Let’s Talk About Executive Order 9066 and Trump

Last week the news media (ABCNNBCBS, MSNBC, & Fox) and their political punditry are ablaze with the President Trump’s decision to declare the southern immigration problem a National Emergency and fund the construction of a wall over the objections of the Democratic Party.  Speaking to the press Ms. Pelosi (D-CA) said, “If the president can declare an emergency on something that he has created — an illusion that he wants to convey, just think what a president with different values can present to the American people,”

We can debate whether or not 150,000 unapproved immigrants a year is an illusion or not, but to put illusions in perspective we should compare that number to a problem the People’s Democratic Party is all over.  Specifically, the number of deaths from firearms (about 40,000 in 2017) most of which were self-inflicted fatalities or suicides.  Every day we hear about how guns are evil and we need new laws, why is one number significant and another, much higher number not?

Senator Rubio (R-FL) also condemned the President’s plan when he said, “We have a crisis at our southern border, but no crisis justifies violating the Constitution.  Today’s national emergency is border security.  But a future president may use this exact same tactic to impose the Green New Deal.  I will wait to see what statutory or constitutional power the President relies on to justify such a declaration before making any definitive statement.  But I am skeptical it will be something I can support.”

It’s is funny how this whole national emergency thing seems to work.  The founders imagined in times of emergency the President and Congress would work together to craft appropriate legislation.  But it has become increasingly fashionable for the President to act unilaterally when Congress fails to support his position.  As those who support the President have pointed out the previous President had declared something like 13 emergencies, 11 of which are still open.  The purpose of declaring an emergency seems to be a convenient way to get around the restrictions on the programming of funds defined by the separation of powers in the constitution.  I suggest we put this whole emergency thing in the context of the actions of past Presidents.  But first, let’s review the Constitutional requirements levied on the President.

“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

The founders believed the real power of the government would be invested in the Congress, and the President acting as a co-equal would execute those powers.  Time has brought changes from the concepts of our founders as the Congress has acquiesced to Presidential decisions, which have made the Executive Branch an increasingly dominant role in the management of the nation's business.  What they did define is the President’s role in the defense of our sovereignty. 

“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 against the United States, except in Cases of Impeachment.

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.”

So, we come to the idea of exerting Presidential authority through a declaration of a National Emergency, the current political crop would have us believe this is an unprecedented violation of the Constitutional authority.  To which I say, nay, nay![1]  It would seem to me to be far less egregious than the precedent set by President Roosevelt when he did it on February 19,1942.  It read[2]:

Executive Order No. 9066

The President

Executive Order

Authorizing the Secretary of War to Prescribe Military Areas

Whereas the successful prosecution of the war requires every possible protection against espionage and against sabotage to national-defense material, national-defense premises, and national-defense utilities as defined in Section 4, Act of April 20, 1918, 40 Stat. 533, as amended by the Act of November 30, 1940, 54 Stat. 1220, and the Act of August 21, 1941, 55 Stat. 655 (U.S.C., Title 50, Sec. 104);

Now, therefore, by virtue of the authority vested in me as President of the United States, and Commander in Chief of the Army and Navy, I hereby authorize and direct the Secretary of War, and the Military Commanders whom he may from time to time designate, whenever he or any designated Commander deems such action necessary or desirable, to prescribe military areas in such places and of such extent as he or the appropriate Military Commander may determine, from which any or all persons may be excluded, and with respect to which, the right of any person to enter, remain in, or leave shall be subject to whatever restrictions the Secretary of War or the appropriate Military Commander may impose in his discretion. The Secretary of War is hereby authorized to provide for residents of any such area who are excluded therefrom, such transportation, food, shelter, and other accommodations as may be necessary, in the judgment of the Secretary of War or the said Military Commander, and until other arrangements are made, to accomplish the purpose of this order. The designation of military areas in any region or locality shall supersede designations of prohibited and restricted areas by the Attorney General under the Proclamations of December 7 and 8, 1941, and shall supersede the responsibility and authority of the Attorney General under the said Proclamations in respect of such prohibited and restricted areas.

I hereby further authorize and direct the Secretary of War and the said Military Commanders to take such other steps as he or the appropriate Military Commander may deem advisable to enforce compliance with the restrictions applicable to each Military area hereinabove authorized to be designated, including the use of Federal troops and other Federal Agencies, with authority to accept assistance of state and local agencies.

I hereby further authorize and direct all Executive Departments, independent establishments and other Federal Agencies, to assist the Secretary of War or the said Military Commanders in carrying out this Executive Order, including the furnishing of medical aid, hospitalization, food, clothing, transportation, use of land, shelter, and other supplies, equipment, utilities, facilities, and services.

This order shall not be construed as modifying or limiting in any way the authority heretofore granted under Executive Order No. 8972, dated December 12, 1941, nor shall it be construed as limiting or modifying the duty and responsibility of the Federal Bureau of Investigation, with respect to the investigation of alleged acts of sabotage or the duty and responsibility of the Attorney General and the Department of Justice under the Proclamations of December 7 and 8, 1941, prescribing regulations for the conduct and control of alien enemies, except as such duty and responsibility is superseded by the designation of military areas hereunder.

Franklin D. Roosevelt

The White House,

February 19, 1942.

As the President considered this executive order the assistant to the Attorney General and the Attorney General himself appear to be the dissenting voices among the outraged Democrats of the President’s party.  In a February 2, 1942 memo James Rowe Jr. writes the order would “require the suspension of habeas corpus” and “would be one of the great mass exoduses of history.”

Attorney General Biddle urged caution in the execution of the order as a response the increasingly vocal media outcries coming from the Los Angeles Times and the Washington Post, and led by columnists Walter Lippmann and Westbrook Pegler,[3] but his concerns were put aside when the War Department relieved the Attorney General of responsibility for the relocation.

So, as we struggled with the aftermath of Pearl Harbor the President’s executive order, declaring a National Emergency and establishing military exclusion zones was used to suspend the safeguards of the Constitution for well over 120,000 American citizens and move them from the military exclusion zones.  Although the Japanese were not mentioned exclusively (Germans and Italians were also subject) those executing the order targeted the Japanese almost exclusively.

Years afterward, during the time of Ronald Reagan’s presidency, the US government acknowledged the abuse of rights and paid reparations to the families of those sent to the internment camps.  Although no reparation could adequately make up for the true abuse of government power -- as it acted in such an overtly racist way in response to the hysteria that swept the nation, fueled by the media, in the post-December 7^th days.

During the Obama administration, most of his 13 declared emergencies seem to deal with terror-related activities and targeted the activities of specific ethnic groups, like the Sudanese, or Central Africans, or people engaged in activities in conflict areas like Yemen, Syria or Venezuela.  All of which restrict the rights and actions of individuals engaged in those activities without regard to a nation of origin.

So now we come to President Trump’s executive order, declaring a national emergency at the border so he can reprogram money to build a wall.  I am hard pressed to understand how his declaration rises to the level of unconstitutionality set as the precedent by previous administrations.  Maybe someone can help me out on this.  Is he proposing we suspend habeas corpus for our citizens or even the non-citizens who will confront the wall?

As with all things Trump, I guess the courts will sort this out and if he loses the media will have a field day.  If he wins we won’t hear much, if anything, at all.

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[1] A line from the late comic John Pinette

[2] https://www.ourdocuments.gov/doc.php?flash=true&doc=74&page=transcript

[3] http://www.fdrlibrary.marist.edu/archives/pdfs/internment.pdf  page 8 of 12 “Document 4: Memorandum to the President from Attorney General Francis Biddle, February 17, 1942:

A Few Thoughts on Changes.

        A few days ago, I had a Facebook post on the fact prominent Democratic politicians were now advocating that white male Presidential appointees should not be afforded one of our inherent and foundational rights under the law.  The feminist #metoo movement has led them to abandon the idea the accused must be presumed innocent until it is proven beyond reasonable doubt they are guilty.  Their position is the accused should and must be presumed guilty until he can prove beyond reasonable doubt his innocence.  This is obviously a political strategy, but if it were to become a social reality it shifts the burden of proof from the state to the accused and carries almost unimaginable ramifications for the abuse of our legal system by a powerful state.  As we saw in the previous administration the use of the tools of government against its opponents has already become a reality.  How easy it would be to make that next step to a totally authoritarian regime where the accused must now prove themselves innocent beyond question.

        One of my friends offered an opinion on this post, which for me provided some interesting food for thought on things we could or should do to change the government.  I would like to spend some time in response to those proposals for I think they are worthy of a little more in-depth response than firing off a brief rebuttal.

        His first proposal was to change the term of appointment for judges to the Supreme Court from life to 12 to 15-years.  His reason was to allow a change in the court when the political parties changed who was in or out of power.  Although not specifically addressed in his suggestion I will make the leap that if we are to change the term of appointment for the SCOTUS, we would then make the appointments to the multiple Courts of Appeal  term-limited, for it makes little sense to allow longevity on the lower court, where the vast majority of opinions are really made, when a court charged with a responsibility to review and adjudicate appeals would be made up of term-limited justices who would be seeking favor from the party likely to be responsible for their reappointment when a term expired.  Of course, that could be remedied by only allowing an individual to serve one term, but looking at our pool of lawyers and judges do we really have that big a pool of impartial experts in the law to swap them all out every 12 to 15 years?  Maybe we do, but color me skeptical.  As we look at the quality of our political pool I don’t see a lot of brilliance in the herd.

        My concern with this proposal is a simple one, it forsakes the role of the court as a check to the abuse of power of the state.  We can debate the pros and cons of activists versus originalist judges and how the court has from time to time created legislation from the bench, but if we create a system where the Executive and Legislative branches have a regular and recurring role in renewing the appointment of the judges then we clearly establish those branches as dominating factors in running the courts for their political advantage, and eliminate the independence the founding fathers believed to be critical to a government by and for the people.  We are where we are today because politicians believe the courts should be an extension of their political platforms, this step will make that a reality.

        I don’t think it would take even a whole generation for us to see the judges becoming subservient to the politicians who appointed them and abandoning any appearance of independence from their masters.  Their dual roles in determining justice and protecting the individual will, in my opinion, quickly fall to the wayside as they lobby for the continuation of their appointments.  Of course, all this would be done behind closed doors and away from the public providing another reason for an already dubious public to lose faith in the fairness of our legal institution.  The only real benefit I see is with the way the Senate now fulfills its “advise and consent” role they would be so busy approving appointments they would have very little opportunity to screw anything else up.

        Our founding fathers, having suffered through the good and bad of the English legal and political systems recognized the potential for abuse by the state and were strong advocates for the individual.  Most were not in favor of a dominating central government as evidenced by our first attempt at establishing our independence with a confederation of states.  The failure of that experiment led us rather quickly to conclude there were certain things a central power was absolutely essential for; among them to ensure the states treated each other reasonably equally, there was a single standard for justice, interstate commerce could flow freely for the benefit of all, and we provided for a common defense of all our states.[1]  So, when it came time to actually establish that government the rights of the individual and a recognition for abuse of that consolidated power must have been among the primary considerations, and this is supported by the Federalist papers written to advocate and assure the common people this new government would not grow so strong as to enslave them and challenged by the Anti-Federalist who argued for the rights of the states and local governments as a way to protect the rights of the individual.[2]

        His next suggestion dealt with the nature of the republic and how we pass our laws.  He recommended we abandon the concept of a representative government and become a “full democracy, with a few safeguards, and have the people of the USA pass the laws by voting for them.”

        Let me begin my answer with a disclaimer, “full democracy with a few safeguards” seems to me to be an oxymoron.  Either we have full democracy or we don’t, if we have full democracy then any proposed safeguard could be abandoned with a simple majority vote or those safeguards would limit the rights of the majority in the democracy.  In a pure democracy, the rights of the minority really don’t matter all that much.  I’ll address that shortly, but that opinion aside then how would this work?

        How often do we see in the social media an on-going debate over whether we are a democracy or not?  Anytime someone gets pissed at a politician, government agency, or even a commercial enterprise they will complain about us living in a democracy.  Of course, they will be immediately condemned as an idiot by someone who points out, “no we live in a Republic.”  I tend to take a bemused view of these debates and hold they are akin to the philosophical discussion on the nature of angels, or how many angels can fit on the head of a pin?  We are a democracy from the standpoint we the people (usually about 55% of the eligible we) do elect people who will represent us, and as such we are a republic where we trust our representatives and all the bureaucrats they have surrounded themselves with will work to protect our interests.  There are those who argue they are really protecting the interests of the rich and powerful, and there are those who argue if we just gave them more of our individual wealth they would protect the poor and helpless.  I think the former is closer to reality than the later.  But in both cases, those positions fail to consider the human condition and inherent human qualities like compassion and greed.

            What would a full democracy, with a few safeguards look like?  For a nation of 328 (plus) million, growing at a rate of slightly less than 1% per year[3] it would seem an almost impossible challenge to have everyone vote on every law, but let’s assume through modern technology everyone has a smartphone, computer, or embedded chip in their brain, with an app that makes this doable.  What changes would we need to make?

        Well first off, we would need a constitutional convention to pretty much scrap the constitution as it is written.  The entirety of Article 2 is effectively worthless since the idea of a House and Senate vested with the power to borrow money, create laws, regulate commerce, raise an army, impose taxes, fund a post office and declare war, seems completely irrelevant or if not irrelevant, at least redundant.  They could be replaced by an army of bureaucrats who would write the regulations and laws while managing the citizen votes necessary to enact them.  In a true democracy, all that would be needed for each of these things would be a simple 1 vote majority.  I suppose one of the potential safeguards would be requiring something other than that (kind of like what the Senate used to have on Presidential appointments until the Obama administration when the distinguished Senator from Nevada, Harry Reid, found that inconvenient and had the majority in power at the time change it.)  The problem with this is a majority of people have voted for a change, just not enough.  I would think the outrage by those with the strongest advocacy would be similar to what we see today by those who hate President Trump and are outraged a majority of the urban elite voted for Hillary, but she lost because of that pesky electoral college thingy.     

        Next, the roles and powers of the President would have to change, for example since there is no Congress almost everything they do would have to be shifted to a bureaucracy controlled by the President.  Would anyone pick up the role of “advise and consent?” In a pure democracy that would fall to the citizens.  Gosh, it looks like we would have to spend time every day voting on stuff or we just declare him or her as an autonomous entity and let them do what they think is right.  Until the age of Trump that usually seemed to be okay with at least ½ the population with the understanding, the other side would get their turn soon enough.

        We would also have to rewrite Article 3 to limit the court's ability to overrule the people.  Their ability to protect the individual from the mob would have to be reconsidered, for in a pure democracy the decision of the many must be considered as compelling and could not be wrong until the many reconsider them and choose another decision.  From what little I know about the amending the California constitutional we see something akin to this with their proposition process, and the danger of too much power in the courts as the California supreme court gets to choose whether a change is constitutional or not.  Of course, in a pure democracy, this would probably not be an issue because the fifty or so states would be dissolved since any national democracy would be limited by subordinate governments which might not be as pure as the central system and this would present a nightmare on determining the rights and responsibilities of the individual.

        My biggest concern, comes from my limited experience looking at the laws our lawyer-politicians, their staffs, and the lawyer-bureaucrats write these days, is assuming the average person will have the ability to understand and vote with a reasonable degree to knowledge on the subject to ensure we don’t inadvertently declare nuclear war on Antarctica because some bureaucrat is upset with the penguins pouching on her herring supply.  Related to this is how we actually calculate the majority, and who gets to decide who does and doesn’t get to vote.  What happens if a significant minority decides to just not vote, how do we decide what the required majority value is?  Do we just tally up the votes of those interested enough to actually cast a ballot and call that a majority, what if 70% of the eligible voters decided to go on holiday instead of hitting the like button on their app?  I know the devil is in the details, but darn it – details are important.

        I said earlier I would talk about how the rights of a minority don’t matter too much in a pure democracy, let’s use as an example something based on the last Presidential election.  Suppose the bureaucrats were to write a law that said all farmers in the middle of the United States must sell all their grain to a certain conglomerate for a fixed price, and the price they would be paid is limited to their costs.  That conglomerate, in turn, must first provide their end products to the major metropolitan centers of Boston, New York, Baltimore/Washington DC, Chicago, Atlanta, Miami, Dallas, Fort Worth, Houston and Austin, Los Angeles, San Francisco, Portland, and Seattle.  Everyone in those metropolitan areas would receive that product for free, while anything left over could then be sold to the rest of the nation.  How would the majority of the population vote on this?  I’m just guessing the majority living within the urban centers would be all for it, the rest of the country not so much. Would the urban centers have enough votes to carry the election as they claim they did in 2016 and this law become the new law of the land?  I think history has shown us the activists would carry the day and the minority would have to pay the bill.

        Well, that’s my opinion.  Thanks, Jimmy for giving me something to think and write about.

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[1] United States Constitution, Preamble.  We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

[2] https://www.diffen.com/difference/Anti-Federalist_vs_Federalist

[3] http://www.worldometers.info/world-population/us-population/

A Few Thoughts on Easy Versus Hard (part 6)

Life is finite, precious, and disposable.

We’ve become a society that no longer places a measurable value on life, except when it serves a political agenda.  We can “coo” and “ah” over babies and small children, at the same time that we call for their destruction.

As I noted earlier in this series we’ve become a consumer society where we throw away the broken to get the newest and neatest thing to replace it.  Why are we surprised when people treat life with exactly the same approach? 

Under the guise of choice, we have made the killing of the unborn a woman’s right.  The women and men who support this right now argue they should have an uncontested and government funded ability to destroy the unwanted up to the moment of birth, but why should it stop there?  For that matter, why should it be only a woman’s choice?  In a society where the moral value of life is relative, what imperative says we must keep alive someone who successfully emerges from the womb and takes their first breath?  I am told there are a number of late term abortions where the fetus emerges alive and is killed, so why should we limit woman’s choice once the child is “born?”

Those who support abortion cite the evils of the world a disadvantaged or unwanted child will face and how it is far better for all concerned if the woman makes a choice that is right for her and the life she carries, preferably without interference from third parties.  After all what does a fetus know, and how can they make an “informed” decision on their own life. 

We have become conditioned to be outraged at the loss of life, but only when the media makes a big deal about it.  Activists have created movements suggesting some lives matter more than others to help us become outraged at the loss of life, but again -- only when the media makes a big deal about it.  We are supposed to come together to condemn violence and death, but only when the media highlights it for ratings.  All other times we are told to ignore the man behind the curtain.

Within our major metropolitan centers, we see hundreds of killings a year, yet where is the national outrage against gang violence?  As I noted in the last post about this – it really and truly is about the theater the political media can create to further their agenda and financial interests, it has little to do with a true moral standard that we as a society can agree to. 

One side would have us believe because we have a constitutional right to own a gun we are a terrible nation killing each other with them, the other side suggests if it weren’t for the decay within major cities we wouldn’t have any gun deaths.  Each of these statements are demonstrably false but reflect the fact those who have deep emotions regarding the issue of guns (both against and for) choose emotional points rather than logical and supportable arguments, because logic doesn’t stir the masses to the same degree.

When we began our nation, we had a relatively homogenous Judeo-Christian morality that served as the basis for our laws.  What we see today is a widening rejection of that morality and in turn the rejection of our law.  I believe it is an unfortunate consequence of a widening belief suggesting we each get to choose what is morally acceptable and therefore we get to choose what laws we like, and what laws we reject.  This latter statement is clearly supported by the political polarization of the left in their establishment of “sanctuary cities” springing up in opposition to the deportation of immigrants who’ve entered this country illegally.

When rejection of some laws becomes a widely accepted practice, how long will it be before we question the validity of all laws?  Those who would suggest there is no such thing as a “slippery slope” argue that one small change does not mean we are forsaking all societal standards.  Their support for this assertion is almost always to point to other societies as proof, but we are vastly different from the societies they point to.  In fact, those societies are becoming more like us and are beginning to see the same issues we’ve faced for years.  The “slippery slope” argument almost always comes up when they argue courts have the right to ignore/overturn laws they disagree with, rather than reach agreement those laws should be repealed through the legislative processes of our Republic. 

As we see in the mass shootings and other violent activity – the criminals involved are unconstrained by the law, and perhaps any moral standard.  Does this mean they are mentally ill?  If they have an individual moral compass, and we as a society argue that is okay, what then should restrain them and why should we condemn their actions?

(to be continued)

Free Speech = Hate Speech

With a hat tip to Althouse.  She posted this  on her blog this morning, it is a picture taken at Brown University that says “free speech = hate speech,” she found posted on Facebook.  There are a variety of comments in the post, including those who support the idea that speech they find offensive needs to be controlled and stopped.  I didn’t bother to look into the University’s position, but from someone who’s spent his life defending the Constitution it troubles me that young people know so little about the reasons for the Constitutional safeguards, or even our recent history, they have been indoctrinated to believe censorship of ideas they don’t like is okay.

When I wrote about the 1^st Amendment (here) I did not discuss why the founders thought the free exchange of ideas, dissent, and disagreement was so critical, I only mentioned the fact government did have some limited rights to control speech. 

The idea of one side imposing its will on the speech of those who disagree with them is not new, it has been a condition of human existence since mankind began keeping records, and perhaps well before that.  This is, I believe, the potential tyranny they sought to avoid.  We were a collective band of Europeans who had all left the safety of the known, for the challenges of the unknown.  Each with a separate reason, some voluntarily, some not, but once here became a people who appreciated the freedom this land offered.

I doubt most millennials, aside from a few film and television buffs are familiar with the Motion Pictures Producers and Distributors association, or the Production Code Association established in 1934 to assure the morality of the film industry.  Without PCA approval a film would not be allowed into the commercial theaters of the day.  This was possible because the Supreme court had ruled that moving pictures were purely commercial products and as such not subject to the safeguards of the 1^st Amendment.  That decision was reversed in 1952, but between 1934 and 1952 the prospects of any film rested almost exclusively on the editorial decisions of the PCA.

Then we come to the infamous House Un-American Activities committee, who investigated potential communist sympathizers in the private sector.  In the late 40’s it created a “black list” of film writers, directors, actors, and others.  This list was used for well over a decade to punish those individuals who were implicated, without a thought of due process, or the right for an individual to face his/her accuser. 

At about the same time, Senator Joseph McCarthy made headlines for his investigations of communists in the government.  While he had widespread support, the damage he did to individuals based on scant evidence, innuendo, and implication was horrendous.

In each case, significant numbers of people were willing to silence their voices for fear of retribution.  It was only with the passage of time, or the courage of a few to speak up that we as a nation came to appreciate the damage being done.

Now we come to the modern day, where a group of impressionable youths are willing to climb on board with a vocal minority fighting for political domination.  In the process, they will implement a new form of censorship under the guise of “hate speech,” and surrender their freedom to explore ideas, just as our parents and grandparents did for the myths of protection from morally inappropriate material or from communism.

The 27th Amendment

Believe it, or not, this amendment took over 200 years to ratify.  It was one of the 12 original amendments proposed as the Bill of Rights.  The original Second Amendment dealt with pay for Congress.  Any guess as to why it wasn’t included?  It is a simple statement but was not ratified until May 1992.

No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.

We have Gregory Watson, a student at the University of Texas, Austin[i] to thank for bringing this back up after it sat forgotten for so many years.  Greg wrote a paper on the fact the amendment was still open and could be ratified.  Greg got a “C” on the paper because his professor thought the idea unrealistic.  So, he began a letter writing campaign to the various state legislatures.  The rest, as they say is history.

Well that’s it… a brief discussion of all 27 Amendments can be found on my blog if you ever care to go back and review them.  Of course, Wikipedia is probably a lot easier and more detailed.  You can also read the Cornell Law website for good legal reference.

Thanks for reading.

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[i] Wikipedia, Twenty-seventh Amendment

The 26th Amendment -- Lowering the Voting Age

The right of citizens of the United States, who are 18 years of age or older, to vote, shall not be denied or abridged by the United States or any state on account of age.

The Congress shall have the power to enforce this article by appropriate legislation.

On March 23, 1971 Congress proposed the Amendment to lower the voting age from 21 to 18.  It was ratified by the states in 98 days, and became part of our constitution on July 1, 1971,[i] becoming the quickest amendment ever to be ratified.  But why?

Well, two things happened that led to this amendment.  The first was the political activism of the 1960’s where first the civil rights, and then the anti-Vietnam war movements convinced the politicians of a need for change, and then there was, as their usually is, some judicial challenge that forces a change.

The idea of lowering the legal age from 21 to 18 can be traced back to the second world war.  It was supported by President Eisenhower, but changes to the status quo, especially if there is no pressing need, oft times come slow.  In 1963, a Presidential commission recommended the idea to President Johnson, but it was not until 1970 when things came to a head.

In that year, Senator Ted Kennedy, (D-MA) proposed amending the 1965 Voting Rights Act to lower the minimum age for all elections to 18.  President Nixon signed the legislation, but voiced concern over the constitutionality of the provision, and directed his Attorney General to cooperate on expediting a court case to determine its legitimacy.[ii]

In Oregon vs Mitchell (1970), the Supreme Court of the United States found the Congress could establish a voting age for the national elections, but could not force the states to lower it for state and local elections.  At the time, only four states had 18 as their legal age to vote.  Faced with the possibility they would have to maintain two sets of voter registrations, one for federal and one for state, the multitude of states quickly agreed to the amendment and so it came to be.

I was 20 when the amendment passed, so it did minimally affect me, but the thing that stands out in my memory was the nature of the disagreements on this issue.  I don’t recall rancor or animosity, neither side seemed to have an issue with lowering the age, it was only a debate on how to do it within the framework of our principle guiding document, the U.S. Constitution.

     How different we see the political debates today, when every issue is crouched as if it were a great moral debate and challenge to our society.  The 26^th Amendment should stand as a testament on how fast we can do something, if personality politics are put aside in the political debate, but then again, we didn’t have the media fanning the flames of political differences quite as hard as they do now.

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[i] Wikipedia, Twenty-sixth Amendment

[ii] Wikipedia, Twenty-sixth Amendment, Prior legislation

The 25th Amendment -Replacing the President.

It’s probably just me, but it seems this is the most complex of the all the amendments and carries the unmistakable signature of lawyers writing a contract.

Section 1:  In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

Section 2:  Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

Section 3:  Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

Section 4:  Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

Proposed by the Congress on July 6, 1965 it was ratified on February 10, 1967.  It found its first use within 7 years, during the Nixon administration.

This amendment traces its history back to the Eisenhower administration when the President suffered a series of heart attacks that incapacitated him for several periods of time.  He and his Vice President agreed that Nixon would fill in as President for him during these periods, returning authority as soon as the President was able to assume it.

A practical agreement to be sure, but nothing within the framework of the Constitution defined its legitimacy.

This tradition was carried on by Kennedy and Johnson, but then came that fatal day in Dallas when the President was shot.  At first, it was thought by some the President might survive, but if he had he would most certainly be in a coma for an extended period of time.  In the age of the Cold War, and the threat of nuclear attack, a vacuum in authority was almost as frightening to our leadership as the loss of the President.

These two events led to the creation of the 25^th Amendment defining how power was to transition from the President, to the VP, and back, or how the office of VP would be filled if the President were to be removed from office, either through natural death/incapacitation, assassination, impeachment, or resignation.  

The amendment also allows for the removal of the President if the VP and the Heads of the executive Departments (Cabinet), or of some undefined body appointed by Congress, finds the President is not capable of performing his duties.  If this were to happen, the VP would become President.

I doubt the framers of this amendment anticipated that just a few years later it would come into play when Vice President Spiro Agnew (R-MD) was forced to resign after pleading no-contest to a charge he had failed to report $29,500 of income in 1967[i].  He was replaced by Gerald Ford (R-MI), who later went on to replace Richard Nixon (R-CA) on his appointment resignation.  He is the only person who has served as President having never run for the office of President or Vice President, although he did run as an incumbent, losing to Jimmy Carter.

As the drums beat daily, by those who oppose our current President, take heart!  You will always have the 25^th Amendment to help, all you have to do is take complete control of the Congress, organize a committee to find him unfit for office and simply upgrade the VP.  Sorry, but I don’t think you get to replace both without an election.

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[i] Wikipedia -- Spiro Agnew

The 24th Amendment -- Eliminating the Poll Tax

The 1960’s can legitimately be considered the decade of political activism.  Not only for the civil rights movement, or the anti-war protests that followed, but also because politicians made more changes to the US Constitution, quicker than at any other time since the Bill of Rights. 

Almost all of these amendments had to do with providing suffrage, or eliminating state imposed hurtles that prevented some from full access to the voting rights a citizen should enjoy.  Between January 1960 and December 1969, the States ratified, the 23^rd, 24^th and 25^th amendments, the 26^th came just two years later, but its framework was laid in the 60’s as part of the protests over the Vietnam war.

The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any state by reason of failure to pay any poll tax or other tax.

The Congress shall have power to enforce this article by appropriate legislation.

The 24^th Amendment addressed a discriminatory practice, found principally in the south, that had been used to prevent the poor, mostly black, citizens from voting because they could not afford to pay a state mandated tax, known as a poll tax.

The poll tax had been around for a hundred years, gaining popularity in the south during the Reconstruction period.  In 1937, the Supreme Court of the United States upheld the rights of the state to levy such a tax (Breedlove v Suttles, Tax Collector) when Mr. Breedlove sued the Georgia tax collector to allow him to register without paying the tax of $1.00/year.

As the civil rights movement, led by Dr. King, raised the conscience of America to the multitude of ways the blacks were discriminated against the discriminatory nature of the poll tax became a central focus.  At the time, Lyndon B. Johnson exerted enormous pressure within the Democratic party, and the Congress, to move forward with eliminating this issue through the amendment of the Constitution, first as the VP supporting John F. Kennedy’s push, and then as President, working to push the States as a legacy issue for JFK.

The amendment passed the Senate on September 14, 1962, and was ratified on January 23 1964.  Not surprisingly a number of southern states did not vote for ratification, they were Arkansas, Georgia, Louisiana, Mississippi, and South Carolina.  Joining them were Arizona, Oklahoma, and Wyoming.

The 23rd Amendment

The District constituting the seat of Government of the United States shall appoint in such manner as the Congress may direct: A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.

The Congress shall have power to enforce this article by appropriate legislation.

Proposed by the Congress in June 1960, it was ratified as an amendment on March 29, 1961.  In its ratification, it acknowledged the permanent residents of the District of Columbia should have a voice in electing the President.

What had been created as a monument city to house the government was now a major metropolitan area with a permanent population the size of which the founding fathers could not have imagined.  It came to this point with the expansion of the Federal government and the many agencies the executive branch had created, as well as the migration of the blacks from the rural south to the metropolitan areas where better work and pay might be found.

The interesting thing about this city is the pure partisan nature of its population.  In all the presidential elections since 1964, its first year of participation, the city has voted exclusively Democrat.   

By the way, if you are curious they get three electoral votes -- the same number as Wyoming. 

On the bright side, unlike the states where the electors have to travel to DC to do their thing, the district’s three electors can stay home, hop the metro on the appointed day, and probably be home for dinner.

The 22nd Amendment

This amendment is near and dear to me.  You see, my hometown hero is singularly responsible for it.  Before him no one thought a President would serve more than the two terms, a tradition set by George Washington himself.

No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once. But this article shall not apply to any person holding the office of President when this article was proposed by the Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this article becomes operative from holding the office of President or acting as President during the remainder of such term.
This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several states within seven years from the date of its submission to the states by the Congress.

But then came Franklin Delano Roosevelt (D-NY), to save the nation at the time of the Great Depression.  He saw his duty and hung on for four terms to lead the nation through the depression, into the World War and died just prior to the creation of the Nuclear Age. 

He gave us fire side chats, and the imprisonment of the Japanese-Americans living along the west coast.  He attempted to pack the Supreme Court of the United States with extra judges, and created the social security program we have today and American’s loved him for all he did.  Of course, back then the press didn’t see the need to tell the average American he was an invalid and couldn’t get himself dressed without the help of his black butler.  I point out his butler’s color only because Franklin made little effort to end the discrimination that existed in the South, including Washington DC during his term. 

If the blacks had a voice in the White House it was Eleanor’s, and not Franklin.

But he did love himself some power and the prestige that came with being the savior of the nation.  At the end of his term he allowed the Russians to gain control of Eastern Europe and never confided in his VP the potential of the atomic weapon he had authorized.  His death in Warm Springs Georgia left the nation in morning and his VP trying to figure out what were the most important issues to face right now.

The Congress authorized this Amendment in 1947 and it was ratified by the 36^th state in 1951.  I think JFK was the first subject to its restriction.

The 21st Amendment

     The eighteenth article of amendment to the Constitution of the United States is hereby repealed.

     The transportation or importation into any state, territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.

     This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several states, as provided in the Constitution, within seven years from the date of the submission hereof to the states by the Congress.

And with this simple amendment the nation-wide prohibition of alcohol ends, and the rights for a state to regulate its sale or use is returned.  Only in place for about 14 years from ratification to repeal the 18^th Amendment, as noted earlier, sparked a whole new industry in the US that did not simply disappear with its repeal.

Since  approval there have been a number of significant court cases challenging the second section statement about the rights of the state.  These have met with mixed results as the court has moved first in one direction, and more recently in another.  For example, soon after its ratification the court found a state could write legislation that would favor domestic production over the importation of other products without running afoul of the Constitution's commerce clause in Article 1. (e.g. State Board of Equalization v. Young’s Market Company,1936).  More recent judgements have seen the court move to undercut the broad interpretation of the 1936 decision with positions favoring federal jurisdiction with the commerce clause holding sway.

Finally, if you’ve been paying attention you will have noticed the last several amendments carry an interesting last section or clause.  This, to me, seems to be the mark of a professional law staff now engaged in the writing of the amendments.  Starting with the 18^th, then the 20^th, and now the 21^st the Congress gave the states a drop- dead date to get the amendment passed.  In each case, they said  “you’ve got seven-years or else this proposed amendment dies.”   If our founding fathers had used that provision I wonder if the 27^th amendment would have ever seen the light of day, but that’s for another posting, isn’t it?