution.

7. No. Congress was granted power to “coin money,” meaning it was to have the right to create a mint where precious metal could be stamped into coinage of fixed size, weight and purity. There is no Constitutional authority for the Federal government to have created the Federal Reserve.

8. Absolutely not. Thomas Jefferson responded to those who consider treaty-making power to be “boundless” by stating, “If it is, then we have no Constitution.”

9. It does not. The sole power to declare the nation at war is possessed by Congress. Congress last used this power at the beginning of World War II, when war was declared on Japan after the attack on Pearl Harbor. (Germany declared war on the U.S. the next day.) A congressional vote to authorize the President to enforce United Nations Security Council resolutions should never be considered a substitute for a formal declaration of war.

10. The four crimes mentioned are: Treason, bribery, piracy and counterfeiting.

11. Many do hold that view because if the promise to add a Bill of Rights had not been made during the ratification process, some states would not have ratified the Constitution.

12. The President and other high officers of the Federal government can be impeached by a majority in the House and tried by the Senate. Impeachment does not constitute removal; it should be considered the equivalent of an indictment that must be followed by a trial. Two-thirds of the Senators “present” must approve removal at the subsequent trial to effect removal.
13. There are 27. The first 10 (the Bill of Rights) can be considered part of the original Constitution. Amendment 18 was repealed by Amendment 21. This means that, in 223 years, only 15 other amendments have been added. The process was deliberately made difficult to keep anything dangerous or silly from being added to the Constitution in the heat of passion.

14. Congress can propose an amendment when two-thirds of both Houses of Congress vote to do so. Any proposed amendment must then by ratified by the legislature or a convention in three-quarters of the States. Amendments can also be proposed by a Federal Constitutional convention called by two-thirds of the States. Any amendment arising from a Constitutional convention must also be ratified by the legislature or a convention in three-quarters of the states.

15. Not directly. But Article IV, Section 4 assigns to the Federal government the duty “to protect each of them [the States] from invasion.” It does not specify that the invasion must be military. When 12 million people enter our nation illegally, it is an invasion that should be repelled by the Federal government.

16. Yes. In 1951, Amendment 22 was added to the Constitution to limit any President to two terms. The only President who served longer than two terms was Franklin Delano Roosevelt, who held office during a fourth four-year term. He died in April 1945 shortly after beginning his 13th year in office.

17. The House of Representatives. Article I, Section 7 states: “All bills for raising revenue shall originate in the House of Representatives….” If a majority in the House (218 of its 435 members) refuses to originate a bill to raise revenue for something, then no funds can be spent on that activity.

18. Two-thirds of each House has the authority to expel any of its members for cause even though the member has been elected by voters.

19. The word “democracy” does not appear in the Constitution. Our nation is a Constitutional Republic, not a Democracy. The Founders feared Democracy (unrestricted rule by majority) and favored a Republic (rule of law where the law limits the government). James Madison wrote: “…. Democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths.”

20. No. The Declaration of Independence, which provides the philosophical base of our nation, states very clearly that our rights are granted to us by our Creator. The various rights noted in the Bill of Rights were not granted by government. The purpose of the Bill of Rights is to prevent the Federal government from suspending any of those God-given rights, including the right to possess a weapon. Those who claim “Second Amendment rights,” for instance, make a big mistake with such a statement. If the right is granted by the Second Amendment, meaning by government, it can be taken away by government. If the right is granted by God, only He can take it away.

While every politician pays lip service to the Constitution (the President, Vice President, and every member of Congress take an oath to “preserve and protect” it), the sad truth is that vast majority of actions taken by the Federal government are not authorized by the Constitution.

I have heard it said that, if the Constitution were fully and honestly enforced today, the Federal government would be 20 percent of its present size and would cost 20 percent of its present budget. I think those numbers are an exaggeration; I suspect the truth would be closer to 10 percent.

Just imagine: No foreign aid, no Departments of Education, Housing, Health, Agriculture or Homeland Security. No commissions, bureaucratic monstrosities or other meddlesome agencies that “harass our people and eat out their substance.” (That’s an actual indictment of King George from the Declaration of Independence.)

What would this country be like if the Constitution were fully and honestly enforced? I hope some day we’ll find out.

Until next time, keep some powder dry.

— Chip Wood

Tuesday, September 14, 2010

Learning History so We Can Change Our Future

The following article was written by Charlotte Cushman and published on September 12 on the American Thinker website.

Life Under Communism
By Charlotte Cushman

I am worried because too many people, especially our youth, don't even have a clue as to what living under a totalitarian regime is like. Here is my story, how I learned about the evils of government domination and became the patriotic freedom-fighter that I am today.

I am a descendant of immigrants from Yugoslavia. They immigrated to the United States around 1900. As a young child, I took it for granted that my grandmother and mother spoke in a different language when they got together. I took it for granted that we ate different food at Grandma's house such as potica, blood sausage, sallata, and homemade noodles. It was when I was five years old that something happened to make me painfully aware that something was, indeed, very different about my family.

At that time, my mother disappeared for a while. I didn't really understand where she was, but when she came back, she brought a stranger with her, a stranger to live in our home. His name was France. He was my mom's cousin, and he lived with us for about a year. He was very nice and a lot of fun, but he was very nervous. He was nervous all the time. When we would go out in the car he would constantly be looking around, smoking a cigarette, with hands shaking, glancing continuously at the cars behind us or next to us. He would say things like, "They are after me." "They have followed me here." "They're going to get me."

There were other things peculiar about him, also. He ate fast, and one day he filled up a table top with stacks of food and my brother took a picture of it. France laughed and said he was going to send this picture to Tito. "Who is Tito?" I wondered. "And why does France want him to know that he has all this food?"

Then he started talking about his life in Yugoslavia. He said his family used to live on a beautiful farm, but the government took it away from them. He said the Communists controlled everyone and everything. They couldn't even cut a tree down on their own property for firewood. He was afraid to walk from the house to the barn for fear of being shot. You had to be careful of everything you said because if you said something against the government, you put your life at risk. France's brother, August, did speak out and was pushed in front of a train and his legs were cut off. The Communists called it an "accident." August survived and went to the hospital, where he was poisoned -- another "accident." We had a collie dog that I loved. One day I was hugging the dog and France told me that people couldn't have dogs in Yugoslavia because they couldn't afford them. He said people would stand around eating with both hands up to their mouth for fear of dropping crumbs on the floor -- they couldn't afford to drop any food because they didn't have enough to eat. He told me that the Communists brainwashed the citizens with propaganda and changed the history of their country. I couldn't believe it. "How could they get by with that?" I thought.

He told me that leaving his country, his home, was very difficult. I later learned that he had had a girlfriend in Yugoslavia, and when he left with my mother, she fell on the ground, sobbing, "I know I'll never see you again."

But here is the scariest thing he told me. "It is coming here, Char," he said. "It is coming here." Needless to say, that terrified me.

At Grandma's house, there was a lot of talk about Yugoslavia, but she didn't tell me all the horrors of living under Communism like France did. All I heard was that they missed their farm and how beautiful it was, but that the government owned it now. There was always a cloud of extreme sadness around this subject. Also, Grandma and Freddie would send money to Yugoslavia because the family that remained there had no money.

France had a sister named Mimi. When she was twenty-nine, she left Yugoslavia. Here is her story:

"My parents and grandparents were farmers. They used a horse in the fields. They lived in the same house. The roof on their home was made of straw. It didn't leak, and animals and insects did not live in it. A man came to fix the roof once every ten years. Inside the house there were two bedrooms, one pantry, and one large living and cooking area.

"My mother was a happy person. She was sick in bed for ten years with multiple sclerosis and died at age forty-five. My father was a happy man and died of a heart attack. My grandmother was a tough lady, serious, and died old. My grandfather drank. He went back and forth from the U.S. to Yugoslavia. He would go to Yugoslavia, sell part of the farm, and go back to the U.S. He died in the U.S. and died old. My brother, Carl, worked in the mines. He developed a disease in the lungs where if they took it out he would die and if they left it in he would die. My brother, August, was murdered by the Communists, and Albina, my sister, stayed in Yugoslavia.

"Life under communism was very hard. Oh, how the people suffered! On the farm in Ljubljana, my family got up at 4 AM and worked until 10 PM, and the government took everything. When I decided that I would leave, I took my shoes to a shoemaker and asked him to cut a hole in the bottom (here I put my American money that relatives had sent me), then the shoemaker covered the hole with another sole. I did not want to be caught with money because then people would know I was going to leave, and this would be very dangerous. This was my idea to do this. I kept the shoes dirty and muddy. When I left Yugoslavia I put what few possessions I had in a bag and left without saying goodbye to my father. I did that because if the Communists asked him where I was, he could honestly tell the truth and say he didn't know.

"I wore black as a disguise. People only wore black if there was a death in their family and since our family had had no deaths, the guards in Ljubljana would not suspect who I was. There were guards everywhere. From Ljubljana I walked to Maribor. There I gave a farmer some money and he told me which way to go to get out of the country. He told me which way through the mountains, and then I had to go through a river. The first time I tried it, it was too dangerous, so I came back. The second time I was successful. I went through the mountains, through the river, changed my clothes, waited until the changing of the guards at noon, and walked through."

We told her that must have taken a lot of courage. Wasn't she scared? Did she ever think that she could be killed?

"No, I never thought of dying because I had no life where I was, so how could anything be any worse?"

We asked her, Wasn't it hard to leave all her things?

"I had no possessions, just two outfits, so no, it was not hard.

"When I crossed the border, I went to Graz. (I chose Austria because it was quicker to get to America from there; in Italy, one had to wait two to three years.) In Austria, I had to stay in a camp until I could get permission to go to America. I was in a camp three months and did a lot of work. I wrote to the neighbors of my family and told them that I was in Austria and was flying to America. I told the people in the camp that I had left Yugoslavia for a better life. As it ended up, I could not go to the U.S. because their quota of immigrants was full, so I had to go to Montreal, Canada. Before I left Austria I kept reminding the man that I had worked for to bring me my shoes, that the ones I had were uncomfortable. Right before I left he brought me the muddy, dirty shoes.

"When I opened my bank account in Canada the teller asked me, 'Where did you get this money' [because it was so flat and musty]? I told him that someone gave it to me; I did not tell him that the money had been in my shoes."

Life, if you can call it that, under Communism was miserable -- so miserable, they would do anything to get out. Have you ever wondered why immigrants from all over the world wanted to come to the United States? Do you know why our country was once known as the melting pot?

The answer is that our country was originally founded on the principle of individual rights. The Founding Fathers thought that each person had inalienable rights. These were the right to life, the right to liberty, the right to pursue one's own happiness, and the right to property (to earn and keep what you work for). That meant that if a family owned a farm, they had a right to keep what they worked for on that farm. They could criticize the government and not live in fear of being shot at or being pushed in front of a train. It meant that they could live the way they wanted without government interference, could freely trade with each other and make money. They could decide how they wanted to live and could live that way as long as they respected the rights of others.

The amazing thing was that the government in the United States protected its citizens instead of seeking to control them. This was the first time in the history of the earth that a country had been founded on the principle that man had rights and that the purpose of the government was to protect these rights rather than to trample on them.

So how could France say Communism would come to America? Well, as the old saying goes, history repeats itself, and he could see when he arrived here that the United States had already put into place laws and regulations that his own country had done. Those laws pave the way for Communism. If he were alive today, what do you think France would have to say about the concept of political correctness? I know what he would say. He'd say that's how they take steps to take your freedom of speech away and control your mind. What do you think he'd say about a government that takes over banks and car companies? He would say that is no different from when they took over his farm. What do you think he'd say about the government taking over your health care? I know what he would say. He would say Americans are fools.

So here I am, an adult, watching France's prediction come true. How can this happen here in America? The reason is that over time, the concept of rights has been corrupted. "Rights" has now come to mean "wants." You want an education? Or food? Or health care? Or a car? A cell phone? No problem, it will be provided. But who will be providing it? The taxpayers -- you and me. And when we are forced to pay for someone else's wants, we become slaves. It is no different from my ancestors on the farm in Yugoslavia.

It was when I read Atlas Shrugged by Ayn Rand that the pieces fell into place for me and I began to understand that the concept of individual rights has been corrupted by the belief that we need to live our lives for others rather than ourselves.

My ancestors were immigrants, and just like a lot of immigrants, they came to America for a better life. But a lot of immigrants came to America for a better life, so I learned as an adult that they really weren't that different after all. But to a five-year-old child, the impressions of seeing a grown man shake and sweat with fear while simply riding down the street in a car left a lifelong impression on me.

I think about Mimi when she said, "Oh, how people suffered!" I think about France on his deathbed, when he was dying of cancer, and I think that I, for one, will not give up my country without a fight. We owe it to them, to what they struggled for, and most of all, to ourselves. I credit France for my riveted commitment to capitalism, to freedom, today. It is because of what he taught me about freedom that I won't give it up. You see, when people talk about their heritage, they can either make it their own or they can walk away from it. And I, for one, will never walk away from mine.

Friday, September 3, 2010

101 Constitutional Questions To Ask Candidates

101 Constitutional Questions To Ask Candidates

W. Cleon Skousen. 101 Constitutional Questions To Ask Candidates. 1980.

Because so many millions of Americans finally realize that something is seriously wrong with the way the government is handling our affairs, people are continually asking: “Do you think there is still time to turn it around?”

When you ask, “Still time before what?” they usually reply: “Before total disaster overtakes.”
For those who wonder about such things the answer is this: “Yes, there is still time, but not much.”

The next question is: “What can we do to get America turned around and regain our national sanity?”

The answer is: “Elect a President and a majority in Congress who still believe in the Constitution and will fight to return America to her original moorings.”

Identifying Constitutional Candidates

“But how can you tell when a candidate for political office is really a Constitutionalist?”

If the candidate is already in office he will have a voting record which will clearly show whether or not he is a Constitutionalist. Several organizations monitor the Congress and publish the results.

However, if the candidate is a newcomer to politics you will have to test his knowledge of Constitutional principles by asking a few questions.

What Kind of Questions Should Be Asked?

We are listing a few of the many questions which might be addressed to a candidate in order to determine whether or not he stands for those basic principles advocated by the Founding Fathers.

No American should run for public office until he has studied the Constitution in the tradition of the Founding Fathers.

Questions on General Principles

1. Under the Constitution, who has the sovereign authority to govern?
The founders said it is in the people “by God’s own allowance”. No branch or agency of the government should be allowed to operate in violation of the expressed will of the people. Their collective will is set forth in the Constitution and the laws passed by the people’s representatives.

2. In what ways are “all men created equal?”
All humanity are equal in three ways: 1. equal before God, 2. equal before the law, 3. equal in their rights. In all other respects people are different.

3. What is an inalienable right?
An inalienable right is one which comes as an “endowment from the Creator” and cannot be violated without coming under the judgment of God.

4. Which inalienable rights were listed in the Declaration of Independence?
The Declaration of Independence lists the right to life, liberty and the pursuit of happiness.

5. What did the founders mean by the “pursuit of happiness?”
This is a collective phrase designed to cover all of the other inalienable rights.

6. Give an example of an inalienable right which is essential to the pursuit of happiness.
The Founders believed, for example, that human happiness requires that each of us enjoy the right to acquire, develop and dispose of property. They believed that without the protection of property rights, all other rights are placed in serious jeopardy.

7. What are some of the other inalienable rights?
The inalienable rights of mankind include such things as the right of self government; the right of human beings to beget their own kind; the right of parents to rear their children free from outside interference (unless there is criminal abuse or neglect); the right to freedom of belief; the right to freedom of speech; the right to assemble; the right to petition; the right to change residence; the’ right to change jobs, etc.

8. What is the purpose of government?
The Founders said the basic reason for creating a government is to protect the inalienable rights of the people. The government is to provide “liberty under law,” which means that no law should be passed unless it is specifically designed to protect the freedom, liberty. and well-being of the people.

The American Structure of Government

9. What is a democracy?
A democracy is a government wherein decisions are made by the masses of the people rather than by elected representatives.

10. What is a republic?
A republic is a system in which the laws are passed and decisions made by the elected representatives of the people.

11. Why did Jefferson call the American system a democratic-republic?
Because the system allows the masses of qualified voters to participate in the election of their officials (democracy) and then the people’s elected representatives enact the laws and administer the affairs of the people under majority rule but with the equal protection of individual rights (a republic).

12. Is it a mistake, therefore, to call the United States a democracy?
Yes. The only part of the American system which is borrowed from “democracy” is the popular election of government officials. Except for this, the Founders strongly emphasized the republican aspects of the American system. A republic places the responsibility for sound government and decision-making on the people’s elected representatives rather than allowing the fluctuating and superficial emotions of the people to override law and order or the rights of minorities. The classical example of government functioning on republican principles and prevailing over “pure democracy” would be the case of a sheriff protecting a prisoner against a lynch mob.

The Task of Controlling Power

13. Why is separation of power safer than concentration of power?
Government is “force” which Washington compared to “fire” and said government is a “dangerous servant” and a “fearful master.” Power should be dispersed among the people where they can keep it under control.

14. How should the powers of government be separated?
First of all the Founders wanted political power separated vertically. They considered the principal power base of society to be the family. However, there are a few things which a community of families can provide better than a single family (police, fire, water, utilities, etc.). Power to perform these functions is therefore delegated to the community. Then there are a few things which groups of communities can do better than the single community. These tasks are assigned to the higher level of the county. There are also a few things that a group of counties can do better than a single county and these are assigned to the State level. The Founders also discovered that there were certain matters dealing with foreign affairs, problems of war and peace, imports, etc. which need to be handled in behalf of all the states. These responsibilities are therefore assigned to the Federal Government. It should be noted that the Founders’ pyramid of power provided that the greatest number of responsibilities should rest with the family. Only a few responsibilities were assigned to the levels of government above the family and the Federal Government was to have the least of all. 1

15. What remedies did the Founders provide if government officials violated the channel of power assigned to them?
Administrative pressures from other departments are provided and if his offenses are serious he can be impeached for treason, bribery, high crimes or misdemeanors.

16. Why did the Founders want the powers of government to flow from the bottom up rather than the top down?
Jefferson stated that a political unit governs best which governs least. In other words, the services which the people need from government are relatively simple and when circumstances are normal the people like to conduct their affairs with as little interference from the government as possible. Consequently, in the Founders’ original plan for a happy and prosperous society, the functions of government were designed to be relatively simple and remarkably cheap.

17. Then why do we have such a complicated and expensive government today?
The professional politicians learned that in a war, depression, or a serious crisis, the people will endure higher taxes and a far greater concentration of authority on the higher levels of government. Certain politicians therefore set out to exploit every emergency as an excuse for the acquiring of more power. During most of the twentieth century ambitious politicians trumpeted the message that the government can solve practically all problems better than the people. Today, as a result, Americans are being literally “programmed” to death. And taxes have skyrocketed.

Separating Power Horizontally

18. How did the Founders separate power horizontally?
There are three functions of government at each level of society. One function is to make the law, another is to administer the law and a third is to interpret the law. These are all on the same horizontal level and are referred to as the legislative, executive, and judicial functions of government. The Founders wanted these three functions to be separated into equal, independent departments. At the same time, they wanted to coordinate these functions so that one department could not function without the other two. Each department was therefore assigned to serve as a check on the others. The idea of the Founders was to have these functions of government “coordinated but never consolidated.” This was one of the most ingenious devices contributed by the Founders.

19. What happens if the separation of powers breaks down either vertically or horizontally?
The Founders warned that if the vertical separation of power should ever break down so that all power began to be concentrated in Washington, there would be a severely arrogant abuse of the people by government officials. They also said that if the legislative executive and judicial departments failed to act as a check on each other, there would be tyranny and the people would lose their freedom. For more than one full generation this is what has been happening.
Americans Experiment with Another System

20. Is the consolidation of government functions the trend today?
Yes. Consolidation of power is gravitating toward Washington at a pace which would have greatly alarmed the Founders.

21. What has caused this?
Beginning around 1900 certain wealthy influential groups lost confidence in the original American system and began propagandizing the people into believing that a “redistribution of the wealth” by the government would greatly improve the American life style. This theory of economics with its concentration of political power at the center of government is usually referred to as socialism. Samuel Adams vigorously warned against these principles. He said socialism violates equal protection of rights and completely destroys the concept of limited government. In fact, he said the Founders had done everything possible to make these collectivist policies “unconstitutional.”

22. What has been the result?
These policies launched the United States on a wild and dizzy trajectory which has resulted in run-away inflation; a huge burden of national debt; taxes which are devouring nearly half of the peoples’ earning power; a serious invasion of individual rights; and a virtual collapse of states rights.

23. Has socialism or “collectivism” worked anywhere in the world?
Unfortunately, it has not. In fact, the militant forms of socialism such as Communism, Nazism, and Fascism have caused more wars and shed the blood of more human beings than any system of government in the history of the world. Even the so-called “peaceful” forms of socialism such as Democratic Socialism and Fabian Socialism, have proven counter-productive and have continuously crept along the razor’s edge of perpetual bankruptcy. Americans have sent over hundreds of billions of dollars in foreign aid trying to help the socialist nations survive. Now we are bordering on bankruptcy ourselves.

24. How did the Founders structure the American system so that socialism would be unconstitutional?
They did it by setting up a “limited” form of government with carefully enumerated powers. Jefferson called these limitations on government the “chains” of the Constitution.

American Leaders Began to Abandon the Founders Success Formula

25. Does this mean Theodore Roosevelt was in error when he said the President could do anything except that which the Constitution forbids?
Yes, he was turning the Constitution upside down. The President and all other officials of the government are only allowed to do that which is expressly authorized. The Founders referred to any exercise of power outside of these Constitutional chains as “usurpation.”

26. Was President Woodrow Wilson also in error when he said the United States should become involved in the political and economic affairs of the world?
Yes. The Founders had continually warned against foreign, entangling alliances. The Founders believed the United States should try to be friendly with all nations, but beholden to none. They knew that political interdependence leads to the development of power blocs, and power blocs ultimately lead to war.

27. Was Franklin D. Roosevelt in error when he structured the New Deal?
Yes. The New Deal was structured on collectivist principles designed by such men as Harry Hopkins who saw socialism as a tremendous vehicle to acquire power over the people and their resources. His famous formula was “tax, tax — spend, spend — elect, elect!”

28. Was Lyndon Johnson in error when he said, “We will take from the haves and give to the have nots!”
The Founders would certainly have called it an error. There is absolutely no Constitutional authority for the government to engage in any such invasion of private property rights. Throughout history it has always been popular for governments to pretend they are going to “soak the rich,” but such programs have always ended up with government officials using this newly acquired power to violate the inalienable rights of both rich and poor. It is a political trick to build bigger government with bigger debts and bigger taxes.

29. Was President Nixon in error when he continually tried to involve the United States in a “New World Order”?
Yes. It is extremely dangerous for Americans to enter into foreign engagements where decisions for Americans are made by non-Americans. The Founders believed that we should coordinate but never consolidate our free and independent society with foreign nations.

30. Was President Carter in error when he began meddling in domestic affairs of foreign nations?
Yes. The Monroe Doctrine specifically promised that the United States would never undertake to meddle in the domestic affairs of other countries. Any President or Secretary of State who has followed a policy of “interventionism,” has operated outside of his Constitutional authority.

Presidential Violations of the Constitution

31. What about executive orders which are treated as laws after being published in the federal register?
In the eyes of the Founders these would be considered unconstitutional. The President can issue executive orders to the administrative branches of government under his supervision but he has no authority whatever to make “laws” for the people since the Constitution assigns that authority exclusively to the Congress. An act of Congress could stop this whole illegal procedure.

32. What about executive agreements between the President and heads of foreign governments?
This procedure is also unconstitutional. The Founders provided that all agreements with foreign nations must have the advice and consent of the Senate. Since American Presidents began holding summit conferences with the heads of foreign governments, they have been entering into secret engagements which very often never see the light of day let alone receive the advice and consent of the Senate. Each year there are many more executive agreements signed by the President than there are treaties ratified by the Senate.

Judicial Violations of the Constitution

33. What about new laws laid down by the Supreme Court?
This is called “judicial legislation.” This occurs when the Supreme Court creates a new law by pretending to interpret an old one. In the Federalist Papers the Founders specifically warned against this type of arrogance by the Supreme Court.

34. How is the Supreme Court supposed to interpret the Constitution?
The Founders made it very clear that the Supreme Court would be violating its assignment if it substituted its own opinions for that of the Founders. Until recently it has always been an established principle that the Constitution must be interpreted the way the Founders intended it and not according to the whims or caprice of modern justices.

35. Is there any way to curb the Supreme Court from exercising its power in an unconstitutional manner?
Yes. A Judicial Reform Amendment would allow any Supreme Court decision to be overturned by two-thirds of the House and two-thirds of the Senate. A decision could also be overturned by concurring resolutions from three-fourths of the State Legislatures. Had this procedure been available the States would have’ undoubtedly outlawed forced busing of school children at least twenty years ago.

Unconstitutional Edicts of Regulatory Agencies

36. Is it Constitutional for an agency of the Federal Government to write rules and regulations which are enforced in the courts as “laws?”
No. This is a recent development in governmental procedures. It is called “administrative law.” The Founders provided no power in any agency of government to make laws except the Congress.

Blurring the Founders’ Division of Labor Between the States and the Federal Government

37. How did the Founders intend to divide the problem-solving powers between the States and the Federal Government?
James Madison spelled it out in the Federalist Papers, No. 45. He wrote: “The powers delegated by the proposed Constitution to the Federal Government are few and defined…. The powers reserved to the several states will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and the properties of the people, and the internal order, improvement and prosperity of the State.”

38. How did the Founders know whether to assign a problem to the State or Federal Governments?
If a problem involved foreign relations (war, peace, treaties, etc.) or matters which could not be handled by any one of the states (regulating interstate commerce, crimes on the high seas, navigable waters, naturalization, etc.) it went to the Federal Government. All other powers were retained by the States.

39. How many areas of power were ultimately assigned to the Federal Government?
The Constitution gives the Federal Government twenty powers. These are set forth in Article I, Section 8.

40. What if the Federal Government thinks it needs more power?
The government cannot legally exercise any powers except those which are specifically granted to it by the Constitution. The only way Washington can get any additional legitimate power is by an amendment.

41. Where does it say that the Federal Government is specifically restricted from exercising any power not granted to it by the States?
The Tenth Amendment

42. Then how did the government get so much power?
The dominating arrogance of the Federal Government today came about primarily through three channels: 1. outright usurpation of power, 2. an edict by the Supreme Court in the Butler Case in 1936 reversing the original meaning in the Welfare Clause, and 3. distorting the Commerce Clause as the means of shattering the restrictive chains of the Constitution and expanding Federal jurisdiction into hundreds of areas never intended by the Founders.

Subverting Two Important Constitutional Clauses

43. What was the Butler Case?
In this decision, Justice Roberts included in his opinion a dictum that the Congress would no longer be restricted in its taxing and spending powers so long as it was in the “general welfare” of the nation. This immediately opened the U.S. Treasury to looting for all kinds of give-away programs which politicians began using to buy votes.

44. In what way has the Commerce Clause been distorted to give the Federal Government unconstitutional powers?
This clause was simply designed to give the Federal Government sufficient power to insure the “free flow” of commerce so that the States would not interfere with inter-state shipments as they had done in the past. Since 1936 the original intent of the Founders has been expanded to include Federal control over practically everything which affects inter-state commerce either directly or indirectly. This usurpation of authority by Congress (which has been upheld by the Supreme Court), has shattered some of the most important restrictions on Federal intervention in the business and commercial life of the nation.

Some Practical Questions
45. Doesn’t the more complex nature of modern society require a far more extensive control of the economy by the Federal Government?
No. The more complex society becomes the more it needs the automatic problem-solving devices of a free-market economy operating with the least possible interference from government. As Adam Smith pointed out, government interference only adds to the complexity of the system and results in a serious deterioration of individual freedom.

46. What is a modern example of the Founders’ original success formula solving some of the highly complex problems of a modern society?
No nation could have had a much more complex situation than West Germany right after World War II. Every major city in Germany was bomb-gutted and the people were surviving in basements and make-shift hovels. Chancellor Konrad Adenauer of West Germany took over in 1949 and immediately initiated the basic economic principles advocated by the Founding Fathers. By using freedom instead of heavy-handed government regulations, West Germany achieved the highest standard of living in Western Europe within eight years. The West Germans were not only fully employed but importing foreign labor besides. Clothing, food and housing were abundant and cheap. West Germany became so prosperous she was the envy of socialized Sweden. It will be recalled that Sweden wasn’t even in the war and had boasted of the superiority of her socialist controls. However, in Sweden a young married. couple has to wait ten years to get a one-room apartment because of the government monopoly over housing. It was obvious West Germany had chosen a better way.

Questions About Money and the Budget

47. What happened to the Federal budget after the “Butler” case?
In 1936 (the year of the Butler case) the Federal budget was around six billion dollars. By 1980 the looting of the American taxpayer had pushed the Federal budget to more than six hundred billion dollars!

48. Is it Constitutional for the government to spend more money that it takes in?
Yes. The Constitution allows the government to borrow in emergencies. Unfortunately, during the last 50 years Congress has continually found excuses to borrow whether there was an emergency or not. The only way to stop this is to replace the big spenders in Congress with Constitutionalists who recognize that we are presently on a disaster course.

The National Debt

49. How much is the national debt today?
The U.S. National Debt is nearly a trillion dollars (extremely higher today!) requiring interest payments which cost more each year than the entire cost of World War I. Future liabilities to which the government is already committed will require taxation of an additional six to seven trillion.

50. How does the U.S. debt compare with the debts of other nations?
The United States now owes more than all of the rest of the nations of the world combined.

51. Why would the Founders have considered this gigantic indebtedness immoral?
The Founders said that no generation should go so deeply in debt that it becomes guilty of squandering the next generation’s inheritance. They said such extravagance is immoral. All past generations tried to pay off all the debts accrued during their time. Ours is the first generation which has deliberately squandered the inheritance of its children.

What About Welfare?

52. But hasn’t much of our money been spent for welfare and other Important social programs?
This was the main excuse for sky-rocketing taxation and deficit spending. Tragically, however, the money has been squandered primarily to build a vast bureaucracy. It is amazing how many of the government’s multibillion dollar social programs have provided only a pittance to trickle down to the poor, the sick and the elderly.

53. But didn’t the government have to try to do something to help those in need?
The Founders specifically warned against this type of political deception where the compassion of the people is exploited to build big government and raise taxes. They said that all types of charity and welfare should be handled on the local level where abuses could be quickly detected and corrected.

54. But what if the states do not provide needed services?
The existence of a need on a State level does not create a power on the Federal level. When a State fails to fulfill its obligation the pressure should be exerted on the State, not the Federal government. Jefferson said there is no way to preserve freedom if all political power gravitates to Washington.

The National Debt and Foreign Aid

55. In view of America’s tremendous national debt, why do we continue giving foreign aid to over a 125 countries?
This whole procedure violates the Constitution and common sense. What started out as part of the defense program in the interest of the United States has turned into an international Santa Claus give-away program. similar to the extravagant give-away programs at home. Tens of billions given away each year automatically add to the national debt.

Social Security

56. Is Social Security an insurance plan or a welfare plan?
The Supreme Court has held that it is a welfare plan. This means that it can be terminated at anytime. It also means the government can distribute its proceeds arbitrarily. The contributor to social security payments acquires no rights and receives only what the government condescends to distribute to him as “payments” if he qualifies under the government’s arbitrary poverty level.

57. Is there a better way?
Yes. It is called an annuity program. If the money contributed by an employee (and his employer) between 25 and 65 were invested in American industries under an annuity plan, the fund could be built to a quarter of a million dollars by the time he retires. An annuity fund of this kind would permit an employee to retire at $1,200 to $1,500 per month. Furthermore, the money is his. He does not have to be poor to get it. If he dies it goes to his widow and children. He earned it. He owns it. [these figures would be higher now]

58. Is the Federal Income Tax Constitutional?
Yes. The Sixteenth Amendment was adopted according to the requirements of the constitution.

59. Is this the type of tax which the Founding Fathers would have employed?
No. They provided that direct taxes be apportioned to the States according to population, not according to the incomes of the people.

60. Has income tax been administered uniformly?
No. A graduated income tax violates the equal protection of rights. It violates the principle of uniformity required by the Constitution and makes the property of accumulated wealth less sacred than those who have less.

61. Is it possible to administer the Income Tax fairly?
No. This could only be done by setting up a universal monitoring system similar to a “police state.” This would violate all of the basic rights guaranteed in the Fourth Amendment.

62. Would it ever be possible to repeal the Federal Income Tax?
Yes. By phasing out governmental activities which are clearly outside the Constitution, the cost of government would be greatly reduced and the income tax could be safely eliminated.

63. Would the repeal of the Sixteenth Amendment interfere with defense and other legitimate Federal responsibilities?
No. Corporate taxes and other sources of Federal revenue would more than adequately provide for the legitimate expenses of the Federal Government if its unconstitutional expenses were phased out. Who knows, there might even be a surplus!

64. What about the thousands of Federal-aid programs covering nearly every aspect of American life?
Federal grants are unconstitutional unless directly related to some power specifically delegated to the Federal Government. A strict interpretation of the Constitution would probably wipe out at least 95% of the Federal-aid programs presently plaguing the nation.

Federal Regulatory Agencies

65. What about EPA?
The Environmental Protection Act involves problems which the Founders delegated exclusively to the States where local supervision could prevent abuses and deal with over-regulation more readily. Today, federal control over air, water, and land environment is strangling the economy and suppressing the development of energy and natural resources.

66. What about OSHA?
Occupational safety and health are important responsibilities but they should never have been delegated to the Federal level. The Founders knew that government is too big, and the legal machinery too expensive for most citizens to handle. They therefore endure the disruptive and oppressive edicts of this agency because it has been too big for the average citizen to fight.

67. What about the Federal Communications Commission?
This agency was designed to “police” the traffic on the air waves but the FCC has used its licensing power to control the editorial content of programs. This is in direct violation of the First Amendment.

68. What about the Pure Food and Drug Administration?
There is no authority for this agency under the Constitution. If it is in the national interest to have such an agency it should have been authorized by an amendment. There is already a wide-spread criticism of the arbitrary manner in which this agency has exercised its broad spectrum of power.

69. What about Consumer Protection?
Here again we have an exercise of power unauthorized by the Constitution. Do we really want that much power allocated to the Federal level where the agency is so big and powerful that not even the largest corporations are able to cope with its abuses?

What About the Government Setting Up Business Operations?

70. Is there any authority in the Constitution for the government to set up tax-exempt corporations or business operations to compete with tax-paying citizens?
The answer is no, unless the corporation or business is directly connected with an area of Federal responsibility enumerated in the Constitution. For example, an independent government corporation to provide mail service would be constitutional. However, a corporation set up to compete in the production of electricity, the manufacturing of clothes, or the operating of a chain of public restaurants, would not.

71. How many corporations and businesses does the government operate at the present time which are unauthorized by the constitution?
Around 700 corporations and 11,000 businesses. [much higher now]

72. Are all of these tax-exempt?
Yes. They are not only tax-exempt but most of them are being subsidized out of tax funds because they are not being operated efficiently.

What Caused the “Sagebrush Rebellion?”

73. Shouldn’t all of the states have been admitted to the Union on an equal basis?
Yes. This was set forth by Congress in the Northwest Ordinance of 1787.

74. Which states were strong-armed into accepting statehood without being admitted on an equal footing?
All of the Western States and Alaska.

75. In what ways were they forced to accept statehood unequally?
Large regions of these states were retained by the Federal Government for purposes not authorized by the Constitution in Article I, Section 8, Clause 17.

76. About how much of the land did the Federal Government usually withhold from these states?
The government retained around 50% of the land in most Western States, but 79% of Nevada and 96% of Alaska.

77. Are any of these states attempting to get this land back?
Yes. The press has labelled this effort the “Sagebrush Rebellion,” but it is not a rebellion. These states are simply following the legal and Constitutional procedures necessary to have this land turned back to them.

What About Locking Up State Territory As Wilderness Areas?

78. Does the Constitution authorize the President and the Secretary of the Interior to lock up large blocks of land within a state as a “wilderness reserve?”
No. This violates the express provisions of the Constitution but was upheld by the Supreme Court on extremely tenuous grounds.

79. Does the Constitution authorize the Federal Government to have a national forest within the confines of a state?
No. This is not included in the list of territories which the Federal Government is allowed to occupy with the consent of the State. (See Article I, Section 8, Clause 17) The Supreme Court had to distort the Constitution to justify it. Historically, the States have had fewer forest fires and have maintained the State forests on a higher level than the national forests.

80. Does the Constitution authorize the Federal Government to have national parks within the confines of a State?
No. For the same reasons as those cited above, the Supreme Court should have disallowed them. It has been observed that as a rule State Parks are better maintained and provide better facilities than those operated by the Federal Government.

What About Federal Control of Energy Resources?
81. Does the Constitution authorize the government to control, regulate, or inhibit the production of energy resources within a state?

Problems with Government Monopolies

82. What about the widely expanded activities of the Interstate Commerce Commission?
The Founders never intended the “regulation of commerce” to include cartel monopolies, fixing prices, fixing routes, and regulating industries into bankruptcy. The recent deregulation of airlines dramatically demonstrated the advantage of free-market competition over a system of unconstitutional governmental regulations.

83. Does the Constitution authorize the Federal Government to set prices?
Not in time of peace.

84. Does the Constitution authorize the Federal Government to set wages?
Not in time of peace.

The National Labor Relations Board

85. Does the Constitution authorize the Federal Government to enter into labor-management disputes in the private sector?
No. This area of Federal usurpation occurred during the “New Deal” days by completely distorting the original intent of the Commerce Clause.

The Department of HEW

86. Is there any Constitutional foundation for the extravagant and wasteful expenditures of the Department of Health, Education and Welfare?
No. Each of the agencies under HEW has developed since the Butler Case. The dictum in this case authorized the general welfare clause to be interpreted in a manner which extended government intrusion into areas specifically excluded from Federal jurisdiction by the Founders.

87. About how much of the Federal budget Is spent each year on these unconstitutional activities?
Around 201 billion dollars in 1980 which is approximately 1/3 of the Federal budget.

88. Would it require an amendment to the Constitution to eliminate the Department of HEW?
No. An act of Congress could dismantle this extremely costly department which has probably been more wasteful and nonproductive in its assigned area of activity than any other branch of the government.

The Equal Rights Amendment

89. Why are so many millions of American women now opposing the passage of the Equal Rights Amendment?
In the beginning nearly everyone assumed that this amendment was designed to provide equal rights for women. This supposed objective was widely approved. It was only after 30 states had ratified this amendment that it was realized that the simple wording of this amendment would actually destroy a broad spectrum of rights which American women already have.

90. What are some of the rights of American women which ERA would destroy?
At present American women enjoy both the common law right as well as the statutory right to be supported, along with their children, by their husbands. ERA would not only destroy this right but also eliminate many rights relating to employment, maternity leave, insurance and survival rights which are presently provided by law.

91. Would passage of the Equal Rights Amendment give women any more rights than they now have?
No. All of the rights which the advocates of ERA claim they are getting for women through the passage of this amendment are already provided by law.

92. Would the passage of ERA further damage the original separation of powers instituted by the Founders?
Yes. For example, it would transfer a large percentage of cases involving family and other domestic problems from the State courts to the Federal judiciary which is already smothered with legal problems.


93. Is Federal funding of abortion a violation of the Constitution?
Yes. The specific and limited authority granted to the Federal Government does not include any funding for abortions.

The Gold and Silver Standard

94. Was the United States taken off the gold and silver standard in violation of the Constitution?
Yes. The gold standard is written into the Constitution (Article I, Section 10, Clause 1) and was removed by several acts of Congress without an amendment to the Constitution between 1934 and 1964. From the Founding Fathers standpoint this whole procedure was illegal.

The Federal Department of Education

95. Is it Constitutional for Federal funds to be used in the financing of local schools?
No. The Founding Fathers warned against the funding of schools by the Congress. In fact, education in the U.S. has seriously deteriorated since Federal funding began. James Madison equated the Federal funding of schools as extremely dangerous and said it was almost as bad as funding and controlling the churches of the nation.

96. Should the members of State and educational associations be required by law to pay dues to the National Educational Association?
No. The NEA is a private lobby with an annual budget of nearly $60 million dollars. It succeeded in getting the States to pass a law requiring the educators in State associations to pay dues to the NEA. These laws should be repealed. Teachers find themselves compelled to pay dues to this private organization which often advocates policies that are inimical to the best interests of American education.

Taxes on Dividends
97. Should stockholders be required to pay income taxes on their dividends when the corporation has already been subject to a corporate tax?
No. The stockholders are the owners of the company. They have already paid around 48% tax on the company’s earnings. The residue should be distributed among the stockholders as funds on which the required tax has already been paid.

Control of Firearms

98. Should the Federal Government pass laws providing for the control of guns?
No. The Founders left gun control under the exclusive jurisdiction of the State. They felt it was extremely dangerous to allow the Federal Government to “infringe” on the right to bear arms even in the slightest degree.

The Modem Method of Electing Senators

99. Should the Seventeenth Amendment be repealed?
The Founders would undoubtedly say yes. They set up a House of Representatives to represent the people and set up a Senate to represent the individual States. Senators were originally appointed by State legislatures and were the watchdogs of States rights. The Seventeenth Amendment took away the authority of the State Legislatures to appoint Senators. and therefore required Senatorial candidates to appeal to the people in a popular election. This resulted in the Senators frequently ignoring States rights in an effort to get more money for their States just as Congressmen do. States’ rights have been seriously deteriorating since the Seventeenth Amendment was adopted in 1913. It destroyed an important element of balance which the founders built into the Constitution.


100. Should the Bureau of Land Management be abolished?
Yes. This bureau has been rapidly phasing out the traditional grazing rights of ranchers and setting up impossible regulations on land which should have been turned over to the States when they were admitted into the Union.

Government Expenses

101. Can you find out how the government spends its money?
Yes. A complete breakdown of government spending is published each year by the Government Printing Office. This is required by the Constitution.


Now, as nearly as we can ascertain from the writings of the Founding Fathers, this is about the way they would have answered each of these 101 questions. We have also tried to reflect the line of reasoning which their writings portray when similar questions were raised in their own day.

It is believed their point of view deserves careful consideration in view of the rather calamitous consequences which modern Americans have encountered as a result of following a different line of thinking. The socialist or collectivist formula has not worked for Americans; nor any one else for that matter.

It is believed this generation of Americans could earn the eternal gratitude of their descendants if they would immediately undertake to restore the Constitution in the tradition of the Founding Fathers.