Article III: Judicial

Section 1

The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour(sic) , and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.

Section 2

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; — to all Cases affecting Ambassadors, other public Ministers and Consuls; — to all Cases of admiralty and maritime Jurisdiction; — to Controversies to which the United States shall be a Party; — to Controversies between two or more States; — between a State and Citizens of another State; — between Citizens of different States; — between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

Section 3

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

(1) The high court generally has a great deal of leeway over its case load, but there are some cases they must accept.

Two statutes, 28 U.S.C. §§1253 and 2284(a), require the court to hear “reapportionment cases,” which deal with how states divvy up their territory for federal and state elections.

That’s “a serious problem because there are a lot of cases that come up,” via these statutes that would be the kind of case that the court “might deny cert in, to let the issue percolate,” Chief Justice John G. Roberts said in 2015. But “no, we have to decide it on the merits,” he said.

The court’s mandatory review in redistricting cases has its roots in Ex Parte Young, 209 U.S. 123 (1908).

In that case, the Supreme Court said that a federal judge could stop a state attorney general from enforcing an unconstitutional state statute, even in light of sovereign immunity doctrines, which limit suits against states

Nevertheless, both liberals and conservatives have used the special procedures associated with these redistricting cases to advance their causes at the Supreme Court.

When the courts hand down rulings that Congress doesn’t like, lawmakers sometimes retaliate by trying to take away their power to hear certain kinds of cases at all or strictly limiting what they can do.

Why does Congress get to take cases away from judges or change the rules for hearing them?  Judges weren’t the heroes of the Revolution. They were appointed by the British crown. “So even after Independence, judges carried a lot of historical baggage. The Constitution’s drafters gave Congress weapons to use against the courts without giving judges much to defend themselves with. The president can draw his veto pen if Congress goes after him. The Supreme Court has to find a straight-faced way to declare a law unconstitutional when it weakens the judiciary’s powers.

A law Congress passed in 1996 says that the federal courts can’t grant a habeas petition that state courts have turned down unless the state court decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.” That is a high bar.

The federal courts can only look to see whether the Supreme Court has already said it’s not fair. If they don’t turn up a case that’s on point, they are to leave the state court’s decision untouched.

There are reasons for federal judges to defer to state judges—among them the principle of comity, according to which different branches of government show respect for one another, and the principle of finality, which in this context basically means that you get your habeas crack in the state courts, and that’s enough.

Work at the Supreme Court is divided into two main categories. One is deciding the cases it hears on the merits: the 70-some cases each year that the court selects for extensive briefing, oral argument and a substantial written opinion, sometimes with dissents. These are the cases we hear about in the news.

The orders docket includes nearly everything else the court must decide — which cases to hear, procedural matters in pending cases, and whether to grant a stay or injunction that pauses legal proceedings temporarily. There are no oral arguments in these cases and they are often decided with no explanation.

Despite their obscurity, these orders — there are thousands each year, if you count decisions not to hear cases — are significant. Different groups of justices dissented in some of the cases, but the court did not explain any of them.

This lack of transparency has a practical impact. Because the court doesn’t issue opinions in these cases, lawyers don’t know what legal standards to apply when litigating the issue again in the future. And because we don’t even know which justices have joined most of the orders, we don’t know which justices are responsible, and we don’t know whether the justices are being consistent and principled from case to case.

These procedural issues also affect the lower courts, which are supposed to follow Supreme Court precedent. But because the lower-court judges don’t know why the Supreme Court does what it does, they sometimes divide sharply when forced to interpret the court’s nonpronouncements. The orders can influence the substance of litigation, too, because a key factor in procedural cases is whether the claim has merit.

The court is in the spotlight more and more. Transparency in all its decisions is vital to its continued legitimacy. But, when all else fails, when the Judiciary becomes activist rather than deliberative, the elected representatives of the people can have their say through Congressional action.

Letting Congress strip the courts of the authority to hear certain claims or cases means giving more power to the people, who can elect their lawmakers but not their federal judges. From a pre-Revolutionary vantage point, that made sense… and it still does today.

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(c) 2018

 

 

Section 2

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences, (sic) against the United States, except in Cases of Impeachment.(*1)

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. (*2)

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

Section 3

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed (*3), and shall Commission all the Officers of the United States.

Section 4

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors. (*4)

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(*1) Debates about presidential pardon powers come up on a regular basis, but in some ways they are among the most misunderstood aspects of executive powers granted by the Constitution.

The President has pardon or clemency power under Article II, Section 2, Clause 1, of the Constitution, under the Pardon Clause. The clause says the President “shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” The Office of the Pardon Attorney, which is part of the Justice Department, has handled such matters for the President since 1893, and it has a detailed description of the pardon and clemency process on its website.

Although the terms clemency and pardon seemed to be interchangeable, in general terms executive federal clemency is granted after someone had allegedly committed a crime. In most cases, that person is convicted of a crime, and then granted a form of clemency. A pardon allows a convicted person to reclaim lost civil rights after a conviction.

In the case of former President Richard Nixon, he was granted a pardon by President Gerald Ford for any crimes he might have committed during the Watergate scandal, even though Nixon wasn’t charged with or convicted of federal crimes. (This is known as a pre-emptive pardon.)

The basis of the Presidential pre-emptive pardon was an 1866 Supreme Court ruling called Ex parte Garland, which allowed for a pardon granted by President Andrew Johnson to remain in force for a former Confederate politician.

And what about the question of President issuing a self-pardon? The exact question of self-pardoning wasn’t directly addressed at the Convention.

(*2) It is within the discretion of the Senate as to what action, if any, to take for a given nomination. Nowhere does the Constitution say that the Senate is required to act on the president’s nominations.

The Framers certainly didn’t understand the Senate to bear such an obligation. And the Framers who drafted that document certainly didn’t say that the Senate bore such an obligation.

But the best evidence of the Senate’s power not to vote on nominations is found in the Framers’ rejection of an alternative approach to appointments. As an alternative to the “advice and consent” model, James Madison proposed a discretionary Senate veto. Under that plan, a president’s nominees would automatically be appointed unless the Senate mustered a majority vote against that nomination within a fixed number of days.

In short, Madison would have put the burden on the Senate, to affirmatively act to block a nomination. But the Framers rejected his proposal, and chose instead the “advice and consent” model, placing the burden on the president (and his supporters) to convince the Senate to confirm his nominee.

(*3) This Clause does not grant power but rather imposes a duty: “The President … shall take Care…” This is not optional; it is mandatory.

The duty is personal. Execution of the laws may be delegated, but the duty to “take Care that the Laws be faithfully executed” is the President’s alone.

The President is not required to take care that the laws be “completely” executed; that would be impossible given finite resources. The President does have power to make enforcement choices — however, he must make them “faithfully.

Finally, it is important to remember the historical context of the clause: English kings had claimed the power to suspend laws unilaterally, but the Framers expressly rejected that practice. Here, the executive would be obliged to “take Care that the Laws be faithfully executed.

(*4) President Gerald Ford is famous for saying that impeachable offenses are whatever Congress says they are. His statement may be more than just a cynical observation about the irrelevance of constitutional scholarship to D.C.

There is evidence that the Founding Fathers were intentionally vague.

Initially, the framers considered defining impeachable offenses as just “treason or bribery” (rather than the ultimate definition of “treason, bribery, or other high crimes and misdemeanors”). They tacked on the additional phrase because George Mason worried that “treason or bribery” was insufficient for removing a president who began to display dictatorial tendencies.

The framers offered a squishy definition in faith that Congress would know an impeachable offense when it saw one. (It is also clear however that Madison, at least, was worried about making the definition too vague, because excessive vagueness means that the president serves “during the pleasure of the Senate.”) Sounds an awful lot like Madison was right,,, “we have to pass it so we can know what’s in it.”

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(c) 2018

Article II: Executive

Section 1

The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.(*1)

The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse,(sic) by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing,(sic) the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse,(sic) from them by Ballot the Vice President.

The Congress may determine the Time of chusing,(sic) the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States. (*2)

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.(*3)

In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.

The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation: — “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”(*4)

(*1)After struggling with numerous proposals on the election of the President, the delegates to the Constitutional Convention settled on establishing a college of electors and apportioning the number according to the total of Representatives and Senators from each state. This method permitted the smaller states to have a somewhat greater proportionate share in the choosing of the President, though not as large an advantage as they had in the Senate. The Framers not only rejected the direct popular election of the President, but also left it to the state legislatures to determine how the states’ electors were to be appointed.

(*2) In creating the basic architecture of the American government, the Founders struggled to satisfy each state’s demand for greater representation while attempting to balance popular sovereignty against the risk posed to the minority from majoritarian rule.”

Some elements of the Electoral College, such as the indirect vote through intermediaries, were hotly debated at the 1787 Constitutional Convention. It was eventually justified in part as a stopgap to potentially reverse the vote if the people elected a criminal, traitor, or similar kind of heinous person. The Founders wanted to empower democratic elements in the American system, but they feared a kind of pure, unrestrained democracy that had brought down great republics of the past.

The product of the Founders’ compromise has been well balanced and enduring, and we would be wise to leave it intact.

(*3) The term natural born citizen applies, quite simply, to anyone who is a U.S. citizen at birth, or by birth, and does not have to go through the naturalization process. The child of parents who are U.S. citizens, regardless of whether he or she is born abroad, fits into the category. Under current legal interpretation, a “so-called” anchor baby would qualify to be President if all other requirements for the office had been met.

(*4) The presidential oath is the only one spelled out in the Constitution, and is the shortest. Interestingly, not included in the Constitution are the words used at the end by many presidents: “So help me God.”

It appears that swearing on a Bible has not been universal.

In 1825, John Quincy Adams took the oath on a law volume containing a copy of the Constitution; Theodore Roosevelt used no Bible in taking his first oath of office in 1901; and some sources report that after President Kennedy was assassinated, a Catholic Missal was used to swear in Lyndon Johnson because no Bible could be found for the quickly arranged ceremony on the plane before it took off from Dallas to return to Washington, D.C.

The deliberations of America’s founders suggest that the centerpiece of the presidential oath is the pledge to “preserve, protect and defend the constitution”.

Some scholars say that the oath gives presidents a tool to protect the prerogatives of their office from the encroachment of Congress. But others argue the presidential oath was designed to serve as a check on chief executives’ power.

I believe that the oath is inherently “limiting, not empowering”. The preservation, protection and defense of the Constitution are the four walls within which elected powers are, (or at least should be), confined.

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(c) 2018

Section 9

The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.(1)

No Bill of Attainder or ex post facto Law shall be passed.

No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken.

No Tax or Duty shall be laid on Articles exported from any State.

No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another; nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.

No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

Section 10

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Control of the Congress.

No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

(1) Habeas corpus (more fully, habeas corpus ad subjiciendum) is a Latin term for a centuries-old legal protection. The writ of habeas corpus guarantees that a person who has been detained (arrested) has the right to go before a court and have the court decide whether the detainment or imprisonment is legal.

President Abraham Lincoln suspended habeas corpus in Maryland on April 27, 1861, two weeks after the hostilitiesat Fort Sumter.

Lincoln could look out his window at the White House and see Robert E. Lee’s plantation in Virginia. He was also facing a rebellion of so-called Peace Democrats in Maryland, meaning there was a real chance that Washington would be surrounded and a real threat that the White House would be captured.

On Lincoln’s order, federal troops arrested Baltimore’s mayor and chief of police, as well as several members of the Maryland legislature, who were jailed so that they couldn’t vote to secede from the Union.

Since the Middle Ages, habeas corpus—“You should produce the body”—has been the principal means in Anglo-American jurisprudence by which prisoners can challenge their incarceration.

In habeas-corpus proceedings, the government is required to bring a prisoner—the body—before a judge and provide a legal rationale for his continued imprisonment. The concept was so well established at the time of the founding of the American Republic that the framers of the Constitution allowed suspensions of the right only under narrow circumstances.

Congress passed, and then President Bush signed, a law known as the Military Commissions Act of 2006, banning the four hundred and thirty detainees held at the American naval base at Guantánamo Bay, and other enemy combatants, from filing writs of habeas corpus.

Recently there has been talk of military commissions or tribunals for prisoners, which could, of course, result in the imposition of the death penalty.

In 2012, the U.S. Congress passed the National Defense Authorization Act (NDAA) with relatively little attention from the media. The NDAA was enacted to empower the U.S. military to fight the war on terror. But buried in this law are two provisions (Sections 1021 and 1022) that authorize the indefinite military detention, without charge or trial, of any person labeled a “belligerent”―including an American citizen.

Under Section 1021 anyone who has committed a “belligerent act,” can be detained indefinitely, without charges or trial, as a “suspected terrorist.”

 

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(c) 2018

Section 7

All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States: If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.

Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.

Section 8

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow Money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization(4), and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof (1), and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; — And

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.

(1)The U.S. Constitution does not mention the need for a central bank, nor does it explicitly grant the government the power to create one. Those who adhere to a strict interpretation of the Constitution believe the government does not have any authority not specifically listed as one of the Enumerated Powers of Congress.

Article I, Section 8 of the U.S. Constitution lists most of what are commonly referred to as the Enumerated Powers of Congress. Among them are the power to borrow money on behalf of the United States and the power to coin money, establish currency and determine its value. Critics of the Federal Reserve point out that the Constitution makes no reference to a centralized bank to carry out these actions.

Each of the 12 regional Federal Reserve Banks are overseen by a governor who sits on the Board of Governors of the Federal Reserve. This independent board and its chair are appointed by the U.S. president and are confirmed by the Senate. The presidents of the regional banks, however, are appointed by a board of directors comprised of mostly private sector representatives.

Critics believe this system violates constitutional law because public policy makers are being picked by a quasi-private structure. Once officials are appointed, it is next to impossible for the government to remove them.

(2) To declare war.

Private military contractors perform tasks once thought to be inherently governmental, such as raising foreign armies, conducting intelligence analysis and trigger-pulling.

Contractors also encourage mission creep, because contractors don’t count as “boots on the ground.” Congress does not consider them to be troops, and therefore contractors do not count again troop-level caps in places like Iraq. The U.S. government does not track contractor numbers in war zones. As a result, the government can put more people on the ground than it reports to the American people, encouraging mission creep and rendering contractors virtually invisible.

For decades now, the centrality of contracting in American warfare—both on the battlefield and in support of those on the battlefield—has been growing.

During the wars in Iraq and Afghanistan, the proportion of private military contractors, (mercenaries), leapt to 50 percent. This big number signals a disturbing trend: the United States has developed a dependency on the private sector to wage war, a strategic vulnerability. Today, America can no longer go to war without the private sector.

Today, 75 percent of U.S. forces in Afghanistan are contracted.

America is waging a war largely via contractors, and U.S. combat forces would be impotent without them. If this trend continues, we might see 80 or 90 percent of the force contracted in future wars.

Contracting is big business, too. In the 2014 fiscal year, the Pentagon obligated $285 billion to federal contracts—more money than all other government agencies received, combined. That’s equal to 8 percent of federal spending, and three and a half times Britain’s entire defense budget. About 45 percent of those contracts were for services, including private military contractors.

This means that contractors are making the ultimate sacrifice. Today, more contractors are killed in combat than soldiers—a stunning turnaround from the start of the wars Iraq and Afghanistan.

By 2010, more contractors were dying than troops. However, the real number of contractor deaths —versus the “official” tally—remains unknown.

Even more troubling: Most of those fighting for the United States abroad aren’t even Americans. Private military companies are multinational corporations that recruit globally.

(3)Few powers are more fundamental to sovereignty than the control over immigration and the vesting of citizenship in aliens (naturalization). According to the Declaration of Independence, “obstructing the Laws for the Naturalization of Foreigners” was one of the grievances that led the American colonists to break with Britain.

In 1795, Congress claimed exclusive authority over naturalization by establishing new conditions—”and not otherwise”—for aliens “to become a citizen of the United States, or any of them.” In Chirac v. Lessee of Chirac (1817), the Supreme Court affirmed that “the power of naturalization is exclusively in congress,” notwithstanding any state laws to the contrary.

Individual naturalizations following Congress’s “uniform Rule” were not the only avenues to citizenship for those who were not American citizens by birth. The incorporation of the Louisiana Territory and Florida into the Union in the first decades of the nineteenth century raised the issue of whether the national government through treaty or law could vest citizenship collectively. A federal circuit court in 1813 and then the Supreme Court in American Insurance Co. v. 356 Bales of Cotton (1828) upheld collective naturalization. Moreover, in 1848 the Treaty of Guadalupe Hidalgo, which ended the Mexican-American War, offered the Mexican inhabitants of the territories ceded to the United States the option of maintaining their Mexican citizenship or, if they made no such request, becoming American citizens.

Key criteria for citizenship of the Naturalization Act of 1795 remain part of American law. These include (1) five years of (lawful) residence within the United States; (2) a “good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States”; (3) the taking of a formal oath to support the Constitution and to renounce any foreign allegiance; and (4) the renunciation of any hereditary titles.

Current law, which is much more detailed than the first naturalization statutes, also requires competency in the English language and excludes those who advocate world communism or the violent overthrow of the government of the United States. Also, current law prohibits discrimination in naturalization on the basis of race, sex, or marital status. The elements of the oath have been expanded to include a solemn commitment “to support and defend the Constitution and the laws of the United States against all enemies, foreign and domestic;…to bear true faith and allegiance to the same; and…to bear arms on behalf of the United States when required by law, or…to perform noncombatant service in the Armed Forces of the United States when required by law” (with exceptions for conscientious objectors).

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Section 4

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing (sic) Senators.

The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day.

Section 5

Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.

Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.

Section 6

The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased (sic) during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

The evidence is clear: Americans overwhelmingly disapprove of Congress and don’t believe their representatives share their priorities. When it comes to personal priorities, at least, voters have good reason to be skeptical of Congress. Most members of Congress simply don’t share in the average American experience. 

While just 1 percent of Americans are millionaires, 66 percent of senators are millionaires, as are 41 percent of House members.

Once in office, members of Congress enjoy access to connections and information they can use to increase their wealth, in ways that are unparalleled in the private sector. And once politicians leave office, their connections allow them to profit even further. Most Americans are being represented by people who, any way you cut it, are in the elite of the financial elite.

Once a candidate actually makes it into Congress, he’s presented with new opportunities to increase his wealth — some that are unmatched in the corporate world.

There are some ethics restrictions in place that limit the income congressional members can take in; for instance, they’re not allowed to take in outside income (from sources like speaking fees) that amounts to more than 15 percent of their salary (the base pay for a member of Congress is $174,000).

And like everyone else, members of Congress are subject to current insider trading laws. However, current insider trading laws do not apply to nonpublic information about current or upcoming congressional activity — that’s because members of Congress aren’t technically obligated to keep that information confidential.

Congressmen can get away with the type of insider trading that would send Martha Stewart to prison. They go into hearings and confidential meetings with business interests, understanding new legislation is going to come out next week, and are free to trade on that information. 

Officially, House ethics rules say it would “impractical or unreasonable” to ask members of Congress to divest from industries over which they have jurisdiction, in part because a congressman may have been elected to represent a “common interest” he shares with his constituents. Thus, the rules say, if asked to divest in that industry, the member of Congress may be “ineffective in representing the real interests of the constituents.”

One really effective way for a corporation to do influence peddling without actually bribing a member of Congress is hire the spouse. Hire these spouses at exorbitant salaries, and that money really goes directly into the pocket of the member.

Government by the people, of the people and for the people? Really? Not so much.

A study took data from nearly 2,000 public-opinion surveys and compared what the people wanted to what the government actually did. What they found was extremely unsettling: The opinions of the bottom 90% of income earners in America has essentially no impact at all. …unless you’re an “economic elite.”

If you’ve ever felt like your opinion doesn’t matter and that the government doesn’t really care what you think, well … you’re right.

 

Section 3

The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof for six Years; and each Senator shall have one Vote.

Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year; and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies.

No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.

The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.

The Senate shall chuse,(sic) their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States.

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

The framers of the Constitution created the United States Senate to protect the rights of individual states and safeguard minority opinion in a system of government designed to give greater power to the national government. They modeled the Senate on governors’ councils of the colonial era and on the state senates that had evolved since independence. The framers intended the Senate to be an independent body of responsible citizens who would share power with the president and the House of Representatives. James Madison, paraphrasing Edmund Randolph, explained in his notes that the Senate’s role was “first to protect the people against their rulers [and] secondly to protect the people against the transient impressions into which they themselves might be led.” (SOURCE:https://www.senate.gov/artandhistory/history/common/briefing/Origins_Development.htm)

To balance power between the large and small states, the Constitution’s framers agreed that states would be represented equally in the Senate and in proportion to their populations in the House. Further preserving the authority of individual states, they provided that state legislatures would elect senators. To guarantee senators’ independence from short-term political pressures, the framers designed a six-year Senate term, three times as long as that of popularly elected members of the House of Representatives. Madison reasoned that longer terms would provide stability. “If it not be a firm body,” he concluded, “the other branch being more numerous, and coming immediately from the people, will overwhelm it.”

The Senate was invented, in part, to slow things down and hold things back. It was meant to be a check on the President, the House of Representatives and popular passions.

“The Founding Fathers hoped there would not be parties.”

But they certainly foresaw the possibility of gridlock, and they weren’t necessarily against it. They intended that the Senate should stop, deliberate, ponder and amend legislation more cautiously than the House. The Senate would “check the inconsiderate and hasty proceedings” of the House, Oliver Ellsworth of Connecticut explained at the Constitutional Convention in 1787.

Emboldened by a sense that President Trump is vulnerable and that they could oppose him with impunity, Democrats have laid waste to most of his legislative agenda this year. Whether they displayed the “weight and wisdom” that the authors of the Constitution hoped to find in senators is a matter, at the very least, for debate.

But the Senate’s performance was “not inconsistent” with the Founders’ intentions. “They felt that you don’t want the people’s representatives running free,” he said. “They saw the Senate as a check on popular passions, and they saw the people who would sit in the Senate as generally more conservative” than the House.

If something awful happens to someone you don’t know, or perhaps dislike, you are likely to ignore it in the first instance, or may even applaud it in the latter instance.

If something awful happens to you or your loved ones, well, that’s a different story altogether. There will be no applause from you; there will be scorn and retribution if you can make that happen.

As the old saying goes; “It all depends on whose ox is gored.

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U.S. Constitution – Article 1 Section
Section 1 – The Legislature

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Section 2 – The House

The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.

(Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.) (The previous sentence in parentheses was modified by the 14th Amendment, section 2.) The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode Island and Providence Plantations one, Connecticut five, New York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five and Georgia three.

When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.

The House of Representatives shall choose their Speaker and other Officers; and shall have the sole Power of Impeachment.

Three issues—length of terms, equal versus proportional representation of states, and method of selection—dominated the Constitutional Convention’s debate over the makeup of the House of Representatives. They each were resolved in the language of Article I, Section 2.

The two-year term of office for the House was a straightforward compromise between those who preferred annual elections and those who favored a longer, three-year term. The original Virginia Plan envisaged that both branches of the federal legislature would be directly or indirectly accountable to “the People.” In the end, however, the Convention determined that the states would be represented in the Senate and the people in the House of Representatives. During the debate over equal or proportional state representation in the House, several delegates, notably James Wilson, James Madison, and George Mason, argued for population as the just basis of apportionment. That later became conflated with the related but distinct question on the manner of selection.

What the Framers intended in providing for election “by the People” can be better understood in terms of the alternatives that they rejected. The Committee of the Whole vigorously debated and discarded a counter resolution that the House be selected by “the State Legislatures, and not the People.” Elbridge Gerry suggested that Members be selected by state legislatures from among candidates “nominated by the people.” Another compromise, proposed by Charles Cotesworth Pinckney, provided for the House to be selected “in such manner as the legislature of each state shall direct.” Against these proposals, Madison and Wilson argued that selection by the people was necessary to link citizens directly to the national government and to prevent the states from overpowering the central authority. Article I, Section 2, secured direct popular election of the House.

The scope of the phrase “by the People,” however, was neither debated nor defined at the Convention. It appears to have meant the direct popular election with a relatively broad right of suffrage as determined by the states’ own practices. Madison described electoral accountability to the people as “the republican principle.” The Federalist No. 10. Responding to charges that the House would not represent “the mass of the people,” Madison argued in The Federalist No. 57 that “the electors are to be the great body of people of the United States. They are to be the same who exercise the right in every State of electing the corresponding branch of the legislature of the State.” Leading Anti-Federalists, such as Melancton Smith and the anonymous Brutus, used the term in a similar fashion, affirming the broadly accepted meaning. Thomas Jefferson defined “the People” as no particular class but, rather, “the mass of individuals composing the society.”

Comments at both the Convention and at state ratifying conventions indicate substantial support for the general proposition that Representatives should be apportioned in a manner roughly equal to population. Nevertheless, it seems evident that the delegates did not intend to place any particular principle, such as “one person, one vote,” into the Constitution. “One person, one vote” was not the norm in the states at the time of the Convention. Although most states established districts roughly according to population, none came close to the “one person, one vote” standard. Geography, history, and local political boundaries cut against equally populated districts. Similarly, in the Northwest Ordinance of 1787, Congress provided for up to one Representative per 500 persons, but based on townships and counties. Furthermore, besides the celebrated compromise providing each state with equal representation in the Senate, the Constitution specifically grants each state, no matter how small its population, one Representative in the House.

The Constitution, however, does not require Representatives to be elected by districts. In the beginning, many states had their Representatives elected at large. If a state chose its Representatives at large, then they were more likely to speak with one voice, thus increasing the influence of the state in the House of Representatives. Congress then responded by requiring states to elect its Representatives by district. For a brief time, some states required their Representatives to reside in the district from which they were elected, but that requirement no longer exists.

There was a limit, however, to what the states could do in fashioning congressional districts. The Framers did, in fact, disapprove of “rotten boroughs” in Great Britain, districts with no more than a few inhabitants that nevertheless held seats in Parliament equal, in some cases, to large cities. But they decided to address inequities in representation by leaving it to Congress’s discretion to “alter” the “Times, Places, and Manner” of choosing Members. (See Article I, Section 4.) Madison argued that this clause was a necessary safeguard against state-created inequalities in federal representation.

For most of the nation’s history, Section 4 was indeed held to be the sole remedy to malapportionment.

State redistricting plans, scrutinized under the Fourteenth Amendment* rather than Article I, have been granted more leeway. The Court has upheld state legislative districts with population variances up to ten percent with no state justification at all, Gaffney v. Cummings (1973), and variations to nearly twenty percent are permissible where the state demonstrates a rational basis for its plan, such as drawing districts to follow municipal lines. Mahan v. Howell (1973). Consideration of group or economic interests is not, however, an accepted justification. Swann v. Adams (1967).

Critics claim that they have inhibited the formation of regional government consortiums to deal with metropolitan-wide problems; removed traditional constraints on gerrymandering, such as adherence to political jurisdictions or geographic regions; and imposed a particular theory of representation on the states and Congress that is not grounded in the Constitution.

Critics also note that equal population does not correspond to an equal number of voters, due to differing numbers of children, immigrants, and other nonvoters in a district.** Thus votes are still not weighted equally. Nonetheless, the standard of “one person, one vote” remains Supreme Court doctrine.

*The fourteenth amendment and is questionable legality will be discussed later in this series.

**Supreme Court over reach is still a topic of hot discussion as it was in the time of President Andrew Jackson. Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832), was a case in which the United States Supreme Court vacated the conviction of Samuel Worcester and held that the Georgia criminal statute that prohibited non-Native Americans from being present on Native American lands without a license from the state was unconstitutional.

Chief Justice John Marshall laid out in this opinion that the relationship between the Indian Nations and the United States is that of nations. He reasoned that the United States, in the character of the federal government, inherited the rights of Great Britain as they were held by that nation. Those rights, he stated, include the sole right to deal with the Indian nations in North America, to the exclusion of any other European power. This did not include the rights of possession to their land or political dominion over their laws. He acknowledged that the exercise of conquest and purchase can give political dominion, but those are in the hands of the federal government, and individual states had no authority in American Indian affairs. Georgia’s statute was therefore invalid.

President Andrew Jackson reportedly responded: “John Marshall has made his decision; now let him enforce it!” This derives from Jackson’s comments on the case in a letter to John Coffee, “…the decision of the Supreme Court has fell still born, and they find that they cannot coerce Georgia to yield to its mandate”

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