The Personal Website of Mark W. Dawson
Containing His Articles, Observations, Thoughts, Meanderings,
and some would say Wisdom (and some would say not).
Constitutional Protection of Rights and Just Laws
In another article, "Natural, Human, and Civil Rights" I examined the hierarchy of rights and the interrelationship of these rights. This article examines how these rights are protected in the U.S. Constitution.Much of the current confusion about the meaning of the Constitution is in understanding the original meaning of the words, terms, and phrases, as understood by the drafters of the Constitution and its Amendments, meant by these words, terms, and phrases. There is also a confusion of how these words, terms, and phrases were interpreted by Congress, the President, and the Courts. To truly understand the Constitution, you need to know what the drafters meant by the words, terms, and phrases, and how they were interpreted. Applying modern meanings to these words, terms, and phrases can lead you astray, and lead to a misunderstanding of the Constitutional intentions of these words, terms, and phrases.
There are two excellent books that discuss this topic. Both are written by legal scholars who examined the historical record to determine what the words, terms, and phrases meant at the time they were written and how they were historically interpreted.
The Original Constitution: What It Actually Said and Meant 3rd Edition by Robert G. Natelson
Knowledge is power. This book is full of information that even many experts don't know. From it, you will learn: The Constitution's hidden meanings. Many of its words and phrases meant something different in the 18th century than they do today. How the founders wanted the Constitution interpreted. Is it really a "living" document? (The answers may surprise you!). How the original Constitution protected your rights. What a privilege is, and how it is different from a right. How the framers were ahead of their time in respecting women and minorities.
His website for additional materials can be reached here.
Restoring the Lost Constitution: The Presumption of Liberty by Randy E. Barnett
The U.S. Constitution found in school textbooks and under glass in Washington is not the one enforced today by the Supreme Court. In Restoring the Lost Constitution, Randy Barnett argues that since the nation's founding, but especially since the 1930s, the courts have been cutting holes in the original Constitution and its amendments to eliminate the parts that protect liberty from the power of government. From the Commerce Clause, to the Necessary and Proper Clause, to the Ninth and Tenth Amendments, to the Privileges or Immunities Clause of the Fourteenth Amendment, the Supreme Court has rendered each of these provisions toothless. In the process, the written Constitution has been lost.
Barnett establishes the original meaning of these lost clauses and offers a practical way to restore them to their central role in constraining government: adopting a "presumption of liberty" to give the benefit of the doubt to citizens when laws restrict their rightful exercises of liberty. He also provides a new, realistic and philosophically rigorous theory of constitutional legitimacy that justifies both interpreting the Constitution according to its original meaning and, where that meaning is vague or open-ended, construing it so as to better protect the rights retained by the people.
His website for additional materials can be reached here.
While these books are not, and cannot be, definitive, nor can they be inclusive of all opinions on this topic, they are a very good starting point on this topic. While I have pondered this topic for many years (decades), these books also molded and remolded, my thoughts and opinions on this topic. As such, I have highlighted some of the issues regarding the Constitutional Protection of Rights and Just Laws as follows.
Limited and Enumerated Powers
Enumerated Powers (also called expressed powers, explicit powers, or delegated powers) of the United States Congress are listed in Article I, Section 8 of the United States Constitution. The United States Government was constituted to assure these Human, Constitutional, and Civil Rights in order to assure the "Freedoms, Liberties, Equalities, and Equal Justice for All" . The U.S. Constitution specifies the limited and enumerated powers of the Federal Government. It does so to assure that the Federal Government will not encroach on the rights of the States and the people. My Article "Limited and Enumerated Powers" examines these powers and their application in today's society.
In summary, Congress may exercise only the powers that the Constitution grants it, with restrictions on its powers as listed in the first ten Amendments, i.e., the "Bill of Rights". Non-enumerated powers and other rights retained by the States or people are restrictions on the Federal government powers as covered by the "Ninth and Tenth Amendments to the U.S. Constitution". Moreover, the Constitution expresses various other powers and limitations on Congress and the Presidency not covered by the Enumerated Rights or the Bill of Rights.
Just Laws
Our Constitution was founded on the principles of Freedom, Liberty, Equality, and Equal Justice for All. Our Declaration of Independence was formulated as a result of the English King and Parliament, abrogating these principles. The American Revolution was fought to preserve these principles, and the U.S. Constitution was established to enshrined these principles, as outline in my Article "The Meaning of the American Revolution". Our government was also founded to create "A Just Government and a Just Society".
Consequently, any law passed must be based upon these principles. If a law infringes upon these principles, then there is a real possibility that it is an unjust law. As such, all laws should have a Presumption of Liberty, not a Presumption of Legitimacy. Many laws have been legitimately passed that, on some occasions, infringed upon our liberties and freedoms. A legitimately passed law that infringes on our liberties is an unjust law. A law is just if its restrictions are (1) necessary to protect the rights of others and (2) proper insofar as they do not violate the preexisting rights of the persons on whom they are imposed. This is the purpose of the "Necessary and Proper Clause" of the U.S. Constitution.
A just law should be utilized to regulate rightful acts and prohibit wrongful acts. To regulate rightful acts is to assure that the Liberties and Freedoms of those impacted by the law are not abrogated. The law also needs to be formulated so as their actions are done in a regularized manner (i.e., to bring into conformity with rules, principles, or usage) that would allow all parties to operate properly within the scope of the law. To prohibit wrongful acts is to assure no one violates the Liberties and Freedoms of others in their actions.
One of the reasons for an independent judiciary was to review these Human, Constitutional, and Civil Rights issues and concerns to determine if the Federal Government was acting outside the scope of their powers and were necessary negate a Federal action that was outside the bounds of the Constitution. My article "Judges, Not Lords" examines the propriety of judicial decisions in regards to Human, Constitutional, and Civil Rights.
In addition, we have seen a change in the balance of power between the people and the government in the determination of whether a law is just or unjust. Prior to the twentieth century, the presumption of the courts was that the government need to prove that a law was just and legitimate by the "Limited and Enumerated Powers" and the "Necessary and Proper Clause" of the U.S. Constitution. However, more modern Supreme Court decisions have shifted the burden of proof that the law is unjust on the person(s) challenging the law on constitutional grounds. I believe that this is improper as the people should have the Presumption of Liberty, and the government should have the burden of proof that their actions are constitutional.
Civil Forfeiture
While not enumerated in the Constitution or its Amendments, the concept of "Civil Forfeiture" has become an accepted practice by the Federal, State, and Local governments as a result of Supreme Court decisions.
In criminal cases, the government can confiscate assets only after a conviction. Under Civil Forfeiture, however, in civil cases, it can confiscate assets first and prove justification later. Assets can be seized merely on suspicion of a person's involvement with criminal actions or illegal activities. Citizens have no right to a hearing before the asset is seized. For an individual or small business, this can be fatal. In many civil-forfeiture cases, the agencies that seize the assets keep most of the proceeds and can use them to pad their budgets. It is hard to know how common this is, but some reputable studies estimate that this may be between five hundred million to a billion dollars a year.
I believe that Civil Forfeiture is a violation of our rights under the "Due Process Clause of the Fifth and Fourteenth Amendments of the U.S. Constitution", the "Privileges and Immunities Clause of the Fourteenth Amendment of the U.S. Constitution", and the "Necessary and Proper Clause of the U.S. Constitution". It is also a violation of the concept that a person is innocent until proven guilty. It can also lead to abuses of power by the government. As such, I believe that Civil Forfeiture laws are unjust and need to be deemed unconstitutional by the judiciary.
Other Impacts on Constitutional Rights
Several clauses in the U.S. Constitution and its Amendments have a direct impact on the Human, Constitutional, and Civil Rights of all Americans. Based on how they have been interpreted by the U.S. Supreme Court, they have extended, or constricted, the powers of the Federal government and impacted the "Freedoms, Liberties, Equalities, and Equal Justice for All" . Here are these Clauses and Amendments, and my opinions of them, that I believe are the most impactful.
Necessary and Proper Clause of the U.S. Constitution
The Necessary and Proper Clause in Article I, Section 8 of the United States Constitution that is as follows:
"The Congress shall have Power ... To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."
A law is necessary only if it is to implement an enumerated power. However, a law must also be proper in that it does not infringe upon the enumerated and unenumerated rights of Americans. Therefore, a law must be both necessary and proper for it to be Constitutional. Any law that does not meet both criteria is an unjust law. Consequently, unjust laws need to be negated as unconstitutional by the judiciary to assure our liberties and freedoms.
Commerce Clause of the U.S. Constitution
The Commerce Clause describes an enumerated power listed in the United States Constitution Article I, Section 8, Clause 3. The clause states that the United States Congress shall have power:
"[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."
Courts and commentators have tended to discuss each of these three areas of commerce as a separate power granted to Congress. It is common to see the individual components of the Commerce Clause referred to under specific terms, the Foreign Commerce Clause, the Interstate Commerce Clause, and the Indian Commerce Clause.
Prior to the passage of the Constitution, interstate commerce was fraught with difficulties. States would pass tariffs and taxes on goods imported and exported from/to their State. Some localities would also assess fees for commerce transiting their localities. This made interstate commerce expensive and time-consuming. Thus, it constricted the free flow of goods and services across state lines. This clause of the Constitution was formulated to correct this situation. Interstate commerce would be the providence of the Federal Government in order to assure the free flow of commerce across state lines. For commerce within the States, the State retained the right to regulate commerce as their Constitution allowed. For Foreign and Indian Commerce, the Federal government had the sole power of regulating this commerce.
The 20th and 21st-century expansion of the meaning and scope of the Commerce Clause is how we have become a regulatory state. It has resulted in the explosion of the Federal statutes, rules, and regulations regarding commercial activities, and the corresponding expansion of the Federal bureaucracy to create and enforce these Federal statutes, rules, and regulations.
However, the drafters of the Constitution had a different meaning of "Commerce". They believed in three spheres of economic activity; Agriculture, Manufactures, and Commerce. They believed that Agriculture is the practice of cultivating the land or raising stock, Manufacturing is the act of making something (a product) from raw materials, and Commerce is the transactions of trade or exchange (sales and purchases) having the objective of supplying commodities (goods and services). When they spoke of Commerce, they did not include Agriculture and Manufactures as part of Commerce. Given this distinction, the drafters of the Constitution meant for the Commerce Clause to regularize the trade or exchanges across State lines, while the States had the limited responsibility to regulate Agriculture, Manufactures, and Commerce within their State as their State Constitution allowed.
For many decades after the Constitution was passed, this clause was interpreted to mean to regularize (bring into conformity with rules, principles or usage) interstate commerce, and not to regulate (give direction to; be an influence on) the goods and services involved in interstate commerce. This is a subtle but important distinction. The people were free to decide what goods and services would be exported and imported into a State, without governmental interference of the product or service. This was not much of a problem in a pre-industrial society as the quality of the product or service was often self-evident, and the number of imports and exports was not substantial (except agrarian products). However, with improvements to transportation (road, rivers, canals, railroads, etc.) and increased industrial production, imports and exports between the States became substantial.
In the latter half of the 19th century, it became apparent that the Federal Government needed to apply minimum standards on the products and services in order to protect the health and safety of the American people. It was at this point that the Federal Government began to regulate the content of the product or service, as well as continuing to regularize the interstate commerce of the product or service. With the explosion of the Industrial society in the 20th century, this clause was utilized to both regularize and regulate products and services involved in interstate commerce. This gave rise to the regulatory State that now exists.
The question is, and has been, how much regulation is needed to protect the health and safety of the American people while preserving their liberties and freedoms. Too much regulation impinges on the liberties and freedoms of Americans, while too little regulation endangers the health and safety of Americans. This dynamic has been one of constant conflict between small and big government proponents. It can also be seen in the thoughts and policy positions of Libertarians and Socialists, as well as the Democrat and Republican Party policy positions. It also has an economic impact in that too much regulation slows the economy and increases the prices for goods and services, while too little regulation has the opposite effect but could endanger Americans. The regulatory State also increases the size of the federal bureaucracy and its intrusion into the size and scope of the affairs of the American people. Government costs more and more, taxes increase to support the government, and the costs and efforts increase in establishing and operating a business.
The effects of this regulatory State are that the government plays a larger and more intrusive role in society, which affects the Human, Constitutional, and Civil Rights of all Americans. The question is then 'What is the balance between the Government and the people?' and 'How do we maintain our hierarchy of rights within this balance?'. These questions will continue to plague us throughout the 21st century.
Privileges and Immunities Clause of the U.S. Constitution
In Article. IV. Section. 2. of the United States Constitution, also known as the Comity Clause, prevents a state from treating citizens of other states in a discriminatory manner. Additionally, a right of interstate travel may be plausibly inferred from the clause. The clause is as follows:
"The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.".
This clause was to assure that a citizen of one state would not be treated any differently from a citizen of a State when they were in resident or transit in another state. In essence, all persons within a State are to be treated equally to all other persons within the jurisdiction of a State. All persons would have equal protection and equal justice of the laws within the State.
Ninth and Tenth Amendments to the U.S. Constitution
The Ninth Amendment to the United States Constitution addresses rights, retained by the people, that are not specifically enumerated in the Constitution. It is part of the Bill of Rights. The Ninth Amendment reads:
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
The Tenth Amendment to the United States Constitution, which is part of the Bill of Rights, expresses the principle of Federalism and States' rights, which strictly supports the entire plan of the original Constitution for the United States of America, by stating that the Federal Government possesses only those powers delegated to it by the United States Constitution. All remaining powers are reserved for the states or the people. The Tenth Amendment reads:
"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."
These amendments are one of the most underrated and underutilized amendments to the Constitution, but also one of the most important. The 9th Amendment assures us that if a right is not enumerated in the Constitution that the right is retained by the people and not that that the right doesn't exist. This reminds us that rights do not originate in the Constitution, but from the people. The people always retain their rights and delegate responsibility to the Government to protect their rights. The Government may not abrogate a person's rights, only enforce and protect them. The 10th Amendment reminds us that any government power not delegated to the Federal Government in the Constitution is a power delegated to the States or to the people. It also recognizes that a State can prohibit the exercise of federal power if the States or People prohibits it. This was enacted to restrict the activities of the Federal Government to only those items enumerated in the Constitution. Our founding fathers were very concerned that the Federal Government would attempt to overreach and insert itself into affairs that it had no authority to do so. They knew it was very important for the protection of liberty and freedom that the Federal Government should be limited to those activities stated in the Constitution. This is true whether it is the Congressional, the Executive, or the Judiciary branches who are exercising power.
Privileges or Immunities Clause of the Fourteenth Amendment of the U.S. Constitution
Amendment XIV, Section 1, Clause 2 of the United States Constitution was constituted to protect the rights of all the people, in all the States and Territories, from being abridged by any person, party, legislation, or executive actions by Federal, State, or by inference Local authorities. Along with the rest of the Fourteenth Amendment, this clause became part of the Constitution on July 9, 1868. The clause states:
"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States...."
With this clause of the Amendment, the States had a proactive duty to assure that the rights of the people, as defined by the Constitution, were applied in all their laws and governmental actions. Unfortunately, a Supreme Court decision (the Slaughter-House Cases), shortly after this Amendment was passed, effectively eviscerated this clause and shifted the balance to the "Due Process Clause" of the 14th Amendment. With this shift, it was possible for a State to possibly violate the privileges and immunities of its people if it were done by means of due process. I believe that this case was wrongly decided by the Supreme Court, and thusly has and had a detrimental impact on our Liberties and Freedoms. As such, I would be amenable for the Supreme Court to reconsider this decision if the proper case arose.
Due Process Clause of the Fifth and Fourteenth Amendments of the U.S. Constitution
The "Due Process" Clauses were formulated to assure "Justice and The Rule of Law in America". The clause in the Fifth Amendment reads:
"No person shall ... be deprived of life, liberty, or property, without due process of law."
While the clause in the Fourteenth Amendment says:
"...nor shall any State deprive any person of life, liberty, or property, without due process of law."
One of the means for assuring Justice for All is by allowing the Judicial Branch to review the law to assure that it is "Necessary and Proper" under the Constitution. This is done under the doctrine of judicial Power, which allows the judiciary to negate any law that it determines is unjust (as outline in my "Just Laws" section of the aforementioned article).
The Fifth Amendment was passed to assure that, in regard to Federal actions, that all persons would have their liberties and freedoms protected by Due Process of Law. Everyone was to be equal protection and equal justice of the laws for all Federal actions. This clause was not held to be applicable to the States actions, as many of the southern States delegates believe it could be utilized to abolish or restrict slavery in their State.
After the Civil War and the passage of the Thirteenth Amendment abolishing slavery, this reasoning was moot. Therefore, the Fourteenth Amendment extended this protection to State actions.
Income Taxes
Prior to the 16th Amendment of the Constitution, Federal taxes were indirect taxes. This was because our Founding Fathers knew that a direct tax was on individuals was an opportunity for the government to abuse an individual's freedoms and liberties. Direct taxes on an individual meant the possibility of direct control of an individual, and direct control of an individual was abhorrent to the Founding Fathers. And so, the Constitution did not allow for direct taxes, as stated in Article I, section 9, of the Constitution:
"No Capitation, Or Other Direct, Tax Shall Be Laid, Unless In Proportion To The Census Or Enumeration Herein Before Directed To Be Taken."
Note ? a Capitation is a tax levied on the basis of a fixed amount per person.
However, as the government grew and expanded at the beginning of the 20th century, indirect taxes were insufficient to support the proper and needed functioning of government. Therefore, Congress passed on July 2, 1909, and the States ratified on February 3, 1913, the 16th Amendment of the U.S. Constitution. This amendment states:
"The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration."
And that is one breathtaking statement. It effectively says that Congress can tax any income, at any rate, and without any regard to any other factors. There is also no checks and balances within that statement to protect the freedoms and liberties of the American people. The only restriction on this power is The Equal Protection Clause that is part of the 14th Amendment to the United States Constitution. And a legal argument can be made that any amendment to the Constitute supersedes any previous amendment, and if this is so the 14th amendment protections may not fully apply to the 16th amendment powers.
At the time of passage of the 16th Amendment, the American people were informed that the vast majority of people would not be subject to Income Taxes. The Income Tax was to be a progressive tax that would only affect the wealthier people of the United States. The American people, therefore, thought that Income Taxes would not impact themselves. But like cancer, the Income Tax metastasized through the entire populace and eventually impacted almost all Americans.
After it was passed, it was implemented innocuously, and with minimal impacts on American society. But as time went on, as is the case with all government activities, more and more sources were taxed, more and more people were taxed, more and more tax rates were increased, and more and more special interest exemptions were included. And today we have one of the most bloated, convoluted, least understandable, economically impactful, preparation time and money consuming, and oppressive tax codes in the world. And it is harming all Americans. The only people it seems to help are the politicians who run for or against it or parts of it, the special interest groups who benefit from its exemptions, and of course, the government bureaucrats who administer it.
The Internal Revenue Service (IRS) is also not only a collection agency but an enforcement agency. It has its own rules, regulations, and procedures for enforcement, not subject to prior judicial approval before it acts against suspected tax cheats. The IRS must have only a suspicion that a tax violation has occurred, and it can seize your assets (money, property, business, etc.) before proving the suspicion in the Tax Court, and even without prior notification of the seizure to the suspected tax cheat under the doctrine of "Civil Forfeiture".
The United States tax court is a federal trial court of record established by Congress under Article I of the U.S. Constitution, section 8 of which provides (in part) that the Congress has the power to "constitute tribunals inferior to the Supreme Court". The Tax Court specializes in adjudicating disputes over federal income tax, generally prior to the time at which formal tax assessments are made by the Internal Revenue Service. Though taxpayers may choose to litigate tax matters in a variety of legal settings, outside of bankruptcy, the Tax Court is the only forum in which taxpayers may do so without having first paid the disputed tax in full. Parties who contest the imposition of a tax may also bring an action in any United States district court, or in the United States court of federal claims; however, these venues require that the tax be paid first and that the party then file a lawsuit to recover the contested amount paid (the "full payment rule" of Flora v. the United States). Tax court judges are appointed for a term of 15 years, subject to presidential removal for "inefficiency, neglect of duty, or malfeasance in office...." the U.S. Tax Court "is not an agency of, and shall be independent of, the executive branch of the government."
This effectively means that regarding taxes, you are presumed guilty until you can prove your innocence, and the government can do as they wish with your assets until you prove your innocence. And the legal and financial efforts to prove your innocence can be very burdensome and time-consuming. And the economic impacts of not having control of your assets, as well as proving your innocence, can often result in bankruptcy or impoverishment. And if it turns out that the IRS was wrong in its judgment, well, you may get an apology - but don't hold your breath waiting for one.
Today, the American people live in fear of the IRS and adjust their behavior accordingly. The dread of an IRS audit casts a pall on the liberties and freedoms of all Americans. It is my opinion that the 16th Amendment needs to be replaced with another Amendment that constricts the governmental powers and protects the liberties and freedoms of Americans.
Conclusion
In the twentieth and twenty-first century, we have seen a transformation of government from limited and enumerate to be more expansive and regulatory. Whether through Congressional regulation, Executive actions, or Court rulings, the government has taken more and more powers upon itself. And these additional powers have come at the expense of individual Liberties and Freedoms for the purposes of increased safety or benefits.
The U.S. Constitution and its Amendments were not written to empower the government to do what they think is rightful for Americans. It was written to ensure the Liberties and Freedoms of all Americans. As such, all laws and actions of the government must be viewed through the prism of Liberty and Freedom. To object that this prism makes it more difficult for the government to achieve a needful social goal is and insufficient objection. The primary goal of government is to ensure that our liberties and freedoms are preserved within the framework of a just and orderly society. To not do so is to allow for an oppressive government and a violation of our Human, Constitutional, and Civil Rights.
If we continue to cede our liberties and freedoms to the Government, then we are selling our souls for safety or benefits. Or, as Benjamin Franklin once said:
"Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety."