Presentation to the League of Women Voters
Lake Charles, Louisiana - Feb 11, 2005
[Click Here to See Press Coverage]

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This montly meeting marked the League's 85th Anniversary.  LWV monthly meetings begin with the Pledge of Allegiance.

Introduction by LWV's Pam Mattingly, President of LWV's Lake Charles Chapter: Guy McLendon - National Coalition Liaison of Republican Liberty Caucus.  Guy was a Libertarian Party candidate for Congress in 2002 in the Houston area, and he has been a member of the SWLA community for 10 years ... He has worked at CITGO in the Automation Department during that time.

Guy's Presentation:

Thank you Pam. It’s an honor to be invited to speak here today. Thank you all for being here.

Before we get started, I’d like you to think about the pledge of allegiance that you made to the flag … and to the Republic for which it stands. Not a Democracy, but a Republic. The two are not the same.

The word "Democracy" is not used even once in the Constitution.

According to Congressman Ron Paul from Texas, Democracies typically reject the rule of law in favor of majority opinion.

Please consider this quote from Thomas Jefferson:

"A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other forty-nine."

Everyone please take a handout … the cover is from my website – libertycoalition.us. It’s based on the 1st cartoon ever published in an American newspaper in 1754. Credit to Ben Franklin and the Pennsylvania Gazette …

On the cover, please read the quote from George Washington …

The basis of our political systems is the right of the people to make and to alter their Constitutions of Government. But the Constitution which at any time exists, 'till changed by an explicit and authentic act of the whole People is sacredly obligatory upon all.

George Washington, Farewell Address, September 19, 1796

Since the Supreme Court alone is not the “whole people”, they alone are not authorized to change the original intent. This idea must be true since George could not tell a lie … You recall George even confessed to chopping down his father’s cherry tree.

Since the whole people are expected to be involved in changing it, it follows that all citizens and public officials, mayors … policemen … and judges … all have a sacred obligation to read, understand and comply with the original intent of the Constitution …

The Court does not have a monopoly on its interpretation.

Franklin’s cartoon showed 8 of the original colonies. I’ve replaced those with modern organizations. CATO Institute is the head … the Republican Liberty Caucus … the Libertarian Party … and the Democratic Freedom Caucus is the tail

Turning the page, see our topic today is “The US Constitution – a Layman’s Overview”

Today we’ll discuss some history, review the Constitution, and discuss methods of interpretation.

Your handout includes a reference from Stanford University, and a copy of the Constitution … for reference today.

Let’s get started, on page 35, let’s read the highlighted section of the Declaration …

… to secure rights, Governments are instituted … deriving their just powers from the consent of the governed … whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

In 1776, the founders felt that citizens, and not government officials, have the ultimate authority in organizing their own government

Later in history, Thomas Jefferson would describe such ideas as being “The Spirit of ‘76

After the Revolutionary War, the government operated under the Articles of Confederation for about 10 years

Prompted by their inability to negotiate a trade treaty with Great Britain, a team was assigned the task to develop proposed changes to the Articles

That team exceeded their instructions and instead drafted a replacement document – today’s Constitution.

A great struggle began

Federalists championed the Constitution’s body. Three of them Alexander Hamilton, James Madison and John Jay wrote 85 documents called the Federalist Papers to sell it

Thomas Jefferson did not sign the Constitution. The Anti-Federalists, including Jefferson and Patrick Henry, resisted ratification

State Conventions eventually ratified it, but asked Congress to send 12 proposed amendments back to the states for ratification

In Congress, Jefferson championed those amendments every step of the way

He did good

Of the 12 amendments proposed, 10 were ratified in 1791. One of the last two was finally ratified in 1992, and is the latest amendment #27

History Quiz: who founded the Democratic Party?

<Volunteer Response>

Thomas Jefferson.

What was his motivation for founding it?

<Volunteer Response>

In Congress, between 1787 and 1791, Jefferson organized a caucus to fight for the Bill of Rights. That caucus later evolved into the early Democratic Party.

Now, let’s look at the Constitution …

On page one, see the highlighted words …”form a more perfect union”, and “Secure the Blessings of Liberty”

The founders wanted to form not just any government … but one that left intact some feature which they called “Liberty”.

What was meant by the words “Blessings of Liberty”? What is Liberty?

Someone take a stab at it … anyone?

<Volunteer Response>

My last English professor once said that engineers should use words as though they have meaning

From dictionary.com, the definition that seems most applicable is this:

Freedom from unjust or undue governmental control

In other words, Liberty is the absence of big government.

The design of the Constitution has features that were intended to achieve an objective … to keep the lid on big government … by giving only limited power to public officials.

That’s what they meant by “Secure the Blessings of Liberty” for their posterity … for US.

Compare the government to a car. If you stab the tires, or cut the spark plug wires … then, the car cannot perform its mission.

Similarly, damage vital features of the Constitution, and see your government grow with no limits

Let’s look a litter deeper at the features intended to limit the power of public officials …

Article 1 talks about Congress …

On page 1, Section 1 says … “All legislative powers shall be vested in a Congress”

That means the President is not authorized to issue executive orders that have the force of law

That means the Supreme Court is not authorized to legislate from the bench

When they do so, they violate their oath of office … they are then in breach of their verbal contract. They are breaking the supreme law.

On page 6 … still in Article 1 -- Section 8 … we find the famous “enumerate powers” section.  That's a list of approved powers

If the Constitution is a blueprint for a car, then Section 8 is the “engine”

Only Congress can make federal laws … and, their power make laws is legally limited by this list

Here’s some food for thought: if the owners of a store catch a manager exceeding his authority in such a way as to enrich himself … what happens to him? He’s accused of embezzlement? Theft? He’s fired …

One flaw of the Constitution is that both Congress & the President are granted the privilege of investigating their own crimes.

If the President commits a crime, the attorney general investigates it. Guess who the Attorney General works for? Similarly, crimes committed by Congressmen are sent to an internal ethics committee

Fixing that flaw would be a good reason to amend

One last point on enumerated powers: only Congress is authorized to declare war, and Congress is not authorized to transfer that authority to the President.

If they do so, they violate a deliberate design feature.

On page 8, still in Article 8, Section 9 reads

"a regular statement and account of ALL public money shall be published"

I question whether that's happening.

On page 9, Article 2 … talks about the Executive Branch, or the President … including the Electoral College … It’s been proposed that the President should be elected by popular vote, and the Electoral College eliminated. Consider this.

A state has the same number of Electoral College votes as the total of their Senators & Representatives. Each state having two Senators was intended to give small states equal representation in one of the two branches of Congress.

The Electoral College gives small states a more equal weighting in the selection for President … Here’s an example to think about … Texas has 34 electoral college votes, and Wyoming has 3. A switch to popular vote, would be like dropping Wyoming’s electoral college votes down from 3 to 0.8 …

On page 12, Article 3 … talks about the Judiciary, or Supreme Court … it often refers to judicial power, but does not clarify what those powers are

On page 14, Article 4 … talks about how states interact with each other.

On page 15, Section 4 also requires the feds to “guarantee a Republican Form of Government” …

Politicians in Washington no longer talk seriously about our having a Republic

On page 15, Article 5 … describes 2 ways to amend the Constitution. Congress can propose the amendment, or the States can tell Congress to call a Convention to adopt amendments.

So citizens, acting through their state governments, should still be able to bypass the discretion of federal officials, and change the Constitution directly. I say “should” because today’s federal government may hijack such a Convention.

Article 6 … covers public debt, the supreme law of the land clause, oaths of office & a religious test. This religion test is one of only two clauses in the entire Constitution that addresses Separation of Church & State. The other is the 1st amendment.

On page 16, Article 7 is ratification. Notice under the state of Virginia, our 3rd President did not sign, but instead began to fight for the Bill of Rights

On page 20, would someone read the preamble to the Bill of Rights … that’s highlighted?

“The conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added.”

The Anti-Federalists, champions for the Bill of Rights, were concerned the concept of enumerated powers would not be enforced, so further restrictions were placed on the power of federal officials

Let’s skip down to an amendment that is very often forgotten – the 10th … on page 23

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

For instance, the federal government is not authorized to get involved in the educational system, but no such restriction is placed upon state governments. So, the power to educate children is reserved exclusively to the States, or to the people. The federal Department of Education is not constitutional

Even today, the Constitution still has flaws … a flaw from day #1 is that States were able to trample on the rights of their state citizens

On page 25 & 26, see the 14th Section 1:

“No state shall make or enforce any law which shall abridge the privileges and immunities of citizens …”, then the due process clause, “… nor deny the equal protection of the law.”

The 14th did add one new enumerated power. The feds are now able to stop the States from abusing rights of citizens. I see no other NEW enumerated power given there. Reports of the demise of the 10th amendment have been greatly exaggerated. The 14th did not repeal the 10th.

We’ve been discussing rights …. The Bill of Rights … what exactly is a “right”?

Volunteers … ???

 

A right is different than a privilege. A privilege can be taken away … a right is inherently yours.

Eleanor Roosevelt:

"a right is not something that somebody gives you; it is something that nobody can take away"

 

Fulton Huxtable:

“A right is the sovereignty to act without the permission of others. The concept of a right carries with it an implicit, unstated footnote: you may exercise your rights as long as you do not violate the same rights of another”

Sounds a lot like the Golden Rule … doesn’t it?

Rights and responsibility are two sides to the same coin … You can’t have one without the other

Let’s discuss a definition that I disagree with.

Interest Theory of Rights:

“Person A has a right to something if an aspect of A’s well being justifies the imposition of duties on others – that is, duties required to secure A’s interest”

If a duty is imposed on you, can we agree your service is not voluntary? It is imposed. In other words, that other person is being subjected to involuntary servitude … That is "not voluntary service"

On page 25, please see the 13th amendment …

“Neither slavery nor involuntary servitude shall exist within the United States”

Question: does the 13th permit the government to impose involuntary servitude upon American citizens?

Volunteers?

I consider conscription to be a clear, obvious violation of the 13th amendment.

 

Judicial Review:

In 1803, the Supreme Court ruled in a case “Marbury vs Madison”:

“It is emphatically the province and duty of the judicial department to say what the law is.”

This opinion seemed reasonable when used to strike down Acts of Congress that violate the Constitution. However, this ruling was later abused.  The Court uses this to redefine the meaning of words, and thereby violate original intent

Let’s talk about … Methods of Interpretation … as explained by the legal scholars at Stanford University:

1. Textualism – that is, follow the letter of the law

2. Originalism – that is, follow the general intent

3. Hypothetical Intent

4. Living Tree

The first three methods are all basically “fixed view” using the idea of entrenchment … that’s the idea that …

"Those whose powers are constitutionally limited must not be legally entitled to change or delete those limits at their pleasure."

Without entrenchment, no Constitution can be effective

Strict textualism is weak because it may not let the court use common sense … For example, 1st amendment may protect the right to free speech without exception. Yet, a jerk who would yell “fire” in a crowded theater is violating the rights of others

I use the term “Border clash” when the perceived rights of one person conflict with the rights of another

Originalism is better. Life in modern society is much different than life in 1787 … The applications today are different than what the founders could have anticipated … For instance, thinking of free speech, Ben Franklin could not have anticipated spam on the internet.

Would he have considered spam to be free speech? Dunno … With SPAM, there may be some “Border Clash” going on …

Hypothetical intent goes farther by predicting what the founders would have concluded if they had all the data available today. I like the phrase “extrapolated original intent” …

Point / Counterpoint

Critics of the fixed view charge that different founders meant different things by what was written and signed

To that, the fixed view counters that we must take the words as written as evidence of the final consensus.

Critics of the fixed view say the court should not be limited by the “dead hand of the past”.

The Fixed View counters that the Court’s opinions do not amend the Constitution itself until the requirements of Article 5 have been followed.

Up until the early 20th century, Americans and the Supreme Court basically adhered to the concept of the fixed view.

On page 27 and 28, note the 16th, 17th and 18th amendments were all passed around the time of WW1. These three were not merely bad for Liberty … they dealt her a mortal blow.

The 16th imposed an income tax. Now, I don’t object to reasonable taxation, but consider my opinion. An income tax is an ownership claim by the government of a fraction of your time …

Your life is made up of the experiences between the time of your birth, and the time of your death. My opinion is that a claim of ownership of your time is like claiming to own a part of your life …

This suggests the government granted itself an exemption to the 13th amendment. It’s like having a government monopoly for enslavement of citizens, but only on a timeshare basis

The 17th. Prior to 1913, the state legislatures appointed the United States Senator. Termination of this design feature helped to make state and local government mere puppets to the federal government.

Could the feds threaten Louisiana with cutting off highway funds if Baton Rouge appointed the US Senator?

I don't think so.

The 18th began prohibition. That’s when righteous people began to hijack the power of government … using it as a tool to impose their own lifestyle preferences on others

Today, such abuse of power is common.

Here’s the good news … around WW1, government officials still believed they had to comply with the general intent of the Constitution unless they changed it

Having to repeal prohibition with the 21st amendment put egg on the face of federal officers.

They hate egg on their face!

Between losing face, and FDR’s zeal to pass the New Deal, our federal officials abandoned the Rule of Law

The “living tree” blossomed in the early 1930s. Its advocates say the Constitution is not only the document you just read …

Instead, they literally claim that an “unwritten” *** an unwritten *** Constitution should be used … one that abandons entrenchment.

Based on that, personal opinions written by Supreme Court justices have the effect of passing an amendment … unlawfully bypassing Article 5.

Why bother to comply with Article 5 when your huntin’ buddy on the Supreme Court can write the opinion you want? … Such opinions add yet another branch to the Living Tree.

What’s next? Amendment based on public opinion polls?

Well, guess what? You’ve got that already.

Question: did George Washington believe in the Living Tree method of interpretation?

Volunteer Response?

Washington’s Farewell Address says that changes require an “explicit and authentic act of the whole people” … that’s clearly a fixed view.

My personal hope is that, like the legendary Phoenix, Jefferson’s Spirit of ’76 will arise from the ashes.

Liberty requires us to have strict limits on the power of government officials

Today we are the 1st generation of the 21st century. We could restore Liberty in remembrance of those ancient patriots Patrick Henry, Jefferson & George Washington.

Or, we could do it for ourselves, our children and for the many generations to come.

Let THIS be the generation who chops down not a cherry tree, not a living tree, but a vicious weed … an unlawful method of constitutional interpretation

Thank you very much, and may Liberty survive in these United States.

Are there any questions?

 

For Event Inquiries:
Call 832-372-8131
Sulphur, LA
Email:  guy@mclendon.net
Website:  www.mclendon.net