“We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, 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.” — Preamble to the U.S. Constitution
On this day in 1788 New Hampshire became the ninth and last necessary state to ratify the Constitution of the United States, thereby making the document the law of the land.
By 1786, defects in the post-Revolutionary War Articles of Confederation were apparent, such as the lack of central authority over foreign and domestic commerce. Congress endorsed a plan to draft a new constitution, and on May 25, 1787, the Constitutional Convention convened at Independence Hall in Philadelphia. On September 17, 1787, after three months of debate moderated by convention president George Washington, the new U.S. constitution, which created a strong federal government with an intricate system of checks and balances, was signed by 38 of the 41 delegates present at the conclusion of the convention. As dictated by Article VII, the document would not become binding until it was ratified by nine of the 13 states.
Beginning on December 7, five states--Delaware, Pennsylvania, New Jersey, Georgia, and Connecticut--ratified it in quick succession. However, other states, especially Massachusetts, opposed the document, as it failed to reserve undelegated powers to the states and lacked constitutional protection of basic political rights, such as freedom of speech, religion, and the press. In February 1788, a compromise was reached under which Massachusetts and other states would agree to ratify the document with the assurance that amendments would be immediately proposed. The Constitution was thus narrowly ratified in Massachusetts, followed by Maryland and South Carolina. On June 21, 1788, New Hampshire became the ninth state to ratify the document, and it was subsequently agreed that government under the U.S. Constitution would begin on March 4, 1789. In June, Virginia ratified the Constitution, followed by New York in July.
On September 25, 1789, the first Congress of the United States adopted 12
amendments to the U.S. Constitution — the Bill of Rights — and sent them to the states for ratification. Ten of these amendments were ratified in 1791. In November 1789, North Carolina became the 12th state to ratify the U.S. Constitution. Rhode Island, which opposed federal control of currency and was critical of compromise on the issue of slavery, resisted ratifying the Constitution until the U.S. government threatened to sever commercial relations with the state. On May 29, 1790, Rhode Island voted by two votes to ratify the document, and the last of the original 13 colonies joined the United States. Today the U.S. Constitution is the oldest written constitution in operation in the world.
The U.S. Constitution has served this nation well for 224 years even though from time to time politicians and administrations have attempted to work around the letter of the Constitution in the various laws they have passed. Over the ensuing 224 years Congress has passed and the states ratified 17 more amendments to the Constitution with one of those amendments (the 21st ) canceling a previous amendments (the 18th). The 18th Amendment, ratified in 1919 forbade the sale of alcohol and instituted prohibition — a disastrous attempt to regulate behavior through the coercion of law. Prohibition caused crime and most people ignored it. This government policy became so onerous and ignored that Congress reversed themselves in 1933 when the 21st amendment was ratified by 75% of the states.
The biggest and most used clause of the Constitution for the progressives, statist, and utopians has been the commerce clause: This clause, found in the enumerated powers to Congress in Article I, Section 8 states:
“To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;”
Over the years Congress has passed numerous laws under the egis of the Commerce Clause with the courts striking down some and upholding others. The most egregious of these being the Agricultural Adjustment Act of 1938 ,which was upheld by the U.S. Supreme Court in its 1942 affirmative decision in the landmark case of Wickard vs. Filburn. Since then much mischief has been fostered on the American people under the guise of the commerce clause including the passage of ObamaCare that is currently under review by the Supreme Court.
Today we have a president who, while claiming his knowledge of the Constitution due his being lecturer on Constitution Law at the University of Chicago, has little or no respect for the Constitution. Two of latest examples of this disdain are his granting amnesty to illegal immigrants through executive fiat and his granting Executive Privilege to Attorney General for his part in the gun running program which caused the death of Border Patrol agent Brian Terry by members of the Mexican drug cartels in 2010.
In the case of immigration Article I, Section 8 gives Congress the sole power for the regulation of immigration and naturalization:
“To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States;”
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.
Under the Articles of Confederation, each state retained authority over the naturalization of aliens. This resulted in widely varying state practices, which James Madison in The Federalist No. 42 called a "fault" and "defect" of the Confederation. At the Constitutional Convention, there was virtually no opposition to moving the naturalization power from the states to the new national government, and in the ratification debates only a handful of Anti-Federalists even raised the issue. James Madison seemed to speak the sentiment of most when at the Convention he expressed his wish "to invite foreigners of merit & republican principles among us. America was indebted to emigration for her settlement & prosperity."
Eleven months ago President Obama stated to a reporter that he had no authority to regulate immigration and naturalization and this was a power vested in exclusively in the hands of Congress and it was the duty of the President and Chief Executive Officer of the United States to enforce the laws passed by Congress or those expressed in the Constitution. Now he has reversed himself in claiming that for the reason of “social justice” he can, by Presidential fiat, change the law of the land. This is a total “spit-in-the eye” of the Constitution and the rule of law.
On the Executive Privilege he wants to invoke to protect his Attorney General, Eric Holder, from standing in contempt of Congress for his lies and obfuscations regarding his role in Fast and Furious Obama has once again overstepped his authority under the Constitution.
As the Supreme Court recognized in U.S. v. Nixon, the Executive Branch has a legitimate interest in confidentiality of communications among high officials so that the President can have the benefit of candid advice. However, as President Washington himself recognized, that privilege does not protect the President or his underlings from embarrassment or public exposure for questionable actions.
As the Supreme Court has also recognized repeatedly, the Congress, in the exercise of its constitutional powers, has the essential power to investigate the actions of the Executive Branch.
In this case, the exercise of Executive Privilege seems, in its timing and over-inclusiveness, to be nothing less than a political delaying tactic to prevent exposure of wrongdoing and incompetence that resulted in the murder of a American law enforcement agent and injury and death of many others. Further, a wholesale claim of privilege is facially improper: the President should be held to the standard that anyone claiming privilege is held to: identify each document in a log so that privilege can be disputed. (U.S. v. Nixon, 1974)
Because among the categories of documents sought are all those relating to the recantation by Holder of testimony before Congress, the demand goes to the core of the Congressional power under Article I. In this respect, this is not a general or oversight inquiry but a determination of why the Attorney General of the United States testified falsely before Congress about his own knowledge of a federal program. Presumptively, none of this category of documents is protected by Executive Privilege for wrongdoing per se is not protected by the privilege.
The right way to proceed is to hold Holder in contempt by resolution of the House and seek authorization from the House for the Committee, by its Chairman, to proceed by civil action to compel production of the documents. (Holder will not enforce a holding of contempt against himself — and by the way, he should have authorized, say, the assistant attorney general for legal counsel, to handle the contempt matter once the House voted as at that point he is representing his own interests and not those of the nation generally). Chairman Issa should file suit in federal court in DC and seek expedited action. There is no need for Senate action. The use of this procedure has been acknowledged by the Congressional Research Service in a 2007 study. Further, a privilege log should be sought by Issa and ordered produced immediately by the court, in camera inspection done promptly by the judge, and a final order entered compelling production of all documents for which no legitimate reason justifies Executive Privilege.
Yes, some documents may be covered by Executive Privilege, but the blanket attachment of that label flouts the law and the Constitution, and harms the legitimate assertion of Executive Privilege by Presidents of either party in the future. The Constitution is far too important to be subject to the caprice of this President and an Attorney General who, on its face, wants to be free from scrutiny about why he testified falsely before a Committee of Congress.
Executive Privilege is a very important implied executive power, used in various forms since the presidency of George Washington. Therefore, its misuse and abuse, to cover-up wrongdoing, conceal embarrassing information, or advance a political agenda, diminishes the ability of future presidents to assert it legitimately.
Barack Obama and Eric Holder can leak intelligence affecting our national security without a second thought, yet they clam up when it comes to releasing documents that Congress has requested — documents that would be embarrassing or political damaging to Obama’s administration.
We have an Imperial President who makes Richard Nixon look like an amateur. Barack Obama believes he can do whatever he wishes as long as he keeps up toothy smile, chin tilt, and cool community organizer rhetoric. He believes that as long as he follows the words on his teleprompter and looks cool he can transform the United States in his personal view of Ameritopia. It’s time for Congress to take a stand and do the right thing by holding Eric Holder in contempt and making him face a grand Jury as they did with Roger Clemens.
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