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"Censorship, cancel culture, political correctness, woke-ism, hate speech, intolerance: whatever label you assign to this overzealous drive to sanitize the culture of anything that might be deemed offensive or disturbing or challenging, be assured they are sign posts on a one-way road to graver dangers marked by “suppression, persecution, expulsion and the massacring of people.” Read the article here.
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I listened to a radio show several years ago where two supposed conservatives were discussing a recent mass shooting. One mentioned Australia where forced confiscation of certain (but not all) guns has led to a supposed decrease in gun-related crimes.[1] One commentator suggested that a repeal of the 2ndAmendment here could produce similar results. Had the radio program a call-in option I would have expressed the following view:
The 2nd Amendment did not and does not create a right to “keep and bear firearms.” The opinion that it does is prevalent among many on both the left and right, but especially among what I will affectionately call “gun-grabbers.” Until sometime during the four years of Trump you could find on the Whitehouse.govwebsite the statement: “The Second Amendment gives citizens the right to bear arms.”[2] Were this true, the obvious way to negate or reverse this apparently positive right would be to repeal the 2nd Amendment. Thus we see calls for 2ndAmendment repeal following nearly every mass shooting in recent history. “Get rid of the 2nd and you can get rid of guns, which will save all these people from slaughter,” goes the meme. What the 2nd Amendment actually accomplishes is quite different than grant a positive right, it prohibits the federal government (and through the Supreme Court’s contrived “Incorporation” doctrine, the States) from infringing on a pre-existing right to bear arms in defense of self and home. Long before the 2ndAmendment came along the Founders were affirming this right of bearing arms in strong terms. The Founders recognized that the right to defend oneself and home, with appropriate weapons, is a right under natural law, and would exist with or without the 2nd Amendment. A Texas Court in Cockrum v. State (1859) said it best: "The right of a citizen to bear arms, in lawful defense of himself or the State, is absolute. He does not derive it from the State government. It is one of the "high powers" delegated directly to the citizen, and is excepted out of the general powers of government.' A law cannot be passed to infringe upon or impair it, because it is above the law, and independent of the lawmaking power." The 2nd Amendment should not have been necessary. One of the chief arguments in 1787 against adding a “Bill of Rights” was that the federal government was provided with very limited and enumerated powers. "For why declare that things shall not be done which there is no power to do?" writes Alexander Hamilton in Federalist 84. No power was delegated the national government to regulate speech, control the press, conduct unreasonable searches, or… control the ownership of guns. The preamble to the “Bill of Rights” states the purpose of these amendments was simply to prevent misconstruction of the Constitution and abuse of its powers There is no mention of granting positive rights. Since the Constitution provides the federal government no power whatsoever (that I can find) to regulate firearms, except as concerns their use in the military (Article 1, Section 8, Clauses 12 & 16) or as incidental to interstate commerce (Article 1, Section 8, Clause 3), the right to keep and bear arms as private citizens should be thought of as being secured first by the Ninth Amendment, and then by the Second, reinforced by the Tenth. While I see the 2nd Amendment as a redundant protection; I nevertheless would not countenance its repeal. Opposed by people with seemingly little appreciation for true liberty or how our Constitution was intended to work, those who wish to have the means to defend themselves from evildoers (or their government) need all the protection they can get. That’s where the argument should end, but it doesn’t. We have turned our Constitution of limited and enumerated powers instead into a constitution of “reasonableness.” Is it reasonable to try to keep firearms out of the hands of felons and the mentally deranged? Is it reasonable to restrict the ownership of flamethrowers, Gatling guns, bazookas, and other such weapons? Of course it is. But the constitutional power to do so is completely missing So instead of modifying the Constitution to provide the government with power we the people deem to be necessary and proper, we sit idly by while the government assumes that power without our consent, with or without the court’s acquiescence. And thus the Constitution suffers yet another “cut.” The Death of a Thousand Cuts, practiced in China from the tenth century until its abolition in 1905, was a horrible way to die But that is precisely the death our Constitution is suffering. Soon, there will be no limitations left. Many feel we have reached that point already. The Constitution then becomes a charming artifact of a bygone era, pleasant-looking when hung on a wall or ensconced under glass, but no longer of practical use - irrelevant. That’s where we are headed unless “We the People” wake up and decide to take ownership of our document. Prepared by: Gary R. Porter, Executive Director, Constitution Leadership Initiative, Inc., for The Breakfast Club. "The “Wall of Separation” After Kennedy v. Bremerton School District" A few months ago (06-28-22: Removing Another Brick from the Wall of Separation) I focused my Constitutional Minute on the Supreme Court’s decision in Carson v. Makin, in which the Court announced that to not include parents in a tuition reimbursement program when those parents wished to send their children to a Christian school -- in an area of Maine where no public schools were provided -- amounted to anti-Christian discrimination, which would not be tolerated. I noted that this decision appeared to have the effect of removing a metaphorical “brick” from the metaphorical “wall of separation between church and state” the Court had erected in 1947 (Everson v Board of Education.) In my verbal remarks in the two Breakfast Club meeting at which I summarized the essay that week I also mentioned that the recently decided case of Kennedy v Bremerton School District appeared to have the same potential. The Kennedy case involved a high school football coach who was fired after continuing to pray in the middle of the field after football games after he had been expressly ordered by the School Board to cease such activity. I hoped at the time we would see more cases like these two and that these would eventually lead to complete abandonment of the ”wall of separation” metaphor by the Supreme Court. At the time, I had only read summaries of the Kennedy case, not the actual opinion itself.
This last Monday I attended the third lecture in the Lessons in Liberty series, dealing with the “Wall of Separation” issue, given by Bob Wallace, a friend of the Foundation for American Christian Education from the local area. Mr. Wallace pointed out something I would have learned had I read the Kennedy opinion: for all intents and purposes, the “Wall of Separation” metaphor has largely been abandoned! To be clear, the Court has not thrown out the Religious Exercise and Establishment Clauses of the First Amendment; those must still be observed, but they will be viewed in a new way. To fully explain this, we must backtrack a bit. To repeat, the “Wall” went up in 1947 in Everson. In 1971, in Lemon v Kurtzman, the Court designed a test that would help it tell when there had been a violation of the Establishment Clause. That test became known as the “Lemon Test.” In Lemon v Kurtzman, the Court found that two states had violated the first Amendment’s Establishment Clause by making state financial aid available to “church- related educational institutions.” This created an impermissible “entanglement” between church and state. To determine, going forward, whether a particular program or policy created an unacceptable entanglement between church and state, the Court would weigh three factors:
“Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District. Its most recent burial, only last Term, was, to be sure, not fully six feet under: Our decision in Lee v. Weisman conspicuously avoided using the supposed test but also declined the invitation to repudiate it. Over the years, however, no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature’s heart (the author of today’s opinion repeatedly), and a sixth has joined an opinion doing so. The secret of the Lemon test’s survival, I think, is that it is so easy to kill. It is there to scare us (and our audience) when we wish it to do so, but we can command it to return to the tomb at will. Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him.”i (Who says Supreme Court Justices have no sense of humor?) Back to the Kennedy case. Associate Justice Neil Gorsuch, writing for the 6-3 majority, surprised most everyone (OK, maybe only me) by pointing out that: “this Court long ago abandoned Lemon and its endorsement test offshoot...In place of Lemon and the endorsement test, this Court has instructed that the Establishment Clause must be interpreted by “‘reference to historical practices and understandings.’” Town of Greece, 572 U. S., at 576; see also American Legion, 588 U. S., at ___ (plurality opinion) (slip op., at 25). “‘[T]he line’” that courts and governments“ must draw between the permissible and theimpermissible” has to “‘accor[d] with history and faithfully reflec[t] the understanding of the Founding Fathers.’” (Notice: we have a “line” not a “wall” separating church and state) I almost fell out of my chair when I read that. What? is the Court telling us they are ready to look at the history of the country at the time the First Amendment was ratified to determine what is acceptable and what not in terms of church-state interactions? I’ll bet “Living Constitution” aficionados were greatly disturbed to read the Kennedy opinion. Need I remind you that in 1791 when the First Amendment was ratified, 6 states had state-supported Christian denominations? There was no “wall of separation” anywhere to be seen, and neither religion clause of the First Amendment had been “incorporated” into the 14th Amendment’s Due Process Clause. OK, maybe the Court isn’t ready to discard the Incorporation Doctrine just yet; but that might come out of this Court as well. I know some current justices take issue with it, at least as originally formulated. In 2017, I applauded the addition of Neil Gorsuch to the Supreme Court. I thought his first majority opinion in Bostock v. Clayton County was terrible, but this time, Gorsuch came through! Will the Court continue to dismantle the “Wall,” or will they simply pretend it doesn’t exist? Time will tell. Prepared by: Gary R. Porter, Executive Director, Constitution Leadership Initiative, Inc. for The Breakfast Club. "In 1776, the Declaration of Independence proclaimed that everyone is endowed with “unalienable Rights.” Years later, the Bill of Rights elaborated on those rights. But the word “rights” has long since been hijacked by enemies of the original idea of rights." Read article here.
constitutional minute for 15 november 2022-"what is a constitution and why do we have one? part 2"11/15/2022 I was invited to deliver the annual “One Nation Under God” address to the combined Peninsula Exchange Clubs this past Saturday. It was quite an honor to be asked, and I enjoyed the research that went into preparing my remarks. (remarks I’ll be glad to share with anyone is interested, just ask). In my research into the history of the Pledge to the American Flag and an assessment of whether we were or still are a Christian Nation, I happened upon this quotation from that great American “theologian,” Carl Sandburg, who once wrote: “When a nation goes down, or a society perishes, one condition may always be found; they forgot where they came from. They lost sight of what had brought them along.”
I don’t usually go looking for pithy quotes from Carl Sandburg, but when I stumbled upon that one, it really struck me as quite true. The quote is similar in a way to the more familiar: “Those who forget the past are doomed to repeat it,” which is a slight modification of the original quote by American philosopher George Santayana: “Those who cannot remember the past are condemned to repeat it.”i We all know it is embarrassingly true that Americans for the most part ignore history in general, and their own country’s history in particular. We memorized enough to pass our tests in school and then promptly shunted it aside to make room for “more important” information, like the batting averages of all the players on our favorite baseball team. I’m not saying that memorizing the batting averages of all the players on your favorite baseball team is not important, but let’s put things in perspective. Last week I introduced you to the idea that the concept of a written constitution found its basis in the written church covenants the early colonists brought with them from England and which they continued to rely upon in forming their congregations in the New World. But we’ve skipped a step if we think that Church Covenants led directly to the U.S. Constitution. We’ve missed the important influence of the state constitutions. In September 1775, (five months after Lexington and Concord) the state of New Hampshire asked the Second Continental Congress if it would be advisable to enact a new constitution of government for their state, their Royal Governor and much of the legislature having fled the state for England. Congress encouraged them to “establish such a form of government as would best promote the happiness of the people,” which New Hampshire proceeded to do, approving it on January 5th 1776. Seeing New Hampshire’s action, South Carolina did the same on March 29th, 1776. On May 4th, Rhode Island unilaterally declared independence from Great Britain and two days later, Virginia began a convention in Williamsburg to draft their new constitution, which they approved on 1 June 29th. New Jersey approved their new constitution on July 2nd, 1776, the same day that Richard Henry Lee’s resolution for “independency” passed in the Congress. Two days later, when Mr. Jefferson’s Declaration of Independence was approved, five states had already severed relations with Great Britain by enacting new constitutions or unilaterally declaring their independence. Delaware put a new constitution into effect on September 21th; Pennsylvania on September 28th; Maryland on November 8th; and North Carolina on December 8th. By the end of 1776 there were eight states operating under new written constitutions. Georgia adopted her first constitution on February 5, 1777, and New York on April 20th. Massachusetts drug their heels a bit and didn’t approve their new constitution until 1780. What about Connecticut? Connecticut decided their Royal Charter would serve them well after substituting the words “the people” for “the King.” Rhode Island did the same. The preamble to Massachusetts’s new constitution, drafted by none other than John Adams himself, ties us back to the idea of “Constitution as Covenant” I introduced two weeks ago: “The end of the institution, maintenance and administration of government, is to secure the existence of the body-politic; to protect it; and to furnish the individuals who compose it, with the power of enjoying, in safety and tranquillity, their natural rights, and the blessings of life: And whenever these great objects are not obtained, the people have a right to alter the government, and to take measures necessary for their safety, prosperity and happiness. The body-politic is formed by a voluntary association of individuals: It is a social compact, by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good. It is the duty of the people, therefore, in framing a Constitution of Government, to provide for an equitable mode of making laws, as well as for an impartial interpretation, and a faithful execution of them; that every man may, at all times, find his security in them. We, therefore, the people of Massachusetts, acknowledging, with grateful hearts, the goodness of the Great Legislator of the Universe, in affording us, in the course of His providence, an opportunity, deliberately and peaceably, without fraud, violence or surprise, of entering into an original, explicit, and solemn compact with each other; and of forming a new Constitution of Civil Government, for ourselves and posterity; and devoutly imploring His direction in so interesting a design, DO agree upon, ordain and establish, the following Declaration of Rights, and Frame of Government, as the CONSTITUTION of the COMMONWEALTH of MASSACHUSETTS. (emphasis added) Prepared by: Gary R. Porter, Executive Director, Constitution Leadership Initiative, Inc. for The Breakfast Club. "How would the people be able to tell the difference between insightful leaders and charlatans if they were ignorant of virtue or ignorant in general?" Read article here.
"karoline leavitt Aims to be conservative voice for gen z: left has brainwashed my generation"11/7/2022
25-year-old New Hampshire Republican says she "saw a need for conservative voices from her generation “to break through the noise” and reach the youngest bloc of voters, who she said are “being brainwashed by the left every single day.” Read or listen here.
It only seems fitting on Election Day to review some of the more contentious elections in American history.
“May you live in interesting times,” as the saying goes. Prepared by: Gary R. Porter, Executive Director, Constitution Leadership Initiative, Inc. for The Breakfast Club. Constitutional Minute for 1 November 2022 - "what is a constitution and why do we have one?"11/1/2022
What is a Constitution and Why Do We Have One?
Most Americans have not considered our title question; to them, “we have a Constitution because some men wrote one in 1787.” If you’re a Democrat, the answer might be “we have a Constitution because some white, cis-gendered, slave holding, misogynists wrote one in 1787.” Whatever. But Americans should understand exactly what a constitution is, what it does, and how we came to have one. If nothing else, such knowledge will yield a fuller understanding of the document. Few Americans stop to consider just how unique our Constitution is and was in 1787. It was the first- ever written constitution of government drafted by representatives of the people. That is saying a lot considering the expanse of recorded history to that date. Britain didn’t have one even as we were writing ours. Britain still doesn’t have a written Constitution to this day. They have a constitution all right, it is simply not written down in a single document as is ours. Britain’s Constitution consists of Magna Carta, certain Acts of Parliament, such as the Human Rights Act of 1998; the Bill of Rights of 1689; court judgments (although I frankly don’t know how they figure out which ones, so don’t ask) and what they call: “conventions” (meaning “custom”). Great Britain seems to get along alright with such an arrangement and there certainly is one big advantage: to change the Constitution requires only an act of Parliament. Or a new court judgement; sort of like how our Supreme Court operates: each new decision is treated as an “amendment” to our understanding of the U.S. Constitution (see U.S. Constitution, Analysis and Interpretation). I don’t necessarily agree with that, but that’s how we operate as a people. Black’s Law Dictionary, 4th Edition defines “constitution” as: “The organic and fundamental law of a nation or state, which may be written or unwritten, establishing the character and conception of its government, laying the basic principles to which its internal life is to be conformed, organizing the government, and regulating, distributing, and limiting the functions of its different departments, and prescribing the extent and manner of the exercise of sovereign powers.” Notice that Black’s acknowledges that a constitution may be “written or unwritten.” A constitution organizes the government and empowers each component it creates, including adding limitations on that power. To an extent it describes the manner in which each branch operates. As Thomas Paine reminds us: "A constitution defines and limits the powers of the government it creates. It therefore follows, as a natural and also a logical result, that the governmental exercise of any power not authorized by the constitution is an assumed power, and therefore illegal.“ Has any branch of the U.S. federal government ever exerted power not authorized by the Constitution and thereby performed an illegal act? You betchee. Hundreds if not thousands of times. And they continue to do so, almost with impunity. I say almost, because there are people, attorneys mostly, who follow closely the actions of the federal government. We call them State Attorneys General, and we rely on them to sue the federal government when it exceeds it legitimate bounds of power. The average American usually has no idea whether an action of any of the three branches of the federal government exceeds it powers, principally because the average American has never studied the document, including the thousands of Supreme Court rulings in depth (who has the time, right?). “Is the President’s Executive Order within the legitimate power of the President?” To answer, we must know not only the Constitution’s presidential powers, but also the powers given the President by acts of Congress. For example: Did the law passed by Congress give the President the authority to forgive student loans? It depends on what the law creating those student loans says. Until you’ve read the underlying law you cannot answer the question definitively. One aspect of a constitution which Black’s Dictionary leaves out – and it is perhaps the most important one -- is “constitution as covenant.” Webster’s 1828 defines “covenant” as: “COVENANT, noun [L, to come; a coming together; a meeting or agreement of minds.] 1. A mutual consent or agreement of two or more persons, to do or to forbear some act or thing; a contract; stipulation. A covenant is created by deed in writing, sealed and executed; or it may be implied in the contract.” One of the primary reasons the united States were the first country to establish a written Constitution is because the Christians who lived in the founding period understood the concept of covenant. Most of them came to America with church covenants already a part of their lives. If they were not already living under a covenant, they quickly established one (ex: the Mayflower Compact). As Donald Lutz and Jack Warren explain in “A Covenanted People; The Religious Tradition and the origins of American Constitutionalism,” (Providence, RI, 1987): “...the peculiar characteristics of American constitutionalism – government by consent of the governed, reliance on a written constitution, and belief in a higher law – were derived from the dissenting church politics of the seventeenth century...The church covenants of seventeenth-century America provided the colonists with a model for their civil governments, which in turn helped determine the form and content of America’s eighteenth-century constitutions.” Lutz and Warren walk us through the key founding documents, many of them colonial sermons, which prove this thesis. As if we need further proof we need only turn to our Constitution’s Preamble: “We the People...ordain and establish this Constitution of the United States of America.” We could say it another way: We the people covenant together as we ordain and establish this Constitution. Why we needed this written covenant/constitution is well known: the abject failure of the Articles of Confederation, which I cover in some detail in my seminar and which James Madison summarized in his famous “Vices of the Political System of the United States.” As I tell my students: if you understand the problems created by the Articles, you will better understand the solutions provided in the Constitution. We should revive the idea of Constitution as Covenant, it might get us through these divisive times with our republic intact. Prepared by: Gary R. Porter, Executive Director, Constitution Leadership Initiative, Inc. for The Breakfast Club. "The Constitution requires that the federal government protect the states from invasion (Article 4, Section 4). It also permits states to act without permission of the federal government when states are under imminent threat (Article 1, Section 10)." Read more here.
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