Attorney General Barr: Checks and Balances Are Unbalanced

The following is an excerpt from a speech given by Attorney General Barr earlier this month to the Federalist Society’s National Lawyers Convention. In the speech, Barr expands on imbalances which have developed over time which he claims have weakened the office of the President so that it cannot properly balance against the Legislative and Judicial branches. He has some insightful things to say, so stick with it. I’m not sure buy the entire argument, but there is a lot of truth in here.

The consensus for a strong, independent Executive arose from the Framers’ experience in the Revolution and under the Articles of Confederation.  They had seen that the War had almost been lost and was a bumbling enterprise because of the lack of strong Executive leadership.  Under the Articles of Confederation, they had been mortified at the inability of the United States to protect itself against foreign impositions or to be taken seriously on the international stage.  They had also seen that, after the Revolution, too many States had adopted constitutions with weak Executives overly subordinate to the Legislatures.  Where this had been the case, state governments had proven incompetent and indeed tyrannical.

From these practical experiences, the Framers had come to appreciate that, to be successful, Republican government required the capacity to act with energy, consistency and decisiveness.  They had come to agree that those attributes could best be provided by making the Executive power independent of the divided counsels of the Legislative branch and vesting the Executive power in the hands of a solitary individual, regularly elected for a limited term by the Nation as a whole. As Jefferson put it, ‘[F]or the prompt, clear, and consistent action so necessary in an Executive, unity of person is necessary….”

While there may have been some differences among the Framers as to the precise scope of Executive power in particular areas, there was general agreement about its nature.  Just as the great separation-of-powers theorists– Polybius, Montesquieu, Locke – had, the Framers thought of Executive power as a distinct specie of power.  To be sure, Executive power includes the responsibility for carrying into effect the laws passed by the Legislature – that is, applying the general rules to a particular situation.  But the Framers understood that Executive power meant more than this.

It also entailed the power to handle essential sovereign functions – such as the conduct of foreign relations and the prosecution of war – which by their very nature cannot be directed by a pre-existing legal regime but rather demand speed, secrecy, unity of purpose, and prudent judgment to meet contingent circumstances.  They agreed that – due to the very nature of the activities involved, and the kind of decision-making they require – the Constitution generally vested authority over these spheres in the Executive.  For example, Jefferson, our first Secretary of State, described the conduct of foreign relations as “Executive altogether,” subject only to the explicit exceptions defined in the Constitution, such as the Senate’s power to ratify Treaties.

A related, and third aspect of Executive power is the power to address exigent circumstances that demand quick action to protect the well-being of the Nation but on which the law is either silent or inadequate – such as dealing with a plague or natural disaster.  This residual power to meet contingency is essentially the federative power discussed by Locke in his Second Treatise.

And, finally, there are the Executive’s powers of internal management.  These are the powers necessary for the President to superintend and control the Executive function, including the powers necessary to protect the independence of the Executive branch and the confidentiality of its internal deliberations.  Some of these powers are express in the Constitution, such as the Appointment power, and others are implicit, such as the Removal power.

One of the more amusing aspects of modern progressive polemic is their breathless attacks on the “unitary executive theory.”  They portray this as some new-fangled “theory” to justify Executive power of sweeping scope. In reality, the idea of the unitary executive does not go so much to the breadth of Presidential power.  Rather, the idea is that, whatever the Executive powers may be, they must be exercised under the President’s supervision.  This is not “new,” and it is not a “theory.”  It is a description of what the Framers unquestionably did in Article II of the Constitution.

After you decide to establish an Executive function independent of the Legislature, naturally the next question is, who will perform that function?  The Framers had two potential models. They could insinuate “checks and balances” into the Executive branch itself by conferring Executive power on multiple individuals (a council) thus dividing the power.  Alternatively, they could vest Executive power in a solitary individual.  The Framers quite explicitly chose the latter model because they believed that vesting Executive authority in one person would imbue the Presidency with precisely the attributes necessary for energetic government.  Even Jefferson – usually seen as less of a hawk than Hamilton on Executive power – was insistent that Executive power be placed in “single hands,” and he cited the America’s unitary Executive as a signal feature that distinguished America’s success from France’s failed republican experiment…

I am concerned that the deck has become stacked against the Executive.  Since the mid-60s, there has been a steady grinding down of the Executive branch’s authority, that accelerated after Watergate.  More and more, the President’s ability to act in areas in which he has discretion has become smothered by the encroachments of the other branches.

When these disputes arise, I think there are two aspects of contemporary thought that tend to operate to the disadvantage of the Executive.

The first is the notion that politics in a free republic is all about the Legislative and Judicial branches protecting liberty by imposing restrictions on the Executive.  The premise is that the greatest danger of government becoming oppressive arises from the prospect of Executive excess.  So, there is a knee-jerk tendency to see the Legislative and Judicial branches as the good guys protecting society from a rapacious would-be autocrat.

This prejudice is wrong-headed and atavistic.  It comes out of the early English Whig view of politics and English constitutional experience, where political evolution was precisely that.  You started out with a King who holds all the cards; he holds all the power, including Legislative and Judicial.  Political evolution involved a process by which the Legislative power gradually, over hundreds of years, reigned in the King, and extracted and established its own powers, as well as those of the Judiciary.  A watershed in this evolution was, of course, the Glorious Revolution in 1689…

The second contemporary way of thinking that operates against the Executive is a notion that the Constitution does not sharply allocate powers among the three branches, but rather that the branches, especially the political branches, “share” powers.  The idea at work here is that, because two branches both have a role to play in a particular area, we should see them as sharing power in that area and, it is not such a big deal if one branch expands its role within that sphere at the expense of the other.

This mushy thinking obscures what it means to say that powers are shared under the Constitution.  Constitution generally assigns broad powers to each of the branches in defined areas.  Thus, the Legislative power granted in the Constitution is granted to the Congress.  At the same time, the Constitution gives the Executive a specific power in the Legislative realm – the veto power. Thus, the Executive “shares” Legislative power only to the extent of the specific grant of veto power.  The Executive does not get to interfere with the broader Legislative power assigned to the Congress.

In recent years, both the Legislative and Judicial branches have been responsible for encroaching on the Presidency’s constitutional authority.  Let me first say something about the Legislature

A prime example of this is the Senate’s unprecedented abuse of the advice-and-consent process.  The Senate is free to exercise that power to reject unqualified nominees, but that power was never intended to allow the Senate to systematically oppose and draw out the approval process for every appointee so as to prevent the President from building a functional government.

Yet that is precisely what the Senate minority has done from his very first days in office.  As of September of this year, the Senate had been forced to invoke cloture on 236 Trump nominees — each of those representing its own massive consumption of legislative time meant only to delay an inevitable confirmation.   How many times was cloture invoked on nominees during President Obama’s first term?  17 times.  The Second President Bush’s first term?  Four times.  It is reasonable to wonder whether a future President will actually be able to form a functioning administration if his or her party does not hold the Senate.

Congress has in recent years also largely abdicated its core function of legislating on the most pressing issues facing the national government.  They either decline to legislate on major questions or, if they do, punt the most difficult and critical issues by making broad delegations to a modern administrative state that they increasingly seek to insulate from Presidential control.  This phenomenon first arose in the wake of the Great Depression, as Congress created a number of so-called “independent agencies” and housed them, at least nominally, in the Executive Branch.  More recently, the Dodd-Frank Act’s creation of the Consumer Financial Protection Branch, a single-headed independent agency that functions like a junior varsity President for economic regulation, is just one of many examples.

Of course, Congress’s effective withdrawal from the business of legislating leaves it with a lot of time for other pursuits.  And the pursuit of choice, particularly for the opposition party, has been to drown the Executive Branch with “oversight” demands for testimony and documents.  I do not deny that Congress has some implied authority to conduct oversight as an incident to its Legislative Power.  But the sheer volume of what we see today – the pursuit of scores of parallel “investigations” through an avalanche of subpoenas – is plainly designed to incapacitate the Executive Branch, and indeed is touted as such. ..

Click here to read the entire speech at the Dept. of Justice website.

Related:

Intellectual Takeout: The Deep State – The Headless Fourth Branch of Government

AmCon: Civil War Begins When the Constitutional Order Breaks Down

A good deal continues to be written on the possibility of another civil war in the United States. The Atlantic‘s December issue is entirely devoted to the idea. The article below is from The American Conservative and discusses the irreconcilable visions of American life and why the resolution to such crises always leads to violence. The author is a professor at Johns Hopkins University and has written books and papers on terrorism, insurgency, counterterrorism, and strategic defense.

Civil War Begins When the Constitutional Order Breaks Down

A lithograph cartoon depicting U.S. Rep. Preston Brooks’ attack on Sen. Charles Sumner in the U.S. Senate chamber on May 22, 1856. (J.L. Magee/public domain)

Civil war is, at root, a contest over legitimacy. Legitimacy—literally the right to make law — is shorthand for the consent of the citizens and political parties to abide by the authority of a constitutional order. Civil war begins when this larger political compact breaks down.

Civil War means that there is a functional split within the source of legitimacy between two parties, each of which was formerly part of the old constitutional order. Thus each can claim that it represents the source of new legitimacy, and the right to define a new or reworked constitutional order.

Hence civil war becomes a struggle in which one party must successfully assert a successor legitimate order, and to which the opposing party must eventually submit. This is above all a contest over constitutional authority. Inasmuch as civil war happens after constitutional breakdown, it means that resolution must be reached not only outside of a now-former legal framework, but also unrestrained even by longstanding political customs and norms. Extra-constitutional force is now the deciding factor, which is why these struggles are called civil wars

The character of civil war is existential. The breakdown of the old order forces frightening prospects on society. If constitutions represented a collective source of authority, in its violent replacement are suddenly two opposing and inimical pretenders, each crying for both allegiance and punishment. Moreover, one party’s victory is the inevitable loss of the other’s way of life.

Hence in such conflicts, the entire society must choose sides, and it is an all-or-nothing choice. Moderates and undecided, and those peaceful fence sitters all are forced to join warring factions. In civil war, perhaps the greatest violence, in the heart, is the aggressive coercion to join a warring cause…

American constitutional order has not broken down, yet. Constitutional legitimacy still rules…A daily torrent of unfiltered evidence suggests that our constitutional order is fissuring before our eyes. That we have skirted constitutional crisis for the past quarter century is no reassurance, but rather an alarm of continuing erosion. Each new test is yet more bitterly contested, and still less resolved…

Already, warring sides have hardened their hearts so that they will do almost anything in order to prevail. The great irony is that their mutual drive to win—either to preserve their way of life, or make their way of life the law of the land—means that the battle has already become a perverse alliance. Today they refuse to work together in the rusting carapace of old constitutional order. Yet nonetheless they work shoulder-to-shoulder, together, to overthrow it. For both sides, the old order is the major obstacle to victory. Hence victory is through overthrow…

Click here to read the entire article at The American Conservative.

Related:

SHTF Plan: Bill Maher: “Learn to Live with Each Other or There Will Be Blood!”

Dollar Collapse: Civil Unrest is the New Normal Out There

Imprimis: Clarence Thomas and the Lost Constitution

This article comes from Hillsdale College’s Imprimis. This is a longer article that gets into some details of Justice Thomas’ dissenting opinions and why he feels it is important to write them in hopes that future justices may overturn wrong precedence.

Clarence Thomas and the Lost Constitution

Clarence Thomas is our era’s most consequential jurist, as radical as he is brave. During his almost three decades on the bench, he has been laying out a blueprint for remaking Supreme Court jurisprudence. His template is the Constitution as the Framers wrote it during that hot summer in Philadelphia 232 years ago, when they aimed to design “good government from reflection and choice,” as Alexander Hamilton put it in the first Federalist, rather than settle for a regime formed, as are most in history, by “accident and force.” In Thomas’s view, what the Framers achieved remains as modern and up-to-date—as avant-garde, even—as it was in 1787.

What the Framers envisioned was a self-governing republic. Citizens would no longer be ruled. Under laws made by their elected representatives, they would be free to work out their own happiness in their own way, in their families and local communities. But since those elected representatives are born with the same selfish impulses as everyone else—the same all-too-human nature that makes government necessary in the first place—the Framers took care to limit their powers and to hedge them with checks and balances, to prevent the servants of the sovereign people from becoming their masters. The Framers strove to avoid at all costs what they called an “elective despotism,” understanding that elections alone don’t ensure liberty.

Did they achieve their goal perfectly, even with the first ten amendments that form the Bill of Rights? No—and they recognized that. It took the Thirteenth, Fourteenth, and Fifteenth Amendments—following a fearsome war—to end the evil of slavery that marred the Framers’ creation, but that they couldn’t abolish summarily if they wanted to get the document adopted. Thereafter, it took the Nineteenth Amendment to give women the vote, a measure that followed inexorably from the principles of the American Revolution.

During the ratification debates, one gloomy critic prophesied that if citizens ratified the Constitution, “the forms of republican government” would soon exist “in appearance only” in America, as had occurred in ancient Rome. American republicanism would indeed eventually decline, but the decline took a century to begin and unfolded with much less malice than it did at the end of the Roman Republic. Nor was it due to some defect in the Constitution, but rather to repeated undermining by the Supreme Court, the president, and the Congress.

The result today is a crisis of legitimacy, fueling the anger with which Americans now glare at one another. Half of us believe we live under the old Constitution, with its guarantee of liberty and its expectation of self-reliance. The other half believe in a “living constitution”—a regime that empowers the Supreme Court to sit as a permanent constitutional convention, issuing decrees that keep our government evolving with modernity’s changing conditions. The living constitution also permits countless supposedly expert administrative agencies, like the SEC and the EPA, to make rules like a legislature, administer them like an executive, and adjudicate and punish infractions of them like a judiciary.

To the Old Constitutionalists, this government of decrees issued by bureaucrats and judges is not democratic self-government but something more like tyranny—hard or soft, depending on whether or not you are caught in the unelected rulers’ clutches. To the Living Constitutionalists, on the other hand, government by agency experts and Ivy League-trained judges—making rules for a progressive society (to use their language) and guided by enlightened principles of social justice that favor the “disadvantaged” and other victim groups—constitutes real democracy. So today we have the Freedom Party versus the Fairness Party, with unelected bureaucrats and judges saying what fairness is…

Click here to continue reading at Imprimis.

Tenth Amendment Center: How Our Constitution Was Supposed to Work

Constitutional scholar and co-author of The Origins of the Necessary and Proper Clause  and The Original Constitution Rob Natelson has written an article based on information from newly re-published essays by founder Tench Coxe about some limitations on federal power that were known and spelled out by the founding fathers.

How our Constitution was supposed to work: new evidence comes to light

Judging by the promises of presidential candidates, you might think the federal government is designed to fix whatever ails us: health care, education, crime, infrastructure, the common cold.

But the Constitution doesn’t grant the federal government such unlimited authority. And neither Congress nor the presidency nor the courts were created to exercise it.

The Constitution fashioned the federal government to address a limited number of activities, contained in the document’s “enumerated powers.” The remainder were exclusively the domain of state and local government and the private sector. This system of divided authority is called “federalism.”

…Despite the Constitution’s federal structure, many in the founding generation didn’t think it limited the central government sufficiently. They wanted to be able to govern themselves in their own states and local communities. They didn’t want Congress or federal judges or officials imposing uniform policies on the entire country.

These members of the founding generation had good reasons for fearing centralized power. They knew their history: Concentrated power usually grows into oligarchy or dictatorship. They questioned whether Congress would have the information or judgment necessary to tailor laws for every nook and cranny in the nation. They recognized that when government remained local, citizens enjoyed more say in how it was run. If someone was severely disaffected with state policies, he always could move to a different state.

This option of moving away is a vital safety valve. Without it, there is no practical way to vent anger among persistent political losers. Anger gives rise to hate: Hate fosters divisiveness and repression and, and in extreme cases, civil war.

Indeed, modern federal efforts to impose uniform “solutions” on the entire nation may be a leading cause of today’s toxic political environment.

…Coxe’s essays itemize many of the activities over which the Constitution granted the federal government little or no jurisdiction. Among them were social services (i.e., care for the poor and health care), education, religion, real estate, local businesses, most roads and other infrastructure, nearly all criminal law matters, and most civil court cases.

When people believed government should regulate those areas, the Constitution mandated that they turn to state and local government. No fleeting national coalition would be permitted to dictate to the entire country…

Click here to read the entire article at the Tenth Amendment Center.

Tenth Amendment Center: The Commerce Clause

The Tenth Amendment Center put out some good information, articles and videos about the Constitution and liberty. Here is a recent video on the commerce clause of the US Constitution.

The federal government claims that Article I, Section 8, Clause 3 of the Constitution gives it the power to regulate and control everything from healthcare, to what kind of lightbulbs we can buy, and just about anything in between. But this is so far from the Founders’ design, it’s virtually unrecognizable.

WA Leg. Passes Continuity of Gov’t Bill and Constitutional Amendment

From US News:

The Washington House has passed two measures aimed at protecting state and local governments in the event of natural disasters.

The Daily News reports the bills, both sponsored by 19th District Democratic Sen. Dean Takko, passed on Wednesday.

Senate Bill 5012 extends the Continuity of Government Act, originally intended for catastrophic attacks to natural catastrophes.

It requires that all local and state governments prepare for the continuity of government operations in the event of those catastrophic disasters.

The state constitution currently only allows for the Legislature to provide for the continuity of government in the case of an enemy attack, so the House also voted to pass Senate Joint Resolution 8200, which proposes an amendment to the State constitution. This amendment allows the Legislature to enact the measures in Senate Bill 5012.
The language of the constitutional amendment in SJR8200 principally changes Article II, section 42 by adding the words “a catastrophic incident” in addition to the current “enemy attack” as reasons for continuity of government operations and also changes the word “disaster” to “the emergency” later in the same paragraph. Those words/phrases are then defined in SB5012:
(1)(a)”Catastrophic incident” means any natural or human-caused incident, including terrorism and enemy attack, that results in extraordinary levels of mass casualties, damage, or disruption severely affecting the population, infrastructure, environment, economy, or government functions…
(8)(a) “Emergency or disaster” as used in all sections of this chapter except RCW 38.52.430((shall)) means an event or set of circumstances which: (i) Demands immediate action to preserve public health, protect life, protect public property, or to provide relief to any stricken community overtaken by such occurrences; or (ii) reaches such a dimension or degree of destructiveness as to warrant the governor ((declaring))proclaiming a state of emergency pursuant to RCW 43.06.010. (b) “Emergency” as used in RCW 38.52.430 means an incident that requires a normal police, coroner, fire, rescue, emergency medical services, or utility response as a result of a violation of one of the statutes enumerated in RCW 38.52.430

US Supreme Court Rules 7-2 in Favor of Religious Expression

From Fox News:

The Supreme Court ruled in favor of a Colorado baker who declined to make a wedding cake for a same-sex ceremony.

The case – Masterpiece Cakeshop, Ltd v. Colorado Civil Rights Commission – asked the high court to balance the religious rights of the baker against the couple’s right to equal treatment under the law. Similar disputes have popped up across the U.S.

The decision to take on the case reflected renewed energy among the court’s conservative justices, whose ranks have recently been bolstered by the addition of Justice Neil Gorsuch to the high court.

Jack Phillips, the owner of Masterpiece Cakeshop in Lakewood, Colo., declined to make a cake for the wedding celebration of two gay men in 2012. Phillips told the couple that he would make a birthday cake but could not make a cake that would promote same-sex marriage due to his religious beliefs…

The Supreme Court ruled 7-2 in favor of Masterpiece Cakeshop.

“The laws and the Constitution can, and in some instances must, protect gay persons and gay couples in the exercise of their civil rights, but religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression,” the Court said in its decision. “While it is unexceptional that Colorado law can protect gay persons in acquiring products and services on the same terms and conditions as are offered to other members of the public, the law must be applied in a manner that is neutral toward religion.”

Justice Anthony Kennedy said when the Colorado Civil Rights Commission made its decision “it did not do so with the religious neutrality that the Constitution requires.” The opinion says the Commission “violated the Free Exercise Clause, and its order must be set aside.”

In its decision, the Supreme Court did not decide whether a business has the right to refuse to serve gay and lesbian people outright.

Ruth Bader Ginsburg and Sonia Sotomayor, two of the Court’s more liberal justices, dissented.

South Africa Moves to Allow Land Confiscation Without Compensation

From News24.com, National Assembly adopts motion on land expropriation without compensation

The National Assembly on Tuesday set in motion a process to amend the Constitution so as to allow for the expropriation of land without compensation.

The motion, brought by the EFF leader Julius Malema, was adopted with a vote of 241 in support, and 83 against…

Opening the debate on his motion, Malema said: “The time for reconciliation is over. Now is the time for justice.”

The committee has until August 30th to return a decision to parliament. If the committee decides that the constitution should be amended, it will draft the amendment. Then two-thirds of the National Assembly must vote to adopt the amendment and six of nine provinces must approve it. 267 National Assembly members must vote in favor of the amendment for it to pass.  The ANC currently has 249 parliament members and the EFF has 25.

‘You’re Fired, Judge’: Sanctioning Federal Judges for Bad Behavior

The subject of judicial misconduct having come up recently in local conversation, the following American Thinker article from last year provides some additional thinking/acting points.

The Constitution only allows federal judges to serve during “good behavior.” This “good behavior” limitation on judicial tenure derives from one of the oldest and most well-established legal principles of our founding and English legal history. This limitation on appointed officials holding office pervades our founding revolutionary-era state constitutions. It’s time for Trump to consider activating the power of the political branches to fire badly behaving judges. Time to drain the judicial swamp.

Recent Obama appointees, including associates of Obama since law school, earned the enmity of a wide range of legal and scholastic critics over their travel ban rulings. How bad was it? Even #NeverTrumpers and liberal lawyers came out in a chorus of condemnation against the Hawaii and Maryland judicial actions. #NeverTrump lawyer David French, lawyers at National Review, and liberal-leaning law professor Jonathan Turley each criticized the decision. Liberal Democratic law professor Alan Dershowitz noted that the judges would have never done this to Obama, even if the executive order was identical. Anti-Trump critic David Frum of the Atlantic criticized the decision. Even five Ninth Circuit judges, sua sponte, amended their prior statements to criticize these judges’ actions as without precedent.

Why the unison of condemnation? Because, as one law professor noted, much of the Hawaii judge’s actions were based on judicial acts of “misleading.” That’s polite, diplomatic, I-might-be-in-front-of-that-judge-someday way of saying that some of these anti-Trump, anti-travel ban judges were not honest. If private lawyers had acted the way these judges did, they could be sanctioned and could lose their license and livelihoods, be thrown out of court, or even charged with a crime. That is why Judge Alex Kozinski authored two amendments to his prior dissent to specifically criticize the basis of the Hawaii judge’s ruling.

What can Trump or Congress do about it, if they believe these federal judges exceeded their authority and engaged in disreputable conduct?

The Constitution provides two restrictions on the tenure of a federal judge: first, if they misuse or abuse their office, then the Constitution, under Article II, section 4, authorizes Congressional quasi-criminal remedies of impeachment. The impeachment provision applies to the President “and all civil officers of the United States” whenever their conduct constitutes “treason, bribery, or other high crimes and misdemeanors.” Historically, the latter provision has been rejected for purely private conduct. That is why both Alexander Hamilton and Richard Nixon were not impeached for either tax evasion or financial misdeeds, though both were accused of one or the other. Bill Clinton successfully argued against conviction on the grounds his perjury, though in office, derived from a purely personal matter, rather than a presidential one.

 The Constitution provides a second, separate restriction on the tenure of a federal judge: Article III of the Constitution limits a judge’s tenure to continuous “good behavior…”

Continuing reading the article at American Thinker by clicking here

The Heritage Foundation has its own brief essay on the good behavior clause .

…Still, both the language and the weight of historical evidence indicate that the Good Behavior Clause was intended to refer to life tenure rather than to a distinct standard for removal. However, just as the Good Behavior Clause reminds the other branches that the judiciary is truly independent, it also reminds judges that life tenure is not a license for the wanton or the corrupt. It is in this sense both a shield and a sword—an affirmation of judicial independence and a reservation for judicial removal.

CSG: WA Constitution Classes for Jan. 2018

The announced Center for Self-Governance classes for January and February appear to have changed.  Currently the only online class listed is the WA Constitution 200: Legislative class, on Thurs., Jan. 25th.

You do not have to be a CSG student to attend.  You do not have to take the Constitution classes in sequence.

This is a 4 hour online lecture-style class.  Supplies to bring include: paper, pen, a copy of your state constitution and your enthusiasm! This is an interactive class and we look forward to hearing from you.

There is no workbook.

Tuition: $25

Bill of Rights Day, Dec. 15, 2017

On December 15, 1791, Virginia became the 10th of 14 states to approve 10 of the 12 amendments, thus giving the Bill of Rights the two-thirds majority of state ratification necessary to make it legal. The Bill of Rights consists of the first ten amendments to the Constitution. They were added at the request of several states who desired greater constitutional protection to individual liberties. Some, mainly Federalists, argued that a bill of rights was not necessary because the people and the states retained any rights and powers not delegated  to the federal government. Others, mainly anti-federalists, argued that a list of protected rights was necessary to safeguard individual liberty.

The House of Representatives approved seventeen amendments. Of those, the Senate approved twelve. Those twelve were sent to the states, and the states ratified ten.

The original seventeen amendments as passed by the House (source):

“Congress of the United States.

In the House of Representatives. Monday, August 24, 1789.

            Resolved, by the Senate and House of Representatives of the United States of America in Congress assembled, two thirds of both Houses deeming it necessary, that the following articles be proposed to the several states, as amendments to the constitution of the United States; all, or any of which articles, when ratified by three fourths of the said legislatures, to be valid, to all intents and purposes, as part of the constitution.

Articles in addition to, and amendment of the Constitution of the United States of America, proposed by Congress and ratified by the legislatures of the several States, pursuant to the 5th article of the original constitution.

            Article I.   After the first enumeration required by the first article of the constitution, there shall be one representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred representatives, nor less than one representative for every forty thousand persons, until the number of representatives shall amount to two hundred, after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred representative [sic] [the usual “nor less than one representative” is omitted either by mistake or for brevity’s sake] for every fifty thousand persons.

[First Amendment in the second draft: not ratified.]

            Art. 2.   No law varying the compensation to the members of Congress shall take effect, until an election of representatives shall have intervened.

[Second Amendment in the second draft: modified version ratified May 7, 1992 as the Twenty-Seventh Amendment.]

            Art. 3.   Congress shall make no law establishing religion, or prohibiting the free exercise thereof, nor shall the rights of conscience be infringed.

[Part of Third Amendment in the second draft: modified version ratified as part of the First Amendment]

            Art, 4.   The freedom of speech, and of the press, and the right of the people peaceably to assemble and consult for their common good, and to apply to the government for redress of grievances, shall not be infringed.

[Part of Third Amendment in the second draft: modified version ratified as part of the First Amendment]

            Art. 5.   A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed, but no one religiously scrupulous of bearing arms, shall be compelled to render military service in person.

[Modified version is Fourth Amendment in the second draft: modified version ratified as the Second Amendment]

            Art. 6.   No soldier shall in time of peace be quartered in any house without the consent of the owner, nor in time of war, but in a manner prescribed by law.

[Fifth Amendment in the second draft: modified version ratified as the Third Amendment]

            Art. 7.   The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated; and no warrants shall issue, but [partly trimmed: upon probable cause supported by oath or affirmation, and par-ticularly describing the place to be searched, and the persons or things to be seized.

[Sixth Amendment in the second draft: modified version ratified as the Fourth Amendment]

            Art. 8.   No person shall be subject, except in a case of impeachment, to more than one trial or one punishment for the same offence, nor shall be compelled in any criminal case, to be a witness against himself, nor be deprived of life, liberty or property, without due process of law, nor shall private property be taken for public use, without just compensation.

[Part of Seventh Amendment in the second draft: modified version ratified as part of the Fifth Amendment]

            Art. 9.   In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favour, and to have the assistance of counsel for his defence.

[Modified version is Eighth Amendment in the second draft: modified version ratified as part of the Sixth Amendment]

            Art. 10.   The trial of all crimes (except in cases of impeachment, and in cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger) shall be by an impartial jury of the vicinage, with the requisite of unanimity for conviction; the right of challenge and other accustomed requisites; and no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment by a grand jury; but if a crime be committed in a place in the possession of an enemy, or in which an insurrection may prevail, the indictment and trial may by law be authorized in some other place within the same state.

[Modified version part of Seventh and Eighth Amendments in the second draft: modified version ratified as parts of the Fifth and Sixth Amendment]

            Art. 11.   No appeal to the Supreme Court of the United States shall be allowed, where the value in controversy shall not amount to one thousand dollars; nor shall any fact triable by a jury according to the course of common law, be otherwise re-examinable, than according to the rules of common law.

[Modified version is Ninth Amendment in the second draft; modified version ratified as part of the Seventh Amendment.]

            Art. 12.   In suits at common law, the right of trial by jury shall be preserved.

[Modified version part of Ninth Amendment in the second draft; ratified as the Seventh Amendment]

            Art. 13.   Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

[Tenth Amendment in the second draft: ratified as the Eighth Amendment]

            Art. 14.   No state shall infringe the right of trial by jury in criminal cases, nor the rights of conscience, nor the freedom of speech, or of the press.

[Dropped in the second draft. Modified version passed by Congress on June 13, 1866; ratified July 9, 1868 as part of the fourteenth Amendment]

            Art. 15.   The enumeration in the constitution of certain rights shall not be construed to deny or disparage others retained by the people.

[Eleventh Amendment in the second draft: ratified as the Ninth Amendment]

            Art. 16.   The powers delegated by the constitution to the government of the United States, shall be exercised as therein appropriated, so that the legislative shall never exercise the powers vested in the executive or judicial; nor the executive the powers vested in the legislative or judicial; nor the judicial the powers vested in the legislative or executive.

[Dropped in the second draft.]

            Art. 17.   The powers not delegated by the constitution, nor prohibited by it to the states, are reserved to the states respectively.

[Modified version is Twelfth Amendment in second draft: ratified as the Tenth Amendment]

CSG: WA Constitution – Executive, Online Class Dec. 28, 2017

The Center for Self Governance is hosting an online class on the Executive portion of the Washington State Constitution on December 28th, 2017. Tuition is $25.

Click here to register.

State Constitution 300: Executive

NOTE:  This class is a LEVEL 300 WASHINGTON STATE CONSTITUTION CLASS.

You do not have to be a CSG student to attend.  You do not have to take the Constitution classes in sequence.

This is a 4 hour online lecture-style class.  Supplies to bring include: paper, pen, a copy of your state constitution and your enthusiasm! This is an interactive class and we look forward to hearing from you.

KrisAnne Hall Speaks in Idaho, Oct. 16-18th, 2017

Constitutional Attorney, Author, Speaker, and Radio Host KrisAnne Hall will have three speaking engagements in Idaho in October, 2017. KrisAnne Hall is an attorney and former prosecutor who travels the country teaching the Constitution and the history that gave us our founding documents. KrisAnne will connect the dots for you like no one else can! Details of the talks still to come.

Sandpoint, ID – Oct. 16th. 6:00pmArticle V & Nullification, Sandpoint Community Hall

Bonners Ferry, ID – Oct. 17th 6:00pm4th Amendment, Providence Bible Presbyterian Church

Coeur d’Alene, ID – Oct. 18th 6:00pm  4th Amendment, Lordship Church, Dalton Gardens, ID

 

If you’re going to travel from out of the area, you could consider staying at Huckleberry Mountain Homestead and Breakfast in Cocolalla, ID which is between Sandpoint and Coeur d’Alene.